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PCJ QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 224 Date: 2007 06 26 Docket: Q.B.J. No. 14/2006 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN, and BAILEY BRADLEY LONECHILD, Counsel: Paul Goldstein for the Crown William H. Roe, Q.C. for the accused FIAT GABRIELSON J. June 26, 2007 Introduction [1] The applicant, Bailey Bradley Lonechild (the accused), brought an application for a change in venue in this matter pursuant to s. 599(1) of the Criminal Code of Canada. The accused seeks an order granting trial in the City of Prince Albert or such other judicial centre as the Court deems appropriate. He also sought an order pursuant to s. 119(1)(q) of the Youth Criminal Justice Act, S.C. 2002, c. 1, directing the Crown to disclose the names of any witnesses with criminal convictions registered under provisions of the Youth Criminal Justice Act, and particulars of the convictions. Crown counsel did not oppose the application for an order under s. 119(1)(q) of the Youth Criminal Justice Act, and such an order was accordingly made. Crown counsel, however, opposed the application for change of venue. [2] In the indictment filed in this matter, the accused is charged that on or about the 6th day of August, 2005, at or near Saskatoon, Saskatchewan, he did: ... unlawfully cause the death of Justice Dean Sproat and did thereby commit second degree murder, contrary to Section 235 of the Criminal Code. [3] Counsel for the accused states the application for change of venue is brought because it is expedient to the ends of justice as result of the following matters: 1. Pre‑trial publicity regarding the offence; 2. Pre‑trial publicity regarding knives and related acts of violence in Saskatoon; 3. An organization calling itself “Justice for Justin” has been established, which organization has been printing bumper stickers which use that phrase; and 4. There are several memorials to the victim which could arouse sympathy for the victim and prejudice the accused. [4] Crown counsel’s position was that there is an age‑old tenet that the trial should take place in the location where the offence occurred. Crown counsel also states and that there is very high onus upon the accused to establish that fair and impartial trial cannot take place in that location before an order for change of venue can be made. Crown counsel further pointed out that there are safeguards in the system to “cleanse the jurors’ eyes” and that, in the circumstances of this case, change of venue is not warranted. [5] Section 599(1) of the Criminal Code allows an application for change of venue in certain circumstances: 599. (1) court before which an accused is or may be indicted, at any term or sittings thereof, or judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in territorial division in the same province other than that in which the offence would otherwise be tried if (a) it appears expedient to the ends of justice; or (b) competent authority has directed that jury is not to be summoned at the time appointed in territorial division where the trial would otherwise by law be held. [6] Clearly, s. 599(1)(b) is not applicable in the circumstances of this application. Section 599(1)(a), however, must be considered. This section has been interpreted in numerous cases to give the trial judge broad discretion to order change in venue if the evidence before the trial judge establishes that the accused could not get fair trial in the judicial district in which the trial had been scheduled. [7] Counsel for the accused, while citing several cases, relies mainly on two cases, R. v. Charest (1990), 1990 CanLII 3425 (QC CA), 57 C.C.C. (3d) 312, decision of the Quebec Court of Appeal, and R. v. Martin, 1963 CanLII 732 (SK QB), [1964] C.C.C. 391 (Sask. Q.B.), decision of the Saskatchewan Court of Queen’s Bench. In the Charest case, the Quebec Court of Appeal held that the trial judge ought to have allowed change of venue and stated at page 349: ... In my view, fair trial can be conducted only in reasonably serene environment. Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and frightened or enraged community, surely create especially in small judicial district the kind of emotionally charged atmosphere in which the ends of justice may be best served by removal of the trial to another venue. [8] Similarly, in the Martin case, the trial judge, in allowing the application for change of venue, stated at page 393: It is my view that the existence of the fund [a trust fund for the family of the victim] and the fact that no doubt number of persons in the Wynyard district have contributed to it is the principal ground for the application. The strong language of the editorial probably would assist in arousing sympathy for the object of such fund. [9] Crown counsel suggests that the case of R. v. Munson, (2001), 2001 SKQB 287 (CanLII), 212 Sask R. 29 (Q.B.), aff’d 2003 SKCA 28 (CanLII), 172 C.C.C. (3d) 515, is the leading authority in Saskatchewan on the issue of change of venue. Other Saskatchewan cases dealing with this issue are R. v. Trotchie (1984), 1984 CanLII 2298 (SK QB), 31 Sask. R. 250 (Q.B.); R. v. Fischer (1994), 1994 CanLII 5042 (SK QB), 119 Sask. R. 307 (Q.B.); R. v. Baker (1997), 1997 CanLII 11282 (SK QB), 153 Sask. R. 192 (Q.B.); R. v. Thatcher, 1999 SKQB 231 (CanLII), 141 C.C.C. (3d) 33; R. v. Horse, 2000 SKQB 548 (CanLII), 201 Sask R. 309; R. v. Leibel, 2000 SKQB 594 (CanLII), 210 Sask. R. 131; R. v. Musqua, 2003 SKQB 207 (CanLII), 234 Sask. R. 111; and Thatcher v. Saskatchewan (Attorney General), 2003 SKQB 218 (CanLII), 235 Sask. R. 78. [10] It appears to be well settled that absent exceptional circumstances, trial will be held in the judicial centre closest to where the alleged crime was committed. In the Munson case, Scheibel J. stated at paragraphs and 8: [7] The common law rule that an accused should be tried in the locale where the crime was alleged to have been committed dates back several centuries. [8] As early as the year 1762 the court in R. v. Harris, 97 E.R. 858 at 860 (K.B.) said: There was no rule better established, he said, than, "that all causes shall be tried in the country, and by the neighbourhood of the place, where the fact is committed." And therefore that rule ought never to be infringed, unless it plainly appears that fair and impartial trial can not be had in that county. [11] It is also well settled that the onus is upon an applicant to establish by evidence that fair and impartial trial cannot be held in the closest judicial district. The nature of this onus as required by s. 599 of the Criminal Code was outlined by Smith J. in R. v. Leibel, supra as follows: [12] Many cases, particularly older ones, emphasize the exceptional nature of this remedy, conflicting with the established practice and public policy that criminal cases should as rule be tried in the territorial division in which the offence is committed. These cases comment that courts are generally reluctant to grant an order for change of venue and place an onus on the applicant to “make out probable cause that jury sworn and properly instructed would not render true verdict according to the evidence, free of any bias or partiality” .... [12] My analysis of the evidence submitted by the applicant, and each of the grounds raised for requiring change of venue is as follows. 1. Pre‑trial publicity regarding the offence [13] In the case of R. v. Munson, Scheibel J., of the Court of Queen’s Bench, stated at paragraph 20: [20] The onus is on the accused to establish that there is fair and reasonable probability of partiality or prejudice in the community to the extent that full, fair and impartial trial cannot be held in the venue where it is alleged the offence occurred. [14] In an attempt to meet this onus, counsel for the accused filed four affidavits with the application. The first affidavit, that of Lisa Watson, law student working in the office of the accused’s counsel, outlined the results of media search which had been undertaken. Attached to the affidavit were articles found on the internet, 47 articles taken from the Saskatoon StarPhoenix, transcripts of radio reports, document setting out various newscasts that were made about the death of the victim and reference to website which contains the victim’s obituary and messages from persons who visited that website. Finally, the affidavit makes reference to two sporting events that are memorial tournaments for the victim and to series of news releases and emails concerning memorial fountain for the victim to be placed at site in Saskatoon. supplementary affidavit from Ms. Watson listed further media reports regarding knives and the use of knives to commit crimes in the City of Saskatoon. An affidavit from the accused indicated that the combination of the media coverage of the case, the media coverage of offences involving the use of knives, the memorial tournaments and the memorial fountain would affect his ability to have full, fair and impartial trial in the City of Saskatoon. final affidavit signed by Gwen Charman, the director of operations of the Meewasin Valley Authority, which controls the land on which the memorial drinking fountain is to be placed, indicated that to date, the sum of $8,098 has been raised from approximately 133 donors. [15] There is no question that the affidavits establish that the case has generated significant pre‑trial publicity. However, previous cases have held that publicity alone will not result in change of venue. In the case of R. v. Leibel, supra, Smith J. stated at paragraph 17: [17] My conclusion, based [sic] review of all of the case law cited to me by counsel, is that pre‑trial publicity alone, even when it appears to implicate the accused, is not sufficient for change of venue. It is assumed that properly instructed jury selected in accordance with the safeguards provided in the Criminal Code is capable of disregarding such publicity and rendering verdict based solely on the evidence presented in court. Accordingly, change of venue should be ordered only when there is an added element, or elements, that risk undermining the jury’s ability to set aside any preconceptions it may have. This, think, is why the Court in Charest emphasized the necessity for “reasonably serene environment”. Such an environment is threatened when the offence charged has inflamed public fear or passion, sympathy for victim or antipathy toward an accused. It is threatened when the community in question is very small, and jurors may have to face persons directly interested in the outcome after the trial. These factors place an added and potentially insurmountable difficulty in the way of calm and dispassionate deliberation. [16] In the circumstances of this case, despite the examples of media coverage referred to in the affidavits, am satisfied that reasonably serene environment for trial is still possible in Saskatoon. The majority of the exhibited media reports are over year old. There is no evidence that the media reports have created frightened or enraged community such as was the case in the Charest case, supra. The more recent reports are generally factual references to the progress of the case, including the results of various hearings. It is my opinion that the pre‑trial publicity found in this case is not alone sufficient to suggest that full, fair and impartial trial cannot be held. 2. Pre‑trial publicity regarding knives and related acts of violence [17] Ms. Watson’s affidavit refers to some 14 media reports regarding the criminal use of knives in Saskatoon, some of which reports also referenced the victim and/or the incident giving rise to this trial. Some of the articles confirmed that the criminal use of knives has become political issue at all levels of government. However, while the media reports regarding the use of knives which were released close to the time of the incident may have referenced the incident as part of their overall presentation, the later reports rarely do, although some may reference the victim’s name. am satisfied that simply because the offence in question involved knife would not lead jury to be prejudiced against an accused in this particular case, especially with the procedural safeguards that are in place, which will be hereinafter referenced. 3. The “Justice for Justin” organization [18] While counsel for the accused referred to an organization called “Justice for Justin” and in the accused’s affidavit there was suggestion that the accused had been advised that the organization had issued bumper stickers that were displayed on vehicles around the city, no further evidence about the organization, or the size of its membership, was placed before me in evidence. Accordingly, it is my opinion that the accused has not met the onus of establishing prejudice in this regard. 4. Memorial sporting tournaments and memorial fountain [19] The affidavit material confirms that two annual sporting tournaments, Dale Sproat Justin Sproat Memorial Charity Golf Tournament Dinner and memorial lacrosse tournament, are held in the Saskatoon area. In addition, the affidavit material confirms that the family and friends of the victim are raising money to build drinking fountain in the victim’s memory at the Riverfront Park, which is part of the River Landing development in Saskatoon. The affidavit of Gwen Charman, the executive officer of the Meewasin Valley Authority, confirmed that the sum of $8,098 had been raised from 133 donors. Counsel for the accused confirmed that the accused does not object to the memorial sporting tournaments or the memorial fountain, but stated that the accused was concerned that such activities will engender sympathy for the victim and thereby prejudice the accused from receiving fair trial. In the Charest case and in the Martin case, the existence of some memorial fundraising and memorials in the victims’ names led the courts in those instances to grant changes of venue. However, in allowing the application, both judgments referenced the relatively small size of the judicial centres in which the trials were to be held, thereby making it more likely that an impartial jury pool could not be found. [20] Saskatoon is not small judicial centre. In the case of R. v. Munson, supra, Scheibel J. stated at paragraph 25: [25] am advised by counsel that the Saskatoon area from which jury array might be sought consists of population of approximately 250,000 while the population of the area around each of Estevan and Swift Current consists of about 25,000 people. Therefore am convinced there is greater likelihood of obtaining fair and impartial jury in Saskatoon than in Estevan or Swift Current given the small populations in those areas and the province‑wide publicity of the issues relating to the charges faced by the accused. am not convinced that jury, properly selected from the Saskatoon area, would be unable to set aside any preconceptions it might have. [21] While was not presented with direct evidence on this issue, am satisfied that can take judicial notice that the population of the Saskatoon judicial area has not decreased since Justice Scheibel’s decision in 2001 and, in fact, has increased significantly and is now more than 250,000 people. Saskatoon is more populated than the Prince Albert judicial district to where the accused requests the case be transferred and is much larger than the judicial district of Humboldt, which might also be considered. Crown counsel indicated in his submissions that the family of the victim was prepared to share with counsel for the accused the names of those who donated to the memorial fund so that counsel for the accused would be aware if any of the donors were on the jury panel and could therefore challenge their participation if they, in fact, were selected. While not specifically referred to in argument, this cooperation of the victim’s family could perhaps also be expanded to disclose to Crown counsel and, in turn, counsel for the accused the names on the petition referred to in Exhibit “52” of the affidavit of Lisa Watson and also the names of the “Justice for Justin” organization (if known) so as to further ensure fair trial. 5. The combined effect of the four factors [22] Having considered each of the individual concerns of the accused, must also consider their combined effect. In the case of R. v. Munson, supra, the Saskatchewan Court of Appeal pointed out the safeguards that exist in our judicial system to prevent public bias from prejudicing an accused’s right to fair trial. The Court quoted from the Supreme Court of Canada decision of R. v. Find, [2001] S.C.R. 863, 2001 SCC 32 (CanLII), where Chief Justice McLachlin stated: 40 .. The law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process. It therefore does not permit party to challenge their right to sit on the jury because of the existence of widespread bias alone. 41 Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. The opening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective. The rules of process and evidence underline the fact that the verdict depends not on this or that person’s views, but on the evidence and the law. At the end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordance with those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listen to each other’s views and evaluate their own inclinations in light of those views and the trial judge’s instructions. Finally, they are told that they must not convict unless they are satisfied of the accused’s guilt beyond reasonable doubt and that they must be unanimous. 42 It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice. It is against the backdrop of these safeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges for cause only where realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trial process. [23] In addition, court can permit challenges for cause, such as those referred to in paragraph 23 of the Court of Appeal decision. [24] Having reviewed the affidavit material filed in support of this application and having considered the four grounds for the application, as outlined by counsel for the applicant, I am satisfied that there is no evidence of a general prejudicial attitude in Saskatoon as a whole that would justify a change in venue. While I recognize that there has been significant pre‑trial publicity in this case from media reports of the case and other similar cases involving knives, as well as the ongoing memorial reports, for the reasons I have set forth, I find that the accused has not met the onus of proof necessary to succeed on this application. [25] In conclusion, am satisfied that properly instructed jury will be able to deal with the issues in the trial impartially and in accordance with the evidence presented, such that the accused will receive fair trial. I therefore exercise my discretion and deny the application for a change of venue for the trial. J. N.G. Gabrielson

FIAT: The accused applicant brings an application for a change in venue in this matter pursuant to s. 599(1) of the Criminal Code. HELD: 1). The application for a change of venue is denied. 2) There is no evidence of a general prejudicial attitude in Saskatoon as a whole that would justify a change in venue. There has been significant pre-trial publicity in this case from media reports of the case and other similar cases involving knives, as well as ongoing memorial reports. However, the accused has not met the onus necessary to succeed on its application. In other cases the existence of some memorial fundraising and memorials in the victim's names led the courts in those instances to grant a change in venue. However, in allowing the application, the courts in those cases both referenced the relatively small size of the judicial centers in which the trials were to be held, thereby making it more than likely an impartial jury pool could not be found. Saskatoon is not a small judicial centre. It is more populated than the Prince Albert judicial district to where the accused requests the case be transferred and is much larger than the judicial district of Humboldt, which might also be considered.

c_2007skqb224.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 183 Date: 2006 04 19 Docket: Q.B.G. No. 952/2004 Judicial Centre: Regina BETWEEN: MORLEY CATTELL and CHERYL MACK PLAINTIFFS (DEFENDANTS BY COUNTERCLAIM) and CRAIG BOSENBERG and PAULA STRASSBURG and GREAT PLAINS LEASEHOLDS LTD. DEFENDANT (PLAINTIFF BY COUNTERCLAIM) and EMERALD PARK GOLF AND COUNTRY CLUB LTD. and THE TOWN OF WHITE CITY Counsel: Richard B. Morris, Q.C. for the plaintiffs J. Paul Malone for the Emerald Park Golf and Country Club Ltd. and Great Plains Leaseholds Ltd. Rodney J. Rath for the Town of White City JUDGMENT MacDONALD J. April 19, 2006 1) This is an action by the plaintiffs, Cattell, Mack, Bosenberg and Strassburg pursuant to Part Forty of The Queen’s Bench Rules for damages arising to them from the alleged nuisance and negligence caused by the defendants, Great Plains Leaseholds Ltd. and the Town of White City with respect to their operation of the Emerald Park Golf and Country Club Ltd., and for a permanent injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the property of the plaintiffs. 2) The plaintiffs Morley Cattell, Cheryl Mack, Craig Bosenberg and Paula Strassburg are neighbours and live in the community of Emerald Park just east of the City of Regina. Their homes are adjacent to one another and abut the ninth hole of the Emerald Park Golf Course. 3) Until recently, the golf course was owned and operated by the defendant, Emerald Park Golf and Country Club Ltd. On January 12, 2005, the property was purchased by The Town of White City who entered into an agreement with Great Plains Leaseholds Ltd. and PW Lorch Associates Ltd. for the continued operation of the course. 4) The plaintiffs, Cattell and Mack, acquired their lot in early 1997 and the plaintiffs, Bosenberg and Strassburg bought their home from the previous owners in February 2003. 5) In the span of approximately nine years, the plaintiffs, Cattell and Mack, have had approximately 1,000 golf balls per year enter their property. Although fewer balls have landed in the yard of Bosenberg and Strassburg, the number in 2004 was around 400 and in 2005, their evidence is they collected 250 balls. 6) The golf season on this course is from mid-April until October. During the peak season, the plaintiffs say they can experience approximately 10 to 15 balls day entering their yard. Some of the balls roll under the fence, but many of these balls are hard driven and as result the plaintiffs have sustained extensive damage to their homes, the windows of their vehicles and on other occasions the balls have narrowly missed hitting workmen and guests in the yard. 7) The inconvenience is so great and the potential for injury so substantial that the plaintiffs have been prevented from using their yards during the seven months of the year that the course operates. 8) In addition, golfers who have shot their balls into the plaintiffs’ yards will often attempt to enter the property to either retrieve their golf balls or occasionally will try and play the shot from the plaintiffs’ yards. On one occasion an angry golfer deliberately shot ball at the plaintiffs’ house and when he was being asked to leave threatened to burn the house down. 9) The golf course was designed and built in the late 1980s by Great Plains Leaseholds Ltd. The course operated for approximately 10 years without any residential development adjacent to it; however, in 1997, the defendant, Great Plains Leaseholds Ltd., entered into an agreement with Parkview Homes Ltd. to open up the land beside the golf course for residential development. 10) Ben Kuzmicz, President of both Emerald Park and Country Club Ltd. and Great Plains Leaseholds Ltd. and one of the original developers of the golf course, testified at trial that the design plans for the residential area were not part of the initial design of the golf course, nor were the services of the original golf course architect used in planning the development. The actual development plan came later. 11) Mr. Kuzmicz, to his credit, was very candid in his cross-examination and when asked about the development plan, acknowledged that the original residential lot design was based on his own configuration with input from local surveyor who was employed to survey out the lots, prepare and register the plan. 12) He also acknowledged that although he does not golf and did not have any residential or golf course design experience when he set about to design this subdivision, he felt confident that everything would be fine. He confirmed, however, that the design of the ninth hole and the configuration of the adjacent lots has been an ongoing problem since the houses were built. 13) He further confirmed that although there have been attempts by the defendant, Great Plains Leaseholds Ltd., over the years to remedy the problem, they have never commissioned any reports or sought out any professional advice on how this situation could be properly remedied. Rather, he has preferred to rely on his own observations and judgment and the recommendations of the various course managers as to how this problem might be abated. 14) Unfortunately, he said the input of those managers has not been very helpful in finding solution, but he is now hopeful that with assistance of the new golf course manager, who is business woman with interior design experience, and his own life experience as farmer, that the problem will be resolved. 15) One of his solutions has been to oversee the planting of both spruce trees and deciduous trees in an attempt to block some of the shots. He also argued that the plaintiffs should have planted more trees themselves and that if they had, it might have prevented some of the damage to their property. He relies on paragraph 2.07(g) of the contract to support this proposition. He did acknowledge though that the plaintiffs did plant spruce trees which were destroyed by the golfers and that the reference to trees in the contract requires them to be on the lot and not necessarily as protection from flying golf balls. 16) The plaintiffs’ lots border the right hand or east side of the ninth hole. The ninth hole is described as long hole and is oriented from east to west. An examination of the sketches and pictures attached to the affidavits show that the design of the hole places the plaintiffs’ homes right in the line of fire, not only from those golf balls being hit off of the ninth tee, but also from balls hit from second or third shots being played on that hole. 17) Prior to trial, and in an attempt to find resolution to this matter, the plaintiffs commissioned the report of Mr. Ken Tanner, an expert in golf ball trajectory. 18) In his report he describes several factors that would cause golf balls being hit from the ninth hole of the Emerald Park Golf Course to enter the plaintiffs’ yards. These factors include what he refers to as golfer’s obsession with distance. This obsession, when combined with recent advances in technology, have resulted in golfers being able to hit the ball farther without increasing their swing speed. He also says that while this may be one reason for the existing problem, this is not the only reason for the plaintiffs’ problem. If you overlay this obsession with distance onto the current design of the ninth hole, and add to that the prevailing wind direction, together with the golfer’s perceived or real need to compensate for the wind direction and speed, you often end up with misalignment of the shot. All or many of these factors can cause the ball to land in the plaintiffs’ yards instead of on the course. 19) In addition, he suggests that some golfers would, in fact, intentionally aim their shots toward the residential lots. 20) His report makes several recommendations which he believes would remedy the present situation and thereby prevent golf balls from entering the plaintiffs’ property. 21) The first recommendation is to move the tee box back and construct 30 metre fence. 22) The second recommendation is to change the nature of the hole from that of par four to par three, which in his opinion would prevent golfers from driving the ball as hard as they are presently doing in an attempt to reach the green. This would also prevent the balls that are being hit from second and third shots from entering onto the property of the plaintiffs. 23) While the defendants are now amenable to moving the tee box back and did, in fact, move it back last fall, they refuse to erect fence to the size recommended in the report stating that it would be unmanageable and unsightly. 24) The plaintiffs agree that fence of that size might be unsightly, but argue that the defendants have advanced no expert evidence to support the proposition that just moving the tee box will fix the problem. The plaintiffs say that the only evidence the defendants have that this might correct the problem are the recorded observations of two course marshals over two day period in October, 2005. These observations were made when the prevailing wind was from the northwest, not the southeast, and the number of golfers was low and is therefore not reliable since it does not reflect the conditions present during the majority of the golfing season. 25) Mr. Kuzmicz also refuses to accept the second recommendation in the report, saying that in his opinion, if the course was changed from par four to par three, the defendant, Emerald Park Golf and Country Club Ltd., could no longer advertise itself as championship golf course and this he believes would reduce its attractiveness to some golfers. He did agree on cross‑examination, however, that in the 20 plus years that the golf course has operated, it has held only one or two championship games and that he has no expert or other evidence to support this proposition. 26) The administrator for the Town of White City, the current owner of the course, was asked at trial whether she was familiar with the recommendations in Mr. Tanner’s report. In reply she stated that she was; however, although she had been advised by the operator of the course that change to par three might affect its ability to attract champion golfers, the Town officials themselves were not really that concerned with the par three issue since the main reason the Town had acquired the course was to provide recreational site to its residents and not to make money. 27) She did state, however, that the first recommendation to move the tee box back and erect 30 metre fence could probably be accomplished by moving the box back and the erection of much lower fence. She had no basis for this view and when questioned as to how she came to that conclusion she acknowledges she was simply relying on the advice of the operator and not on any expert evidence or reports. 28) Because the defendants refuse to accept either of the recommendations in the report, the plaintiffs are now left in the position where they are being encouraged to once again just wait and see how badly they will be affected in the 2006 season. 29) Since the problem has been ongoing for ten years and the attempts by the defendant operator to ameliorate the damage has been unsatisfactory, the plaintiffs are no longer prepared to wait and have asked the Court for relief in the form of an injunction to prevent the defendants from operating the ninth hole until the situation has been remedied in accordance with the recommendations in the expert’s report. ISSUES (a) Does the manner in which the defendants allow the ninth hole of the Emerald Park Golf and Country Club to be played constitute nuisance? (b) Are the defendants negligent for the design and management of the golf course and for its failure to remedy the problem of golf balls hitting the plaintiffs’ property? If so, what are the plaintiffs’ damages? (c) What is the effect of the indemnity clause in the development agreement between the defendant, Great Plains Leaseholds Ltd., and the plaintiffs, Cattell and Mack? (d) Is injunctive relief an appropriate remedy in the circumstances and if it is, should it be suspended for period of time in order to give the defendants an opportunity to see whether the location of the new tee box will remedy the situation? 30) Private nuisance is defined as an unreasonable interference with the use and enjoyment of land. “This may come about by physical damage to the land ... or injury to the health, comfort or convenience of the occupier” (see Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at 525. 31) Whether the operation of golf course adjacent to an individual’s land is defined as being an unreasonable interference with the use and enjoyment of that land appears to depend on the nature and frequency of the behaviour complained of. 32) The plaintiffs’ position is that the golf balls which are hit from the adjacent golf course onto their property is and continues to be an interference with the use and enjoyment of their property. They argue that not only is the interference unreasonable, it is potentially dangerous to them and their families. 33) There are number of recent cases from various jurisdictions that have examined whether golf balls flying from an adjacent golf course onto an individual’s property constitutes nuisance. Our own Court of Appeal examined this issue in the case of Lakeview Gardens Ltd. v. Regina (City), 2004 SKCA 110 (CanLII); [2005] W.W.R. 651; (2004), 254 Sask. R. 212. In that very specific fact situation the court held that few golf balls of 10-20 over five-year period, with limited damage to property did not constitute continuing nuisance. 34) If we look to the other jurisdictions for some guidance as to what number of errant balls might fairly constitute nuisance, it would appear that anything from 200 golf balls and up over the span of year is definitely an unreasonable interference with the use and enjoyment of one’s own property. Mr. Tanner, an expert in golf ball velocity, said that it is hard to estimate how many errant golf balls being hit into someone’s yard would constitute too many. Given the fact that the majority of the balls are hit at speeds of between 100 and 120 miles per hour, even few can, in his opinion, cause considerable damage and serious injury when they hit something. 35) Here, the number of golf balls being hit onto the adjacent properties from the defendant golf course is far greater than the number cited in many of the cases put forward. In fact, the evidence of everyone, the defendant operator of the golf course and the plaintiff, Cattell, affirms that no one ever anticipated that the problem would be this bad. 36) There is no doubt then that the present operation of the ninth hole of the Emerald Park Golf Course is a nuisance and continues to be a nuisance. 37) Which then leads us into the argument advanced by the defence that the plaintiffs, Cattell and Mack, cannot succeed in their action because of the wording in the Optionee’s Indemnity clause as contained in paragraph 2.12 of the Option Agreement between Great Plains Leaseholds Ltd. and Parkview Homes Ltd. and which agreement was later assigned to Cattell and Mack upon their lot purchase from Parkview. 38) In that clause, Mack and Cattell, contract to indemnify and hold harmless the optionor (Great Plains Leaseholds Ltd.) “from, and against, all claims, demands, damages, losses ... related to, occasioned by or arising out of, resulting from or attributable to the acts or omissions of the [optionee], anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, in breaching the covenants, agreements, undertakings and obligations of the [defendant] hereunder.” 39) The clause then goes on to hold the defendant optionor harmless against all injuries, damages, losses, expenses costs etc. occasioned by or arising from the operation of the golf course. 40) It would appear to me that this clause is of little value to the defendants given that the evidence of all of the parties, including the evidence of Ben Kuzmicz, confirms the fact that when the residential area was developed and the contract was signed, no one, including the operator (Great Plains Leaseholds Ltd.), anticipated the extent of the existing problem and, accordingly, the plaintiffs Cattell and Mack could not have agreed to save the defendant harmless from a problem of this magnitude. 41) This clause does not therefore afford any protection to the defendants, and even if it did bind the plaintiffs, Cattell and Mack, it does not release the defendants from the claim by Bosenberg and Strassburg, who continue to have the same problem with the golf balls. 42) Accordingly, the defendants, Great Plains Leaseholds Ltd. and Emerald Park Golf and Country Club Ltd., are therefore liable to all of the plaintiffs in negligence for the failure over the past years to remedy or eliminate this hazardous and dangerous situation. This failure has not only caused extensive physical damage to the plaintiffs’ properties, but has also resulted in the loss of the use and enjoyment of their yards for seven months of the year and for these damages they should be compensated. 43) The Town of White City argued that they should only be responsible for those damages which have arisen since they became the owners of the golf course. do not agree and accordingly the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City shall be jointly and severally liable to the plaintiffs for those special damages as set out in the affidavits filed. The defendants did not dispute the amount of those damages at trial. 44) The plaintiffs, Morley Cattell and Cheryl Mack, shall also be entitled to recover from the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City, jointly and severally, the sum of $18,000.00 for the loss of use and enjoyment of their property over the past nine years. The plaintiffs, Craig Bosenberg and Paul Strassburg shall be entitled to the sum of $6,000.00. 45) In addition, for the reasons as outlined in the preceding paragraphs, I am of the view that the plaintiffs are entitled to injunctive relief to put an end to the nuisance which has continued for the past nine years. am not prepared to order the specific course of action that the defendants should take in order to remedy the problem. The expert’s report has been filed. In that report he has made certain recommendations, one of those recommendations should be fully complied with unless the defendants can come up with better solution for resolving this dangerous and annoying problem. I therefore order the following:(a) The defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd., and The Town of White City are hereby enjoined from allowing its members and their guests or any other users of the golf course from hitting golf balls on the ninth hole of the course so that they land anywhere on the plaintiffs’ property. J. L. B. MacDonald

The plaintiffs seek damages arising from the alleged nuisance and negligence caused the defendants in the operation of the golf course. The plaintiffs also seek an injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the plaintiffs' property. HELD: 1) The court looked at other jurisdictions for guidance as to what number of errant balls might constitute a nuisance. It would appear that anything from 200 golf balls and up over the span of a year is definitely an unreasonable interference with the use and enjoyment of one's own property. Over a span of 9 years, the plaintiffs have had approximately 1,000 golf balls per year enter their property. In this case, the number of golf balls being hit onto the adjacent properties from the defendant's golf course is far greater than the number cited in many of the cases put forward. There is no doubt then that the present operation of the ninth hole is a nuisance and continues to be a nuisance. 2) The wording of the Optionee's Indemnity clause is of little value to the defendants given the evidence of the parties. The evidence confirms that when the residential area was developed and the contract signed, no one, including the operator, anticipated the extent of the existing problem. Accordingly, the plaintiffs could not have agreed to save the defendant harmless from a problem of this magnitude. 3) The plaintiffs will be compensated for the extensive physical damaged to the plaintiffs' properties, but also for the loss of the use and enjoyment of their yards for 7 months of the year. 4) The plaintiffs are entitled to injunctive relief to put an end to the nuisance that has continued for the past 9 years. The defendants are enjoined from allowing golfers from hitting golf balls on the ninth hole so that they land anywhere near the plaintiffs' property.

b_2006skqb183.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 409 Date: 2012 10 05 Docket: Q.B.C.A. No. 39/2011 Judicial Centre: Saskatoon BETWEEN: ALLAN ENDEN, and HER MAJESTY THE QUEEN, Counsel: Dhugal G. Whitbread for the appellant Tamara A. Rock for the respondent JUDGMENT KRAUS J. October 5, 2012 [1] The appellant appeals against conviction and sentence ($200.00 fine and $50.00 victim surcharge) made by K. Dmytryshyn, Justice of the Peace, at Saskatoon, on October 28, 2011, on the charge under s. 253(2)(b) of The Traffic Safety Act, S.S. 2004, c. T‑18.1. [2] Section 253(2) of the Act provides: (2) Every person in charge of motor vehicle that is involved in an accident shall: (a) notify the following persons as soon as is practicable after the accident: (i) the person in charge of any other motor vehicle that is involved in the accident; (ii) if any property in addition to motor vehicle has been damaged as result of the accident, the person in charge of that property; and (b) provide the persons mentioned in clause (a) with the following information:(i) his or her name and address;(ii) his or her driver’s licence number;(iii) the number of the certificate of registration of the vehicle; and(iv) particulars of any insurance affecting the vehicle. [3] The appeal is taken on the following ground: Judge failed to give proper legal effect to evidence that did not know there was problem until came out of the store was confronted by the owner of the car [Notice of Appeal dated November 23, 2011] [4] The appellant contends that he was unaware that an accident had taken place until he returned from the store and the finding of the trial judge that the appellant must have known an accident had taken place before entering the store is contrary to the preponderance of evidence. The appellant says that the trial judge “gave no articulable reason to prefer the confused and contradictory evidence of [the independent witness] over the clear evidence of the Appellant.” The verdict is unreasonable, the appellant argues, since he had no duty to report an accident which he did not know had happened prior to returning from the store. [Appellant’s memorandum of argument, paragraphs 12 and 13] [5] The respondent submits that the reasons of the trial judge are sufficient, pointing to her assessment of credibility of the independent witness to that of the appellant, supporting the finding by the trial judge that the appellant did have knowledge of the accident before entering the store. [Respondent’s brief of law, paragraph 13, quoting transcript, page 55, lines to 21] [6] I am satisfied that the trial judge did give sufficient reasons for her decision and took into consideration all of the relevant evidence and the law in reaching her decision. She was entitled to assess credibility of the independent witness and the appellant, deciding to prefer the evidence of the independent witness to that of the appellant. In doing so, the trial judge did not rely upon the testimony of any witness that was inherently improbable, and she applied the correct burden of proof, beyond reasonable doubt, in reaching her verdict. The verdict is not unreasonable (see R. v. B. (J.N.), 1991 CanLII 111 (SCC), [1991] S.C.R. 66, 71 Man.R. (2d) 156) and there was no palpable or overriding error. (See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 43 D.L.R. (4th) 424; R. v. Andres (1979), 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249, Sask.R. 96 (C.A.); and R. v. Kornkven, 2007 SKQB 315 (CanLII), 301 Sask.R. 162.) [7] The appeal is dismissed. “G.M. Kraus” J.

The appellant appealed his conviction under s. 253(2)(b) of The Traffic Safety Act for failing to provide his name, address, licence and registration at the scene of an accident. The appellant argued that he was unaware that an accident had occurred and argued that the trial judge's finding that he must have known the accident had occurred was contrary to the evidence. The appellant also argued that the trial judge erred in preferring the evidence of the Crown's witness over his own. HELD: The appeal was dismissed. The trial judge gave sufficient reasons for her decision and took all of the relevant evidence into consideration. She was entitled to assess the credibility of the independent witness and to prefer it over the evidence of the appellant.

9_2012skqb409.txt

J. SUPREME COURT OF NOVA SCOTIA Citation: Killam Properties Inc. v. Patriquin, 2011 NSSC 338 Date: 20110906 Docket: Hfx No. 348507A Registry: Halifax Between: Killam Properties Inc. v. Mark Patriquin Respondent Judge: The Honourable Justice Glen G. McDougall Heard: September 6, 2011, in Halifax, Nova Scotia Oral Decision: September 6, 2011 Written Decision: September 20, 2011 Counsel: Lloyd R. Robbins, for the appellant I. Claire McNeil, for the respondent By the Court: [1] This is an appeal from decision of Small Claims Court adjudicator given on April 7, 2011. The grounds for appeal as stated in the Notice of Appeal are: (a) jurisdictional error; and (b) error of law [2] The particulars of the error or failure as set out in the appellant’s Notice of Appeal are: 1. The Adjudicator made an error of law and was in excess of jurisdiction in determining that the Small Claims Court had jurisdiction to hear the application of the respondent for review of rental increase. 2. The effect of the Adjudicator’s decision is that he is now hearing an application for declaratory relief. It is respectfully submitted that the Adjudicator of the Small Claims Court sitting on an Appeal of an Order of the Director of Residential Tenancies does not have the jurisdiction to grant Declaratory Relief. [3] In his brief, counsel for the appellant, Killam Properties Inc., raised three issues: 1. Does the Director of Residential Tenancies or an Adjudicator on an appeal of Director of Residential Tenancies decision have the jurisdiction to hear Residential Tenancies Act Section 14 review of rent increase that has not been commenced within 30 days of notice of the rent increase? 2. Does the Adjudicator have the jurisdiction to amend the Section 14 application of the Respondent and hear it as Section 13(1) application? 3. Does an Adjudicator have the jurisdiction to grant Pure Declaratory Relief? [4] In her brief, counsel for the respondent raises two preliminary procedural issues: (1) The Court has no jurisdiction to hear interlocutory appeals; and (2) The Court has not given leave to the appellant to file new evidence and as such the affidavit of Kevin Arbuckle, Director of Property Management for Killam Properties Inc., cannot be considered. [5] I will first deal with the issue of whether or not the affidavit of Mr. Arbuckle is properly before the Court and whether or not it should be considered on the merits of the appeal. [6] With regard to affidavit evidence, clearly, the Small Claims Court Act appeal provisions do not provide for the submission of any new evidence. The appeal is not hearing de novo. It is hearing based on the record. By record, mean the contents of the Small Claims Court file which is requested and provided to our court when notice of appeal is filed. The entire record, including any exhibits filed in the hearing before the Small Claims Court, are all included in that file and they are all open to review by this Court. In addition to that, the adjudicator is requested to provide summary report of findings of law and fact made on the case on appeal. So, in addition to the decision or order of the adjudicator, the summary report is also provided to this court and is used in determining the merits of the appeal. [7] As Justice Beveridge indicated in his decision of Lacombe v. Sutherland, [2008] N.S.J. No. 603 at para 29, there are occasions when additional affidavit evidence may be admitted. Again, use the word “may” because it is discretionary thing. It depends on the particular judge who hears the appeal. request has to be made to that particular judge to adduce fresh evidence. If it is evidence that would help to establish jurisdictional error or breach of natural justice the request might be found to have merit. Any additional type of affidavit evidence would only be admitted if truly exceptional circumstances exist. [8] The Small Claims Court Act and its Regulations do not contemplate an appeal by way of trial de novo. It is based on the record. This is not carte blanche refusal to admit additional evidence but it would only be in very rare and exceptional circumstances that further affidavit evidence would be admitted. There are good policy reasons for this. If affidavits were routinely accepted the appeal would soon morph into trial de novo. It would be tantamount to an appeal based on transcript. The Small Claims Court is not required to record the evidence. There is no transcript. To allow affidavit evidence to be filed on appeal to the Supreme Court would add unnecessarily to the expense of the proceeding. It would also defeat the principle purpose for the Small Claims Court which is to provide an inexpensive and informal venue for people to present cases without the need to incur the expense of legal representation. [9] In terms of the particular affidavit that has been tendered here, do not accept that it is of any assistance in deciding the merits of this particular appeal. do not see it as going to the alleged jurisdictional error that is cited as one of the grounds of appeal. If counsel wished to tender additional evidence, notice would have to be provided to the court and to opposing counsel. That was not done in this case. [10] will now deal with the other preliminary objection regarding the court’s jurisdiction to hear an appeal from an interlocutory ruling prior to final determination of the matter. [11] Appeals to this Court are governed by section 32 of the Small Claims Court Act, R.S.N.S. 1989, c. 430 which states: 32 (1) party to proceedings before the Court may appeal to the Supreme Court from an order or determination of an adjudicator on the ground of (a) jurisdictional error; (b) error of law; or (c) failure to follow the requirements of natural justice, by filing with the prothonotary of the Supreme Court notice of appeal. [12] also make reference to the decision of Justice Duncan Beveridge (as he was then) in Lacombe v. Sutherland, supra, paras 26, 27 and 28: 26 There are not appeals as of right. There is no inherent right accorded to litigant to appeal or for superior court to entertain an appeal. Appeals are entirely creations of statute. Typically an appeal is not re-hearing of the dispute between the parties. 27 In Nova Scotia the Small Claims Court Act provides an appeal as right to the Nova Scotia Supreme Court. Section 32 sets out the grounds of appeal that can be raised. Oddly enough the Act does not set out the powers that the Supreme Court has if it finds an error of law, jurisdiction or breach of natural justice. Typically the case law in Nova Scotia is that where any such error is found re-hearing is ordered before different adjudicator. 28 It is well established that in the ordinary course, absent some special power on appeal, such as an appeal by way of hearing de novo, the appellate court does not engage in re-hearing of the dispute. Findings by the court below are accorded considerable deference. They can only be interfered with in this regime if the appellant makes out one of the three grounds for an appeal. That is, an error in law, jurisdiction or breach of natural justice. Even in an ordinary civil case an appellate court can only intervene if the trial court made an error of law or an error of fact that amounts to clear and palpable error. [13] Justice Beveridge makes it very clear that if there is right of appeal it is created by statute and in this particular instance by s. 32 of the Small Claims Court Act, supra. [14] The question that has to be asked is: “Has there been ‘an order or determination’ of an adjudicator from which to appeal?” Reference should be made to the ruling of the adjudicator on the preliminary motion raised by the Landlord’s counsel at the outset of the Small Claims Court appeal of the order of the Director of Residential Tenancies. The motion was heard on March 21, 2011. The hearing was suspended pending ruling which was delivered in writing on April 7, 2011. On page of the decision, the adjudicator made it clear that he was ruling on the preliminary motion only. It was not final decision as he invited the parties to “contact the clerk of the Small Claims Court, subject to an appeal of this decision to have court date for the continuation of this hearing.” [emphasis added]. [15] It is unfortunate that the adjudicator added the clause “subject to an appeal of this decision.” It appears to open the door for an appeal which would expand the right of appeal found in s. 32 of the Small Claims Court Act. The adjudicator cannot confer jurisdiction on this Court, the Supreme Court, to entertain an appeal of an interlocutory ruling. An appeal to the Supreme Court under s. 32 of the Small Claims Court Act is “from an order or determination of an adjudicator.” interpret that to mean final order or determination. An interlocutory appeal from ruling on preliminary motion is not what is meant by this statutory provision. [16] refer to the decision that rendered in the case of Her Majesty the Queen v. Christopher Wayne Primrose, 2009 NSSC 241 (CanLII). Although that decision arose in the context of Summary Conviction Appeal under the Criminal Code, and although s. 830 of the Criminal Code uses the phrase “or other ‘final’ [emphasis mine] order or determination” which the Small Claims Court Act does not despite that, am still of the view that the reasons for refusing to entertain an interlocutory appeal in that decision are also applicable to the case that is before me. [17] I decline to hear the appeal and refer the matter back for a continuation before the same Small Claims Court adjudicator who made the ruling on the preliminary motion. [18] There are policy reasons as well for making this particular ruling today. The Small Claims Court Act as is the Residential Tenancies Act, is meant to be an informal and inexpensive means of having issues that affect the parties adjudicated. It is intended to allow people to present their own arguments without the necessity of engaging or retaining lawyers to represent them. That does not mean that parties are prevented from engaging counsel and probably in many instances they are wise to do so, but if this Court was to entertain an appeal of an interlocutory ruling it would result in delays in having matters heard and would likely result in increased costs to the litigants. [19] The right to appeal final decision of Small Claims Court adjudicator on an issue involving residential tenancies is still open to be brought to this court. Nothing in my decision will prejudice or preclude any of the parties to this particular action from launching an appeal if they feel aggrieved by the final decision that the adjudicator makes. [20] The matter is sent back to the Small Claims Court. Arrangements can be made to have the hearing continued before the same adjudicator. [21] With regard to Mr. Robbins fear that he might be precluded from launching an appeal of the ruling because of the statutory limitation of 30 days, do not share his concerns. This is simply ruling given during the course of hearing. It is not final order or determination made by Small Claims Court adjudicator. This particular issue or the issues that he wishes to raise pertaining to jurisdiction could be included in any appeal that is launched if the ultimate decision is not in favour of the current appellant, Killam Properties Inc. Obviously decision to appeal will have to await the final decision of the adjudicator after all of the evidence is heard. note that an appeal from decision of the Director or his agent to the Small Claims Court is, in fact, re-trial. It is re-hearing of the facts. It is not the same as an appeal to our court which relies on the record from the court below. [22] After hearing from the parties on costs, order Killam Properties Inc. to pay the sum of $50.00 to Dalhousie Legal Aid as counsel for Mark Patriquin. McDougall, J.

A small claims adjudicator determined he had jurisdiction to hear the respondent's application for a review of his rent increase. He adjourned the matter and asked that it return to him for a hearing on the merits. The appellant appealed. At issue was whether the appeal was properly before the court or premature. There was also an issue concerning the admissibility of an affidavit that wasn't before the adjudicator at the original proceeding. Appeal dismissed and matter returned for a continuation of the hearing on the merits before the same adjudicator. The court has no jurisdiction to hear an appeal on an interlocutory decision of this nature. There can be no appeal from the Small Claims Court until a final determination is made. Until this matter is decided on its merits, there has been no final determination. There are sound policy, as well as practical, reasons for this approach.

2_2011nssc338.txt

C.A.C. No. 130620 NOVA SCOTIA COURT OF APPEAL Hallett, Jones and Matthews, JJ.A. BETWEEN: RONALD ALBERT FOX and HER MAJESTY THE QUEEN Respondent H. Edward Patterson for the Appellant Kenneth W.F. Fiske, Q.C. for the Respondent Appeal Heard: January 8, 1997 Judgment Delivered: January 8, 1997 THE COURT: Leave to appeal is granted, the appeal is allowed and a new trial ordered per oral reasons for judgment of Jones, J.A.; Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: JONES, J.A.: This is an application for leave to appeal from a decision of Mr. Justice MacLellan in the Supreme Court dismissing an appeal from the appellant\'s conviction under s. 253(b) of the Criminal Code. The Crown adduced evidence before Judge Clyde F. MacDonald in Provincial Court of breathalyzer readings of 110 and 120 milligrams. The appellant testified that he had consumed five pints of beer during the course of the afternoon, the last shortly before being stopped by the police. The main issue on this appeal is the application of the decision of the Supreme Court of Canada in St. Pierre v. The Queen (1995), 1995 CanLII 135 (SCC), 96 C.C.C. (3d) 385 (S.C.C.). In addition to the evidence of the appellant an expert employed by the R.C.M. Police was called by the appellant to show what effect the alcohol consumed by the appellant would have on the appellant's ability to drive when stopped by the police. In cross-examination the expert was asked to relate the readings shown by the tests to the alcohol consumed by the appellant. He stated that the readings were not consistent with the evidence of consumption given by the accused. He testified that the test results indicated blood alcohol concentration between 95 and 115 milligrams per cent. The trial judge concluded on the evidence that the blood alcohol level at the time of the test was different from the time of the offence. Based on St. Pierre he concluded that the Crown could not rely on the presumption of identity. The trial judge then stated: .. So, therefore, after looking at all the evidence with view as whole, find that the Crown is entitled to rely on the presumption of accuracy. I've made ruling that the Crown cannot rely on the presumption of identity, but indeed, that's not the end of the matter. then have to look at all of the evidence with view as whole to determine whether or not the accused has raised reasonable doubt. He then reviewed the evidence of the expert and stated: can only come to the inescapable conclusion that Mr. Fox consumed more of quantity of alcohol than he's indicated in his sworn evidence here today. After looking at all the evidence, with view as whole, including the certificate as well, and indeed the evidence of Mr. Westenbrink, find that reasonable doubt has not been raised in the mind of this Court by the accused, looking at all the evidence with view as whole. am satisfied that, beyond reasonable (sic) that Mr. Fox's reading at the time of the driving, 1650 hours, was indeed over point zero eight and accept the opinion of Mr. Westenbrink in this regard, that blood-alcohol concentration at 1650 hours would be between 95 and 115 milligrams percent. Taking the lower of those readings, which is 95 milligrams percent, is reading indeed over point zero eight. For those reasons, find Mr. Fox guilty as charged. On appeal to the Supreme Court the appeal was dismissed on the ground that the trial judge had committed no error in law. There are three grounds of appeal in the present appeal. It is only necessary to consider the second ground of appeal which is that the trial judge placed an onus on the appellant to raise reasonable doubt. Based on the decisions prior to St. Pierre v. The Queen it was clear that where the presumption under s. 258(1) applied there was an evidentiary burden on an accused to raise reasonable doubt. Based on St. Pierre where the presumption of identity does not apply then the Crown may rely on the remaining evidence including the certificate of analysis to prove beyond reasonable doubt that the accused was over .08 at the time of driving. The burden remains on the Crown. lacobucci, J. in delivering the judgment for the majority in St. Pierre stated at p. 406: should emphasize at this point that it is important to recall the essential difference between presumption and evidence. Section 258(1)(c) establishes presumption that the blood-alcohol level at the time of driving was the same as at the time of testing, but it does not provide evidence of this fact. It is simply short-cut for the Crown. If the accused is able to rebut the presumption by showing that the blood-alcohol level at the two times was different, then the Crown will have to call evidence to prove its case. The presumption simply establishes that the blood-alcohol level at the two times was the same. The evidence called would go to establishing what the accused's blood-alcohol level at the time of driving actually was. There is another aspect of the approach of the majority of the Court of Appeal in this case that merits comment. Essentially, the adoption of the line of reasoning advanced by the majority would place the onus on the accused to establish his or her own innocence. Specifically, if an accused were required to rebut the s. 258(1)(c) presumption in the manner put forward by the majority, the accused would necessarily have to prove that his or her blood-alcohol content was less than .08. If this position is accepted, and the materiality of the evidence of the accused depends upon reference to the legal limit, grey area exists between the breathalyzer result and the legal limit, and the burden of clarifying this will be placed on the accused when, in fact, the burden should rest with the Crown to prove its case. If the accused chooses not to call evidence, as is his or her right, and the Crown does not present additional evidence, the burden is in effect switched to the accused to establish that his or her blood-alcohol level was below .08 at the time of the offence, despite the fact that the Crown has not proved its case. If the Crown cannot establish beyond reasonable doubt that the accused's blood-alcohol level exceeded .08 this should not be sufficient to ground conviction. If the Crown in this appeal is correct, the accused must raise doubt as to his guilt despite the fact that the Crown may have introduced no evidence. Put another way, an accused may be able to meet the test as elaborated by Arbour J.A., but he may still not be able to pass the test proposal by the Crown without basically bearing the burden of proving his innocence. This position arguable raises concerns under the Canadian Charter of Rights and Freedoms and, accordingly, it should not be accepted, especially when there is another interpretation that does not raise such concerns. While the trial judge may have been referring to the evidentiary burden he went further and stated that the appellant had not raised a reasonable doubt on the whole of the evidence. With respect that was a fundamental error of law and therefore leave to appeal is granted, the appeal is allowed and a new trial ordered. Jones, J.A. Concurred in: Hallett, J.A. Matthews, J.A. Canada SPO 3625 Province of Nova Scotia County of Pictou IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Ronald Albert Fox and Her Majesty the Queen TRANSCRIPT Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Pictou, Nova Scotia Date Heard: July 19, 1996 Counsel: Mr. H. Edward Patterson, Esq., for the appellant Mr. Peter Rosinski, Esq., for the respondent PROVINCE OF NOVA SCOTIA COUNTY OF PICTOU IN THE PROVINCIAL COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN AND RONALD ALBERT FOX HEARD BEFORE: JUDGE CLYDE F. MACDONALD PLACE HEARD: NEW GLASGOW, PICTOU COUNTY, NOVA SCOTIA HEARD ON: SEPTEMBER 21 AND 22, 1995 DATE OF DECISION: DECEMBER 12, 1995 COUNSEL: PETER ROSINSKI, FOR THE CROWN H. EDWARD PATTERSON, FOR THE ACCUSED DECISION C.A.C. No.130620 NOVA SCOTIA COURT OF APPEAL BETWEEN: RONALD ALBERT FOX and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: JONES, J.A.

The appellant was convicted of failing a breathalyzer test. The trial judge concluded on the evidence that the blood alcohol level at the time of the offence was different from the time of the offence, and found that the Crown could not rely on the presumption of identity. He ruled, however, that they could rely on the presumption of accuracy, and placed an onus on the appellant to raise a reasonable doubt on the whole of the evidence. The appellant appealed. Allowing the appeal and ordering a new trial, that the trial judge committed a fundamental error of law by ruling that when the Crown is forced to rely on the balance of the evidence, the accused must raise a reasonable doubt, a burden that clearly remains on the Crown.

1997canlii9869.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Grady v. Grady, 2009 NSSC 364 Date: 20091210 Docket: 1201-060920 Registry: Halifax Between: Nicolas Grady and Daiga Grady Respondent Judge: Justice Lawrence I. O’Neil Heard: October 13 and November 2, 2009, in Halifax, Nova Scotia Counsel: Terrance Sheppard, for the Applicant Timothy Gabriel, for the Respondent By the Court: Introduction, para. Background to the Relationship, para. Issues, para. Evidence of Mr. Grady, para. Evidence of Ms. Grady, para 18 Registration of the Separation Agreement, para. 21 Clause 9(a) of the Separation Agreement, para. 27 The Interaction of the Separation Agreement and the Divorce Act, para. 30 Other Clauses of the Separation Agreement, para. 47 Conclusion, para. 48 Introduction [1] This is decision in the matter of Nicolas Grady and Gallegos Grady. divorce hearing was held on October 13, 2009 and November 2, 2009. Through the evidence of Mr. Grady, the parties marriage was established; the court’s jurisdiction to grant divorce was established, the grounds for the divorce were established and there being no bars to the divorce, the divorce was granted. The parties have effected division of their former matrimonial property. They concluded an agreement, described in its body as “separation agreement/minutes of settlement” on October 22, 2008. Herein, the document will be referred to as separation agreement. The agreement was registered with the Supreme Court of Nova Scotia on June 17, 2009. Background to the Relationship [2] The parties were married August 19, 1995 and separated May 15, 2006. They have four children born November 25, 1996; April 28, 1998; July 3, 2001 and February 4, 2003. [3] The parties entered parenting agreement, which is exhibit “B” to the affidavit of Ms. Grady, filed October 2, 2009, being exhibit in this proceeding. It provided for shared parenting arrangement. It is agreed, however, that since May of 2009, the children have been primarily resident with the Respondent mother. Issues [4] The main issues for the court’s consideration are the spousal and child support obligations of the Petitioner, Mr. Grady and whether they are to be incorporated into the corollary relief judgment. [5] Mr. Grady now seeks to have the spousal support obligation reflected in paragraph of the October 22, 2008 separation agreement changed in as much as he seeks corollary relief judgment that would not contain this obligation. The principal basis for the argument is (1) a significant reduction in his income, and (2) a loss of income tax deductibility for his payment under clause 9 of the separation agreement because he is no longer in a shared parenting arrangement . Ms. Grady argues that Mr. Grady has not met the obligation to pay spousal support of $2,000 per month as required by clause of the separation agreement and he must continue to pay this amount as combined child and spousal support. [6] Ms. Grady filed an Answer to the Petition for Divorce on September 15, 2009. At paragraph it states: 1. admit the facts and allegations in paragraphs to 10 of the Petition for Divorce with the exception of: Paragraph state that the parties entered into comprehensive settlement of all corollary relief issues in this proceeding, which agreement has been registered with this Honorable Court. Evidence of Mr. Grady [7] Mr. Grady’s direct evidence is contained in Exhibit 3, his affidavit dated September 21, 2009. He also gave oral evidence. [8] Mr. Grady has worked as financial advisor, under the supervision of his father. They both represent Assante Capital Management Ltd., an investment firm. He describes his work as creating retirement plans and managing investment portfolios with clients through to their retirement. The office has consisted of the Petitioner and his father as financial advisors and several support staff. Mr. Grady, Sr. took his son, the Petitioner, into the business and they have worked together for seventeen years. [9] Mr. Grady states his maximum earnings in 2009 will not exceed $40,000, and more realistically, will be $30,000. (see para 15 of his affidavit, being exhibit 3). He explains the decline in his earnings as follows (para 8, and 11 of exhibit 3): 8. During 2007, the Fall of 2008 and the Winter of 2009, global capital markets fell as result of among other things, the financial crisis in the United States. Along with the markets, the value of my assets under administration fell, dragging with it the service fees that earn. Further exacerbating the drop in income was the reluctance of retail clients to invest new money. Revenue dropped dramatically while expenses stayed the same causing my net income to fall. 9. Below is list of my earnings and expenses from January 1, 2009 to September 15, 2009. So far my net income for the last nine months is just little over $8,000.00 dollars. have fixed expenses such as wages for staff, rent, telephones, postage and other overhead expenses, which need to be paid to keep the business running. am paid last. Accrual Basis January 1, 2009 to September 15, 2009 Year to date commission income $188,407.08 Interest Income RBC Daily Banking 0.07 Total Income $188,407.15 Expenses: Advertising Co-Op ($450.00) Charitable Expense ($25.00) Commission Charge Backs ($22,876.20) IT-Advertising/Promotion ($7,742.70) IT-Bus, Tax, fees, lic., dues ($3,133.86) IT-Insurance ($590.00) IT-Interest Bank Ser. Chg. ($2,627.12) IT-Legal, account. Prof Fees ($429.40) IT-Meals Entertainment ($1,649.06) IT-Office Expenses ($8,374.91) IT-Property Taxes ($822.10) IT-Rent Expenses ($33,575.59) IT-Salaries, Wages, Expenses ($88,307.86) IT-Supplies ($3,404.23) IT-Telephone/Internet ($3,071.88) IT-Travel ($27.12) IT-Vehicle Expense ($3,272.21) Total Expense ($180,379.24) Total net Ordinary Income from $8,027.91 11. Then the finance world plummeted. did not anticipate stock market downturn of this magnitude or duration. have had to withdraw most of my RRSP’s, over $23,000.00, in order to meet expenses. [10] In addition, he has filed financial statements identified as Exhibit 7, and being his income tax returns for 2006; 2007 and 2008 respectively. He has also filed Exhibit 10 and Exhibit 11, being his notices of reassessment for 2006 and 2007. On the subject of the Petitioner’s earnings, the Respondent filed Exhibit 12 which is two‑page document purporting to summarize the business income of the Petitioner for the years 2005, 2006, 2007 and 2008. [11] Mr. Grady testified that as financial advisor he has two sources of income. One source is immediate commission income when new assets are brought under management and the other is an annual fee or commission that he receives for the ongoing management of assets once brought under his management. [12] Mr. Grady testified that the world financial crisis resulted in reduction in the total value of the assets he has under management and consequently, significant reduction in the recurring commissions he receives by virtue of his management of the subject assets. New assets for management also became more difficult to attract, resulting in reduction in earnings as well. [13] Mr. Grady testified further that he has been working many additional hours outside the typical business day in an effort to gain new clients and new assets to manage. He testified that business pressures forced him to move away from the shared parenting arrangement to an arrangement whereby he sees his children less frequently. He offers this explanation for his no longer sharing the parenting of the children. [14] He was cross examined at length about his business expenses. In the course of that cross examination, the Respondent learned that Mr. Grady is currently paying his father $3,000 per month, pursuant to buy out agreement pertaining to his father's interest in the business. [15] By way of background, Mr. Grady explained that in January 2009, he essentially agreed to buy his father's interest in the business by paying him over seven years. Mr. Grady, Sr. will continue to attend at the office but will not to be expected to bring new investments under the management of this company. Mr. Grady, Jr. explained that he will be paying his father slightly in excess of 17% of the recurring commission on the funds his father had under his management at the time the father and son entered the agreement. In addition, if Mr. Grady, Sr. attracts additional investments to the firm, he and his son will equally split any commissions payable for having acquired the new assets for management. [16] Mr. Grady, Jr. explained that regulations governing his industry require that every office have manager and that his father's presence as manager is required. He did explain that system of remote management is now available and would be an expense equivalent to 2% of commissions and management fees. He has not opted for that arrangement. [17] As stated, the essence of Mr. Grady\'s argument that he should not be bound by clause 9 of the separation agreement is that his income (1) has taken a dramatic and unanticipated drop; and (2) forced him to abandon the parties’ shared parenting arrangement with resulting tax consequences for him. Evidence of Ms. Grady [18] Ms. Grady was the primary caregiver of the parties’ children, while they lived together. She is now in the second year of study at local community college. Several years ago she wanted to be trained as license practical nurse but because there were no openings in the program she began technology program. Subsequently position in the nursing program became available and she switched to the licensed practical nursing program. It is one year program and will be completed in June 2010. Her counsel advises that she expects to quickly obtain full‑time employment. The separation agreement contemplated the foregoing. At paragraphs 1(e) and 9(b) it provides: 1.(e) Daiga is currently unemployed and is attending full time 2-year program at post-secondary institution for Electronic Engineering Technology. It is anticipated that she will graduate in May/June of 2010. 9.(b) The parties agree that the spousal support shall be reviewed on or after September 1, 2010. Daiga acknowledges her obligation to become economically self-sufficient, to complete her post-secondary education, and to obtain full-time employment regardless of whether in her chosen occupation and to make all diligent and reasonable efforts in this regard. [19] She has been financing her education by managing her spousal support; other child related government income; and student loan income. She lives in the parties’ former matrimonial home. [20] In her direct evidence and on cross examination, she confirmed that there are arrears on the mortgage on the home and that she is at risk of losing her program of study, as well as her home, if Mr. Grady discontinues or does not resume payment of the spousal support in the amount of $2,000 per month. Registration of the Separation Agreement [21] The parties’ agreement was registered on June 17, 2009. The effect of registration of the agreement is described in s.52 of the Maintenance and Custody Act, R.S.N.S. c.3, s.52. It reads as follows: 52(1) judge may, with the consent of either party, register in the court an agreement entered into between the parties respecting maintenance or respecting care and custody or access and visiting privileges or any amendment made to the agreement. (2) Before registering an agreement pursuant to subsection (1), judge may inquire into the merits of the agreement and, after giving the parties an opportunity to be heard, may vary its terms as he deems fit. (3) An agreement, including amendments registered pursuant to this section, shall for all purposes have the effect of an order for maintenance or respecting care and custody or access and visiting privileges made under this Act. [22] Registration of the separation agreement resulted in the obligations therein becoming an order enforceable by the Maintenance Enforcement office. (see exhibit “c” to the affidavit of Ms. Grady, filed October 2, 2009, being exhibit in this proceeding). [23] There is no previous order under the Divorce Act. corollary relief order will result from this hearing. am therefore, dealing with situation where the agreement was made and an order issued under the Maintenance and Custody Act on June 17, 2009, when registration of the agreement was effected by Judge of the Supreme Court, Family Division. [24] The Divorce Act proceeding prevails over proceedings initiated pursuant to Provincial legislation in matters of support. However, the existence of divorce proceeding is not bar to proceedings under Provincial legislation. The registration of the separation agreement herein is case in point. The order that flows from that process fills void until, if and when an order is issued, pursuant to the provisions of the Divorce Act. There is concurrence of jurisdiction with Federal paramountcy when the Divorce Act is invoked. [25] am forced to ask whether the MCA order has the same status as an order under the Divorce Act and whether the application before me is, in essence, an application to vary as opposed to an application for an original order under the Divorce Act. [26] Section 17(1) of the Divorce Act (as read with s.2(1)) dealing with variation of orders expressly provides that it is meant to apply to the variation of earlier orders under the Divorce Act in corollary relief proceeding. In addition, corollary relief judgment addresses wider range of issues. therefore conclude that this proceeding should not be treated as an application to vary under s.17. The governing section for this discussion is s.15.2 of the Divorce Act. Alternatively, and for reasons that follow, am satisfied that my analysis is unaffected by the distinction. Clause 9(a) of the Separation Agreement [27] Clause 9(a) of the separation agreement describes the monthly obligation as follows: 9. Spousal Support (a) Nicolas agrees to pay to Daiga for spousal support the sum of $2,000.00 per month commencing October 1, 2008 and continuing on the 1st day of the month thereafter, less any payments made to Daiga as income or dividends from family trust or corporation controlled by Nicolas. Both parties acknowledge and confirm the factors set out in the Divorce Act as it relates to spousal support. [28] Mr. Gabriel, counsel on behalf of the Respondent, in his written and oral submissions, argued that the Supreme Court of Canada decision in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] S.C.R. 303, requires that Mr. Grady continue to pay the agreed‑upon amount of $2,000 per month to Ms. Grady; regardless off any changes in his income. Mr. Shepherd, counsel on behalf of Mr. Grady, argues that the assumptions that gave rise to the agreement are no longer correct and therefore there has been drastic change in the parties’ circumstances that justify movement away from the strict terms of the agreement. He argues, for example, that Mr. Grady will no longer be eligible to claim the $2,000 per month as spousal support because the children are no longer in shared parenting arrangement and part of this amount must be reclassified as child support. [29] Mr. Shepherd is asking the court to order that Mr. Grady now, pay only child support based on the tables reflecting an income of approximately $30,000 per year. The child support obligation in that circumstance would be $750 per month. Mr. Shepherd observes that this obligation would be met with after‑tax income by Mr. Grady and leaves Mr. Grady with no resources for spousal support and no spousal support should be ordered. The Interaction of the Separation Agreement and the Divorce Act [30] The Petition for Divorce was issued August 2, 2006 and served September 7, 2006. As stated, an Answer was filed September 15, 2009. [31] In the case of an original order, an application may be made for corollary relief judgment that is at variance with the parties’ separation agreement. In the case of proceeding pursuant to the Divorce Act, the governing legislative provision is s.15.2. It provides: Spousal support order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Terms and conditions (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. [32] In contrast, once the agreement is incorporated in corollary relief judgment, an application seeking to, in essence, vary the agreement is an application to vary the corollary relief judgment. The governing provision of the Divorce Act is then s.17. [33] The provision reads as follows: (1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (b) custody order or any provision thereof on application by either or both former spouses or by any other person. Terms and conditions (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Factors for spousal support order (4.1) Before the court makes variation order in respect of spousal support order, the court shall satisfy itself that change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [34] The court’s authority to decide upon corollary relief judgment at variance with the parties’ separation agreement must be reviewed when the court is called upon to issue an original corollary relief judgment or to vary an existing corollary relief judgment. [35] Justice MacDonald in the recent decision of MacLean v. MacLean [2009] N.S.J. No. 328 considered whether separation agreement should be set aside. She identified eight factors relevant to determining the validity of the agreement. This is often the first determination court is called upon to make when party seeks to set aside separation agreement in part or in its entirety. Justice MacDonald went on to find the subject agreement invalid and set it aside. [36] There is no suggestion herein that the parties did not enter a binding agreement or that the agreement was not binding at the time it was entered. Faced with similar issue, the Supreme Court of Canada in Rick v. Brandsema 2009 SCC 10 (CanLII), [2009] S.C.J. 10 also assessed the circumstances at the time the separation agreement was negotiated and signed. Justice Abella, on behalf of the court, overturned an agreement because of incomplete disclosure by the husband. In the course of her discussion of the principles to be applied when the court is asked to set aside separation agreement, Justice Abella referenced the Miglin decision and the guidance lower courts must take from it. [37] At paragraph 48, she stated: 48 An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as result, an agreement that courts are more likely to respect. [38] There is authority for the proposition that the court’s considerations are the same when called upon to set aside separation agreement regardless of whether the application arises at the time the original corollary relief judgment is being issued, or in the context of an application to vary corollary relief judgment. At para. 91 in Miglin supra, the court stated: 91 Although we recognize the unique nature of separation agreements and their differences from commercial contracts, they are contracts nonetheless. Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent significant departure from the range of reasonable outcomes anticipated by the parties, in manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. As we noted above, it would be inconsistent if different test applied to change an agreement in the form of an initial order under s. 15.2 and to variation of an agreement incorporated into an order under s. 17. In our view, the Act does not create such inconsistency. We do not agree with the Ontario Court of Appeal when it suggests at para. 71, that once material change has been found, court has “a wide discretion” to determine what amount of support, if any, should be ordered, based solely on the factors set out in s. 17(7). As La Forest J. said in his dissent in Richardson, supra, at p. 881, an order made under the Act has already been judicially determined to be fit and just. The objectives of finality and certainty noted above caution against too broad discretion in varying an order that the parties have been relying on in arranging their affairs. Consideration of the overall objectives of the Act is consistent with the non‑exhaustive direction in s. 17(7) that variation order “should” consider the four objectives listed there. More generally, contextual approach to interpretation, reading the entire Act, would indicate that the court would apply those objectives in light of the entire statute. Where the order at issue incorporated the mutually acceptable agreement of the parties, that order reflected the parties’ understanding of what constituted an equitable sharing of the economic consequences of the marriage. In our view, whether acting under s. 15.2 or under s. 17, the Court should take that into consideration. [39] Justice Dellapinna in Stening-Riding v. Riding, 2006 NSSC 221 (CanLII) at para 22 observed that Miglin applied to variation proceedings. In helpful analysis, Justice Dellapinna systematically applied principles enunciated in Miglin to the evidence before him and factual conclusions he reached. [40] Beginning at paragraph 37 he paraphrases the test he is applying as, “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”. [41] Obstacles to performance by either party should not be confused with determination of the original intentions of the parties. In my view, care must be taken to distinguish between circumstances giving rise to the agreement and those which make compliance with the agreement difficult, assuming substantial compliance with the objectives of the Divorce Act. [42] Counsel for Mr. Grady argues that the extent of the change in Mr. Grady’s circumstances impacts on the integrity of the bargain the parties reached. As earlier stated, he argues that (1) Mr. Grady has suffered a dramatic drop in income, and (2) he is no longer in a shared parenting arrangement. [43] He is not arguing that the original agreement was unfair when it was made, or that the agreement, when reached, did not promote the relevant support objectives outlined in the Divorce Act. In any case, find the agreement to be fair when made and that it promoted the objectives of the Divorce Act. [44] The terms of the separation agreement must be given great deference. The leading authority dealing with when separation agreement may be subject to change is Miglin, supra. [45] The Supreme Court of Canada, in Miglin supra, rejected the requirement that “radical, unforeseen” change had to be shown before an agreement could be varied. It also rejected “material change” test. As discussed in McLeod and Mamo (2008, Carswell) at page 570, the court enunciated two step process: (i) determining whether the agreement was fairly negotiated and reflected the support objectives set out in the Divorce Act, as well as the overarching objectives of finality and certainty to enable the parties to move on with their lives; and (ii) whether anything outside the parties’ reasonable contemplation had occurred since the date of the agreement to undermine the integrity of the settlement. [46] We are concerned with the second branch of the test. Other Clauses of the Separation Agreement [47] The parties’ separation agreement speaks to both of these issues. Paragraph 2(a), (b), (c) and (d), 6(a) and 12 provide: 2. Agreement and Intention (a) Both parties covenant and agree that they have negotiated the Agreement in good faith. Both parties covenant and agree that this Agreement is executed voluntarily and that neither party has been subject to oppression, pressure or any other vulnerabilities. (b) Both parties covenant and agree that this Agreement complies with all applicable relevant legislation including but not limited to the factors set out in the Divorce Act relating to spousal support. Both parties recognize that there may be changes in circumstances in the future. These changes (no matter how radical or unforeseen) will not have the effect of setting aside the terms of this Agreement as the terms relate to division of property and debt and any and all spousal support obligations except as set out herein. (c) Both parties agree that the intention of this Agreement is to recognize the contribution of each of them to the marriage and provide an equitable resolution on full and final basis of all matters relating to the marriage and its breakdown, including but not limited to their parenting responsibilities, financial support and division of property and debt. (d) Both parties agree that any divorce proceedings between them shall be uncontested and that either of them may proceed with an uncontested divorce based on the ground of living separate and apart and that an Answer, if filed by either of them, shall be withdrawn. 6. Child Support (a) Child Support The parties, after considering the totality of their agreement and the best interest of the children, have agreed to opt out of the Federal Child Support Guidelines. This may be varied if there is change of circumstances in the future. Releases (a) Each of the parties hereto releases and discharges the other from any right, title, or interest in and to the property of the other, whether real or personal, legal or equitable. (b) Each of the parties hereto agrees that this Agreement and Minutes of Settlement may be pleaded by either party as an estoppel in respect of any claim or application whatsoever which may be made pursuant to the provisions of the Matrimonial Property Act, and Divorce Act, or any other similar legislation in Nova Scotia or any other jurisdiction by the other party in respect of any matter dealt with by this Agreement which is full and final settlement between the parties and may be pleaded as complete defence to any action brought by either party to assert claim in respect of any matter dealt with by this Agreement, except where: (i) this Agreement expressly provides for review or variation of particular term or condition; or (ii) where party has failed to disclose significant circumstance with respect to his or her financial or asset position which should have been raised during negotiation of this Agreement; or (iii) the matter deals with support or parenting of or access to child. (c) The parties agree that no property, which either owns or hereafter acquires shall be considered matrimonial asset or an asset subject to division within the meaning of the Matrimonial Property Act, or any other similar legislation in Nova Scotia or any other jurisdiction, or any successors thereto. (d) All rights and obligations of Nicolas and Daiga, whether arising during the marriage, either before or after separation, or upon and after divorce or annulment, including the rights and obligations of each of them with respect to: (i) Possession of property; (ii) Ownership in or division of property, and (iii) Spousal maintenance or support are governed by this Agreement which prevails over all provisions of the Matrimonial Property Act, and the Divorce Act, 1985, or any successor or similar legislation thereto, whether in existence or in force on the date of execution of this Agreement. [48] am satisfied that Ms. Grady cannot find more affordable housing for herself and her children if the home she currently occupies is foreclosed upon, or sold. In addition, the court views the need for Ms. Grady to become self‑sufficient and fully employed as licensed practical nurse as in the interests of both parties and an objective that was at the heart of the parties’ separation agreement. [49] The court accepts that Mr. Grady is in financial bind. However, Mr. Grady should not be relieved of the essence of the obligations he accepted in the October 22, 2008 agreement. There are no attractive options for the parties. [50] The court was struck by Mr. Grady's tendency to treat Ms. Grady's interest as secondary to his. He is prepared to accept that the home in which his children live might have to be sold and that Ms. Grady may have to discontinue her program because of Mr. Grady's business pressures. [51] In my view that is an outcome of last resort. [52] Mr. Grady must examine the operating costs of his business with view to finding the money that is necessary to meet his obligations in whole or in large measure. He is the one most qualified to do so. [53] He may need to make reduction in the number of staff, the number of hours the staff work or to reduce the salaries for employees. Faced with the loss of employment, concessions from staff may be achievable. Mr. Grady was clear that he could not reduce his costs any further. am not satisfied that this is so. His business can not sustain the overhead. He must therefore reduce it or face closure of his office. The financial pressure may also require him to find another or second job. [54] Within this financial context, Mr. Grady testified that he has new domestic partner, woman he met one year ago. In August or September the new partner was joined by her daughter, her daughter’s boyfriend and her daughter's child. Mr. Grady expressed some optimism that his partner’s daughter and her family would soon leave the home. Mr. Grady also testified that he had no knowledge of the financial circumstances of his new partner and was uncomfortable having discussion of that nature with his new partner or seeking any financial contribution to the operation of the home from his new partner. Late in the proceeding, the court received financial information concerning the circumstances of Mr. Grady’s new partner. am satisfied that her presence in Mr. Grady’s home should have no impact on my decision one way or the other. am satisfied she has modest income and this is directed to covering her medical and household expenses. The relationship with Mr. Grady has been of short duration and is of uncertain security and his partner has covered the incremental cost of her being in the home. [55] The parties impressed the court as hard‑working, bright and committed to their children. The court is satisfied that the Respondent is striving for independence and self‑sufficiency. The Petitioner is also hard‑working, bright and believe, committed to his children. [56] As stated, the Petitioner argues that because he is no longer in shared parenting arrangement, basis of the agreement is no longer present and therefore, this is significant part of the reasons for changing it. This argument is not accepted by the court. Ms. Grady decided to discontinue the shared parenting arrangement. He should not be permitted to, in effect, unilaterally alter his separation agreement. The court acknowledges his explanation for doing so. It does not accept his choice in this respect, as either reasonable or fair, given all the circumstances, not the least of which has been to transfer the total parenting burden to Ms. Grady, who is also managing significant financial and professional challenges. [57] In the context of this argument, Mr. Grady argues that he should now pay only child support based on the tables. have considered clause 6(a), which arguably provides for Mr. Grady to opt in to the Federal Child Support Guidelines if there is change of circumstances. do not interpret the parties’ contract to consequently permit Mr. Grady to opt out of his obligation in clause 9(a). see his child support obligation, whatever it is, as subsumed in the global amount of $2,000 per month provided for in clause 9. [58] One’s parenting responsibilities are to be fulfilled, not transferred. Ms. Grady does not and has not taken the view that anyone else has the responsibility to meet her parenting obligations. Mr. Grady’s position should not be different. [59] In light of this ruling, for Mr. Grady’s argument to succeed, must conclude that notwithstanding the strong and clear language of the parties’ separation agreement, must find that something “outside the parties’ reasonable contemplation” has occurred to undermine the integrity of the settlement. As stated in paragraph 88 in Miglin, must inter alia conclude that “these new circumstances were not reasonably anticipated by the parties and have led to situation that cannot be condoned”. The burden is on the Petitioner to demonstrate that is so. [60] The world economic crisis of 2008-2009 was more extreme than anticipated. However, I can and do take judicial notice of the concerns in this regard that were the subject of much public debate in October 2008, prior to the Federal general election held in October, 2008. I agree that the economic downturn was more extreme than anticipated at the time the parties concluded the separation agreement. The parties agreed, however, that such an event would not excuse compliance with the agreement by both parties. [61] have ruled that the change from shared parenting does not meet the test for disregarding the separation agreement. am further satisfied that the test is not met in any other way. The agreement at clause 2(b) expressly provided that the parties would be required to honour the agreement. [62] In coming to this conclusion, I have considered the: (1) strong, unambiguous language of the agreement arrived at after extensive negotiation and a judicial settlement conference; (2) the fact of legal representation by both parties at the time the agreement was signed; (3) the sophistication of the parties; (4) the value of this agreement to both parties; (5) related issue, the consequences for Ms. Grady and the children if the agreement is not upheld; and (6) the changes in circumstances identified. [63] The parties herein were both represented by counsel. Their agreement was reached after significant effort and following judicial settlement conference. Neither party is asserting that they were poorly served by their counsel or lacked an appreciation for the agreement reached. In fact, the agreement was designed to result in short term spousal support obligation on the part of Mr. Grady. Ms. Grady had an identifiable plan to achieve self sufficiency. Given the history and circumstances of the parties’ relationship, failure on her part to do so could result in spousal support obligation for significantly longer period. The agreement also provided Mr. Grady with tax benefit because his support is characterized as spousal support. [64] It may be that Mr. Grady’s concern about losing the deductibility aspect of the monthly payment can be addressed by his returning to the shared parenting arrangement the parties negotiated. That is for him to decide. [65] Mr. Grady believes that saving his business must take precedence over the agreement, even if this means that Ms. Grady is forced to abandon her studies. The court does not agree. [66] The opportunity for Ms. Grady to complete her education and gain qualification as licensed practical nurse is in the best interests of the children. She is currently their primary care giver. Over the course of the parties’ marriage, she sacrificed her employment opportunities in favour of her parenting responsibilities. This choice was undoubtedly benefit to Mr. Grady in his work. As matters were explained by Mr. Grady, Ms. Grady’s income prospects in the short term may be more positive than his. She is very confident of gaining self sufficiency by September 2010. [67] Ms. Grady negotiated an agreement to ensure that she could become self sufficient. She is prepared to honour the agreement. Mr. Grady must be called upon to do the same. He is proposing that his dire circumstances be transferred to Ms. Grady. That is an outcome that (in the words of Justice Bastarache in Miglin at paragraph 88) cannot be condoned. Upholding the agreement is the only acceptable option. [68] Mr. Grady describes her circumstances as follows in paragraph 17 of her affidavit (exhibit 4): 17. The Petitioner is more than aware, that have no financial ability to go to the bank and get them to agree to remove him from this indebtedness. While have great deal of personal and financial difficulty caused by these developments. am attempting to maintain my position at the Community College in order that may graduate with my class and have productive career. To be forced out in the workforce now, would have no training or experience that would fit me for other than an entry level store clerk job somewhere which would pay (even if could get it) minimum wage with no benefits. Our children, and would never get out of our present circumstances if that happens. [69] The court is not prepared to rewrite the parties’ agreement or disregard it, given all of the circumstances and the jurisprudence. If both parties are ultimately going to suffer should changes not be made to the terms or implementation of the agreement, then they, of course, are free to amend the agreement. [70] It is the parties who are best equipped to renegotiate the agreement if it is necessary that the renegotiation occur. Mr. Grady’s continuing default is not in the interest of either party. His business failure would not be in Ms. Grady’s short or long term interest. The accumulation of arrears does nothing to meet Ms. Grady’s current financial needs. She has significant interest in working with Mr. Grady to address the financial circumstances they both face. [71] I do not conclude the circumstances described by Mr. Grady undermine the integrity of the agreement. am more inclined to the view that Mr. Grady’s proposal for changing/disregarding the agreement would bring about this result. [72] A corollary relief judgement incorporating the support provisions of the parties’ separation agreement will therefore issue. understand the parties have agreed upon modifications to the parenting agreement and less significant issues. reserve the jurisdiction to rule on any of these issues and others if am advised that counsel wish that do so.

The parties entered into an agreement and registered it with the court in 2008. It provided for a combined spousal/child support payment of $2,000/month, which the husband was able to claim on his taxes because of the shared custody arrangement they were in at the time. At the time of their divorce in 2009, the wife wanted to incorporate the agreement into the corollary relief judgment. The husband argued a dramatic drop in his income forced him to abandon the parties' shared parenting regime, which resulted in significant tax consequences and justified a change to the agreement's support provisions to include only the table amount of child support. He argued the change in circumstances was so extensive as to undermine the integrity of the agreement. The evidence showed the wife needed $2,000/month in order to keep the bank from foreclosing on the home she occupied with the children, and to allow her to finish retraining so she could enter the workforce. The husband (a self-employed financial planner) argued the recent world economic crisis had adversely affected his business to an extent unanticipated when the agreement was executed (October 2008). The evidence showed that his focus was to solicit new business rather than cut expenses to make his business more viable. He chose to spend less time with the children to do this, which impacted the children and wife. The agreement is binding; the support provisions are to be incorporated into the corollary relief judgement. This concerns an agreement registered under the Maintenance and Custody Act. It is not an application to vary under the Divorce Act, but rather an application to overturn an agreement (although the distinction doesn't impact the outcome). The terms of the agreement must be given great deference. Will enforcing it reflect the parties' original intent and be in substantial compliance with the Act? The court looked at the second branch of the test in Miglin: whether something has happened that was outside the parties' contemplation when the agreement was made. Care must be taken to distinguish between circumstances giving rise to the agreement and those making compliance difficult. Taking judicial notice, the court observed the world economic crisis was the subject of much debate before the agreement was made, even if it was more extreme than anticipated. Here, the agreement: used strong, unambiguous language; was arrived at after extensive negotiations by sophisticated parties and with the assistance of counsel; and was very important to each party. To overturn it would not be in the children's best interests: they would lose their home and their mother would be unable to finish her retraining, adversely impacting her ability to provide for them. The change in the husband's circumstances are less likely to impact the integrity of the agreement than would his proposal to disregard it. The husband cannot unilaterally alter the agreement simply by deciding to change the parenting arrangements. His decision to work additional hours and spend less time with his children was not reasonable or fair and in effect transferred the financial and parenting burden to the wife (who was also managing significant financial and professional challenges).

2_2009nssc364.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 62 Date: 2011 02 03 Docket: Q.B.G. No. 1387 of 2010 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and TERAN DARCY LAPLANTE Counsel: Lee Hnatiuk for the appellant Pearl Baumgartner for the respondent JUDGMENT McMURTRY J. February 3, 2011 [1] The Crown is appealing the acquittal of the accused on a charge of carrying a concealed weapon contrary to s. 90 of the Criminal Code R.S.C. 1985, c. C-46. The Crown appeals on the grounds that the learned trial judge misapprehended the evidence, ignored other evidence and improperly admitted opinion evidence. The Crown submits that the verdict was unreasonable and not supported by the evidence and seeks conviction on the charge. Background: [2] The Crown’s case consisted of an Agreed Statement of Facts (Exhibit P-1) and the admission of the item seized from the accused on July 18, 2009, sword in black plastic sheath (Exhibit P-2). [3] On the morning of July 18, 1009, the accused and Dr. Nick Perry were at the Sarcan Recycling Centre at 1601 Angus Street in Regina. Dr. Perry was standing behind the accused. He believed the accused was acting suspiciously. At one point, the accused pulled up his shirt to scratch his side, exposing a sword type weapon tucked into the back of his waist band. Alarmed, Dr. Perry called 9-1-1. [4] Four members of the Regina Police Service attended to the south end of the 1600 block of Angus Street where they saw the accused walking with an older female. One of the officers asked the accused to stop and place his hands on his head. The accused did not comply. He appeared to be getting ready to run. The officer drew his firearm and again instructed the accused to place his hands on his head. This time, the accused complied as instructed. He slowly lay on the ground, on his stomach, with his hands out to his sides. [5] black handled sword in sheath (Exhibit P-2) was recovered from the accused as well as full can of beer. The accused appeared to be intoxicated. He had strong odour of liquor on his breath and slurred his speech. The female who had been with the accused disappeared. [6] The accused testified that he had been drinking “two-six", at the park with friends the day before. Thereafter, he met up with an uncle and continued drinking. He recalled buying the sword for $10.00 at some point from someone named “Froggy”. As he had no bag or back pack in which to carry it, he tucked it into his shorts. He did not have specific reason for buying the sword and does not usually carry weapons for protection. At eight in the morning, he started to walk home. He cannot recall whether he was alone or with someone. He remembers walking to the “Agribition” and then being at Sarcan. [7] At p. 84 of the transcript, the trial judge described the accused’s recollection of his visit to Sarcan: He testified that he met woman along the way who he thought was his mother, but couldn’t recall for sure because of his intoxicated state. He stated she had some bottles and he had to go take them in for her. The Accused testified that he remembered getting money for the bottles, giving it to the woman and then walking with her, after which the police arrived. The Accused doesn’t recall much about his encounter with the police other than standing there and looking. On cross-examination, the Accused was asked why he didn’t simply carry the sword in his hands. And, he replied that he didn’t want to do that because people would just call the cops on him right away as they would think he was about to do something. The Accused also admitted that swords are dangerous and that he tucked it in his pants knowing that it would alarm people if they knew he had sword. The Accused was questioned in cross-examination about his reason for buying the sword and he said he wasn’t really sure why he got the sword. [8] The defence called Duane Maguire, deputy sheriff, to testify about his experience with items of the same type as Exhibit P-2. Mr. Maguire testified that as teenager, he belonged to an organization called the Society for Period Anachronism, group that studied and reenacted medieval battles. He identified the sword (Exhibit P-2) as decorative copy of samurai sword that can be purchased at variety of local retailers. He offered the opinion, on cross-examination, that the sword’s steel blade did not have an edge, although with effort it could be sharpened. Decision of the learned trial judge: [9] The learned trial judge began her decision by reviewing the evidence. She then stated at p. 86: The issue in this case is whether the sword is weapon within the meaning of s. 90 of the Criminal Code. In order to make this determination, one must have regard to s. of the Criminal Code which provides definition for the term weapon. The definition is as follows: “weapon” means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes firearm. [10] The trial judge held first that “there is no evidence that the Accused either used or intended to use the sword for the purposes enumerated in the definition; namely: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person.” In making this determination, she relied on the accused’s evidence that he had just purchased the sword and was taking it home to display in his room, or on his television. [11] In addressing the second issue, whether the item was designed to be used as weapon, she found that it only had the appearance of sword. She accepted the evidence of Duane Maguire that it was decorative copy of the samurai sword. She also accepted that the blade of the sword was blunt. While the edges could be sharpened, it would take some time. She concluded that she had reasonable doubt the sword was designed to be used as weapon. Therefore, she acquitted the accused of the charge. The Appeal: [12] The trial judge relied on R. v. Graat, 1982 CanLII 33 (SCC), [1982] S.C.R. 819 in accepting Mr. Maguire’s evidence. At pps. 835-836, Dickson J. (as he then was) stated: ... The line between “fact” and “opinion” is not clear. To resolve the question before the Court, would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by clear ground of policy or of law. [13] The defence sought to admit the evidence of Duane Maguire on the basis that he had experience with the type of sword in issue. He was aware that it was readily for sale in novelty stores and that it was of interest to people as decorative item. [14] The defence maintains the position that the evidence was relevant to the trial judge’s determination with respect to the usual use of this type of item. [15] The Crown argues that Mr. Maguire’s evidence misled the trial judge because he was not testifying as to his eye witness perceptions, but about the sword and where it could be purchased. The Crown suggests that Mr. Maguire required special qualifications that would justify his opinion; that Mr. Maguire’s evidence was properly the subject of expert evidence put in under the guise of opinion evidence. [16] In examination-in-chief, Mr. Maguire gave evidence that he recognized Exhibit P-2 as certain type of sword and where it might be available for purchase. Under cross-examination by the Crown, the witness gave further evidence about this particular sword: that the blade was made of steel; that it did not look like it had been sharpened; that it had wear on its tip; and that it had been mass produced. This is the sum total of the witness’s evidence. The witness’s testimony elicited under cross-examination would have been available to the trial judge just by looking at the sword. The evidence provided under examination-in-chief, was relevant, and factual. His particular experience allowed him to recognize the sword. As such, he was in a position to assist the court. [17] In his text Watt’s Manual of Criminal Evidence, (Toronto: Thomson Carswell 2008) Justice David Watt of the Ontario Court of Appeal, provides the following general principles of lay opinion evidence (at p. 410): The same basic principle governs the reception of evidence of lay opinion as is the case with expert opinion. In general, witnesses, lay or expert, give evidence of facts, not of inferences of opinions. The strict application of the opinion rule is equally unworkable in relation to the testimony of lay witnesses. Facts cannot be so easily separated from opinion or inference as the rule would suggest. The standard that is likely applied when determining the admissibility of lay opinion evidence is “helpfulness”. It is not necessary any longer for the party proposing admission to demonstrate that the witness is unable, because of the nature of the subject matter, adequately to convey to the trier of fact the data from which the inference has been drawn or opinion formed. Lay opinion will not be excluded if the witness can more accurately express the facts perceived in the form of an opinion, rather than by stating the primary facts. There continues to be resistance to the reception of evidence of lay opinion that approaches the ultimate issue in the case, although that it does so is not positive of the admissibility question. The categories of lay opinion evidence, as with the opinion evidence of experts, are not closed. The weight of the evidence is for the trier of fact. [18] Mr. Maguire simply stated that this type of sword is readily available in novelty stores. He also stated that in his opinion the sword was novelty sword. No attempt was made by the Crown to call evidence to contradict his testimony. The accused testified that he was unsure why he purchased the sword. He testified at p. 21 of the transcript “probably just — I don’t know. Hang it up in my room. ... or put it on the TV or something”. Bearing in mind that the burden is upon the Crown to prove that the sword is a weapon within the meaning of s. 2 of the Criminal Code, the only evidence before the trial judge was (a) that the accused probably bought it as a decorative item and (b) that it likely came from a novelty store. On this basis, the learned trial judge concluded that she had a reasonable doubt that the sword was designed to be used as a weapon. In my view, the learned trial judge properly placed Mr. Maguire’s evidence in the context of the issues she had to address. Is sword prima facie weapon? [19] The Crown argues that the sword should have been found by the trial judge to be prima facie weapon, in the same manner that firearm, or brass knuckles or other inherently dangerous items are considered weapons. On this basis, sword would be distinguished from knife, which is not necessarily weapon. (See R. v. Brooks (1988), 1988 CanLII 5207 (SK CA), 71 Sask. R. 297, [1988] S.J. No. 643 (QL) (Sask. C.A.) and R. v. Jimmy (B.W.) 2003 SKPC 112 (CanLII), (2003), 237 Sask. R. 84, [2003] S.J. No. 461 (QL) (Sask. Prov. Crt.) In R. v. Arrance, (1971), 1971 CanLII 1296 (BC CA), C.C.C. (2d) 341 at p. 345 the British Columbia Court of Appeal provides useful description of when an instrument may be found to be weapon on prima facie basis: One must, I think, start with the premise that a knife, being an instrument that is universally used for utilitarian, peaceful purposes is not prima facie designed to be used as a weapon, that is to say, in warfare, fighting, or combat to overcome an enemy in attack or defence — and this, notwithstanding that a knife, like a multitude of other things (e.g. baseball bats, hatchets, pipe wrenches and ice picks) can on occasion be used effectively in fighting offensively or defensively. There is nothing to show that the knife in question here was designed to be used as weapon: when it is closed, it is as innocuous as any other jackknife; in order to open it, two hands must be used; the locking device renders the knife safer when it is used for peaceful purposes. The switch-blade have described affords useful contrast: there is no apparent normal, peaceful use to be served by the device that can arm the closed instrument in flash; the purpose, or one of the purposes, of the device is to enable person who is looking for or expects fight to carry the closed knife concealed or partly concealed in one hand and, by the application of pressure to the button by the same hand, to have instanter in that hand knife with the blade pointing forward from the handle. [20] In this case the trial judge found that the sword had a blunt edge. Combined with the evidence that it is decorative item, she determined that it was not designed for use as weapon. The Crown argues that the learned trial judge ignored evidence that the sword also had tip. However, disagree that this one factor should have led her to find the sword was designed to be used as weapon. agree with the learned trial judge when she suggested that the “sword in question is not in the category of brass knuckles, firearms or switch blades, which are weapons”. [21] The learned trial judge was required to address s. of the Criminal Code with respect to the definition of weapon. There was evidence upon which she could conclude that the Crown had not proved beyond a reasonable doubt that the accused intended to use the sword as a weapon, or that the sword was designed to be used as a weapon. Accordingly, the Crown’s appeal is dismissed. J. J. E. McMURTRY

The Crown appealed the acquittal of the accused on a charge under s. 90 of the Criminal Code for carrying a concealed weapon. The accused was spotted at a recycling facility with a sword stuffed in the back of his pants. At trial, defence called evidence suggesting that a sword of that type could be purchased at a novelty store and had a blunt edge. The accused testified that he bought the sword with the intention of hanging it on the wall or putting it on his television. The trial judge found that the Crown had not established that the sword was a weapon or that the accused intended to use it as a weapon. The Crown appealed on the basis that the trial judge misapprehended evidence, ignored other evidence and improperly admitted opinion evidence. HELD: The evidence from the defence 'expert' indicated that he had particular experience that allowed him to recognize the sword and he was able to be of assistance to the Court because of his experience. No attempt was made by the Crown to contradict the evidence that the sword could be purchased at a novelty store and had a blunt edge. The Crown bore the burden of establishing that the sword was a weapon within s. 2 of the Criminal Code and the only evidence before the Court was that the accused probably bought it as a decorative item and that it likely came from a novelty store. On that basis, it was open to the trial judge to conclude that she had a reasonable doubt that the sword was designed to be used as a weapon. The trial judge properly considered the evidence in the context of the issues to be addressed. The Court held that a sword is not prima facie a weapon. The Crown appeal was dismissed.

d_2011skqb62.txt

J. Q.B. A.D. 1994 No. 109 J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON and A. F. D. and J. A. D. DEFENDANTS K. W. Wasylyshen for the plaintiff No one appearing for the defendant A. F. D. JUDGMENT MATHESON J. April 13, 1995 The defendant, A. F. D. ("A."), is thestep-father of the plaintiff. He pleaded guilty to criminal charge of sexually assaulting the plaintiff. On February 13, 1987, A. was sentenced to term of ten months imprisonment, subsequently reduced on appeal to six months. On April 4, 1994, the plaintiff commenced an actionagainst A., claiming damages as a result of the sexualassaults. A. did not defend the action. The plaintiffhas applied for judgment assessing her damages. THE SEXUAL ASSAULTS The plaintiff was born on […], 1975. When she was about four years of age she moved from North Portal to Estevan, with her mother and older brother, in order that her mother could marry A.. The sexual assaults commenced when the plaintiff was approximately eight years of age, and continued until she was eleven. The assaults included digital penetration of the plaintiff's vagina, oral sex, intercourse, and attempting to force the plaintiff to have intercourse with her brother. Many of the assaults occurred as the plaintiff was emerging from the bathtub. The Department of Social Services became involved with the plaintiff and her brother while they were still residing in North Portal, as result of alleged physical abuse of the children. The sexual assaults were revealed while the plaintiff was talking to social worker on September 24, 1986. The police were contacted on that date, and the plaintiff was subjected to medical examination the following day. When A. was interviewed by the police, and informed of the specific allegations by the plaintiff, he apparently broke down and admitted several of the assaults as alleged by the plaintiff. written statement was provided by A. to the police. He apparently stated that he knew that what had occurred was wrong but he did not know why he had committed the assaults. The plaintiff subsequently alleged that her uncle, J. A. D., had sexually assaulted her on several occasions, culminating with an episode of kissing and touching of her breasts and genitals on May 19, 1990. The previous episodes had also included oral sex. Following trial, J. was found guilty and sentenced to one year in prison. DAMAGE TO PLAINTIFF The reason the plaintiff was talking to social worker on September 24, 1986, at which time she revealed the sexual assaults by A., was that the plaintiff had been exhibiting unacceptable behaviour, principally stealing and sexually `acting out'. Because of her revelations of sexual abuse in her own home, the plaintiff was placed in the first of series of at least five foster homes and two group homes. At some stage in between, the plaintiff resided with her natural father and his new wife for approximately two years. The termination of that arrangement resulted, as admitted by the plaintiff, from the refusal, or inability, of the plaintiff to abide by any rules. The plaintiff met her husband in one of the group homes in which she was placed. She became pregnant. The pregnancy was deliberate, she testified. Since the age of 14 years she had wanted someone to love and who would, in return, love her. The plaintiff was married at the age of 17 years. Until at least very recently the plaintiff, her husband and their child were only able to exist by virtue of Government social assistance. The plaintiff's husband is now attempting to start rug cleaning business, but the plaintiff, having dropped out of school in grade nine, has no vocational skills nor marketable abilities. The plaintiff suffers from low self esteem. Her husband, aware of the sexual abuses which the plaintiff has endured, has been less than supportive. On the other hand, the plaintiff finds it difficult to be intimate with her husband. She is also constantly apprehensive that her husband, knowing that abused children often become abusers themselves, will accuse her of abusing their own child. In her early teens the plaintiff often harboured thoughts of suicide. She still suffers from constant headaches and nightmares, and becomes either angry or depressed whenever she hears, or reads, anything about child abuse. She still suffers from an inability to concentrate, which resulted in her early departure from school, and an inability to form close friendships. The only person with whom she feels close, and to whom she can talk freely is her step-mother. Her natural mother remained with A. even after his admission of sexually assaulting the plaintiff. Instead of exhibiting sympathy for the plaintiff, her mother has disowned her, stating "I don't have daughter anymore". Although acknowledging that she is overly protective of her daughter, the plaintiff is afraid to even take her daughter out of her home lest something happened to her. Whenever she bathes the child the spectre of her sexual abuse haunts her. She has also developed what she referred to as an "eating disorder", which, she has been advised, emanated from need to fill void. Attempting to talk about the sexual abuse during group therapy sessions invariably reduces the plaintiff to state of tears. Her testimony in Court against her uncle, which she described as an extremely traumatic experience, culminated in the same tearful outburst. In December, 1994, the plaintiff was subjected to anassessment by a registered phycologist, who reported theplaintiff\'s responses "suggested she may be experiencingsevere psychological problems and few resources with which tocope with the stress". It was further reported: Individuals who respond in this fashion are often seen as hostile, depressed and suspicious. They are sensitive to criticism and their interpersonal relationships are chronically poor as they are often hostile and their behaviour precipitates rejection by others. Their long term relationships are often superficial and unsatisfying. This is consistent with Mrs. T.'s report that she had few if any good friends and had chronic difficulties making friends. Such individuals often report or experience variety of vague medical complaints which they may use to control or manipulate others. These individuals often feel inadequate, helpless and lacking in self confidence. They exhibit signs of poor concentration (as evidenced by Mrs. T.'s test taking performance here), appetite and sleep disturbance and low frustration tolerance. The scores obtained here were consistent with the presence of Post Traumatic Stress Disorder or the overreporting of psychological problems. In this case, Mrs. T.'s extensive history of emotional, interpersonal and legal problems suggests that although she may have exaggerated her difficulties to some degree, she is clearly limited in her ability to cope with her problems. The results of the personality testing reported here tended to be consistent with Mrs. T.'s history. Because of her earlier abuse, her lack of supportive family relationships and her subsequent foster home placements, she has not learned how to form appropriate relationships of her own. Frequently, individuals who suffer childhood sexual abuse learn to base their relationships with others on sex and possess few alternate skills. Her early sexual acting out and her problems in her current relationship with her husband suggest that this has been the case here. It is also possible that her illegal behaviour was also born out of the generalised behavioural disturbance which sexual abuse often produces. Individuals who have been the victim of sexual abuse often experience wide range of behavioural, emotional and interpersonal disturbances as result. Unfortunately, she appeared to have limited insight into the source of her problems and had few skills with which to resolve them. The report concluded: The fact of abuse perpetrated by an adult in position of trust and authority almost invariably results in long term harm as can be seen in the case of Mrs. T.. Unfortunately, individuals who are left as suspicious and hostile as Mrs. T. appears to have been, are often poor candidates for psychotherapy as they have difficulty remaining in the therapeutic relationship. Treatment in this case, if available, will likely be prolonged process and may ultimately be of limited success. MEASURE OF DAMAGES In an unpublished article entitled "Measuring Pain: Quantifying Damages in Civil Suits for Sexual Assault", by Kate Sutherland (circa 1992) it was concluded that the discrepancies between the amounts awarded by various courts in sexual assault cases could not be readily reconciled. It was noted that many of the awards did not seem to reflect any appreciable degree of comprehension of the extent of the damage incurred by the complainant. In Myers v. Haroldson, 1989 CanLII 4682 (SK QB), [1989] W.W.R. 604, for example, the plaintiff, who had been subjected to brutal rape, suffered minor physical injuries but lasting psychological trauma. Non-pecuniary damages were assessed in the amount of $10,000 and punitive damages in the amount of $40,000. The emphasis of the award was clearly to punish the defendant, rather than compensate the plaintiff for her suffering. It was suggested by Kate Sutherland that, to the extent that damage awards in sexual assault cases represent non-pecuniary damages, the quantification thereof should accord with the principles articulated in J. A. Andrews, Dorothy Andrews, Ivan Stefanyk v. Grand Toy A.a Ltd. and Robert G. Anderson, 1978 CanLII (SCC), [1978] S.C.R. 229. The adjudicator should first attempt subjective understanding of the extent of the plaintiff's loss, and then attempt to compensate the plaintiff for the loss. Only after that inquiry has been completed should concerns regarding uniformity, and upper limits be addressed. The difficulty in assessing non-pecuniary loss was noted by Dickson J. in Andrews at p. 261: There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is philosophical and policy exercise more than legal or logical one. No money can provide true restitution". After reviewing three theoretical approaches to the problem of non-pecuniary loss, Dickson J. concluded (p. 262) that the functional approach should be utilized assessing the compensation required to provide the injured person with reasonable solace for his misfortune. Money will be awarded because it will serve useful function in making up for what has been lost in the only manner possible, accepting that what has been lost is incapable of being replaced in any direct manner. There was no evidence adduced that the plaintiff incurred any direct pecuniary loss as result of the sexual assaults by A., even to the extent of the cost to her of further education. Thus, an award of damages must be assessed primarily with respect to her non-pecuniary loss. In most personal injury cases the loss to the plaintiff is caused by the negligence of the defendant. An award of aggravated damages is therefore rarely even considered. But when the claim is founded on sexual assault, the damage inflicted is deliberate. Although, as noted by Kate Sutherland (p. 6), aggravated damages are often subsumed in the non-pecuniary award, there is somewhat different purpose in awarding aggravated damages. The focus of non-pecuniary award of damages is on pain and suffering, including emotional distress, and loss of amenities of life. Aggravated damages are intended to address feelings such as humiliation, degradation and fear of repetition, which are associated with the quality of the defendant's wrong doing. Except for constant headaches, the pain and suffering of the plaintiff has not had any physical basis. Nevertheless, the psychological trauma and emotional distress which she has undergone have been severe. She will continue to suffer to the same extent for an appreciable period of time in the future. Even if treatment should be available to the plaintiff, it will likely, as suggested by the psychologist, be prolonged process. Indeed, as further pointed out, the treatment process may ultimately be of limited success. If so, the plaintiff's suffering must then be categorized as chronic. Whiplash injuries result from violent wrenching, usually of the neck. As late as quarter of century ago some orthopaedic specialists doubted the existence of whiplash injuries, because there was no discernable physical basis for the pain being experienced. However, whiplash injuries are now universally accepted as being the result of soft tissue damage and form specific category of compensable loss. The monetary awards throughout Canada for whiplash injuries have varied dramatically, notwithstanding the assertion by Dickson J. in Andrews (p. 263) that "[e]veryone in Canada, wherever he may reside, is entitled to more or less equal measure of compensation for similar non-pecuniary loss. An upper limit for the most serious type of non- pecuniary loss, subject to inflationary factors, was established in Andrews. Similarly, an upper limit for the most serious type of whiplash injury $45,000 was established in Saskatchewan in June, 1991: Bunce v. Flick et al. (1991), 1991 CanLII 7975 (SK CA), 93 Sask. R. 53 (C.A.). When chronic pain syndrome develops, the upper limit was stated to be $50,000: Demyen v. Sirounis (1991), 1991 CanLII 7983 (SK CA), 93 Sask. R. 66 (C.A.). The plaintiff's pain and suffering and loss of amenities are not dissimilar to those experienced by whiplash victim. The source of pain cannot be readily traced to an identifiable physical injury such as fracture or damaged organ. Yet the pain is real. The plaintiff's loss has already been assessed as severe and there is likelihood that it may be chronic. Thus, she is entitled to an award toward the upper limit of the established range. However, evidence was adduced that trauma was also caused by the sexual assault or assaults on her by her uncle. Although she sued both A. and her uncle, the assessment of damages is only with respect to the damage inflicted by A.. It appears from the statement of claim that the sexual assault, or assaults, by the plaintiff's uncle occurred over much shorter time span than did those of A.. Thus, the greater portion of the damage inflicted on the plaintiff must be attributable to A.. The plaintiff testified with respect to her feelings of humiliation, her low self esteem, her periodic anger and depression, her inability to be fully intimate with her husband, and her constant fear of repetition of the sexual assaults, both for herself and her daughter. She is therefore entitled to an award of aggravated damages. But for the contribution to her loss by her uncle,the plaintiff would be entitled to an award of non-pecuniarydamages in the amount of $50,000 and to an award of aggravateddamages in the amount of $25,000. Because the unclecontributed to the loss encompassed by the non-pecuniaryaward, it must be reduced by 20% to $40,000. The aggravated damage award, however, is intended to compensate the plaintiff for her loss attributable solely to her step-father's wrong doing and is consequently not subject to any reduction. The plaintiff is therefore entitled to judgmentagainst A. F. D. in the amount of $65,000, togetherwith her taxable costs.

The Plaintiff sued her stepfather for damages for sexual assault. He had previously been convicted of a criminal charge based upon the same incident. He did not defend the civil proceedings and the Plaintiff applied to have her damages assessed. The evidence in the civil trial also disclosed that the Plaintiff had be sexually assaulted by her uncle. HELD: Judgment for the Plaintiff. 1)The Plaintiff had been diagnosed as suffering from severe psychological problems as a result of the sexual assaults. 2)The Court assessed the Plaintiff's non-pecuniary damages at $50,000.00 and apportioned 80% of this sum or $40,000.00 to the step-father. 3)The Plaintiff was also awarded $25,000.00 in punitive damages as against the stepfather.

7_1995canlii6153.txt

1990 S.H. No. 72216 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Action commenced pursuant to the provisions of Sections 2(a), and of the Fatal Injuries Act, that being Chapter 163 of the Revised Statutes of Nova Scotia, 1989. BETWEEN: THE ESTATE OF THE LATE MABEL A. HUGHES, by its Executor and Trustee, Ronald J. Downie, Q.C., RONALD JOSEPH DOWNIE, BRIAN DOWNIE, KEVIN DOWNIE, JENNIFER SULLIVAN, LAURA DOWNIE and LIANE DOWNIE, Plaintiffs (Respondents) and MARY BETH TOWER and MARILYN MacLEOD Defendants (Applicants) HEARD: AT HALIFAX, NOVA SCOTIA, BEFORE THE HONOURABLE MR. JUSTICE DAVID W. GRUCHY IN CHAMBERS ON JANUARY 15, 1991 DECISION: FEBRUARY 1, 1991 COUNSEL: ROBERT G. BELLIVEAU, Q.C., COUNSEL FOR THE APPLICANTS GAVIN GILES, COUNSEL FOR THE RESPONDENTS 1990 S.H. No. 72216 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Action commenced pursuant to the provisions of Sections 2(a), and of the Fatal Injuries Act, that being Chapter 163 of the Revised Statutes of Nova Scotia, 1989. BETWEEN: THE ESTATE OF THE LATE MABEL A. HUGHES, by its Executor and Trustee, Ronald J. Downie, Q.C., RONALD JOSEPH DOWNIE, BRIAN DOWNIE, KEVIN DOWNIE, JENNIFER SULLIVAN, LAURA DOWNIE and LIANE DOWNIE, Plaintiffs (Respondents) and MARY BETH TOWER and MARILYN MacLEOD Defendants (Applicants) GRUCHY, J. This application is concerning an action taken as result of motor vehicle accident in which the late Mabel A. Hughes was allegedly struck and injured while pedestrian on Coburg Road in the City of Halifax. The action was commenced on her behalf on March 26, 1990. The amended statement of claim discloses that Mrs. Hughes subsequently died as result of the accident. The action was continued by the present plaintiffs in their various capacities. Ronald J. Downie is the son of the deceased and is the executor and trustee of the estate of Mabel Hughes. The other plaintiffs, Brian Downie, Kevin Downie, Jennifer Sullivan, Laura Downie and Liane Downie are all grandchildren of the deceased. After Mrs. Hughes\' death the action was continued pursuant to the provisions of Chapter 163 of the Revised Statutes of Nova Scotia, 1989, the Fatal Injuries Act. The plaintiffs make various claims, including special damages and general damages under different heads. Each plaintiff makes the following claim: "General damages to compensate for the loss of guidance, care and companionship that the late Mabel A. Hughes would have provided had her death not occurred, pursuant to the provisions of Section 5(2)(d) of the Fatal Injuries Act." By interlocutory notice dated January 10, 1991, the defendants have applied for an order "...excluding the grandchildren of the deceased Mabel A. Hughes". By the form of the order sought, it is clear that the defendants wish to exclude each of the grandchildren from their respective discovery examinations. No application has been made to exclude the plaintiff, Ronald J. Downie. The application is supported by the affidavit of the defendants' solicitor. The essential reason for the request for exclusion is found in that affidavit which reads as follows: "1. THAT am the solicitor for the Defendants and have personal knowledge of the matters herein deposed to except where stated to be based upon information and belief. 2. THAT as appears from the Amended Statement of Claim on file herein, the late Mabel A. Hughes died as result of injuries she received in motor vehicle accident which is the subject matter of this proceeding. 3. THAT there are five grandchildren of the deceased who are Plaintiffs in the within proceeding who are all claiming pursuant to the provisions of the Fatal Injuries Act. 4. THAT the parties are in the process of arranging discovery examinations of the Plaintiffs and the lines of questioning of each of the Plaintiff grandchildren will be virtually identical." In the defendants' submission, the reason for the request is stated more emphatically by indicating that "there is very real possibility that the grandchildren could be influenced by the questions and answers being put to one of his or her siblings". While such facts are not in evidence, at the time of hearing of the application it was disclosed to the Court that all of the grandchildren are of the age of majority. There is no Civil Procedure Rule directly on point. The late Chief Justice Cowan, in MacMillan et al v. Slaunwhite et al, 40 N.S.R. (2d) and 1979 CanLII 2699 (NS SC), 73 A.P.R. 25 at p.27, examined the purview of Civil Procedure Rule to determine whether the power of presiding judge to exclude witness is restricted to the circumstances outlined in that rule. He concluded: "In my opinion, however, the rule in question does not limit the inherent power of judge presiding at trial of civil proceeding to give such directions, including the exclusion of parties during the hearing of any testimony of another witness, as the judge considers necessary for the orderly conduct of the proceeding and for reaching just conclusion." Chief Justice Cowan was there dealing with case where the parties intended to be excluded were seven infant plaintiffs. Details of the proposed subjects of examination of the infant plaintiffs were outlined to the Court and included such matters as "the knowledge of the respective plaintiffs of the age of the defendant and of the defendant's legal status to operate motor vehicle, the knowledge of the plaintiffs as to the source or ownership of the motor vehicle, the manner in which the motor vehicle was operated at all times, the opportunities available to the respective plaintiffs to exit from the vehicle and whether some or all of the plaintiffs might have encouraged the defendant to act in certain ways in the operation of the vehicle". Chief Justice Cowan was referred to Sissons and Simmons v. Olson (1951), 1951 CanLII 480 (BC CA), W.W.R. (N.S.) 507 (B.C.C.A.). Counsel before me have likewise referred to that case. As was stated therein by O'Halloran, J.A., in deciding any case of this nature, it is necessary to start with the principle that "every person has an inherent right to be present at trial or any other proceedings to which he is party" and that "Such right, however, must not conflict with the fair and proper judicial conduct of the action or proceedings." As with all cases, the ultimate decision of the Court depends upon the facts adduced before it. O'Halloran, J.A. said that: Appellants had as much right to attend each other's examination as they had to remain in court and listen to each other's testimony at the trial itself. Acceptance of this conclusion does not deny jurisdiction in the court at the trial, or in the presiding judicial official at any stage of the proceedings to order the physical exclusion of party should violation of an essential of justice occur or be threatened if exclusion is not directed. What may constitute such violation depends on the situation in each case appraised in its own atmosphere. See Bird v. Vieth (1899), B.C.R. 31." Sidney Smith, J.A., in the same case at pp.511‑2 dealt with the question of onus as follows: The cases are well reviewed in Pam v. Gale, 1950 CanLII 547 (MB QB), [1950] W.W.R. 802 (Man.) and need not go through them. do not think they establish that party has legal right to be present at all times. The weight of authority holds, think, that either at trial or on discovery party cannot be excluded while his co‑party testifies, without cause shown. But do not think the onus of showing cause thus put on the opposite party is heavy one; and think the onus is lighter on discovery than at trial, since the possibility of injustice from exclusion is more remote. Even at trial, think the chance of injustice being done in this way is extremely small. But in many cases the chances of injustice to the opposite party from refusal to exclude may be very substantial. think the benefit of any real doubt should be given to the party asking for exclusion. If from the pleadings or otherwise it appears that the examinations of the coparties will cover the same ground, and that their credibility will be factor, then it seems to me their exclusion should be ordered. therefore, with respect, venture to disapprove of the disposition of the case made in Pam v. Gale, supra, unless the learned judge considered that counsel was exaggerating and that there was no real reason to think that cross‑examination would be made less effective by both deponents being present. The only reason allow this appeal is that the registrar does not appear to have gone into such questions at all, but to have ordered exclusion merely because it was asked for. This is not permitted by the authorities. He must exercise discretion, and here he does not seem to have done so." The same subject was adjudicated upon in O'Neal et al v. Murphy et al (1964), 1964 CanLII 847 (BC SC), 50 W.W.R. (N.S.) 252 (B.C.S.C.). In that case Munroe, J., approved the decision of the registrar of that court wherein exclusion was ordered in the following terms: In ordering exclusion in this case he had in mind that the examinations of the defendants were to cover the same ground and concluded that if exclusion was not ordered there was possibility of prejudice to the plaintiff while, on the other hand, there could be no prejudice to truthful defendant if an exclusion was ordered. Accordingly, notwithstanding the prima facie rights of the defendants, he appraised this situation 'in its own atmosphere' and concluded, in effect, that violation of an essential of justice may occur if exclusion was not directed. am in respectful agreement with the said finding." The enumeration of the respective rights of parties in considering possible exclusion from discoveries was set forth by Benson et al v. Westcoast Transmission Co. Ltd. (1974), 1974 CanLII 1207 (BC SC), 49 D.L.R. (3d) 292 (B.C.S.C.) 292, as follows: The major principles were set out in Sissons et al v. Olson. The ones that favour the plaintiffs in these proceedings can be described as follows: 1. Every person has an inherent right to be present at the trial or any other proceedings to which he is party (O'Halloran, J.A., p.509). 2. Every party has as much right to attend his co‑party's discovery examination as he has to remain in court and listen to this testimony at the trial itself (O'Halloran, J.A., p.510). 3. For party to be excluded from his co‑party's discovery, cause must be shown by the person asking for the exclusion (Sidney Smith, J.A., p.511). 4. Exclusion of party does not come as matter of right but is rather one for the Court to exercise in the circumstances (Sidney Smith, J.A., p.512). The principles that favour the applicant (defendant) in this action taken from Sissons et al. v. Olson, appear to be as follows: 1. The inherent right of one party to attend co‑party's discovery must not conflict with the fair and proper judicial conduct of the action or proceedings (O'Halloran, J.A., p.509). 2. If there is violation or threat of violation of an essential of justice during the proceedings, party may be excluded (O'Halloran, J.A., p.510). 3. The onus of showing that co‑party should be excluded is heavy one but is lighter on discovery than at trial (Sidney Smith, J.A., p.511). 4. The benefit of any real doubt as to whether party should be excluded should be given to the party asking for the exclusion (Sidney Smith, J.A., p.511). 5. If the pleadings show the examination of the co‑parties will cover the same ground, and their credibility will be factor, their exclusion should be ordered (Sidney Smith, J.A., p.511)." The degree of commonality of interests is also to be considered in determination of this nature. Bence, C.J.Q.B. of the Saskatchewan Court in Basu v. Bettschen et al (1975), 1975 CanLII 821 (SK QB), 55 D.L.R. (3d) 755: feel that where co‑parties have interests in common it is important in the interests of justice that they be excluded when fellow parties are testifying on an examination. If it were otherwise they would be in the advantageous position of knowing what another has said at the time that they are examined. It appears in the instant case that the defendants have very important common issue and it would be valuable to them of course if in assessing their own answers they had the advantage of knowing what another defendant has stated." also refer to two recent decisions of the Appeal Division of this Court: Coughlan and Garnett v. Westminer Canada Holdings Limited et al, S.C.A. No. 02281 and Transcanada Pipelines Limited v. The Armour Group Limited, S.C.A. No. 02351. In the Westminer case the oral decision of Mr. Justice Nunn was considered. He had said, in part, as follows: The burden is on the Applicant to show that sufficient cause that in any event, if it were treated the same as parties, that some exclusionary order should be granted. The basis of such an exclusionary order would have to be, basically, that it was in the interests of justice, that such an exclusionary order would be granted. I'm not satisfied in this case that the Applicant has met that burden, even accepting it as lighter burden than in normal situation, and as result, I'm going to deny the application with regard to those persons. I don\'t think there\'s been sufficient to indicate that there would be a violation of an essential of justice if these parties were not excluded from hearing the evidence of each other. There's real danger in this type of situation that the Defendant would be prejudiced in the preparation of his defence and in lining up the various witnesses that he might have in giving them and instructing them as to what evidence they may be required to give." (Emphasis added) Mr. Justice MacDonald, in reviewing Mr. Justice Nunn's decision, concluded that "It is clear that when considerations of justice were considered, the Chambers judge was satisfied that the burden had not been met by the applicant". To use the words of Mr. Justice Nunn, must consider whether there is sufficient evidence before me "...to indicate that there would be violation of an essential of justice if these parties were not excluded from hearing the evidence of each other". The only evidence before me is the affidavit of defendants' counsel. In the case at hand there is apparently no question about liability; it has been admitted by the defendants. The matter is essentially an assessment of damages, including particularly those damages suffered and claimed by the grandchildren of the deceased pursuant to the Fatal Injuries Act. The pertinent subsections of the Act read as follows: (1) Every action brought under this Act shall be for the benefit of the wife, husband, parent or child of such deceased person and the jury may give such damages as they think proportioned to the injury resulting from such death to the persons respectively for whose benefit such action was brought, and the amount so recovered, after deducting the costs not recovered, if any, from the defendant, shall be divided among such persons in such shares as the jury by their verdict find and direct. Damages Defined (2) In subsection (1), 'damages' means pecuniary and non‑pecuniary damages and, without restricting the generality of this definition, includes ... (d) an amount to compensate for the loss of guidance, care and companionship that person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred." Accordingly, each of the grandchildren plaintiffs will be showing in this action the degree of damage individually suffered as result of the loss of guidance, care and companionship which would have been afforded them by their grandmother. That loss is the subject matter in issue. Each loss is peculiar to each of the plaintiffs. While the same general subject matter will be covered in each examination, the same ground need not be covered. Each of the grandchildren will have had his or her own special relationship with the deceased. Each relationship is an entirely subjective one. It is that relationship which must be explored upon examination. The evidence concerning those relationships will be vastly different from cases where such matters as the powers of observation of the witnesses will be under scrutiny. The evidence will be subjective to great degree. Skilled counsel will be able to frame questions to each of the siblings to elicit the information required without having to go over the same ground with each of them. Nor is this situation where the witnesses may be intimidated by the presence of parent. The applicant has not asked for the exclusion of Mr. Ronald Downie, the father. According to the respondents' submission, which has not been objected to, the children are professional and well educated people. The subtle influence of parent to child, in these circumstances, and indeed, the subtle influence of brothers and sisters, do not appear to me to be of major consideration. find that the evidence before me, consisting of the affidavit set forth above, falls short of showing me that "there would be violation of an essential of justice if these parties were not excluded from hearing the evidence of each other". The inherent rights of the parties to attend the discovery should not be displaced by the mere assertion that "the lines of questioning of each of the plaintiff Grandchildren will be virtually identical". There is no evidence before me that it would be of value to the grandchildren plaintiffs in being able to assess what one another has said. As the learned registrar said in O'Neal et al v. Murphy et al (supra), each case must be appraised "in its own atmosphere". There has not been sufficient atmosphere set forth before me to overcome the presumption that each plaintiff has right to be present at each examination. There is nothing before me to suggest that the attendance of the parties at the discovery will create situation in conflict with the fair and proper conduct of the case. If there is any abuse by the plaintiffs of this procedure, evidence of that may be brought forward at the time of trial and an appropriate adjudication made. As a result of the above, I exercise my discretion in favour of the plaintiffs and allow all of them to be present during the discovery examinations of one another. Costs of this application shall be the plaintiffs' costs in any event and fix them at $500.00. Gruchy, J. Halifax, Nova Scotia February 1, 1991 1990 S.H. No. 72216 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Action commenced pursuant to the provisions of Sections 2(a), and of the Fatal Injuries Act, that being Chapter 163 of the Revised Statutes of Nova Scotia, 1989. BETWEEN: THE ESTATE OF THE LATE MABEL A. HUGHES, by its Executor and Trustee, Ronald J. Downie, Q.C., RONALD JOSEPH DOWNIE, BRIAN DOWNIE, KEVIN DOWNIE, JENNIFER SULLIVAN, LAURA DOWNIE and LIANE DOWNIE Plaintiffs (Respondents) and MARY BETH TOWER and MARILYN MacLEOD Defendants (Applicants)

The defendants applied to exclude the plaintiff grandchildren of the deceased from their respective discovery examinations in connection with an action under the Fatal Injuries Act. Dismissing the application, that there was insufficient evidence to indicate there would be a violation of an essential of justice if the parties were excluded from hearing each other's testimony. The only evidence before the court was that the lines of questioning of each grandchild would be identical. This was insufficient to displace a party's inherent right to attend his co-party's discovery.

1991canlii4504.txt

T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB Date: 2015 01 08 Docket: NJ 24 of 2012 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JESSE MANULAK -and- ALEXANDER HILL -and- NICHOLAS FOSTER Counsel: James Fitzgerald for the Crown Darren Kraushaar for Jesse Manulak Doug Andrews, Q.C. for Alexander Hill Neil Tulloch for Nicholas Foster JUDGMENT GUNN J. JANUARY 8, 2015 [1] Jesse Manulak, Alexander Hill and Nicholas Foster have entered guilty pleas to breaking and entering dwelling house and committing the offence of assault causing bodily harm on December 28, 2011, contrary to s. 267(b) and s. 348(1)(b) of the Criminal Code, RSC 1985, C-46. [2] In addition, Nicholas Foster has entered guilty plea to, on that same date, using an imitation firearm while committing the indictable offence of break and enter with intent to commit the indictable offence of assault, contrary to s. 85(2)(a) of the Criminal Code. [3] The resident of the dwelling house and victim of the assault was Scott Cowan. [4] On December 27, 2011, the three accused went out for few drinks. They consumed alcoholic drinks at Bonzzini’s Brew Pub, at the south Boston Pizza, at Mr. Manulak’s residence and at Mr. Hill’s residence. Their alcohol consumption was extensive and prolonged and all three accused became extremely intoxicated. [5] It would appear from statements provided by the accused to the police that during the course of the evening of December 27th, the three accused shared some information with each other about Mr. Cowan. In Mr. Hill’s statement to the police, he advised them that Scott Cowan had called Mr. Hill’s boss, and had offered to sell him some televisions at suspiciously low prices $200.00 for Sony 60" flat screen TV and the same price for slightly smaller flat screen TV. Mr. Hill’s boss shared this information with Mr. Hill who decided to purchase TV. Even though suspicious about the transaction, Mr. Hill decided to buy TV and not to ask any questions. He met with Mr. Cowan and paid him total of $300.00, the last instalment being made outside Mr. Cowan’s residence. Mr. Hill did not receive TV. [6] Mr. Hill said he complained to the police about paying the money to Mr. Cowan and not receiving the TV. Initially, he tried to make this complaint anonymously. [7] In Mr. Manulak’s statement to the police, he described similar experience on December 22, 2011 involving his brother Jason. Mr. Cowan had offered to sell Jason 60" TV for $250.00. Once again, money was handed over, but no TV received. Mr. Manulak indicated that this incident was also reported to the police. [8] It is acknowledged by the Crown that by the time of this incident, complaints had been made but the police had not taken any steps to investigate the complaints made by Mr. Hill or by Mr. Manulak. The Crown also acknowledges that Mr. Cowan never had any TV’s to sell and had no intention of completing either of these transactions. [9] So during night of drinking, these three intoxicated young men discussed Mr. Cowan’s actions and decided to take some action of their own. Mr. Manulak and Mr. Foster wanted to go to Mr. Cowan’s residence to confront him. Mr. Hill did not want to go, but he acquiesced and went along. Knowing little about Mr. Cowan’s criminal history which is extensive Mr. Foster decided to take an imitation firearm which was in Mr. Hill’s residence. This was pellet gun, or BB gun, which had the appearance of real gun. The three accused drove to Mr. Cowan’s residence in Mr. Manulak’s company truck. [10] When the three accused arrived at Mr. Cowan’s residence, they pounded on the door to gain entrance. When not admitted, Mr. Manulak and Mr. Foster approached the back door. Mr. Foster was carrying the imitation firearm and Mr. Manulak was carrying roofing hammer. Mr. Hill hung back, but followed his friends. Mr. Manulak broke window and gained entry. He opened the door for the other two accused. [11] When Mr. Cowan heard them approaching, he made 9-1-1 call to the police in which he reported that his back window was being broken. The police were dispatched at 7:42 a.m. on December 28, 2011. The 9-1-1 recording was available to the court. It would appear that the events involving the assault on Mr. Cowan took approximately three and half to four minutes. The recording reflects the sound of male voices shouting, great deal of profanity, and the sound of blows being struck. It was not possible to attribute comments made to any individual accused. Someone said, “Open your mouth”. Someone said, “I want to blow his head off”. few seconds later, there is the sound of repetitive blows being struck. Someone said “Open your eyes or will kill you”. Someone said, “Wake the fuck up”. Mr. Cowan was repeatedly told to open his eyes. [12] The Crown was not in position to delineate with any precision what each accused did in the house. This lack of precision is attributable to few different factors. The events happened quickly and intensely. The victim was available to testify at the preliminary hearing because he was in custody, but he has not offered his complete co- operation to the Crown. The accused provided statements to the police in which some of the events are detailed. [13] In dealing with the facts, will, in the first instance, set out the Crown’s submissions. will then review the admissions made by the accused in their pre-sentence reports and in the submissions of their counsel. [14] The Crown submits it is clear that Mr. Foster carried the gun into the residence and used it. Mr. Foster put the barrel of the gun into Mr. Cowan’s mouth and threatened on more than one occasion to blow his head off. Mr. Cowan lost either three or four teeth as result of this. Mr. Foster also accepts responsibility for the bumps and bruises on Mr. Cowan’s head. Mr. Cowan initially believed the gun was real, but before the event was over, he knew it was not. [15] Mr. Cowan suffered numerous other bruises and lacerations as depicted in the photo exhibits filed by the Crown on the sentencing hearing. Photographs of some injuries are consistent with the roofing hammer being an assault weapon and this was confirmed by Mr. Cowan in his testimony at the preliminary hearing. Except for the loss of his teeth, there is no evidence that any of the other injuries were significant or long lasting. Mr. Cowan checked himself out of the hospital against the advice of his medical professionals so there is no additional medical evidence to be considered. [16] Mr. Manulak carried the roofing hammer into the residence. Mr. Hill indicated in his statement that “they” threw the roofing hammer to him and it struck him. Mr. Hill further indicated in his statement that he was not too sure, but he thought he gave the roofing hammer to Mr. Foster. Mr. Manulak indicated he wasn’t sure but he thought he struck Mr. Cowan with the hammer. Mr. Hill denies striking Mr. Cowan in any way. He says he went into the house when he heard someone yell something about knife. Mr. Hill says he pulled Mr. Foster away from Mr. Cowan. [17] Mr. Cowan testified at the preliminary hearing that all three participated in the assault against him but not equally. Mr. Cowan indicated that Mr. Hill had lesser involvement. Mr. Cowan says Mr. Hill kicked him several times. Mr. Cowan’s DNA was located on Mr. Hill’s jeans, but Mr. Hill also indicated he fell and may have gotten blood on him that way. The Crown acknowledges that Mr. Cowan may have made an effort to defend himself with knife, although in his testimony at the preliminary hearing he denied that he did this. Mr. Foster asserts in his statement that he was cut with knife and that it was after that he used the imitation firearm. Mr. Manulak mentioned something about steak knife, without details. Mr. Foster did have cut fingers which required bandaging after his arrest. Jesse Manulak [18] In his pre-sentence report, he said the following as reported at p. 5: The subject recalls attending the victim’s residence, however claims “I don’t remember really anything” about the assault that occurred in the victim’s home because “I lost my memory after drinking the rum.” Despite experiencing temporary memory loss, the subject reports “I remember getting arrested” immediately after the index offences. [19] In the written submission made by counsel on behalf of Mr. Manulak he says the following at paras. 9. Jesse’s recollection from that evening is somewhat patchy, given his intoxication. He told police that he consumed twenty or more drinks that night. He does recall some discussion about going to Mr. Cowan’s house to confront him about the scam. He does not recall any plan to break into the house or to assault Mr. Cowan. He doesn’t recall leaving Mr. Hill’s residence to go to Mr. Cowan’s, but does remember arriving at Mr. Cowan’s residence. The group knocked on the door to confront Mr. Cowan. 10. Jesse does recall having the hammer at some point. He acknowledges he was the first person through the window. It was dark in the house. He opened the door for Mr. Hill to come in. He doesn’t recall if Mr. Foster came in through the door or the window. He states that he did not know that Mr. Foster had the BB gun, and he doesn’t recall seeing it during the assault. The intention was to confront Mr. Cowan and possibly scare him into giving the money back. Unfortunately once the three men were inside Mr. Cowan’s residence things quickly escalated. Jesse recalls hearing that Mr. Cowan was armed with knife. He recalls immediately thinking that the situation was bad. Jesse acknowledges he was involved in the assault, but to significantly lesser degree than Mr. Foster. [20] In counsel’s submission to the court he indicated that Mr. Manulak does not remember if he hit Mr. Cowan with the hammer but he does not deny it. Overall, he says Mr. Foster was the most involved, then him and that Mr. Hill had the least involvement. Alexander Hill [21] In his pre-sentence report, Mr. Hill accepts full responsibility for his actions. He exhibited high level of remorse although he did not describe his actual participation. Nicholas Foster [22] In his pre-sentence report, Mr. Foster took full responsibility for his actions. He indicated that the three accused discussed confronting the victim after night of drinking. They broke into the home and confronted the victim. Mr. Foster acknowledged he carried the pellet gun and used it in threatening manner against the victim. [23] Mr. Foster’s counsel filed written submissions at the sentencing hearing in which he described the offence as follows at p. 2: Upon arriving at Mr. Cowan’s residence, Nicholas, Mr. Hill and Mr. Manulak knocked on Mr. Cowan’s door, but received no response. Mr. Manulak, armed with roofing hammer, decided to break window in the back of the residence and enter through it, he then proceeded to open the door for Nicholas and Mr. Hill. Upon entering the residence, Nicholas and Mr. Cowan were involved in skirmish in which Mr. Cowan cut Nicholas’ fingers with knife. It was only after Nicholas was cut by Mr. Cowan, and in the heat of the moment, did he remove the pellet gun from his waistband and proceed to assault Mr. Cowan, along with Mr. Manulak and Mr. Hill, who used their fists, feet, and the hammer to overcome and assault Mr. Cowan. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED [24] pre-sentence report was prepared for the assistance of the court for each accused. The court has relied on the information contained in the pre-sentence report as well as the submissions made by counsel in respect to each accused to provide some background information. JESSE MANULAK [25] Jesse Manulak is now 29 years of age. Mr. Manulak was raised in Regina by his mother and step-father, with limited involvement by his birth father after the age of five. Up to age five, Mr. Manulak would have observed some domestic violence in the home. After that time, Mr. Manulak indicates his basic needs were met and says there was no substance abuse or use in his home. [26] Mr. Manulak graduated from high school, even though he experienced some learning difficulties. He was talented skateboarder while in high school and he received some professional sponsorships which he ultimately lost after he suffered some injuries. Mr. Manulak is an experienced roofer and has maintained full-time employment since age 16. Mr. Manulak taught his twin brother, Jason, the skills needed as roofer and together they have started company called “Masterworks Roofing”. Mr. Manulak is reportedly very hard worker, often working 10 or 11 hours day, six days week. [27] The Crown filed criminal record containing one previous criminal conviction for driving while impaired in Estevan in 2006. Mr. Manulak received $750.00 fine and one year driving prohibition. [28] Mr. Manulak has pro-social supports in his life consisting of his mother, step-father, siblings, and common law partner. He acknowledged to the author of the pre-sentence report that he had history of negative peer associations which involved substance abuse and criminal behaviour. Since the time of this offence, Mr. Manulak states he has severed his ties with this negative peer group and has concentrated on building his company. [29] Just prior to this offence, Mr. Manulak was reportedly drinking heavily. He had broken up with his long-term common law partner and was depressed. He reports that he only remembers being excessively drunk on two occasions, one of those occasions being the time of this offence. Since the offence, the accused states he has maintained his sobriety “pretty much since the offence”. Apparently the one exception to this was at his brother’s wedding last summer, when Mr. Manulak consumed some alcohol. Mr. Manulak’s brother Jason indicated that since the offence, the accused “actually limits himself” when using alcohol. Other than the one occasion last summer, Mr. Manulak submits he has completely abstained from the consumption of alcohol since the offence. [30] In August of 2012, while on bail, Probation Services referred Mr. Manulak to the Addiction Treatment Centre [ATC], to complete an addictions screening assessment. Mr. Manulak attended in 2012 and was found to have moderate probability of having substance dependence disorder. ATC recommended that he complete three sessions of Discovery Group at the Centre. Mr. Manulak completed one of the required three sessions and has had no further contact with ATC since October 16, 2012. Mr. Manulak’s explanation for this is that he did not know he had to complete any further sessions as he was not drinking. [31] Mr. Manulak has maintained his residence as required and has maintained his curfew. number of individuals have written letters of support. The pain being experienced by Jesse’s mother is palpable as she describes the worst day of her life when she received notice of Jesse’s arrest. Mr. Manulak’s grandparents are confident he fully realizes the seriousness of his actions. All speak to his industrious nature and strength of character. [32] Mr. Manulak was assessed by Probation Services as being at medium risk to re-offend. Mr. Manulak believes himself to be at low risk to re-offend. [33] Mr. Manulak was in custody immediately after his arrest from December 28, 2011 to January 9, 2012, period of 13 days. Upon release, he was placed on strict conditions including being confined to his residence and being on electronic monitoring from January 9, 2012 to May 2, 2012 (four months). He remained on curfew after that. [34] When given the opportunity to speak at the sentencing hearing, Mr. Manulak apologized to his family. ALEXANDER HILL [35] Alexander Hill is now 28 years of age. He was raised in Regina by his parents and had good upbringing. He played sports, attended the family cottage on weekends, was not exposed to family violence or the abuse of drugs or alcohol. He has close relationship with his parents and they are pro-social supports for him. He is engaged to be married to Jannah, who is currently employed as nurse. [36] Mr. Hill graduated from high school in 2005 and earned his Red Seal Journeyman designation in sheet metal in 2010. Mr. Hill has been regularly and steadily employed. [37] Mr. Hill states he never was “big drinker” but he has refrained from all alcohol use since the offence and has been attending Alcoholics Anonymous [AA]. Mr. Hill is in good physical and mental health. He has been seeing counsellor since the offence. [38] His counsellor, Dr. Darrell Davis, wrote letter of support for Mr. Hill. Dr. Davis advised that Mr. Hill has demonstrated integrity and willingness to learn from his experiences while in counselling. According to Dr. Davis, Mr. Hill has suffered intense emotional pain resulting primarily from guilt, shame and remorse and has used those emotional experiences for true personal gain and positive learning. Dr. Davis is of the view that Mr. Hill has addressed issues in his life which might be considered to be problematic and contributing factors towards his participation in this criminal activity. [39] significant number of individuals have filed letters of support and character references for Mr. Hill. These people include former employers, family and friends. [40] Notably, these individuals not only report their views of Mr. Hill as an honest, caring, considerate and intelligent young man, but they also report that Mr. Hill has accepted responsibility for his actions and has shown honest remorse. They are convinced this was an isolated incident in the life of Mr. Hill. [41] Mr. Hill has no previous criminal convictions and he accepts full responsibility for his actions. Mr. Hill was assessed by Probation Services as being at low risk to re-offend. [42] Mr. Hill spent 13 days in custody following his arrest. At the time of his arrest, he indicates he was kicked in the face and lost tooth as result. He was in considerable pain for the 13 days he spent in custody. He has been bound by restrictive bail conditions since his release. [43] Mr. Hill had nothing to say when given the opportunity to speak at his sentencing hearing. NICHOLAS FOSTER [44] Mr. Foster is now 28 years old. His parents separated when he was four years of age and he lived with his father and saw his mother on vacations. Mr. Foster describes this separation as traumatic for him. Things deteriorated when Mr. Foster’s father remarried as he did not have good relationship with his step-mother. [45] Mr. Foster completed high school in 2004 and was asked to leave the family home at the age of 17 by his father as result of the conflict between Mr. Foster and his father’s new wife. Mr. Foster continues to have relationship with both of his parents and they are both supportive of him. [46] Mr. Foster participated in some counselling after this offence. He saw counsellor on two occasions, the last being December 18, 2012. Mr. Foster started drinking in grade eleven and, after high school, his drinking escalated dramatically. He would drink if he was bored, would drink alone or with others, and would drink until he was ill or lost consciousness. Since the offence, he has attended 50 to 60 AA meetings. According to his father, he continued to abuse alcohol for time after this offence, but he now denies any substance abuse since early 2012. [47] He has previous criminal record for driving while over .08 in May of 2008. He was fined $2,000.00 and prohibited from driving for one year. [48] Mr. Foster is employed at Sterling Plumbing and Heating. His work ethic has improved dramatically since this offence. He completed his journeyman’s papers in plumbing in the fall of 2014. [49] Mr. Foster accepts full responsibility for his actions and gave statement to the police shortly after his arrest. He is assessed by Probation Services as being at medium risk to re-offend. Mr. Foster believes himself to be at low risk to re-offend. [50] number of individuals filed character references for Mr. Foster. In their view, this is surprising and isolated incident. [51] Mr. Foster was in custody for 13 days following the offence. He has been bound by strict conditions of release. [52] Mr. Foster had nothing to say when offered the opportunity to speak at his sentencing hearing. THE IMPACT ON THE VICTIM [53] Mr. Cowan did not file a victim impact statement with the court and he was not overly co-operative with the Crown once he was out of custody. Mr. Cowan has significant criminal record. It would appear that he engaged in activity which incited these three accused to take some action, once their complaints to police went unaddressed. This is not to say that any of the actions of the accused were justified in the circumstances, but Mr. Cowan may bear some responsibility for setting up set of circumstances which led to unintended consequences. [54] Even without victim impact statement, am still entitled to consider, in sentencing, the effect of this offence on the victim. The circumstances of the offence lead to clear conclusion that Mr. Cowan must have been terrorized by these three individuals. The 9-1-1 recording brings home what was happening during that short but intense time period. THE CROWN’S POSITION ON SENTENCE [55] The Crown submits that denunciation and deterrence are the most important principles of sentencing in this case. [56] The Crown takes the position that the accused should not in any way be excused for their actions as result of Mr. Cowan’s potential fraud on them. Mr. Cowan has been dealt with criminally as result of his interaction with Jason Manulak. Vigilante justice cannot be countenanced, even if the accused had valid complaint. [57] The Crown relies on the comments of Madam Justice Smith in Payne, 2007 SKCA 28 (CanLII) at para 22, 293 Sask 31: 22 At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly, central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes, where they are out of sight of passers‑by and often unable to summon help. In addition, this was violent offence. The respondent entered this home wielding machete. While the trial judge found that the respondent intentionally struck with the dull side of the machete, and did not intend to use it as knife, he clearly meant to use it, at the very least, for intimidation, and did, in fact, strike the three victims with it. [58] The Crown references the very recent decision of the Court of Appeal in Debigare, 2014 SKCA (CanLII), 433 Sask [Debigare], released January 15, 2014, which involved home invasion and where the accused were treated with considerable leniency compared with previous cases. The Crown notes that Justice Caldwell indicates that these are not standard sentences to be imposed (para. 41). [59] The Crown takes the position that “but for Debigare”, four year sentence for Mr. Manulak and Mr. Foster on the break and enter would be appropriate with slightly lesser sentence for Mr. Hill. Mr. Foster would face in addition minimum sentence of one year for the use of the imitation firearm. Even viewing these circumstances through the lense of Debigare, the Crown takes the same position, without any confidence that its position is sustainable, as it acknowledges that the Debigare decision has changed the landscape significantly in relation to home invasions. [60] In addition, the Crown seeks DNA order, firearms prohibition and forfeiture order in relation to the imitation firearm. THE ACCUSED’S POSITION ON SENTENCE [61] All three accused rely on Debigare. Mr. Manulak and Mr. Hill seek leniency from the court and suggest sentence in the range of nine to twelve months. [62] Mr. Foster relies on Debigare and seeks sentence of one year to 18 months, bearing in mind that there is minimum sentence of one year for the use of the imitation firearm. [63] The starting point in considering an appropriate sentence is always review of the sentencing principles set forth in the Criminal Code. [64] Section 718 provides as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,... [65] Section 348.1 is also relevant. 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [66] decision on an appropriate sentence must be made with reference to the principles of sentencing earlier quoted. Each case is decided on its own facts and circumstances, but the principles of sentencing will help to inform that decision. will now consider the relevant principles of sentencing as they relate to the case before me: (a) denounce unlawful conduct; and (b) deter the offender and other persons from committing offences. [67] The sentence should denounce unlawful conduct. It should deter the offender and other persons from committing offences. These two principles are often dealt with together as being the objectives of denunciation and deterrence. [68] Courts of Appeal across Canada have dealt with these principles by establishing ranges of sentencing resulting in significant periods of incarceration, even for those without previous criminal records. (See Ross (1999), 1999 CanLII 4397 (MB CA), 138 Man (2d) 75 (Man CA); Harris, 2000 NSCA (CanLII), 181 NSR (2d) 211; Leggo, 2003 BCCA 392 (CanLII), 184 BCAC 150) [69] In Alberta, in Matwiy (1996), 1996 ABCA 63 (CanLII), 178 AR 356 (Alta CA) [Matwiy], the court said the following at para. 26 ... While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with little hope that help will arrive. Such offences, whether they result in injuries or not, are almost always terrifying, traumatic experiences for the occupants of the residence often leaving them with total loss of any sense of security. [70] Matwiy involved violent home invasion and robbery involving some serious threats to the victims. The Alberta Court of Appeal was prompted to establish range of sentencing starting at eight years for mature offender without previous criminal record. [71] The Saskatchewan Court of Appeal has had much to say over the years on this particular crime. In Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask 234 (Sask CA), Sherstobitoff J.A. said this at para 7: ... Crimes of this nature are the very crimes that give rise to public concern as to whether the justice system is adequately protecting the public from what many perceive to be continuing rise in violence and lawlessness in our society. The duty of the court in such cases is to protect the public right to be secure in one's home and the public right to be free from gratuitous and unlawful assaults, and to maintain public confidence in the administration of justice by imposing penalties commensurate to such crimes. The sentences must also be of sufficient force to deter Mr. Seymour as well as others from committing such crimes in the future. [72] In Pelly, 2006 SKCA 60 (CanLII), 279 Sask 252 [Pelly], Cameron J.A. said the following at para. 57 It must be clear to all that crimes of this nature strike at the very core of peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing "home invasions" in order to protect the public from the invasiveness and violence associated with them. [73] The court has also said that consideration must be given to all of the relevant circumstances, even in cases of home invasions. Chief Justice Klebuc (as he then was) said the following at para. 32 in Campeau, 2009 SKCA (CanLII), 320 Sask 132: 32 In sum, Pelly does not impose mandatory starting point sentence of seven years for all forms of home invasion. Rather, as noted in Payne, each case involving home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (i) the motive for unlawfully entering the dwelling‑house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [74] It is clear and find that denunciation and deterrence are the primary factors for consideration in case such as this. (c) separate offenders from society where necessary. [75] There is nothing in the facts before me which would indicate that it is necessary to separate any of the accused from society. They are all young men. They are all employed. They all have significant number of pro-social supports in their family and friends. They have each been contributing members of society. It is clear that this was an extraordinary event in the lives of each of these young men. The information provided about each of them would indicate that they have taken individual responsibility for their actions and that they appreciate the significance of their actions. Mr. Hill has no prior criminal record. Mr. Manulak and Mr. Foster each have one previous conviction for drinking and driving. Excessive consumption of alcohol was significant factor in the offence before the court. Each of the accused has taken certain steps in relation to the use of alcohol. Mr. Manulak has quit drinking since the offence with the exception of one occasion last summer. Mr. Hill has attended AA meetings and has totally abstained from the consumption of alcohol since this offence. Mr. Foster has acknowledged he has problem with alcohol and has attended 50 to 60 AA meetings since the offence and has completed an anger management workshop. (d) assist in rehabilitating offenders. [76] The only evidence before me is to suggest that this particular action on the part of each of these accused was exceptional. Given the positive steps taken by each of these accused since the commission of the offence, am not satisfied that they require rehabilitation or that incarceration would assist in this endeavour if it were seen to be necessary. (e) provide reparations for harm done to victims or to the community; and (f) promote sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. [77] Victims have powerful voice in criminal proceedings. This voice is generally heard through their victim impact statements. Mr. Cowan did not file a victim impact statement with the court, but I am prepared to draw the inference that this event would have been terrifying. Mr. Cowan believed initially that the imitation firearm was real. By the end of the incident, he had concluded it was not. Even so, there were three intoxicated and angry young men in his home, assaulting him. The effect of crimes, particularly home invasions, on victims must be acknowledged. [78] The guilty pleas entered by each accused reflect their acceptance of individual responsibility for their actions. Statements provided by the accused to the police also reflect measure of personal acceptance. They were all co-operative after their arrest. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [79] This is the fundamental principle of sentencing according to the Saskatchewan Court of Appeal as stated in Pelly at para 32. The Court went on to say the following at para. 33 We explained the import of this in R. v. McGinn (1989), 1989 CanLII 4784 (SK CA), 49 C.C.C. (3d) 137, and more recently in R. v. Keshane (D.S.) (2005), 2005 SKCA 18 (CanLII), 257 Sask.R. 161, noting in Keshane that the gravity of an offence lies in its nature, its comparative seriousness, and in the harm caused in its commission. We also explained that the degree of responsibility of the offender lies in the extent of the offender's moral culpability in committing the offence. [80] Clearly breaking into dwelling when someone was home is an extremely serious offence. The gravity of the offence is high, given that the maximum sentence for this offence is life imprisonment. [81] The facts have been recited earlier. At this point, it is valuable to describe as clearly as possible the degree of responsibility of each of the offenders. It is clear that all three accused went to Mr. Cowan’s home with the intention of confronting him and scaring him. They pounded on his door, and when he didn’t answer, they forcibly entered Mr. Cowan’s home, knowing he was home. The forcible entry was not pre-meditated. Mr. Manulak broke the window and entered the house through the broken window. Mr. Manulak then opened the door for Mr. Foster and Mr. Hill. [82] Mr. Foster was armed with the imitation firearm. Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. [83] Mr. Cowan was ultimately hit with the hammer which is evidenced by the bruises he exhibited afterwards. The Crown candidly admits it is unable to say with any precision who did what. Mr. Manulak apparently told the police he thought he hit Mr. Cowan with the hammer but at the sentencing hearing said he didn’t know if he did or not. He acknowledges telling the police he might have struck the victim. Ultimately, he does not deny hitting Mr. Cowan with the hammer he simply does not remember due to his excessive consumption of alcohol. [84] In Mr. Foster’s brief to the court, he said the following at p. 9: “...it is likely that Nicholas’ actions caused Mr. Cowan to lose teeth, and that he more than likely caused the majority of the bumps and bruises to Mr. Cowan’s head....”. [85] Mr. Foster asserts that he only used the firearm because Mr. Cowan was armed with knife and cut him. Mr. Foster did have cuts to his hands at the time of his arrest. [86] Mr. Cowan indicated that all three accused assaulted him, but that Mr. Hill was less involved than the other two. Mr. Foster put the imitation firearm in Mr. Cowan’s mouth, threatening to shoot him. Mr. Cowan lost three to four teeth as result of this action by Mr. Foster. sentence should be increased or reduced to account for aggravating or mitigating circumstances (s. 718.2(a)). Mitigating Factors [87] The three accused entered guilty pleas. They were heavily intoxicated, which in and of itself is not a mitigating factor, but the fact of their intoxication negatives any clear intention to commit this crime. They did not plan this event in advance. None of the accused has any history of violence. The assault on Mr. Cowan was serious, but of brief duration. All of the accused are otherwise fully employed and contributing members of society. [88] Mr. Manulak accepted responsibility for his actions early on and gave a statement to the police. His post-offence conduct has been exemplary. He has turned his life around and has concentrated on building his company. He has one previous conviction but it is unrelated and somewhat dated. [89] Mr. Manulak has been bound by restrictive conditions of release for almost three years. These conditions initially included, in part, the following conditions: that he participate in the electronic monitoring program; that he remain in his residence unless given permission to leave by his bail supervision supervisor; that he live in an approved residence; that he not consume or possess alcohol; that he not travel beyond 40 kilometer radius from his place of residence without written permission from his bail supervisor; that he attend and participate in assessments, programming and treatment for substance abuse as arranged and directed by his electronic monitoring supervisor; and that he have no contact with the victim or the co-accused. [90] Mr. Hill has fully accepted responsibility and has exhibited remorse since the crime was committed. He has attended AA and has complied fully with the conditions of his release. The conditions have been restrictive and include requirement that he reside in residence approved by his bail supervision officer; that he not travel beyond 40 kilometer radius from his residence except for employment; that he abide by curfew and be in his approved residence from 11:00 p.m. to 7:00 a.m. (except for employment); that he abstain from the use, possession or consumption of alcoholic beverages and non-prescription drugs; that he not be in any premises where the primary function is the sale or consumption of alcohol; and that he have no contact with the co-accused or the victim. [91] He has, from the outset, accepted responsibility for his actions. He is deeply remorseful. He has no previous criminal record. He was the least involved in the incident in question. [92] Mr. Foster has accepted responsibility for his actions and has been co-operative throughout. He has admitted he has problem with alcohol and has taken steps to deal with this problem. Mr. Foster has attended many AA meetings and has also taken steps to deal with underlying anger issues and has met with counsellor. Mr. Foster has had difficulty eating and sleeping since this event. He has received medication for depression. His relationship with his long time girlfriend has ended as result of this incident. He has suffered extreme embarrassment and he recognizes daily the effects of disappointing his family and his friends. [93] Mr. Foster has complied with the conditions of his release for almost three years. These conditions included requirements that he live at an approved residence; not travel outside 40 kilometer radius of his approved residence without the prior written permission of his bail supervisor; that he be in his approved residence from 11:00 p.m. to 6:00 a.m. unless given prior written permission to be absent; and that he not have any contact with the victim or the co-accused. Aggravating Factors [94] Pursuant to s. 348.1 of the Criminal Code, these circumstances shall be considered to be aggravating by any sentencing court. [95] In considering this issue, note the comments of Madam Justice Hunter in Akapew, 2009 SKCA 137 (CanLII) at paras 21-22, 343 Sask 155 in relation to parties to offences: [21] The trial judge seemed to be of the view that the sentence to be imposed on Akapew as party to the offences pursuant to s. 21(1)(b) and (c) and s. 21(2), must be less than the sentence imposed on Starr, the principal of the offences in s. 249.1 and s. 221. This factor was emphasized by the trial judge when she considered each of the sentencing principles of proportionality, parity and totality of sentence. [22] Section 21 of the Code provides four ways person is party to an offence: (i) by committing it; (ii) aiding it; (iii) abetting it; or (iv) by having the common intention to carry out an unlawful act and to assist each other person may be liable for an offence beyond that which was initially contemplated. There is nothing in the language of s. 21 that provides that the degree of culpability is different for any of the four ways person may be party to an offence. The sentence for each offender is determined in accordance with the general sentencing principles stated in s. 718 to s. 718.3 of the Code. [96] Section 348.1 is applicable to all three accused even though their level of participation in the crime differs. [97] The aggravating factors which apply to all three accused are that they entered Mr. Cowan’s residence by breaking a window. The circumstances of the crime, as evidenced by the 9-1-1 call, were brief but intense. Two of the three accused were carrying weapons and these weapons were used on the victim. Mr. Cowan has some lasting injuries as a result of losing three to four teeth. sentence should be similar to sentences imposed on similar offenders in similar circumstances (s. 718.2(b)). [98] This is often referred to as the parity principle. As stated by Epstein J.A. in Rawn, 2012 ONCA 487 (CanLII)at para 18 [Rawn]: 18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21. [99] In the most recent case of our Court of Appeal in Debigare, there were three individuals. The facts are set out in paras. 3-9 in the decision of Caldwell J.A. as follows: The facts are not complex. At the time of the offence, Mr. Debigare had known Ms. Schachtel for few weeks. They were dating. Throughout their short relationship, Ms. Schachtel had disparaged her former boyfriend, Charles Hein, to Mr. Debigare as she held some bitterness towards Mr. Hein. For his part, Mr. McQuinn was simply friend to Mr. Debigare, but had only known him few months. On November 27, 2011, the respondents were drinking together in Weyburn, Saskatchewan. Ms. Schachtel opined that "someone should kick the shit out of" Mr. Hein. Mr. Debigare said he would do it. Neither Mr. Debigare nor Mr. McQuinn knew Mr. Hein. Mr. McQuinn drove the respondents to Estevan, where Mr. Hein lived with his then girlfriend, who was eight months pregnant. Mr. McQuinn drove Mr. Debigare's truck. The respondents arrived at Mr. Hein's mobile home shortly after 8:00 p.m. They all exited the truck, but Mr. Debigare told Mr. McQuinn to go back. Mr. McQuinn ignored him because he wanted to ensure his friend was not ganged up on in Mr. Hein's home. He said he wanted to "make this fair". Mr. Debigare armed himself with sledgehammer and Mr. McQuinn armed himself with box‑cutter‑style knife, which he had brought with him. They knocked at the door to Mr. Hein's mobile home and it was answered by resident of the home. Mr. Debigare rushed into the home wielding the sledgehammer. He was confronted by Mr. Hein's dog. The dog attempted to stop Mr. Debigare. Mr. Debigare struck the dog with the sledgehammer causing severe injury to the dog. Mr. Debigare continued into Mr. Hein's home while swinging the sledgehammer. Some damage was done to the home and its contents. Mr. McQuinn followed Mr. Debigare into the home. Mr. McQuinn had masked his face and was brandishing the knife. Mr. McQuinn found himself facing two men who were visiting the residence. He confronted them while holding his knife and told them to sit on the couch in the living room and not to move. He then followed Mr. Debigare to the back of the home. Once Mr. McQuinn had exited the living room, one of the men he left there called 9‑1‑1. Ms. Schachtel entered the home after Mr. Debigare and Mr. McQuinn. She was known to all of the individuals present in the home. Ms. Schachtel was screaming, "Charlie deserves this". Upon Ms. Schachtel's entry, one of the female occupants of the home retreated to back bedroom where her baby had been sleeping in crib. It appeared to her that someone had entered the baby's room. She locked herself and her baby in that bedroom until after the respondents had fled. Mr. Hein and his girlfriend were in their bedroom with the door closed. They heard the commotion caused by the respondents' entry to their home. Then, Mr. Debigare smashed their bedroom door off its hinges with the sledgehammer. Mr. Debigare entered the bedroom and began to punch Mr. Hein. Mr. Debigare said he "punched him out", although the assault was brief. Mr. McQuinn entered the bedroom while Mr. Debigare was assaulting Mr. Hein. Either Mr. Debigare or Mr. McQuinn pushed Mr. Hein's girlfriend down onto the bed. Ms. Schachtel then entered the bedroom and began to assault Mr. Hein's girlfriend. She struggled with her on the bed and then struck her repeatedly with pillow. While doing so, Ms. Schachtel screamed at Mr. Hein's girlfriend and said something about her being pregnant with Mr. Hein's child. The respondents then all left Mr. Hein's home. But, before doing so, Ms. Schachtel twice warned the occupants that if any of them said anything about the incident or called the police she and her accomplices would be back for retribution. In the end, Mr. McQuinn had to drag Ms. Schachtel out of the home. She stole blanket when she left. [100] None of the three accused had previous criminal record. Mr. Debigare was 23 years old and of Métis ancestry. He co-operated with the police and was remorseful. He had never been unemployed. Post-offence, he attended an alcohol treatment program. Mr. McQuinn was 25 years old. He co-operated with police and was remorseful. He was employed in the oil industry. Ms. Schachtel was 20 years old. She admitted to using alcohol and cocaine on regular basis. She had sought treatment but had been unsuccessful in addressing her addictions. She had some periods of employment. [101] The Court of Appeal set aside the suspended sentence imposed by the trial judge and substituted sentences of two years less one day for Ms. Schachtel followed by three years probation; 18 months for Mr. Debigare followed by 18 months probation and 10 months for Mr. McQuinn followed by 18 months probation. In doing so, Justice Caldwell said the following at paras. 41-42: 41 want to make it perfectly clear that in varying these sentences in this way am not suggesting the sentences now imposed are standard sentences to be followed in offences under s. 348(1)(b) which might be characterised as home invasions. The varied sentences are, in my opinion, lenient sentences where the leniency was called for chiefly by reason that none of the respondents had criminal record prior to their commission of this offence. 42 Moreover, the leniency of sentence is warranted with respect to Messrs. Debigare and McQuinn also by their respective post‑sentence conduct and by the plainly aberrant nature of their offending in this case. Restorative justice had role to play in their sentences in the circumstances and the rehabilitative efforts of Messrs. Debigare and McQuinn have had considerable tangible impact on the length and nature of their sentences as set out above. This is because their rehabilitative efforts have so obviously extended beyond the usual pre‑sentence promises of reform, which seem all too frequently forgotten following the imposition of lenient sentence. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)). [102] Balancing the various factors in order to arrive at an appropriate sentence is very difficult task for trial judge. As counsel for Mr. Foster so poignantly put it these were the worst five minutes of these young men’s lives five minutes they will pay for for the rest of their lives. [103] In C.A.M., 1996 CanLII 230 (SCC), [1996] SCR 500 at 566, the Court commented on the position of the trial judge at sentencing: .. sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of just and appropriate sentence is delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of sentencing judge should thus not be interfered with lightly. [104] In Debigare, Justice Caldwell found that the suspended sentences initially imposed were demonstrably unfit. He held that the suspended sentences imposed failed to satisfy the sentencing objectives of general denunciation and deterrence and they did not properly reflect the fundamental principle that sentence must be proportionate to the gravity of the offence and the offender’s moral culpability in committing it (para. 16). [105] Justice Caldwell further held that an offence pursuant to s. 348 where s. 348.1 was applicable would always mandate the placement of the sentencing objectives of denunciation, deterrence and protection of the public “at the foremost when judge is fashioning sentence which properly contributes to respect for the law and the maintenance of just, peaceful and safe society” (para. 20). [106] This is consistent with the approach taken by the Ontario Court of Appeal in Rawn. There, Justice Epstein (with Weiler J.A. and Watt J.A. concurring), said the following at para. 33 General deterrence and denunciation are the most important factors in the determination of sentence in case such as this one: see R. v. Nusrat, 2009 ONCA 31 (CanLII), 244 O.A.C. 241. Other, like‑minded people need to know that irresponsible use of motor vehicle on our highways will not be countenanced. sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment: R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] S.C.R. 941, at paras. 2‑5. [Emphasis added] [107] In Debigare, Justice Caldwell held that the facts before him put the offence at the lower end of violent home invasions. [108] will now consider the factors Justice Caldwell considered to be aggravating in Debigare in an attempt to compare them to the circumstances before me. Mr. Debigare and Mr. McQuinn did not know anyone in the house. Here, Mr. Manulak and Mr. Foster were known to the victim as result of their previous business dealings. Mr. Debigare and Mr. McQuinn armed themselves, thereby escalating the probability of serious personal injury. Here, Mr. Foster was armed with the imitation firearm and Mr. Manulak was armed with the roofing hammer. Mr. Hill was unarmed. None of these three accused were masked. Mr. Debigare overcame resistance to his entry to the home by the use of force, and Mr. Debigare severely injured the dog. In the case before me, all three accused entered the house without an invitation to do so. When Mr. Cowan did not grant them entry, Mr. Manulak broke window and gained entry that way. Mr. Manulak opened the door for the other two accused. [109] Justice Caldwell found that in Debigare, each of the accused were responsible for the events, although to different degrees. Mr. McQuinn was considered to be the least culpable and he masked himself, and armed himself and willingly participated in an assault on complete stranger after breaking into that stranger’s home. [110] comparison of the facts before me and those in Debigare would lead me to conclude that absent the imitation firearm, the facts of Debigare were generally more serious, the length of time during which the occupants of the house were being terrorized was longer and the actions of the accused involved more premeditation in Debigare. [111] Here, the fact that this is Mr. Hill’s first criminal offence is unusual, given that it is such serious offence. This is equally applicable to Mr. Manulak and to Mr. Foster who each had one previous conviction for drinking and driving which are offences of quite different nature. All three accused here are young men. They are all high school graduates and they have all gone on to become productive members of society. They co-operated with the police. They are all remorseful. They all consumed excessive amounts of alcohol on the night in question. [112] After the offence, all three accused have been bound by restrictive conditions for significant period of time approaching three years. There have been no reported breaches. Mr. Manulak has started successful roofing company with his twin brother, Jason. Mr. Manulak works long hours as his company continues to gain new clients. Mr. Hill, who has his journeyman’s status in sheet metal, has new employer. Mr. Foster has obtained his journeyman’s designation in plumbing. He has been promoted by his current employer and he supervises six man crew at various jobs. He has volunteered his time with PlayLotz Contracting, assisting in the building of playgrounds in low income areas of Regina. [113] In terms of the reasons for leniency in Debigare, the focus was on the accused’s lack of criminal record and post-sentencing conduct. Here, Mr. Hill has no criminal record and Mr. Manulak and Mr. Foster have no related records. All of them have had exemplary post-offence conduct. [114] In light of the position taken by the Court of Appeal in Debigare, and considering the principles of parity, I am prepared to extend leniency to Mr. Hill, Mr. Manulak and to Mr. Foster. However, the sentence impose will clearly denounce their unlawful conduct and will deter others from committing like offences. In my view, some period of incarceration is necessary to satisfy the requirement for denunciation and deterrence in committing this most serious offence. [115] All three accused received very positive pre-sentence reports. As the authors of some of the reports referenced conditional sentence as an option, it perhaps bears mentioning that conditional sentence is not available at law. [116] find that Mr. Hill was the least involved and is entitled to the greatest degree of leniency. This is acknowledged by the Crown. Mr. Manulak’s participation was more extensive in that he was armed with the roofing hammer and he physically broke into the house, and then let the others in. Mr. Foster is the most culpable of the three in that he carried the imitation firearm, for which he must serve mandatory minimum period of incarceration consecutive to any other sentence. But beyond that, he terrorized Mr. Cowan by placing this firearm in his mouth at the time threats were being made to the victim. This act alone is deserving of additional punishment to serve as deterrence to others. [117] Accordingly, I sentence Mr. Hill to a period of incarceration of ten months followed by a period of probation for eighteen months. The terms of the probation are the following: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [118] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. There will be an order forfeiting the imitation firearm pursuant to s. 491(1) of the Criminal Code. [119] I sentence Mr. Manulak to a period of incarceration of 11 months followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada. [120] Ancillary orders pursuant to s. 109, s. 487.051 and s. 737 of the Criminal Code are mandatory. [121] I sentence Mr. Foster to a period of incarceration of 12 months less one day on the break and enter charge and one year consecutive on the charge under s. 85(2)(a) of the Criminal Code to be followed by 18 months probation on the following terms and conditions: 1. He shall keep the peace and be of good behavior. 2. He shall appear before the court when required to do so by the court. 3. He shall notify his probation officer in advance of any change of name or address, and promptly notify his probation officer of any change of employment or occupation. 4. He shall report to probation office within seven days of his release from custody and thereafter as directed by his probation officer. 5. He shall attend, participate in and complete any counselling or programming which may include substance abuse management as directed by his probation officer. 6. He shall have no contact directly or indirectly with Scott Cowan except through a member of a law society in Canada.

HELD: This was an extraordinary event for all of the accused and nothing in the evidence suggested that they required rehabilitation or that incarceration would assist in rehabilitation. The victim did not provide a victim impact statement, but the court concluded that the event would have been terrifying for him. The gravity of the offence was high given the maximum sentence of life imprisonment. The court found the following mitigating factors: 1) guilty pleas; 2) the event was not planned in advance, it was prompted by alcohol use; 3) the assault was serious but brief; 4) the accused were all employed and contributing members of society; 5) the accused all accepted responsibility for the offence; and 6) the accused all complied with strict release conditions for three years. The aggravating factors were: 1) s. 348.1 of the Criminal Code was applicable to all accused even though their level of participation differed; 2) they entered the victim’s residence by breaking a window; 3) the crime was intense; 3) two of three accused had weapons and used them on the victim; and 4) the victim had some lasting injuries from losing three to four teeth. The court was prepared to extend leniency to the accused; however, some period of incarceration was found necessary to meet the objectives of deterrence and denunciation. A.H. was sentenced to 10 months incarceration, J.M. to 11 months incarceration, and N.F. to 12 months less a day incarceration for the break and enter charge and one year consecutive incarceration on the s. 85(2) charge. All accused were given an 18-month probation period to follow their incarceration. Terms of the probation included counselling as required and no contact with the victim.

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Q.B. A.D. 1994 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: TRENT KOEHLER and CINDY KOEHLER APPLICANTS (PLAINTIFFS) and PLEASUREWAY SALES (1973) LTD. and BEN RATKE RESPONDENTS (DEFENDANTS) AND BETWEEN: TRENT KOEHLER and CINDY KOEHLER APPLICANTS (DEFENDANTS BY COUNTERCLAIM) and PLEASUREWAY SALES (1973) LTD. RESPONDENT (PLAINTIFF BY COUNTERCLAIM) K.J.W. Sandstrom for the applicants J.H. Gillis for the respondents JUDGMENT HRABINSKY J. May 27, 1994 This is an application for an order setting asidethe default judgment and writ of execution issued against theapplicants (plaintiffs, defendants by counterclaim) pursuantto Queen\'s Bench Rule 346 and for an order setting aside allgarnishee summonses issued pursuant to Queen\'s Bench Rule 441and s. 10 of The Attachment of Debts Act, R.S.S. 1978, c. A-32. FACTS The applicants, acting on their own but with some obvious assistance from solicitor in the preparation of their statement of claim, commenced an action on February 23, 1994 against the respondents who were represented by counsel. On March the applicants were served with notice of intention to defend and on March 14 were served with statement of defence and counterclaim. On March 18 the respondents filed two separate affidavits for garnishee summons before judgment naming Bank of Nova Scotia and Saskatoon Credit Union respectively as garnishees. As result the Bank of Nova Scotia paid into court the total amount of $2,922.26. The applicants did not file statement of defence to the counterclaim within the time limit. They were noted for default on April and judgment for the sum of $7,670.43 was entered against them on April 8. On the same date the respondents filed praecipe for writ of execution. The respondents, contemporaneously with the applicants' application, apply for payment out of the monies garnisheed. At the time that the applicants were served with the statement of defence and counterclaim, they were not represented by counsel nor did they know that they had to serve and file statement of defence to the counterclaim. However, immediately upon being served with the garnishee summons on April they contacted solicitors who searched the file and discovered that the applicants had been noted for default on April 6. On April 28 the applicants' solicitors filed notice of motion requesting an order setting aside the noting for default and an order setting aside the garnishee THE LAW Queen's Bench Rule 346 reads: 346 Subject to Rule 271 any judgment by default, whether by reason of non-delivery of defence or non-compliance with any of these rules or with any order of the court, may be set aside or varied by the court upon such terms as to costs or otherwise as the court may think fit. In Klein v. Schile, 1921 CanLII 107 (SK CA), [1921] W.W.R. 78 (Sask. C.A.) at pp. 79-80, Lamont J.A. stated: The circumstances under which Court will exercise its discretion to set aside judgment regularly signed are pretty well settled. The application should be made as soon as possible after the judgment comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been wilful. Tomlinson v. Kiddo, Sask. L.R. 132, W.W.R. 93, 1914 CanLII 139 (SK CA), 29 W.L.R. 325; Mills v. Harris, Sask. L.R. 114. The application should be supported by an affidavit setting out the circumstances under which the default arose and disclosing defence on the merits. Chitty's Forms, 13th ed., p. 83. It is not sufficient to merely state that the defendant has good defence upon the merits. The affidavits must show the nature of the defence and set forth facts which will enable the Court or Judge to decide whether or not there was matter which would afford defence to the action. Stewart v. McMahon, Sask. L.R. 209, W.L.R. 643. If the application is not made immediately after the defendant has become aware that judgment has been signed against him, the affidavits should also explain the delay in making the application; and, if that delay be of long standing, the defence on the merits must be clearly established. Sandhoff v. Metzer, W.L.R. 18. In this case the application to set aside thedefault judgment was made as soon as possible after thejudgment came to the attention of the applicants who haveexplained to the satisfaction of this court their failure todefend the counterclaim. The applicants have clearly shownthat they have a good defence on the merits to thecounterclaim. The applicants did not delay their applicationto set aside the judgment so that it cannot be argued thatdelay will cause irreparable injury to the respondents. There shall be an order setting aside the default judgment, the noting for default and the writ of execution. The applicants will have ten days from this date to serve and file statement of defence to the counterclaim. now turn to the application to set aside the garnishee summons. This application is made on the following grounds: 1.That the amount of the liquidated debtor demand in the affidavit for garnishee summons is inconsistent with the previous position of the Defendant (Plaintiff by Counterclaim); 2.That the affidavit for garnishee summons does not strictly comply with Section 3(2) of The Attachment of Debts Act. Section 3(2) reads: (2) The summons shall be issued by the local registrar upon the plaintiff or judgment creditor, his solicitor or agent, filing an affidavit; (a) showing the nature and amount of the claim against the defendant or the amount remaining due and unsatisfied under the judgment, and swearing positively to the indebtedness of the defendant or judgment debtor to the plaintiff or judgment creditor; (b) stating, that, to the best of the deponent's information and belief, the proposed garnishee, naming him, is indebted to the defendant or judgment debtor, or, if the moneys sought to be attached are wages or salary, that, to the best of the deponent's information and belief, the defendant or judgment debtor was or is employed by the garnishee and where and in what capacity the defendant or judgment debtor was or is so employed. The pertinent paragraphs of the affidavit for garnishee summons read as follows: 1.THAT am the President of Pleasureway Sales (1973) Ltd., the above-named Defendant and as such have personal knowledge of the facts and matters hereinafter deposed to save where stated to be on information and belief, and where so stated do verily believe the same to be true. 2.THAT the above-named Trent Koehler and Cindy Koehler are justly and truly indebted to Pleasureway Sales (1973) Ltd., jointly and severally, in the sum of $7,192.49, constituting the balance due and owing by them to Pleasureway Sales (1973) Ltd., as set forth in paragraph 11 of the Statement of Defence and Counterclaim filed by Pleasureway Sales (1973) Ltd. in this matter. 3.THAT hereby expressly affirm that Trent Koehler and Cindy Koehler expressly agreed to pay Pleasureway Sales (1973) Ltd. sums totalling $18,520.31, that they have paid Pleasureway Sales (1973) Ltd. the sum of $11,327.82 on account thereof, and that they accordingly are justly and truly indebted to Pleasureway Sales (1973) Ltd. in the sum of $7,192.49. 4.THAT to the best of my information and belief, the Bank of Nova Scotia, at its branch located at 2414 22nd Street West, in the City of Saskatoon, in the Province of Saskatchewan, is indebted to the above-named Trent Koehler. Counsel for Pleasureway Sales (1973) Ltd. submits that the amount of the liquidated debt or demand in the affidavit for garnishee summons is inconsistent with the previous position of Pleasureway Sales (1973) Ltd. In support of this submission Trent Koehler has exhibited to his affidavit copy of summons issued by Pleasureway Sales (1973) Ltd. in Provincial Court pursuant to The Small Claims Act, S.S. 1988-89, c. S-50.1 wherein the amount claimed is $6,354.62 and not $7,192.49 as set out in the affidavit for garnishee summons. There must be strict compliance with s. 3(2). Theaffidavits filed by the applicants challenging the affidavitfor garnishee summons have no bearing on whether the garnisheesummons should be set aside. If the affidavit for garnishee summons complies with s. 3(2) that is the end of the matter. On an application such as this, it is not the function of judge to look into the merits of the case. Mr. Justice Sherstobitoff in Coast Paper v. Craft Litho Ltd. and Hartshorn (1990), 1990 CanLII 7766 (SK CA), 83 Sask. R. 288, stated at p. 291: The issues to be tried did not arise from any irregularity or ambiguity in the appellant's affidavit in support of the garnishee, but from the respondent's affidavit in support of the motion to set aside and its statement of defence. The judge weighed the competing affidavits against each other and decided that there were triable issues. If the order made on that basis were upheld, no prejudgment garnishee could stand in any case where defendant chose to contest the claim, and the purpose of s. would be defeated. The existence of triable issues as to the amount owing, or defences which, if proven, would defeat the claim, is not ground for setting aside garnishee so long as s. of the Act has been complied with. In this case the affidavit for garnishee summonscomplies strictly with s. 3(2). It shows the nature and amount of the claim against the defendants by counterclaim. The deponent swears positively to the indebtedness of the defendants by counterclaim and states that to the best of the deponent's information and belief, the named proposed garnishee is indebted to the defendants by counterclaim. The application to set aside the garnishee summonsis dismissed. Lastly, turn to the application of Pleasureway Sales (1973) Ltd. for an order pursuant to s. 14(2) of The Attachment of Debts Act for payment out of court to Pleasureway Sales (1973) Ltd. of all of the monies paid into court pursuant to the garnishee summons before judgment. Section 14(1) of The Attachment of Debts Actprovides that no order shall be made for payment out of anymoney paid into court by the garnishee when a garnisheesummons issues prior to judgment until the plaintiff hasrecovered a judgment against the defendant. Since thejudgment has been set aside the application for payment out ispremature and is therefore dismissed without prejudice to re-apply. The respondents shall have only the taxable costs of entering judgment and the disbursements in relation thereto. However, there shall be no other costs on either of the two motions.

1)Application by plaintiffs (defendants by counterclaim) for an order setting aside the default judgment, writ of execution and 2)garnishee summonses issued against them. 3)Application by respondents (plaintiffs by counterclaim) for payment out of the monies garnisheed. HELD: 1)Application allowed. At the time that the applicants were served with the statement of defence and counterclaim, they were not represented by counsel nor did they know that they had to serve and file a statement of defence to the counterclaim. However, immediately upon being served with the garnishee summons they contacted solicitors. The application to set aside the default judgment was made as soon as possible after the judgment came to the attention of the applicants who have explained to the satisfaction of the court their failure to defend the counterclaim. The applicants have clearly shown that they have a good defence on the merits to the counterclaim. The applicants did not delay their application to set aside the judgment so that it cannot be argued that delay will cause irreparable injury to the respondents. 2)Application to set aside guarishee summons dismissed. There has been strict compliance with s.3(2) of the Act. The affidavits filed by the applicants challenging the affidavit for garnishee summons have no bearing on whether the garnishee summons should be set aside. It is not the function of a judge to look into the merits of the case on such an application. 3)Application for payment out of monies garnisheed dismissed. Section 14(1) of The Attachment of Debts Act provides that no order shall be made for payment out of any money paid into court by the garnishee when a garnishee summons issues prior to judgment until the plaintiff has recovered a judgment against the defendant. Since the judgment has been set aside the application for payment out is premature and is therefore dismissed without prejudice to reapply.

a_1994canlii4917.txt

J. Date: 20010927 Docket: S.P. 06188 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as Town of New Glasgow v. MacGillivray Law Office Inc. et al 2001NSSC164] BETWEEN: TOWN OF NEW GLASGOW and MACGILLIVRAY LAW OFFICE INCORPORATED, MACGILLICUDDY’S RESTAURANT INC. and JAMIE FRANK MACGILLIVRAY Respondents DECISION HEARD BEFORE: The Honourable Justice John M. Davison PLACE HEARD: New Glasgow, Nova Scotia DATES HEARD: September 27, 2001 DECISION DATE: September 27, 2001 (Orally) WRITTEN RELEASE: November 15, 2001 COUNSEL: David F. Wallace, Q.C. for the Applicant Jamie MacGillivray for the Respondents DAVISON, J.: (Orally) [1] The Town of New Glasgow (the Town) makes application pursuant to s.266 of the Municipal Government Act, 1998 S.N.S. c.18 directing the removal of a ground sign erected at 152 Provost Street in New Glasgow. It is alleged that the erection of the sign violates the Town of New Glasgow’s Municipal Planning Strategy and Land Use By-law. Section 266(3) of the Municipal Government Act provides: (3) The Supreme Court may hear and determine the matter at any time and, in addition to any other remedy or relief, may make an order (a) restraining the continuance or repetition of an offence in respect of the same property; (b) directing the removal or destruction of any structure or part of structure that contravenes any order, regulation, municipal planning strategy, land-use by-law, development agreement or statement in force in accordance with this Part and authorizing the municipality or the Director, where an order is not complied with, to enter upon the land and premises with necessary workers and equipment and to remove and destroy the structure, or part of it, at the expense of the owner; (c) as to the recovery of the expense of removal and destruction and for the enforcement of this Part, order, regulation, land-use by-law or development agreement and for costs as is deemed proper, and an order may be interlocutory, interim or final. [2] The respondents’ position is that the by-laws are a violation of the rights of the respondents under s. 2(b) of the Charter of Rights and Freedoms and the violation is reasonably and demonstrably justifiable within the meaning of s. 1 of the Charter. The application was supported by two affidavits of Gary Rankin who is the Chief Administrative Officer of the Town of New Glasgow. The affiant states that in the records of the Town, MacGillivray Law Office Inc. is the owner of 152 Provost Street, New Glasgow, Nova Scotia and that the alleged offending sign was erected in November 2000 and it advertises the law office business of MacGillivray Law Office Inc. and the restaurant business of MacGillicuddy’s Restaurant Inc. One of the respondents is Jamie Frank MacGillivray who is acting as the counsel for the corporate respondents. [3] The affidavit indicates that Mr. MacGillivray was advised that development permit was required to permit the erection of the sign, and that would not be granted under the Land Use By-law since the sign was third party sign in that it was situate on property and advertising businesses situate on other properties. The second affidavit of Mr. Rankin would indicate that Mr. MacGillivray advised that he would not remove the sign and that he was further advised that the sign offended the Town’s Land Use By-law in that it was erected without development permit. The sign also exceeded an area that was permitted by the downtown core zone and the sign was third party sign which was not permitted in the downtown core zone. [4] The subsequent affidavit of Mr. Rankin would indicate that he has made search of the Registry of Deeds and has been advised that there have been conveyances of land and that the relevant land is now owned by MacGillivray Properties Ltd., company incorporated on December 5, 2000. [5] The properties are located within the downtown core (C-1) zone pursuant to the Town of New Glasgow’s Municipal Planning Strategy and Land Use By-law. The sign consists of two faces and the maximum area for such sign under the by-laws is 50 square feet. The sign exceeds that area. [6] There is no dispute that the respondents admit that the ground sign offends the by-laws in that it was erected without development permit, it has two sign faces which exceed in area that is permitted in the downtown core zone, and it is third party sign which is not permitted in the downtown core zone. In view of these admissions and in view of not wishing to infringe on the time of counsel, will not take the time to repeat the wording of the by-laws. [7] The issues are whether or not the provisions of the by-laws offend s. 2(b) of the Canadian Charter of Rights and Freedoms, and if they do infringe on the respondents’ freedom of expression, are the limits imposed demonstrably justified pursuant to s. of the Charter. [8] It is clear from Irwin Toy Ltd. v. Quebec A.G., 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 that advertising is a form of expression and falls within the scope of s. 2(b) of the Charter. [9] refer to Nichol (Township) v. McCarthy Signs Co., 1997 CanLII 1680 (ON CA), [1997] 33 O.R.(3d) 771 which is decision of the Ontario Court of Appeal and which has facts and issues similar to the proceeding before me. In that case the by-laws prohibited the erection of sign without permit and stipulated that sign had to relate to the property on which it was located. In that case the respondent Town conceded that the by-law limited freedom of expression, but the Court of Appeal determined the by-law constituted reasonable limit on freedom of expression under s. of the Charter. [10] The objective of the by-law in that case is similar to the objective in the proceeding before me. It was to reduce the proliferation of billboard advertisement and to prohibit distraction to motorists. [11] Under the heading, “signs”, in the New Glasgow Planning Strategy, it is said that signs can have significant impact upon the esthetic character of the Town. In some circumstances, signage can be distracting and poses safety concerns to both pedestrians and vehicular operators. In an attempt to maintain an esthetically pleasing environment and minimize adverse impacts on adjacent properties and reduce safety concern, some degree of control over signage will be undertaken by the Town. There is also reference in the Land Use By-law under paragraph 3.6.1 which is headed “Purpose”. The reference reads: The purpose of the following sign regulations is to: (a) support commercial use as ability to attract solid customer base; and (b) maintain the character of the Town by minimizing the adverse impacts of signs on adjacent properties and the street scape; [12] As stated, the objectives of the by-laws in the McCarthy Sign case are similar to the objectives of the by-laws in this proceeding, and are found to be pressing and substantial. The opinion of the court was the limiting measures of the by-law were rationally connected to the objective. It was determined that the means used by the township to achieve its goal through the by-law was reasonable and proportionate to the infringement of the appellant’s right of freedom of expression. [13] Reference is also made to the R. v. Pinehouse Plaza Pharmacy Ltd. (1991), 1991 CanLII 7949 (SK CA), 62 C.C.C. (3d) 321, and in that case the Saskatchewan Court of Appeal stated: There can be no doubt of the need for such policy in an urban industrial society. Regulation of land use to ensure the health, welfare and general well‑being of the inhabitants is of primary importance. [14] In my view there is no question that in municipality it is desirable to regulate the erection of signs both from the point of view of the safety of motorists and pedestrians and from the point of view of maintaining the attractiveness of community. The by-laws in this case, I find, are both pressing and substantial. [15] The issue turns to whether the limiting measures of the by-law are rationally connected to the objective, and agree with the comments of the solicitor for the applicant Town, as contained in his written brief, that the limiting measures of the by-law are rationally connected to the objective. The by-law serves to restrict overly large advertisements by regulating the size of signs and to reduce the proliferation of signs by prohibiting those not relating to the property on which they are located or to business or activity lawfully conducted thereon. Further, the restrictions on the size of the signs are not arbitrary. Most importantly, there is an overall development plan in place which organizes the Town into different zones, with varying restrictions on signs, depending on the zone. [16] find that the restrictions on the freedom of expression rights are rational as they are based on preserving and facilitating the Town’s planning goals. [17] I find that the by-laws also have minimal impairment on the rights of the respondents. It does not completely prohibit signs and permits a large range of signs with certain restrictions upon size in specific areas in accordance with its objectives. The restrictions regulate how and where the signs can be placed and does not prevent advertising, but only limits it. [18] When we look at the Charter, s. reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in free and democratic society. [19] The onus of proving that limit on right or freedom guaranteed by the Charter is reasonable and demonstrably justified in free and democratic society, rests upon the party seeking to uphold the limitation. In that respect, refer to R. v. Big Drug Mart Limited, 1985 CanLII 69 (SCC), [1985] S.C.R. 295. [17] To establish limit on Charter right as reasonable and demonstrably justified in free and democratic society, two separate criteria must be met. First, the objective of the measure responsible for limiting the Charter right or freedom must be of sufficient importance to warrant overriding constitutionally protected right or freedom, and second, the means chosen to achieve the objective must be reasonable and demonstrably justified when considered under form of proportionality test which requires the Court to balance the interests of society and those of the individuals and groups whose rights have been violated. See R. v. Oakes, 1986 CanLII 46 (SCC), [1986] S.C.R. 103. [20] The primary objectives of the by-law are to develop and maintain a distinct aesthetic character of the downtown core zone, minimize adverse impacts on adjacent properties and reduce safety concerns such as distractions that affect both pedestrian and vehicular traffic. [21] agree with counsel for the Town that unrestricted advertising signs would quickly present problems to the Town. [22] find that these objectives are matter of pressing and substanial concern. They ensure the orderly development of commercial land use by prohibiting overly large billboard type signs and by reducing the proliferation of signs with the requirement that the signs relate to the property on which they are located. [23] In R. v. Pinehouse Plaza Pharmacy Ltd. (supra) the Saskatchewan Court of Appeal said: ... Sign restrictions facilitate the preservation of the primary/ ancillary use distinctions. They are an important means of carrying out city planning objectives and preserving zone use. Sign restrictions for ancillary uses can be regarded as an integral part of the pressing and substantial objective of orderly city development through urban planning ... The Court also said: ... There can be no doubt of the need for such policy in an urban industrial society. Regulation of land use to ensure the health, welfare and general well‑being of the inhabitants is of primary importance. [24] single judge of the British Columbia Supreme Court in Prince George (City) v. A.F.N. Holdings Ltd. (1986), B.C.J. No. 2729 stated: It is obvious that in municipality it is desirable, if not necessary, to regulate the erection of signs on private property. The alternative is potential chaos and visually unappealing community. [25] One must look at the proportionality test with reference to the comments of Dickson C.J.C. in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] S.C.R. 103 where he said at p. 138: Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of free and democratic society. [26] His comments were referred to in R. v. Edwards Books and Art et al., 1986 CanLII 12 (SCC), [1986] S.C.R. 713, LaForest J. stated at p. 794: 176 Let me first underline what is mentioned in the Chief Justice's judgment, that in describing the criteria comprising the proportionality requirement, the Court has been careful to avoid rigid and inflexible standards. That seems to me to be essential. Given that the objective is of pressing and substantial concern, the Legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is practical one. The Constitution must be applied on realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane. In interpreting the Constitution, courts must be sensitive to what Frankfurter J. in McGowan, supra, at p. 524 calls "the practical living facts" to which legislature must respond. That is especially so in field of so many competing pressures as the one here in question. ...having accepted the importance of the legislative objective, one must in the present context recognize that if the legislative goal is to be achieved, it will inevitably be achieved to the detriment of some. Moreover, attempts to protect the rights of one group will also inevitably impose burdens on the rights of other groups. There is no perfect scenario in which the rights of all can be equally protected. 178 In seeking to achieve goal that is demonstrably justified in free and democratic society, therefore, legislature must be given reasonable room to manoeuvre to meet these conflicting pressures. Of course, what is reasonable will vary with the context. Regard must be had to the nature of the interest infringed and to the legislative scheme sought to be implemented. [27] The operation of the flexible standard of review can be seen in R. v. Jones, 1986 CanLII 32 (SCC), [1986] S.C.R. 284 where it was found that compulsory certification of school curriculum violated s. 2(a) of the Charter which sets out everyone has the freedom of religion, but the court held the denial was reasonable and described the infringement of certification as “minimal intrusion”. The court stated at p. 299: To permit anyone to ignore (the requirement for certification) on the basis of religious conviction would create an unwarranted burden on the operation of legitimate legislative scheme to assure reasonable standard of education. [28] The limiting measures of the by-law are rationally connected to the objective and it effectively addresses unrestricted use of available space in a way that maximizes the effective use of signs. Any restrictions on the defendant’s freedom of expression are rational as they are based on preserving and facilitating the Town’s planning goals and they are of benefit to the other citizens of the community. [29] The seriousness of Charter violation is determined by the extent and degree to which limiting measure entrenches upon integral principles of free and democratic society. See R. v. Oakes, supra. One looks at the degree or extent the violation offends the basic purpose of the Charter and one looks at the extent or degree to which the violation offends the purpose of the Charter right infringed. [30] The general purpose of the Charter has been described in many ways. It has been said to regulate the relationship between an individual and government and to restrain government action and to protect the individual (Retail, Wholesale and Department Store Union, Local 580 [R.W.D.S.U.] v. Dolphin Delivery Ltd., 1986 CanLII (SCC), [1986] S.C.R. 573). It has been said the purpose is “to protect individuals from unjustified state intrusion upon their privacy” (Hunter v. Southam, [1984] S.C.R. (pg. #). [31] In this proceeding any restriction on the respondents’ freedom of expression are rational and is based on preserving and facilitating the planning goals of the Town. [32] The by-law regulates the relations various citizens of the Town have with each other and has little connection with the relationship between individuals and government. [33] agree with counsel for the Town that the by-law uses means which least affects the defendants freedom of expression while still achieving its objectives and which objectives are benefit for the community. It is not complete prohibition of signs. It lists signs which are permitted in all zones and for which no permit is required. The by-law permits broad range of signs and merely places certain restrictions on specific zones in accordance with the objectives. Primarily restrictions regulate how and where signs can be displaced and those limitations do not prevent advertising in the downtown core zone. [34] There has to be applied the proportionality test which involves an analysis of the means chosen to achieve legislative objective in light of the benefit to society and the adverse impact upon the respondents in this application. [35] refer to Canadian Mobile Sign Association v. Burlington (City), 1997 CanLII 4453 (ON CA), [1997] O.J. No. 2870, decision of the Ontario Court of Appeal which found that sign restrictions which were similar to those in this proceeding were proportionate to their objectives. This case involved challenge to municipal by-law regulating the use of portable signs. The court found that the means chosen by the City to achieve its stated objective in dealing with the problems created by the signs were proportionate to the objectives since the right of the appellant in that proceeding was only minimally impaired and the by-law did not operate to completely prohibit such signs. [36] In Nichol (Township) v. McCarthy Signs Co. (supra) the Ontario Court of Appeal found that the limits on the rights and freedoms guaranteed by section 2(b) were demonstrably justified pursuant to s. of the Charter. In that case, it was found that the objective of the by-law was pressing and substantial and its effect had the purpose of reducing proliferation of advertisements adjacent to highway, and they found that the limiting measures to the by-law was rationally connected to the objective. They also found that the means used by the Town to achieve its goal were reasonable and proportionate to any infringement to the right of freedom of expression and that there was proportionality between the effects of the measures which limit the right and the objective of the by-law. The commercial interest of the land owner in advertising was protected, and the limitation did not prevent all expression, but only required that such expression relate to particular location in order to advance the legitimate object of protecting the scenic characteristics of the community. [37] find that there was proportionality between the effects of the measures limiting the respondents’ freedom of expression and the objective of the by-law. It really only required that any limitation did not prevent all expression, but only that relating to location in order to advance the objective of protecting the community. [38] am of the opinion that limits on the rights and freedoms guaranteed by s. 2(b) of the Charter are demonstrably justified pursuant to s. of the Charter. [39] The application is allowed and an order will issue pursuant to s. 266(3) of the Municipal Government Act directing the respondents to remove the ground sign. If not removed within 15 days, the Town can enter upon the land and remove the sign at the expense of the respondents. [40] Costs will be awarded at $1,500 against all respondents.

The applicant applied for an order directing the removal of a ground sign which violated its' Municipal Planning Strategy and Land Use By-laws. The respondents argued that the applicant's by-law violated their rights under s. 2(b) of the Charter. Application allowed; respondents directed to remove the ground sign; if the sign is not removed within fifteen days, the Town can enter upon the land and remove the sign at the expense of the respondents. Although advertising is a form of expression and falls within the scope of sec. 2(b) of the Charter, the purposes of the by-laws (maintaining a distinct aesthetic character of the downtown, minimizing adverse impacts on adjacent properties and reducing safety concerns) were both pressing and substantial and the limiting measures were rationally connected to the objectives. The by-laws had a minimal impairment on the rights of the respondents, as advertising was not prohibited but only limited.

2_2001nssc164.txt

S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Freeman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent Denise C. Smith for the Appellant R.K. Murray Judge for the Respondent Appeal Heard: February 4, 1992 Judgment Delivered: February 19, 1992 THE COURT: Appeal allowed, verdict of acquittal set aside, conviction entered on the charge set forth in the Information and matter remitted to trial judge for imposition of sentence, per reasons for judgment of Hallett, J.A., Clarke, C.J.N.S. and Freeman, J.A. concurring. HALLETT, J.A. This is an appeal from the acquittal of the respondent on a charge of assaulting his wife. The evidence indicates the respondent had come to visit his estranged wife on August 18, 1990. He complained of being tired and suffering from insomnia. She gave him sleeping pill at about 1:00 p.m. and told him that he should not consume alcohol. The respondent left but returned about 4:00 p.m. and at that time was in possession of quart of whiskey. He left shortly thereafter taking the whiskey with him. At approximately 2:00 a.m. the following morning he returned. His estranged wife had been asleep on the couch without any clothes on. She testified that the respondent was intoxicated. He got angry with her when she asked him what he was doing and he started to leave. She tried to prevent him from leaving as she did not want him to drive motor vehicle in an intoxicated condition. She pursued him into the hall. She testified that he hit her and butted out cigarette on her hand. He then lifted her up in an extremely crude manner and pushed her against the wall. Asked what then happened she testified: "he wanted me to go put something on in case someone come up the hallway and so we both went upstairs and put something on and we sat sat on the couch and he went on my bed and passed out...." In giving his decision acquitting the accused the learned trial judge stated: "The charge, as say, is on the face of it serious one. The behaviour of the accused at the time in question was, as described by Mrs. Saulnier, completely irrational and entirely out of character. She had earlier in the day administered sleeping pill to the accused and cautioned him against drinking. He nonetheless did drink. He doesn't know how much, he doesn't remember anything of the incidents which transpired from the time he went out that evening to have some drinks at bar at the Grand Hotel until the next morning when he woke up in his wife's apartment. It strikes me that the behaviour is all the more bizarre since the parties were reunited in their matrimonial relationship not long after this incident. There obviously is an affection displayed between them today in the court room. can't imagine what would prompt the behaviour of the accused to behave in the fashion he did towards his wife who is obviously attractive and who he obviously has some substantial regard for. Counsel for the accused argues that there is defence of automatism which would apply in these circumstances, the accused not understanding or appreciating what he was doing, that he suffered from delusions, that he apparently thought his wife was sack of potatoes or something, at the time. I'm not satisfied beyond reasonable doubt that he had the intent to assault his wife, or even to strike her." should note that the argument made at trial by counsel for the respondent that the respondent thought his wife was sack of potatoes or something at the time he was lifting her and pushing her against the wall was not supported by the evidence. The respondent testified that after he left his estanged wife's place that afternoon he received call to go back to work; he then went out drinking with some friends at the Grand Hotel. He has no recollection of anything that took place after that; his next recollection was getting phone call the following day to go to work. The Crown appeals on the following ground: "THAT the learned trial Judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation." The Crown asserts that there was no evidentiary basis for the trial judge's finding that he had reasonable doubt that the respondent had the intent to assault his wife. Therefore, one must ask whether the evidence of the respondent's state of intoxication supports finding of lack of intent to commit the assault on his wife. The leading case in Canada respecting the defence of drunkenness in relation to general intent offences, of which common assault is one, has been the decision of the Supreme Court of Canada in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29, 37 C.R.N.S. 60, [1977] W.W.R. 628, 13 N.R. 592. The decision has generally been interpreted as meaning that the defence of drunkenness has no application in general intent offence. In Bernard v. The Queen (1988), 1988 CanLII 22 (SCC), 45 C.C.C. (3d) the majority of the Supreme Court of Canada did not accept the appellant's invitation in that case to overrule the Leary decision. McIntyre J. with Beetz J. concurring re‑affirmed the distinction between general and specific intent offences and confirmed the Leary decision that the defence of intoxication has no application in offences of general intent. However, Wilson J., with L'Heureux‑Dube J. concurring, agreed that the Leary decision should not be overruled but felt that the Leary decision, properly understood, did not prevent an accused from relying on evidence of voluntary intoxication to negative the minimal intent required for general intent offences. Justice Wilson concluded that the Crown must prove an accused applied force intentionally in the case of an assault charge but to warrant acquittal based on intoxication the evidence of intoxication must be such that it shows an accused to have an absence of awareness akin to state of insanity or automatism. Therefore, in her opinion, it is only in cases of extreme drunkenness that evidence of intoxication is capable of raising reasonable doubt on the issue of intent in general intent offence. The other three members of the court, Dickson C.J.C., Lamer, J. and La Forest J. were of the opinion that the rule in Leary that defence of voluntary drunkenness has no application to general intent offences should be overruled. In R. v. Quin, 1988 CanLII 21 (SCC), 44 C.C.C. (3d) 570 which was handed down on the same date as the Bernard decision, the same panel of judges reached similar results in connection with whether or not the defence of drunkenness ought to have been available to the accused who in the Quin case broke and entered dwelling house and committed an assault causing bodily harm. It too was case of self‑induced intoxication. In the course of concluding that the defence of drunkenness was not available Wilson J. stated at p. 575: Although, as the Chief Justice notes, there was considerable evidence from both the appellant himself and from an expert witness that the appellant was "very drunk and acting very much out of character", there was no evidence of such extreme intoxication as to negate an aware state of mind as in the case of insanity or automatism. Accordingly, the rule in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29 (S.C.C.), should, in my view, have been applied by the trial judge. One can draw the following conclusions from the Bernard decision. The Leary decision has not been overruled. The distinction between specific and general intent offences has been preserved. In general intent offence the Crown need only prove beyond reasonable doubt that the accused had the intent to perform the actus reus of the offence. This intent can be inferred from the acts of the accused; it is minimal intent that he consciously did the act that constitutes the offence. agree with the conclusion reached by Madam Justice Wilson in the Bernard case where, after reviewing the comments made by Fauteux J. and Ritchie J. in R. v. George (1960), 1960 CanLII 45 (SCC), 128 C.C.C. 289, [1960] S.C.R. 871, 34 C.R. (S.C.C.) and the comments of Pigeon J. in the Leary decision respecting the intent required to be proven in offences of general intent, she stated at p. 41: "I believe that the Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. view it as preferable to preserve the Leary rule in its more flexible form as Pigeon J. applied it, i.e., so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to state of insanity or automatism. Only in such case is the evidence capable of raising reasonable doubt as to the existence of the minimal intent required for the offence. would not overrule Leary, as the Chief Justice would, and allow evidence of intoxication to go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence." For the policy reasons enunciated by McIntyre J. in the Leary case and the view of Wilson J. which I have quoted, I am of the opinion that voluntary intoxication of a person cannot be considered as raising a reasonable doubt as to his intent in connection with a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus of the offence because his state of awareness was akin to automatism or insanity. This minimal intent requires that an accused perform conscious as opposed to accidental or unconscious acts. There will rarely be case in which the evidence will support finding that self‑induced intoxication caused an accused to be in so‑called state of automatism that would lead to finding of reasonable doubt as to the intent required to prove general intent offence. should note that the constitutionality of the common law rule that drunkenness is not defence to general intent offence was not raised by Notice of Contention on this appeal. In R. v. Penno, (1991) 1990 CanLII 88 (SCC), 115 N.R. 249 Lamer C.J.C. directed his mind to the effect of the majority decisions in the Bernard case. He stated at paragraph 75: "I conclude, therefore, that only minority [McIntyre J. with Beetz concurring] in Bernard expressed conclusive opinion as to the constitutionality of the rule denying defence of intoxication for all general intent offences. In cases where the intoxication would succeed in raising reasonable doubt as to an element of general intent offence, the question is, in my opinion, still open for this court to decide." In same same case Wilson J. commented at paragraph 33: "In R. v. Bernard, 1988 CanLII 22 (SCC), [1988] S.C.R. 833; 90 N.R. 321, this court held that denying the defence of intoxication in the case of an offence of general intent does not violate the Canadian Charter of Rights and Freedoms at least insofar as cases not involving 'substituted' mens rea are concerned. Accordingly, if Chief Justice Lamer's reasons in this case are not confined to "substituted" mens rea cases, which they do not appear to be, it would appear that he is reopening the issue in Bernard. While this is, of course, perfectly open to him to do, tend to the view that Bernard was correctly decided. remain of the view that intoxication falling short of insanity or automatism is not defence to crimes of general intent. The defence of intoxication is, of course, available in the case of crimes of specific intent." At this time the two majority opinions in the Bernard case remain the law of Canada. Interpreting them in manner most favourable to the respondent, the majority opinions at least stand for the proposition that voluntary drunkenness is not generally defence to general intent offence but could be defence if the intoxication has induced state of automatism or insanity. In the Penno case Justice Wilson expressed the rationale for this rule at paragraph 36: "Intoxication has traditionally been viewed as relevant to mens rea. Certainly this was so in Bernard where, as already mentioned, it was held that the defence of intoxication was available only in relation to crimes of specific intent and not to crimes of general intent. The rationale in support of this finding was that intoxication could affect person's ability to foresee the consequences of an act, which is requirement for crimes of specific intent, but that, generally speaking, intoxication could not deprive person of the ability to know that he or she was committing the act, which is the minimal requirement for crimes of general intent." The learned trial judge found that he was not satisfied beyond reasonable doubt that the respondent had the intention to assault his estranged wife. As previously noted, the Crown asserts that the learned trial judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation for the defence. The evidence of the respondent's wife leads to the inference that the respondent had driven his car to her residence. Her evidence proves that he was extremely intoxicated and did not seem "like himself". There was no evidence as to the strength of the sleeping pill that he had taken. There was no evidence as to the amount of alcohol he drank on the day in question. The respondent simply has no recollection. There is no medical evidence as to the affect the sleeping pill and his drinking would have had on him. It would have added credibility to the defence theory that the respondent acted as if his wife was sack of potatoes if there was evidence that the respondent customarily used sacks of potatoes as punching bags and ashtrays but there was no such evidence to explain why he hit his wife and butted out cigarette on her hand. Likewise, there was no evidence that he customarily spoke to sacks of potatoes or was concerned about them not being properly clo thed. There is no evidence to support finding that his state of intoxication was anything but self‑induced. The courts, in number of cases, have commented that as general rule it is difficult to prove automatism in the absence of medical evidence. In Hill v. Baxter, [1958] All E.R. 193 (Q.E.D.) the court stated at p. 197: "I do not doubt that there are genuine cases of automatism and the like, but do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent." Similarly, in Bratty v. Attorney General for Northern Ireland [1963], A.C. 386 (H.L.) the court stated: "The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for man to say "I had black‑out": for "black‑out" as Stable J. said in Cooper v. McKenna, ex parte Cooper is one "of the first refuges of guilty conscience and popular excuse." The inability to remember events at later time, while perhaps some indication of automatism, does not in itself provide basis for finding of automatism. R.v. Clarke (1973), 1973 CanLII 1495 (NS SC), 16 C.C.C. (2d) 310 (N.S.S.C.A.D.); In R. v. Myers (1979), 31 N.S.R. (2d) 444 (S.C.A.D.) this court commented at paragraph 25 on the quality of evidence required where automatism is raised: "Evidence that the appellant was an automaton in fact was not merely insufficient; it was non‑existent. No direct medical or other evidence was given which showed that the appellant was in fact concussed. None of those who talked to him at the time of the accident, including the ambulance attendants, and none of the doctors or others who examined him the next morning, gave any evidence as to the nature of his injuries, or as to his response to questions, including the breathalyzer demand, from which the conclusion could be drawn that the appellant in fact was concussed and did not then know what he was doing. All Dr. Stevenson could say was that an accident such as described "could" cause concussion and false appearance of understanding and consciousness. No foundation of fact was laid from which an expert could infer that this man was probably an automaton when he refused the demand. See Bleta v. The Queen, 1964 CanLII 14 (SCC), [1964] S.C.R. 561, as to the vital necessity of proper factual foundation for medical opinions as to automatism." Apart from the fact that there was no medical evidence to support finding that the respondent's state of awareness was akin to that of automatism, the evidence of his wife shows that the respondent had the presence of mind to recognize that she was naked and to suggest to her that she get clothes on in case somebody came by. In short, the evidence cannot support finding that the respondent was so extremely intoxicated that he should not be presumed to have intended the consequences of his act of assaulting his wife as would be the case if his state of awareness was akin to that of state of insanity or automatism. In fact, the wife\'s evidence indicates the respondent had an appreciation of the circumstances of the assault at the time, although he cannot remember. The "sack of potatoes defence" is not supported by any evidence. am of the opinion that the trial judge did not properly direct himself as to the type of evidence necessary to conclude, as result of the respondent's degree of intoxication, that there was reasonable doubt that the respondent had the minimal intent required for the general intent offence of common assault. It is necessary to consider how to dispose of this appeal. Section 686(4) of the Criminal Code, 1985, provides: (4) Where 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, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. The Crown requests the following relief: The Appellant respectfully submits the appeal be allowed, the verdict of acquittal set aside, and verdict of guilty entered, and sentence warranted in law passed, or the matter of sentence remitted to the trial court with the direction sentence warranted in law be passed; or in the alternative, that the appeal be allowed, the verdict of acquittal set aside, and new trial ordered. In order to exercise jurisdiction to enter conviction court of appeal must be satisfied all findings of fact necessary to support finding of guilt were made either explicitly or implicitly by the trial judge. This common law rule must be strictly applied. R. v. Cassidy (1989), 1989 CanLII 25 (SCC), 50 C.C.C. (3d) 193, 61 D.L.R. (4th) 480, [1989] S.C.R. 245. It is clear from reviewing the reasons given by the trial judge he found that the respondent did assault his wife. He stated: "The Court is conscious of the seriousness of spousal assault. There was clearly an assault here." He then went on to describe the assault. However, the learned trial judge stated in the last paragraph of his decision that "he didn't strike her". Considering his previous finding that there had been an assault and considering the context in which the remark was made assume the learned trial judge meant that the respondent did not intentionally or consciously strike her. For the reasons which have already stated the evidence did not support such finding. There is presumption person intends the natural consequences of his/her acts. Having found there was, in fact, an assault and as the evidence of intoxication was totally insufficient to raise reasonable doubt as to the minimal intent required to prove general intent offence the learned trial judge by implication found the respondent' had the requisite intent for the offence of common assault when he concluded there, in fact, was an assault. Therefore, I am of the opinion the respondent "should have been found guilty but for the error in law" which I have identified. I would set aside the acquittal and enter a verdict of guilty pursuant to the powers vested in this Court by Section 686(4)(b)(ii) of the Criminal Code. Both counsel requested that if guilty verdict were entered the matter should be remitted to the trial judge for sentence so that pre‑sentence report could be prepared. would make such an order directing the trial judge to impose sentence that is warranted in law. J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. CY 5968 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER HEARD: At Yarmouth, in the County of Yarmouth, Nova Scotia on the 17th day of May, A.D., 1991 BEFORE: The Honourable Judge C. E. Haliburton, JCC CHARGE: C.C. Section 266(a) DECISION: On the 17th day of May, A.D., 1991 COUNSEL: R.M.J. Prince, Esq., Crown Attorney R.K. Murray Judge, Esq., Defence Attorney S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A.

, The Crown appealed the acquittal of the respondent on a charge of assaulting his wife. The trial judge had found the respondent, who had taken a sleeping pill and was drunk at the time of the assault, did not have the intent to commit the assault. Allowing the appeal, that voluntary intoxication cannot be considered as raising a reasonable doubt as to intent in a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus because his state was akin to automatism or insanity. The Court noted that no medical evidence as to the affect of the sleeping pill with the alcohol was adduced, nor was there any evidence concerning the strength of the pill or the amount of alcohol consumed and concluded that the evidence supported the conclusion that the respondent appreciated the circumstances of the assault, even though he could not remember it afterward. The Court set aside the acquittal and entered a verdict of guilty pursuant to s. 686(4)(b)(ii) of the Criminal Code as it had concluded that the respondent 'should have been found guilty but for the error in law'.

9_1992canlii2588.txt

J. Q.B. A.D. 1997 No. 1685 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HOME OIL COMPANY LIMITED and HERITAGE FREEHOLD SPECIALISTS LTD. RESPONDENT D.G. Gerecke for the applicant L.J. Nystuen for the respondent FIAT GEATROS J. July 7, 1997 The applicant Home Oil Company Limited seeks anorder pursuant to s. 159(3) of The Land Titles Act, R.S.S.1978, c. L-5, as amended, that the caveats set out in itsoriginating notice shall continue until further order of theCourt, or until withdrawn. The respondent Heritage Freehold Specialists Ltd. is seeking to lapse the caveats and has served notices to lapse on Home Oil in respect to all of the caveats. Each of the caveats is based on an agreement taken by Freeholders Oil Company Limited from the registered owner of the minerals. Heritage fairly concedes that it is not seeking summary dismissal of the application to continue the caveats. The order it urges the court to make is one directing that thecaveats be continued on the condition that Home Oil commencean action within a reasonable time, to determine the validityof its caveats, failing which the caveats will lapse. Home Oil, on the other hand, contends that it is entitled to an order continuing the caveats until further order, or until withdrawn, and if Heritage desires to pursue the matter further it must commence an action to declare the leases void. In that regard, Cameron, J.A. in Amoco Canada Resources Ltd. v. Potash Corp. of Saskatchewan Inc. (1992), 1991 CanLII 7951 (SK CA), 93 Sask. R. 300 (C.A.), for the Court, had this to say, at pp. 304 and 305: summary proceedings of this nature have long been regarded as inappropriate to final determinations of complex issues of fact or law touching upon the rights of caveators and land owners: Garr Scott Company v. Guigere, (1909), Sask. L.R. 374. Matters such as those are best left to be tried in the usual course. Aside from that, where it is clear on the face of things that the caveator does not have an interest, the application to continue will be dismissed, with the caveat being allowed in consequence to lapse. Where it appears on the face of things that he does have an interest, the caveat will be ordered continued until further order of the court or until withdrawn by the caveator. In other, less clear, instances the caveat will be ordered continued on condition an action be commenced within specified time. If the condition is not met, the caveat will lapse in consequence. If met, the caveat will continue, in accordance with the order, pending the final determination of the action. When making an order of this last sort the judge will determine, in all of the circumstances, which of the parties is to commence the action. The question here is whether it is the caveator orthe challenger that should be required to initiate an action. Heritage argues that the materials presented by Home Oil on its application do not make out clear or prima facie case such to allow the caveats to be continued on the basis as to require it, Heritage, to commence proceedings. Home Oil refers to Freeholders Oil Company Limited v. Runge (1963), 1963 CanLII 329 (SK QB), 41 W.W.R. 433 (Sask. Q.B.) involving 99- year Freeholders lease that Home Oil points out was in the same form as those that underlie the present caveats. Bence, C.J.Q.B., upon review of the affidavit evidence before him, having found in effect that prima facie there were agreements in existence, ordered that the caveats be continued until further order of the court, or until they were withdrawn in due course. The "burden" was placed on the challenger. Heritage counters by alluding to Clover Leaf Heights Ltd. v. Hanson, 1978 CanLII 1746 (SK QB), [1979] W.W.R. 58 (Sask. Q.B.). It is appropriate, in my view, to refer to the judgment of Halvorson, J. at some length, at pp. 59 and 60, where similar application as the instant one was before him: The question for me to decide is, which of the parties is to bear the burden of proof in this proceeding? The respondents contend that, because the applicant is challenging the caveat, the onus is upon it to establish right to have the caveat removed. In support of this position is cited the case of Re Land Titles Act; Re Prudential Trust Co. Ltd., Sask. Q.B. No. 210, 21st October 1978 (not yet reported), which relied upon the decision of Freeholders Oil Co. Ltd. v. Runge (No. 1) (1963), 1963 CanLII 329 (SK QB), 41 W.W.R. 433 (Sask.), which in turn relied upon Re Land Titles Act; Re Lot 10, Block 666, Lakeview, Regina, Plan No. P1652, [1945] W.W.R. 416 (Sask.). It is noteworthy that these three decisions were all in respect of applications to continue caveats pursuant to s. 159 [am. 1966, c. 96, s. 8; 1976-77, c. 81, s. 2; 1978, c. 30, s. 10] of the Land Titles Act, and in each case the existence of an agreement was not in dispute. In my opinion, all the judge was saying in the Prudential Trust Co. case was that, because there was document in writing upon which the caveat was based, the onus was upon the party challenging the validity of the document and thereby the caveat, to prove its position. This is clear when one reviews the aforesaid Freeholders Oil Co. case and the Re Lot 10 case. For example, in the Re Lot 10 decision the judge concluded that, while usually the caveator is required to commence the action to establish his position, there was no such onus in that particular case because there was in existence an agreement for sale. The implication was that the onus fell to the party disputing the agreement to launch proceedings. In following the Re Lot 10 decision the judge in the Freeholders Oil Co. case concluded, likewise, that there was an agreement in existence and, therefore, the burden lay upon the party attacking the agreement to establish that it was not in force. The principle of law which gather from these three decisions is set forth in the headnote of the Freeholders Oil Co. case to the following effect: "Where there is an agreement in existence upon which caveat is based the burden is on the person seeking to remove the caveat of establishing by action that the agreement is not in force." This is not the same thing as principle that whenever caveat is challenged the person challenging same must accept the burden of proof, and the decision in the Prudential Trust Co. case was never meant to set such wide principle. In my opinion, there may be any number of circumstances in applications under s. 159 where established agreements are not in issue, whereby the onus of commencing proceedings may fall upon the party which filed the caveat rather than the party challenging same. Had the applicant in this case chosen to attempt to lapse the caveat in accordance with the provisions of s. 159, would have concluded that the burden of establishing the agreement for sale would fall upon the caveators, the respondents herein, and not upon the applicant, which is challenging the caveat. The reason for this is that it is not conceded in this case that there is an agreement for sale in existence and the reasoning in the three decisions which have referred to is not applicable. It would be inappropriate to require the applicant herein to establish the agreement for sale when it is the applicant's position that there is no agreement, and it would be most difficult for the applicant to establish negative. In any event, the application before me is under s. 158 of the Act, which reads: "158. The owner or other person claiming an interest in such land may by summons call upon the caveator to attend before judge to show cause why the caveat should not be withdrawn; and the judge may, upon proof that the caveator has been summoned and upon such evidence as he may require, make such order in the premises as to him seems meet." (The italics are mine.) Under this section the initial onus is upon the respondents, the caveators, to establish the alleged agreement for sale. This is consistent with the judgments in Zwick v. Parkdale, 1933 CanLII 190 (SK QB), [1934] W.W.R. 17 (Sask.), and McAvoy v. Royal Bank of Can., 1933 CanLII 256 (SK CA), [1933] W.W.R. 433 (Sask. C.A.). am also of the view that, had the respondents herein been able to establish without doubt on the return of the motion that there was an existing agreement for sale granting them the right to purchase the lands which are the subject of this caveat, then the onus would have shifted to the applicant, which is challenging the caveat, to establish that the agreement was for some reason not in force, that is, the rationale in the decisions under s. 159 relative to existing agreements for sale is also applicable to existing agreements for sale challenged under s. 158. In Meadow Lake Credit Union Ltd. v. Korejbo (1988), 1988 CanLII 5194 (SK CA), 66 Sask. R. 191 (C.A.), Sherstobitoff, J.A. for the court, said, at p. 193: the chambers judge, in continuing the caveat until further order, acted in accord with the practice established by the Court of Queen's Bench in line of cases including: In Re Lot 10, Block 666, Lakeview, Regina, Plan P16, 52, [1945] W.W.R. 41; Freeholders Oil Company Limited v. Runge (1963), 1963 CanLII 329 (SK QB), 41 W.W.R. (N.S.) 433, and Young v. Foale, 1980 CanLII 2364 (SK QB), [1981] W.W.R. 653; 10 Sask. R. 28. These cases hold, in effect, that where there is an agreement in existence upon which caveat is based, the burden is on the person seeking to remove the caveat of establishing by action that the agreement is not in force. This practice is subject to the discretion of the judge who may make exceptions in cases where, on the basis of the facts of the particular case, he deems it appropriate to place the burden on the other party. In such cases, the customary order is to continue the caveat for fixed period of time during which the caveator must commence action to establish his claim. Examples of such exceptions are Toronto Dominion Bank v. J.A. Poppleton and Sons Farm Ltd., [1982] W.W.R. 477, and Nelson v. Strong (1984), 1983 CanLII 2200 (SK QB), 28 Sask. R. 196, wherein Walker, J., found that, although documents existed to support the caveat, the case of the caveator was so weak that it was appropriate to place the onus on the caveator to establish the validity of his document by action. (The part in italics is added as Heritage places emphasis upon it.). Heritage contends that this is not clear enough case to allow Home Oil's caveats to continue unconditionally. It submits that an "agreement in existance" has not been shown. am not persuaded that that is so. D.F. Kelly, Home Oil's Vice-President of Land, deposed in his affidavit, inter alia, that the leases are still in existence, and that Home Oil is the successor in interest to the subject agreements, exhibiting at the same time all of the certificates of title, the caveats, and all of the leases underlying the caveats. There has been no termination of any of the agreements byrescission or cancellation, or the like, so each of theagreements are, I find, prima facie still in existence, andHome Oil is the valid successor of the interest ofFreeholders. Heritage argues that complete agreement has not been produced. Missing, as an example, are drilling lease forms that comprise part of Home Oil's assignment and lease. In short, Heritage says, Home Oil has failed to produce all necessary documents. For present purposes, find, Home Oil has put forward what it needs to in support of the relief it seeks. Further documentation suggested by Heritage will berequired by a trial judge in determining the issue of thevalidity of Home Oil's interest in the leases involved,including the matter of whether Home Oil's lease violates therule against perpetuities. find that this is not case where the order continuing the caveats should include direction that the caveator must commence an action to establish its claim. The facts presented do not, in my judgment, allow for such determination. The principle in the Freeholders Oil Co. case applies here given that there is prima facie an "agreement" in existence so that the burden is on Heritage in seeking to remove the caveats to commence the requisite action. The onus is on Heritage to prove its position. In the result it is ordered that the caveats becontinued until a further order of the Court is filed in theLand Titles Office or until such time as they are withdrawn indue form as provided for under the provisions of The LandTitles Act. Should Heritage wish to pursue the matter further it is at liberty, of course, to commence an action for relief such as having the leases declared void. Home Oil will have its costs of the application.

FIAT. The applicant sought an order pursuant to s. 159(3) of the Land Titles Act to continue caveats until further court order or until withdrawn. The respondent had served notice to lapse all of the caveats which were based on an agreement taken by Freeholders Oil from the registered owner of the minerals. The respondent sought an order directing the caveats be continued on the condition Home Oil commence an action within a reasonable time to determine their validity. At issue was whether the caveator or the challenger should be required to initiate an action. HELD: The caveats were to be continued until a further court order was filed in the Land Titles Office or until they were withdrawn. 1) Each of the agreements was prima facie still in existence as there had been no cancellation or rescission of the agreements and Home Oil was the valid successor of the interest of Freeholders. 2) Further documentation would be required by a trial judge to determine the issue of the validity of Home Oil's interest in the leases including whether Home Oil's lease violated the rule against perpetuities. 3) Home Oil was given its costs of the application.

c_1997canlii11098.txt

J. Q.B.G. A.D. 1998 No. 300 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: LORAAS DISPOSAL SERVICES LTD. and CARMAN LORAAS and SASKATCHEWAN JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION and THE LABOUR RELATIONS BOARD OF SASKATCHEWAN RESPONDENT N.S. Sandomirsky, Q.C. for the applicants L.W. Kowalchuk for the respondent, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union M. A. Baldwin for the respondent, The Labour Relations Board of Saskatchewan JUDGMENT HRABINSKY J. February 17, 1998 JUDGMENT [1] The applicants apply for an order of certiorarito quash that portion of the order of the LabourRelations Board dated the 5th day of January, 1998, whichfound that the applicants, Loraas Disposal Services Ltd.and Carman Loraas, engaged in an unfair labour practicewithin the meaning of s. 43 of The Trade Union Act, R.S.S.1978, c. T-17 by failing to provide the Union and Ministerof Labour with notice of technological change. [2] The applicants challenge the decision of the LabourRelations Board as being patently unreasonable and that theword "removal" as found in s. 43(1)(c) of The Trade Union Actread separately or in conjunction with the remainder of thesaid ss. 43(1)(c) cannot reasonably be interpreted to includeclosure of a business or part thereof so as to constitute atechnological change within the meaning of the said s. 43 ofThe Trade Union Act. [3] The applicants also apply for an injunction restraining The Labour Relations Board from requiring rectification plan for violation of s. 43 of The Trade Union Act or for making further remedial orders related to the said violation of s. 43 of The Trade Union Act, which relief is sought pursuant to Rule 664(2)(b) of the Rules of Court. [4] In its decision at p. 19, the Labour Relations Board concluded that the applicants made decision to close the vacuum truck division. It stated: The decision was made for personal reasons relating to their workloads. Economic factors, that is, the rate of return on investment, also played role in deciding which part of the overall business they were prepared to close. In this instance, Loraas did decide to close portion of its operations, being the vacuum truck division. It implemented its decision by selling some of the assets of the division to SEDA International, by laying off the drivers and two office workers, and by contracting out various other incidental portions of the work performed by the vacuum truck division. Both parties agreed in their arguments that 20% or more of the employees in the bargaining unit were affected by the decision to close the vacuum truck division. In these circumstances, the Board finds that the decision to close the vacuum truck division was technological change within the meaning of s. 43(1)(c) of the Act that is, it was "removal or relocation outside of the appropriate unit by an employer of any part of the employer's work, undertaking or business". As such, Loraas was required to give 90 days advance notice to the Union and the Minister of Labour under s. 43(2) of the Act. The evidence indicated that the Union did not become aware of the closure of the vacuum truck division until June 14, 1997, the day that employees were advised of the closure by Loraas. The Union filed its application claiming that Loraas failed to give notice of the technological change on July 4, 1997, which is within the 30 day time period required by s. 43(5) of the Act. [5] At p. 20 the Labour Relations Board found that: Loraas's decision to close the vacuum truck division, which is alleged to be discriminatory response to the union activity engaged in by the employees, lacks the ability to be so motivated because it was made prior to Loraas's becoming aware of the Union's organizing drive. [6] The Labour Relations Board found that the closure of the vacuum truck division by the applicants was technological change within the meaning of s. 43(1)(c) of The Trade Union Act. The Labour Relations Board concluded that the applicants were required to provide the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union with notice of technological change because the closure of the vacuum truck division constituted "removal or relocation outside of the appropriate unit of part of the employer's work, undertaking or business." (1) Was the finding of the Labour Relations Board that the applicants' decision to close the vacuum truck division technological change within the meaning of s. 43(1)(c) of The Trade Union Act patently unreasonable? [7] Section 43(1)(c) of The Trade Union Act reads: 43(1) In this section, "technological change" means: (c) the removal or relocation outside of the appropriate unit by an employer of any part of the employer's work, undertaking or business. [8] In my view the issue before this court has beensettled by the decision of Mr. Justice Geatros in ReginaExhibition Association Limited et al v. Saskatchewan JointBoard, Retail, Wholesale and Department Store Union et al,Q.B. No. 3454 (1997) J.C.R., dated January 16, 1998. Althoughthis decision is now before the Saskatchewan Court of Appeal,I am bound by it. In that case the Labour Relations Board held that the permanent closure of the Silver Sage Casino was technological change within the meaning of s. 43(1)(c) of The Trade Union Act. Mr. Justice Geatros disagreed. At pp. 19-20 he stated: Not only do merely disagree with the result arrived at by the Board, but find there is no rational basis for its conclusion that the decision by REAL to permanently close the Silver Sage Casino was technological change within the meaning of s. 43(1)(c) of the Act. To look upon the 1994 amendment as overriding consensus held by the Board for twenty years lacks the faculty of reason. The Board, in myjudgment, made a patently unreasonable error in theperformance of its function. The "severe test" alluded to has been met. It follows that am unable to defer to the decision of the Board on its interpretation of "technological change" in s. 43(1)(c) of the Act. [9] find that the closure by the applicants of the vacuum truck division of the business is not technological change within the meaning of s. 43(1)(c) of The Trade Union Act. The Labour Relations Board made a patently unreasonableerror in the performance of its function by holding otherwise. [10] Accordingly, there shall be an order quashing thatportion of the order of the Labour Relations Board datedJanuary 5, 1998 which found that the applicants engaged in anunfair labour practice within the meaning of s. 43 of TheTrade Union Act by failing to provide the Minister of Labourwith notice of technological change. [11] I find that under the circumstances it would not beappropriate at this stage to deal with the application for aninjunction. Rather, I direct that this matter be remittedback to the Labour Relations Board to be dealt with havingregard to my finding that the closure of the vacuum divisionis not a "technological change" within the meaning of s.43(1)(c) of The Trade Union Act. [12] The applicants shall have one set of costs against the respondents.

The applicants applied for an order of certiorari to quash the portion of the order of the Labour Relations Board which found that the applicants engaged in an unfair labour practice within the meaning of s43 of the Trade Union Act by failing to provide the Union and Minister of Labour with notice of technological change. The applicants challenged the decision of the Labour Relations Board as being patently unreasonable and that the word removal as found in s43(1)(c) read separately or in conjunction with the remainer of the section could not reasonably be interpreted to include closure of a business or part thereof so as to constitute a technological change within the meaning of s43. HELD: The portion of the order which found that the applicants engaged in an unfair labour practice was quashed. The matter was remitted to the Labour Relations Board to be dealt with having regard to the finding that the closure of the vacuum division is not a 'technological change' within the meaning of s43(1)(c) of the Trade Union Act. 1)The Board made a patently unreasonable error. The issue had been settled by the decision in Regina Exhibition. Although this decision was now before the Court of Appeal the Court was bound by it. 2)It was not appropriate at this stage to deal with the application for an injunction. 3)The applicants were awarded one set of costs against the respondents.

d_1998canlii13685.txt

Q.B. A.D. 1990 No. 120 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CLARENCE GILL and SHIRLEY GILL and FORD MOTOR COMPANY OF CANADA LIMITED and COUNTRY PLAZA MOTORS LTD. DEFENDANTS G. M. Kraus, Q.C. and for the plaintiffs D. J. Brundige K. A. Ready and for the defendant, Ford Motor E. M. Kleisinger Company of Canada Limited JUDGMENT BARCLAY J. March 24, 1994 The plaintiffs Clarence Gill and Shirley Gill("Clarence and Shirley") claim against Ford Motor Company ofCanada Limited ("Ford") for damages from a fire in theirgarage which they allege was caused by combustion of vapoursfrom gasoline leakage from the fuel tube of a new truck theypurchased from Ford. The action against Country Plaza Motors Ltd. ("Country Plaza") was discontinued. THEORY OF THE PLAINTIFFS The plaintiffs contend that the fire was caused by anelectrostatic discharge through the U-shaped fuel tube in theFord truck which was the subject of recall, along with 48,000others, by Ford. It was submitted that due to extremely cold weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapour from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The vapours would then be ignited by the pilot light. There would then be flashback to the area underneath the truck where the gasoline was pooled. This location at the northwest corner of the garage would be where the fire originated as the combustible material under and near the Ford truck would FACTS Clarence and Shirley Gill are the owners of and reside at home with detached garage in Indian Head, Saskatchewan. The garage was constructed in 1983 and the dimensions are 28' 32'. The floor is cement and has solid wood walk-in door adjacent to the house. The vehicle doors are at the front of the garage as the garage faces the street. They are in separate bays and there is Sears electric garage door opener for each door. The garage is insulated. Located in the garage is gas furnace with pilot light installed on the floor. The garage was used for the storage of vehicles and miscellaneous seasonal goods and equipment, including saddle tanks and snow blowers. On October 14, 1988, Clarence purchased from Country Plaza, new 1989 truck manufactured by Ford (hereinafter referred to as the "Ford truck"). Country Plaza is the Ford dealer in Indian Head. Clarence took delivery of the Ford truck on October 26. The truck was 1989 model F-150 pickup. On January 10, 1989, which was the day of the fire, both Clarence and Shirley were at home with their two young children, Kimberly age and Craig age 2. The weather records reflected that the temperature at Indian Head from January 8, 1989 to January 10, 1989, remained between -28� celsius and 35� celsius. Both the Ford truck and Bronco II vehicle were stored in the garage. The Bronco was also owned by Clarence. The Ford truck was parked in the north bay of the garage and the Bronco was located in the south bay. Clarence had not driven the Ford truck for two days. However, at about 10:30 a.m. on January 10 he entered the garage through the side door adjacent to the house. That day he drove the Bronco which was usually operated by his wife. After entering the vehicle and starting the Bronco he said he let the motor run for approximately four minutes and in view of the bitterly cold weather, the garage door remained closed. He returned about 20 minutes later and he said he smelled fumes from the vehicle. He did state, however, that when he entered the garage he did not smell any fumes. After he entered the garage he closed the doors and left the building through the side door. At about 2:00 p.m. his daughter came downstairs as the rest of the family were watching television in the basement rumpus room. After she exclaimed that the garage was on fire, the plaintiffs went outside. The Indian Head fire department was already at the scene. At about that time the power went off in the residence and Clarence and Shirley were unable to use the phone. The fire destroyed the garage and its contents, including the Ford truck and the Bronco. Clarence, who farms near Indian Head, had the reputation of being meticulous individual and therefore the Ford truck which had very low mileage, was in immaculate condition as was his garage. In fact, Clarence constructed tin wash tray that was placed under the Ford truck which was used when the truck was being cleaned. In December of 1988, Ford issued recall notice which was sent to all Ford dealers and to all owners of the affected vehicles in the western regions of Canada. The recall notice applied to all 1986, 87, 88 and 89 Ford model 150, 250, 350 trucks and Bronco vehicles, including the Bronco vehicle. These notices stipulated the following as the reasons for recall: The U-shaped fuel tube ("Jumper Tube") connecting the on-frame fuel pump to the fuel filter may develop pin holes. The pin holes can be created during off-road operation in severe winter weather by an electrostatic discharge through the tube and will result in fuel leakage. If this condition occurs fire could result. To prevent this condition the U-shaped fuel tube will be replaced with new part having an insulating sleeve. Ford Motor Company of Canada, Limited (Ford) has determined that certain 1986, 1987, 1988 and 1989 model F-150/250/350 Pickup Truck and Bronco vehicles sold in specific areas of Canada where severe winter weather is experienced contain fuel tube that may develop leak if operated off-road. Clarence said he received the recall notice about two weeks prior to the fire. After he read it he decided that the matter was not urgent as the initial recall notice indicated that it only applied to vehicles operated off-road. As the Ford truck was not driven off-road he did not feel there was any immediate danger, however he said he intended at time convenient to take the Ford truck to Country Plaza to be examined. schematic drawing of the garage and its contents as it appeared immediately after the fire was filed as an exhibit. copy of the drawing is set out hereunder. Clarence confirmed that this drawing accurately depicts the inside of the garage and its contents as they appeared after the fire. The furnace was operational and the pilot light was on. Jack Johnson, resident of Indian Head was on the scene immediately after the fire started. He said the smoke was coming from underneath the Ford truck which was located in the north bay. From there the smoke and flames went up the north wall of the garage. He then said that flames were also coming from underneath the right rear side of the truck. He said it was only matter of minutes before the fire engulfed the building. When he arrived at the scene, the garage door in the north bay was open to distance of approximately 2+ to feet. Gil McDonald from the Provincial Fire Commissioner's Office was qualified as an expert witness as to the cause or origin of fire. He has had extensive experience both in the military and more recently in the Fire Commissioner's Office as fire investigator. He testified that he has investigated more than 130 fires as to their cause or origin and has given expert testimony in the Saskatchewan Courts on previous occasions as to the discipline. His mandate was to assist the R.C.M.P. to determine the cause and origin of the fire. On January 16 he took series of photographs of the garage and contents. These pictures clearly illustrate the damage which occurred and assist in determining where the fire originated. In McDonald's opinion the fire originated about 10 or 12 feet from the northwest corner of the garage where the Ford truck was located. He explained how the gasoline vapours would be ignited by the pilot light and that there would then be flashback to the area underneath the Ford truck where the gasoline was pooled. In other words he agreed with the plaintiffs' theory as to where the fire started. McDonald, Clarence and other witnesses ruled out any other potential cause of the fire, including an electrical malfunction of the garage wiring, the garage heating system and/or an explosion caused by leaking natural gas supply or leaking gasoline supply. This would include gas located in the snow blower, the Kitty Cat snow machine and the saddle tanks which were being stored in the garage. In fact Ford, although it disagreed with the theory of the plaintiffs as to the cause of the fire, never made any alternative submission as to how the fire occurred. However, agree with counsel for Ford that legally they have no obligation to prove anything and that the onus is on the plaintiffs to prove beyond balance of probabilities that the fire occurred in the manner in which they allege. Richard Freeman, the gas inspector from SaskPower attended at the premises on January 18. He examined the furnace, said it was functional and that there were no wiring problems. He said it was "in good condition". The furnace was located on the northeast wall and he observed flash marks running from the area of the furnace down the north wall to distance about halfway when the burn marks moved inward to an area where the Ford truck was located. Murdoch D. MacPherson, professional mechanical engineer with the Regina Engineering firm of Cochrane Walker and member of the Association of Professional Engineers for Saskatchewan, also gave expert testimony on behalf of the plaintiffs. He said that gasoline vapours due to their combustibility may pose hazard. He agreed that gasoline vapours being heavier than air will displace the air and would sink to the bottom of the garage. As to the combustibility of the vapours in the air, he said it would depend on certain concentration which would be 1.4% to 7.6% by volume. This concentration would have to occur before there would be potential for combustion. Within that range it was his opinion that if the gasoline came into contact with the pilot light it would ignite. He said if the gasoline vapours were below that range it would be too lean to burn and if they were above 7.6% the mixture would be too rich. It was also his opinion that it would take several gallons of gas to produce sufficient vapours to cause combustibility. Keith J. Fowler of Edmonton, who established Western Canadian Mechanical Investigators in 1986 was qualified to give expert testimony regarding the cause of vehicle fires. Although Fowler is not professional engineer, he has had extensive experience in fire investigation. He said he has investigated over 700 fires by trucks and cars to determine the cause and origin of the fire. Prior to his association with Western Canadian Mechanical Investigators he had 16 years experience in the automotive industry. During that period he was employed as service manager for Ford and then for General Motors. His qualifications included certification as mechanic engineering technologist and he is licensed as mechanic and as an insurance adjuster. was impressed with his testimony and he was of great assistance to the Court. After reviewing the circumstances surrounding the recall notice issued by Ford which delineates the inadequacies of the fuel system which, according to Ford's own admission, could result in fuel leakages and thereby cause fire, he offered an opinion as to the cause of the fire. He testified that the fire was caused by gasoline leakage from the U-shaped fuel tube. He agreed with the theory of the plaintiffs that as result of the extreme temperatures the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. As result, pin holes were created causing gasoline leakage. He said that the fuel leakage would likely collect in the tin pan located under the Ford truck. The vapours would then be drawn to the pilot light in the furnace where ignition would occur and then flash back to the northwest corner of the garage where the Ford truck and the pool of gasoline were located. The fire would start in that location as the combustible material under the truck would ignite. Once the fuel line melted, the vapour pressure would increase and more fuel would be added to the fire. By that time full fire could be raging. According to Fowler, leakage of one to two gallons would be sufficient to produce sufficient vapours to cause combustibility. The Ford truck had two tanks with capacity of 15 gallons per tank. Clarence testified that both tanks were full. He also stated that in his opinion the conditions described in the recall notices of Ford outlined the precise problem with the Ford truck. This delineated the inadequacies of the fuel system which caused the fire. The last witness called by the plaintiffs was Sergeant Bill Blanchard, 25 year veteran with the R.C.M.P. He attended at the scene on the day of the fire. He also stated that the origin of the fire was in the area where the Ford truck was parked, namely the northwest corner of the garage. He categorically ruled out arson as the cause. RECALL NOTICE The plaintiffs contend that the circumstances surrounding the recall notices assist them in establishing their theory as to how the fire occurred and agree. This notice was sent out to 48,000 owners. The initial recall notice which reviewed earlier reflects that due to severe winter weather the fuel line may develop pin holes which would result in fuel leakage that could cause fire. As early as November 23, 1988, the Field Review Committee of Ford reported that total of 36 reports of pin hole leaks in the jumper tube had been received and of those reports, 14 were alleged to have resulted in fire. Their report of November 23, 1988, reads in part as follows: total of 36 reports of pin hole leaks in the jumper tube have been received, all involving vehicles operated in oil field exploration service or, other off-road applications in the Western and Midwestern Sales Regions of Canada. Of these reports, 14 were alleged to have resulted in fire. There are no known reports of this condition involving other vehicles operated elsewhere in Canada or the U.S., and check of service parts sales indicates no abnormal sales trends other than in the subject sales regions during the winter months. The U-shaped jumper tube involved in this concern was installed on certain 1986 through current production 1989-model F-Series pickup truck and Bronco vehicles equipped with EFI engines. NAVIS records indicate that approximately 45,000 of these vehicles were sold in the Western and Midwestern Sales Regions of Canada. The Field Campaign Review Committee recommends that these vehicles be recalled for dealer installation of new fuel line that is sleeved with material having properties of an electrostatic insulator. This fuel line is to be incorporated in production approximately December 11, 1988, for all F-Series light trucks and Broncos equipped with EFI engines. In March of 1990 new recall notice was sent as the repairs specified in the initial notice were not effective. This replacement notice reads in part as follows: SPECIAL NOTE: Safety Recall 89S76 supersedes and replaces Safety Recall 88S57. If you are presented with vehicle that does not have 88S57 completed, do not perform that recall on it; instead perform Safety Recall 89S76 on that vehicle. AFFECTED VEHICLES: All 1986 1/2, 1987, 1988 and 1989 Model Year gasoline powered F-Series Pickup Trucks including Chassis Cabs, and Bronco vehicles with EFI engines sold or operated in Mid-West and Western Regions and the Yukon Territory. Vehicles involved were produced from February 1, 1986, through to the end of the 1989 model year. REASON FOR RECALL Field investigation has determined that repairs specified in Recall 88S57 were not completely effective in preventing the condition of pinhole leaks forming in the U-shaped fuel tube ("Jumper Tube") connecting the on-frame fuel pump to the fuel CORRECTION To prevent this condition from re-occurring, the U-shaped fuel tube, the frame mounted filter and the fuel delivery tube from the filter to the engine will be replaced with steel braided electrically conductive fuel line from the high pressure frame-mounted fuel pump to the engine. fuel filter cartridge will also be installed in the fuel reservoir. CAUTION: Fuel supply lines on 4.9L EFI, 5.0L EFI, 5.8L EFI and 7.5L EFI engines will remain pressurized for some period of time after the engine is shut off. This pressure must be relieved before servicing of the fuel system. The subsequent recall notice deleted any reference to off-road driving. However, the amended notice would not have been sent out until after the fire. Trevor Geen Williams, the quality engineer for Ford, was examined for discovery as its proper officer and his answers with respect to the recall notice sent to 48,000 owners is telling. They read as follows: 391QAll right. Would you look at the Recall Notice to the owner and to the dealer in December of 1988, P-1 and P-9. The information from Ford states among other things that "If this condition occurs fire could result." Have read that 392 QOkay. Has Ford ever tested such vehicle in these circumstances to see if fire could result? AI believe the answer would be, yes. 393 QAll right. And have you available the report with respect to such test and would you produce that to us? AI Ford of Canada does not have copy of such test information. That information the testing would have been done by Ford Motor Company in the United States. 395 QWhat is the date of such test? AI believe that the testing that you would be referring to would have been done in the months prior to the release of the recall, but at some point in time after. 399 QDid the test show that fire could result as indicated in the Recall Notice? AI don't know what the actual results of the test were, other than to say that the test would, more than likely, have produced situation where there was still leakage. 400 QFrom that test, Ford concluded that this condition could result in fire? AIf you have fuel leakage you could have fire. 401 QAnd was it as result of that test that Ford made the statement in the Recall Notice that "this condition could result in fire"? AI couldn't definitively say that that was the case. Obviously as we've previously admitted, there were 14 cases known to us where there were vehicle fires. Certainly if you have situation that can create fuel leakage, then, there's obviously the risk of fire. 402 QAnd in addition to that Ford had done its own testing. ATo determine whether or not condition existed that would produce fuel leakage. 403 QYes. And that condition, that is fuel leakage, was present in the testing? Yes. Michael J. Harrigan testified on behalf of Ford. He was their only witness. Harrigan is graduate engineer. He received his Bachelor of Science in Mechanical Engineering from Loyola University and his Master of Science from Stanford University in Palto Alto, California. He resides in Michigan and is presently employed by Ford as senior engineering specialist with respect to fuel systems. He has been an employee of Ford since 1974. He was qualified as an expert witness. He disagreed with the theory of the plaintiffs' as to the cause of the fire. He said that the Ford injection fuel system has check valve which would prevent fuel leakage if the fuel liner were cut. However, in cross-examination he conceded that the following statement in his written report was incorrect. That statement reads: The path through the pump alone might prevent siphoning. In addition, for there to be any siphoning action at all, the outlet point where the line is cut or burned open has to be below the height of the pump inlet inside the fuel tank. In worst case scenario, it was his opinion that if any charge ever existed on the Ford truck fuel system it would be completely dissipated in less than an hour. He said as the Ford truck had not been driven on the day of the fire one must conclude that there could not have been any significant static electric charge in the fuel system at the time the fire started unless the fuel pumps had been energized. There is tiny steel ball in the safety valve and according to Harrigan it would take two P.S.I. (pounds per square inch) to unseat it to permit siphoning. Harrigan concluded by stating that it is highly unlikely that an electrostatic discharge from the fuel line could have ignited leaking fuel. He also stated that he could offer no alternative theory as to why the subject fire REBUTTAL Fowler and MacPherson were recalled in rebuttal. Fowler had purchased replacement fuel pump from Ford dealer similar to the one used in the 1989 Ford truck. He conducted certain tests with the pump and in the tests he performed he said it took one P.S.I. pressure to unseat the check valve and not two P.S.I. as stated by Harrigan. He also conducted drip test for gasoline. He filled four litre plastic container with gasoline and then pricked it with straight pin. In period of seven minutes 3/4 of an imperial ounce collected in the measuring cup. MacPherson also examined the fuel pump. He said there was small spring in the check valve which is lighter than most ball point pens. This spring is attached to small plastic ball. MacPherson testified that he did not have confidence that the check value would stop any siphoning of gas. In other words the fuel pump would only be slight impediment to the fuel flow. He also said that if there was pin prick in the fuel line, approximately five ounces of fuel would leak in minutes or nine imperial gallons in period of 24 hours. CONCLUSION I accept the expert testimony of the plaintiffs andin particular Fowler and MacPherson in preference to Harrigan. Not only did Harrigan appear uncomfortable on the stand, he conceded that he made major error in his report. It is also significant that Ford never called any independent witnesses on their behalf and their only witness was an employee of Ford. The evidence taken as whole leads only to one conclusion and that is that the plaintiffs' theory as to how the fire started is accurate. I am satisfied that theplaintiffs have proven beyond a balance of probabilities thatthe fire was caused by an electric static discharge throughthe U-shaped fuel tube in the Ford truck. Due to extreme weather conditions the electrical insulating qualities of the nylon fuel line were reduced to an extent that the accumulated static electricity discharged through the fuel line. During this static discharge, pin holes would be created and gasoline would then leak out. The vapours from the gasoline, being heavier than air, would settle to the bottom of the garage and would be attracted to the pilot light on the furnace. The pilot light would cause the vapours to ignite and there then would be flashback to the area underneath the Ford truck where the gasoline was pooled. This would likely be in the wash tray which was located under the vehicle and which Clarence used to wash his truck. Furthermore, the recall notice delineated the problem with the fuel system which is consistent with the plaintiffs' theory as to how the fire occurred. In view of the above further find that the fire and damage were caused solely by the negligence of Ford, the particulars thereof include: 1. In manufacturing the Ford truck with defective fuel tube, when Ford knew or ought to have known that it was unfit and dangerous, by reason of the defective fuel tube which was subject to leaking; 2. In manufacturing the Ford truck without ascertaining or ensuring whether by testing, inspection or otherwise, that the fuel tube was and would remain safe and sound and suitable for the purpose for which it was intended that is, maintaining the gas therein without leakage; 3. In failing to take any reasonable or effective precautions in the manufacture or installation of the fuel tube, when Ford intended that it would be used as part of the construction of the Ford truck; and 4. In failing to ensure that the fuel tube would not DAMAGES The parties agreed that the amount of damages would be in the sum of $90,402.50. The plaintiffs shall havejudgment in that amount together with prejudgment interest inaccordnce with The Pre-Judgment Interest Act, S.S. 1984-85-86,c. P-22.2 to be calculated from the date of fire, namelyJanuary 10, 1989. In addition the plaintiffs shall have their costs to

The Plaintiff's 1989 Ford F150 1/2 ton truck caught fire and burned in his garage. This model of truck was subject to a recall by Ford to correct a fuel line defect. The Plaintiff called several expert witnesses who testified that, in their opinion, the leaking fuel line was the cause of the fire. Ford called one witness who was the designer of of the truck's fuel system and a Ford employee. He testified that the defective fuel line could not have leaked sufficient fuel to cause the fire. He also admitted, however, that his prior written report contained errors. Rebuttal evidence called by the Plaintiff indicated that the check valve in the fuel pump designed to prevent siphoning from the fuel tank in the event of a leaking fuel line did not operate as the Ford witness had testified. HELD: Judgment for the Plaintiff. The Plaintiff had proved on a balance of probabilities that the leaking fuel line was the cause of the fire. The Plaintiff's experts' evidence was accepted over that of the Ford expert. No independent experts had been called by Ford.

5_1994canlii4866.txt

SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 59 Date: 2013 02 21 Docket: Div. No. 412 of 2011 Judicial Centre: Saskatoon BETWEEN: JULIE ELIZABETH KLINGER, and BERNHARD KLINGER, Counsel: Jeremy A. Caissie for the petitioner Jillyne M. Drennan for the respondent FIAT DANYLIUK J. February 21, 2013 I. INTRODUCTION [1] This is high-conflict family law matter. The mother wants to change her residence (and that of the two young children) presently, which amounts to an application to change residence on an interim basis. The father has a significant history of criminal behaviour, is presently incarcerated and will be for at least the balance of this calendar year. He opposes the move, and in any event wants access. The parties have come to this court to determine what should happen on an interim basis. [2] The parties married October 11, 2008, and separated in April 2011. It was the first marriage for each. Two sons were born of their marriage: Adam, on March 31, 2007 and Quinn, on August 3, 2009. [3] There is little utility in reviewing the events within the marriage in exhaustive detail. Suffice it to say that from the outset, the marriage was tempestuous. Within months of the marriage the father was charged criminally and served time in jail. When this action was commenced in spring 2011, the mother had to obtain an ex parte order returning the boys to her care. The father has issues with substance abuse and anger management. In the course of these proceedings, non-contact order was made against him as regards the petitioner. [4] In January 2012 the court ordered custody/access report to be prepared through Family Justice Services, with particular focus on issues of domestic abuse, child abuse, drug addiction, alcohol abuse, criminal activity, and the willingness of each parent to facilitate relationship between the children and the other parent. Unfortunately, for variety of reasons this report was not completed until February 2013. While some of the material and references relied upon by the author are now somewhat dated, there is still material that is of assistance to the court. [5] As well, by January 2012 the mother had unilaterally moved with the children from Nokomis to Kenaston, notwithstanding an existing order of this court. That move was reversed in January 2012. The mother made an application to allow the proposed move and that issue was adjourned from time to time pending the receipt of the custody/access report. She has formed new relationship, and she is pregnant. The father maintains that she has, in actuality, already moved and her request is but formality. [6] The father was charged with number of criminal matters in the fall of 2012. He was sentenced in October. His latest affidavit is not entirely clear on how long he will be in jail, but states that he is eligible for early release in December 2013. We thus know he will be in jail for at least the rest of this calendar year, and perhaps beyond. ISSUES [7] The issues raised by this application are: (a) Should the mother’s move with the children be allowed on an interim basis? (b) In any event, should the children have access with their father while he is incarcerated? ANALYSIS Should the mother’s move with the children be allowed? [8] The mother’s unilateral move was unfortunate. While she claims that she reversed this move and went back to Nokomis, the father harbours suspicions that she and the children actually remained in Kenaston. While the mother’s counsel stridently echoes her protests to the contrary there is some evidence that her return to Nokomis was, perhaps, nominal. For example, the custody/access evaluator interviewed the older child’s kindergarten teacher, who was identified as teaching at Kenaston School. There was no satisfactory explanation as to why this child was attending school in Kenaston. General principles [9] Nevertheless, the interim application to change residences is before the court and must be dealt with. There are some general principles apposite. [10] The foundational decision in this area is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 134 D.L.R. (4th) 321. McLachlin J. (as she then was) summarized the applicable considerations in seven points, at para. 49, which has been cited so often it is now trite law. [11] When an application to move is made on an interim basis, further significant caution is warranted. There are two primary reasons. First, an interim change of locale may create new status quo and sometimes can effectively decide the outcome of the trial. Second, the interim application is most likely based on affidavits, which frequently conflict with each other, and/or are incomplete or limited in scope. Essentially, there is now rebuttable presumption against allowing such moves until trial is held. As result, interim relocations by custodial parent are generally allowed only in compelling circumstances. See Nieman v. Bull, 1999 SKQB 204 (CanLII), [1999] S.J. No. 778 (QL), at para. 7; Shiplack v. Shiplack, 2008 SKQB 254 (CanLII), 317 Sask.R. 223, at para. 19; Ofukany v. Ofukany, 2009 SKQB 234 (CanLII), 338 Sask.R. 196, at para. 12; and Mantyka v. Dueck, 2012 SKCA 109 (CanLII), 399 Sask.R. 303, at paras. 31 to 33. [12] Is this an exceptional case warranting allowing the move to occur on an interim basis? In my view, it is. Applying the Gordon v. Goertz principles [13] The Gordon v. Goertz criteria are met in this case. There has been a material change of circumstances affecting the children. Their mother’s new relationship and her pregnancy means a new sibling will be introduced into their lives. Should they be deprived of the benefits of growing up with their new brother or sister, who is presently en ventre sa mere? It is difficult to see an argument favouring such an arrangement. If the mother is forced to live in Nokomis, then it would appear the new child (once born) would be deprived of the benefits of living together in one household with both its parents. This defies common sense. [14] This being so, even on an interim basis the court must embark upon fresh inquiry as to what is in these children’s best interests. This is not “balancing act”; rather, it is fresh consideration of all relevant circumstances relating to the needs of the children, and the ability of each parent to satisfy those needs. These cases are fact-intensive, and there is no presumption in favour of the present custodial parent. The court’s only issue is to determine the children’s best interests, and the focus is certainly not on the rights or interests of either parent. [15] In reviewing this matter, it appears beyond dispute that the mother has always been the primary caregiver to these children. There is nothing suggesting the two boys have anything other than close and loving relationship with her. [16] The existing access arrangement is thornier issue. The father has been in jail since September 2012, first on remand, then as serving prisoner. He has not been seeing the children on regular basis. This court’s order of January 27, 2012 provided that the father not be present for access exchanges of the children. This court’s previous order (September 7, 2011) named the mother as the primary caregiver, with the father to have the children with him every second week, Wednesday to Sunday. Both orders contained non-contact clause with respect to the father. [17] Due partly to his incarceration and partly to other factors, the father has not seen the children since May 2012. He will remain in jail until at least December 2013. Paragraph 49(7)(b) of Gordon v. Goertz emphasizes consideration of the existing access arrangement and the relationship between the children and access parent. Presumably, the disruption any prospective move would cause to this relationship should also be considered. But here, there has been no access for some nine months, and access for the next ten months will be (at best) very limited. While preserving an access relationship and maximizing contact between the children and both parents are to be fostered in the ordinary course, this situation is anything but ordinary. The acts of the father are what has jeopardized his parental relationship with the children, not the proposed move. [18] One of the main reasons the father is in jail is his assault on the mother. His submissions against disturbing his relationship with the children are somewhat disingenuous not unlike the apocryphal story of the man who murders his parents, then pleads for clemency from the court on the grounds he is an orphan. [19] These are young boys (6 and 3‑½) thus their wishes are neither determinative nor substantially influential on the court’s decision. [20] On the facts presently before the court, there would be little or no disruption to the children. Kenaston is about 90 kilometres due west of Nokomis, about 80 minutes one-way. While the mother returned to Nokomis after her precipitous move, her latest affidavit reveals she has been commuting daily. This corresponds with the older child’s attendance in kindergarten in Kenaston, and corresponds with the father’s notion that she did not really take to heart the court’s directive to return to Nokomis. Nevertheless, in reality the move would mean nothing to the children in terms of their frequency of contact with their father, or with any increased difficulties in exercising access. The father is in the Saskatoon Correctional Centre. Kenaston is 50-minute drive on divided highway. Nokomis is 1‑3/4 hours away (about 160 kilometres) on some roads which are less than ideal. At present, the capacity for access is likely enhanced by the proposed geographical change. [21] There is also no tangible evidence that the children will be disrupted on moving from Nokomis, in terms of removal from family, schools and the community they have known. [22] In his affidavit, the father says he would consent to the move but only if the mother will agree (or, presumably, the court will order) access to occur while he is in jail. This is, at best, “balance of convenience” argument specifically disapproved of by our Court of Appeal in Mantyka, supra. It is not proper analysis of the children’s best interests. Those interests are not to be held hostage to promote the father’s self-interest. [23] This leads to an analysis of the mother’s reason for moving. Generally such a reason is only considered in an exceptional case, and then where the reason is relevant to the parent’s ability to meet the children’s needs. This is such a case. Here, not only has the mother formed new relationship with man from Kenaston, she is pregnant. Her ability to act as parent to her two existing children will necessarily be impacted by the arrival of third. She cannot reasonably be expected not to feel the impact of the move being prevented if her new life partner is not living with her, and providing support (financial, physical, emotional) for the new child. This will transfer over to the two older children. [24] The move is not for job, nor for any other sort of economic opportunity. But are such economic benefits considered to outweigh the considerations of the formation of new family? Surely the collective interests of the three children in this case should be as important as enhanced career prospects have been in other cases. [25] As well, these are circumstances where the court does not have alternatives. Very often, parent is told he or she is free to move but not with the children. If the move proceeds, there can be shift in custody to the other parent. Here, the mother is the only available parent for the foreseeable future. When the father is eligible to get out of jail, he will not have had close ties to the children for period approaching two years. There is no reasonable basis to have matters resolved in the father’s favour. While he asks that pre-trial conference be set, he asks that it be delayed until his release. That is not tenable position. Life moves on. Most importantly, the lives of these children cannot remain “on hold” while the father awaits release from prison for, inter alia, beating the mother of the children. [26] It is clear to the court that by adopting this position, the father has not truly considered the best interests of the children. He does not presently (nor in the near future) present viable parenting alternative. In all likelihood the mother’s position would prevail at trial. [27] This is one of handful of cases where an interim decision on mobility is appropriate. Upon careful consideration of the evidence and application of the principles in the cases set out above, the court is of the view that the children’s best interests are best served by the mother remaining the primary parent, and that this be done in Kenaston. Should the children have access with their father while he is incarcerated? [28] The father’s affidavit provides information to show that access to the children while he is incarcerated is possible. Personal visits would occur with these two boys, aged and ½, speaking to their father via telephone through plexiglass partition. [29] The custody/access evaluator does not speak to such access being of benefit to the children, and further recommends that after the father is released his access be supervised for six months. [30] The issue is whether access while the father is in jail confers any benefit upon these children. Father’s counsel presented well-reasoned argument, supported by case law, in favour of his position. [31] The key case appears to be Anderson v. Daley, 2006 SKQB 309 (CanLII), [2006] S.J. No. 447 (QL). There, the parties had two children. The father received life sentence as result of murdering the mother. Not surprisingly, the children’s paternal and maternal families had highly hostile relationship. maternal aunt received custody through court order. The father sought access, and this court ordered that some telephone and personal visits occur. [32] The issue with Anderson and the case at bar is one of applicability. In the view of the court, several factual distinctions exist. In Anderson, the children were bit older (8 and 5). It was “abundantly clear” from the evidence that these children wished to see their father, consistently holding and expressing such wishes for over year. We have no such evidence here. In that case the custody/access evaluator favoured contact with the father during his prison term. As well, the mother had been totally removed from the picture by her murder, leaving only one parent available, even if he was in prison. Even in that case, the personal access ordered was strictly limited. The access was subject to future review. [33] In subsequent case, access to father in jail was ordered: B. (R.S.) v. P.(M.), 2007 BCPC 402 (CanLII), [2007] B.C.J. No. 2790 (QL). But there, the father was on remand and had not yet been convicted of any of the charges, including murdering the mother. As well, this was decision made after trial, rather than on affidavits. The custody/access evaluator provided strong evidence (para. 109) as to the benefits of such access, and it was ordered. Finally, if convicted the father’s incarceration would be lengthy, as in Anderson, as opposed to limited, as here. [34] We do not have the benefit of such evidence here. The father has not adduced any material (other than from himself) to suggest there is anything in this for the children. He does speak of benefits to him, which are largely self-evident. [35] While personal access to an incarcerated parent may be beneficial to children in some instances in this case the court has insufficient evidence to conclude, on a balance of probabilities, that these two young children visiting their father in jail would benefit. [36] There should, however, be some connection maintained. That can be done through telephone access. As well, the parties should explore with corrections authorities the prospect of communication through Skype, FaceTime, or one of the other means of electronic audio/visual communication. While the authorities will undoubtedly not allow the father unfettered access to computer with an internet connection, some form of monitoring might be possible. [37] am therefore prepared to order that the children have telephone access to their father every three weeks, as may be arranged, until the father is released from custody. If the further types of communication mentioned above are possible, the telephone access shall be converted accordingly. [38] hasten to note that the mother has legal duty to promote and foster this access. She should be aware that it is this court’s expectation that she will do all in her power to ensure the children have this access and that it is meaningful. This matter has not gone to trial and is far from concluded. Her willingness (or lack of same) to ensure connection between the children and their father may well be significant factor in her remaining the primary parent. [39] Accordingly, make the following order: 1. The mother shall remain the interim primary parent for the two children, and shall be allowed to move on an interim basis from Nokomis to Kenaston, Saskatchewan. 2. The children shall have regular telephone access to their father every three weeks, as may be arranged, until the father is released from custody. If the further types of communication mentioned above are possible, the telephone access shall be converted accordingly. 3. No order as to costs. J. R.W. DANYLIUK

The petitioner mother has entered into a new relationship and is pregnant. She wants to move with the parties' two children to live with her new spouse. The respondent father is currently in jail and will be incarcerated for the balance of the calendar year. The respondent opposes the move and wants access to his children at the jail. The mother had unilaterally moved with the children prior to making this application in the face of an existing court order. One of the reasons that respondent is in jail is because he assaulted the petitioner. HELD: The Court was of the view that this was an exceptional case that warranted permitting the move on an interim basis. The petitioner's new relationship and the impending birth of a new sibling for the children is a material change in circumstances. The move is justified because the petitioner is the only parent available to the children and it would defy common sense to deprive the children of a relationship with their new sibling, particularly when the respondent is unavailable as a parent and there is no reasonable basis to conclude that matters can be resolved in the father's favour. The respondent asked to have the issue of custody and access delayed until his release. This is not a realistic option. It was clear that the father had not truly considered the best interests of his children in opposing this application and that the mother's position would likely prevail at trial. With respect to access with the father in jail, there was no evidence that visiting the respondent in jail would be beneficial to these young children. The respondent was granted telephone access and, if it was possible to arrange with corrections officials, access via Skype or Face Time.

d_2013skqb59.txt

PCJ 2001 SKQB 132 Q.B. A.D. 1999 No. 2138 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: THE BANK OF NOVA SCOTIA and HOWARD GREGG ANDERSON, DIANNE FLORENCE DICKEN, FARM CREDIT CORPORATION, JAMES ANDERSON, NEIL GIBBINGS, MORRIS FRESLEE, TIMOTHY KEENE, JAMES PELETIER and JACELYN RYAN DEFENDANT M. Kim Anderson for the Bank of Nova Scotia Richard W. Danyliuk for Howard Anderson and Diane Dicken FIAT LAING J. March 14, 2001 [1] The applicant seeks an order nisi for sale of a 10 acre parcel of land near Rosetown, Saskatchewan on which the respondents operate an ostrich farming business. As of February 12, 2001, the amount owing on the mortgage which dates back to October 4, 1988 is $61,194.91. current certificate of title still shows the Farm Credit Corporation as second mortgagee in the amount of $36,000.00, but the affidavit material filed suggests it has been paid out. The named individuals after the Farm Credit Corporation in the style of cause are members of law firm that have filed writ of execution against the property. [2] Apart from the length of the redemption period and the upset price that should be included in any order for sale, the issue is whether this 10 acre parcel of land is a homestead within the meaning of The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1 (hereinafter referred to as the Act). At the time this court ruled on November 18, 1999 that s. 9(1)(d) of the Act did not apply to this action, no argument was advanced at that time by the respondents pursuant to s. 17(1)(b) that the application should be dismissed because it was homestead. The parties agree that since the summer of 1994 the land qualifies as farm land under the Act, and the house located on the property since that time has been homestead within the meaning of the Act. Where the parties disagree was whether the property was the respondents' homestead when s. 44(17) of the Act was proclaimed on September 20, 1992. Section 44(17) states: When farm land that is the subject of mortgage is not homestead when this subsection comes into force, this Part does not apply to the mortgage. If it was homestead at the time the foregoing section was proclaimed, final order for foreclosure would be stayed (s. 44(1)), and no order for sale could be made (s. 44(10)). Homestead Issue [3] The respondents had acquired the 10 mortgaged acres from Mr. Anderson's father, and commenced building their home in the summer of 1988. By the time the respondents entered into the subject mortgage on October 4, 1988 they were living in their home on the property. Mr. Anderson states at this time he was working at construction work in Rosetown and was raising some chickens, turkeys and geese that he had acquired from his father. He does not indicate the scale of this activity. At this time Mrs. Anderson (nee Dicken) was working at travel agency in Rosetown. In 1989 Mr. Anderson took job coaching hockey in Johannesburg, South Africa, while Mrs. Anderson remained in Rosetown. In 1990, Mr. and Mrs. Anderson both moved to Whitehorse, Yukon, and the house on the acreage was rented out. In 1991 they both moved to Capetown, South Africa. In 1992 they moved back to Whitehorse. In the spring of 1993 they moved back to the acreage in Rosetown. [4] While in South Africa Mr. and Mrs. Anderson had researched the ostrich business and decided they would like to become involved in the business of ostrich farming. While still living in the Yukon they incorporated in Saskatchewan, Satara Farms Inc. on August 4, 1992 with view to entering into the ostrich business. After moving back from the Yukon in 1993 Mr. Anderson built barn on the property to be subsequently used for the raising of ostriches. Ostrich eggs did not arrive until 1994. [5] It will be observed from the foregoing history of the property the only reference to farming activity prior to 1993, was the raising of some poultry in 1988, while both Mr. and Mrs. Anderson were full-time employed in non-farming occupations. There is no reference in the material to any farming activity on the mortgaged property in the years 1990, 1991 and 1992 while both respondents lived elsewhere. In the Act homestead is defined in s. 2(1)(h) as: (i) the house and buildings occupied by farmer as his bona fide farm residence; and (ii) the farm land on which the house and buildings mentioned in subclause (i) are situated, not exceeding 160 acres or one quarter section, whichever is greater; Farm land is defined in s. 2(1)(f) as: real property in Saskatchewan that is situated outside city, town, village, hamlet or resort village and that is used for the purposes of farming. As noted per Jackson J.A. in Bank of Montreal v. Nevin (1996), 1996 CanLII 5000 (SK CA), 144 Sask. R. 178 (Sask. C.A.) at p. 183: That there is farming component to each part of this definition is apparent. To be homestead, there must be bona fide farm residence and the land on which such residence sits must be used for "farming purposes". [Emphasis in original] [6] The respondents have not established that the land in the period of time prior to August of 1992 met the definition of farm land. The land was not being put to any farming purpose during that period. The respondent\'s house on the property in August 1992 fell into the category of what Gerein J. in Bank of Nova Scotia v. Blair (1989), 1989 CanLII 4547 (SK QB), 75 Sask. R. 289 at p. 292 referred to as "simply a dwelling in isolation". The land was not therefore, a homestead within the meaning of the Act in August of 1992, and the homestead provisions of s. 44 of the Act have no application in this case. Upset Price [7] There is no recent appraisal information available with respect to the property. The respondents state an upset price should reflect the amount of equity they have in the property. The applicant takes the position that as the property has been listed for sale for some considerable period of time without substantial offer forthcoming, an upset price should be the amount currently owing under the mortgage of $61,000.00. [8] In an formal appraisal done April 25, 1997 for financial institution other than the plaintiff, the property was appraised at $115,000.00. This appraisal recognized that on cost replacement basis the value of the property was $193,500.00, and went on to say that acreages in southwestern Saskatchewan have typically sold between 40 percent and 70 percent of physically depreciated cost, depending on location. This appraisal went on to note that in view of the fact the subject property was located reasonably close to Rosetown, value near the top of that range was considered to be reasonable and the 40 percent depreciation factor applied. [9] On April 15, 1998 valuation of the property by real estate firm in Rosetown, Saskatchewan offered the opinion the total market value of the property was $225,000.00. The basis for this opinion was not identified in the report. [10] The most recent appraisal was conducted at the request of the applicant and is dated October 8, 1999. This appraisal report, using direct comparison approach, set the value of the property at $72,000.00 $88,000.00. The report went on to note: Subject property listed for sale for approximately year. Original listing price at $225,000. Listing agent reports two offers, one at $61,000 and one at $72,000. Offers reflect little consideration by potential purchasers for the barn facility and also the non-typical design of the dwelling may be impacting negatively on value. [11] In an affidavit dated February 19, 2000 Mr. Anderson states he believes an appropriate reserve bid would be $200,000.00. He states with respect to the last appraisal conducted, the appraiser did not inspect the interior of the buildings on the property. He goes on to state: .The property is 10 acres, miles from Rosetown. It has very large, modern house, with every convenience available. It cost $120,000.00 to build in the late 1980's. There is well with good water supply, which cost $22,000.00 to put in. As well, special 4,000 square-foot barn is on the property. It cost about $80,000.00 to build. It is used for my ostrich-breeding operation at present and has specialized equipment in it, such as $10,000.00 incubator. As well, it has radiant floor heat, and 14-foot ceilings. This construction allows the barn to be used for other purposes, such as machinery storage, manufacturing or horse training. [12] Without going into detail, the respondents have been rather unlucky to date in their ostrich breeding operation, which includes initial difficulties with sources of supply, the purchase of shelters for the ostriches which failed and resulted in the plaintiffs obtaining $140,000.00 judgment which apparently is yet uncollected against the manufacturer or distributor, as well as reverses in their marketing efforts caused in part by an oversupply situation. The implication in the affidavit material is that the respondents will remain in the ostrich business irrespective of final order for sale or foreclosure with respect to this property. The respondents ask for more time in order to refinance the operation. They make the point that they have cleared off most of the debt associated with the ostrich enterprise except for the Bank of Nova Scotia and the execution holders on title. The Farm Land Security Board report, which is now somewhat dated having been prepared in January 1998 concluded that: ". .the farmers have made sincere and reasonable effort to meet their obligations under the mortgage". [13] On this application, apart from asking for six month redemption period in order to allow refinancing of the property, the respondents did not update how likely it is that such refinancing is realistically possible in the short term. Likewise, the respondents did not provide an updated appraisal that would support their position the property is worth far more than the $61,000.00 the bank proposes as an upset price for sale. The respondents also did not comment on what if any offers of purchase they have received in the past year and half. [14] am not comfortable at setting an upset price for the sale at $61,000.00 considering the amount of money the respondents have invested in the property, unless there is no other choice. At the same time, am not comfortable guessing at what if any higher upset price should be set. Leaving aside the depressed rural economy in Saskatchewan, which may account for the fact substantial offers to purchase have not been forthcoming, it is also puzzling why the respondents have not been able to refinance the property if the ongoing operation has chance of success, bearing in mind the amount of the mortgage debt is not beyond the means of the average $30,000.00 wage earner. [15] In the end result, I consider it reasonable to adjourn this application to myself on June 7, 2001 at a time to be set by the local registrar. If this time does not allow the respondents to resolve the debt, by sale of the property or refinancing, then the respondents shall have the onus on the return date of providing evidence why the upset price suggested by the applicant should not be included in an order nisi for sale. The evidence submitted by the respondents to date does not do this. [16] Application adjourned.

FIAT. The applicant sought an order nisi for sale of a 10 acre parcel of land on which the respondents operate an ostrich farming business. The amount owing on the mortgage was $61,194.91 as of February 12. In issue was whether the home was a homestead within the meaning of the Saskatchewan Farm Security Act when s.44(17) was proclaimed on September 20, 1992. HELD: The application was adjourned to June 7. 1)The homestead provisions of s.44 had no application in this case. The land was not being put to any farming use prior to August 1992 and the respondent's house at the time fell into the category of 'simply a dwelling in isolation' (Bank of Nova Scotia v. Blair). 2)There was no recent appraisal information available. If the respondents have not resolved the debt by sale or refinancing by the return date they will have the onus of providing evidence that the upset price suggested by the applicant should not be included in an order nisi for sale.

9_2001skqb132.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 54 Date: 2009 01 30 Docket: Q.B. 956/06 Judicial Centre: Regina BETWEEN: FRANK BROOKS PLAINTIFF (RESPONDENT) and HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF CANADA, GOVERNMENT OF CANADA, and the MINISTER OF NATIONAL DEFENCE DEFENDANTS (APPLICANTS) and THE DOW CHEMICAL COMPANY and PHARMACIA CORPORATION THIRD PARTIES (APPLICANTS) Counsel: E.F. Anthony Merchant, Q.C. Patrick G. Alberts Casey Churko for the plaintiff (respondent) Mark R. Kindrachuk, Q.C. Michael Brannen John C. Spencer Cynthia Koller William Knights for the defendants (applicants) F. William Johnson, Q.C. Alan H. Mark D. Michael Brown for the third party (Dow Chemical Corporation) (applicant) Ivan G. Whitehall, Q.C. Peter N. Mantas Peter Bergbusch for the third party (Pharmacia Corporation) (applicant) FIAT ZARZECZNY J. January 30, 2009 THE APPLICATION [1] Each of the defendants and third parties (collectively the “Applicants”) apply to the court to stay either permanently or on an interim basis, the plaintiff’s claim commenced pursuant to The Class Actions Act, S.S. 2001, c . C-12.01, as am. (the “Act” or “Sask. Act”) now represented by an amended Statement of Claim filed with the court November 7, 2008 (“Claim”). The stay applications, although separately filed and differently worded, seek the same discretionary order of the court pursuant to subsection 37(1) of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 and/or Rule 173 of the Queen’s Bench Rules of Court. [2] The applicants submit that this action and these proceedings are an abuse of the court’s process and that the court has the statutory and inherent jurisdiction to order the action stayed. The applicants argue that substantially similar proceedings claiming similar relief for similar claims have been commenced against the defendants and third parties in the courts of Saskatchewan, Newfoundland and Labrador, British Columbia, Manitoba, Ontario, Nova Scotia and New Brunswick and previously in the Federal Court of Canada. [3] The plaintiff, Frank Brooks, commenced his class action in Saskatchewan when this court issued his original Claim on June 12, 2006 (the “Sask. Action”). The original defendants commenced third party claim against The Dow Chemical Company and Pharmacia Corporation by notice dated June 27, 2008 (respectively “Dow” and “Pharmacia” and collectively the “Third Parties”). The plaintiff filed an amended Claim on November 7, 2008 changing somewhat the description of the defendants and amending the Claim to “multi-jurisdictional class action on behalf of class of persons residing in each Canadian province and territory”. The plaintiff claims “an order certifying multi-jurisdictional class action and naming representative plaintiff for the national opt-out class”. The amended Claim appears intended to respond to and take advantage of recent amendments to the Act. In parlance familiar to those involved in class action litigation, Saskatchewan is now “no costs” jurisdiction providing for the certification of national (multi-jurisdictional) class action on an “opt-out” basis. [4] The Sask. Action deals with the claim of the plaintiff, as representative of “a class of persons residing in each Canadian province and territory” who claim damages for injuries that are alleged to have been caused by the testing and application of herbicides (e.g. “agents orange, agents white”) at Canadian Forces base at Gagetown, New Brunswick (“CFB Gagetown”). To date, eleven Statements of Claim have been filed across Canada, nine by Merchant Law Group (“MLG”) (one in the Federal Court of Canada and eight others in each of the provinces of British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland and Labrador). Two other related actions have been filed by New Brunswick based law firm, the Barry Spalding law firm (the “Spalding Group”) in New Brunswick and in Newfoundland and Labrador with whom MLG has subsequently entered into “cooperation agreement”. [5] The federal court action was stayed in May of 2006 after third party claims were made against Dow and Pharmacia in respect of whom the federal court lacked jurisdiction. To date, MLG has filed motions for certification in three of its actions, in the provinces of Manitoba, Newfoundland and Labrador and Saskatchewan. In respect of the Manitoba action, the defendant was unsuccessful in motion it made to stay that action and an appeal from that decision to the Manitoba Court of Appeal was denied on October 23, 2007. The plaintiff in the Manitoba action has been given leave to apply for certification in Manitoba, however the certification proceedings in that province have not been advanced. An amended certification application has been made in respect of the Sask. Action and it is currently scheduled to be heard by the court on March 10 13, 2009. [6] The case most advanced is the Newfoundland and Labrador class action which, after MLG was awarded carriage of the action against the competing application of the Spalding Group, was certified by the Newfoundland court on August 1, 2007. The defendants appealed. The Newfoundland Court of Appeal granted leave to appeal that certification order, the appeal apparently not yet perfected and not yet scheduled for hearing. [7] Newfoundland, MLG explains, was attractive as venue prior to the Sask. Act amendments since it offered an opt-out /opt-in-no costs regime. The plaintiff in the Sask. Action, Frank Brooks, gave written notice of his intention to opt-in to the Newfoundland action. However, to date, this has not been possible since representative plaintiff for the out of province class in those certification proceedings has not yet come forward. The scope of the claims of the class certified in the Newfoundland action are narrower than applied for by the amended certification application in the Sask. Action. The Newfoundland certification is limited to claims involving “lymphoma”. This is far narrower than the range of illnesses which have been claimed for on behalf of the class proposed to be certified in the Sask. Action. [8] The New Brunswick class action certification application, the carriage of which was allocated to the Spalding Group by the “cooperation agreement” was heard on December 12, 2008. The decision in respect of that certification application has been reserved. The defendants have consistently advanced the position that because of CFB Gagetown’s location, namely the province of New Brunswick, it is New Brunswick that is the most appropriate jurisdiction for the trial of any and all CFB Gagetown related class action claims. This position has not won favor in either Newfoundland or Manitoba. At the time that MLG and the Spalding Group actions were commenced in New Brunswick (July and June/2006 respectively), New Brunswick had intended to but not yet passed its class action legislation, now since passed. (A litigation history of all the outstanding actions and their status “at glance” is very conveniently outlined and set out in Appendix “A” to the Brief of Fact and Law of the defendant applicants). [9] The action in New Brunswick is much broader than the proposed Sask. Action. There are significant geographic and other scopes to that New Brunswick action (including far wider list of damaging “substances”, larger group of defendants and broader scope of causes of action). While the New Brunswick action relates to claims arising in connection with CFB Gagetown, it is substantially different in character and scope to the proposed Sask. Action. [10] As has been illustrated by this brief analysis, MLG has been the most active in pursuing the interests of plaintiffs in multiplicity of class action proceedings commenced throughout Canada in respect of CFB Gagetown claims. This firm’s “head office” is in Regina where the bulk of its physical and professional resources are located. That firm has number of smaller offices or established agencies in other jurisdictions in Canada including British Columbia, Alberta, Manitoba, Ontario (Toronto) and Quebec (Montreal). [11] It is apparent, as the applicants assert and as is acknowledged by MLG, that MLG has chosen different jurisdictions, at different times, that it considered offered the best and most inclusive opportunities for the representation of plaintiffs’ interests in the CFB Gagetown litigation. The multiplicity of actions currently commenced and outstanding in the various jurisdictions already referred to are illustrative of this approach. [12] As result of the recent amendment to the Sask. Act providing, as it now does, for the certification of national (multi-jurisdictional) “opt-out” class with “no-cost” regime, Saskatchewan now appears to be MLG’s decided jurisdictional preference for the adjudication of the CFB Gagetown claims of those plaintiffs which MLG represents or seeks to represent nationally (estimated to be some 3,000 individuals currently). Saskatchewan, so MLG has concluded, is as favourable class action jurisdiction to pursue the class action claims related to CFB Gagetown as exists in Canada. It is comparable to the inclusiveness (opt-out) and reduced risk (no cost jurisdiction) available in the only other jurisdiction offering these desirable statutory features Manitoba. [13] Succinctly and directly put, MLG has proceeded with various stages of the class action proceedings which it has commenced throughout the various jurisdictions in Canada as it has considered to be to the best advantage of the plaintiffs which that firm represents or seeks to represent. Initially Manitoba seemed favored, then subsequently, Newfoundland. Now Saskatchewan is the clear preference. Many of these strategic decisions appear driven by the nature and state of class actions legislation in the various jurisdictions in which claims were commenced. [14] The applicants have argued that these “tactical” decisions are and do constitute an abuse of the process of the various courts involved, in particular, now Saskatchewan. They argue these actions are duplicitous, duplicative of judicial resources and perhaps, of greatest concern to the applicants, tremendous and costly expenditure of time and money. Their costly participation in the certification hearings held to date in Newfoundland and New Brunswick are illustrative, not to mention the doubtless cost incurred with respect to the numerous collateral and procedural motions that have been taken in the various jurisdictions (primarily on the initiative of the applicants) including the motion presently before this court. ISSUE [15] The following issue is presented for the court’s determination, namely:Should the Sask. Action be stayed permanently or on an interim basis with or without conditions on the basis of abuse of process? [16] All parties to this application have filed extensive Briefs of Law and Argument including Cases and Authorities in support of their respective positions. In addition to the general authorities applicable to the issue of the court’s inherent and statutory jurisdiction to stay actions for abuse of the court’s process, the applicants rely heavily upon the Saskatchewan Court of Appeal’s recent decision in the case of Englund et al. v. Pfizer Canada Inc. et al, 2007 SKCA 62 (CanLII); (2007) 299 Sask. R. 298; (2007) 284 D.L.R. (4th) 94 In Englund, Richards J.A., delivering the judgment of the court, observed at para. 36 as follows: 36 We believe the same concerns which motivate the courts to characterize the bringing of multiple actions in single jurisdiction as an abuse of process can also apply, in appropriate circumstances, where the multiple actions have been brought in two or more jurisdictions. In saying this, we recognize that, in the development of the English case law, there is some overlap between abuse of process terminology and the doctrine of forum non conveniens. ... After making this observation and thereafter analyzing the circumstances before the court including the degree of similarity between the Sask. Action being considered and the comparable Ontario action, the court concluded at para. 40 of its judgment as follows: 40 This is all quite unusual. We would not suggest that it is always or necessarily an abuse of process for plaintiff to launch claims against the same defendant, and arising out of the same subject matter, in more than one jurisdiction. There will sometimes be entirely valid reasons for such an approach. See: Castel and Walker, Canadian Conflict of Laws, vol. 1, 6th Ed. looseleaf (Markham, Ont.: LexisNexis Canada Inc, 2005) at para. 13.6. But where, as here, there is no suggestion that multiple claims serve any legitimate interest of the plaintiffs, the complexion of things changes. In such circumstances, the courts are being used in manner which serves no proper purpose or which is vexatious or oppressive. [17] The Court of Appeal in Englund, reversing the trial court decision, ordered conditional stay of the Sask. Action. The resolution of the issue before this court presents circumstances quite different from those which the Court of Appeal dealt with in Englund. Since Englund, substantial amendments were made to the Sask. Act amendments which fundamentally change the considerations which were before the Court of Appeal in Englund. [18] The 2007 amendments to the Sask. Act specifically address multi-jurisdictional class actions. They introduced new definition in s.2 defining “multi-jurisdictional class action” to mean; “an action that is brought on behalf of class of persons that includes persons who reside in Saskatchewan and persons who do not reside in Saskatchewan”. Subsection 4(2)(c) was amended to add notice provision requiring notice of any application for certification to be given; “to the representative plaintiff in any multi-jurisdictional class action, or any proposed multi-jurisdictional class action, commenced elsewhere in Canada that involves the same or similar subject-matter”. new and extensive s.6 was added to the Act setting out the special objectives and relevant factors mandated for the court’s consideration with respect to the certification of multi-jurisdictional class action. The amendments to s.6 now provide the core considerations that the parties and the court must address in multi-jurisdictional class action certification proceedings. It addresses many, if not all, of the concerns that are raised by the applicants in support of their present stay applications. [19] Most notably subsection 6(2) and (3) are new sections and they are directly relevant to the determination of the stay applications before the court. They provide as follows: 6(2) If multi-jurisdictional class action, or proposed multi-jurisdictional class action, has been commenced elsewhere in Canada that involves subject-matter that is the same as or similar to that of the action being considered pursuant to this section, the court shall determine whether it would be preferable for some or all of the claims or common issues raised by those claims of the proposed class members to be resolved in that class action. (3) For the purposes of making determination pursuant to subsection (2), the court shall: (a) be guided by the following objectives: (i) ensuring that the interests of all of the parties in each of the relevant jurisdictions are given due consideration; (ii) ensuring that the ends of justice are served; (iii) avoiding, where possible, the risk of irreconcilable judgments; (iv) promoting judicial economy; and (b) consider all relevant factors, including the following: (i) the alleged basis of liability, including the applicable laws; (ii) the stage each of the actions has reached; (iii) the plan for the proposed multi-jurisdictional class action, including the viability of the plan and the capacity and resources for advancing the action on behalf of the proposed class; (iv) the location of the representative plaintiffs and class members in the various actions, including the ability of representative plaintiffs to participate in the actions and to represent the interests of the class members; (v) the location of evidence and witnesses. [20] New s.6.1 was added by the 2007 amendments to the Act and it provides as follows: 6.1(1) The court may make any order it considers appropriate in an application to certify multi-jurisdictional class action, including the following: (a) an order certifying the action as multi-jurisdictional class action if: (i) the criteria set out in subsection 6(1) have been satisfied; and (ii) having regard to subsections 6(2) and (3), the court determines that Saskatchewan is the appropriate venue for the multi-jurisdictional class action; (b) an order refusing to certify the action if the court determines that if should proceed as multi-jurisdictional class action in another jurisdiction; (c) an order refusing to certify portion of proposed class if the members of that portion of the class contains members who may be included in pending or proposed class action in another jurisdiction. (2) If the court certifies multi-jurisdictional class action, the court may: (a) divide the class into resident and non-resident subclasses; (b) appoint separate representative plaintiff for each subclass; and (c) specify the manner in which, and the time within which, members of each subclass may opt out of the action. [21] The court has concluded that virtually all, if not all of the concerns raised by the applicants in support of their stay applications are intended to be, and for that matter, mandated to be considered by the court during the certification application of this class action. “Traffic control” as between the nine or ten existing class actions commenced in the other provincial jurisdictions previously noted is the responsibility of this court upon certification as now required by subsections 6(2) and (3) of the Act. The “objectives” and “relevant factors” by which the court is to be guided and which it must consider involve the very considerations upon which the applicants base their stay applications. They include avoiding, where possible, the risk of irreconcilable judgments, the promotion of judicial economy, the consideration of the laws applicable, the stage each action has reached, the plan for the proposed multi-jurisdictional class action and the location of the representative plaintiffs, class members, evidence and witnesses. [22] The discretion granted by the legislature to the court with respect to any certification orders it may issue as outlined in s.6.1of the Act is very broad. That discretion must be exercised having regard to the criterion set out in subsection 6(2) of the Act. That may prompt conclusion that deference should be given to an existing class action commenced in another jurisdiction. The discretion of the court is further circumscribed by the objectives and relevant factors set out in subsection s.6(3). [23] The court has concluded that when this new multi-jurisdictional class action framework, especially s.6, is considered as a whole, it is clear that the concerns raised by the applicants in support of their stay application (being some of the same concerns as were addressed by the Court of Appeal in Englund), have been eclipsed. They are now specifically and legislatively required to be addressed by the court at the certification stage and after a certification hearing has been conducted. It is at that time when the full and further information which the court may require and which it is mandated to consider by s.6 of the Act will be fully before the court and the court can consider the imposition of any conditions, limitations or otherwise to any certification order which it may consider to be appropriate in the whole of the circumstances. Inviting the court, as the applicants in the present case have done, to consider these issues in preliminary application is premature and an unnecessary duplication of resources and expense. [24] That is not to say that there might not arise some circumstances where an application to stay multi-jurisdictional class action for abuse of the court’s process might be appropriate, however, the court has concluded that this is not one of them. [25] This court recognizes that the approach, both legislative and judicial, to the certification and adjudication of multi-jurisdictional class actions is in dynamic phase of development in Canada and among its various jurisdictions. These issues present new and likely numerous challenges both for parties involved in them and the courts. New approaches and likely court-to-court communications and protocols will need to be developed. Issues of forum non conveniens, jurisdiction, the scope of comity and recognition of extra provincial orders issued in multi-jurisdictional class action suits illustrate only some of the challenges to be addressed. [26] Many of these issues and proposals for functional, pragmatic and rational approach to the recognition of multi-jurisdictional class action judgments is discussed by Professor Janet Walker of the Osgood Hall Law School, York University in her article “Recognizing Multi-Jurisdiction Class Action Judgments Within Canada: Key Questions Suggested Answers”, (2008), Vol. 46 Canadian Business Law Journal p.450, (Canada Law Book). As this author observes at page 463 commenting upon these challenges and the new amendments to the Sask. Act: The considerations described above are reasons for recognizing class action judgments from other courts, but they can also provide guidance in the processes of defining the class, measuring the adequacy of representation and the litigation plan, resolving contested carriage motions, and assessing the adequacy of the proposed relief in the settlement hearing. In some cases, these considerations would be enough to determine where multi-jurisdiction class action would best be decided, but in other cases, these requirements might be met in more than one jurisdiction. To assist in addressing these situations, s.6 of the Saskatchewan Class Actions Act now provides guidance to courts in determining when to certify multi jurisdiction class action in circumstances in which there is competing multi-jurisdiction class action [27] This court acknowledges the continuing challenges that are raised with respect to the judicial management and handling of multi-jurisdictional class actions (see for example Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 229 (CanLII); 312 Sask. R. 265, Tiboni v. Merck Frosst Canada Ltd. (2008), 2008 CanLII 37911 (ON SC), 295 D.L.R. (4th) 32 at paras. 21, 33 41). As observed by Richards in Englund at para. 31 We appreciate that the phenomenon of overlapping and parallel class actions commenced in different jurisdictions has become increasingly significant. There is now an active national debate as to how the difficulties posed by such proceedings might best be addressed. See, for example: Report of the Uniform Law Conference of Canada’s Committee on the National Class and Related Interjurisdictional Issues: Background, Analysis, and Recommendations, Vancouver, B.C. March 9, 2005. However, this appeal does not require us to engage in an exploration of the general approach which Saskatchewan courts should take in the face of typical overlapping multi-jurisdictional class proceedings, i.e. proceedings where different proposed representative plaintiffs, acting in separate jurisdictions, have commenced similar claims. [28] What Richards J. observed in para. 31 the court not being required to consider in Englund, this court is now required to consider illuminated by the light of the 2007 multi-jurisdictional class action amendments to the Sask. Act. As have concluded, these amendments directly and conclusively answer the question as to when the various and important considerations raised by the stay applications presented to this court should appropriately be considered namely, at the certification application stage. [29] This court should parenthetically observe that even if the Englund case criteria were to be applied to the consideration of the stay applications presently before the court, the court would be inclined, in any event, to dismiss this stay application in the facts and circumstances of this case. As already observed, there are many differences between the proposed Saskatchewan class to be certified, its inclusiveness and exclusiveness, the nature of the injuries claimed for, the substances alleged to have caused those injuries and the enumerated defendants or third parties in the actions commenced in each of the other jurisdictions (especially those in Newfoundland and New Brunswick). That alone, without the assistance of s.6 and the other amending provisions of the Sask. Act, distinguish this case from those criteria which the Court of Appeal applied in Englund to reach the conclusion that that action should appropriately (but conditionally) be stayed. CONCLUSION [30] For the reasons outlined, the applications to stay, on either an interim or permanent basis, the Sask. Action are dismissed. As is usual in such circumstances, the plaintiff is awarded his costs of the application. Because of the similarity of the three applications made, the plaintiff is awarded one set of costs only to be shared by the applicants equally and paid, as is usual, within 30 days. If not agreed upon, the same are directed for assessment by the Local Registrar. J. T.C. ZARZECZNY

FIAT: Each of the defendants and third parties (collectively the 'applicants'), apply to stay either permanently or on an interim basis the plaintiffs' claim commenced pursuant to The Class Actions Act. The stay applications seek the same discretionary order of the court pursuant to s. 37(1) of The Queen's Bench Act, 1998 and/or Rule 173 of the Queen's Bench Rules. The plaintiff's action claims damages for injuries that are alleged to have been caused by the testing and application of herbicides at a Canadian Forces base in New Brunswick. To date 11 statements of claim have been filed across Canada, 9 by Merchant Law Group (MLG). MLG has proceeded with various stages of the class action proceeding which it has commenced through the various jurisdictions in Canada as it has considered to be to the best advantage of the plaintiffs which that firm represents or seeks to represent. Now Saskatchewan is the clear preference. Many of these strategic decisions are driven by the nature of state of class actions legislation in the various jurisdictions in which claims were commenced. The applicants claim these strategic decisions are and do constitute an abuse of process. They claim they are a costly expenditure of time and money. The applicants have already participated in certification hearings in Newfoundland and New Brunswick. The issue on this application is whether the Saskatchewan action should be stayed permanently or on an interim basis with or without conditions on the basis of abuse of process. HELD: The applications to stay, on either an interim or permanent basis, the Saskatchewan action are dismissed. 1) The Court has concluded that virtually all, if not all of the concerns raised by the applicants in support of their stay applications are intended to be, and for that matter, mandated to be considered by the court during the certification application of this class action. 'Traffic control' as between the nine or ten existing class actions commenced in the other provincial jurisdictions is the responsibility of this Court upon certification as now required by s. 6(2) and s. 6(3) of the Act. The objectives and relevant factors by which the court is to be guided and which it must consider involve the very considerations upon which the applicants base their stay applications. They include avoiding, where possible, the risk of irreconcilable judgments, the promotion of judicial economy, the consideration of the law applicable, the stage each action has reached, the plan for the proposed multi-jurisdictional class action and the location of the representative plaintiffs, class members, evidence and witnesses. The discretion granted by the legislature to the court with respect to any certification orders it may issue as outlined in s. 6.1 of the Act is very broad. That discretion must be exercised having regard to the criterion set out in s. 6(2) of the Act. That may prompt a conclusion that deference should be given to an existing class action commenced in another jurisdiction. The discretion of the court is further circumscribed by the objectives and relevant factors set out in s. 6(3) of the Act. The concerns raised by the applicants in support of their stay application have been eclipsed. They are not specifically and legislatively required to be addressed by the court at the certification stage and after a certification hearing has been conducted. 2) Even if the criteria in Englund v. Pfizer Canada Inc., 2007 SKCA 62; were to be applied to the consideration of the stay applications presently before the Court, the Court would be inclined, in any event, to dismiss the stay applications in the facts and circumstances of this case. There are many differences between the proposed Saskatchewan class to be certified, its inclusiveness and exclusiveness, the nature of the injuries claims for, the substances alleged to have cause those injuries and the enumerated defendants or third parties in the actions commenced in each of the other jurisdictions. That alone, without the assistance of s. 6 and the other amending provisions of the Saskatchewan Act, distinguish this case from those criteria which the Court of Appeal applied in Englund to reach the conclusion that the action should be appropriately (but conditionally) stayed.

8_2009skqb54.txt

J. Date: 19990531 Docket: CA154851 NOVA SCOTIA COURT OF APPEAL Glube, C.J.N.S., Chipman and Pugsley, JJ.A. BETWEEN: EDMUND SAUNDERS Edmund Saunders in person Appellant (appellant) and THE ESTATE OF DOROTHY BELLE CROUSE Rubin Dexter for the Respondent respondent Merilyn Hendry Michael Baker for the respondent Zion Evangelical Lutheran Church Appeal Heard: May 31, 1999 Judgment Delivered May 31, 1999 THE COURT: The appeal is dismissed per reasons for judgment given orally by Pugsley, J.A.; Glube, C.J.N.S. and Chipman, J.A., concurring. Pugsley, J.A.: [1] This appeal involves consideration of s. 31(1) of the Probate Act, C. 359 R.S.N.S.(1989). It also involves consideration of request from both counsel for the respondents that the appeal be dismissed with costs to be awarded on solicitor and client basis. [2] Dorothy Crouse, widow of Lunenburg, in her last will of September 16, 1995, appointed Edmund R. Saunders, the appellant, sole executor of her estate. She died on September 13, 1997. [3] Mr. Saunders had practised law for in excess of forty years before his retirement in the early 1990's. [4] The will was submitted to probate on September 15, 1997. Mrs. Crouse made number of specific bequests, including bequest of $50,000.00 to her niece, Merilyn Hendry, and bequest of $10,000.00 to the Zion Lutheran Church in Lunenburg. The residue of the estate was left to Ms. Hendry, and her brother, in equal shares. [5] On September 4, 1998, Mr. Saunders wrote the residuary legatees stating, in part: Enclosed please find copies of the account and citation. Kindly review the account carefully and advise of any errors. am confident that there are no errors, but would appreciate your review advice. [6] The account disclosed that the assets of the estate consisted of marketable securities of approximately $91,000.00 and cash of approximately $38,000.00. Bequests "paid" were listed at $88,000.00. schedule indicated that partial distribution, by way of advance, had been made to Ms. Hendry in the amount of $3,000.00 on September 16, 1997. [7] In fact, apart from this advance, no amounts had been paid on account of the bequests. [8] On December 18, 1998, Mr. Saunders applied to the Acting Registrar of Probate to have his executors accounts examined and approved. At the request of counsel for the main legatees, the Acting Registrar ordered, pursuant to s. 124 of the Probate Act, that all estate money be paid into an estate bank account. Apparently no funds were available to respond to that direction. [9] On January 14, 1999, at hearing to consider the citation to close the estate, Mr. Saunders advised Justice Carver, who had by then been assigned the file, that there was no money in the estate, but that he expected to receive funds shortly. [10] The matter was adjourned until January 28. Mr. Saunders then advised Justice Carver: still haven’t come up with the money. It is not there and have loaned it out, it may be questionable, don’t know whether have improperly done so, probably have, but can’t be certain of that whether I’ve improperly done it or not it’s not in accordance with the Trustee Act. [11] On March 2, 1999, Ms. Hendry filed petition, supported by her affidavit, setting out her concern that the estate property would go to waste under Mr. Saunders’ direction. She requested an order requiring Mr. Saunders to provide security. [12] The application was heard on March 12, 1999, before Justice Carver. [13] Upon being ordered to submit to cross-examination by counsel for the legatees, Mr. Saunders testified that in order to forestall foreclosure on real property owned by his daughter, in late September, 1997, he advanced approximately $64,000.00 from estate funds to the mortgage company. He testified further that his daughter was not aware of the advance he made on her behalf. His daughter subsequently lost the property on later foreclosure. [14] Mr. Saunders was asked: And did you get any security for the payment of the $64,000? He responded: None whatsoever, no. Didn’t ask for it, don’t want it. intend to pay it out of my own pocket. [15] On September 24, 1997, he had placed demand note in the estate file, promising to pay to the estate $64,998.42 "together with interest thereon at the rate of 5% per annum compounded annually". [16] In January and April, 1998, Mr. Saunders placed in the estate file, two additional demand notes, aggregating $51,000, representing additional funds he had taken from the estate for "personal purposes". He was not able to recall the nature of those purposes. He acknowledged that he has not advised the beneficiaries of his decisions as They would want to have answers for me to get this money, which couldn’t get in and they’d want answers faster than was prepared to give them the answers. [17] Mr. Saunders testified in part as follows: took my own personal responsibility to pay certain things which don’t think should have done, but did I’m personally liable know probably shouldn’t have done that didn’t do what should have done in the Estate agree But once it got out and couldn’t get it back in what was to do? ... perfect example of why xecutors shouldn’t do what I’ve done have done disservice, agree. Mr. Saunders also testified that he had taken out of estate funds "about five per cent, the usual commission withdraw". [18] After hearing submissions by Mr. Saunders and on behalf of the other parties, Justice Carver determined in part: Mr. Saunders had funds of the estate and he has converted those funds to his own use. Now it’s easy to say that it’s gone into mortgage or it’s gone for another estate, but plain and simple, the money has gone for his own use. And therefore Mr. Saunders either has to pay that back, which he promised he was going to have by this time. If I gave him a little extra time, or he’s going to have to post a bond. . . . Mr. Saunders I am making an order that you . . . pay $130,000.00 into the estate and failing that, that you provide $250,000.00 by way of a bond with two sureties . . . and the deposit must be made to Mr. Bolivar on or before the 25th day of March, 1999, at 3:00 o’clock in the afternoon or the bond must be completed and filed with him by that time . . . and if you have not paid the money in, if you have not provided the security that I have ordered, then you’ve got to be here, because at that time there will be an application made, I understand, from those parties to have you removed as the executor of the estate. [19] Mr. Saunders appeals from Justice Carver’s judgment, alleging that he erred in: 1. granting an order without first requiring proof of and making determination of whether Mr. Saunders was wasting the estate, as required by s. 31(1) of the Probate Act; 2. granting such order without determining that an executor has the same right and authority to control the assets of the estate as the testatrix would have if living, unless and until, there is proof that such executor is wasting the estate; 3. in failing to determine the issue of what was in the best interests of the estate whether the improper investments on the part of the executor should stand up until the closing of the estate and what interest rates would be proper against the executor in the circumstances; 4. and directing the registrar to confiscate Mr. Saunders’ estate file and thus hampering him in his further work on the estate. [20] Section 31(1) of the Probate Act, entitled "Executor wasting estate", provides: The court of probate, upon the summary application of anyone interested in the estate, if it is proved to the satisfaction of the court that an executor is wasting the estate, may order the executor to give security for the performance of his duty. [21] The term "wasting the estate" is not defined in the Probate Act. [22] The term usually arises in the context of real property, but according to Professor Feeney, author of The Canadian Law of Wills, it should be viewed in broader context. Professor Feeney wrote (Vol. 1, 3rd Ed., (1987) at p. 253: Where personal representative mismanages, squanders or neglects to get in the assets of an estate, he is guilty of wasting them or, as it is said, he has committed devastavit. [23] The evidence given by Mr. Saunders before Justice Carver is an acknowledgment of positive misconduct respecting the administration of the estate. [24] Justice Carver was not required, in these circumstances, to make an express finding that Mr. Saunders was "wasting the estate". It is implicit in his decision that such finding had been made, and that finding was based on Mr. Saunders’ testimony. Justice Carver concluded that Mr. Saunders converted estate funds "to his own use", and that those actions resulted in Mr. Saunders having "done a real disservice to this estate". These conclusions, as well, were based on Mr. Saunders’ evidence. [25] Mr. Saunders’ acknowledged actions constituted a flagrant breach of fiduciary obligations owed by him as executor of the estate. These actions constituted sufficient justification for his removal as executor (Macdonnell, Sheard, Hull, Probate Practice 4th Ed., (1996) pp. 161-167). Justice Carver directed Mr. Saunders on January 14, 1999, to reimburse the estate with the money he had taken in September, 1997 and January, 1998. As of the date of this appeal, no part of those funds had been returned. [26] In view of the actions of Mr. Saunders, and his professed ignorance respecting the personal uses to which he employed substantial part of the estate funds, Justice Carver was completely justified in ordering that his executor’s file be delivered to the court. In fact, Mr. Saunders expressed no opposition to yielding up his file. Okay. That’s fine I’ll add to it if you want anything else. [27] Mr. Saunders is entitled to view the contents of the file, in the presence of the Acting Registrar or his appointee, and would, as well, be entitled to receive copies of any of the materials in the file. [28] There is, in our opinion, no merit in any of the grounds advanced on this appeal. Justice Carver committed no error of law, or principle, with respect to the issues before him. We are further satisfied that he exercised his discretion in proper manner. Respondents’ Request for Solicitor and Client Costs [29] The order of March 18, 1999, provided that the issue of costs be determined on March 25, 1999. [30] In view of this appeal, which was filed on March 22, 1999, the resolution of that issue has not been determined. [31] Counsel for the two respondents have requested costs on this appeal "on solicitor/client scale, fixed and payable forthwith". [32] Solicitor and client costs are only awarded in this jurisdiction in rare and exceptional circumstances (Brown v. Metropolitan Authority et al (1996), 1996 CanLII 5608 (NS CA), 150 N.S.R. (2d) 43 (C.A.). [33] We leave the matter of costs respecting the hearing before Justice Carver, for the determination of Justice Carver. [34] With respect to costs on this appeal, it is relevant to consider the matters that gave rise to the appeal. Mr. Saunders’ actions amounted to serious dereliction of duty which we would class as unconscionable. Those actions go beyond what we might term as merely reprehensible. [35] The grounds of appeal are without merit, indeed, without any modicum of merit. We are of the view that the appeal was brought for the sole purpose of delaying the legatees from pursuing their legitimate rights. As such, this proceeding is an abuse of the appeal process. We would classify the matter before us as one of those rare and exceptional cases in which solicitor and client costs should be ordered. Conclusion [36] The appeal is dismissed with costs as between solicitor and client awarded to the respondent, Merilyn Hendry, as well as to the respondent Zion Evangelical Lutheran Church. These costs to be taxed are to be paid forthwith by the appellant, Edmund R. Saunders, personally. [37] We would further direct that Mr. Saunders file, on or before 12:00 noon, on Monday, June 7, 1999, with the Registrar of Probate in Bridgewater, Nova Scotia, sworn statement of his assets and liabilities as of Monday, June 7, 1999, and further file sworn list of all transactions of assets disposed of, directly or indirectly, by him since September 13, 1997. Pugsley, J.A. Concurred in: Glube, C.J.N.S. Chipman, J.A.

One of the residual legatees of the respondent estate filed a petition under s. 31(1) of the Probate Act. At the hearing on the application, the executor, under cross-examination, admitted that he had 'done a disservice to the estate' and that his actions were a 'perfect example of why executors shouldn't have done what I have done.' The Chambers judge found that the executor converted estate funds to his own use and ordered the appellant to post security pursuant to the Act. The executor appealed. He submitted that the Court had not explicitly determined that he had committed waste, and accordingly there was no basis or foundation for an order requiring him to post security. Dismissing the appeal, that the appellant's own admissions under oath were sufficient bases for the Court's finding. This was also one of those rare occasions where solicitor and client costs on the appeal were warranted, as the executor's actions amounted to a serious dereliction of duty which the Court termed reprehensible and unconscionable.

3_1999canlii2586.txt

J. Dated: 19980630 Docket: 2622 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise Gerwing JJ.A. and HER MAJESTY THE QUEEN COUNSEL: Mr. S. E. Halyk, Q.C. for the appellant Mr. D.M. Brown, Q.C. for the Crown DISPOSITION: On Appeal From: QBG1608/1996 Appeal Heard: 15 October 1997 Appeal Allowed: 30 June 1998 Written Reasons: 30 June 1998 Reasons By: The Hon. Mr. Justice Vancise In Concurrence: The Hon. Mr. Justice Cameron The Hon. Madam Justice Gerwing VANCISE J.A. Introduction [1] The primary issue on this appeal is whether the youth court has jurisdiction in proceedings which are commenced in youth court where it is alleged that the offences charged occurred when the accused was either a young person or an adult but it is not possible to determine whether at the time the alleged offences were committed the accused person was a young person or an adult. [2] The accused was charged by information dated January 6, 1996, that being a young person within the meaning of the Young Offenders Act,[1] he committed the following offences: (1) between January 1, 1982 and January 3, 1983, he did commit acts of gross indecency against G.W., contrary to s. 271 of the Criminal Code;[2] (2) between January 4, 1982 and December 31, 1989, he did on more than one occasion commit a sexual assault on G.W. contrary to s. 271 of the Criminal Code; and, (3) between January 1, 1983 and December 31, 1989, did have sexual intercourse with G.W. while knowing that G.W. was his sister and did thereby commit incest contrary to s. 155 of the Criminal Code. The Crown stayed an identical information previously laid against the accused alleging that the same offences occurred when he was an adult. [3] The accused was born on […], 1967 and, ignoring for the moment the transition provisions of the Young Offenders Act, became an adult on […], 1985. He was therefore charged with having committed certain offences during period of time, […], 1985 to December 31, 1989, when he was an adult. It is common ground that youth court judge does not have jurisdiction with respect to any offences which occurred after the date he became an adult. [4] Both the Crown and the defence agree that once an information alleges an offence occurred when the accused was young offender, the youth court judge has jurisdiction to embark on the inquiry. They differ on what happens if the youth court, having embarked upon the inquiry, is unable to determine whether the offence occurred when the accused was young offender or an adult. Relevant statutory provisions [5] The relevant portions of the Young Offenders Act 2.(1) Definitions In this Act, “young person” means person who is or, in the absence of evidence to the contrary, appears to be twelve years of age or more, but under eighteen years of age and, where the context requires, includes any person who is charged under this Act with having committed an offence while he was young person or is found guilty of an offence under this Act. 5.(1) Exclusive Jurisdiction of Youth Court Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by person while he was young person and any such person shall be dealt with as provided in this Act. 16.(1) Transfer to ordinary court Subject to subsection (1.01), at any time after an information is laid against young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 553 of the Criminal Code but prior to adjudication, youth court shall, on application of the young person or the young person’s counsel or the Attorney General or an agent of the Attorney General, determine, in accordance with subsection (1.1), whether the young person should be proceeded against in ordinary court. 16(1.1) Order In making the determination referred to in subsection (1) or (1.03), the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and (a) if the court is of the opinion that those objectives can be so reconciled, the court shall (i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, and (ii) in the case of an application under subsection (1.01), order that the young person be proceeded against in ordinary court; or (b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall (i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence, and (ii) in the case of an application under subsection (1.01), refuse to made an order that the young person be proceeded against in youth court. (2) Considerations by youth court In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall take into account (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. (3) Pre-disposition reports In making the determination referred to in subsection (1) or (1.03) in respect of young person, youth court shall consider pre-disposition report. Judgment of Provincial Court [6] The trial judge dismissed count number one finding that there was no evidence on which he could find the accused guilty. [7] Count number two alleges the offence specified therein occurred over period of time commencing January 4, 1982 to December 31, 1983 and count number three alleges that the offence occurred between January 1, 1982 and December 31, 1989. The trial judge found there were four incidents or episodes where the offences could have been committed: (1) an incident in the family room; (2) an incident in the basement of the house; (3) an incident in the “boys” bedroom; and, (4) an incident in the complainant’s bedroom. [8] The complainant related these incidents of sexual assault, gross indecency and sexual intercourse in no particular chronological order and she was not sure whether the events or incidents occurred before or after the accused moved out of the family home after graduating from high school. She was certain, however that the offences stopped after she was in Grade 11. The trial judge found that was in 1989. He found that the accused became an adult on […], 1985. [9] The trial judge found the date of only one incident, the one allegedly committed in the family room. In his opinion, it occurred after the family room was added on to the house, 1984, and the year the complainant had her first menstrual period, 1986. He found therefore, that the family room incident occurred after 1986 when the accused was an adult. [10] With respect to all the other incidents, the trial judge stated: [T]he finding must be that one cannot determine when they occurred, but [they occurred] sometime before the end of 1989. And with respect to these therefore, because of that, one cannot determine whether they occurred while the accused was an adult or young offender.[3] In dealing specifically with counts and he stated: With respect to the other two counts, some of the episodes clearly [occurred when] the accused was an adult. With respect to the other, they could have occurred at any time.[4] The youth court judge was not in the circumstances prepared to assume jurisdiction on counts two and three. The Crown appealed to the Court of Queen’s Bench. Judgment of the Court of Queen’s Bench [11] The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction. He analysed the relevant case law and concluded that the law was as follows: 1. In youth court, proof of the accused’s age by the Crown is not necessary until there is “evidence to the contrary”, as such phrase is used in s. 2(1) of the Young Offenders Act, or something tantamount thereto which suggests that the accused is not “young person”. Thereafter, the Crown bears the legal burden of proving that the accused was more than 12 and less than 18 years of age at the time of the alleged offence. [R. v. M.(S.M.); R. v. T.A.L.; R. v. L.]. 2. Where the accused intends to challenge the jurisdiction of the youth court, the accused bears the evidentiary burden of proving that the youth court lacked jurisdiction because of the accused’s age. 3. Where the youth court judge concludes on the evidence, led by the defence or otherwise, that the accused was an adult at the time of the alleged offence, he or she should decline jurisdiction and transfer the case to “adult court” without commenting on the evidence. 4. Where the youth court judge is uncertain of whether the accused was an adult or young person at the time of the offence, then the youth court judge should apply R. v. A. (E.A.).[5] [12] The summary appeal court judge found the youth court judge should have assumed jurisdiction after he found the alleged offences could have occurred when the accused was young person or when he ceased to be young person under the Young Offenders Act. In his opinion the principles set out in R. v. A.(E.A.)[6] are applicable and because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. [13] The summary conviction appeal court judge then ordered writ of mandamus issue directing the youth court judge to render decision according to law. Issue [14] The primary issue on this appeal is whether the youth court judge was correct in declining jurisdiction on the basis he was unable to determine whether the alleged offences occurred when the accused was a young offender. The secondary issue of whether a writ of mandamus should issue will of necessity follow the result of the determination of the first issue. Analysis [15] The accused was charged with having committed two indictable offences, sexual assault and incest, over a period of seven years commencing January 4, 1983. These offences occurred during the transition from the Juvenile Delinquents Act to the Young Offenders Act and were therefore subject to the transition provisions of the latter Act. This Court considered the effects of the transition provisions in the Act and in particular s.79(4) in R. v. B.(K.)[7] If one applies the ratio of B.(K.) to the facts of this case, the accused’s status changed from young person to adult and then back again to young person during the following time frames: 1. from January 4, 1983 (the start date in the information) until April 2, 1984 (the proclamation date of the Young Offenders Act), the Appellant was “young person”; 2. from April 2, 1984 until April 1, 1985 (the date SOR/84-279 ceased to have effect) the Appellant was an adult; 3. from April 1, 1985 to […], 1985 (when the Appellant turned 18) he was “young person”; 4. from […], 1985 to March 22, 1987 (the date the complainant turned 13 and experienced no further abuse) the Appellant was an adult.[8] [16] The jurisdiction of the youth court is determined by s. 5(1) of the Act. It does not depend on the averments in the information or on proof of age. See: R. v. C.(S. A.)[9]and R. v. R. and C.[10] The youth court has exclusive jurisdiction over the accused person if the alleged offences occurred when he was young person as defined in s.2 of the Act. Neither the Criminal Code nor the Young Offenders Act address the issue of the jurisdiction of the youth court where uncertainty exists as to the accused’s age at the time of the commission of the alleged offence. [17] The Crown contends that where the status of the accused oscillates between that of young person and an adult and where the date of the occurrence of the offence is uncertain, with the result that the offence could have occurred when the accused was young person or an adult, the proper forum is the youth court. The Crown relies on R. v. A.(E.A.) in support of that position. In R. v. A.(E.A.) the alleged offence occurred between p.m. on day one and a.m. on day two. The accused turned 18 at midnight. The trial judge was unable to decide whether the offence occurred before or after midnight and could not find that it occurred when the accused was young offender. He therefore declined jurisdiction. The Crown appealed and Dubin C.J.O. speaking for the court said: If it had been shown that the offence was committed after midnight and when the appellant was then 18 years of age, the Youth Court would not have jurisdiction to try him, and he would have to be tried in adult court. But, in this case, there is no proof as to the exact time at which the offence was committed. On the premise that the appellant was in fact guilty of sexually assaulting the victim, and, in the absence of proof as to the exact time of the offence, which is normally not material averment, then the facts should be viewed in manner most favourable to the appellant. Under such circumstances, it would be most favourable to the appellant to conclude that the time of the commission of the offence was when he was young person since the disposition and the alternative remedies available under the Young Offenders Act are more favourable to the appellant than if he were tried in an adult court.[11] [18] In this case, the information alleges on its face that the offences charged could have occurred when the accused was young person or an adult. There is “evidence to the contrary” that the accused was not young person when at least some of the offences occurred. [19] The question is not whether the accused should be tried but rather which court should assume jurisdiction. If the reason for declining jurisdiction is because of the absence of proof of exactly when the offences occurred, which is not normally material averment, it follows that the accused could not be tried in either youth court or ordinary court by reason that the same uncertainty as to when the offence or offences occurred would apply whether the charges were brought in youth court or ordinary court. That result is untenable and in such circumstances choice of jurisdiction between youth court or ordinary court must be made. There are two ways to determine which of the two courts should assume jurisdiction: (1) view the facts in manner most favourable to the accused, deem that the offence was committed when the accused was young person and that the youth court has jurisdiction; (2) order transfer hearing under s. 16(1) of the Act to determine whether the offences should be heard in youth court or ordinary court. [20] Before deciding which of the two alternatives should be employed it would be useful to set out the principles applicable to transfer hearing under s.16 of the Act. (A) Nature of the hearing [21] The issue before the youth court on transfer hearing is not whether the particular offence occurred but rather in which court, youth court or ordinary court, the matter should proceed. Canadian courts have traditionally characterized the transfer proceeding as an “administrative” as opposed to “judicial” hearing, justifying substantial departures from the rules governing the conduct of criminal trial. The focus of the hearing is not on guilt or innocence and at this stage of the proceedings the rules of evidence applicable to criminal proceedings are not strictly applied. See R. v. W.Y..[12] The provisions of ss. 16(1.1), (2) and (3) which outline number of factors that cannot be assessed within the normal criminal context of guilt or innocence, including such things as the availability of treatment or correctional facilities, the age and maturity of the offender and the seriousness of the alleged offence reinforce the conclusion that the transfer proceeding is an informal procedure. Notwithstanding that the transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s. of the Charter of Rights.[13] [22] Section 16(1) provides that an application for transfer hearing must be made prior to “adjudication”. The Act provides that application may be brought by the young person or his counsel and by the Attorney General or his agent. youth court judge cannot make an application on his or her own initiative. This is contrasted with the provisions of the former Juvenile Delinquents Act which permitted judges to initiate transfer applications of their own motion. Section 19(3) does, however, provide that youth court judge must inquire of the parties whether any of them wishes to make transfer application before accepting guilty plea.[14] (B) Pre-requisites [23] There are certain number of pre-requisites which must be satisfied before youth court judge can order transfer. For example, the accused must be at least 14 (not consideration in this case) and the offence must be an indictable offence other than an offence referred to in s. 553 (the absolute jurisdiction offences) of the Criminal Code. young person can be transferred with respect to hybrid offence, that is an offence for which the Crown has an election to proceed summarily or by way of indictment, because of s. 27(1)(a) of the Interpretation Act. See R. v. K.J.H.[15] (C) Standard of Proof [24] On transfer hearing the Crown is not required to prove that the offence occurred beyond reasonable doubt. This is consistent with the basic purpose of the hearing which is to determine the appropriate forum for the trial of the charge which the accused is facing. See R. v. S.J.H.[16] and R. v. S.(G.).[17] transfer hearing is not trial. (D) Test for Transfer [25] Section 16(1) of the Act provides that on transfer hearing the youth court is required to consider the interest of society, which includes the competing “objective of affording protection to the public and rehabilitation of the young person”. Section 16(2) provides that the youth court shall take into account the following factors in determining the competing interests of the youth and the public: (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act or Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. The applicant (usually the Crown) bears the onus of establishing sufficient conflict between the competing interests, rehabilitation of the youth and public interest, such that the court will give precedence to the public interest. [26] If the competing interests cannot be reconciled, the protection of the public is paramount and the youth court shall order that the charges against the young person be proceeded within ordinary court with the law ordinarily applicable to an adult charged with the offence. Effects of transfer to ordinary court [27] What then are the consequences of transfer to ordinary court and does such an order adversely affect the rights of the accused? Section 16(7) provides that where an order is made under s.16 the proceedings under the Act shall be discontinued and the young person shall be taken before the ordinary court. The jurisdiction of the ordinary court is, by virtue of s.16(8), limited to the offences in respect of which the transfer order was made. That is an important factor in circumstances where the date of the commission of the offence is in doubt or cannot be fixed with any degree of precision. [28] young person transferred to ordinary court has the same elections with respect to the mode of trial as an adult offender charged with the same offence. It would appear there are no adverse consequences which flow from making such an order. At the conclusion of the transfer hearing, whether the trial judge orders transfer to ordinary court or not, s. 15 of the Act generally prohibits the further involvement of the judge who conducted the transfer proceedings. The purpose of the section is to ensure that the judge is not biased in deciding the specific charge as result of information the judge may have received during the transfer proceeding. [29] What then is youth court judge to do when faced with the question of whether to assume jurisdiction where he or she is unable to determine whether the alleged offence occurred when the accused was young person or an adult? The precise issue is whether the position articulated by the Ontario Court of Appeal in R. v. A.(E.A.) should be followed or whether more appropriate response is for the Crown or the defence to apply for transfer hearing pursuant to s.16 of the Act to determine the proper jurisdiction. [30] Let us examine the first alternative. In my opinion R. v. A. (E.A.) is distinguishable from the facts in this case and should be confined to its particular facts. In R. v. A.(E.A.) the court was faced with case of determining jurisdiction where the alleged offence occurred on one side of midnight or the other and the decision by the court, in the absence of proof as to when the offence actually occurred, was young person was both rational and defensible. That is, however, not the situation which we are confronted with here. In this case, as we have seen, the status of the accused changes from young offender to adult and back again to young offender. The alleged offences occurred over long period of time and the youth court judge was unable to determine in what year or years they occurred. In my opinion, the position adopted by the Ontario Court of Appeal does not lend itself to universal application. [31] What of the second alternative? The fundamental issue on transfer hearing is jurisdiction and not the guilt or innocence of the accused. The youth court judge can hear the evidence at transfer proceeding and make determination unburdened by the necessity to determine guilt or innocence of the accused. [32] The court is required to “take into account” the enumerated factors. It is not, however, required to consider each factor singly in order to determine the issue set out in s.16(1.1). This point was made by White A.C.J. in R. v. B.R.C.[18] when describing the relationship between the former s.16(1) of the original Act and s. 16(2). He stated: Since s. 16(2) has an enumerated list of considerations, and since each of the items in subsection (2) may to some degree apply to either the interests of society or the needs of the young person, can it be said that it was the legislative intention to weigh each of the considerations in subsection (2) in favour of either of the interests of society or the needs of the young person? The conclusion, it seems to me, is that each of the considerations on s. 16(2) are to be considered by judge as whole. Once the picture has been painted with all of the colours in s. 16(2), the judge looks at the finished painting and decides where to hang it in s. 16(1).[19] [33] In R. v. M.(A.J.)[20] Cavanagh J. stated the fact that there is list of factors to take into consideration does not mean that in each and every case each of the factors will have identical or equal value. In any one case, one factor may outweigh all the others. Those factors are broad enough to permit youth court judge on transfer proceeding to determine the proper forum. [34] In my opinion s.16 is the ideal vehicle for the youth court to make determination of the proper jurisdiction to hear the charges. If the Crown, after a complete investigation, is unable to particularize the time when the offence or offences occurred and as a result alleges that it or they occurred over a period of time which includes when the accused was a young offender and an adult, the preferable approach is the following: (1) the Crown should commence the proceedings in youth court, because some of the offences were alleged to have occurred when the accused was a young person; and, (2) the Crown should then apply to the youth court judge for a transfer hearing under s. 16 to determine the proper forum to hear the charges. At that transfer hearing the entire issue of when the offences occurred can be examined and the choice of the proper jurisdiction to hear the charges can be made in the absence of the requirement to determine the guilt or innocence of the accused. Disposition [35] The decision of the summary conviction appeal court judge is therefore set aside and the matter remitted to youth court to be heard according to law. In the circumstances either party may apply to a youth court judge for an order under s. 16 of the Act to decide the proper forum to hear the charges against the accused. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of JUNE, A.D. 1998. VANCISE J.A. CAMERON J.A. GERWING J.A. [1]R.S.C. 1985, c.Y-1. [2]R.S.C. 1985, c.C-46. [3]Appeal Book, p. 20a. [4]Appeal Book, p. 24a [5]Appeal Book, 10a-11a. [6](1987), 22 O.A.C. 83 (Ont. C.A.). [7]Unreported judgment dated May 1,1997.(Sask C.A.). [8]Factum of the Respondent p. 2. [9](1989), 1989 ABCA 17 (CanLII), 47 C.C.C. (3d) 76 (Alta. C.A.). [10](1985), 1985 CanLII 655 (BC CA), 49 C.R. (3d) 93 (B.C.C.A.) [11]Supra, Note at p. 84. [12](1988), W.C.B. (2nd) 267 (B.C.C.A.). [13]Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule of the Canada Act 1982 (U.K.), 1982, c. 11. [14]For complete discussion of the nature of the transfer proceedings and the principles applicable see Transfer to Adult Court and Bill C-12: The Most Serious Disposition; Bala, Nicholas, and Lilles, Heino; Service Issue 33: Mar 93, p. 75. [15](1980), 1980 CanLII 2826 (MB QB), 54 C.C.C. (2d) 238. (Man. Q.B.); 1980 CanLII 3091 (MB QB), Man. R. (2d) 14. [16](1986), 76 N.S.R. (2d) 163 (N.S.S.C.). [17](1991), 1991 CanLII 7079 (ON CA), O.R. (3d) 97 at p. 112 (Ont. C.A.). [18](1984) Y.O.S. 84-034 (Alta. Prov. Ct. Yth. Div.); (1985) 13 W.C.B. 193. [19]Supra, Note 14 ar p. C&A: 106. [20]1986 CanLII 1720 (AB QB), [1986] W.W.R. 175.

The primary issue was whether the youth court has jurisdiction in proceedings which are commenced in youth court where it was not possible to determine whether at the time the alleged offences were committed the accused was a young person or an adult. The secondary issue was whether a writ of mandamus should issue. The accused was charged with two indictable offences, sexual assault and incest, as well as acts of gross indecency. The Crown stayed an identical information previously laid against the accused alleging the same offences occurred when he was an adult. The accused became an adult in October 1985 and was charged with certain offences which occurred between 1985 and 1989. The summary conviction appeal court judge found the provincial court judge erred in declining jurisdiction and that because of the uncertainty when the alleged offences occurred, the accused should be tried under the least onerous regime, youth court. The appeal judge then ordered a writ of mandamus directing the youth court judge to render a decision. It was common ground that a youth court judge does not have jurisdiction with respect to offences committed while he was an adult. HELD: The decision of the summary conviction appeal court was set aside and the matter remitted to youth court. Either party may apply for an order under s16 to decide the proper forum to hear the charges. 1)Section 16 is the ideal vehicle for the youth court to make a proper determination of the proper jurisdiction to hear the charges. If the Crown after a complete investigation is unable to particularize the time when the offence(s) occurred and alleges that it (they) occurred over a period of time which included when the accused was a young offender and an adult, the preferable approach is to have the Crown commence the proceedings in youth court because some of the offences occurred while he was a youth. The Crown should then apply to a youth court judge for a transfer hearing under s16 to determine the proper forum to hear the charges. 2)There are two ways to determine which of the two courts should assume jurisdiction: view the facts in a manner most favorable to the accused and deem the offence was committed when the accused was a young person; or order a transfer hearing under s16(1) of the Young Offenders Act to determine whether the offences should be heard in youth court or ordinary court. 3)The transfer hearing must proceed in an impartial fashion in accordance with the principles of natural justice and s7 of the Charter. 4)Section 16(2) provides the factors to be taken into account in determining the competing interests of the youth and the public. 5)The position taken in the Ontario Court of Appeal in R.v. A(EA) does not lend itself to universal application. R. v. A(EA) is distinguishable and should be confined to its particular facts.

b_1998canlii12364.txt

nan S.C.A. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: THE HARTFORD INSURANCE GROUP, body corporate, HARTFORD FIRE INSURANCE COMPANY, body corporate, FRASER‑BRACE, DIVISION OF PIGOTT CONSTRUCTION LIMITED, body corporate, DELTA ELECTRIC CO. LTD., body corporate, HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NOVA SCOTIA and GUARDIAN INSURANCE COMPANY OF CANADA Respondent Ross H. Haynes for the Appellants Carman G. McCormick, Q.C. and David Farrar for the Respondent Appeal Heard: December 4, 1992 Judgment Delivered: December 4, 1992 THE COURT: Appeal dismissed with costs to the respondent to be taxed per reasons for judgment of Hallett, J.A.; Matthews and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, J.A. This is an appeal from a decision of Richard, J. declaring that the respondent Guardian was not liable to contribute to payment of a fire loss that was insured against by the appellant Hartford. The Province of Nova Scotia had entered into contract with Fraser‑Brace for the construction of hospital. The contract allocated the risk for fire loss to Fraser‑Brace and required Fraser‑Brace to obtain fire insurance to protect the parties against fire loss. Hartford issued builder's risk policy to Fraser‑Brace; such policy includes coverage for loss caused by fire. The cover was just over $27,000,000.00. Fraser‑Brace contracted the electrical work to Delta; there was no requirement that Delta obtain fire insurance but due to misunderstanding by Delta it obtained builder's risk policy from Guardian. The coverage was just under $4,000,000.00. The named insured was Delta with loss, if any, payable to the Province. There was fire. Hartford sought contribution from Delta's insurer, Guardian. Without acknowledging liability Guardian paid some $400,000.00 to Hartford to facilitate progress payments to Delta by Fraser‑Brace. Guardian sued to recover its money with interest from Hartford on the basis that it was not liable to contribute. The learned trial judge found the Guardian policy had been issued under the mistaken belief by Delta that it was required to carry builder's risk insurance. The learned trial judge found that the building was never at the insured's risk; that the policy was void and that Guardian was not liable to contribute to the fire loss. He ordered Hartford to repay Guardian the advances with compound interest. Several issues have been raised on appeal. The appeal on the main issue ought to be dismissed. There is no evidence nor even suggestion that Delta caused the fire. Guardian had no obligation to Delta to pay the fire loss as Delta, under its subcontract with Fraser‑Brace, was never at risk for fire loss to the Province's property. The obligation to insure the risk had been allocated to Fraser‑Brace by the contract with the Province. As Delta did not cause the fire loss it had no liability to the Province or Fraser‑Brace for causing the fire loss. Delta was not at risk for the fire loss of the Province's property as there was no allocation of the fire risk to Delta by the contract documents. In summary, there was no tortious or contractual liability of Delta for which Guardian was required to respond as Delta's insurer. The Guardian policy provided that the insurance attached when the property became at the risk of the insured. In this case it never did. On these facts Guardian had no obligation to respond to under the terms of the policy issued to Delta. Furthermore, there was no contractual relationship between Guardian and the Province, nor between Guardian and Hartford which could give rise to any obligation on Guardian's part to contribute towards the fire loss suffered by the Province and insured by Hartford. We reject Hartford's argument that there should not be an award of pre‑judgment interest; Hartford had the use of Guardian's money pursuant to an agreement that implied the money would be repaid if Hartford was wrong in its assertion that Guardian was required to contribute to the fire loss. In our opinion the money owing was in the nature of debt; therefore, the trial judge had jurisdiction to award pre judgment interest. Hartford is required to reimburse Guardian for the amount paid by Guardian to Hartford with pre judgment interest as fixed by the trial judge but not compounded as there was no evidence to support finding that compound interest should be paid. Evidence on this issue is required. (606327 Ontario Limited and The Polar‑Freez Limited Partnership v. ACA Cooperative Association Limited et al; Associated Freezers of Canada Inc. v. ACA Cooperative Associate Limited et al. (N.S.S.C.) A.D., unreported June 5, 1992). We will not interfere with the exercise of the trial judge's discretion on the award of costs at trial. The appellant has been unsuccessful other than with respect to the minor issue of compound interest. The respondent shall have its costs to be taxed. J.A. Concurred in: Matthews, J.A. Freeman, J.A. 1987 S.H. No. 62640 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: GUARDIAN INSURANCE COMPANY OF CANADA, body corporate PLAINTIFF RESPONDENTS and THE HARTFORD INSURANCE GROUP, body corporate, HARTFORD FIRE INSURANCE COMPANY, body corporate, FRASER‑BRACE, DIVISION OF PIGOTT CONSTRUCTION LIMITED, body corporate, DELTA ELECTRIC CO. LTD., body corporate, HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF NOVA SCOTIA DEFENDANTS APPELLANTS HEARD BEFORE The Honourable Mr. Justice Peter Richard PLACE HEARD Halifax, Nova Scotia DATES HEARD January 20, 1992 and March 4, 1992 WRITTEN DECISION February 5, 1992 and May 20, 1992 COUNSEL Ross H. Haynes, for the Appellants Carman G. McCormick, Q.C., for the Respondent S.C.A. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: THE HARTFORD INSURANCE GROUP ET AL and GUARDIAN INSURANCE COMPANY OF CANADA Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (Orally)

This was an appeal of a decision declaring that the respondent was not liable to contribute to payment of a fire loss that was insured against by the appellant. Dismissing the appeal, that the insurer of a subcontractor on a construction project was not liable to contribute to payment of a fire loss by the insurer of the principle contractor where the risk was allocated by the contract documents to the principle contractor and not the subcontractor.

e_1992canlii2542.txt

J. 2004 SKQB 324 Q.B.G. A.D. 2004 No. 1042 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN RE: THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH TO SET ASIDE THE DECISIONS OF THE SASKATCHEWAN LABOUR RELATIONS BOARD DATED THE 21ST DAY OF MAY, 2004 AND THE 24TH DAY OF JUNE, 2004. BETWEEN: WAL-MART CANADA CORP., and SASKATCHEWAN LABOUR RELATIONS BOARD, and UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400, and TRENA TELENGA, KYLA GIBBS, HOLLY VANDALE, KATHY KOCH, ANGELA FEDUN, TRENT CARLSON, ELAINE MOORE, MICHAEL SIOUROUNIS, and CHARMAINE SPENCER, INTERESTED PARTIES John R. Beckman, Q.C., Richard W. Elson for Wal-Mart Canada Corp. and Catherine A. Sloan (“Wal-Mart Canada”) Drew S. Plaxton for United Food and Commercial Workers, Local 1400 (“UFCW") Michael D. Nolin for the Interested Parties Melanie A. Baldwin for Saskatchewan Labour Relations Board (the “Board”) Ross W. Macnab for the Attorney General, Province of Saskatchewan JUDGMENT BAYNTON J. July 23, 2004 The Nature of the Applications [1] Wal-Mart Canada applies for an order pursuant to The Queen’s Bench Rules 664 and 673 quashing the orders of the Board made on May 21, 2004 and June 24, 2004. These orders require Wal-Mart Canada to discover and produce documents, including those referred to in a subpoena duces tecum. Wal-Mart Canada says that the Board does not have the jurisdiction to utilize the subpoena or make the disclosure and production orders in the manner in which it has done. [2] Wal-Mart Canada also applies for an order pursuant to s. 24 of Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, declaring s. 9 of The Trade Union Act, R.S.S. 1978, c. T-17, unconstitutional and of no force and effect insofar as it infringes the freedom of thought, belief, expression and communication under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. Positions of the Parties [3] Wal-Mart Canada challenges the Board orders on several grounds which are set out in its amended notice of motion and its detailed legal brief. The purport of the challenges are summarized as follows. First, that the Board has no jurisdiction to issue subpoena duces tecum or to make production orders without considering the relevance of what is sought to be produced. Second, that the Board has no jurisdiction to do indirectly what it cannot do directly, namely to authorize UFCW to discover documents or to conduct an examination for discovery by means of subpoena duces tecum or series of production orders, process that infringes the substantive rights of Wal-Mart Canada, including its solicitor-and-client privileges. [4] Third, that the Board has no jurisdiction to order the production of documents that are irrelevant to the issues that are properly before the Board. Examples of such irrelevant documents are communications between management and documents of the Wal-Mart American corporation, separate entity from Wal-Mart Canada which does not operate in Canada and is not party to the proceedings. Fourth, that the use by the Board of its powers to permit UFCW to discover documents in “fishing expedition” for an ulterior purpose unrelated to the issues, is an abuse of process. [5] Wal-Mart Canada challenges the constitutionality of s. of The Trade Union Act on the ground that the Board has used it as the basis for making the impugned orders which have the effect of infringing freedom of thought, belief, opinion, expression and communication as guaranteed and protected under s. 2(b) of the Charter. [6] UFCW maintains that Wal-Mart Canada’s applications are premature and that judicial review of the Board’s orders should not be brought until it has disposed of the certification application and collateral issues. In the alternative, it maintains that ss. 42 and 18 of The Trade Union Act and ss. and of The Public Inquiries Act, R.S.S. 1978, c. P-38 clothe the Board with authority to order discovery and production of documents, at least to the extent of the procedure adopted in this case. [7] UFCW also maintains that the Board should hear the Charter challenge in the first instance, and, in the alternative, if there is no breach or if there is, it is saved by s. of the Charter. It also maintains that the applications are brought by Wal-Mart Canada to delay and fragment the hearings to the jeopardy of UFCW’s application for certification. [8] The Board submits that the record is restricted to the return it has made pursuant to Rule 669 and that the Court should not consider the transcript or the affidavit evidence relied upon by the parties. It also submits that the patently unreasonable standard of review applies to the application, not the correctness standard of review. [9] The Interested Parties submit that, depending on how the hearings progress, they may be before the Court on similar issues, including the constitutional issue. [10] The Attorney General for Saskatchewan maintains that the Court should decline to hear the Charter issue until it has been ruled upon by the Board. In the alternative, the Attorney General for Saskatchewan maintains that s. is permissive and does not infringe the freedoms guaranteed by s. 2(d) of the Charter. 1. What constitutes the record of the Board proceedings in this particular case? 2. What is the applicable standard of review in this case? 3. Did the Board, by means of subpoena duces tecum and its two document production orders, act without jurisdiction by in effect compelling Wal-Mart Canada to discover and produce documents in contravention of the previous rulings of the Saskatchewan courts that the Board was without jurisdiction to do so? 4. Should the Court consider the Charter challenge to s. of The Trade Union Act in the circumstances of this case or should it defer its decision until either the issue has been ruled upon by the Board or more complete factual foundation and context has been provided to the Court? 5. If the Charter issue should be considered in the first instance by the Court, does s. violate s. 2(d) of the Charter and if so, is it protected by s. of the Charter? If it is unconstitutional and not protected by s. 1, what is the appropriate order that the Court should make? Background Facts [11] UFCW brought an application before the Board for an order for certification respecting certain employees of Wal-Mart Canada at its Weyburn store. The application is contested by Wal-Mart Canada and by certain Wal-Mart Canada employees who are designated by the Board as “Interested Parties”. These employees resist UFCW’s certification application and have alleged that UFCW, in its organizing tactics, has committed an unfair labour practice. UFCW maintains that the involvement of these employees has been influenced by Wal-Mart Canada. [12] On May 4, 2004, prior to the hearing, the Board issued subpoena duces tecum. It directed Wal-Mart Canada to attend the hearing and bring host of documents and records. The subpoena sets out 12 categories of these records and documents. Although some specific documents are identified and described in the various categories of the subpoena, most of the categories require Wal-Mart Canada to discover and produce potentially volumes of material. The determination of much of this material requires the interpretation and discretion on the part of Wal-Mart Canada in determining the scope of what the subpoena requires of it. copy of the subpoena is attached as Schedule “A” to this judgment. [13] As an example, para. of the subpoena identifies and requires production of document entitled “Wal-Mart Manager’s Toolbox to Remaining Union Free” but it also requires the discovery and production of documents in general by the phrase: “. and any similar documents evidencing communications from the corporation to its managers, including all revisions, extracts and related versions of same or similar communications and all notes, memoranda and other communications passing between the employer and its managers concerning trade unions and unionization”. [14] As another example, para. 12 of the subpoena requires production of: “All and any communications between the employer, its managers and others concerning the ‘Store within Store’ method of management and any similar or other policies or strategies concerning management operations and other documents concerning the powers and duties of department managers.” [15] When the hearing commenced on May 7, 2004, counsel for Wal-Mart Canada made detailed submissions to the Board objecting to the nature and scope of the subpoena and the manner in which it was being utilized by counsel for UFCW. The objections were substantially the same as those now raised before this Court. Before the hearing reconvened on May 25, 2004, the Board issued written decision dated May 21, 2004 that dealt with other issues as well as Wal-Mart Canada’s objections to the nature and scope of the subpoena. copy of the May 21, 2004 decision is attached as Schedule “B” to this judgment. [16] In essence the Board, by its written decision, ordered Wal-Mart Canada to comply with every term of the subpoena it issued on May 4, 2004 at the request of UFCW. The Board noted that counsel for UFCW had conceded that it no longer required the documents referred to in paras. 1, 2, and as set out in the subpoena but ordered Wal-Mart Canada to comply with para. and with paras. through 12 inclusive. It noted that counsel for Wal-Mart Canada had conceded that the job descriptions of the department managers sought by para. of the subpoena were relevant to the issues in the case. The Board ordered Wal-Mart Canada to produce the documents referred to in paras. and of the subpoena, then added an additional requirement of its own: as well as any other documents that clarify the job functions and duties of the department managers”. [17] The last paragraph of the May 21, 2004 written decision of the Board reads as follows: With respect to items 7, 8, 9, 10, 11 and 12, given that issues have been raised with respect to employer influence or interference and the status of department managers, we are of the opinion that the Employer shall produce the following documents: “Wal-Mart Manager’s Toolbox to Remaining Union Free”; the current “Wal-Mart Associate Handbook”; the document entitled “To the New Wal-Mart Associate” and other documents provided to newly hired employees; Corporate Policies CPD-42 and COP-08 as referred to in the Wal-Mart Associate Handbook; documents and communication to employees regarding trade unions or unionization; documents regarding the operational status of store departments and the concept of “Store within Store”. [emphasis added] [18] In its decision, the Board addressed the various paragraphs of the subpoena. The above paragraph, read in context, is summary of its views as to the validity of paras. through 12 of the subpoena. There is nothing in the decision to indicate that Wal-Mart Canada was relieved of compliance with any aspect of the subpoena, except paras. 1, 2, and that UFCW no longer required. Accordingly, do not interpret the summary given by the Board of paras. through 12 as substitution for the wording of those paragraphs of the subpoena. Rather, its order is direction that Wal-Mart Canada comply with the discovery and production of documents sought by those paragraphs in the subpoena duces tecum. [19] As have outlined, the Board not only ordered Wal-Mart Canada to produce everything UFCW had sought in the subpoena duces tecum, but added few requirements of its own thereby expanding the scope of discovery and production beyond that set out in the subpoena. It is not in dispute that the Board had the jurisdiction to order production of documents respecting communications to employees regarding trade unions or unionization as have emphasized as such documents are clearly relevant to an issue before the Board. But as will outline later, the highlighted portion of the order was interpreted by Wal-Mart Canada that the Board was focusing on communications to employees, not on communications among management. [20] There are virtually no reasons given by the Board in its written decision as to why it ordered each and every document, memo or communication sought by UFCW or why it rejected all the submissions made by counsel for Wal-Mart Canada respecting it. The only reference by the Board in its decision to the relevancy requirement is its observation in para. that one of the preliminary issues was the scope of the subpoena duces tecum and its observation in para. that Wal-Mart Canada had conceded that the documents referred to in para. of the subpoena were relevant to the proceedings. [21] The hearing re-commenced on May 25 and continued on May 26. It was adjourned to June 10, 2004 and continued on June 11, 2004. The hearing was adjourned again to June 24, 2004. Issues respecting the scope of the subpoena, as enforced by the May 21, 2004 written document discovery and production order of the Board arose. Counsel for UFCW applied to the Board for an order requiring Wal-Mart Canada to comply with the May 21, 2004 written order and to discover and produce additional documents. [22] In his submission to the Board, counsel for Wal-Mart Canada again maintained that his client had complied with the Board’s May 21, 2004 order and that counsel for UFCW was again involved in “fishing expedition”. Counsel for Wal-Mart Canada maintained that his client’s position respecting unions was before the Board and its preference not to have third party representation was not illegal nor was it relevant to the issues before the Board. He also maintained that the procedure being followed by UFCW was like discovery with none of the discovery safeguards in place. The employer influence issue before the Board was what Wal-Mart Canada did or said to its employees. Its corporate philosophy or culture or communications among management were irrelevant considerations. He referred to the “flip-side” of the submissions made by counsel for UFCW that the Board should be cautious in ordering disclosure respecting the efforts of UFCW to organize employees. [23] Counsel for Wal-Mart Canada again emphasized the necessity of the Board to address the issue of relevancy and the fact that the evidence established that some of the documents ordered to be produced were not in the possession, control or knowledge of the representative witness for Wal-Mart Canada. As well, some were documents of the American corporation, separate entity not party before the Board. UFCW had already obtained and entered as evidence at least two of these documents without the assistance of the Board. He also raised the issue that some of the documents requested might well enjoy solicitor-and-client privilege and that UFCW appeared to be using the power of the Board for an ulterior purpose, such as to obtain privileged information for use in other proceedings in other jurisdictions where different labour laws were in effect. He requested the Board to terminate the process of permitting UFCW to in effect conduct full-blown examination for discovery. He also requested the Board to provide written decision respecting any document discovery or production order that it might make in response to UFCW’s application. [24] At this point the Board called upon counsel for UFCW to respond. The purport of the response was that the preference of an employer that it not have third party representation is tantamount to employer influence or domination of its employees. [25] The Board adjourned for few minutes to consider its position but declined to issue written ruling respecting UFCW’s application for discovery and document production or respecting the objections of Wal-Mart Canada to the application and the procedure being followed by UFCW. Its oral decision is the June 24, 2004 order that Wal-Mart Canada seeks to quash and that is reported at pp. 10-15 of the transcript. [26] The June 24, 2004 oral decision of the Board ordered Wal-Mart Canada to produce “the documents referred to by Mr. Plaxton”. It is not clear what specific documents Mr. Plaxton, counsel for UFCW, was referring to in his submission to the Board prior to its order. But from review of the relevant portions of the transcript, pp. 1-9, it appears that he was seeking the production of some of the documents referred to in the subpoena as well as some additional documents. Pages 1-15 of the transcript are attached as Schedule “C” to this judgment. It records Mr. Plaxton’s application and submissions, Mr. Beckman’s objections and submission and the Board’s June 24, 2004 oral decision that Wal-Mart Canada seeks to quash. [27] The additional documents sought by counsel for UFCW on June 24, 2004 appear to include “Sam’s Club” document, “You and Human Relations” document, documents respecting “morale hotline”, “grassroots survey”, documents respecting an “assistant managers’ seminar” (presumably the “PowerPoint Presentation” referred to by the Board), document “You and Your Labour Relations, What Wal-Mart Canada Supervisor Should Know about Labour Unions” and in general all “internal documents of either Ms. Plant or whomever concerning how managers are supposed to react ”. It is beyond the scope of this judgment to review and comment on the relevancy or privilege respecting each document. It is sufficient to observe that the Board did not address Mr. Beckman’s concerns or objections in any meaningful fashion but in effect ignored them. [28] It is the June 24, 2004 oral decision that sets out the views of the Board respecting its jurisdiction regarding the discovery and production of documents, its views of s. of The Trade Union Act and the meaning of employer influence. will comment on these aspects of the decision later. In its oral decision, the Board in effect affirms the subpoena and its previous May 21 order. It then goes on to order the production of the additional documents sought by UFCW, including the documents of the American corporation. After giving its oral decision, the Board adjourned the hearing to the next morning, June 25, 2004. [29] On the morning of June 25, counsel for Wal-Mart Canada requested an adjournment to review the oral discovery and production order made the previous day for the purpose of bringing an application to this Court to have it reviewed. Counsel for UFCW objected on the grounds that Wal-Mart Canada was in contempt of the May 21 written order and was bringing the application to delay the proceedings. The position of counsel for UFCW was that the proceedings before the Board had demonstrated that Wal-Mart Canada was in continual process of what the union perceived to be management influence in the workplace and other workplaces concerning union efforts to organize. [30] Counsel for UFCW at the hearing before me submitted that Wal-Mart Canada had in effect accepted the validity of the subpoena and the May 21, 2004 written order of the Board by not challenging them in the courts until after the June 24, 2004 oral order was made. accept the explanation of Wal-Mart Canada that it understood that the Board, by its May 21, 2004 order, was focused on communications to the employees of Wal-Mart Canada. It did not realize, until the June 24, 2004 order of the Board, that it was focusing on the corporate culture of Wal-Mart Canada and was requiring discovery and production of documents and communications between Wal-Mart Canada’s management or involving the American corporation. This is when Wal-Mart Canada concluded that the hearing had gone off the rails requiring it to seek court intervention. [31] The Board granted Wal-Mart Canada three-day adjournment to June 28, 2004. On that date, Wal-Mart Canada brought its application to this Court for judicial review to quash the two Board orders. Mr. Justice D. H. Wright abridged the time for service of the notice of motion and adjourned the hearing of the application to July 13, 2004, directing stay of the proceedings of the Board until that date. Only July 5, 2004, Wal-Mart Canada amended its notice of motion to include the Charter relief it now seeks and obtained an order from Chief Justice Gerein abridging the time for service of the notice required by s. 8(2) of The Constitutional Questions Act, R.S.S. 1978, c. C-29, pursuant to s. 8(5) of that Act. [32] The matters were argued before me on July 13, 2004 and extended the stay pending my decision and further court order. By agreement of counsel, paras. and of Ms. Catherine Sloan’s affidavit filed in Court on behalf of Wal-Mart Canada were struck out in response to an objection raised by counsel for UFCW. The Attorney General for Canada did not appear on the application but relied upon the representations made by Mr. Ross Macnab on behalf of the Attorney General for Saskatchewan. [33] Counsel for the Board appeared on the application and filed written submission. It acknowledged the limited role of the Board on judicial review of one of its orders as outlined in CAIMAW v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983. The Board submitted that the record properly before the court was contained within the return filed pursuant to Rule 669. The Board relies on the comments of Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, Ex parte SHAW, [1952] All E.R. 122 (C.A.) and several subsequent Saskatchewan decisions that have adopted those comments. At p. 131, Lord Denning states: Following these cases, think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. But Lord Denning goes on to state in the next paragraph: 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. [34] He then goes on to state that despite the strictness of the rule that error of law must appear on the face of the record, the parties can always by agreement overcome the difficulty of an incomplete record. It is obvious from his comments that the rule should not be relied upon to thwart meaningful judicial review in appropriate cases. [35] It is also significant that counsel for the Board concedes that the case before me is unique and that the Court must make two exceptions to the strict rule as to what constitutes the record. The first is the subpoena duces tecum dated May 4, 2004. The second is the Board’s lengthy oral order dated June 24, 2004 that is not available to the Court apart from portion of the transcript of the hearing. Counsel for the Board acknowledges that both Wal-Mart Canada and UFCW have filed affidavit evidence with the Court and that both have referred to portions of the transcript of the hearing in their respective submissions. She fairly conceded that she would not belabour her submission that the transcript or affidavits should not be considered as part of the record if counsel for the parties were of the view that they were an essential part of the record. [36] had no desire to read lengthy transcript and several affidavits unless my reading of them was essential to deciding the issues before me. Counsel for Wal-Mart Canada maintained that the transcript and affidavit evidence in the circumstances of this case were properly part of the record. Counsel for UFCW was ambivalent in this respect. However, the fact that counsel desire to refer to the transcript or the affidavits or have me read them does not of itself entitle or obligate me to do so. But agree with counsel for Wal-Mart Canada that the Court cannot rule on the application and issues in this case without considering the transcript. Not only must the record be embellished by considering the subpoena and the June 24 order as suggested by counsel for the Board, but the orders are meaningless without the context provided by the transcript. In this sense, the Board has incorporated the evidence into its orders within the exception outlined by Lord Denning. [37] Counsel for the Board also submits that none of the allegations of lack of jurisdiction on the part of the Board by Wal-Mart Canada in its notice of motion can be categorized as an allegation of denial of natural justice, such as bias; nor is this case in which there is no evidence on which the Board could have ordered what it did. But by way of example, the June 24, 2004 oral order contained in the transcript that previously related directs the production of the documents “referred to by Mr. Plaxton”. Such direction is meaningless, or at least incomplete, without going back in the transcript to determine what documents were in fact referred to by Mr. Plaxton. Only then can it be determined what in fact the Board was ordering and whether such an order was within its jurisdiction. [38] As well, it is not possible, without review of the transcript, to consider the allegation of Wal-Mart Canada that the Board has abused its powers to issue subpoena duces tecum by permitting UFCW to utilize it as means of discovering documents at the hearing. Nor is it possible, without review of the transcript, to consider the allegation of Wal-Mart Canada that the Board has abused the powers it has to order production of documents at the hearing by relying on those powers to order the discovery and production of documents. The same can be said about the necessity of reviewing the transcript to consider each aspect of the breach of Charter allegations raised by Wal-Mart Canada. [39] I conclude that a review of the transcript is essential to the proper determination of the issues raised by the application and that it must, in this case, be considered part of the record. The fact that the Board has conceded that two exceptions must be made in any event, indicates that this is case where the exceptions to the general rule apply. have placed little reliance on the affidavit evidence. Some of it, such as the portions of the first affidavit of Paul Meinema, is rampant with opinion and argument. These portions would normally have been struck. But as Wal-Mart Canada has taken no issue with them in order to get on with the hearing, decline to comment on the offending provisions. The Applicable Standard of Review [40] Counsel for the Board maintains that the applicable standard of review is that of patent unreasonableness. Several cases are cited in her legal brief that define and comment on this well known standard and the rationale for it, including the expertise of specialized tribunals and strong legislative privative clauses. agree with counsel for the Board that the case law directs the court to adopt pragmatic and functional analysis in determining the applicable standard of review. The central question is whether the legislature intended the question to be left to the exclusive jurisdiction of the tribunal. Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] S.C.R. 982. [41] But despite the host of cases cited by counsel for the Board on this issue, no reference was made in the brief to Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn. (1993), 1993 CanLII 31 (SCC), 108 D.L.R. (4th) (S.C.C.); Pyramid Electric Corp. v. International Brotherhood of Electrical Workers, Local 529, 1999 SKQB 114 (CanLII), 185 Sask. R. 82 (Q.B.), (which will refer to later as “Pyramid No. 1”), upheld on appeal 2000 SKCA 44 (CanLII), 199 Sask. R. 1; and Pyramid Corp. v. International Brotherhood of Electrical Workers, Local 529, 2001 SKQB 216 (CanLII), 208 Sask. R. 118 (Q.B.), (which will refer to later as “Pyramid No. 2”), upheld on appeal 2002 SKCA 59 (CanLII), 223 Sask. R. 70 (C.A.). [42] In my respectful view, although the impugned document discovery orders that were made in each of the three cases cited above and in the case now before me differ in many respects, the legal principles set out in those three cases are applicable to the case before me. They are binding on this Court and are complete answer to the positions to the contrary taken by the Board and UFCW respecting the applicable standard of review. The three cases, which were taken to the level of the Supreme Court of Canada and our Court of Appeal respectively, have high precedential authority. They have determined that orders made by the Board that are in reality document discovery orders, are orders made without jurisdiction to which the applicable standard of review is one of correctness. Canadian Pacific Air Lines Ltd., supra, at p. 22. [43] Counsel for the Board has cited several authorities in which the courts have acknowledged the special expertise of the Board in labour matters. also acknowledge the Board’s expertise in labour matters, but the Board has no special expertise in the legal issues and judicial and quasi-judicial procedural matters that are now before me. There is no need on that ground to extend deference to the decisions of the Board on such matters. The Subpoena Duces Tecum and the Board Document Orders [44] Because the Board is creature of statute and not superior court with inherent jurisdiction, it must look to its enabling legislation to determine the scope of its jurisdiction and powers. This is critical when it purports to exercise coercive powers to compel the attendance of witnesses and the production of documents or when its actions affect or restrict legal rights and freedoms, particularly rights protected by the Charter. The court observed in Canadian Pacific Air Lines Ltd., supra, at p. 23: The Board has no inherent jurisdiction, unlike superior courts whose powers of coercion find their origins in the inherent jurisdiction of those courts. [45] To address the jurisdictional issue, it is necessary to determine the scope of the statutory jurisdiction and authority granted to the Board by its enabling legislation. This has already been determined by the two Pyramid cases cited previously and by Canadian Pacific Air Lines Ltd., supra, which our Court of Appeal has ruled is applicable to the Pyramid cases. But will reproduce the statutory provisions to provide context for the analysis that follows. [46] The relevant sections of The Trade Union Act are as follows: 42 The board shall exercise such powers and perform such duties as are conferred or imposed on it by this Act, or as may be incidental to the attainment of the objects of this Act including, without limiting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Act, with any regulations made under this Act or with any decision in respect of any matter before the board. 18 The board and each member thereof and its duly appointed agents have the power of commissioner under The Public Inquiries Act and may receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it may deem fit and proper whether admissible as evidence in court of law or not. [47] The relevant sections of The Public Inquiries Act are as follows: The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire. The commissioners shall have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. [48] adopt the detailed analysis of Laing J. respecting the jurisdiction and authority of the Board in Pyramid No. 2, at pp. 126 to 129. That detailed analysis need not be repeated verbatim here. It is sufficient for the purposes of the applications before me to summarize his conclusions as follows: 1. The Board, being engaged in hearing involving “lis” between parties, acts in judicial capacity and must act in the manner of court of law in assessing legal arguments in relation to complex factual circumstances. 2. The practices, procedures and policies of the Board must be consistent with its statutory authority and the common law rules applicable to all bodies that must act in judicial capacity. The Board must be impartial and comply with the principle of “audi alteram partem”. 3. subpoena duces tecum is available to the Board to compel witness to attend the hearing with relevant documents. [My emphasis]. 4. There is no statutory authority authorizing the Board to order witness or party to conduct an investigation, whether for discovery of documents or for any other reason, or to produce statement as to documents. 5. The ability of tribunal to make and enforce an order for disclosure depends on whether it has been conferred with jurisdiction to require discovery. Where statute provides for discovery procedures, those procedures are available to all parties without reference to an order from the tribunal. The discovery procedures also contain provisions to ensure compliance with pre-hearing disclosure and discovery obligations. They have no application once trial has commenced. 6. The Board’s interpretation of Pyramid No. 1, namely that it had jurisdiction to compel Pyramid to disclose and produce documents so long as it did so at the hearing and not at the pre-hearing stage, is in error. The Board is also in error to conclude that Pyramid No. did not abrogate its discovery powers but merely enunciated the process by which those powers could be exercised. 7. The Board purported to incorporate the rules, law and practice and procedure of the Court of Queen’s Bench as part of the procedures of the Board with the proviso, based on its erroneous interpretation of Pyramid No. 1, that this procedure could only be invoked at the hearing. [49] Counsel for UFCW maintains that the subpoena duces tecum and the document discovery and production orders made by the Board in the case before me were made in compliance with the rulings in the two Pyramid cases. He maintains that the Board was simply exercising its authority at the hearing to order witnesses to produce documents and to enforce compliance with the subpoena duces tecum it had issued prior to the hearing to compel witnesses to appear at the hearing with documents. [50] would agree with this submission if that was what in fact occurred in the case before me. Unfortunately, the issue is not as simple as UFCW contends. Counsel for Wal-Mart Canada maintain that the Board is continuing to do what it was prohibited from doing by the two Pyramid cases, and that it is doing so by abusing and misusing the coercive authority that it does have. It is using its authority without fulfilling its corresponding duties that are an integral component of that authority. [51] agree with this submission of counsel for Wal-Mart Canada. By way of specific examples, the Board is misusing its authority to issue subpoena duces tecum by failing to consider the relevance and the general and broad scope of the documents sought by UFCW. In doing so it is permitting the union to utilize the subpoena to compel discovery and disclosure of documents. Likewise it is misusing its authority to compel witnesses to produce documents at the hearing by ordering compliance with the flawed subpoena and in effect ordering the witnesses to discover and disclose documents at the hearing. In doing so, it is permitting the union to conduct an examination for discovery at the hearing under the guise of proper cross-examination. [52] have reached these conclusions for several reasons. will deal first with the Board’s improper use of subpoena duces tecum. (i) The Subpoena Duces Tecum [53] In his reliance on the validity of the subpoena duces tecum, counsel for UFCW refers to James E. Dunn, “Subpoena Duces Tecum” (1983) Advocates’ Q. 94. It is not in dispute that the Board has the authority to issue such subpoena, but the Dunn article makes it clear that it cannot abuse or exceed its powers in doing so. If it wants to issue subpoena, it must do so properly and in judicial fashion. In my respectful view, the Board abused its jurisdiction and power to issue the subpoena duces tecum in the case before me in two respects. [54] The first is that the Board issued the subpoena without any prior consideration as to the relevance of the documents that it compelled Wal-Mart Canada to produce. The issue of subpoena by commissioner of an inquiry, or by the Board in this case, is not purely an administrative or ministerial act but requires the exercise of discretion after considering the relevancy and possibly the privilege of the documents sought. Canada (Restrictive Trade Practices Commission) v. Canada (Director of Investigation Research, Combines Investigation Act), 1983 CanLII 2816 (FCA), [1983] F.C. 222 (C.A.); Bortolotti v. Ontario (Ministry of Housing) (1977), 1977 CanLII 1222 (ON CA), 15 O.R. (2d) 617 (C.A.); Retail, Wholesale and Department Store Union, Locals 544, 496, 635 and 955 v. Dairy Producers Co-operative Ltd., 1984 CanLII 2396 (SK CA), [1985] W.W.R. 110, (1984), 37 Sask. R. 228 (C.A.); and Pyramid No. 2, supra. [55] The subpoena was issued on May 4, 2004, before the hearings commenced on May 7, 2004. There is accordingly no evidence that the Board exercised its discretion judicially in considering the issue of relevancy respecting the documents specified in the subpoena or the host of documents that might fall within the ambit of the generalized terms of the subpoena. It is unlikely that the Board even scrutinized the subpoena or it would likely have required UFCW to narrow the scope of the potential documents it was seeking. [56] It is evident from review of the hearing transcripts, that despite the numerous objections raised from time to time by counsel for Wal-Mart Canada respecting the scope and relevance of the potential documents required to be produced by the subpoena, the Board, by its May 21, 2004 order, affirmed the subpoena in its totality. It did so by in effect ordering Wal-Mart Canada to comply with it. The only exception to enforcing the subpoena in its totality, was that no order was made respecting the documents that UFCW advised the Board it no longer required. relate this to indicate that the Board, even at the hearing stage, was not addressing the issue of relevancy but saw its role as simply enforcing the subpoena it had issued at the request of UFCW. [57] The second reason for my conclusion that the Board abused its jurisdiction and power respecting the subpoena, is that the subpoena is far too generalized and, in reality, amounts in many instances to an order to discover documents. subpoena duces tecum usually compels the witness to produce specified documents at the hearing. It bears no resemblance to the extensive and generalized subpoena that was issued by the Board in the case before me. The subpoena is more like demand to disclose and discover documents at the hearing than direction to produce specified documents at the hearing. [58] need not repeat the wording of some of the provisions of the subpoena that reproduced previously. It is sufficient to observe that the purport of many of those provisions required the witness to discover and disclose unspecified documents such as all communications between management, internal memos and the like. The fact that the term “produce” was used, rather than the terms “discover” or “disclose”, does not change the nature, purport or effect of the document demand. By analogy, promissory note does not become mortgage simply because it is named mortgage. It is promissory note because it is of the nature of promissory note and it remains so despite the name given to it. The wording of the subpoena in this case contains terms not unlike those in the Board order that was struck down in Pyramid No. 1. The order was reproduced and discussed in Pyramid No. 2. [59] In Dalgleish v. Basu, 1974 CanLII 913 (SK QB), [1975] W.W.R. 326 (Sask. Q.B.), Bayda J. as he then was, set aside those portions of subpoena duces tecum that required witness to in effect discover and produce documents even though the term “produce” and not “discover” was used. The subpoena, reproduced in part, at p. 327, required the witness to “bring with you and produce at the time and place aforesaid all notes, memoranda, minutes, letters, correspondence, charts, records, reports, or any other writings or documents in your possession, or having been at any time in your possession, in any way connected with or related to matters between DR. LAKSHMI BASU and the Broadview Union Hospital .”. [Emphasis mine]. [60] The court concluded that the description was so broad that the subpoena was really an attempt to compel the College of Physicians and Surgeons to make discovery of its documents. The court observes at p. 330: The subpoena should be used for only that purpose for which it was intended and no other. If justice requires discovery of documents, then appropriate statutory provisions should be made if no procedural rules now exist for such discovery. In short, resort should not be had to side door if the legislators have not seen fit to open the front door. [61] The case is also authority for the principle that relevancy of the documents sought in the subpoena duces tecum must be assessed from the perspective of the scope and nature of the proceedings, the issues involved and the defences proposed to be advanced. The court in Dalgleish, supra, adopted the following quote from Wigmore on Evidence, Vol. 8, McNaughton Revision (1961), s. 2200, p. 127: the right of access is to documentary evidence not to all documents, but to such documents as are evidence. [62] realize that s. 18 of The Trade Union Act authorizes the Board to consider evidence that may not be admissible in court of law. But the Board must nevertheless restrict its consideration to evidence that is relevant to the issues before it. In exercising its discretion as to what is relevant evidence to the dispute before it, it is performing judicial or quasi-judicial function that precludes it from making its decision on the basis of irrelevant or improper considerations. [63] Even if the subpoena duces tecum does not in effect compel party to make discovery of its documents, the documents must be described with reasonable degree of particularity. Dunn, at p. 98, states that the rule authorizing litigant to use subpoena is wide so that resort to it must be reasonable. He also states that subpoena duces tecum is oppressive if the description of the documents is too broad or general or if it requires an individual to make an onerous and far-reaching search for the documents. An objection to the generality of the description of documents in subpoena duces tecum was upheld in Central Canada Potash Co. v. Saskatchewan, [1973] S.J. No. 223 (Q.B.) (QL) and in Dalgleish, supra. [64] Although not binding on the Board or the court, the observations of the Ontario Labour Relations Board, per G.W. Adams, Vice-Chair, in Kotinopoulos v. Becker Milk Co., [1974] O.L.R.B. Rep. 732 are pertinent to the issue before me. The Board states at para. 7: Obviously this power is substantial one and must be exercised in very circumspect manner. subpoena duces tecum cannot be used as an instrument to harass or to annoy unreasonably an opponent; And subpoena duces tecum should state with reasonable particularly the documents which are to be produced; Furthermore, although the limits of this principle are vague, subpoena duces tecum should not be used “for the purpose of fishing, i.e., endeavouring, not to obtain evidence to support [a] case, but to discover whether [one] has case at all”; And finally, subpoena to party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant (ii) The Board Document Orders [65] The Board orders in issue are contained in Schedules “B” and “C” to this judgment. summarized and commented on them extensively when setting out the background facts and need not repeat those comments here. [66] Many of the comments I have made respecting the subpoena duces tecum issued by the Board in this case, apply in principle to the Board’s document discovery and production orders. I have concluded for the reasons I will outline, that the Board exceeded its jurisdiction and abused its powers in making the discovery and production orders it did against Wal-Mart Canada. [67] The Board orders are inextricably linked to the subpoena duces tecum. In my respectful view, they are really not production orders at all, but are orders directing Wal-Mart Canada to comply with the subpoena duces tecum which in effect directs Wal-Mart Canada to discover and disclose documents. The Board itself acknowledged this by the comments it made in connection with its June 24, 2004 oral order. The Board went even farther by conducting its own discovery of documents from counsel for Wal-Mart Canada as recorded in the May 25 transcript, pp. 28-31, attached as Schedule “D” to this judgment. [68] The Board also observed that its previous written order had not been complied with because the management PowerPoint presentation had not been disclosed before, (even though it was not called for in the subpoena or spelled out in the previous order). In response to the objections of Wal-Mart Canada’s counsel that the hearing was being conducted as an examination for discovery, the Board observed that even though it had no jurisdiction to hold examinations for discovery, this did not preclude the parties from utilizing the equivalent ability to discover, in the course of hearing, what documents exist. [69] As observed previously, the Board is creature of statute. It cannot expand its jurisdiction beyond that which is given to it by its governing legislation. Nor can it expand its jurisdiction by utilizing powers and procedures that are available to it in manner for which they were not designed nor intended. Unfortunately, the Board has once more misconstrued clear decision of the Court that it has no jurisdiction respecting the discovery of documents. Laing J. in Pyramid No. observed that the Board misconstrued the decision of Dawson J. in Pyramid No. 1. The case before me demonstrates that the Board misconstrued the decision of Laing J. in Pyramid No. by concluding that he recognized its jurisdiction and authority to utilize subpoena duces tecum and document production order in the manner it has done in the case before me. [70] The transcripts of the hearings also contain numerous comments of counsel for UFCW that clearly indicate he is using the process as fishing expedition with no knowledge or even reasonable suspicion that the documents he seeks are relevant to the issues before the Board. In fact his cross-examination appears to consist more of asking the witnesses about potential documents than questions that are relevant to the issues. few examples are evident in the June 24, 2004 transcript at pp. 381, 401, 405 and 422-24, attached as Schedule “E” to this judgment. [71] Counsel for UFCW characterizes the applications by Wal-Mart Canada as stalling tactics and an attempt to interfere with his cross-examination. These allegations are ill founded because the applications raise legitimate concerns and legal issues. As well, utilizing cross-examination as an examination for discovery, is an abuse of the right of cross-examination even though the law is clear that counsel has considerable latitude in cross-examination. The delays in this case have arisen primarily from the manner in which UFCW has improperly utilized subpoena duces tecum and cross-examination to conduct an examination for discovery and “fishing expedition”. Wal-Mart Canada had no option, considering the direction in which the hearing was progressing, but to bring its application before the court. [72] The courts have often observed that disputes can be resolved by specialized tribunals more speedily than by the courts because of the summary procedures utilized by such tribunals. If tribunals are permitted to allow their hearings to be turned into protracted examinations for discovery and “fishing expeditions”, one of the significant benefits of tribunal hearings will be lost. As well, in such cases, the actual and perceived impartiality of the tribunal will be undermined. As stated previously, tribunals like the Board in this case perform more than pure administrative functions. significant aspect of their roles is performing judicial and quasi-judicial functions. In doing so they must remain impartial and be seen to be impartial. [73] In the case before me, dispassionate observer could well conclude that the impartiality of the Board has been compromised by the manner in which it has permitted UFCW to conduct and direct the hearing process. It appears that the role of the Board was often restricted to enforcing the demands made by UFCW and that it, rather than the Board, was controlling the course that the hearing took. Seldom, as in the case before me, is dispute or issue so one-sided that one party is successful in all of its applications while the other is successful in none. make these observations to illustrate that the issues raised by Wal-Mart Canada before me are ones of substance, not just procedure. [74] The requirement that evidence, including documentary evidence, be relevant before it can be properly considered, is substantive issue that goes to the heart of the legitimacy of judicial or quasi-judicial dispute determination. This legal requirement is not an annoying technicality but is an important consideration in determining whether there has been denial of natural justice where there has been reliance on improper considerations rather than relevant evidence. The comments of the Board throughout the hearing and in the orders themselves, demonstrate that it did not consider the issue of relevancy when ordering production of the documents. It left that issue to be addressed by Wal-Mart Canada if and when the documents were tendered into evidence. [75] The authorities are clear that relevancy must be considered before an order is made for the production of document, not just when it is tendered as evidence. The following comments were made by the Board in this respect at pp. 22-23 of the May 25, 2004 transcript: So at any point when party is seeking to admit any of the documents in evidence, objections can be made on the basis of relevancy or anything else, any other objection that might pertain at that time. But in any event what we are saying is that the subpoena must be responded to. [76] It appears that some of the documents sought are in the possession and control of third party non-resident American corporation. In such case, additional factors and procedures should at least have been considered. These are set out in L.L.A. v. Beharriell (1995), 1995 CanLII 52 (SCC), 130 D.L.R. (4th) 422 (S.C.C.), and the companion case of R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) (S.C.C.). They include the requirement of “likely relevance” of the documents to an issue in the proceedings or to the competence of the witness to testify. The cases are not on point on their facts, but they illustrate that the bald assertion that the documents may contain information that is relevant does not meet the “likely relevancy” threshold. As well, in considering the relevance of document, reliance cannot be placed upon illegitimate purposes or discriminatory and stereotypical reasoning. [77] Solicitor-and-client privilege respecting some of the documents was also raised by counsel for Wal-Mart Canada. Yet the Board ordered the production of those documents without ruling on the issue or without providing means by which the confidentiality of the documents could be maintained until ruling was made. Dunn, in his article referred to previously, at pp. 104-105, sets out the procedure and the factors that must be considered before the production of such documents can be ordered. Although his article pertains to production of documents identified in subpoena duces tecum, the same considerations apply to production order made by the Board at hearing, particularly where it simply orders production of the documents referred to in the subpoena which has the effect as well of ordering the discovery of documents. [78] In fairness to counsel for UFCW, he suggested to the Board that it adopt and follow the procedure set out by Dunn in his article that referred to previously. But it appears that the Board was of the view that this was unnecessary. [79] Relevance, the scope of the proceedings and stereotypical reasoning, are issues that have significance to Wal-Mart Canada’s Charter challenge respecting s. of The Trade Union Act. It alleges in effect that the Board has interpreted s. to authorize it to dismiss any application by employees where there has been any form of communication or expression made by an employer to an employee. Wal-Mart Canada says that in doing so, the Board is using s. to penalize or restrict the rights of the employer and employee to freedom of expression, thereby violating s. 2(d) Charter rights. Comments made by counsel for UFCW to the Board during the hearing appear to imply that this is not only so, but that even the preference or “predisposition” of an employer not to have third party representation, is sufficient to bring s. into play. [80] As an alternative to quashing the production orders sought by Wal-Mart Canada, considered setting out some guidelines and ordering the Board to reconsider Wal-Mart Canada’s objections to document discovery and production. But the Board has repeatedly dismissed each of Wal-Mart Canada’s objections out of hand. Such an alternative order of this Court is likely feasible only if new panel is struck. This in turn will create significant problems, delays and inconvenience to the parties. In any event, it appears that Wal-Mart Canada has already produced most of the documents that it does have. UFCW previously obtained from union website two of the American documents that it seeks and tendered them into evidence before the Board. [81] As well, the Board has demonstrated a reluctance to give up its perceived powers of discovery despite two previous decisions of this Court and the Court of Appeal. If it interprets this current decision of the Court in the same fashion, an order to reconsider the issues may well be of little value to the applicant and simply spawn yet another application. In my view, the only feasible option open to me is to grant the relief that is sought by quashing the two impugned orders. [82] Before moving on to address the Charter challenge, must comment briefly on the connection between the issue of the Board’s impugned orders and the issue of the constitutionality of s. of The Trade Union Act. There is considerable factual nexus between the two applications. In its June 24, 2004 oral discovery and production order, the Board observed that it is not an unfair labour practice for an employer to say that it is not in favour of third party representation. It also observed that this is usually the case. It went on to observe that employer interference is seldom overt but is communicated to employees more insidiously. It acknowledged that the union is attempting to rely on s. as defence to an unfair labour practice allegation and is attempting to demonstrate that there are documents that disclose management influence. [83] The validity of these observations are not challenged. But the Board went on to order the disclosure and production of all the documents sought by the union, including internal management documents and documents of the American corporation. It did so without any apparent consideration as to their relevance or likely relevance. It also did so after hearing the submission of UFCW to the effect that s. can be utilized by the Board to infer employer influence in cases where the employer’s corporate structure and culture is such that it is difficult to unionize, in cases where the employer prefers not to be unionized and in cases where the employer makes any communication to employees even though the communication is not intimidating or coercive. [84] am not at this stage of the proceedings prepared to conclude, as suggested by Wal-Mart Canada, that the Board has already interpreted s. and the scope of the employer dominated issue before it, by adopting the position advanced by UFCW. acknowledge that one could speculate that this is so in view of the Board’s willingness to order the discovery and production of documents that are said to establish this corporate culture. But attribute this to its failure to assess the relevance of such documents, not to determination by it that the documents are relevant to the issue before it. If am wrong and the Board has interpreted s. in accordance with UFCW’s submissions, then such an interpretation of s. appears to be on collision course with s. 2(d) of the Charter. Wal-Mart Canada would then have firm factual foundation on which to bring its constitutional challenge application. The Charter Challenge [85] Although Wal-Mart Canada’s Charter challenge is closely linked to its applications to quash the Board orders, different considerations apply and must deal with them separately. It would be relatively easy matter to simply defer the issue to the Board for its ruling in the first instance as suggested by all the parties, (other than Wal-Mart Canada and the Interested Parties), on the basis of Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 (CanLII), [2003] S.C.R. 504. [86] The facts of that case however are somewhat different from the one before me, including the fact that the tribunal in the Martin case was vested with more extensive express authority to decide questions of law than is the Board in this case. As well, judicial review application in the case before me would have been brought to the Court in any event on grounds other than the alleged Charter breach. The expediency and economy of permitting the Board to decide the Charter issue in the first instance so that its proceedings are not put on hold and fragmented, is not as significant as if the judicial review application before the Court pertained only to the Charter issue. [87] One aspect of Wal-Mart Canada’s submission is that the Board has already interpreted s. very broadly which establishes that its effect violates s. 2(d) of the Charter. Wal-Mart Canada submits that this is evidenced in two ways. First, by the manner in which the Board has permitted the proceedings to be conducted. Second, by the focus of the hearing on the alleged anti-union philosophy of Wal-Mart Canada instead of on whether or not Wal-Mart Canada has in fact influenced its employees to bring their applications against UFCW. Wal-Mart Canada submits that it would be futile to remit the matter back to the Board for the determination of an issue that it has already been determined. [88] have already addressed and rejected this submission of Wal-Mart Canada in my conclusions reached in conjunction with the issues raised by the application to quash the Board orders. move on to address the other aspects of Wal-Mart Canada’s Charter application. To provide some context for my conclusions, begin by reproducing the relevant statutory provisions. [89] Section of The Trade Union Act reads as follows: The board may reject or dismiss any application made to it by an employee or employees where it is satisfied that the application is made in whole or in part on the advice of, or as result of influence of or interference or intimidation by, the employer or employer’s agent. [emphasis added] [90] The word “advice” is defined by The Pocket Oxford Dictionary, 8th ed., as follows: advice n. recommendation on how to act. information given; news. formal notice of transaction. [emphasis added] [91] Section 2(d) of the Charter reads as follows: 2. Everyone has the following fundamental freedoms: (d) freedom of association. [92] Wal-Mart Canada submits that the words have emphasized in s. offend the Charter and render the whole of the section unconstitutional. It relies on the definition of the word “advice” that have set out above and maintains that s. restricts the freedom of an employer to communicate with or to provide information to its employees, even by simply advising an employee to join the union or to seek legal advice. It concedes that if the communication amounts to intimidation or coercion, it is not constitutionally protected. [93] Wal-Mart Canada develops its submission by relying on various Supreme Court of Canada authorities that hold that even purely commercial expression falls within the ambit of s. 2(d) of the Charter. R. v. Big Drugs, 1985 CanLII 69 (SCC), [1985] S.C.R. 295; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] S.C.R. 232; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] S.C.R. 199; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] S.C.R. 712; R. v. Guignard, 2002 SCC 14 (CanLII), [2002] S.C.R. 472; and Harper v. Canada (Attorney General), 2004 SCC 33 (CanLII). [94] In Harper, supra, at para. 17, the court held that freedom of expression protects not only the speaker who expresses the information, but also protects the listener and reader of that expression. In this fashion, the Charter protects listeners and readers as well as speakers. At para. 139, the court held that because the impugned registration and disclosure provisions in the case before it have the effect of limiting free expression, they are unconstitutional even though their purpose is not to restrict free expression. [95] Wal-Mart Canada’s position has considerable merit considering the often close and special nature of the relationship between an employer and an employee that has long been recognized by the law. If s. has the effect of restricting freedom of expression between an employee and an employer that does not constitute interference or coercion, then s. may well violate s. 2(d) of the Charter and, if not saved by s. 1, it is unconstitutional. Section was in place before the Charter was enacted and may well now be out of touch with reality by permitting labour relations board, in stereotypical and patronizing manner, to disregard the deliberate and informed actions and legitimate wishes of employees on the basis of irrelevant and improper considerations. [96] What is somewhat unique about s. however, as pointed out by counsel for the Attorney General for Saskatchewan, is that on its face it is not blanket legislative prohibition of employee and employer communication. Rather it is provision that permits the Board to reject or dismiss an application by employees if the Board is satisfied that the employees’ application is made on the advice of the employer or as result of its influence or intimidation. But as pointed out by counsel for Wal-Mart Canada, s. does not distinguish between what kinds of advice or influence can be relied upon by the Board to reject or dismiss an employees’ application. [97] have difficulty following Wal-Mart Canada’s submission that s. on its face is blanket prohibition of communications or advice from an employer to an employee. appreciate however that the effect of s. may violate freedom of expression guaranteed by the Charter if s. is interpreted and relied upon as legal authority to penalize or disadvantage an employee in proceedings before labour relations board because of communication that is protected by the Charter. In my respectful view, Wal-Mart Canada has not demonstrated that the effect of s. is the Charter violation that it alleges. It has referred me to no authority that has interpreted s. in such manner other than what it characterizes as the decision of the Board in the case before me. [98] realize that UFCW relies on s. as defence in its reply to the unfair labour practice applications made by certain Wal-Mart Canada employees. also realize that UFCW’s assertion that Wal-Mart Canada’s anti-union culture is relevant to the matters before the Board is in effect submission that an anti-union culture on the part of Wal-Mart Canada provides UFCW with defence on the basis of s. 9. also realize that there is considerable merit in Wal-Mart Canada’s submission that the Board has interpreted s. in this manner by allowing the hearing to focus on UFCW’s allegations about Wal-Mart Canada’s anti-union culture. Wal-Mart Canada submits that this is an improper and unacceptable “witch-hunt” on the part of UFCW to punish Wal-Mart Canada for its beliefs, opinions, thoughts or political views. Wal-Mart Canada says that if the Board had not so interpreted s. 9, it would have focused on the testimony of all the witnesses before it that Wal-Mart Canada has not intimidated its employees. [99] Although Wal-Mart Canada has legitimate concerns about the direction the hearing has taken to date, as indicated previously, cannot agree that the Board has ruled on or interpreted s. in the fashion submitted by Wal-Mart Canada. Wal-Mart Canada’s submission at this juncture is speculative and premature. Hopefully my judgment quashing the two Board orders will assist all the parties, including the Board, to get on with the hearing and focus on the evidence that has already been heard and the proper issues raised by the matters before it. Once this has been done and the Board has given its decision, including decision on the Charter issue if Wal-Mart Canada pursues its application before the Board, the Court will have better factual foundation before it if asked to rule on the constitutionally of s. 9. [100] If the decision of the Board on the interpretation of s. and on the Charter issue is unfavourable to Wal-Mart Canada, it can seek judicial review of those decisions. As illustrated by the authorities, the Board has no special expertise respecting Charter issues and the Court need not extend any deference to the Board’s decision on Charter issue. Such decisions are understandably reviewed by the court on correctness standard. If this were not the case, fundamental Charter rights could be defined and determined by an unreasonable decision. patently unreasonable standard precludes intervention by the court except in the case of an irrational decision. decision that is “unreasonable” but is not “irrational” cannot be set aside. Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] S.C.R. 941; and Regina Board of Police Commissioners v. Regina Police Assn. Inc. (1996), 1996 CanLII 4983 (SK CA), 134 D.L.R. (4th) 313 (Sask. C.A.). [101] In my respectful view, for the reasons have given, Wal-Mart Canada’s application respecting the constitutionally of s. is premature in the sense that do not have sufficient factual foundation or context to properly measure s. of The Trade Union Act against s. 2(d) of the Charter. proper factual foundation is especially important in cases where it is the effects of the legislation that are alleged to offend the Charter. Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] S.C.R. 1086. As have not been able to rule on the merits of the constitutional issue, the constitutional challenge application is dismissed without prejudice to Wal-Mart Canada to bring its application back to the Court after the Board has rendered its decision or once it can provide better factual foundation and context to support its application. Conclusions 1. The orders of the Board dated May 21, 2004 and June 14, 2004 are quashed with costs payable forthwith to Wal-Mart Canada by UFCW. 2. The short-term stay of the proceedings of the Board that extended on July 13, 2004 is terminated forthwith. 3. The application by Wal-Mart Canada for an order declaring s. 9 of The Trade Union Act to be unconstitutional and of no force and effect is dismissed without prejudice to Wal-Mart Canada to bring its application back to the Court after the Board has rendered its decision or once Wal-Mart Canada can provide a better factual foundation and context to support its application. If there is an issue of costs between the parties respecting the constitutional challenge application that they are unable to resolve, any party has leave, on seven days’ notice to the others, to bring an application before me to determine the costs issue. [102] commend counsel who were involved in these applications for their efforts in putting together excellent materials in the short time frame available to them. In so doing they expedited the applications and their resolution by the Court.

Wal-Mart Canada applies for an order pursuant to Rule 664 and Rule 673 of The Queen's Bench Rules of Court quashing the orders of the Board. The orders require Wal-Mart Canada to discover and produce documents. Wal-Mart Canada says that the Board does not have the jurisdiction to use the subpoena or make the disclosure and productions orders in the manner in which it has done. Wal-Mart Canada also applies for an order declaring s. 9 of The Trade Union Act unconstitutional. HELD: The orders of the Board are quashed with costs payable forthwith to Wal-Mart Canada by UFCW. The application for an order declaring s. 9 of The Trade Union Act to be unconstitutional and of no force and effect is dismissed without prejudice to Wal-Mart Canada to bring its application back. 1) The Court concluded that a review of the transcript was essential to the proper determination of the issues raised by the application and that it must be considered part of the record. 2) The case law has determined that orders made by the Board that in reality are document discovery orders, are orders made without jurisdiction to which the applicable standard of review is one of correctness. 3) The Board abused its jurisdiction and power to issue the subpoena duces tecum in two respects. First the Board issued the subpoena without any prior consideration as the relevance of the documents that it compelled Wal-Mart Canada to produce. The subpoena was issued before the hearings commenced. There is no evidence that the Board exercised its discretion judicially in considering the issue of relevancy. It is unlikely that the Board even scrutinized the subpoena or it would have likely required the scope of it to be narrowed. Second, the subpoena was far too generalized and amounts to an order to discover documents. The Board must restrict its consideration to evidence that is relevant to the issues before it. It is precluded from making its decision on the basis of irrelevant or improper considerations. 4) The Board exceeded its jurisdiction and abused its power in making the discovery and production orders it did. The comments of the Court with respect to the subpoena duces tecum apply in principle to the Board's discovery and production orders. The orders were not production orders but directed Wal-Mart to comply with the subpoena duces tecum. 5) The requirement that evidence, including documentary evidence, be relevant before it can be properly considered, is a substantive issue that goes to the heart of the legitimacy of judicial or quasi-judicial dispute determination. It is an important consideration in determining whether there has been a denial of natural justice where there has been reliance on improper considerations rather than relevant evidence. 6) Some of the documents sought are in the possession and control of a third party non-resident American corporation. Additional factors and procedures should at least have been considered such as the 'likely relevance' of the documents to an issue. Solicitor and client privilege was raised with respect to some of the documents yet the Board ordered the production of those documents without ruling on the issue or without providing a means by which the confidentiality of the documents could be maintained until a ruling was made. 7) The Board has demonstrated a reluctance to give up its perceived powers of discovery despite two previous decisions of the Court of Queen's Bench and the Court of Appeal. If it interprets this decision of the Court in the same fashion, an order to reconsider the issues would be of little value to the applicant. The only feasible option is to grant the relief that is sought by quashing the two orders. 8) Wal-Mart Canada submits that the Board has already interpreted s.9 of The Trade Union Act very broadly so that its effect violates s. 2(d) of the Charter. Wal-Mart Canada submits this is evidenced in two ways. First, by the manner in which the Board has permitted the proceedings to be conducted and second, by the focus of the hearing on the alleged anti-union philosophy of Wal-Mart Canada instead of on whether or not Wal-Mart Canada has in fact influenced its employees to bring their applications against UFCW. If the Board has interpreted s. 9 of The Trade Union Act in accordance with UFCW's submissions, then such an interpretation appears to be on a collision course with s.2(d) of the Charter of Rights. If s. 9 of the Act has the effect of restricting freedom of expression between an employee and an employer that does not constitute interference or coercion, then s. 9 may well violate s. 2(d) of the Charter and if not saved by s. 1 of the Charter, is unconstitutional. However, Wal-Mart Canada's application respecting the constitutionality of s. 9 of the Act is premature in the sense that the Court did not have a sufficient factual foundation or context to properly measure s. 9 of the Act against s. 2(d) of the Charter.

9_2004skqb324.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 84 Date: 2008 02 22 Docket: Q.B.C.A. No. 17 of 2006 Judicial Centre: Saskatoon BETWEEN: THEODORE DUBELT and HER MAJESTY THE QUEEN Counsel: David K. Rusnak for the appellant Sheryl J. Fillo for the respondent JUDGMENT MILLS J. February 22, 2008 [1] Mr. Dubelt appeals his conviction for common assault under s. 266 of the Criminal Code of Canada on the basis that his non‑lawyer agent, Richard Klassen, provided him with ineffective assistance resulting in a miscarriage of justice. [2] Mr. Dubelt was convicted on April 4, 2006 of common assault. At his trial he was assisted by Richard Klassen. Mr. Dubelt paid Klassen $2,500 for his assistance on the assault charge. Following his conviction Mr. Dubelt utilized the assistance of Klassen in preparing notice of appeal in which the grounds are related to factual issues. [3] Mr. Dubelt abandoned Klassen and retained the services of member of the Law Society of Saskatchewan for the purpose of filing an amended notice of appeal disclosing the grounds of appeal as follows: 1. The Appellant says that due to the ineffective assistance of his trial counsel, there was miscarriage of justice that compromised the reliability of the trial’s result or caused procedural unfairness to the Appellant. 2. Such further or other grounds as the Appellant may advise or as may appear from the transcript of the sentencing proceedings. Included in the amended appeal was an affidavit of Mr. Dubelt explaining how Klassen had come to be his agent in Provincial Court and raising concerns about Klassen’s representations through the trial on Mr. Dubelt’s behalf. [4] Mr. Dubelt’s lawyer withdrew before the appeal was heard and counsel of record on the appeal inherited this situation. Technically the affidavit of Mr. Dubelt is “fresh evidence” meant to demonstrate the ineffective assistance of the agent Klassen at trial. [5] This fresh evidence is not directed to factual issue decided by the trial judge but rather to obtaining an original remedy from this Court on the basis that the agent Klassen’s ineffectual assistance resulted in miscarriage of justice. The process in situations like this has been developed by the courts so that an examination of the fresh evidence now before me is conducted to determine whether miscarriage of justice has occurred and if so the fresh evidence will be admitted and the appeal allowed. An example of this process as it relates to the issue of ineffective counsel being member of the Law Society is Smith v. The Queen, 2007 SKCA 71 (CanLII), 223 C.C.C. (3d) 114 and in the situation involving an agent, R. v. Wolkins, 2005 NSCA (CanLII), 192 C.C.C. (3d) 378. These two cases stand for the proposition that if upon review of the fresh evidence miscarriage of justice has not occurred it is not admissible. Although counsel did not direct themselves to the hearings in this fashion, essentially the process and argument followed that course. [6] Given the facts as will be addressed later the issues come down to the following: (1) What standard of representation if any is an accused entitled to when represented by non-lawyer agent at trial? (2) Did Mr. Dubelt’s conviction result from miscarriage of justice arising from the conduct of the trial? (1) What standard of representation if any is an accused entitled to when represented by non-lawyer agent at trial? [7] The brief of law submitted by Mr. Dubelt’s first counsel argues “that due to the ineffective assistance of his trial counsel there is miscarriage of justice that comprised the reliability of the trial’s result or calls procedural unfairness to the appellant”. [8] Counsel submits that the performance of Klassen although not lawyer is to be assessed against standard expected of lawyer. If indeed that were the case the criteria for reviewing the conduct of counsel is found in R. v. G.D.B., [2001] S.C.R. 520 and found in Smith, supra, from our Court of Appeal. That however is not the test to be applied. The case of R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 138 C.C.C. (3d) 225 contains compelling and thorough analysis of this issue by the Ontario Court of Appeal. Paragraphs 27 through 31 of the judgment provide an analysis that applies to Mr. Dubelt’s situation: 27 Every accused is owed fair trial. That right is guaranteed by s. 11(d) of the Charter. Representation by professionals trained in the law and bound by the ethics and obligations of their profession serves that right. In some cases, legal representation is essential to the securing of fair trial and an accused who wants counsel must be provided with counsel: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) (Ont. C.A.) at p. 66. If an accused retains counsel, she is constitutionally entitled to competent representation by that counsel: R. v. B. (L.C.) (1996), 1996 CanLII 937 (ON CA), 104 C.C.C. (3d) 353 (Ont. C.A.) at p. 367; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) at pp. 56-58. The constitutional right to the effective assistance of counsel recognizes that counsel, by virtue of their professional training, will bring to their task an expertise which others, including the accused, do not possess. An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise. 28 An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent: R. v. Vescio, 1948 CanLII 53 (SCC), [1949] S.C.R. 139 at p. 142, 92 C.C.C. 161, [1949] D.L.R. 720; R. v. Littlejohn and Tirabasso (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.) at p. 173. By choosing to proceed without counsel, an accused elects to forego the right to the effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel. 29 If an accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did not rise to the level [page238] of competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not lawyer. Nor does the fact that the agent is paid create any presumption as to the agent's competence. Just as where an accused chooses self-representation, an accused who chooses to be represented by an agent who is not lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent's performance should be tested against the standard reserved to counsel trained in the law: Harrison v. Canada, [1998] A.J. No. 109 (QL) at paras. 15-17 (Alta. Q.B.) [summarized 84 A.C.W.S. (3d) 687]. 30 In holding that an accused who chooses to be represented by an agent and not lawyer has no constitutional right to competent representation, we do not suggest that the accused's right to fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right: R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.) at p. 347. 31 Nor do we suggest that an accused who is represented by an agent who is not lawyer is foreclosed from raising the conduct of that agent on appeal in support of submission that the conviction constitutes miscarriage of justice. Any such submission cannot, however, be made on the basis that the miscarriage arises because the agent failed to meet the competent lawyer standard. Rather, the accused must demonstrate that the agent's conduct, perhaps combined with other events, produced miscarriage of justice. [9] The Nova Scotia Court of Appeal in R. v. Wolkins, supra, comes to the same conclusion and states the accused has right to chose how they will defend charge, that the accused who choses to be represented by an agent waives the right to effective assistance of counsel and that an agent who is not as competent as lawyer is not ground of appeal. [10] Mr. Dubelt’s affidavit deposes that upon being charged with the common assault of his former spouse, he retained the services of Robert Borden, person he knew was barrister and solicitor. Mr. Borden was also retained to assist Mr. Dubelt with the Family Law matters in the Court of Queen’s Bench Family Law Division that had arisen at the same time. Mr. Dubelt deposed that Mr. Borden was prepared to work with other persons that would assist him in the criminal and family matters and he was referred to Richard Klassen and one Angela Geworsky. He paid them $3,500 directly to assist Mr. Borden in the criminal and family law matters. [11] Mr. Dubelt deposes that on January 16, 2006, Borden withdrew for personal reasons from both the family and criminal law matters and that he did not wish to adjourn the criminal trial as he wished to have the criminal charges resolved before the family matters proceeded to hearing. [12] He was advised that Klassen could represent him at the criminal trial. Dubelt deposed Klassen was familiar with his criminal matter, appeared knowledgeable about the court system and had acted previously in consultation with Mr. Borden. He paid Klassen and Geworsky $2,500 on January 20, 2006 to represent him at the criminal trial and his family law proceedings. He deposed that even after the conviction Klassen prepared the notice of appeal on grounds the two of them thought were appropriate which was the first appeal filed in this matter. [13] Upon cross-examination on his affidavit it was revealed that Mr. Dubelt had originally retained Brian McHolm, member of the Law Society of Saskatchewan, to defend him on his criminal matters. Mr. McHolm appeared on behalf of Mr. Dubelt in September of 2005, entered not guilty plea and set trial date on his behalf. By August of 2005 Mr. Dubelt had discharged Mr. McHolm and retained Mr. Borden who appeared on his behalf in Provincial Court to set new trial date subsequently arranging for its adjournment to February 23, 2006. Mr. Dubelt came to know of Klassen through friend. He went to Klassen’s website for more information on him. Mr. Dubelt was aware that Klassen was not lawyer and sought Klassen’s advice as to who would be good lawyer. Mr. Dubelt testified that Klassen told him that he did ground work and compiled material and that he had worked with Mr. Borden, that his acquaintance, Angela Geworsky, did the same thing. When they met at Mr. Borden’s office Mr. Dubelt retained all three, that is, Klassen, Geworsky and Mr. Borden. Mr. Klassen attended most meetings that Mr. Dubelt had with Mr. Borden. Mr. Klassen was aware of Mr. Dubelt’s plan of defence, i.e. the audio tape. Mr. Borden was the lawyer who retained the audio tape expert. [14] Mr. Dubelt testified that there arose conflict between Klassen and Mr. Borden and Mr. Borden withdrew. Mr. Dubelt then continued looking for another lawyer to assist him on his criminal defence with the assistance of Klassen. He testified that he met two to three other lawyers but that he does not recall their names specifically. He said he was uncomfortable with them and did not want his trial adjourned again. Those were the circumstances that led up to him appearing in court with Klassen to run the trial. [15] Klassen’s lack of ability by itself is not a ground for determining that a miscarriage of justice occurred. There was no unfairness to Mr. Dubelt in the trial process. Mr. Dubelt was entitled to have Klassen represent him. He made that decision freely based on information fully at hand that he consciously chose to rely on. Mr. Dubelt was familiar with the legal process generally. He had interviewed number of different lawyers all of whom he felt were lacking insofar as his needs were concerned. He knew what his options were as it relates to the selection of counsel or agent. He was provided with appropriate disclosure before trial. He was given generous rulings as it related to the issue of his expert witness and co-operation from the Crown in ensuring that police officers were available for providing evidence if he so requested. The trial judge explained to him the procedure including the obligation of the Crown to prove their case and the fact that there was no requirement on him to call evidence but of course that he could do so if he wished to. The court in Wolkins, supra, quoted from the case of Davids v. Davids, 1999 CanLII 9289 (ON CA), [1999] O.J. No. 3930 (C.A.) (QL), summarizing the issue of trial fairness as follows: ... The fairness of this trial is not measured by comparing the appellant’s conduct of his own case with the conduct of that case by competent lawyer. If that were the measure of fairness, trial judges could only require persons to proceed to trial without counsel in those rare cases where an unrepresented person could present his or her case as effectively as counsel. Fairness does not demand that the unrepresented litigant be able to present his case as effectively as competent lawyer. Rather, it demands that he have fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. nan [16] In the circumstances there certainly was no procedural unfairness to Mr. Dubelt. He did not get the standard of representation that a competent lawyer could provide, that came as a result of the decisions he freely made. [17] Mr. Dubelt was before the Provincial Court as person who was self-represented although he had hired Mr. Klassen to provide him with assistance as his agent. The objective fairness of the trial has not been diminished because of this. [18] The reasoning in Romanowicz and Wolkins conclusively decides that Mr. Dubelt cannot rely on the fact that the standard of representation received was not equal to that of a competent lawyer. (2) Did Mr. Dubelt’s conviction result from miscarriage of justice arising from the conduct of the trial? [19] Romanowicz leaves open the question of whether miscarriage of justice may have occurred resulting in the necessity of new trial (Romanowicz, para. 31). Throughout the trial there are examples of Klassen showing himself not to be reasonably competent or at the very least unknowledgeable at certain times. [20] The first situation surrounds the improper attempt at subpoenaing as defence witnesses two peace officers who had some involvement with the file. Despite being served with defective subpoenas they appeared for the trial and with the co-operation of the Crown were prepared to remain and give evidence if called upon by the defence. Klassen suggested that their evidence was crucial but allowed one officer who was then on maternity leave and breastfeeding her child to leave and not worry about being called back to testify, ostensibly because she was nursing mom. That of course had nothing to do with the issue before the Court nor would it impact on the evidence that officer could have given in relation to the trial. His decision made little sense. However based on his reasoning professed to the Court about the necessity for that witness it was also clear that neither police witness had anything to offer by way of evidence that would provide or assist in providing defence by Mr. Dubelt. The whole process with the attempted subpoena of the police officers, the reason for the subpoena, what he expected to receive by way of evidence from them and the eventual testimony showed Klassen’s inexperience and lack of skill. None of it however could have any impact on the outcome of the trial since Mr. Klassen was offering their evidence as proof of shoddy police investigation, unrelated to the rather simple issues at trial. [21] One must remember that the basis of the charge was common assault upon his spouse. The spouse gave the circumstances of how she was assaulted by Mr. Dubelt. The police investigation was appropriate for what the charge entailed. The fact that the police were not prepared to challenge Mrs. Dubelt more vigorously on her allegations and to seek further corroborative evidence of Mrs. Dubelt’s story before laying the charge has no impact on whether or not he assaulted her. [22] Mr. Klassen showed lack of knowledge with respect to the manner in which expert evidence is to be tendered to the court. He did not provide copy of the report to Crown counsel as required by the Code. He did not understand how to go about qualifying the expert to testify and did not understand that particular area of expertise had to be identified and established. His lack of skill in the area of expert witnesses however did not prevent the court from allowing the expert to be qualified as such and give evidence on behalf of Mr. Dubelt. That result came from rather generous ruling from the trial judge. [23] In argument Klassen cited cases that were legally unrelated to the factual propositions before the Court. None of the above inadequacies had any impact on the trial to the detriment of Mr. Dubelt. This case was not legally challenging. It was simple factual issue and that boiled down to whether Mr. Dubelt assaulted Mrs. Dubelt in the fashion that she testified to. For all the issue taken by Mr. Dubelt with the audio tape it clearly was not part of the Crown’s case. It was attempted to be used by the defence to show that Mrs. Klassen was not credible. There are essentially two ways to defend the charge against Mr. Dubelt. The first was to impeach the credibility of Mrs. Dubelt’s testimony such that the Crown had not proven the case beyond reasonable doubt without himself testifying. Secondly, to testify in his own defence and have the Court assess the entirety of the case on the basis of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742, Mr. Dubelt felt that the better approach was to utilize the audio tape and attempt to impeach his spouse’s credibility, without testifying. That tactical decision was not effective. Mr. Dubelt has to accept responsibility for the decision not to testify. He was aware that he had the option to testify or not. Part of the initial instructions from the Court included this statement from the trial judge: As say, after the Crown has called all of its evidence, it will be up to you, and you obviously may want to break to discuss this with Mr. Klassen to decide whether you’ll testify yourself or whether you’ll call witnesses. As said at the outset, you do not have to testify. You do not have to call witnesses. You do not have to prove anything, all right? And again, at the conclusion of the Crown’s case the court said: nan I’m just going to make statement and it’s it’s likely not necessary, but just have since the accused is unrepresented, just have to restate the fact that you don’t have to call any evidence. You don’t have to testify yourself. If you do call evidence or testify yourself, it will be under oath. So do you understand that, sir? The accused said he understood. Two witnesses were called by the defence, the expert on audio tapes and one police officer. At the conclusion of the police officer’s testimony Mr. Klassen stated in the presence of Mr. Dubelt the following: Mr. Klassen, have spoken with Mr. Dubelt. We are satisfied that we are going to close our case. We are not going to be calling any more evidence so that day whatever we set will be argument. [24] There would be an opportunity at this time for Mr. Dubelt to indicate to the judge that he wished to testify if in fact that was the case. Dubelt gave no such indication. Of course at the conclusion of the trial judge’s decision and the finding that he had committed an assault it became obvious to Mr. Dubelt that in order to be acquitted he would have had to testify. He now wishes that opportunity. There are only two specific allegations of incompetence directed to Klassen that were contained in the fresh evidence affidavit. The first is failure to ask questions and the second was incorrect advice about not to testify. Mr. Dubelt in his affidavit stated that Klassen failed to ask the complainant number of questions that he believed are relevant to his defence and which were discussed in advance. The affidavit does not disclose what those questions were and regardless of the response that would have been received have no way of knowing whether there would be any relevance attached to them. Mr. Klassen does not disclose anything related to the line of questioning that was not covered or specific issues not raised. The second issue as to whether Mr. Dubelt would testify and why he did not is contained in the following excerpt from his affidavit: nan At the close of the Crown’s case, was advised by Richard Klassen that did not have to testify as he believed that he would raise reasonable doubt about the Complainant’s evidence and credibility through our expert witness (in audio recording) who would testify that the audio tape was not authentic or continuous, and that my denials of the assaults were recorded on the audio tape. 11. That my decision to not testify on my own behalf was made upon the strong recommendation of Richard Klassen, whom believed to be experienced and knowledgeable on such matters. [25] Mr. Dubelt does not disclose the general type of evidence that he would have given if called upon to testify. He does not indicate denial anywhere in his material that the altercations described by the complainant did not occur. have no way of ascertaining if he did testify that the evidence of the complainant would not be sustained as essentially accurate. What does that matter either way? Mr. Dubelt made tactical decision to not testify. He did it because the theory of the defence was to attempt to impeach the credibility of the complainant by use of the audio tape evidence that they introduced. It was not successful. Mr. Dubelt participated in the decision to conduct this trial in that fashion. He was not reluctant to change counsel if he was not comfortable with the approach that they were to take. Clearly he was not someone who appears to have been cowed by Mr. Klassen into making tactical decision that he did not want to. Counsel now argues that once the evidence had been presented by Klassen in relation to the audio tape from legal standpoint it should have been obvious that there was no hope of that defence succeeding, therefore miscarriage of justice has occurred as Klassen’s advice should have then been that Mr. Dubelt had to testify. [26] do not believe that to be the case. The tactical decision to attack the credibility of the complainant through challenge to the audio tape started with Mr. Borden and was discussed and personally approved by Mr. Dubelt. It was continued with Klassen. Mr. Dubelt saw many lawyers in the assault case. He did not have confidence in them and pursued his original line of defence through Klassen. I cannot see a miscarriage of justice as a result of the tactics of Mr. Dubelt and Klassen. The evidence at trial and the fresh evidence offered by Mr. Dubelt’s testimony and his affidavit do not establish a miscarriage of justice that may have occurred outside of Mr. Dubelt’s choice of agent, the test in Romanowicz. The appeal is therefore dismissed. [27] Mr. Dubelt’s counsel did not argue any other basis for the appeal, other than the incompetence of Klassen. Despite this, wish to refer briefly to the appeal on the basis that the verdict is unreasonable or cannot be supported by the evidence. There is no basis in the transcript for accepting such position. The trial judge accepted the fact situation described by the complainant, and there is nothing in any of the evidence led either by the Crown or defence that he found to detract from her evidence. The allegations are not that the judge erred with respect to the facts but rather the judge should not have believed the evidence provided. [28] In this simple factual case, the judge believed the complainant, and as an appellate court, am in no position to review his reasons to determine if simply would have come to different conclusion. The law in this area is well established, and there is little reason to embark on further analysis of overturning the conviction on the basis of finding fact. The most recent and useful discussion in this area from our Court of Appeal is R. v. L.W.T., 2008 SKCA 17 (CanLII), [2008] S.J. No. 75 (QL). [29] The appeal is therefore dismissed.

The appellant appeals his conviction for common assault under s. 266 of the Criminal Code on the basis that his non-lawyer agent, Richard Klassen, provided him with ineffective assistance resulting in a miscarriage of justice. HELD: The appeal is dismissed. 1) Klassen's lack of ability by itself is not a ground for determining that a miscarriage of justice occurred. There was no unfairness in the trial process. The appellant was entitled to have Klassen represent him. He made that decision freely based on information fully at hand that he consciously chose to rely on. There was no procedural unfairness to the appellant. He did not get the standard of representation that a competent lawyer could provide but that came as a result of the decisions he freely made. On appeal the appellant cannot rely on the fact that the standard of representation received was not equal to that of a competent lawyer. 2) The tactical decision to attack the credibility of the complainant through challenge to the audio tape was personally approved by the appellant. The appellant saw many lawyers in the assault case. He did not have confidence in them and pursued his original line of defence through Klassen. The Court cannot see a miscarriage of justice as a result of the tactics of the appellant and Klassen. The evidence at trial and the fresh evidence offered by the appellant's testimony and his affidavit to not establish a miscarriage of justice that may have occurred outside of the appellant's choice of agent, which is the test in R. v. Romanowicz (1999), 138 C.C.C. (3d) 225 (Ont. C.A.).

e_2008skqb84.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 122 Date: 20071101 Between: Docket: 920 Kevin Miezianko (Plaintiff) Appellant and Bjorkdale Lions Club Inc., Bjorkdale Fair Board Inc., Edward Kehrig in his personal capacity and as representative of the members of the Bjorkdale Lions Club Inc., Carl Schneider in his personal capacity and as representative of Bjorkdale Fair Board Inc., and Village of Bjorkdale (Defendants) Respondents Coram: Cameron, Smith, and Wilkinson JJ.A. Counsel: Karen Prisciak, Q.C. for the Appellant Shaunt Parthev for the Respondent Bjorkdale Lions Club Inc. Paul A. Demong for the Respondent Village of Bjorkdale Appeal: From: QB No. 127 of 2003, J.C. of Melfort Heard: November 1, 2007 Disposition: Appeal Dismissed Reasons By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A.: [1] This is an appeal from a decision of Madam Justice Rothery who granted a motion to withdraw the case from the jury in an action for damages in negligence brought by the appellant (plaintiff), Kevin Miezianko, against the respondents (defendants), Bjorkdale Lions Club Inc. and Village of Bjorkdale. The action arose out of burns suffered by the appellant while participating in demolition derby run by the Bjorkdale Lions Club with the assistance of the Bjorkdale Fire Department. Justice Rothery granted the motion on the premise there was no case to go to the jury because the appellant had failed to adduce sufficient evidence of: (a) the requisite causal connection between his injury and the alleged acts of negligence, and (b) the standard of care required of the respondents. In consequence, she dismissed the action, with costs to the respondents. [2] The appellant then brought this appeal, contending that Justice Rothery had erred in granting the motion to withdraw the case from the jury. Alternatively, the appellant contended that she had erred in her award of costs. [3] The parties agree that Justice Rothery employed the right test in addressing the motion, having addressed it along the lines of whether the plaintiff had adduced sufficient evidence, considered in its best light, to enable the jury, properly instructed and acting judicially, to find the defendants or either them liable in negligence. So, the issue reduces to whether she applied the test correctly in light of the evidence. [4] The evidence adduced by the appellant may be taken for the purposes at hand to have established the following, though it may be noted that there were number of inconsistencies and weaknesses in the evidence, especially in the testimony of the appellant. [5] The appellant was an experienced demolition derby participant, assisted by four-man pit crew. He had modified his vehicle to the required standards, as well as to his own satisfaction in relation to its operation and safety, including the safety of an unconventional ignition system he had devised to give him an advantage in starting the vehicle whenever it stalled. [6] While participating in the demolition derby in issue, the appellant suffered burns of varying degree to various parts of his body. His right hand and arm were particularly badly burned. They were burned when gasoline from the gas tank located behind the driver’s seat of the vehicle he was driving splashed on him and was set on fire shortly afterwards, after he had signalled his desire to have the contest halted and his vehicle had come to stop. Having come to stop, the appellant tried to restart the vehicle it seems, though that is not entirely clear. In any event, he made some adjustments to its fittings before getting out of it. He positioned the batteries located on the floor of the vehicle, bringing them to an upright position, and then repositioned the electrical wiring leading from the batteries to rigged-up, toggle ignition switch situated on the dash. He then caught on fire, exited the vehicle, and rolled on the ground. Within seconds, several persons came to his assistance. One attempted to put out the fire with fire extinguisher, which malfunctioned, while others managed to put it out with dirt. About 30 seconds elapsed between the time he caught on fire and the time the fire was put out. [7] One of the persons overseeing the competition on behalf of the Bjorkdale Lions Club had noticed splash of liquid or gasoline in the interior of the vehicle shortly before the appellant stopped. This person was acting as flagman, with power to halt the contest by waving his flag, but he did not do so, at least not immediately upon noticing the liquid or gas. He stopped the contest shortly afterwards, however, upon the appellant signalling his desire to have it halted. Another flagman then approached the appellant’s vehicle and spoke with him, telling him he smelled gas. In response, the appellant said he was covered with gas, implying he would be exiting the vehicle, and with that the flagman turned to leave. Within moments thereafter the appellant caught on fire. [8] The Bjorkdale Fire Department was standing by, in the sense that it had fire truck parked nearby and had some of its members in attendance. Who attempted to put out the fire with fire extinguisher was not established, but there was fire extinguisher nearby and it malfunctioned while others were in the midst of taking action to smother the fire. [9] As part of his case, the appellant introduced expert evidence concerning his injuries. He called Dr D.A. Classen, plastic surgeon who practices plastic and reconstructive surgery and who treated the appellant’s burns. Dr Classen was qualified to testify as an expert in relation to reconstructive surgery, care of burn victims, the effect of spontaneous combustion of gasoline on human skin within the first few seconds of contact, and so on. In the course of his testimony, he said that once body cells reach certain temperature the cells are damaged very quickly, adding that if the temperature reaches 100 degrees, for instance, the injury is instantaneous and that it does not much matter at that temperature whether the burning lasts one second or five seconds. He went on to say that, while there is correlation between time and temperature and the extent of the injury, at very high temperatures the time factor is of little significance after very brief period of time. [10] Later, having been asked to bring these observation to bear on the appellant’s burns, particularly the burns to his right hand, arm, and shoulder, Dr Classen said the damage resulting from these burns would have occurred within few seconds—five or six he supposed—of the gasoline on the appellant’s body having ignited. [11] Now, the appellant took the position at trial that he had made out prima facie case of liability against each of the Bjorkdale Lions Club and the Bjorkdale Fire Department based on their having breached their respective duties of care and having caused or contributed to his injury. He did not adduce any expert evidence of the standard of care required of persons in the organization and conduct of demolition derbys, nor any expert evidence of the standard of care required of volunteer fire department when assisting in the conduct of such derbys. He was content to leave this to common sense inference, contending that the flagman who noticed the splash of liquid or gasoline in the interior of the appellant’s vehicle was bound to have immediately stopped the competition and alerted the Fire Department to this condition. The flagman’s failure to do so, he argued, constituted an act of negligence attributable to the Lions Club. As for the Fire Department, the appellant suggested that it failed to take timely action and to have functioning fire extinguisher at hand. These failures, he argued, constituted acts of negligence on its part. [12] The appellant went on from there to contend that each of these acts of negligence contributed to the extent of his injuries, contending that had the respondents acted in accordance with the standard of care expected of each of them his burns would not have been as serious as they turned out to be. [13] In granting the motion to withdraw the case from the jury for lack of evidence in relation to the elements of the tort of negligence, Justice Rothery first expressed the view that the appellant had failed to adduce sufficient evidence of causal connection between his injuries and the alleged acts of negligence. She observed that, while the actions of the flagman who failed to immediately halt the competition on noticing the presence of gasoline in the interior of the appellant’s vehicle might be seen to be negligent, the flagman did not cause the fire, nor contribute to the appellant’s injuries. She noted that the competition was halted shortly afterwards, at the behest of the appellant, and that the appellant, knowing he was covered in gasoline, remained in the vehicle for period of time before the fire broke out. [14] She went on to express the further view that the appellant had failed to adduce sufficient evidence of the standard of care required of persons in the organization and conduct of demolition derbys, suggesting that in the absence of expert evidence to that effect it was not possible to say that the flagman who failed to halt the competition and alert the fire department to the condition he had observed had thus failed to meet the standard of care expected of him. She was of the opinion that expert evidence was needed in this respect, especially in light of the 30 second time-frame the appellant was on fire. Hence, she concluded that the appellant had failed in effect to make out prima facie case of breach of duty on the part of the Bjorkdale Lions Club. [15] Turning to the case against the Bjorkdale Fire Department with the standard of care in mind, she said the standard of care required of volunteer fire department is this: The department is to do its best with the resources available to it, taking care not to worsen the situation or substantially depart from basic principles of fire fighting: Hammond v. Town of Waban (1998), 1998 CanLII 18022 (NL CA), 170 Nfld. P.E.I.R. 97 (Nfld. C.A.). That being so, and having regard once again for the 30 second time-frame the appellant was on fire, including the time it took him to exit the vehicle, she was of the opinion expert evidence was necessary to enable the jury to conclude that the actions of the Fire Department fell short of the standard of care and constituted acts of negligence. [16] In the circumstances, we are of the opinion there is no tenable basis to interfere with the decision of Justice Rothery. We do not necessarily subscribe to the whole of her analysis, but we do share her view that the action was preordained to failure in light of the evidence and the burden upon the appellant to prove each of the elements of his cause of action. To put the case on appeal at its highest, let us assume without deciding that, as the appellant contends, she made too much of the need for expert evidence in relation to the standards of care in issue. Even then, we are of the opinion the action was destined to fail because, based upon the evidence before the court and the theory advanced by the appellant, the jury could not have found the requisite causal connection between the appellant’s injury and the alleged acts of negligence. [17] Had the case been permitted to go to the jury on the theory of the appellant, the jury would have been asked to conclude on a balance of probabilities that, but for the actions of the flagman who failed to immediately halt the competition and alert the Fire Department to the condition he had observed, the appellant would have suffered less serious burns than he in fact suffered. Similarly, the jury would have been asked to conclude that, but for the failure of the volunteer fire fighters to take more effective action, the appellant would have suffered less serious burns. [18] The jury could not have arrived at either conclusion, given the evidence of the duration the appellant was on fire, about 30 seconds, and the expert evidence that his injuries would have occurred virtually instantaneously or within five to six seconds of his having caught on fire while still in his vehicle. In the light of this evidence, and in the absence of further evidence of the standard of care required of each of the respondents, we are of the opinion the jury could not rationally have concluded that either of the respondents caused or materially contributed to the extent of the appellant’s injury. On the basis of the expert evidence, the damage would have occurred just the same, fault or no fault on the part of the respondents. That being so, the damage could not be seen to have been caused or materially contributed to by the respondents. [19] For these reasons, then, the appeal is dismissed to the extent it takes issue with Justice Rothery’s decision to withdraw the case from the jury. [20] As for her award of costs, we note that costs are in the discretion of the trial judge, that the discretionary power committed to trial judges in relation to costs is largely unfettered, and that the standard of review on appeal is decidedly narrow, all as mentioned in detail in Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (Sask C.A.). Viewed in this light, we can see no tenable basis for interfering with the award. Accordingly the appeal is dismissed in this respect as well. [21] It follows that the appeal is dismissed in its entirety. The respondents shall have their costs on appeal, such costs to be taxed in the usual way.

This is an appeal from a decision of the trial judge who granted a motion to withdraw the case from the jury in an action for damages in negligence brought by the appellant plaintiff against the respondent defendants. The action arose out of burn suffered by the appellant while participating in demolition derby run by the defendants. The motion was granted on the premise there was no case to go to the jury because the appellant had failed to adduce sufficient evidence of the requisite causal connection between his injury and the alleged acts of negligence, and the standard of care required of the respondents. In consequence, the trial judge dismissed the action with costs to the respondents. The issue on appeal is whether the trial judge applied the test correctly in light of the evidence. HELD: Appeal dismissed. 1) Had the case been permitted to go to the jury on the theory of the appellant, the jury would have been asked to conclude on a balance of probabilities that, but for the actions of the flagman who failed to immediately halt the competition and alert the Fire Department to the condition he had observed, the appellant would have suffered less serious burns than he in fact suffered. Similarly, the jury would have been asked to conclude that, but for the failure of the volunteer fire fighters to take more effective action, the appellant would have suffered less serious burns. The jury could not have arrived at either conclusion, given the evidence of the duration the appellant was on fire, about 30 seconds, and the expert evidence that his injuries would have occurred virtually instantaneously or within 5 to 6 seconds of his having caught on fire while still in his vehicle. In the light of this evidence, and in the absence of further evidence of the standard of care required of each of the respondent, the Court is of the opinion the jury could not rationally have concluded that either of the respondents caused or materially contributed to the extend of the appellant's injury. On the basis of the expert evidence, the damage would have occurred just the same, fault or no fault on the part of the respondents. That being so, the damage could not be seen to have been caused or materially contributed to by the respondents. 2) There is no tenable basis for this Court to interfere with the trial judge's award of costs.

e_2007skca122.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 269 Date: 2007 07 26 Docket: Q.B.G. No. 902 of 2007 Judicial Centre: Regina BETWEEN: GREGORY METZ and TIMOTHY GENI APPLICANTS (Plaintiffs) and THE BOARD OF EDUCATION OF THE PRAIRIE VALLEY SCHOOL DIVISION NO. 208 OF SASKATCHEWAN RESPONDENT (Defendant) Counsel: Aaron A. Fox, Q.C., and Barbara C. Mysko for the applicants James R. McLellan for the respondent FIAT LAING C.J.Q.B. July 26, 2007 [1] The applicants, who are residents of Wilcox, Saskatchewan, and have children attending Wilcox School, seek an interlocutory mandatory injunction preventing and restraining the respondent Board of Education (the Board) from acting upon a resolution passed by the Board on May 7, 2007 that the Wilcox Public School be closed effective August 15, 2007. The grounds put forward for the application may be summarized as: (1) The Board provided inadequate notice of an election for the Wilcox school community council, and it is alleged the election is nullity. As result there was no council for the Board to consult with as required by The Education Act, 1995, S.S. 1995, c. E-0.2 (the Act) upon decision being made to close the school. (2) The Board failed to comply with the requirements of procedural fairness in the manner in which they proceeded to pass the resolution closing the school. THE LEGISLATIVE BACKGROUND TO SCHOOL CLOSURES [2] Section 87(1)(x) of the Act grants the power to board of education to close schools upon compliance with the requirements thereafter set out in the section. Section 87(1)(x) states: 87(1) Subject to the powers of the conseil scolaire with respect to the division scolaire francophone and minority language instruction programs, board of education may: (x) with respect to any school situated in school district: (i) close the school or discontinue one or more grades or years taught in the school where the board of education has, prior to the effective date of the closure or discontinuance of grades or years, obtained the consent of the school community council to close the school or discontinue one or more grades or years taught in the school, as the case may be; or (ii) subject to subsection (2), close the school or discontinue one or more grades or years taught in the school where the board of education has: (A) at least 10 days prior to the day on which the meeting mentioned in paragraph (B) is held, given notice of the meeting mentioned in paragraph (B) in accordance with subsection (3); (B) at least three months prior to the notification mentioned in paragraph (C), convened meeting of the person is eligible to vote in an election of the school community council for the school to advise them that the closure of the school or the discontinuance of one or more grades or years taught in the school is being considered by the board of education; (C) at least three months before the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, by registered mail, notified the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued, of: (I) the board of education’s decision to close the school; or (II) the board of education’s decision to discontinue one or more grades or years taught in the school; and (D) following the notification mentioned in paragraph (C) and prior to the effective date of the closure of the school or discontinuance of one or more grades or years taught in the school, as the case may be, consulted with the school community council of the school that will be closed or in which the teaching of one or more grades or years will be discontinued with respect to educational services for pupils who will be affected by the closure or discontinuance of one or more grades or years, as the case may be. 87(2) board of education may close school or discontinue one or more grades or years taught in school, pursuant to subclause (1)(x)(ii), only where the effective date of the closure or discontinuance occurs during the period: (a) commencing at the end of the day determined by the board of education, pursuant to section 163, as the last school day in one school year; and (b) ending on the day prior to the day determined by the board of education, pursuant to section 163, as the first school day in the school year following the school year mentioned in clause (a). (3) The board of education, with respect to notice mentioned in paragraph (1)(x)(ii)(A), shall: (a) publish the notice in at least one issue of newspaper published and circulating in the attendance area or in any city, town or village in which the school that is to be the subject of the meeting is situated; and (b) post the notice: (i) in at least five widely-separated, conspicuous locations in the school district or attendance area in which the school that is to be the subject of the meeting is situated; and (ii) in the building in which the headquarters of the school division are located. [3] Section 140.1 of the Act states that there shall be school community council established for each school. The section states: 140.1(1) Subject to subsections (2) to (4), every board of education shall establish school community council for each school in its division. [4] Section 3.5(3) of The Education Regulations, 1986, R.R.S. c. E-0.1 Reg (the Regulations) require at least four weeks’ notice to the public before public meeting is held to elect members of school community council. Regulation 3.5(3), (4) and (5) state as follows: (3) returning officer shall provide at least four weeks’ notice to the public before public meeting is held to elect members of school community council. (4) The notice shall state: (a) the purpose of the meeting; (b) the attendance area or the geographic area for the school community council; (c) where any policies or procedures developed by the board of education respecting the election of the school community council can be reviewed; and (d) the date, time and location of the meeting. (5) The notice shall be advertised or posted in such way that it would be reasonably expected to reach the parents or guardians of pupils for that school and community members. THE POSITION OF THE PARTIES [5] The applicants do not take issue with the formalities for the meetings required by s. 87(1)(x), supra. They do take issue with the election which took place on January 18, 2006 to elect members to the school community council. The notice for election of new school community council was posted on December 22, 2006 for an election to take place on January 18, 2007. It is agreed that by reason of s. 3.5(3) of the Regulations, supra, and the operation of s. 24(3) of The Interpretation Act, 1995, S.S. 1995, c. I-11.2 which states that when the words “at least” are used, time should be calculated with the first and last days being excluded, the notice period for the election was only 26 days as opposed to the 28 days represented by four weeks’ notice. It is the applicants’ position that the election which took place on January 18 is nullity because of the short notice, and therefore there was no legal school community council for the Board to consult with once the decision was made to close the Wilcox School; ergo the Board has not, and cannot, meet the statutory requirements for school closure this year because the Act states school may only be closed in the months of July and August. [6] The applicants also submit the Board failed to comply with the common law duty of fairness in passing its resolution for school closure. They allege the breach of the duty arises by reason of: (1) The Board failed to provide the applicants with complete and accurate information relating to the Board’s decision to close the school. This allegation relates to the fact the Board held in camera meetings and did not disclose what it discussed in the meetings. The evidence is the Board does not keep minutes of in camera meetings. (2) The Board ignored, or did not directly respond to all of the submissions made by the persons in opposition to the school closure. (3) The Board refused to publicly disclose the reasons for the decision to close Wilcox School, or alternatively, disclosed either inadequate or inaccurate reasons. [7] The position of the respondent Board is that the short notice for election of the school community council is irrelevant to the issue of whether or not the closure resolution was properly enacted, and in any event deny that the short notice renders the election of the school community council nullity. The Board also takes issue with the allegation of lack of procedural fairness. Without conceding that the Act requires procedural fairness over and above the requirements set out in the Act, its position is that the Board presented plenty of opportunity to receive feedback from the community, and that it met the test of procedural fairness for the type of process the Act required the Board to undertake. BACKGROUND FACTS [8] The respondent, The Board of Education of the Prairie Valley School Division No. 208 of Saskatchewan, was created effective January 1, 2006 as result of process established by the Government of Saskatchewan to restructure school divisions. Through the process, 79 school divisions became 28 school divisions. The respondent School Division was created by combining seven complete school divisions and one partial school division into one. In 2006 the school division had 46 schools within its boundaries. [9] In 2006 the respondent Board of Education prepared document entitled “viable schools policy”. The policy in its introduction states the need to maintain viable schools and classrooms within the context of the entire school division, and goes on to say in order to ensure quality education for its students the Board of Education may, from time to time, have to consider discontinuing one or more grades offered in school or closing schools. The introduction to the policy concludes: Therefore, the Board of Education of the Prairie Valley School Division will adhere to the following guidelines of operation with regard to determining the possible Review Status of school. These guidelines will provide process and procedure so that school review can be clearly predicted and people will have some assurance as to how and when decision process might be initiated. The balance of the policy sets out the criteria to be considered. The viable schools policy was adopted by the Board at its meeting on November 16, 2006, and was thereafter posted on its website. [10] Also on November 16, 2006, the Board served notice it was placing 11 schools under review, including the Wilcox School. The Board passed the following motion on this date: That, due to the projected low student enrolment, budgetary constraints and the capacity to meet program needs within existing financial constraints, this Board consider the discontinuance of one or more grades from up to and including the complete closure of Wilcox School with an effective date not earlier than July 2, 2007. [11] From the outset the community of Wilcox was concerned about the possible closure of its school. Following the School Board resolution to place 11 schools under review, Wilcox residents organized “continuing quality education committee”. Mr. Metz in his affidavit stated the purpose of the committee was to lobby the Board to consider alternatives to closing the school. At the time of its formation, the committee had 11 regular members. [12] On January 18, 2007 meeting took place at Wilcox Public School for the purpose of electing school community council. The estimate is that 80 persons were in attendance at the meeting. Nine community members were acclaimed as members of the school community council. No issue was taken with respect to the 26-day notice as opposed to the statutory 28-day notice prior to this application. [13] In press release dated January 3, 2007 and in newspaper notice to electors of the same date, electors at all 11 of the schools under review status were invited to public consultation meeting, each on different date. The notice stated the public meeting for Wilcox School would take place on January 23, 2007. [14] At the meeting on January 23, 2007, approximately 150 persons were in attendance. The meeting lasted for five hours from 7:00 p.m. to midnight. At this meeting, the superintendent of human resources for the Board read certain information and provided PowerPoint presentation which addressed the criteria set out in the viable schools policy, and facts and statistics relevant to Wilcox School, and to the Prairie School Division as whole. It was disclosed by the Board that if the school was closed students from Wilcox would attend Milestone School which is approximately 22 kilometres from Wilcox, and as most of the students of Wilcox School resided in Wilcox the bus ride would be approximately 25 minutes each way each day. The continuing quality education committee presented six-page paper of professional quality which under 10 different headings outlined why the Wilcox School should remain open. There were many verbal presentations and questions asked in the course of the meeting. The thrust of many of the presentations, including the written presentation by the Wilcox quality education committee was that the enrolment at the school which numbered approximately 57 children in 2006 had been static for number of years, disagreed with the Board on the disadvantages of multigrading which involves one teacher teaching more than one grade, and took issue with certain projections offered by the Board as to future enrolments and costs of operating Wilcox school in the future. [15] Following the meeting of January 23, 2007, numerous written submissions were submitted in favour of keeping Wilcox School open which are estimated to be in excess of two hundred. The Board and its personnel received telephone calls. At Board meeting on March 3, 2007, the continuing quality education committee made further presentation to the Board. [16] In March 2007 petition was circulated to keep the Wilcox School open. In excess of 300 signatures appear on the petition. On March 27, 2007 demonstration was held at the Legislative Building in the City of Regina to protest school closures in rural Saskatchewan. Wilcox residents were represented at this event. [17] On May 7, 2007, the Board met in camera for period of time, and thereafter in public meeting passed motion to close the Wilcox Public School effective August 15, 2007, and passed similar motions to close the other 10 schools that had been subject to review. In the affidavit material filed, the director of education indicated the Board in its private meeting took into account all the representations that had been made at the Board meetings, the written submissions it had received from the continuing quality education for Wilcox Public School Committee, as well as the material that the Board had generated, including the viable schools policy, the materials presented to the community members at the January 23 meeting, as well as certain research materials generated by Board personnel. [18] The Board evidence indicates that the 3.5 teacher positions assigned to Wilcox public school during the past school year have been reassigned to other schools in the division. THE CRITERIA FOR THE ISSUANCE OF MANDATORY INTERLOCUTORY INJUNCTION [19] The three criteria which must be assessed when considering whether or not mandatory injunction should issue, are the merits of the case, whether or not irreparable harm to the applicant will occur if the injunction is not issued, and even if it will, whether the issuance of an injunction would create greater harm to the respondent. [20] The applicants submit that with respect to the first criteria, being the merits of the case, all that is required is that there be serious question to be tried. In this respect they rely on RJR-Macdonald Inc. v. Canada (Attorney-General) (1994), 1994 CanLII 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.) where the court stated at page 402: What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is low one. However it is worth noting that the Supreme Court of Canada in this case noted three qualifications to the foregoing general proposition. The first is when the result of the interlocutory motion would in effect amount to final determination of the action. The second is when the question of constitutionality (this was Charter case) presents itself as simply question of law alone. The third possible qualification the court did not endorse, but acknowledged at page 404 as follows: The suggestion has been made in the private law context that third exception to the American Cyanamid “serious question to be tried” standard should be recognized in cases where the factual record is largely settled prior to the application being made. Thus, in Dialadex Communications Inc. v. Crammond (1987), 1987 CanLII 4419 (ON SC), 34 D.L.R. (4th) 392 at p. 396, 14 C.P.R. (3d) 145 at p. 149, 57 O.R. (2d) 746 (H.C.J.), it was held that: Where the facts are not substantially in dispute, the plaintiffs must be able to establish strong prima facie case and must show that they will suffer irreparable harm if the injunction is not granted. If there are facts in dispute, lesser standard must be met. In that case, the plaintiffs must show that their case is not frivolous one and there is substantial question to be tried, and that, on the balance of convenience, an injunction should be granted. To the extent that this exception exists at all, is should not be applied in Charter cases. Even if the facts upon which the Charter breach is alleged are not in dispute, all of the evidence upon which the s. issue must be decided may not be before the motions court. [21] As noted by Robert J. Sharpe in his text, Injunctions and Specific Performance (looseleaf edition), at paras. 2.250 and 2.260: The difficulty of assessing the strength of case varies widely according to the circumstances. In virtually all cases, the court should exercise caution in the weight it attaches to its preliminary assessment, but this is to say no more than that the risk to the defendant must be carefully weighed. Where the chance of accurate prediction is higher, as for example, where the result turns on the construction of statute or the legal consequence of admitted facts, the court hearing the preliminary application is in very good position to predict the result. Moreover, procedural differences in Canada, notably the more frequent resort to the right to cross-examine on affidavits, will often place Canadian judge on firmer ground, even when dealing with conflicting evidence. [22] In Saskatchewan, this Court has stated in number of cases where mandatory injunction is being sought against public authority plaintiffs must establish on the material filed that they have strong prima facie case on the merits of the claim raised (Vide: Young v. Board of Education of Hudson Bay School Division No. 52, 2001 SKQB 376 (CanLII), 210 Sask. R. 145 (Q.B.), per Smith J. (as she then was) at para. 5, and Wellington No. 97 (Rural Municipality) v. Ligtermoet, 2002 SKQB 474 (CanLII), [2003] W.W.R. 339, 228 Sask. R. 135 (Q.B.), at para. 11, reversed on other grounds at 2003 SKCA 48 (CanLII), 232 Sask. R. 207 (C.A.)). The rationale for requiring the higher standard when seeking an injunction against public authority is that the public authority represents the public interest, and should not be temporarily prevented from acting unless there is real merit to the claim being advanced. Usually in such cases the facts are not much in dispute. In those cases which present complicated factual or legal issues which do not lend themselves to preliminary assessment, lower standard of “serious question to be tried” may be appropriate. [23] On the facts in this matter there is not much dispute on the facts. The question with respect to each of the grounds advanced by the applicants is whether on the facts the law would be likely to provide remedy. This is something the court is in position to analyse. The injunction is sought against public authority. conclude the appropriate standard to apply to the merits of the applicants’ case is the standard of strong prima facie case. (1) The Notice Argument [24] With respect to the applicants’ submission on the fact that the notice for election of the school community council was two days short of the 28 days required, a number of considerations arise. The applicants’ position is that because Regulation 3.5(3) utilizes the word “shall”, the 28-day notice requirement is mandatory, and therefore the election is nullity. However, with respect, finding of nullity does not necessarily follow when there is breach of statutory formality. As noted in the text, by Pierre-André Côté, The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Éditions Yvon Blais, 1991), at page 203: The presumption that provision is imperative, deduced from use of the word “shall”, is of prima facie nature and can be set aside. Secondly, the mere fact that provision is imperative rather than directory does not necessarily entail nullity for non-compliance; such sanction is applied only where its respect is compulsory or under pain of being declared void. “Shall” by itself is insufficient to suggest the legislator intended nullity as consequence of non-respect. The Quebec Interpretation Act (s. 51) and its federal counterpart (s. 28) “... clearly distinguish between that which is permissive and that which is not, but they do not decree the nullity of that which has not been done (according to the law)”. (emphasis added) and at page 204: In the absence of express provisions, several elements may indicate whether the legislator intended nullity as the consequence of an error in form. On this question “it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.” Three factors appear to influence the courts: the prejudice caused by non-compliance with formalities, the potential consequences of court finding of nullity, and the subject matter of the legislation. None of the foregoing three factors suggest finding of nullity would be appropriate with respect to the election that took place for school council members on January 18, 2007. [25] On the facts in this matter, the Act does not state non-compliance with formalities will result in nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. The 26-day notice resulted in an attendance of approximately 80 persons, and in the end result nine persons were acclaimed. There is no evidence or suggestion a different school council would have been elected if the extra two days notice had been provided. There is no suggestion the existing school community council is incapable of fulfilling its role under the statute. No one complained at the time about lack of notice, and the fact the matter is raised at this time amounts to collateral attack on that election. [26] In this case the potential consequences of court finding of nullity militate against such finding. The relevance of the school community council in the closure of school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one-year postponement in the efficiencies or improvements in student education which motivated the decision, and result in loss of time, energy, and money expended in the process. [27] In this case the subject matter of the legislation is to ensure that no school closure will take place without appropriate consultation. The Board acts on behalf of the whole of the respondent school division, and the decision taken is made bearing in mind the interests of the whole school division. In this case the consultation required by the Act (subject to the argument on procedural fairness) was complied with. [28] further factor is that the breach of notice in the regulations which is admitted does not automatically lead to the issuance of mandatory injunction. This point was made forcefully by Gerwing J.A. in Dysart School District v. Cupar School Division No. 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask. R. 41 (C.A.), at para. 9, where she stated: To assume, as this analysis does, that statutory breach automatically gives rise to an injunction is to dilute the safeguards surrounding the grant of such an extraordinary remedy by superior court. (See for example: Bean on Injunctions (2nd Ed.) p. and, with respect to mandatory injunctions p. 16 et seq.) Similarly the United States Supreme Court after an extremely useful and detailed historical analysis of the equitable history of the remedy of injunction concludes that it is never merely matter of course. And notes: “The grant of jurisdiction to insure compliance with statute hardly suggests an absolute duty to do so under any and all circumstances, and federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of the law.” [Weinberger v. Romero-Barcelo, 102 S.Ct. 1798 (1982) at 5,6] The respondent suggested that every breach did indeed automatically require an injunction and cited in support Costello and Dickhoff v. Calgary (City), 1983 CanLII 137 (SCC), [1983] S.C.R. 14. While that case does require on its circumstances strict compliance with expropriation laws it is important to note that the court held at p. 22 [S.C.R.]: “The courts do not always insist on rigid adherence to statutory requirements. ... “Thus, the courts have hesitated to impose high standard on municipal councils in the matter of exactitude of procedure and have been slow to interfere when their enactments are clearly within the ambit of their authority and the objection is only as to the procedure followed. This does not mean to say that in every case non-compliance with statutory formality will be overlooked. Where it is provided that power is to be exercised in certain manner or after prescribed condition has been complied with, it becomes necessary to determine whether any of these limitations on the grant of authority may be disregarded without entailing nullification of an act done otherwise than in the prescribed manner. If, in order to carry out the essential purpose of the legislature, strict compliance with the statutory provisions appears to be condition precedent to the exercise of the power, nonobservance thereof is fatal to the validity of the bylaw. On the other hand, where the community will suffer if the act is rendered nugatory and the essential purpose of the enactment will not be furthered by insistence upon an exact compliance, deviation therefrom may be excused.” The foregoing remarks were made by Gerwing J.A. in case in which permanent mandatory injunction had been granted because statutory notice in s. 92 of the then Education Act was one day late. [29] With respect to the foregoing ground, a preliminary review of the facts and law do not suggest a strong prima facie case. (2) Procedural Fairness [30] With respect to the allegation of lack of procedural fairness Arbour J. in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] S.C.R. 249 at para. 75 stated: The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority [authorities omitted] The nature and extent of this duty, in turn, “is eminently variable and its content is to be decided in the specific context of each case” (as per L’Heureux-Dubé J. in Baker, supra, at para. 21). At para. 22 of Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817, L’Heureux-Dubé J. stated: Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in given set of circumstances. emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [31] Justice L’Heureux-Dubé went on in the Baker decision to outline at paras. 23-28 the several factors that have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in any given matter. She identified five factors while noting the list was not exhaustive. They are: (a) the nature of the decision and the decision-making process employed; (b) the nature of the statutory scheme; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the party challenging the decision, and (e) the nature of the deference accorded to the body. [32] Counsel for the respondent suggested that perhaps the applicants did not have the status to invoke the rules of procedural fairness because he contended it was more of an individual right than group right, and secondly they were not persons directly affected by the Board’s decision; only their children were. This position is not accepted. Children do not have the legal capacity to act independently in legal matters and the consultation required by the act is with the electors qualified to vote for school community councils, which is statutory recognition the applicants are an interested party. This application is brought by two individuals who identified their interest, which is an interest recognized by the Act, and is not collateral one. The rule of procedural fairness applies to the decision-making process of the Board in this matter, and this Court has previously held this to be the case. Vide: Young v. Hudson Bay, supra, at para. 19. [33] However review of the five factors identified by L’Heureux-Dubé J., supra, do not favour an overly stringent application of the procedural fairness rules in this matter. [34] Factor is the nature of the decision. As noted per L’Heureux-Dubé J. at para. 23 of the Baker decision, supra, the closer the administrative process is to the judicial process the more the governing principle should be imported into the realm of administrative decision-making. The procedure set out in the Act for the closure of schools is not akin to judicial process, but rather is policy process the Act entrusts to the Board who have the whole school division to take into account in arriving at decision on whether to close school. [35] Factor is the nature of the statutory scheme. The Act specifies the consultative approach that is required of Boards. In this matter the evidence is the Board honoured the process and publicized widely the criteria it would take into account, and received back both orally and in writing from the electors of Wilcox their points of view on the criteria. There is no suggestion in the material the applicants were denied in any respect the right to make their views known. The evidence is the Board considered all of such views in arriving at its decision. [36] The third factor is the importance of the decision to the individual affected. While the Board’s decision in this matter is no doubt important to the applicants, their lives will not be affected to the degree of person whose livelihood or reputation is at stake. [37] The fourth factor is the legitimate expectations of the person challenging the decision. L’Heureux-Dubé J. at para. 26 of the Baker decision, supra, points out that legitimate expectation is part of the doctrine of fairness, and does not create substantive rights. In this case the applicants were advised by the Act itself, and by the Board, of the procedure to be followed as the Board proceeded to consider school closures for Wilcox and other schools. There is no evidence the applicants had any legitimate expectation for any different procedure. There is no evidence that the Board made any representations with respect to procedure that were not observed by it, or that the Board went back on any substantive promises it made with respect to the procedure it would adopt. The applicants allege the Board did not answer certain questions raised at the public meeting which it said it would answer on its website. The applicants do not identify what questions were not answered. The evidence of the respondent in the affidavit of Jan Chell is that answers to all of the questions raised during meetings in the communities affected by the school review process which were capable of being answered were posted on the Board’s website. The applicants take issue with the fact the Board held in camera meetings to arrive at its decision, but there is no evidence it ever held out that it would decide in any other manner. The applicants are concerned that the Board did not disclose what transpired in its in camera meetings, but again the evidence is that no minutes are kept of such meetings. The applicants say they expected there would be individual reasoning offered by the Board for each school closure which was not forthcoming. However, it is difficult to conclude that the applicants do not know the reason why their school was closed. The viable schools policy set out the criteria for school closures or grade closures, and the concerned quality education committee for Wilcox responded in writing with respect to these criteria. The resolution passed at the Board’s November 16, 2006 meeting identified why the schools were under review. The applicants are rightly disappointed that their views did not prevail, but it is difficult to conclude they do not know the reason why their school was closed. [38] The fifth factor is the nature of the deference accorded to the body. As L’Heureux-Dubé J. in the Baker decision, supra, noted at para. 27: Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] S.C.R. 282, per Gonthier J. The applicants are disappointed that the procedures adopted by the Board did not allow for individual response to every point raised by those persons in opposition to the closure of the school. McLachlin J. as she then was in Re Hardy and Minister of Education (1985), 1985 CanLII 250 (BC SC), 22 D.L.R. (4th) 394 at page 400 quoted with approval Lord Pearson in Pearlberg v. Varty (Inspector of Taxes),[1972] W.L.R. 534 (H.L.) at page 547, wherein he stated: Fairness, however, does not necessarily require plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed. Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. DECISION [39] Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, I am not able to say the applicants have the better argument with respect to either ground. I conclude the applicants have failed to meet the standard of a strong prima facie case. [40] With respect to the criteria of irreparable harm, the harm alleged by the applicants is largely qualitative and subjective one. The applicants are concerned that their children will suffer reduction in the quality of their life by reason of having to spend approximately 40-50 minutes day on the bus, as opposed to walking back and forth to school, and they will not be able to come home for lunch. They allege there will be less opportunity for their children to enjoy extracurricular activities both in Wilcox because the school will be closed, and at Milestone because they will have to be available to take the bus ride home. These concerns have to be looked at in the context that busing is fact of life in rural Saskatchewan. The evidence is that Wilcox has produced many quality students and persons of accomplishment, but so has the rest of rural Saskatchewan. Concerns that change in school or busing will cause stress or psychological damage to the children is speculative at this point. There is no reason to believe that the special relationship between the residents of the Town of Wilcox and Notre Dame College which is referred to in the affidavits will be adversely affected. There is no obvious reason why it should be. am not able to conclude the applicants or their children will suffer irreparable harm if mandatory interlocutory injunction is not issued. [41] The application is dismissed. In the circumstances there will be no order as to costs.

FIAT: The applicants are residents of Wilcox and have children attending the Wilcox school. They seek an interlocutory mandatory injunction preventing the respondent Board of Education from acting upon a resolution that the Wilcox school be closed. HELD: Both with respect to the statutory breach of the 28-day notice period for the meeting to elect school community council members, and the ground of lack of procedural fairness, the Court concluded the applicants failed to meet the standard of a strong prima facie case. 1) A review of the facts and the law suggest that the applicant's submission on the fact that the notice for election of the school community council was 2 days short of the 28 days required by The Education Act does not meet the test of a strong prima facie case. The Act does not state that non-compliance with formalities will result in a nullity. There was no prejudice caused by the non-compliance with the 28-day notice period before the election of members to the school community council. There is no evidence or suggestion that a different school council would have been elected if the extra 2 days notice had been provided. No one complained at the time and the fact the matter is raised now amounts to a collateral attack on that election. The potential consequences of a Court finding of a nullity militate against such a finding. The relevance of the school community council in the closure of a school arises after the decision to close the school has been made. To nullify all of the process and consultation that went into the school closure on this collateral ground would have serious consequences of causing at least one year delay in the efficiencies or improvements in student education which motivated the decision, and result in a loss of time, energy and money expended in the process. 2) Taking into account the mandate of the Board under the Act with respect to school closures, the consultation process adopted by the Board, and the manner in which it conducted the consultation meetings does not lead to the conclusion the procedure was unfair. A review of the five factors identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) does not favour an overly stringent application of the procedural fairness rules in this matter.

c_2007skqb269.txt

J. 2004 SKQB 280 F.L.D. A.D. 2003 No. 247 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE INTER-JURISDICTIONAL SUPPORT ORDERS ACT, S.S. 2002, C. I-10.03 RESPONDENT [V.G.B.] (by telephone) on her own behalf L. R. Johnson for the respondent FIAT RYAN-FROSLIE J. June 21, 2004 [1] This is an application pursuant to The Inter-jurisdictional Support Orders Act, S.S. 2002, c. I-10.03 by Ms. [V.G.B.] for a declaration of paternity and child support. At the request of this Court, Ms. [V.G.B.] appeared by telephone to give evidence with regard to her claims for undue hardship, s. expenses and retroactive child support. 1. Mr. [E.H.]’s income for child support purposes. 2. Should the child support be set at greater than the Table amount based on undue hardship to Ms. [V.G.B.]? 3. Section expenses. 4. Should the child support order be retroactive? [2] Both Ms. [V.G.B.] and Mr. [E.H.] testified with regard to this application and the facts, for the most part, are not in dispute. [3] The parties never lived together but had an intimate relationship which resulted in the birth of child, [K.V.P.A.], born December 7, 1995 (age 8). Mr. [E.H.] is shown as [K.V.P.A.]’s father on her birth registration and he acknowledges paternity. Ms. [V.G.B.] has three other children aged 13, and years of age, respectively. Mr. [E.H.] is not the father of any of those children. [4] [K.V.P.A.] resides with her mother and three siblings at Bragg Creek, Alberta. Ms. [V.G.B.] lives alone with her children. At the time [K.V.P.A.] was born, Ms. [V.G.B.] was attending law school in Saskatoon, Saskatchewan. She graduated from the College of Law in the spring of 1997. She continued in university, working towards her Masters in Law. She did not begin her articles until late 2002. During her articles, her salary was $40,000 gross per annum. Ms. [V.G.B.] has recently passed her bar exams. She testified this will likely result in an increase in her salary to between $50,000 and $60,000 per year. Her tax summaries and/or returns for the last five years show her income as follows: 1999 $25,431 2000 $22,601 2001 $34,473 2002 $21,744 2003 $42,837 In addition, she receives child support for her eldest child of $3,300 per year, GST rebate which is estimated on her 2003 tax return to be $191.32 quarterly ($765.28 per year), and the child tax credit which is estimated on her 2003 tax return to be $560.35 per month ($6,724.20 per year). She receives no child support for her youngest child. She has applied for child support for her daughter, [J.], though no order has yet been made with regard to that application. [5] Ms. [V.G.B.] incurs child care costs with regard to [K.V.P.A.]. Those costs were $601.25 in 2003. This includes $125for [K.V.P.A.] to attend one week camp during the summer. (The written material filed by Ms. [V.G.B.] indicates the cost of the camp is $175). [K.V.P.A.] is involved in Junior Forest Rangers and basketball and also attends canoe camp. She is bused to school and the bus fees are $80 per year. [6] Ms. [V.G.B.] has significant level of debt largely consisting of student loans. Her debts are as follows: 1. Canadian student loan through the Southwest Credit Union Acct. No. 3304698: $51,983.23. According to Ms. [V.G.B.]’s testimony, this loan was all incurred by September, 1995. Very little of the loan would have assisted with living expenses after [K.V.P.A.]’s birth. 2. Saskatchewan Student Loan through Royal Bank, Account No. 0424: $34,221.87. Ms. [V.G.B.] testified $15,086.02 of this amount was advanced by November 30, 1995 which is prior to [K.V.P.A.]’s birth. 3. Royal Bank line of credit No. 05305446-001: $23,082. This account was opened on January 20, 2000. Form of Ms. [V.G.B.]’s application, which is her financial statement, shows this money was used to purchase van and for moving expenses. Ms. [V.G.B.] testified this money was also used for living expenses although she could not “guess” what amount was used for that. 4. H.R.C.C. Employment Insurance overpayment: $2,000. 5. Royal Classic Visa: $139.39. Ms. [V.G.B.] testified the Visa is paid off monthly and was used to purchase things for [K.V.P.A.] such as bed. 6. United Furniture: $1,481.63. Ms. [V.G.B.] testified she used this money to purchase furniture in December, 2002. This loan has also been paid off since the filing of her application. [7] Mr. [E.H.] is of Aboriginal descent and currently resides at Montreal Lake. He has two other children, aged 15 and years of age, respectively, from two different mothers. Mr. [E.H.] is currently unemployed. He last worked from December, 2002 to May, 2003 for the FSIN as writer and researcher. This was contract position and he earned $1,900 every two weeks. Prior to that he assisted with the provincial election in October/November, 2002 and was paid $1,000. From 1997 to the spring of 2002, he attended the University of Saskatchewan taking Bachelor of Arts degree. For at least two summers he took intersession and summer session. Mr. [E.H.] would like to continue with his education and eventually obtain law degree but cannot do so at this time for financial reasons. Mr. [E.H.] testified he has genetic heart problems for which he was hospitalized in September, 2002. Since that time he has been on medication. His mother and all of her siblings died of heart failure. His older brother has also been hospitalized for heart problems. While Mr. [E.H.] provided no medical reports to support his claim, am satisfied that he suffers from genetic heart condition which affects his ability to do physical labour. accept his heart problems have also resulted in him suffering from depression. [8] Mr. [E.H.] has been attempting to obtain employment with the provincial government. To that end, he has been working on two proposals, one relating to justice conference, and the second to the creation of an aboriginal justice vehicle. If he is hired by the government, he expects to earn approximately $30,000 per year. If neither of his proposals are accepted, he would like to return to university. Mr. [E.H.] testified he has entered two-week contract with his band writing community newsletter. He will be paid $800 to $900 for that work. Mr. [E.H.] lives in home given to him and his brother by his late mother. His younger brother has been lending him money to get by. Mr. [E.H.] testified there is court order requiring him to pay $65 per month for his oldest daughter. He is currently $1,900 to $2,100 in arrears of that order. There is no child support order for his seven-year-old daughter but he is trying to work things out with her mother. Both Ms. [V.G.B.] and Mr. [E.H.] acknowledge there have been no agreements or court orders with regard to [K.V.P.A.]’s support nor has Mr. [E.H.] made any support payments. In addition to the child support arrears, Mr. [E.H.] owes approximately $12,000 in student loans and $840 for tuition for the 2001/02 school year. Mr. [E.H.] has not filed tax return because he is an “Indian” pursuant to the Indian Act and any income earned was on reserve. [9] Ms. [V.G.B.] testified she had few conversations with Mr. [E.H.] about child support over the years and that he indicated he would help when he was “able”. The first of these conversations occurred shortly after [K.V.P.A.]’s birth in January, 1996. Ms. [V.G.B.] testified she understood Mr. [E.H.] was student at the time. She did not bring court application before now because she held the view that Mr. [E.H.] would contribute when he could and it was not her place to pressure him to pay. She has since changed her view. [10] Ms. [V.G.B.] elected to have the laws of the Province of Saskatchewan apply to this application which is The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2, including the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. 1. Mr. [E.H.]’s income for child support purposes [11] Sections 15 to 20 of the Guidelines sets out the method by which court should determine income for child support purposes. In accordance with s. 16, the general rule is that an individual’s income for child support purposes is determined using the sources of income set out under the heading “total income” in the T-1 General form issued by Canada Customs and Revenue Agency and adjusted in accordance with Schedule III of the Guidelines. Mr. [E.H.] has been unemployed since May, 2003. There is no evidence that he is being anything other than honest with regard to his financial circumstances. The only issue is whether the Court can impute income to him pursuant to s. 19(1)(a) of the Guidelines on the basis he is intentionally under-employed or unemployed. That section reads as follows: 19.(1) The court may impute such amount of income to spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of child of the marriage or any chid under the age of majority or by the reasonable educational or health needs of the spouse. [12] Pursuant to s. 19 of the Guidelines, the court has the discretion to impute income to parent where it considers that appropriate in the circumstances. Section. 19 sets out non-exhaustive list of circumstances where court may consider imputing income to parent. One of those circumstances is where parent is “intentionally under-employed or unemployed”. [13] Any analysis of s. 19(1)(a) requires three-step process. Firstly, the court must determine whether the parent is intentionally under-employed or unemployed. Secondly, if the parent is intentionally under-employed or unemployed, the court must determine whether any of the exceptions set out in s. 9(1)(a) apply. Those exceptions cover situations where the under-employment or unemployment is required by reason of (1) the needs of child of the marriage; (2) the needs of any child under the age of majority; (3) the reasonable educational needs of the payor; or (4) the reasonable health needs of the payor. Finally, if court determines parent is intentionally under-employed or unemployed and that none of the exceptions set out in s. 19(1)(a) apply, then the court must decide whether to exercise its discretion and impute income. [14] There are two lines of judicial authority dealing with the meaning of “intentionally under-employed or unemployed” One line of authority holds that “intentionally” means “voluntarily”. It applies where parent chooses to be under-employed or unemployed. No specific intent to evade child support is necessary. This was the approach adopted by the Manitoba Court of Appeal in Donovan v. Donovan, 2000 MBCA 80 (CanLII), (2000), R.F.L. (5th) 306 (Man. C.A.), the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.) and by Justice Dawson of this Court in Mullen v. Mullen, 2004 SKQB 65 (CanLII), [2004] S.J. No. 85 (Q.B.) (QL). The second line of authority holds that “intentionally” in s. 19(1)(a) requires specific intent by the parent paying child support to evade that obligation. This line of reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt, 2001 ABCA 229 (CanLII), (2001), 20 R.F.L. (5th) 409 (Alta. C.A.). [15] Obviously, an individual who chooses to be under-employed or unemployed to avoid paying child support is “intentionally under-employed or unemployed”. cannot, however, conclude that is the only circumstance envisioned by s. 19(1)(a). adopt the reasoning of the Manitoba Court of Appeal in Donovan and the Ontario Court of Appeal in Drygala, supra and find “intentional” extends to situations where parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact the parent “chooses” to be under-employed or unemployed, brings their situation within the meaning of “intentional” and creates the circumstance envisioned by s. 19(1)(a). The reason for such choice does not change the fact it is “intentional” but it may impact the court’s decision whether to exercise its discretion and impute income. [16] The principles to be employed by court in determining whether to exercise its discretion where parent is intentionally under-employed or unemployed have been considered by number of courts. Justice Steel of the Manitoba Court of Appeal in Donovan, supra, indicated the question is what is reasonable in the circumstances. At para. 18 he set out the principle as follows: decision as to whether person is capable of earning more income than they are presently earning depends on the context. Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child Support Guidelines. Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable at the time they are taken considering all the circumstances. [17] Julien Payne, in his article Imputing Income, “Determination of Income, Disclosure of Income,” Child Support in Canada, Danrab Inc., August 3, 1999, described the principles which apply as follows: 1. There is duty to seek employment in case where parent is healthy and there is no reason why the parent cannot work. It is “no answer for person liable to support child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor.” (Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 166 D.L.R. (4th) 528 (B.C. C.A.) at para. 30). 2. When imputing income on the basis of intentional under-employment, court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate, and other obligations. 3. parent’s limited work experience and job skills do not justify failure to pursue employment that does not require significant skills or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As general rule, parent cannot avoid child support obligations by self-induced reduction of income. These principles have been quoted in numerous cases including Donovan, supra and Drygala, supra. [18] Some examples of situations where the court has exercised its discretion to impute income pursuant to s. 9(1)(a) are as follows: 1. Where parent retired at relatively early age and chose to pursue unremunerative employment. (See: Donovan v. Donovan, supra). 2. Where parent chose to quit his job and instead become full-time student. (See: Drygala v. Pauli, supra). 3. Where the parent was able-bodied and in good health but chose to work only part time. (See: Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C. C.A.)). 4. Where parent chose to remain at home with young children from another relationship. (See: Zieglgansberger v. Venyige, 2003 SKQB 512 (CanLII), (2003), 240 Sask. R. 109 (Q.B.); Lachapelle v. Vezina (2000), 2000 CanLII 22446 (ON SC), 11 R.F.L. (5th) 328 (Ont. S.C.)). 5. Where parent attempts to avoid child support by self-induced reduction in income. (See: Cholodniuk v. Sears, 2001 SKQB 97 (CanLII), (2001), 204 Sask. R. 268 (Q.B.); Tynan v. Moses, 2002 BCSC 100 (CanLII), (2002), 25 R.F.L. (5th) 445 (B.C. S.C.)). 6. Where parent voluntarily left employment to establish business where he earned significantly less income. (See: Neisz v. Spagrud (1998), 1998 CanLII 13752 (SK QB), 174 Sask. R. 174 (Q.B.)). [19] Based on the evidence, Mr. [E.H.]’s ability to earn income is limited by his health to sedentary types of employment. Mr. [E.H.] has been pursuing secondary education and was engaged in that pursuit at the time that [K.V.P.A.] was born. There is no suggestion or evidence that his pursuit of education was “unreasonable”. His current education and writing skills enable him to earn an income in limited fields. [20] Within the next two weeks, Mr. [E.H.] will earn $800 to $900 for publishing the newsletter for his band. That contract is only for period of two weeks and will represent his total earnings to date in 2004. Other than that contract, Mr. [E.H.] has been unemployed since May, 2003. He has, however, been working on proposals for the provincial government and he expects reply to those proposals in the near future. The evidence in this case does not support finding of intentional unemployment. Mr. [E.H.] has been actively working towards obtaining position with the provincial government. Given his health, his education, experience and skills, find his approach to obtaining employment has been reasonable. Should the provincial government turn down his proposal, Mr. [E.H.] has duty to actively seek employment commensurate with his education, skills, experience and physical limitations. The onus will be on him to establish that any continued unemployment is unintentional or, if intentional, that it is reasonable in the circumstances and does not warrant the imputation of income. As Mr. [E.H.]’s current income is below the amount normally required for Table support, no support shall be ordered at this time. There shall be an order, however, that Mr. [E.H.] advise Ms. [V.G.B.] within 30 days of the date of this order whether he obtained employment and/or contract position with the provincial government and, if so, his remuneration from that position. Ms. [V.G.B.] shall have leave to return this matter to the court for review in the event Mr. [E.H.] obtains employment or in the event he remains unemployed for further period of three months. Three months should be sufficient time for Mr. [E.H.] to obtain job and begin fulfilling his obligation to his daughter, [K.V.P.A.]. 2. Ms. [V.G.B.]’s claim for undue hardship [21] Ms. [V.G.B.] requests this Court to set child support at rate higher than the Table amount based on undue hardship. She argues her standard of living is below that of Mr. [E.H.] due to the fact she has four dependent children and very high debt load. [22] Section 10 of the Guidelines sets out the basis for an undue hardship claim. Such claims involve two-stage analysis. First, the applicant must establish that circumstances exist which would cause undue hardship if the Table amount of support is ordered. If this test is met, then the parties’ standard of living must be examined to ensure the applicant would have lower standard of living if the Table support were paid. [23] Section 10(2) sets out non-exhaustive list of circumstances which may give rise to finding of undue hardship. Ms. [V.G.B.] seeks to bring herself under s. 10(2)(a) and (d) which read as follows: 10.(2) Circumstances that may cause spouse or child to suffer undue hardship include the following: (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn living. ... (d) the spouse has legal duty to support child, other than child of the marriage, who is (i) under the age of majority. [24] The evidence establishes Ms. [V.G.B.] has three other children in her care which she must support. She also has significant debt. Some of that debt relates to the accumulation of assets such as vehicle and furniture and not for support purposes or to earn living. Moreover, the vast majority of the student loans were accumulated prior to [K.V.P.A.]’s birth and while they were accumulated to enable Ms. [V.G.B.] to take post-secondary education, some of that education, in particular, her pursuit of Masters degree, was not necessary to enable her to obtain gainful employment. Whether these circumstances create undue hardship is question of fact and it is difficult threshold to meet. “Undue” has been interpreted by the case law to mean “excessive, extreme and unreasonable”. Justice Wright of this Court in Messier v. Baines (1997), 1997 CanLII 11210 (SK QB), 161 Sask. R. 132 (Q.B.), at para. 10, discussed the objectives of the child support Guidelines and their effect on s. 10. She held “[T]hese objectives will be defeated if courts too readily deviate from the presumptive rule set out in s. of the Guidelines absent compelling reasons for doing so....” This reasoning has been adopted by other courts such as the Alberta Court of Appeal in Hanmore v. Hanmore, 2000 ABCA 57 (CanLII), (2000), R.F.L. (5th) 348 (Alta. C.A.) and the British Columbia Court of Appeal in Van Gool v. Van Gool, supra. In Van Gool, the British Columbia Court of Appeal, at para. 51 stated: .. The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant's household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [25] In this case, Ms. [V.G.B.] has not provided the necessary evidence to establish undue hardship. While the fact she has other children to support and heavy debt load are circumstances which may result in undue hardship, the parties’ financial situations do not warrant such finding in this case, nor can Ms. [V.G.B.] establish that her standard of living is less than that of Mr. [E.H.]. 3. Section expenses [26] Ms. [V.G.B.] requested an order pursuant to s. of the Guidelines that Mr. [E.H.] pay his proportionate share of the following expenses: Child care: $476.25 ($601.25 less camp expense in 2003 of $125) Rivendale camp: $175.00 (for 2004) Red Cross registration: $25.00 Junior Forest Rangers registration: $50.00 Flatwater canoe camp: $70.00 Used cross-country skiis: $70.00 Used skates: $40.00 School fees: $70.00 Unspecified other fees: $50.00 Bus fees: $80.00 The application involves claims pursuant to s. 7(1)(a)(d) and (f) of the Guidelines which read as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent’s employment, illness, disability or education or training for employment; ... (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; ... (f) extraordinary expenses for extracurricular activities. [27] Section expenses are often referred to “add ons” to Table support. These expenses cover items that are not normally covered in regular child support orders. Some s. expenses such as those relating to extracurricular activities must be “extraordinary”. The Saskatchewan Court of Appeal in Kofoed v. Fichter (1998), 1998 CanLII 12342 (SK CA), 39 R.F.L. (4th) 348 (Sask. C.A.) held that “extraordinary” means in contradiction to usual expenses. In such cases s. expenses are exceptions rather than the rule. Each case must be decided on its own facts, taking into account the necessity and reasonableness of the costs incurred as well as the means and needs of both parents. In this case, Mr. [E.H.] does not earn income sufficient to pay Table support. Ms. [V.G.B.] will be earning approximately $55,000 per year. In addition, she receives child support for at least one of her other daughters, child tax benefit in excess of $6,700 per year, and GST rebate. Her means exceed $65,000 per year. The cost of [K.V.P.A.]’s extracurricular activities which include camp registrations, Junior Forest Rangers and Red Cross come to approximately $320 per year ($26.67 per month). The cost for skates and cross-country skiis is approximately $110 per year ($9.17 per month). Given Ms. [V.G.B.]’s means, these expenses cannot be considered extraordinary. [28] Expenses relating to primary education must also be “extraordinary”. Most parents do not have to pay to bus their children to school. This cost may therefore considered as out of the ordinary and may qualify as proper s. 7(d) expense as do the expenses incurred for child care necessitated by Ms. [V.G.B.]’s employment. In light of Mr. [E.H.]’s current income, no order should be made for s. expenses at this time. 4. Should the child support order be retroactive? [29] parent’s obligation to provide financial support for their children arises on the birth of the child (See: MacMinn v. MacMinn (1995), 1995 CanLII 6247 (AB CA), 17 R.F.L. (4th) 88 (Alta. C.A.) at para. 15). This does not mean, however, that court should automatically make its child support orders retroactive to that date. Normally child support orders take effect from the date of the application or the date support was demanded. (See: Evans v. Gravely (2000), 2000 CanLII 22593 (ON SC), 14 R.F.L. (5th) 74 (Ont. S.C.) at para. 18, and Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 46 R.F.L. (5th) 455 (Ont. C.A.)). Both The Family Maintenance Act and the Divorce Act, R.S.C. 1985, c. (2nd Supp.) allow courts to make retroactive child support orders if the circumstances warrant it. The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising the child. In granting retroactive order, judge must consider need as well as ability to pay. (See: Brett v. Brett (1999), 1999 CanLII 3711 (ON CA), 44 O.R. (3d) 61 (Ont. C.A.)). The factors court should consider in determining whether to grant retroactive support were set out by the British Columbia Court of Appeal in L.S. v. E.P., 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C. C.A.) at paras. 66 and 67 as follows: .. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. These factors have been quoted with approval by courts in Saskatchewan. (See: [W. (A.)] v. [C. (D.)], 2000 SKQB 495 (CanLII), [2000] S.J. No. 751 (Q.B.) (QL)). [30] In this case, the evidence establishes need on the part of the child but it does not establish corresponding ability to pay on the part of Mr. [E.H.]. Mr. [E.H.] was attending university during much of [K.V.P.A.]’s life and has not had full-time employment. Even his part-time employment has been very limited. He is not currently in position to provide child support though hopefully that will change in the near future. There is no evidence of any blameworthy conduct by Mr. [E.H.]. He has not provided false or misleading financial disclosure. While Ms. [V.G.B.] has incurred substantial debt, much of that debt was incurred before [K.V.P.A.]’s birth or to enable her to attend university or acquire assets such as van and furniture. There is no evidence Ms. [V.G.B.] ever made formal request for financial disclosure from Mr. [E.H.] prior to this court application. She acknowledges that the delay in bringing the application is due to her decision not to pursue Mr. [E.H.]. Mr. [E.H.] has no ability to pay substantial arrears if child support order was made retroactive and any such order would clearly impair his ability to provide ongoing support, not just for [K.V.P.A.], but for his other children as well. Based on the evidence, an order for retroactive child support is not warranted. Conclusion [31] By agreement, there shall be an order pursuant to s. 45 of The Children’s Law Act, 1997 declaring Mr. [E.H.] the biological father of the child [K.V.P.A.], born December 7, 1995. [32] Mr. [E.H.] does not currently earn sufficient income to pay child support. He is to advise Ms. [V.G.B.] within 30 days of the date of this order whether he received an offer of employment or contract from the provincial government and if so, the terms of his employment, including his gross income. Ms. [V.G.B.] shall have leave to bring this matter back before the Court once Mr. [E.H.] obtains employment or if he remains unemployed for period of three moths. [33] Ms. [V.G.B.]’s requests for child support in an amount greater than the Table amount pursuant to s. 10 of the Guidelines, and for retroactive child support are dismissed. [34] Ms. [V.G.B.]’s application for s. expenses is dismissed with leave to bring the issue of child care and busing back before the Court once Mr. [E.H.] obtains employment.

This was an application pursuant to The Inter-jurisdictional Support Orders Act for a declaration of paternity and child support. HELD: By agreement there was an order pursuant to s. 45 of The Children's Law Act, 1997 declaring the respondent the biological father of the child. The respondent does not currently earn sufficient income to pay child support. He was to advise the petitioner within 30 days if he receives an offer of employment or contract and if so, the terms of his employment including his gross income. 1) The respondent's ability to earn income is limited by his health to sedentary types of employment. There is no suggestion or evidence that his pursuit of education is unreasonable. 2) An individual who chooses to be underemployed or unemployed to avoid paying child support is 'intentionally underemployed or unemployed'. That is not the only circumstance envisioned by s. 19(1)(a) of the Guidelines. The Court adopted the reasoning of the Manitoba Court of Appeal in Donovan v. Donovan and the Ontario Court of Appeal in Drygala v. Pauli and found that 'intentional' extends to situations where a parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact that the parent chooses to be underemployed or unemployed, brings their situation within the meaning of 'intentional' and creates the circumstances envisioned by s. 19(1)(a). The reason for such a choice does not change the fact it is intentional, but it may impact on the Court's decision whether to exercise its discretion and impute income.

4_2004skqb280.txt

J. 2002 SKPC 30 IN THE MATTER OF THREE APPLICATIONS FOR D.N.A. WARRANTS PURSUANT TO S.487.05 OF THE CRIMINAL CODE FILED FEBRUARY 27, 2002 AND IN THE MATTER OF ALLEGED OFFENCES CONTRARY TO S. 155 OF THE CRIMINAL CODE Judgment B.D. HALDERMAN, P.C.J. March 7, 2002 D.N.A. Warrant Applications Judgment March 7, 2002 Background [1] The Crown has applied pursuant to s. 487.05 of the Criminal Code for 3 D.N.A. Warrants. [2] Three Informations in Support, each essentially identical, have been sworn by an RCMP officer. Each alleges that middle-aged man and his 19-year old daughter have committed incest, contrary to s. 155 of the Code, and that child, now months old, has been born as result of the incestuous relationship. The applications before the Court are for DNA Warrants to obtain blood samples from the male, the female and the child. [3] The Informations depose that the Crown has obtained “DNA sample” from the person who says she is the mother (herein “the natural mother”) of the 19-year-old female. assume, although it is not stated in the Informations, that the “DNA sample” is or was derived from blood sample of the natural mother. There is no other bodily substance in the possession or control of the Crown which relates to the alleged incest. [4] While there are deficiencies in the Informations in Support which are set out hereinafter (which deficiencies may possibly be cured by amended Informations being filed), there is in my view more fundamental problem with respect to the applications. That problem is whether the facts as alleged fall within and meet the requirements of s. 487.05(1) of the Code. DNA Warrants Analysis of Section 487.05 of the Criminal Code [5] Section 487.05(1) of the Code provides: 487.05(1) provincial court judge who on ex parte application made in form 5.01 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 or obtained (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 thing 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 Form 5.02 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1). [6] have searched all databases on QuickLaw relating to ‘DNA bodily substances’, as well as related words and phrases. have not found any case dealing with similar application as regards possible charge under s. 155 of the Code, nor was any case included with the Informations in Support filed by the Crown prosecutor. [7] In the absence of authority, have therefore analyzed the words of s. 487.05(1), by subparagraph as well as in their entirety, to determine the proper meaning and interpretation to be given to the subsection. [8] Section 487.05(1)(a) requires that be satisfied that there are reasonable grounds to believe that designated offence has been committed. If the deficiencies above referred to are remedied, there may well be reasonable grounds to believe that designated offence, incest contrary to s. 155, has been committed. [9] Section 487.05(1)(b) requires that be satisfied that bodily substance has been found or obtained at, on or within specified bodies, places or things. [10] “Bodily substance” is not defined in either the general definition section (s. 2) nor the DNA definition section (s. 487.04) of the Code. [11] As noted above, the Informations in Support reveal that the Crown has obtained DNA sample from the person who claims to be the natural mother of the 19-year-old female. Assuming that her DNA sample is derived from blood sample and is therefore ‘bodily substance’, can the bodily substance be said to have been found or obtained (in the words of the section): (i) “at the place where the offence was committed”? In my opinion, it cannot. Based on the Information, which is imprecise in this regard, the alleged offence was committed in Saskatchewan or Manitoba.. The natural mother resides in another province and apparently has not lived in Saskatchewan or Manitoba. (ii) “on or within the body of the victim of the offence”? In my opinion, the answer must be ‘No’. The natural mother cannot, in any reasonable definition of the word, be properly considered to be the ‘victim’ of the offence. (iii) “on anything worn or carried by the victim at the time when the offence was committed”? In my opinion, the answer must be ‘No’, on the same basis that the natural mother cannot be considered to be the victim of the offence. (iv) “on or within the body of any person ... or at any place associated with the commission of the offence”? Similarly, the answer must be ‘No’. While it is literally true that the natural mother’s blood sample has been obtained from ‘within’ her body, it is my view that it cannot reasonably be argued that this blood sample is ‘associated with’ the commission of an offence. Although there are numerous definitions of the words “associate” and “associated”, it is clear from the context of s. 487.05(1)(b)(iv) that the proper meaning of the phrase ‘associated with’ is that set out in the Concise Oxford Dictionary, 10th edition (1999), viz: “be involved with”. The Concise Oxford’s definitions of the verb ‘associate” reinforce this interpretation: 1. make conceptual connection with; 2. meet or have dealings with. And the meaning of ‘associate oneself with’ is defined as “allow oneself to be connected with or seen to be supportive of”. The natural mother has had no timely association whatever with the alleged offence; indeed, proof of the alleged offence by means of DNA analysis is not dependent on whether the Crown has DNA sample from the natural mother or not. It is the DNA of the alleged father that is fundamental to the charge. [12] In my view, the person who is best described as ‘victim’ of the offence of incest is the child born of an incestuous relationship. Assuming, without deciding, that it is proper to conclude that the child is victim, there has in the present case been no bodily substance found or obtained, from the child or from anyone else, and accordingly no portion of s. 487.05(1)(b) is applicable. [13] The conclusions have arrived at after analyzing each subparagraph individually are reinforced when s. 487.05(1) is read as whole and in the context of the other DNA provisions of the Code. Subparagraphs 487.05(1)(b)(ii)(iii) and (iv) all refer to bodily substance found or obtained on or within the body of victim or some other person involved with the offence. Subparagraphs (i) and (iv) refer to bodily substances found or obtained at or related to the place where the offence was committed. [14] The proper inference to be drawn from the words have emphasized is that warrant may be issued when some substance such as saliva, semen, hair, blood or like product produced by or excreted or discharged from the body is found at or obtained in conjunction with crime scene, or is found in or on, or obtained from, victim or other person present at crime scene. There is nothing in s. 487.05 which can in my view fairly be said to suggest that a blood sample of a child born of an alleged incestuous relationship, which sample is not in the possession of the Crown and which remains in the child’s body, is a bodily substance ‘found or obtained’ within the meaning of s. 487.05(1)(a). The term ‘bodily substance’ is used throughout the DNA sections of the Code (ss. 487.04 to 487.09). It is not, as have noted, defined. Without exception, all of the approximately 40 cases reviewed on the QuickLaw database relate to DNA warrants respecting analysis of bodily substances such as those referred to at the outset of this paragraph. [15] As important as is the investigation and prosecution of incest, do not think that Parliament has by the use of the words contained in s. 487.05(1) intended to authorize court to require the mother, father and child to submit to DNA testing on the facts as deposed to in the present applications. My view might be otherwise if bodily substance of one of the mother, father or child (especially the father) was found or obtained and if the other requirements and conditions of s. 487.05 could be satisfied. Deficiencies in the Informations in Support [16] In the event that I am in error with respect to my interpretation of s. 487.05, and these applications were to be renewed, there are a number of significant deficiencies in the Informations in Support, which would need to be remedied if further consideration were to be given to the applications. [17] In general, paragraphs 1(E), (J), (K), and (L) do not set out the basis or source of the officer’s information. For example, paragraph 1(K) says that during the course of the investigation the officer has learned that the 19-year-old woman has gone by different surnames. The basis on which the officer has learned this, and from whom, is not stated. Related to this, the maiden name of the 19-year-old woman, as set out on the baby’s Registration of Live Birth, is different than the surname of the natural mother. There may well be an explanation for this but the explanation should be set. [18] Paragraph 1(E) does not set out the relationship to the parties of the named informant, nor why the information provided by the informant is considered reliable. Paragraph 1(J) refers to distinctive birthmark, but it is of no probative value as it is not linked in any satisfactory fashion to the alleged father. Nor is there any indication as to the source of the natural mother’s information in this regard, which is based on two-month relationship at the time the 19-year-old was allegedly conceived. There is nothing from the natural mother positively stating that no other person could be the father of the 19-year-old. Such statement should ordinarily be included; this is especially the case when the relationship is shortlived. While the Informations attach copy of the Registration of Live Birth obtained by the RCMP from Vital Statistics regarding the month old baby, there is no similar Registration of Live Birth respecting his 19-year-old mother, notwithstanding that it appears she was born in Saskatchewan and the document should be as readily available as was that of the baby. Given the natural mother’s allegation as to the birth father of the 19-year-old and the latter’s denial of her paternity, the information, if any, contained in the Registration of Live Birth concerning the birth father, would be of assistance in providing complete picture for the court. [19] While it may be considered to be self-evident, I am of the view that there should be some indication as to how the DNA analysis will establish that the adult male is the natural father of the 19-year-old female and the baby, and how it will negative any suggestion that the father and mother of the baby are ‘strangers’ genetically speaking. [20] Paragraph 3(C) does not set out whether the RCMP officer who will take the blood samples has a certificate or any similar qualification, nor is the qualification of the corporal who trained him set out. In and of themselves, these deficiencies would probably not preclude issuance of warrant. They do point up, however, the necessity of providing some basic evidence which can satisfy the court that the technician or expert who will carry out DNA procedures is properly qualified to do so. [21] The paragraphing format used in the present applications is confusing and detracts from ease of reference and understanding. As indicated in earlier fiats dealing with other applications, and as set out in the guidelines respecting General and DNA Warrants reported at [2000] S.J. No. 54 (Q.L.), paragraphing should use ordinary sequential numerals, in essentially the same fashion as in the within decision. The last page and half of the Informations in Support, after paragraph 3.1(a), is especially perplexing in regard to its numbering. [22] In preparing an Information in Support, it is imperative that the oft-quoted words of Gerein J. (as he then was) in R.v.Christianson (1986) 1986 CanLII 2973 (SK QB), 26 C.C.C. (3d) 391 at pp. 396 397 be heeded: If the informant has first-hand knowledge of the facts, it is simple matter to so state. If the knowledge of the facts is second- or third-hand, then that should be so stated and particulars about the source should be set out in as much detail as is possible and practical. It must be remembered that the justice must determine from the facts presented whether reasonable grounds exist such as to justify warrant. The justice must necessarily form an opinion as to whether the stated facts are true and accurate. This can hardly be done if the source is not disclosed as it precludes the justice from even considering the credibility or reliability of the source. The justice may have no question about the veracity of the informant. How-ever, in the case of second-hand information, the veracity of the informant is not the prime issue. Assuming that the informant has communicated the information correctly, there still must be an examination to determine whether the communicated information was true and accurate. This involves an examination of the source vis-a-vis his means of knowledge, his reliability and his veracity. It is permissible for an information to contain hearsay and facts obtained from confidential source (without naming the confidential source), but the means of testing the reliability of same must be afforded to the justice. If this is not done, it will ordinarily be impossible for the justice to be satisfied that reasonable grounds exist. Application respecting the month old Child [23] In the event that the Crown were to renew the present warrant applications as result of additional information coming to light, think it appropriate to note that, subject to the nature of the additional information, would be hesitant to order DNA Warrant with respect to the baby, at least until DNA analysis was carried out on blood or other bodily substances of the alleged father and mother. The baby is obviously not in any position to give an informed consent, instruct counsel or otherwise avail itself of the information required to be provided pursuant to s. 487.07 of the Code. The custodial parent or parents are in my view in the legal position of being the persons who can give informed consent to the taking of the baby’s blood. While it may be appropriate at some point to order that the baby’s blood sample be obtained notwithstanding any parental non-consent, it is questionable whether it could be concluded at present that it was in the best interests of the administration of justice to make such an order. [24] It would appear that insofar as the probative benefits of DNA analysis are concerned, the crucial determination will be whether the father and mother have the requisite number of matching DNA characteristics; the DNA of the baby would then provide further confirmation or negation of the incestuous relationship. [25] In the result, I am of the view that a DNA warrant application with respect to the baby would be premature, but may be renewed in due course if the Crown is so advised. Concluding Matters [26] Any subsequent application with respect to the within matters must include reference to the present applications having been made, and to this judgment. [27] In light of the novel nature of these applications, propose to make this judgment available to the Chief Judge’s office for publication, in the usual fashion. No application for sealing order has been made, and do not presently perceive any possibility that publication will adversely impact on any ongoing investigation or otherwise compromise source. (The same may not be true with respect to the contents of the three Informations in Support, the contents of which will not be disclosed or made public except pursuant to s. 487.3 of the Code.) If the RCMP or the reviewing prosecutor consider that publication of this judgment should be delayed, the Court clerk should be so notified not later than p.m. on March 15, 2002 so that the matter of publication may be addressed further. Dated at Melfort, Saskatchewan on March 7, 2002. P.C.J. Judge of the Provincial Court of Saskatchewan

The Crown applied for three DNA warrants pursuant to s.487.05 of the Criminal Code. Each of the three Informations sworn by an RCMP officer alleged the accused and his 19 year old daughter committed incest contrary to s.155, and a 7 month old child was born as a result. The Informations deposed that the Crown had obtained a DNA sample of the person who claimed to be the natural mother of the 19 year old.HELD: 1)No case was found dealing was a similar application regarding a possible charge under s.155. The words of s.487.05 were analyzed to determine its proper meaning and interpretation. 'Bodily substances' is not defined in the general definition s.2 nor the DNA definition s.487.04 of the Criminal Code. Assuming, without deciding, that it is proper to conclude that the child is a victim, there has been no bodily substance found or obtained from the child or from anyone else, and accordingly no portion of s.487.05(1)(b) is applicable. Subparagraphs 487.05(1)(b)(ii), (iii) and (iv) all refer to a bodily substance found or obtained on or within the body of a victim or some other person involved with the offence; 487.05(1)(b)(i) and (iv) refer to bodily substances found or obtained at or related to the place where the offence was committed. Nothing in s.487.05 suggests that a blood sample of a child born of an alleged incestuous relationship, which is not in the possession of the Crown and remains in the child, is a bodily substance found or obtained within the meaning of s.487.05(1)(a). 2)There were numerous deficiencies in the Informations. The paragraphs did not set out the basis or source of the officer's information, the relationship of the parties to the named informant, nor why the information was considered reliable. There should be some indication as to how the DNA analysis will establish that the adult male is the natural father and how it will negative any suggestion that the parents of the baby are 'strangers' genetically speaking. The qualifications of the RCMP officer who will take the blood samples and of the corporal who trained him should be set out. The paragraphing format was confusing. 3)A DNA warrant application would be premature. The custodial parent or parents are in the legal position of being the persons who can give informed consent to the taking of the baby's blood. It may be appropriate at some point to order a sample be obtained. It was questionable whether it was in the best interests of the administration of justice to make such an order now.

9_2002skpc30.txt

Visitor IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. T.C., 2006 NSPC 61 Date: 20061208 Docket:1583602, 1583665,1592075,1637211,1637212,1637279,1658793,1658794,1660279,1660281,1660282, 1661027,1661028,1661029,1661030,1661031,1672891,1672892,1677544,1677545,1677546, 1682564,1682565,1686628,1690222,1690224,1693015,1693025,1693892,1697668,1697672, 1708843,1708844. Registry: Halifax Between: Her Majesty the Queen T.C. Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 6, 2008. Publication restriction: Section 110 and 111 of the Youth Criminal Justice Act Judge: The Honourable Pamela S. Williams Oral Argument: December 5, 2006 Written Decision Delivered Orally: December 8, 2006 Counsel: Gary Holt, for the Crown Megan Longley, for the Defendant Peter McVey, for the Department of Community Services Nancy Rubin, for the Chronicle Herald Alan Parrish, for the Daily News By the Court: INTRODUCTION: [1] Counsel on behalf of the media, the crown, the young person, T.C., and the legal parent/guardian of T.C., The Minister of Community Services seek a ruling from this Court as to whether the public, including the media, will be permitted to attend the court convened pre-sentencing conference, scheduled to take place on December 11, 2006. The crown, the young person and the parent argue that the conference should not be open to the public and the media. Counsel for The Chronicle Herald and the Daily News take the position that this is public proceeding to which they should have access. BACKGROUND: [2] On October 17, 2006 the young person, T.C. appeared before the Youth Justice Court and entered or confirmed guilty pleas to 31 offences involving assaultive behaviour, threats, property damage and breach of court orders in relation to group home placements over nearly 14 month time period between August 24, 2005 and October 13, 2006. [3] Section 36 findings of guilt were made by this Court on October 17, 2006 and pre-sentence report was ordered. Defence counsel on behalf of T.C. also asked this Court to consider using its discretionary power under s. 41 of the Youth Criminal Justice Act, (YCJA), to convene conference under s. 19 of the Act to consider recommendations on an appropriate youth sentence for T.C. Compelling reasons in favor of conference were advanced by both crown and defence. The Court thus ordered that conference be held prior to the sentencing hearing. [4] This case has attracted considerable media attention, at least in part, because of a concern, raised by some, as to the adequacy of government programs and support for the young person who apparently suffers from mental health issues and who is in the permanent care of the Minister of Community Services. In turn, this case has also raised interesting issues relating to the conferencing provisions of the YCJA, the ‘open court principle’ and the discretionary power of the Youth Court, pursuant to s. 132 to exclude members of the public from the conference. [5] preliminary issue was raised by counsel on behalf of the Daily News as to whether or not the parent, the Minister/Department of Community Services, has standing to argue the merits of this application, given that they are not party to the proceedings. Although parent is not party to Youth Criminal Justice proceeding per se, Parliament has, in my view, recognized the need for the parent to play vital role before the Youth Court. This is evidenced by numerous provisions in the YCJA which speak to the participation of the parent: (1) Parents should be informed of measures and proceedings involving their children and encouraged to support them in addressing their offending behaviour: YCJA s. 3(1)(d)(iv). (2) Notices and copies of reports orders, reasons for sentence and court records are to be provided to parents: YCJA ss. 11, 26, 96(3), 34(7)(a)(ii), 40(5)(a)(ii), 56(1) and (2), 94(12), 97(3)(c), 109(5), 119(1)(e). (3) The Court can compel the appearance of parent by court order: YCJA s. 27. (4) The Youth Court judge, before imposing or reviewing sentence, is to consider any representations made by parents: YCJA ss. 42(1) and 94(19). [6] In addition, in my experience, sitting as youth court judge, parents often provide valuable information and assistance to the Youth Court in the course of proceedings. am therefore of the view that the parent, the Minister/Department of Community Services can and should provide input into the question of whether or not the conference should be open to the public and the media. (1) Is the Youth Justice Court convened conference, presently scheduled for December 11, 2006 part of the court process? (2) If so, is it public proceeding which entitles the public and the media to attend? (3) If so, should the Youth Justice Court, nonetheless exercise it’s discretion to exclude the public and the media pursuant to s. 132 of the Youth Criminal Justice Act? [8] The use of conferences, to deal with youth in conflict with the criminal law, is statutorily authorized by the YCJA. ‘conference’ is group of persons convened to give advice in accordance with section 19 of the YCJA: YCJA s. 2(1). [9] Section 19 authorizes various individuals, including youth justice court judge, to convene conference for the purpose of making decision required to be made under the YCJA during the course of proceedings. [10] The mandate of conference may be, among other things, to give advice and provide recommendations on sentencing, which also is undoubtedly part of the court process: YCJA ss. 19(2). [11] When youth justice court finds young person guilty of an offence, the court may convene or cause to be convened conference under section 19 for recommendations to the court on an appropriate youth sentence: YCJA s. 41. [12] youth justice court shall, before imposing youth sentence, consider any recommendations submitted under section 41: YCJA s. 42(1). [13] Section 132 of the YCJA gives youth court judge discretionary power to exclude members of the public from court proceedings if the court considers that the person’s presence is unnecessary to the conduct of the proceedings and the court is of the opinion that either any evidence or information presented to the court would be seriously injurious or seriously prejudicial to the young person or it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. Common Law: [14] The presumptive rule with respect to court proceedings is one of openness, public accessibility and judicial accountability. Often referred to as the ‘open court principle’ it is hallmark of democratic society and applies to all judicial proceedings. Public access to the courts guarantees the integrity of judicial processes by demonstrating ‘that justice is administered in non-arbitrary manner, according to the rule of law’: Re Vancouver Sun, 2004 SCC 43 (CanLII), [2004] S.C.J. No. 41 at paragraphs 23 25. [15] Section 11(d) of the Charter guarantees that everyone is presumed innocent until proven guilty in fair and public hearing. Public access to the hearing ensures that the judicial process is independent and impartial and that justice is administered, and is seen to be administered, fairly according to the rule of law. Openness is integral to public confidence in the justice system and the public’s understanding of the administration of justice. [16] The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein. The freedom of the press to report on judicial proceedings is core value as is the right of the public to receive such information. Often the press plays vital role in being the means through which the public receives information about judicial proceedings. “Consequently, the open court principle, to put it mildly, is not to be lightly interfered with”: Re Vancouver Sun, supra, at paragraph 26. [17] The open court principle applies to youth court proceedings but is subject to number of important statutory exceptions, in the way of enhanced procedural protections which ensure young persons are treated fairly and their rights, including the right to privacy, are protected: YCJA s. 3(1)(b)(iii). The Supreme Court of Canada in Re F.N., 2000 SCC 35 (CanLII), [2000] S.C.J. No. 34, commented on this as it pertained to the Young Offenders Act (many relevant provisions of which have been reproduced in the Youth Criminal Justice Act). At paragraph 10, Justice Binnie noted: It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are number of important exceptions where the public interest in confidentiality outweighs the public interest in openness. This balance is dealt with explicitly in the relevant provisions of the Young Offenders Act, which may be interpreted in light of the Declaration of Principle set out in s. 3. [18] The Supreme Court of Canada acknowledges that these competing objectives are inherent in the scheme of the Act itself and that balancing is required. On the one hand there is the need for confidentiality to protect the identity of the youth so that stigmatization or premature labeling does not interfere with rehabilitation. On the other hand the youth court is open to the public and its proceedings are properly subject to public scrutiny. The legislation attempts to protect the privacy interests through the non-publication provisions, the restrictions on access to records and judicial discretion to exclude members of the public from proceedings if such exclusion is necessary to prevent serious risk to the proper administration of justice and it can be shown that the benefits of the exclusion order outweigh its negative effects on the rights and interests of the parties and the public: YCJA ss. 110, 119 and 132. [19] The public and the media have right to attend any court proceedings subject to the discretion of the court to exclude them. The burden of displacing the general rule of openness lies on the party making the application. The test to be applied, commonly referred to as the ‘Dagenais/Mentuck test’ as developed by the Supreme Court of Canada, requires balancing of competing interests, that is, freedom of expression and other important right and interests: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] S.C.R. 835; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] S.C.R. 480; R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] S.C.R. 522. [20] The two-pronged Dagenais/Mentuck test is as follows: (1) Is such an order necessary in order to prevent serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (2) Do the salutary effects of the order, outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to fair and public trial and the efficacy of the administration of justice: Mentuck, supra, at para. [21] The Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, under statute (as is the case here) or under rules of court. Public access will be barred only when court, in its judicial discretion concludes that disclosure “would subvert the ends of justice or unduly impair its proper administration”. party seeking to limit public access to legal proceedings must rely on more than general assertion that publicity would compromise” the proceeding or procedures related to it. In particular, the ‘risk’ addressed in the first prong of the analysis must be ‘real, substantial and well grounded in the evidence’, persuading the Court that there is ‘serious danger to be avoided’: Toronto Star Newspaper Ltd. V. Ontario 2005 SCC 41 (CanLII), [2005] S.C.J. No. 41 at para. and 9; Re: Vancouver Sun at para. [22] Though applicable at every stage of the judicial process, the Dagenais/Mentuck test must be applied in flexible manner, and regard must be had to the circumstances in which order is requested: Toronto Star Newspaper Ltd. v. Ontario, supra at para. 8. [23] Judges should expect to be presented with evidence credible on its face of the anticipated risks that an open inquiry would present, including evidence of the information expected to be revealed by the witness. “Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice”:Re: Vancouver Sun, supra at para. 31. [24] Evidence, in my view, can be by way of affidavit, viva voce testimony, including hearsay R. v. F.P. [1997] No. 285) or with agreement, by representations of counsel. [25] In Re Southam Inc. And The Queen (1984), 1984 CanLII 2169 (ON SC), 14 D.L.R. (4th) 683 (Ont.H.C.); affirmed 1986 CanLII 2859 (ON CA), 26 D.L.R. (4th) 479 (Ont.C.A.); leave to appeal refused May 22, 1986 (S.C.C.), decision which upheld the constitutionality of s. 39(1) of the Young Offenders Act, the precursor to s. 132 of the YCJA, one of the issues identified was the need to balance two conflicting public interests, freedom of expression, including freedom of the press, on the one hand, and the interest of society in the manner in which young persons in trouble with the law are dealt with on the other: On the first, it must be accepted that freedom of the press requires that, in all but exceptional circumstances, our courts be freely accessible to all members of the public. This concept has been pillar of our law for long time. On the other hand, it must be accepted that society’s interest is broad concept and includes the impact of the criminal justice system on youthful offenders and the resulting interface between the family and all members of the public. Re Southam Inc. and the Queen (Ont. H.C.) supra at page 688. And in the end, the court concluded that, ...the interests of society in the protection and rehabilitation of young people involved in youth court proceedings is value of such superordinate importance that it justifies the discretion given to youth court judge under s. 39(1)(a) [of the Young Offenders Act, now s. 132 of the Youth Criminal Justice Act]. Section 39(1)(a) is, in my view, reasonable limitation on freedom of expression including freedom of the press: Re Southam Inc. supra at page 705. [26] These two competing principles can also be found in the Preamble to the YCJA and in the Declaration of Principles in section of the YCJA: WHEREAS information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available; Declaration of Principle s. 3(1) The following principles apply in this Act: ... (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: ... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (d) special considerations apply in respect of proceedings against young persons and, in particular,... (I) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [27] Conferencing is new tool under the YCJA. It can be utilized in variety of ways, by variety of persons for variety of reasons. The Act permits conferences to be called by the judge, the provincial director, police officer, justice of the peace, prosecutor or youth worker. Its mandate may be, among other things to give advice on appropriate extrajudicial measures, conditions for release, and sentences. Conferencing can be “available as tool for Youth Courts to delve into the reasons for offending and the best measure available to reduce offending behaviour and rehabilitate young people”: R. v. M.(B.) [2003] [28] Nova Scotia has established rules for convening and conducting conferences but those rules do not apply to conferences convened by youth justice judge. It is worth noting however that those rules do provide that participants to the conference are advised that information and records discussed during the conference are confidential: NS Department of Justice, Correctional Services Policy and Procedures No. issued April 1, 2003 and revised August 1, 2003. [29] This case, however, concerns court convened pre-sentencing conference. The purpose of the conference is to provide recommendations on sentence for T.C. This court is mandated to consider any recommendations or other representations made by the participants. This leads me to the inescapable conclusion that the conference is part of the court process just as, for example, the preparation of pre-sentence report is part of the court process. [30] In my view, conference is not always public proceeding. For example, as above, Correctional Services Policy and Procedures for convening conferences and conducting conferences could lead one to conclude that confidentiality concerns may well dictate that those conferences be conducted in private. It seems to me however, that when a judge attends a court convened conference, receives input and recommendations from various parties, and is mandated to consider them during the course of deliberations in arriving at an appropriate youth sentence, it is, prima facie, a public proceeding. [31] also agree with comments of Professor Bala YCJ Law (Irwin Law, 2003) cited at para 48 of R. v. M.(B.), supra: If youth justice court judge convenes and presides over conference under section 41, it will be held as part of the sentencing process. In this situation, the participants in the conference are technically not witnesses who are subject to cross-examination by counsel, although there may be dialogue involving the judge, lawyers, and members of the conference. If conference is attended by the judge, record of the proceedings should be kept and may be used by the judge for the purposes of making decisions about the youth. The judicially convened conference is intended to bring the community and the court together and requires trust and cooperation between members of the community and the [32] Public and media attendance at this court convened conference, is nonetheless subject to judicial discretion to exclude members of the public and the media pursuant to s. 132 of the YCJA. The power to order exclusion of the public from this proceeding is recognized to be an extraordinary remedy and great care must be exercised in deciding whether to use this discretion. The open court principle is not absolute. It is subject to the considerations set out in s. 132 and in the Dagenais/Mentuck test. The question becomes one of whether the various considerations weigh in favor of an exclusion order. Put another way, does the evidence before the court rebut the open court principle and support an order pursuant to s. 132 of the Act. [33] It must be made clear at the outset that the request for an exclusion order relates only to the conference itself. The sentencing hearing will be held in open court and the public and the media will have right to attend. Any recommendations flowing from the conference will be stated on the record in open court. will consider those recommendations and give reasons for either accepting or rejecting any recommendations made. [34] This conference can aptly be described as professional case conference. Invitees are members of the mental health and child welfare community who have voluntarily agreed to come together in one room, with the consent of T.C. to discuss issues relating to T.C., issues involving unique and incredibly intimate details of her life including her mental health, her challenging behaviour and in particular, her involvement with psychiatrists, psychologists and therapists. This is all extremely personal, private and confidential information, details of the kind often found in s. 34 assessment reports, which of course are subject to procedural protection under the YCJA. [35] The benefit of conference is that all professionals are able to come together in one room, share opinions and experiences as they relate to T.C. with view to arriving at recommendations that take holistic multi-disciplinary approach. These professionals have specific knowledge and experience with T.C. They are able to advise the court on complex personal issues that plague T.C., the attempts that have been made to address those issues in both the child welfare and the mental health context. Hopefully they will be able to advise the court as to what alternatives are available that are likely to meet the needs of T.C. and get at the root causes of her offending. This approach, combining the expertise of professionals in the fields of health, child welfare, education and justice, using restorative approach may be the best means available to assist the court in determining an appropriate sentence which addresses T.C.’s rehabilitation. [36] In my experience, having attended number of these conferences in the past, the information shared is of highly confidential nature. Both the consent and the cooperation of the young person is necessary in order for conference to be successful. Conferences involve very frank and open discussion and encourage the participation of the young person to ‘buy into the process’ and feel like he/she is part of the solution and not just part of the problem. Evidence in Support of the s. 132 Application: [37] Counsel for the young person has made application under s. 132 of the YCJA requesting that the court exclude the public and the media from the pre-sentencing conference scheduled for December 11, 2006. The crown and counsel on behalf of the Minister join in that application. [38] Ms. Longley, counsel on behalf of T.C. advises that T.C. consents to the disclosure, the sharing and the discussion of her confidential information amongst conference participants only. In other words, her consent to sharing otherwise confidential information is contingent upon the conference being closed to the public and the media. This information, received by way of representations of counsel, as opposed to viva voce or affidavit evidence is nonetheless compelling. Ms. Longley is agent for T.C. and is conveying her client’s instructions to the court. It may not be evidence, in the pure sense of the word but it is credible and compelling, worthy of considerable weight. [39] Counsel have determined that the list of invited attendees includes Denise Porelle, Ann Bond, Mona Bordage, Lynn Brogan and Leonard Doiron, all of whom are social workers from the Department of Community Services. They have been providing child welfare services for T.C. since 1999. Three individuals from T.C.’s most recent placement at [a group home] will attend as well. They include Jackie Woodford, supervisor, [group home worker], Kim Nicolaou, Youth Care Worker, and Dawn Hall, Clinical Social Worker. Dr. Carolyn Humpheys, psychologist who provided therapy to the young person will attend as will Dr. Suzanne Zinck, child and adolescent psychiatrist, I.W.K. Health Services, who is T.C.’s treating psychiatrist will likewise be attending. Dr. Ruth Carter, Director of Provincial Child and Youth Forensic Services, I.W.K. Health Centre has been invited to attend as has Sherry Bernard, probation officer tasked with preparing the pre-sentence report in relation to T.C.. [40] The crown called Denise Porelle to give viva voce evidence in support of the s. 132 application. Ms. Porelle is social worker who has been employed with the Department of Community Services for the past 18 years. Initially ‘long term protection worker’ with the […] District Office of the Department of Community Services, Ms. Porelle has, for the last 10 years, been ‘children in care worker’. Ms. Porelle testified that she has known T.C. since July 2005. She worked with T.C. from July to October 2005 and again from June 2006 to the present. [41] Ms. Porelle testified that if the media were to attend the conference she, and others from the Department would not be able to speak openly about their involvement with the child due to reasons of confidentiality. She indicated for example there would be lot of detail of the relationship with T.C. that she would not be at liberty to disclose. She was of the view that she was bound by policies relating to confidentiality which pertain to her as social worker. She indicated that those same policies would apply to her supervisors. [42] Ms. Porelle indicated that she has personal knowledge of T.C.’s residence at [the group home], place designated for young women with emotional and behaviourial issues. The care giver [group home] was required to sign confidentiality agreement which extends to all third parties except doctors and psychologists or to those whom consent has been given by the Department of Community Services. [43] Further Ms. Porelle testified that she spoke recently with Dr. Suzanne Zinck, who advised her that she, Dr. Zinck would not be able to participate in the conference if the media were present. It was Ms. Porelle’s impression that Dr. Zinck felt it would be ‘highly inappropriate’ for her to attend under those circumstances because of confidentiality concerns and rules with respect to same under her governing body. [44] Aside from confidentiality concerns, Ms. Porelle testified that as T.C.’s guardian, the Department have right to protect children in care from divulging information that could be harmful. As further aside, but perhaps relevant, is that Ms. Porelle stated that T.C. has not responded well to ‘things in the paper already’. [45] Ms. Porelle admitted that she has testified in court despite confidentiality policies, agreements or legislation but was not at all sure whether, even with the judge’s prompting, she would volunteer the same information at conference where her attendance and her participation were entirely voluntary. [46] To summarize the evidence: (1) T.C. does not consent to sharing her personal and confidential information at the conference if the conference is open to the public and the media; (2) Denise Porelle, her colleagues and supervisors are bound by policies of confidentiality relating to T.C. and are unable to divulge much information relating to T.C. in public forum and without T.C.’s consent. (3) The care giver [group home] has signed confidentiality agreement with the Department of Community Services relating to T.C. and they are bound by the terms of that agreement. (4) Dr. Suzanne Zinck, through Denise Porelle, has indicated that if the media attend the conference she will not be able to participate. [47] As indicated above, the court can receive evidence in variety of forms, including viva voce and affidavit evidence. The court requires credible evidence of the anticipated risks that an open inquiry would present. The evidentiary burden at this stage of proceedings is by no means proof beyond reasonable doubt. am guided by the case law that says may rely on evidence that reveals what is reasonably expected by way of anticipated information sharing. find Ms. Porelle’s evidence credible and compelling. There is no reason why should not rely on it. [48] remind myself of the context in which the anticipated information is to be shared. The conference is voluntary process. Attendance and participation is optional. The court has no power to order the attendance of anyone (except the young person and the parent). The court has no power to subpoena anyone to attend or to testify. Again the conference is an informal tool of the YCJA predicated on the need for consent and cooperation. It is not court hearing. [49] Counsel for the Minister of Community Services argues that public policy issues regarding children in care of child protection agency are an important consideration as well, as set out in the Children and Family Services Act (CFSA). He cites decision of the Honourable Judge David R. Hubley of the Family Court for the Province of Nova Scotia wherein he relied on s. 93 of the CFSA to exclude representative of the Chronicle-Herald newspaper form the secure treatment hearing held respecting this same young person on November 21, 2006. Though agree with Ms. Rubin, counsel on behalf of the Herald that the CFSA is not applicable here, it does highlight the ever present need to be mindful of the sensitive nature of information and the privacy rights of the child. [50] Counsel for the Minister also asks this court to take judicial notice of ss. 26 and 27 of the Freedom of Information and Protection of Privacy Act which govern the conduct of representatives from the Department of Community Services. Those sections prohibit the disclosure of personal information regarding young persons by department officials without the young person’s consent. have reviewed those provisions and nowhere does it allow for the voluntary sharing of information in forum such as conference without the young person’s consent. Section 27(e) provides for the disclosure of personal information for the purpose of complying with subpoena, warrant, summons or order issued or made by court...with jurisdiction to compel the production of information. This explains why Ms. Porelle is able to divulge such information under oath but not in conference setting, without the consent of the young person. With respect, can not accept Ms. Rubin’s argument that the Freedom of Information and Protection of Privacy Act does not include the subject matter of this application. Nor can conclude, given the very clear language of ss. 26 and 27 that disclosure of this information is possible under s. 31(1) as being in the public interest. [51] The very real distinction must be made here between the legal obligation to testify in court under oath and the voluntary participation in conference. There are significant legal implications that flow with respect to confidentiality in the voluntary conference setting. [52] take judicial notice of the fact that doctors too are bound by professional oaths that limit their ability to share confidential information about their doctor-patient relationships. This is evidenced by Dr. Zinck’s choice not to attend the conference if the media is present. [53] In assessing the evidence am to apply the Dagenais/Mentuck test in contextual manner and am entitled to issue s. 132 ban if am satisfied that publicity would unduly impair the proper administration of justice. Application of s. 132 of the YCJA: [54] Under the first prong of the test set out in s. 132 am to determine whether the presence of the public and the media is unnecessary to the conduct of proceedings. Ms. Rubin would have the court interpret the term ‘unnecessary’ broadly and conclude that, to the contrary, the media’s presence is vital to the process so as to ensure the process is open, transparent and accountable. [55] Counsel for both the crown and the young person argue that the presence of the public and the media is in no way necessary to further the process. They suggest that the public’s right to know what takes place at the conference does not make them necessary to the conduct of proceedings. [56] also agree with the view expressed by counsel on behalf of the Minister that if the media and others are deemed necessary to hold the conference, their attendance would always be necessary and the court should not accept the position taken by the media which amounts to ‘self-designated necessity’. [57] Although agree with Ms. Rubin that the issue is rooted in ‘need’ take the view that the plain meaning of the word unnecessary be applied in narrow context. In other words, is the public and the media unnecessary in the sense that they have nothing to offer, by way of recommendations or input at the conference convened to assist the court in imposing sentence. If we were to construe the provision more broadly than that we could be implying that the public’s presence is always necessary and party would not be able to satisfy the first prong of the test. [58] conclude that the presence of the public and the media at the conference is unnecessary to the conduct of proceedings as anticipated. [59] The second prong of the test requires that also consider whether the information presented to the court at the conference would be seriously injurious or seriously prejudicial to the young person or that it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. [60] Ms. Longley submits that there may be safety issues relating to her client if the public, including the media know where she lives or knows what medication she takes. find that there is no evidence to support this position. It is speculation at best, the kind of thing that was rejected in R. v. Quintal [2003] ABPC 79 and Toronto Star Newspapers Ltd v. Ontario, supra. [61] Mr. McVey, on behalf of the Minister, makes valid point though. There seems to be little doubt that treatment issues and needs will be at the heart of this conference. If invitees are unwilling to attend or are unwilling to participate in meaningful way, in the presence of the public and the media, this does directly affect T.C.’s s. 11(d) Charter right to fair hearing because all the necessary information will not be before the Court. This could prove to be seriously prejudicial if the avenue for fruitful discussion were foreclosed. This argument though could better be advanced in terms of the proper administration of justice component in the second prong of the test. am not convinced that information to be presented to the court will be seriously injurious or seriously prejudicial to T.C. [62] The remaining point is whether it is in the interests of the proper administration of justice to exclude any or all members of the public from the conference. It is at this juncture that must turn my mind to the Dagenais/Mentuck test and apply it to s. 132 of the YCJA. must consider whether an exclusion order is necessary to prevent serious risk to the proper administration of justice because other reasonable alternatives will not prevent the risk and if so, then determine whether the positive effects of such an order would outweigh the negative consequences of restricting the public’s right to freedom of the press, to the accused’s right to fair trial and to the efficacy of justice. [63] The crown and defence argue that the public and the media are not privy to other information gathering processes (such as those which go into the preparation of pre-sentence reports and assessment reports) so why should they be privy to the information gathering that occurs at conference. Both are nonetheless part of the court process. am of the view that more than this is required in order to justify exclusion. have to weigh and balance the competing interests in my exercise of judicial discretion. [64] The administration of justice is furthered by obtaining the best possible information from those identified as best able to provide it so that recommendations will be produced which will lead to the best result (sentence) possible. ask myself how is that best to be accomplished in circumstances which require the voluntary involvement of professionals, many of whom are bound by confidentiality agreements, codes of conduct or legislation, who are permitted to share such information, by consent of the young person, only with other conference invited attendees. It has been suggested that under the glare of public scrutiny people would be reticent to participate. view the evidence as being much stronger than that. Confidentiality concerns expressed by professionals will likely prevent many from participating in any meaningful way. [65] This conferencing tool, in these circumstances, is used as part of unique and delicate process to gather information not otherwise available to the Court. It provides an excellent opportunity for all professionals to put their collective heads together and attempt to arrive at solution in the way of recommendations to the court for sentencing of T.C. The fear expressed by counsel on behalf of the Minister that “the conferencing tool will wilt on the vine” if open to the public and the media, is very real and well-grounded concern. We are faced with the very real probability that professionals will either bow out of the process altogether or they will not participate in the process in any meaningful way. That is the reality of the situation. [66] Counsel for the media suggests that this is simply fear-mongering on the part of the crown, the defence and the Minister and that the court should not be convinced to close the process simply because confidential and embarrassing information may be the subject of disclosure. They cite R. v. V.(J.W.) [2003] BCPC 234 and say even though potentially confidential and embarrassing information was going to be presented at transfer hearing, the judge in that case, nonetheless, ordered that the hearing be open to the public. But that was hearing, where witnesses were compelled to testify. This is conference. The Court can not compel professionals to participate. [67] The media also relies on R. v. A.A.B. [2006] NSPC 16 and R. v. R.D.S (Re Halifax Herald Ltd.) [1995] NSJ No. 207, both of which related to requests for “records”after the completion of youth court proceeding. In A.A.B. there was an attempt to ban access to records, some of which enjoyed the protection of the YCJA and others which did not. At pars. 14 and 17 Judge Burrill stated, in part: am not persuaded, after having carefully reviewed the contents of all exhibits in question, that there is any information contained therein that would harm A.B.’s rehabilitative prospects. Much information contained in the reports has already been placed in the public domain during the sentencing hearing. ...all of the exhibits which are the subject of this application are, however, inextricably linked and meaningful review of one can not occur without reference to the others. As result, in relation to exhibits and 10, grant an order pursuant to s. 119(1)(s) that will permit an accredited member of the media access to those exhibits because on the unique facts of this case find that it is desirable in the interest of the proper administration of justice that media be permitted access. [Emphasis added]. [68] In R.D.S., supra, the media requested an order for certiorari to quash the decision of the youth court judge denying the media access to the tape of proceedings of youth court matter. The information requested was the tape of proceedings, containing information already released in open court. The judge had imposed complete publication ban on an open court proceeding after proceedings were over. In granting the application for certiorari and an order for mandamus, the Supreme Court nonetheless imposed condition that the name of the young person and any other information that tended to identify him was not to be published. [69] Both of these cases are distinguishable. In both instances the media sought access to records which had already been the subject-matter of proceedings in open court. Here access is being sought to process which has yet to produce any information or record. And there is very real risk that should the public and the media be permitted to attend this process, the process itself will be rendered useless and will fail to produce any meaningful information or record. CONCLUSION: [70] comment was made by counsel on behalf of the media to the effect that it is not appropriate for conference to hinge on the cooperation of young person. The reality, however, is that it does just that. It also hinges on the cooperation of all others who have vital interest and role in the conference. [71] Going back to the Dagenais/Mentuck test, conclude, based on the foregoing, that an exclusion order is necessary to prevent serious risk to the administration of justice. There will be serious, real and imminent risks to the administration of justice if this conference is open because it will not produce the desired results. [72] There are no alternative measures which could prevent or reduce the risk of non-participation by the invitees to the conference. ban on the publication of the identity of the young person and the protection of record provisions in the YCJA do nothing to comfort or protect professionals bound by legal and ethical obligations related to confidentiality. [73] If the Court had the power to order attendance and order participation by way of subpoena wonder whether, even under those circumstances, we would be able to achieve the desired results. suspect there would not be the same spirit of cooperation or forum that encouraged frank and open dialogue amongst the participants. [74] The benefits of an exclusion order, obtaining vital information and recommendations needed to assist the court in arriving at a determination on sentencing, outweighs the deleterious effect of restricting the public’s right to freedom of expression and freedom of the press. There is no concern that such an order would detrimentally affect T.C.’s fair trial interests. In fact, an exclusion order will likely ensure that the best possible information is before the Court. [75] This is one of those rare circumstances in which an exclusion order is necessary to prevent serious risk to the administration of justice and the benefits of the order outweigh its drawbacks. This is in my view, reasonable limit on the open court principle, all things considered. [76] An order is granted pursuant to s. 132 of the YCJA excluding the public and the media from the pre-sentencing conference in relation to T.C. scheduled for December 11, 2006.

A young person who suffered from considerable mental health issues and was in the permanent care of the Minister of Community Services applied to have the court exclude the public and the media from her court convened pre- sentencing conference. The purpose of the conference was to assemble various professionals from diverse fields to discuss the complex issues surrounding the young person and to provide recommendations to the court as to an appropriate sentence. Various of the professionals had expressed their concern as to their ability to participate in the conference if the media was present. Application for access by the media denied; order granted excluding the public and the media from the pre-sentencing conference; the benefits of an exclusion order outweigh the deleterious effect of restricting the public's right to freedom of expression and the freedom of the press. Although the court convened hearing is a public proceeding to which, prima facie, the open court principle applies, the attendance, cooperation and participation of the invitees to the conference (all professionals who were bound by laws, policies and agreements of confidentiality) was strictly voluntary and many, if not all, would be unable and unwilling to participate in a conference that was open to the public and the media. The administration of justice was furthered by the court obtaining the best possible information from those identified as best able to provide it so that recommendations flowing from the conference would lead to the best sentence for the youth. There were no alternative measures which would prevent or reduce the risk of non-participation by the professionals.

7_2006nspc61.txt

J.D. KOCH THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 110 Date: 2013-10-23 Between: Docket: CACV2345 Michael Newell and The Director of Community Operations and 101150089 Saskatchewan Ltd. Coram: Richards C.J.S., Ottenbreit and Herauf JJ.A. Counsel: Nicole Sarauer and Barbra Bailey for the appellant Alan Fern for the respondent, The Director of Community Operations Appeal: From: 2012 SKQB 441 (CanLII) Heard: April 9, 2013 Disposition: Appeal dismissed Written Reasons: October 23, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf OTTENBREIT J.A. [1] Michael Newell appeals the decision of the Chambers judge dismissing his application under Rule 173(e) of The Queen’s Bench Rules of Court and the inherent jurisdiction of the Court to strike out or stay the application of the Director of Community Operations for community safety order under The Safer Communities and Neighbourhoods Act, S.S. 2004, c. S-0.1 (“SCAN”), because the Director’s application constituted multiplicity of proceedings and was therefore an abuse of process. [2] Leave to appeal was granted in decision found at 2012 SKCA 115 (CanLII) on the provisional basis that there was authority to appeal in ss. and of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, and on the premise that the decision of the Queen’s Bench Chambers judge was made in the context of Queen’s Bench Rule 173(e) and the exercise of the court’s inherent jurisdiction to prevent abuse of its process. [3] For the reasons hereinafter set forth, Mr. Newell’s appeal is dismissed. I. Facts and Background [4] Mr. Newell has, since March of 2001, resided as tenant at house at 1333 Wascana Street in Regina, Saskatchewan. In March of 2012, the Director, acting as the agent of Mr. Newell’s landlord, applied for an order terminating Mr. Newell’s tenancy pursuant to ss. 68 and 70 of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001, on the grounds that Mr. Newell was trafficking drugs. [5] The Residential Tenancies Act hearing officer determined that Mr. Newell was more likely than not trafficking in marihuana but found the evidence insufficient to make determination that Mr. Newell was trafficking from the house. Accordingly, he did not find that the activity caused or was likely to cause damage to the landlord’s property or that it would adversely affect the quiet enjoyment, security, safety or physical well-being of Mr. Newell’s neighbours as required to terminate tenancy under s. 68 of The Residential Tenancies Act. The landlord’s application was dismissed with written reasons dated April 9, 2012. There was no appeal filed by the Director. [6] The Director then filed motion with the Court of Queen’s Bench on May 8, 2012, against the landlord for community safety order pursuant to s. of SCAN. The proposed community safety order also sought the termination of Mr. Newell’s tenancy at the house. The material filed by the Director in support of this application included the evidence presented at the earlier residential tenancies hearing dealt with by the hearing officer, as well as new evidence of further surveillance of the house conducted on April 25, 26 and 27, 2012. The landlord of the house agreed with the Director’s application but did not participate in it. [7] Mr. Newell then applied to be added as party to the proceedings under Queen’s Bench Rule 39 as well as to strike the Director’s motion as an abuse of process pursuant to Queen’s Bench Rule 173(e) as well as the inherent jurisdiction of the court. II. Decision of the Court Below [8] The Chambers judge’s decision can be found at 2012 SKQB 441 (CanLII). She determined that Mr. Newell had met the criteria set out in Rule 39 and added him as party. [9] Mr. Newell argued that the Director’s application was an abuse on the basis that it was relitigation of the Director’s previous action under The Residential Tenancies Act respecting the same subject matter. The Director argued that it was fresh litigation in the interests of justice. [10] The Chambers judge determined that Mr. Newell’s application would be better understood when viewed not only with respect to abuse of process but also in the context of issue estoppel and the rule against collateral attack despite that neither party had dealt with nor argued the last two issues before her. [11] After reviewing the law germane to issue estoppel, she determined that two of the three preconditions, final judicial decision and identity of parties or privies had been met. She found identity of issue to be arguable. She concluded: 41 have spent considerable time on the doctrine of issue estoppel because, in my mind, the complaint made by Mr. Newell fits neatly within its parameters. Mr. Newell claims the Director’s complaint against him was considered and decided by the Hearing Officer and he should not have to return to court to face the same complaint again. agree that it is arguable the same issue is before the court as was heard by the Hearing Officer. However, as held by Binnie J. in Danyluk, supra, meeting the three tests of (a) the same party; (b) the same issue and (c) previous final judicial decision, is not enough. In order to satisfy the doctrine of issue estoppel, court must still decide whether fairness is better achieved by applying issue estoppel, or by refusing to apply it. As Mr. Newell did not request the application of issue estoppel, and as it was not argued by the parties, will consider the fairness issue in the context of abuse of process. [12] The Chambers judge then moved on to the issue of collateral attack and said: 43 Again the issue of fairness is raised. As the parties did not consider the issue of collateral attack, will discuss the balancing of “fairness to the parties with the protection of the administrative decision-making process” (ibid., para. 21) in the context of abuse of process. [13] The Chambers judge then turned to the issue of abuse of process. She reviewed the governing law respecting abuse of process as explained in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77, at paras. 35, 37, 42, 43, 44, 51, 52 and 53. She determined the following: 50 The end result of both an application for an order for possession under the RTA and for CSO is the eviction of the resident(s) from the Premises. However, the purposes behind the power to grant this relief are dissimilar. The focus of the order for possession is the removal of tenant for failure to comply with certain of the rights given to landlords under the Act. The rationale behind removing resident under the SCNA is to protect communities and neighbourhoods from certain activities that may adversely affect them. 51 In C.U.P.E. Local 79 Arbour J. suggested that relitigation may enhance rather than impeach the integrity of the judicial system “when fairness dictates that the original result should not be binding in the new context”. (para. 52) It may be assumed that the Legislature expected, when drafting the SCNA, that the processes under it and the RTA would overlap from time to time. However, the Legislature did not provide that recourse to one prohibited recourse to the other. 52 The circumstances that gave rise to the application before the Hearing Officer have been significantly supplemented by incidents that post date that application. As the Director does not seek to overturn factual determinations made by the Hearing Officer, simply that the Director seeks to rely on the same facts that were before the Hearing Officer, supplement those facts with new evidence, and ask different decision maker to reach different conclusion. 53 The application before the court requires that Mr. Newell respond to some of the same facts again. However, if the second proceeding is not allowed to go forward in the interests of finality, the Director is unable to fulfil his mandate with respect to the Premises. On balance, and as matter of fairness, do not find it an abuse of process to require that Mr. Newell respond to the Director’s application. [14] Having resolved the fairness issues respecting issue estoppel and collateral attack as part of the abuse of process analysis, she accordingly dismissed the application for stay or striking out of the SCAN application. III. Standard of Review [15] Both parties accept that the decision of the Chambers judge is discretionary. The standard of review generally in such case is set forth in Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119, at para. 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. [emphasis added] IV. Points in Issue [16] Mr. Newell raises five issues in support of his grounds in his notice of appeal. They are framed in his factum as: issue estoppel vs. abuse of process; abuse of process; issue estoppel; policy considerations; and, no undue delay, cost or prejudice to the Director. These may all be addressed under the rubric of whether the Chambers judge erred in finding there was no abuse of process. [17] The Director also raises two issues related to the jurisdiction of this Court to hear the appeal based on issues which were not argued before the court below. V. Analysis [18] will begin by dealing with the jurisdictional issues. [19] The Director urges the Court to deal with preliminary argument that this Court does not have jurisdiction to entertain this appeal because it is an interlocutory appeal from decision which is part of an application under SCAN. [20] This is so, the Director’s argument goes, because of ss. 24(1) and 25(1)(a) and (2)(b) of SCAN. These sections read as follows: 24(1) An order of the court made pursuant to this Part may be appealed to the Court of Appeal: (a) on question of law; and (b) with leave of judge of the Court of Appeal. 25(1) Subject to subsection (2), no action or proceeding shall be commenced or maintained: (a) to prevent the making of community safety order; (2) Subsection (1) does not apply to: (b) an appeal pursuant to section 24. The Director argues these provisions both prohibit interlocutory applications which have the effect of preventing SCAN order and confer only limited right of appeal of determination under SCAN. The Director argues that those limited appeal rights are recognized by s. 7(3) of The Court of Appeal Act, 2000, which reads as follows: 7(3) If an enactment provides that there is no appeal from decision mentioned in subsection (2) or confers only limited right of appeal, that enactment prevails. Therefore, according to the Director, this limited right of appeal takes priority over the general rights of appeal set out in ss. and of The Court of Appeal Act, 2000. In short, the Director argues that SCAN only allows appeals of orders under Part II of SCAN but not of interlocutory orders. [21] The Director submits that Mr. Newell’s application respecting abuse of process in the court below had the effect of preventing SCAN order and that it should not have been made and there is therefore no jurisdiction to hear his appeal from such an application. It is common ground the alleged prohibition against interlocutory applications was not argued before the Chambers judge. [22] Mr. Newell’s position respecting this argument is that this Court is not limited by any provisions of SCAN because the application before the Chambers judge originated as Rule 173(e) application and an application pursuant to the court’s inherent jurisdiction and therefore, the source of his right to appeal is grounded in ss. and of The Court of Appeal Act, 2000. Furthermore, he argues that because leave was granted to appeal the decision on that basis, this Court has jurisdiction to hear his appeal. [23] agree with the Director that the granting of leave does not dispose of whether this Court has jurisdiction to deal with this appeal. However, the jurisdiction to hear this appeal is not dependent on his argument respecting any attenuated right under SCAN to make interlocutory applications in the court below. The issue of whether Mr. Newell’s application was contrary to s. 25(1)(a) of SCAN was not raised or argued in the court below. The usual practice of the Court is not to extend its inquiry on appeal into an entirely new matter argued for the first time on appeal (R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; Farr-Mor Fertilizer Services Ltd. v. Hawkeye Tanks & Equipment Inc., 2002 SKCA 44 (CanLII), 291 Sask. R. 148). I see no reason in the circumstances of this case to depart from the Court’s usual practice. The issue deserves full argument and submissions by the parties and analysis by court at first instance. Accordingly, this issue will not be addressed on this appeal and plays no part in determining this Court’s jurisdiction to hear this appeal. [24] The jurisdiction to hear this appeal can be found in the Court’s general jurisdiction under ss. 7 and 8 of The Court of Appeal Act, 2000. Part II of SCAN sets out in some detail the nature and potential terms of Part II orders. The order being appealed is by its terms not an order under Part II. What is being appealed is in the nature of a procedural order under Queen’s Bench Rule 173 and/or the inherent jurisdiction of the Court, therefore s. 24 of SCAN does not apply. As such this Court has jurisdiction to hear the appeal of such an order in the circumstances of this case. [25] The Director argues as an alternative that if this Court is inclined to hear the appeal at all then it should not deal with it on the basis of either issue estoppel or collateral attack because neither were argued below by the parties. [26] Given the reasons which follow, it is not necessary to approach the appeal on the basis of whether the Chambers judge correctly dealt with the issues of estoppel and collateral attack. For the purposes of my analysis, will accept the Chambers judge’s analysis on these two issues as it informs the issue of abuse of process. [27] This appeal therefore turns on whether the Chambers judge erred in determining in all the circumstances that there was no abuse of process and that stay was not appropriate. Did the Chambers Judge Err in Determining there was No Abuse of Process [28] Mr. Newell brought his application in the court below on the basis that it should be struck because it was an abuse of process within the meaning of Rule 173(e) or stayed or dismissed pursuant to the court’s inherent jurisdiction. therefore begin with the overarching principle applicable to this case; that the jurisdiction to strike or stay claim must only be exercised in plain and obvious cases where the matter is beyond doubt. [29] In Sagon v. Royal Bank of Canada (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.), Sherstobitoff J.A., at paras. 18 and 19, states: 18 Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved. [footnotes omitted] 19 Finally, separate mention should be made of the power of the court to prevent abuse of its process, power which is inherent as well as conferred under rule 173. Bullen and Leake defines the power as follows at pp. 148-149: The term ‘abuse of the process of the court’ is term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as court of law to be misused but will in proper case, prevent its machinery from being used as means of vexation or oppression in the process of litigation. It follows that where an abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, ‘although it should not be lightly done, yet it may often be required by the very essence of justice to be done’. The term ‘abuse of process’ is often used interchangeably with the terms ‘frivolous’ or ‘vexatious’ either separately or more usually in conjunction. [footnotes omitted] [30] Mr. Newell accepts that the Chambers judge correctly stated the governing law respecting the court’s jurisdiction to prevent abuse found in the following cases: Englund v. Pfizer Canada Inc., 2007 SKCA 62 (CanLII), 284 D.L.R. (4th) 94, at paras. 33 and 34; Insurance Co. of the State of Pennsylvania v. Global Aerospace, Inc., 2010 SKCA 96 (CanLII), [2010] 10 W.W.R. 426 at paras. 63, 97 and 98; and C.U.P.E. Local 79. [31] Richards J.A. in Bear v. Merck Frosst Canada Co., 2011 SKCA 152 (CanLII), 345 D.L.R. (4th) 152, also recently summarized the law as follows: 36 The doctrine of abuse of process reflects the inherent power of judge to prevent an abuse of his or her court’s authority. It is flexible concept not restricted by the requirements of issue estoppel, such as those relating to privity. The doctrine can be engaged by variety of circumstances including what might be called those concerning the “re-litigation” of issues or claims. 37 Goudge J.A., in Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 194 D.L.R. (4th) 648 (Ont. C.A.), dissenting but approved at 2002 SCC 63 (CanLII), [2002] S.C.R. 307, explained the applicable concepts as follows at paras. [55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in way that would be manifestly unfair to party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] W.L.R. 347 (C.A.) at 358. [56] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate claim which the court has already determined. 38 The need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process. The Supreme Court of Canada explained this point as follows in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. See also: Cameco Corp. v. Insurance Co. of State of Pennsylvania, 2010 SKCA 95 (CanLII), [2010] 10 W.W.R. 385 per Cameron J.A. at paras. 47-50. [32] The focus of the Chambers judge at the outset before her examination of issue estoppel and collateral attack was the proper framing of the Director’s actions as either relitigation of the same issues or fresh litigation in the interests of justice as alluded to by Abella J. in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), [2011] S.C.R. 422, at para. 1. [33] Abella J. in Figliola describes the harm that the general bar to relitigation is designed to prevent: 30 In other words, the harm to the justice system lies not in challenging the correctness or fairness of judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77, at para. 46). She goes on to discuss the availability of the doctrine of abuse of process and the common thread of preventing unfairness running through the concepts of abuse of process, issue estoppel, collateral attack and res judicata. 33 Even where res judicata is not strictly available, Arbour J. concluded, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as “judicial economy, consistency, finality and the integrity of the administration of justice” (para. 37). She stressed the goals of avoiding inconsistency and wasting judicial and private resources: [Even] if the same result is reached in the subsequent proceeding, the relitigation will prove to have been waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [para. 51] (See also R. v. Mahalingan, 2008 SCC 63 (CanLII), [2008] S.C.R. 316, at para. 106, per Charron J.) 34 At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows: It is in the interests of the public and the parties that the finality of decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35). Respect for the finality of judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51). The method of challenging the validity or correctness of judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74). Parties should not circumvent the appropriate review mechanism by using other forums to challenge judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72). Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51). [34] The flexibility of the doctrine of abuse of process and its purpose of insuring that the administration of justice is not brought into disrepute was recently re-affirmed in Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), 357 D.L.R. (4th) 236, at paras. [35] Mr. Newell’s argument that the Chambers judge misapplied the law with respect to issue estoppel and collateral attack because having found an issue estoppel she failed to determine that the broader test for abuse of process had been met cannot succeed. In my view, the Chambers judge merely used the estoppel and collateral attack analysis to assist her in clarifying the issues in play with respect to relitigation and multiplicity of proceedings but acknowledged that she could not make final decision on either basis because neither was argued before her. She reviewed the elements of issue estoppel as part of the abuse of process analysis and moved directly to the issue of fairness in the context of abuse of process. [36] The fairness analysis with respect to abuse of process referred to by the Chambers judge is explained in C.U.P.E. Local 79, at paras. 52 and 53, where Justice Arbour observes that discretionary factors that apply to prevent the doctrine of issue estoppel from operating are also available to prevent the doctrine of abuse of process from achieving similar undesirable result: 52 There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55). Relitigation may therefore enhance the credibility and effectiveness of the adjudicative process in some cases “when fairness dictates that the original result should not be binding in the new context”. [37] The Chambers judge appropriately balanced the factors respecting the fairness of allowing relitigation and determined that in all the circumstances it would not be unfair to Mr. Newell to allow the SCAN application to succeed. She gave cogent and sustainable reasons why there was no abuse of process and why she refused to exercise her discretion to enter stay. They were: (i) that both The Residential Tenancies Act and SCAN have process for obtaining an order for the tenant to vacate and neither is the exclusive forum; (ii) although the two processes are similar, SCAN implicitly has a wider ambit than The Residential Tenancies Act; (iii) the purpose of each legislation is different, The Residential Tenancies Act being private in nature and determination of rights between landlord and tenant, and SCAN being community based and concerned with the protection of the public; (iv) because each legislation has different purposes, fairness dictates that the result of the original matter should not be binding in the new legislative context; (v) knowing that the two Acts would overlap, the Legislature did not prohibit proceeding under SCAN where there had already been proceeding under The Residential Tenancies Act (The Residential Tenancies Act, s. 67(5)); (vi) the SCAN application was not merely relitigation of the same facts but rather reliance on the previous factual findings in The Residential Tenancies Act proceeding supplemented by new evidence (19 short term visits to the premises believed to be consistent with drug trafficking) using different process; and (vii) although Mr. Newell will be required to respond to some of the same facts again, staying the application will not achieve the interests of finality or allow the Director to fulfill his mandate. [38] All of these reasons accord with the SCAN legislation which allows for repeated complaints which trigger the Director’s statutory mandate to investigate. SCAN contemplates multiple applications respecting the same residence given that the orders have only 90 day duration. [39] It may be inferred that in this case the Chambers judge concluded for all those reasons that the integrity of the judicial decision making process and the interests of justice had not been compromised. In my view, she properly identified and balanced the considerations in play based on the governing law. [40] Her analysis, as whole, addresses the germane issues of judicial economy, consistency, finality and the integrity of the administration of justice which might militate against relitigation. take her conclusion to be that there would not be real injustice in the particular case and the SCAN application was not clearly an abuse. [41] I cannot say based on the applicable standard of review that the Chambers judge improperly exercised her discretion and erred in refusing to grant the stay requested. [42] As final comment, although have determined that the Chambers judge was correct in finding no abuse of process in the circumstances of this case, the issue of whether public officer’s actions pursuant to statutory power can be an abuse of process was not argued before us and this decision cannot be read to have decided that issue. That said, it can also not be concluded that an application under The Residential Tenancies Act to terminate tenancy by the Director and subsequent SCAN applications respecting the same residence may never be questioned in any circumstances. [43] The appeal of Mr. Newell is dismissed. There will be no costs. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of October, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A. concur “Richards C.J.S.” Richards C.J.S. concur “Herauf J.A.” Herauf J.A.

HELD: The Court addressed the issue of jurisdiction by holding that it would follow its usual practice to refuse to hear an entirely new matter argued for the first time on appeal. Since the order being appealed from was not a Part II order under SCNA, what was being appealed was a procedural order under Queen’s Bench Rule 173 and the inherent jurisdiction of the Court, and therefore the Court had jurisdiction to hear the appeal pursuant to ss. 7 and 8 of the Court of Appeal Act. The Court held with respect to the decision in Chambers that the judge properly exercised her discretion and did not err in refusing to grant the stay requested. The Chambers judge appropriately balanced the factors respecting the fairness of allowing re-litigation and determined in all of the circumstances that it would not be unfair to the appellant to allow the SCNA application to succeed because the purpose of that legislation was different and had a wider ambit of The Residential Tenancies Act. However, the result of this appeal could not be taken to have decided whether a public officer’s actions pursuant to a statutory power could be an abuse of process or that an application under The Residential Tenancies Act to terminate a tenancy by the director and subsequent SCNA application respecting the same residence may never be questioned in any circumstances.

9_2013skca110.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 292 Date: 2010 08 13 Docket: Q.B. No. 416 of 2006 Judicial Centre: Yorkton BETWEEN: HARRY WLASWICH and BIO CANADA INTERNATIONAL INC. Counsel: Cecil M. Ozirny for the plaintiff Larry Hanowski for the defendant JUDGMENT MILLS J. August 13, 2010 INTRODUCTION [1] The plaintiff, certified organic farmer, sold organic oats to the defendant who in turn sold the oats through broker in Ontario to the ultimate destination being miller in Germany. The German miller rejected some of the oats as having a high moisture content, the miller refused to pay the defendant, and the defendant refused to pay the farmer. ISSUE [2] Did the plaintiff fulfill his contractual obligations to the defendant, and thus entitled to full payment of the contractual price? BACKGROUND FACTS [3] The plaintiff (Wlaswich) is an organic farmer from the Kamsack region of Saskatchewan. At the time of entering into this contract, he had the necessary certificates of conformity required to be certified organic farmer in Canada, the United States and Europe. In 2005, Wlaswich was phoned by Larry Hanowski (Hanowski), an owner/manager of the defendant Bio Canada. Any reference to Hanowski in this judgment is reflection of the operating mind of Bio Canada. Hanowski had the real and apparent authority to enter into contracts on behalf of Bio Canada. Hanowski represented Bio Canada at the trial. In 2005, contract between Bio Canada and Wlaswich was completed for the sale of 800 bushels of organic flax. That transaction was concluded successfully. In 2006, Hanowski phoned Wlaswich about sourcing organic oats. Wlaswich had approximately 23,000 bushels, however he had committed some of those oats to another buyer, Sunrise Foods International Inc. (“Sunrise”). [4] Bio Canada wanted sample of Wlaswich’s oats which was forwarded by Wlaswich to Bio Canada for inspection and approval, prior to entering into the contract. [5] Bio Canada and Wlaswich entered into contract dated June 24, 2006 that provided the sale by Wlaswich of approximately 23,000 bushels of No. milling oats with moisture content between 12.5% and 14.5% with no insects. Wlaswich was to be paid 30 days from shipment of the oats. [6] Bio Canada wanted the oats right away and Wlaswich started hauling on June 26, 2006. He hauled according to the instructions of Bio Canada and completed the hauling of the last load on July 4, 2006. In total, he hauled 18,132 bushels of oats. Bio Canada was prepared for delivery of less than the contract amount given the conversation between it and Wlaswich regarding the previous sale to Sunrise. [7] find that Bio Canada in its verbal representations was satisfied with the delivery of 18,132 bushels of oats as full satisfaction of Wlaswich’s obligation to deliver the quantity as set out in the contract. Indeed at trial Bio-Canada confirmed this was the case. [8] No other terms of the contract were changed by the delivery of less than the contract amount of the oats. Bio Canada was still prepared to pay the unit amount contracted for and Wlaswich was still obligated to provide the quality as required by the contract. [9] Wlaswich described in great detail the process of testing for moisture and the record keeping in relation to the oats. Wlaswich combined the oats with an 8680 Massey with moisture tester. He stated that he did not start combining until the oats tested moisture level of 14% or less. Mr. Wlaswich says that no testing of the oats showed moisture content of over 13.5%. The oats were eventually stored in large concrete floor quonset. [10] Wlaswich described his procedure for hauling the oats as follows. He checked each delivery truck to make sure that it was clean and checked that each truck had tarps to cover what was being hauled to protect it from rain. sample of the oats hauled into each truck was taken. grain vac was used to load each truck and as the oats were loaded into each truck, one-gallon ice cream pail of oats was taken. The ice cream pail was filled with long-handled scoop and it took 15 scoops to fill the pail. Each pail was marked with the number of the load, the date of the load, and then was taken for testing for weight and moisture. [11] He used his own tester and on occasion, calibrated it against the moisture tester from the local elevator. He states that his tester was only off at the most by one half point of moisture, compared to the elevator’s. [12] Wlaswich testified that in the past he had never had problem with any of his grain heating from excess moisture and if an issue with high moisture came in any of his grain, he used aeration to bring the moisture levels down. Wlaswich stated that the oats which were delivered to Sunrise came from the same crop and storage facility as the oats delivered to Bio Canada and did not have any moisture issues. [13] On July 19, 2006, Bio Canada faxed statement to Wlaswich indicating delivery of 18,132 bushels less one percent dockage as provided for in the contract, leaving net bushel number of 17,951 available for shipping. The amount owed to Wlaswich for this amount of oats was $61,033.40. [14] Cross-examination of Wlaswich only served to confirm that Wlaswich had done careful and thorough job of harvesting and storing his oats, paying attention to the moisture levels, and that when the oats were delivered to Bio Canada, they met the moisture requirements of the contract. [15] Wlaswich was aware that Bio Canada was reselling his oats. Wlaswich was unaware as to the eventual destination of the oats and the name of the buyer. Wlaswich was not given any details of the terms of the contract with the German miller and did not know the quantity of oats that was to be delivered in total, the quality requirements and the price to be paid to Bio Canada. [16] Hanowski testified that he used an Ontario broker named Caroll Wehrmann to sell the oats. Mr. Wehrmann arranged the sale and had taken the original oat sample from Wlaswich and forwarded it to the German miller for approval. The sample provided by Wlaswich was good product and met the specifications required by Bio Canada for its eventual buyer, the German miller. Hanowski made it very clear that during the delivery of the oats by Wlaswich, that the product appeared to satisfy the requirements of the contract. The flow of the oats was good, which indicated to him that there was not moisture problem. In fact there was no indication at the time of delivery that there was any problem whatsoever with the oats. Bio Canada at the time of delivery had no complaint with the weight of the oats and had no complaint with the moisture content. The oats did not require cleaning and in Hanowski’s opinion, did not require drying. Hanowski called Wlaswich and told him that the oats looked good. It had appeared that it satisfied the contract in all respects. [17] At the trial in the course of his testimony, Hanowski raised concern about the temperature of the oats. He indicated that when the oats were delivered they were cold, and although that was not concern with him and temperature requirement was not contained in the contract, he believed that as the oats warmed up in the containers, that the moisture appeared and caused the spoiling. He believed that the oats would warm up over time and it could have been days before heating showed up. [18] Bio Canada was responsible for loading and shipping the international containers. Containers were shipped from Melville, Saskatchewan to Rotterdam after being sealed in Melville. [19] The broker, Mr. Wehrmann, testified that there were 100 containers of oats that were shipped to this miller and sourced from two suppliers, one being Bio Canada. There obviously was contractual arrangement between Bio Canada and Mr. Wehrmann and contractual arrangement between Mr. Wehrmann and the German miller. No terms of either of these contracts are entered into evidence. [20] Mr. Wehrmann indicated that the miller advised him that the quality assessment showed there was musty smell in five containers and they were rejected. The documentation and lot numbers provided for the five containers were identified as containing oats from Wlaswich. Mr. Wehrmann testified that Bio Canada was not paid for the oats. [21] Mr. Wehrmann testified that Bio Canada left him with the impression that there was no moisture problem with the oats at the time of loading. There was no requirement on Bio Canada to inspect the oats at the time of shipping, however Mr. Wehrmann wanted Bio Canada to do proper sampling and retain the samples in the event of quality issue. Mr. Wehrmann was not aware if any samples were properly taken and kept. [22] The evidence relating to the assessment in Germany and the rejection by the German miller of the oats is not properly before me. There was no evidence called directly from the German miller. He/she did not testify and no business records were introduced through Mr. Wehrmann or Bio Canada that explained the miller’s position. [23] Mr. Wehrmann, who was fluent in German, had photocopies of documents from the miller and quality assurance people in Germany apparently indicating the problems associated with the oats. Those documents were in German. They were not business records of any of the parties before the court. Bio Canada attempted to introduce them as proof of the rejection of Wlaswich’s oats. do not accept them as such. The documents were clearly third-party hearsay documents that were being produced for the truth of their contents. They were not admissible on that basis. Secondly, they were not admissible as they were not in their original form nor were they translated into the language used by the court. Bio Canada wished to have Mr. Wehrmann interpret the documents for the benefit of the court. He however was an interested party in the whole transaction and no evidence was led that he had sufficient skill with respect to knowledge and use of the German language to allow proper interpretation of the documents. [24] For those reasons, the documents submitted by Bio Canada, purportedly copies of the German documentation, were not admitted into evidence. [25] As will be seen from my decision however, that issue is of little relevance in coming to my final conclusion. [26] On September 26, 2006, Bio Canada paid Wlaswich $10,000 of the total amount owing under the contract. No further payment has been made. [27] Bio Canada did not explain how they came to pay Wlaswich the $10,000. There was no indication of the number of bushels of oats supplied by Wlaswich that were allegedly unacceptable. THE POSITION OF THE PLAINTIFF [28] Wlaswich states that he has complied with his contractual obligations. He was required to provide certain amount of oats with certain quality standard. He states that he has done so. [29] Wlaswich points to the acceptance by Bio Canada of the oats delivered without any complaint. Wlaswich has only been paid $10,000 out of the $61,000 owing and wishes to be paid the balance under the contract along with pre-judgment interest and costs. THE POSITION OF THE DEFENDANT [30] Bio Canada acknowledges that it appeared that the oats delivered were in accordance with the contract at the time of delivery. Bio Canada states that the contractual obligation of Wlaswich was to provide it with oats that met the representative sample initially provided. The sample oats were dry. It bought what was in the sample, not the mouldy, spoiling, high-moisture oats that the German miller eventually received. Bio Canada believed that the quality decision is made by the miller, and since the miller received wet oats, Wlaswich did not comply with the contract. [31] This position was essentially stated in letter from Bio Canada dated August 16, 2006 to Wlaswich’s attorney. [32] Bio Canada wanted Wlaswich to make claim under his insurance policy for the loss sustained by Bio Canada. Wlaswich refused. As result thereof, Bio Canada attempted to claim from its insurer and sent letter on December 28, 2006 to Co-operators Insurance explaining the issue as they saw it in relation to the oats’ shipment. The letter was an admission to its insurance company that although they had done testing of the oats for moisture content as delivered by Wlaswich, that its testing procedures were not in accordance with the Canadian Grain Commission sampling procedures, and as result were not verifiable. [33] assume that the Canadian Grain Commission requirements had to do with the contract between the miller and Bio Canada. There certainly was no requirement for such testing in the contract between Bio Canada and Wlaswich. The requirement was for oats of certain moisture level. Although the Canadian Grain Commission requirements may be method of determining the appropriate moisture level, certainly those methods are not the only fashion in which the moisture content could be proven. [34] The testimony before the court has established that the contract as described above was validly entered into between Wlaswich and Bio Canada. According to Wlaswich and Bio Canada at the time of delivery of the oats, the quality requirements of the contract had been met. There were no concerns expressed whatsoever by Bio Canada that there was any problem with the oats delivered by Wlaswich. Bio Canada’s position was that it was the farmer’s responsibility to do testing to ensure that the oats complied with the contract. If that is true statement of the contract, it in fact was met by the procedures adopted by Wlaswich. Practically, one would also think that Bio Canada would ensure that the terms of the contract were met before paying. Bio Canada’s testing and observations at the time of delivery disclosed that the contract had been fulfilled with respect to quality. [35] The only potential evidence pointing to Wlaswich not fulfilling his contract is the information that was led relating to the German miller’s rejection of some of the oats, none of that evidence is properly before the court. identified earlier that the evidence was hearsay and unreliable. Bio Canada has not established to my satisfaction that Wlaswich’s oats were rejected by the German miller, more importantly it has not established that Wlaswich’s oats did not comply with the contract. [36] Bio Canada’s legal position was that the German miller was to make the final decision with respect to the acceptable quality of the oats. Bio Canada wished to transfer the shipping acceptance risk on its contract with the German miller to Wlaswich. There was nothing in the contract with Wlaswich that allowed Bio Canada to do so. There was nothing in the contract with Wlaswich in which he was to continue to accept risk of non-acceptance or non-payment from any third party. The contract was simple one. It was for the delivery of oats of certain quality to Bio Canada. After that point in time, the resale of the oats to the German miller was the responsibility of Bio Canada. That included loading and shipping the containers. Bio Canada did not lead any evidence that the oat samples that they took from Wlaswich’s shipments were tested and not found to comply with the contract. There was no evidence that Bio Canada tested the retention samples that they had originally taken and found problem subsequent to the delivery of the oats to the German miller. [37] Bio Canada is attempting to put the onus of the delivery of the oats in acceptable condition to the German miller upon Wlaswich even though Wlaswich is not a party to that contractual obligation which was incurred solely by Bio Canada. It is clear in Canada that no one but the parties to contract can be bound by it. [See Greenwood Shopping Plaza Ltd. v. Beattie, 1980 CanLII 202 (SCC), [1980] S.C.R. 228]. Whatever obligations Bio Canada had to the German miller were not transferred to Wlaswich in any contract. [38] Despite Bio Canada’s attempt to place the contractual risk between itself and the German miller on Wlaswich, it has failed to do so. This is simple matter of contract. There is no contractual obligation entered into by Wlaswich that puts that risk on him. His obligation was to deliver oats of certain quality to Bio Canada. On the evidence he has complied with that obligation. There is nothing further required of him in order to be paid the money owed. CONCLUSION [39] Wlaswich has proven that he has satisfied his contractual obligations to Bio Canada resulting in an obligation by it to pay $61,608 to him to satisfy the contract. The sum of $10,000 was paid on September 26, 2008. No further amount has been paid, leaving $51,608 owing. [40] The plaintiff shall have judgment against the defendant in the sum of $51,608. The plaintiff has claimed pre-judgment interest. There is no legal reason why Bio Canada should not have made payment of the entire sum owing to Wlaswich. He is entitled to pre-judgment interest on the sum of $51,608 from the 26th day of September, 2006 until the date of judgment. [41] The plaintiff seeks costs of the action. He shall be entitled to those costs to be taxed on a party-party basis under Schedule I “B”, Column 3 of the Tariff of Costs.

The plaintiff entered into a contract with the defendant for the sale of organic oats. The contract between the plaintiff and defendant stipulated that the oats were to be delivered at a stipulated moisture content. The defendant accepted the oats from the plaintiff and did not indicate any issue with the moisture content. In turn, the defendant sold the oats to a broker for shipment to Germany. When the oats arrived overseas, the German buyer rejected the oats saying they had heated and did not meet his required moisture content. The defendant refused to pay the plaintiff the amount owing under the contract and argued the plaintiff had failed to meet his contractual obligation. HELD: The contract was between the plaintiff and defendant. The defendant accepted delivery of the oats from the plaintiff and did not object to their quality. The evidence before the Court was that the defendant had no complaint with the moisture content of the oats at the time of delivery by the plaintiff. There was nothing in the contract between the plaintiff and defendant that allowed the defendant to transfer the shipping acceptance risk to the plaintiff. The resale of the oats to Germany was the defendant's responsibility and the plaintiff is not a party to the contact with the German company. The plaintiff was awarded the balance of the contract price, plus pre-judgment interests and costs.

2010skqb292.txt

S.C.A. No. 02430 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Freeman, Hart, JJ.A., and Nunn J. BETWEEN: DONALD FRANK RIPLEY and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA respondents W. Dale Dunlop and W. Ray Wortman for appellant A. David MacAdam, Q.C., Robert L. Barnes, M.M. Fox and Alan J. Stern, Q.C., for respondents Appeal Heard: September 26, 1991 Judgment Delivered: November 18, 1991 THE COURT: Appeal dismissed from judgment of Madam Justice Roscoe refusing certiorari or other relief on review of decision of disciplinary tribunal of Investment Dealers Association per reasons for judgment of Freeman, J.A.; concurred in by Hart, J.A., and Nunn, J. FREEMAN, J.A.: This is an appeal from refusal of certiorari and other relief by Madam Justice E.A. Roscoe following findings by a disciplinary panel that the appellant had broken rules by which the investment dealers\' profession regulates itself. The appellant is Donald F. Ripley, who at material times was the regional manager, vice‑president and director of McLeod Young Weir, investment dealers. He was found guilty of four of six charges at lengthy discipline hearing conducted by panel of the Eastern Business Conduct Committee of the Investment Dealers Association of Canada. He was suspended for two years, fined $50,000 and ordered to pay costs of $65,000. The charges involved disclosure of information about the blind trust of federal cabinet minister; taking part and permitting employees to take part in "side deals"‑‑trades in securities not approved by his head office; failing to ensure proper records were kept of the side deals; and failing to properly supervise an employee who was involved in side deals. Two other charges, numbered (i) and (iii), were dismissed on grounds that they fell within the responsibilities of the branch manager. He was found guilty on the following charges: That the respondent, at the City of Halifax in the Province of Nova Scotia, being Director and Officer of member of the Investment Dealers Association of Canada: (ii) from time to time during the period from June 12 to June 22, 1987, inclusive, disclosed and participated in the disclosure by others of information relating to the accounts of former client of the Member in manner unbecoming director and officer and did thereby commit an offence contrary to By‑Law 7.5©) (iv) during the period from October 1981 to July 1986, inclusive, from time to time participated in, and permitted certain officers, registered representatives and non‑trading employees in the office for which he was responsible to participate in, for remuneration, trading in securities issued by: Crockett McConnell Inc., IAS (1983) Limited Partnership, IAS (1984) Limited Partnership, KB Electronics Limited, Nova Scotia Hospitality (1986) Limited Partnership, Nova Scotia Hospitality (1985) Limited Partnership, One Oak Street Limited Partnership, Scotia Liquicoal Limited Research and Development, Tenwolde Brothers Company Limited, M.U.R.B. Skyline Apartments and Waterfront Place Limited Partnership, ostensibly on behalf of and in the name of the Member in manner unbecoming director and officer of the Member, and did thereby commit an offence contrary to By‑law 7.5©); (v) during the period from October, 1981 to July 1986, inclusive, the Respondent permitted certain officers, registered representatives and non‑training employees in the office for which he was responsible, to effect trades from time to time in the securities referred to in paragraph (iv) hereof without recording such transactions on the books of the member or sending to the purchasers confirmations in respect of, or monthly statements disclosing, such trades in accordance with Regulation 200, and did thereby commit an offence contrary to By‑Law 7.5(c); [and] (vi) during the period from October, 1981 to July 1986 inclusive, the respondent failed to ensure that Mr. Eric C. Hicks, registered representative of the member, was not engaged in gainful occupation other than his employment with the member without: (a) being specifically permitted to do so by the authorities administering the securities legislation of the Province of Nova Scotia; (b) the Member acknowledging its responsibility in writing to the Association for supervision of Mr. Hicks; and (c) the annual approval of the Atlantic District Council of the Association with respect to such occupation, contrary to By‑Law 18.4, and did thereby commit an offence contrary to By‑Law 7.5(c). He was found not guilty of the following: (i) during the period from the 25th day of November, 1985, to February 17, 1987, inclusive, failed to ensure that an account for client, being trust in favour of the Honourable Stewart McInnes, was opened and supervised in accordance with Regulation 1300.2, and did thereby commit an offence contrary to By‑Law 7.5 (c); [and] (iii) during the period from the 25th day of November, 1985, to February 17, 1987, inclusive, permitted trades to be effected by registered representative in the branch office for which the Respondent was responsible in discretionary account for the Honourable Stewart McInnes, without the authorization of the client being accepted by the member or approved in accordance with Regulation 1300.15 (in effect prior to September, 1986 or Regulation 1300.4 in effect thereafter) and did thereby commit an offence contrary to By‑law 7.5 (c). In his vigorous counter attack Mr. Ripley has denied the involvement alleged in the first charge and asserted that he is not the officer who should be held responsible on the remaining three. Much of his argument has been directed at the process by which he was found guilty. Respecting charge (ii), the panel made the following findings of credibility: We accept the evidence of Heather MacDonnell, Susan Kilbride and Lee Harwood, where such evidence is in conflict with Donald Ripley's evidence concerning Mr. Ripley's direct role in releasing information on the account of Stewart Maclnnes in May and June of 1987. We further accept the evidence of Frank and Kathy Nichols and Cynthia Hallett where their testimony conflicts with that of Mr. Ripley. That finding is well within the duty and jurisdiction of disciplinary board. It is devastating to Mr. Ripley's defence to charge (ii). Ms. MacDonnell, Ms. Kilbride and Mr. Harwood told of preparing and sending documents relating to the McInnes account to Sheila Copps, Liberal Member of Parliament, under Mr. Ripley's direction and with his active involvement. Mr. Harwood described numerous telephone conversations he had had with Ms. Copps at Mr. Ripley's request, reporting on their contents to Mr. Ripley. He passed documents to the press on Mr. Ripley's instructions. When the McInnes account became the centre of storm in the media, it was Mr. Harwood who informed the MacLeod Young Weir head office of what had been going on. Mr. Nichols was the MacLeod Young weir manager at Kentville, Nova Scotia. He and Mrs. Nichols and Cynthia Hallett testified to conversations with Mr. Ripley in which he predicted the media coverage of the McInnes account. In addition, Mr. and Mrs. Nichols told of Mr. Ripley leaving back‑dated letter with Mr. Nichols for him to produce as evidence in Mr. Ripley's favour. Back‑dated memoranda casting favorable light on Mr. Ripley's activities featured prominently in the hearings; they had not been received by their addressees but turned up in files, sometimes files which had been previously searched. Many of the memoranda authored by Mr. Ripley were harshly critical of Ross Montgomery, former employee of MacLeod Young Weir and the investment executive in charge of the McInnes account. The McInnes account was transferred from McLeod Young Weir to Mr. Montgomery's new firm when he left. Much testimony, as well, suggested that Mr. Ripley's obsessive hostility to Mr. Montgomery motivated him to disclose information which he hoped would be damaging to Mr. Montgomery. Once the panel made its finding as to credibility, virtually precluding any further defence on the merits, the only substantial defence option left to Mr. Ripley on charge (ii) was to impugn the disciplinary process. His basic defence on the three remaining charges involving side deals was not outright denial but attempts to downplay and justify them and spread the responsibility. The securities issues central to the charges were marketed principally by the Halifax office of MacLeod Young Weir with some involvement by other offices in the region under Mr. Ripley's supervision. They had passed statutory requirements, but Mr. Ripley was not authorized to approve them as securities to be offered to the public by McLeod Young Weir. That approval required head office scrutiny in which whey were subjected to "due diligence" procedure and otherwise examined to ensure they represented investments which could be offered to the public backed by the name of reputable brokerage house. They were nevertheless advertised by the Halifax office in the MacLeod Young Weir name, and some of the Halifax investment executives actively sold them. In describing the seriousness of this kind of activity the panel stated: ". Once firm decides to endorse specific investment the dealer is essentially putting his reputation on the line. An investment dealer has the followng objectives in mind when it analyzes proposed financing: (i) to evaluate the financial and business risks of the investment; (ii) to ensure that the proposed pricing is fair and compensates for the degree of risk involved; (iii) to determine the suitable type of investor for the proposed financing: and (iv) finally, to undertake "due diligence" process, which essentially is an investigation to ensure that the offering documents provide "full, true and plain" disclosure of all the pertinent facts necessary to the potential investor to make proper evaluation of the merits and suitability of the proposed investment. Via his involvement in these dealings and via his awareness of the involvement of many other employees of McLeod Young Weir Limited in similar dealings, which he often encouraged, Mr. Ripley was effectively conducting business within business for his personal profit. Consequently, he was defrauding his employer. Mr. Ripley may have been providing grave disservice to clients of McLeod Young Weir Limited by promoting securities that had not been properly vetted by personnel of McLeod Young Weir Limited who were trained and experienced The clients believed that the securities had been examined and approved by McLeod Young Weir Limited, based on their financial and business merit and their suitability as investments." The appellant has objected to the last sentence on grounds that investors were not called and there was no evidence of what they believed. Obviously, the panel was stating what investors were entitled to believe rather than making literal finding as to what they actually believed. The panel made the findings of fact, for which there was ample evidence, necessary to support its finding that Mr. Ripley was guilty on charge (iv) of conduct unbecoming senior officer of an investment house. In finding Mr. Ripley guilty on charge (v), failing to keep proper records of the transactions in question, the panel stated: "It is the panel's opinion that all financial transactions executed for client must be recorded on the books of the Member. Regulation 200 is very clear in this respect. It appears, however, that these security transactions were not recorded on McLeod Young Weir Limited books or client statements in order to deliberately conceal the transactions from head office. Therefore, it was consistent not to have any telltale signs of these wrongdoings recorded in the firm's books or the client accounts." On charge (vi) the panel noted that supervising salesmen was primarily the function of the branch manager, but in view of the fact that Donald Ripley was the undisputed "Boss" of the Atlantic region, that he had strong personality and that he had hands-on style of management, it is inconceiveable to us that he could not have corrected decisively and quickly situations of non-compliance, such as Eric Hicks' involvemment with outside deals, had he intended to do so. The Investment Dealers Association (IDA), as explained at some length in the appellant's factum, is an unincorporated association which oversees the investment and brokerage business in Canada, serving as the professional organization of, and regulating, member brokerage houses and their employees. It is not specifically empowered under any statute, although its existence is recognized in some securities legislation. It has its own constitution, by-laws and regulations to which its members bind themselves by contract to comply. The IDA establishes requirements for capitalization, procedures for purchase, sale and registration of securities for clients, audit procedures and other matters that govern the internal and external operations of national and local investment firms. The IDA also sets standards of qualifications for, and for the discipline of, persons engaged in the industry. Its authority does not extend to regulating the actual issuance of securities: that is vested in provincial securities commissions and the various stock exchanges sold. The sale of securities is regulated by statute in all Provinces. It is the persons and the firms who sell the securities that are regulated by the IDA. The nature of associations such as the IDA was considered by the Supreme Court of Canada in the case of Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), D.L.R. (2d) 273: "In the absence of incorporation or other form of legal recognition of group of persons as having legal capacity in varying degrees to act as separate entity and in the corporate or other name to acquire rights, incur liabilities, to sue and be sued, the group is classified as volunteer association. There are many varieties of this class ranging from business partnerships, labour unions, professional, fraternal and religious societies to social clubs. ." (page 278) Principles governing the relationship among the various members of voluntary organizations such as the IDA were considered in Stephen v. Stewart, [1944] D.L.R. (305) where MacDonald, C.J.B.C. said in the British Columbia Court of Appeal: "A volunteer organization, having no legal entity, has its most familiar form as members club. Decisions on such clubs show that the relation of members to each other is purely contractual, the contract being found in the constitutional rules which they adopt." (page 311) It was acknowledged that the appellant had agreed to bind himself to the by‑laws, rules and regulations of the IDA and made himself responsible for knowing their contents. IDA approval is required at various career stages beginning with securities salesman, or registered representative, and Mr. Ripley had in fact signed similar undertakings several times occasioned by his promotions. After he was found guilty of violations Mr. Ripley sought relief in the nature of certiorari, attacking the constitution and jurisdiction of the board and claiming it had failed to observe the rules of natural justice. In addition to an order quashing the panel's decision he sought an order in the nature of prohibition restraining further proceedings against him, declaration that the panel had no jurisdiction over him, declaration that the panel's decision was void for patent unreasonableness, denial of natural justice, excessive jurisdiction and reviewable error in law and further, declaration that the IDA proceeded against the appellant in bad faith. When his application was dismissed by Madam Justice Roscoe he alleged nine errors of law in his notice of appeal. Apparently these were incorporated into the following points in issue, which were the issues set out in the appellant's factum: 19. Were there any jurisdictional errors made that would deprive the Investment Dealers Association of the right to hold hearing with respect to Donald Frank Ripley? (i) Constitution of the Eastern Business Conduct Comittee Panel; (ii) Inapplicability of some of the charges; 20. Was there legal bias in the proceedings conducted against the appellant? 21. Were the rules of natural justice adhered to with respect to the appellant in the following areas: (i) The investigative process; (ii) Pre‑hearing disclosure and fairness; (iii) Rulings and decisions made during the course of the hearing; (iv) The decision; (v) Matters applicable to the penalty; 22. What remedies does the appellant have available to him?(i) Declaratory relief; (ii) The Charter of Rights Before considering appellant's complaints against the IDA and the panel, it may be useful to consider the available remedies to which they are directed. The appellant dealt with declaratory relief in his factum as follows: "Before Madam Justice Roscoe an argument was put forward that she had the power to issue prerogative writ including certiorari. The appellant now concedes that relief of this nature is not available. However, at the very minimum this honourable court possesses the power to provide declaratory relief. This power is not only inherent, but contained expressly in the civil procedure rules. The appellant is asking for the reasons of excess of jurisdiction, bias and breach of the rules of natural justice that the decision of the panel be declared null and void." This is essentially correct statement of the law. Madam Justice Roscoe found that certiorari for error of law on the face of the record was not available because the Business Conduct Committee panel was non-statutory tribunal, but that it was open to her to review the panel's proceedings for want of jurisdiction or breach of natural justice. She relied on Chyz v. Appraisal Institute of Canada (1985), 44 Sask R.165 in which the Saskatehewan Court of Appeal was considering the finding of the trial judge that "certiorari and prohibition, generally speaking, will not lie against private body which derives its jurisdiction from the consent of its members banded together in voluntary organization." After comprehensive review of the case law Tallis, J.A. found that "domestic tribunals (are) subject to the principles of natural justice and procedural fairness." Remedies included declaratory or injunctive relief. As quoted in Administrative Law and Practice, Second Edition, Reid David, at 367, Laskin, J. stated in Association of Radio and T.V. Employees v. C.B.C., 1973 CanLII 182 (SCC), [1975] S.C.R. 118 at p. 137 that "The effect of what was said [in the influential case of Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85] is to deny homage to technicallty, and to make it clear that where the proceedings to review decision of board of arbitration are by way of motion to quash or to set aside the award, dispensing with the issue of writ of certiorari, it matters not whether the board is or is not statutory tribunal in any strict sense." In R. v. Board of Arbitration, Ex parte Cumberland Railway Co. (1968), 67 D.L.R. (2d) McKinnon J.A., then of this court found an arbitration board to be private board set up by the parties themselves. It was not statutory body, and certiorari did not lie. He nevertheless found there had been legal misconduct on the part of the chairman and set aside the award. While prerogative writs do not lie against the panel as domestic tribunal, its proceedings are reviewable for want of jurisdiction or breaches of natural justice, which would include bias, as Madam Justice Roscoe found. The remedy, as in Saskatchewan, would be declaratory or injunctive relief. In asserting a right to relief under the Charter the appellant did not contend that sections 7 and 11 of the Charter create any new rights not already available as rules of natural justice, but rather seeks the remedies available under s. 24(1) of the Charter. He reviewed Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Limited, 1986 CanLII (SCC), [1986] S.C.R. 573, which established that the Charter regulates the relations between government and private persons, but does not regulate the relations between private persons and private persons. The appellant argues that the IDA is involved in public activity and engaged in government action pursuant to the Securities Act, in which the IDA is recognized, and cannot therefore be considered private person. Madam Justice Roscoe considered the appellant's right to Charter relief and concluded: "The respondent submits that recognition of the IDA in the Securities Act does not transform it into government actor to which the Charter applies, and relies on Harrison v. The University British Columbia,1988 CanLII 183 (BC CA), [1988] W.W.R. 688 (B.C.C.A.) and McKinney v. University of Guelph (1987), 1987 CanLII 179 (ON CA), 63 O.R. (2d) (O.C.A.) where the 'government control' and 'government function' tests were developed. Neither of those tests would, in my view, extend the operation of the Charter to the activities of the I.D.A. The respondent also refers to several cases where the applicability of the Charter to self‑governing bodies was discussed, including the Chyz and Peg‑Win cases, supra. agree with the respondent's submission that the courts have consistently applied the Charter to statutorily mandated professional associations, but not to voluntary private associations even when they are statutorily recognized. As indicated, when dealing with the question as to whether certiorari would lie, find there is no government control or government function being exercised by the IDA, and since its powers are derived from contract, the Charter is not applicable to its actions." On the appeal the appellant relied heavily on Roger R. Wigglesworth v. Her Majesty the Queen (1988), 1987 CanLII 41 (SCC), 45 D.L.R. (4th) 235 (S.C.C.), in which Madame Justice Wilson developed the "true penal consequences" test which would make Charter relief available when "a fine by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity." The IDA by‑laws give it the power to impose fines up to $100,000. While that amount is substantial, it must be borne in mind that the IDA's purpose is to regulate profession in which breaches of rules relating to the sale of securities can result in gains of great magnitude. Without that power to fine the IDA would be hampered in imposing discipline upon its members. It may be inferred that members of the securities industry contract to regulate themselves because it is to their advantage to do so. An obvious benefit is the avoidance of the need for government regulation in field where the need for protection of the public might otherwise attract it. party to such contract cannot have it both ways; if he enjoys benefits from contract which excludes government intervention from his profession, he cannot claim Charter protection when he is accused of breaching the conditions of his contract. There was no error of law on Madam Justice Roscoe\'s part in finding that the Charter has no application in the present case. Therefore the appellant will succeed on this appeal if, and only if, the record shows Madam Justice Roscoe committed reversible error in failing to determine that the disciplinary panel exceeded its jurisdiction or breached the rules of natural justice, which include bias. The appellants points will be considered in sequence. CONSTITUTION OF THE PANEL By-law 11.23 of the IDA requires that panel of the Eastern Business Conduct Committee have at least three members at least one of whom resides outside the district. Members residing in the district were ,canvassed and for variety of reasons none could serve. All of the members of the panel hearing the charges against Mr. Ripley came from Quebec or Ontario. The appellant now submits that "the lack of Atlantic District representation on the panel made the composition of that panel ultra vires and thus it lacked jurisdiction to hear the charge against him." He asserts that "the reason why local representation is important, other than being judged by one's peers, is to ensure that local standards and practices are understood by the panel." By‑law 11.23 contemplates but does not require representation from within the district of the person charged. Whatever may be the meri‑t of the appellant's argument, it is not sufficient to deprive the panel of jurisdiction. Nor can support be found for his contention that the IDA acted in bad faith in determining the membership of the panel. It was established consistently with its by‑laws, by which Mr. Ripley had agreed to be bound. Many representatives from this district who declined to serve did so to avoid the appearance of interest or bias‑‑which is the contrary of bad faith. Madam Justice Roscoe found it had been open to Mr. Ripley to call evidence‑‑and would agree with her that the burden was on him‑‑of local standards and procedures. No such evidence was called. would dismiss the appellant's first point relating to the constitution of the panel. INAPPLICABILITY OF SOME OF THE CHARGES do not agree with the appellant's allegations that the IDA acted unreasonably and in bad faith in charging him with infractions in charges (i) and (iii) that were "clearly not his responsibility." It was open to the IDA to lay the charges, and Mr. Ripley can hardly complain when the panel found him not guilty. The appellant contends that charges (iv), (v) and (vi) did not disclose specific wrongdoing. These charged him with three specific breaches of by‑law (c) which establishes disciplinary jurisdiction for engaging in any business conduct or practice 'which is unbecoming to partner, director or officer or which is detrimental to the public interest. As senior official of MacLeod Young Weir with many years of experience in the securities business the appellant was as aware as any member of the panel of what would constitute unbecoming conduct. The evidence, including the memoranda Mr. Ripley authored, makes it clear he fully appreciated the concept. If he did not, he had bound himself contractually to find out. In Morton v. Registered Nurses Association (1989), 92 N.S.R. (2d) 154 Nathanson, J. reviewed the case law and stated: "Implicit in the concept of profession is the existence of standards which are benchmarks for the practice of the professional. The standards may be written or unwritten." In dismissing the appellant's arguments on this point would agree with Madam Justice Roscoe: "Even if the Board's findings were wrong, since this is not an appeal, and since the interpretation and application of the regulation and the by‑law was within their jurisdiction, the court should not interfere with their decision. Certainly their interpretation could not be considered to be patently unreasonable, under the circumstances." LEGAL BIAS The appellant's submission is that ". the ability of the IDA to act and be seen to act impartially in investigating, prosecuting and adjudicating the complaints against the Appellant was coloured by the statements and representations of IDA officials and their close association with McLeod." He relies on "the Marshall Crowe case", Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII (SCC), N.R. 115 (S.C.C.) in which Mr. Justice de Grandpré said: "The apprehension of bias must be reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal that test is what would an informed person viewing this matter realistically and practically and having thought the matter through, conclude? The appellant raises number of matters which he alleges give rise to reasonable apprehension of bias: (a) statements made by officials who investigated on behalf of IDA suggesting they considered Mr. Ripley guilty before the hearing, coupled with the fact that they did not interview Sheila Copps who did not believe Mr. Ripley was the source of her information. (b) an uncompleted settlement agreement between IDA and Mr. Ripley in which he accepted responsibility for failure of supervision resulting in the McInnes trust leak, but no direct knowledge of leaked information; it was withdrawn by both sides before receiving required approval by two members of the disciplinary committee after further information became available following an internal investigation by McLeod Young Weir. (c) an alleged "close association" between McLeod and the IDA; McLeod was offered, and declined, the right to cross‑examine during the hearing, which the appellant argued would have faced him with two prosecutors, one able to cross examine. He contends: "the IDA appeared to act as an advocate of McLeod and, as such, its prosecution is tainted with the appearance of impartiality." The appellant relied primarily on Re McGavin Toastmaster Ltd. and Powlowski (1973), 1973 CanLII 1330 (MB CA), 37 DLR (3d) 100 and McBain v. Canada Human Rights Commission (1985), 1985 CanLII 3160 (FCA), 62 N.R. 117 (F.C.A.). In McGavin The Manitoba Human Rights Commission investigated company accused of discrimination against two employees. It wrote the employer stating that after "a full review of these cases" the Commission had resolved that certain undertakings by the company, including reinstatement and payment of back wages, be given in settlement. When the company objected, the commission held board of inquiry, which confirmed the previous conclusions, and reported to the Attorney General, who issued an order demanding the same compliance the Commission had. The appeal court upheld certiorari order because the applicant company "was exposed to an inquiry which fell below the standards of objective impartiality and adherence to natural justice which the law demands and to which they are entitled. justice demanded consummate care on their part in the procedures to be followed in disposing of the complaints." In McBain complaint of sexual harrassment in the workplace was investigated by an investigator appointed by the Human Rights Commission who reported back that the complaint was "substantiated." The Commission appointed human rights tribunal and acted as prosecutor of the complaint before the tribunal. The tribunal also found the complaint "substantiated." The Commmission ordered McBain to pay compensation. He appealed. The Federal Court of appeal found there was reasonable apprehension of bias in the commission appointing the tribunal to judge cause in which the commission was prosecutor. "Substantiated" meant the same in both the section of the statute providing for the investigator and the section and related to the Tribunal. The court applied the "consummate care" test from McGavin and found it had not been met. Neither had the Crowe test been met. McBain must be considered closely, because of obvious similarities to the present case: the IDA played role equivalent to that of Human Rights Commission in McBain, causing an investigation, appointing the tribunal and providing the prosecutor. Any professional organization which conducts its own disciplinary hearings must follow similar pattern. The distinguishing feature in the ratio of McBain is that under the relevant statute the tribunal was hearing evidence on question already determined by the investigator: that the complaint was "substantiated." In arriving at the same finding the tribunal could not avoid the appearance of rubber‑stamping the conclusion of the investigator, giving rise to an apprehension of bias. In the circumstances of that case the Federal Court of Appeal did add, in obiter, that "It is my opinion that even if the statute only required the Commission to decide whether there was sufficient evidence to warrant the appointment of tribunal, reasonable evidence of bias would still exist." However in distinguishing Re Caccamo and Minister of Manpower and Immigration (1977), 1977 CanLII 1724 (FCA), 16 N.R. 405; 75 DLR (3d) 720 the court stated: "In Caccamo there was no suggestion that the Department had taken the firm position in advance of the inquiry that the allegations against the appellant had been substantiated. The press release simply stated the position that the Department was going to take at the special inquiry. That is quite different situation from the one at bar where the commission, after deciding that the complaint has been substantiated, chooses the part‑time judges who will hear the complaint, and at that hearing takes the position that its earlier decision was correct. Such scheme represents after‑the‑fact justification for decision already made by it and before judges of its own choosing." The appellant argues that the so‑called settlement agreement fixed the IDA with belief in his guilt. Even if that argument is accepted, that belief was limited to the infraction described in the agreement. The subject matter of the agreement was that of the first charge, of which Mr. Ripley was found not guilty by the panel. That argument is without merit. The investigators were officials of the IDA employed to police the profession. Their conclusion was that hearing was warranted on the charges, not that Mr. Ripley was guilty of them. The persons they interviewed and the conclusions they reached privately bear only remotely on the ability of the panel authorized by the IDA to conduct an impartial hearing. There is little in the evidence to suggest complicity between IDA and McLeod. The appellant says the prospect of bias was inherent in the panel's invitation to McLeod to appear, present evidence and cross‑examine witnesses. The respondent points out that the panel was obliged to do so under IDA by‑laws 7.6 and 18.6. McLeod declined to take an active part in the proceedings. The appellant's activities necessarily involved McLeod as the IDA member who employed him, and McLeod was itself charged by the IDA in connection with the same matters. Madam Justice Roscoe considered the McGavin and McBain cases and appeared to accept the respondent's argument that they are distinguishable from the present case because the adjudicators are "clearly distinct and independent from the investigators." She stated: "It should be noted that, by virtue of the I.D.A. by‑laws, the panel that acted as adjudicators was comprised of members of the Eastern Business Conduct Committee, standing committee of the Association. The actual members of that committee, who formed the panel, were chosen by the chairman of the committee. Neither Mr. Clarke, as the investigating officer, nor Mr. Kniewasser, as President (of the IDA), were members of the Eastern Business Conduct Commitee, nor did they have any input into the selection of the Committee, nor were they involved in any of its deliberations. The arguments being made by the applicant, if accepted would, at the most, establish bias on behalf of the investigators, and in the absence of any evidence relating to the three members of the disciplinary panel, who were the decision makers, the fact that all concerned were connected with the IDA, is not sufficient to raise reasonable apprehension of bias." The panel had its own counsel, independent from the counsel engaged by the IDA to prosecute the charges. am satisfied that the process, from inquiry through to the determination of the panel, was handled by the IDA with "consummate care" to preserve "standards of objective impartiality and adherence to natural justice which the law demands and to which (the appellant was) entitled." (See McGavin) am satisfied, as well, that the Crowe test was met: "an informed person‑‑viewing this matter realistically and practically and having thought the matter through"‑‑would conclude there was no reason for apprehending bias. POINT THREE‑‑INVESTIGATIVE PROCESS The appellant has placed much emphasis on the inclusion of charges (i) and (iii), of which the appellant was found not guilty. "For example," he argues, "the decision to lay charges which were totally inapplicable to the appellant can lead not only to loss of jurisdiction, but can also be categorized as an example of bad faith." It is difficult to conclude that the first charge was "totally inapplicable" when the appellant had already admitted his culpability in the settlement agreement. POINT THREE‑‑PRE—HEARING DISCLOSURE AND FAIRNESS The appellant has complained consistently that certain notes and documents he left at McLeod Young Weir were not made available to him, and he has brought separate legal action against McLeod respecting them. Madam Justice Roscoe found that "there is no evidence in this case which indicates that the tribunal or its counsel or counsel for the IDA had any information that was not provided to Mr. Ripley. Given that the IDA did everything in its power to obtain information for Mr. Ripley and given that there was no other evidence that, in fact, any other notes even existed, am unable to find that there has been denial of natural justice or an excess of jurisdiction in relation to this complaint." She made no error of law in so finding. POINT THREE‑‑RULINGS AND DECISIONS Ross Montgomery The IDA refused to call Ross Montgomery, alleged target of Mr. Ripley's hostility, on grounds that he was unreliable and lacking in credibility. The respondent argues that his evidence in any event was only relevant to the dismissed charges, (i) and (iii). The panel had him called as its own witness, making him subject to cross‑examination by both sides. That strikes me as fair solution. Madam Justice Roscoe found it was within the jurisdiction of the panel to do so; there was no evidence of bad faith. The July 21 Meeting The appellant, representatives of McLeod and their counsel met on July 21, 1988, and agreed discussions should remain confidential. reference was made to the Supreme Court of Ontario to determine if disclosure was required. The IDA took the position that both McLeod and the appellant were bound by their undertakings to make full disclosure to the association. McLeod agreed; the appellant did not. The panel ruled that witnesses must answer questions put to them respecting the meeting. Mr. Ripley continued to object to details of the meeting being disclosed. Lacking the power to compel testimony, the panel considered its options in the words of its chairman, Paul Pommier: "The panel maintains its position that it wants to hear the witnesses of the July 21st meeting particularly Mr. Grasmuck and Mr. Taylor who have already testified. Now should Mr. Ripley, through his counsel, maintain his position the panel to date has looked at different alternatives, will continue to look at different alternatives. Presently they would appear to be the following: we could suspend the present hearings and await for the outcome of the decision by the Supreme Court of Ontario, which may settle the matter for us. Now if that decision ‑‑if we did suspend and that decision did not settle the matter for us, we would look at few other alternatives. One would be to continue the present hearings and view very harshly the refusal to waive confidentiality. Or, decide to conclude the meeting and consider immediate suspension and make recommendations to the IDA as to possible other suspensions. We will now go on with the present hearings." It is submitted by the appellant that the chairman's remarks are threats amounting to bad faith by the panel. "Its decision to require disclosure of the substance of the meeting was patently unreasonable and denial of natural justice." The panel was under duty to consider relevant evidence and it had the right to consider its alternatives if evidence it considered potentially relevant was denied to it. Rulings as to the duty of witnesses to answer questions were entirely within the panel's jurisdiction; weighing alternatives in those circumstances was not bad faith. Interference with Cross‑Examination Witnesses who requested that they have their own counsel at the hearing were permitted to do so. The appellant complains, particularly with respect to Lee Harwood, that his testimony or cross‑examination was "repeatedly interrupted by objections from his counsel. The inability to develop line of cross‑examination without fear of objection resulted in severe restriction on the right to cross‑examination." The respondent counted eight objections by Mr. Harwood's counsel, many to ensure he had been shown documents on which he was being questioned, or that he be permitted to complete his answers. There were no questions he was held exempt from answering. This complaint is included among those Madam Justice Roscoe described as having "little or no merit." Cancellation of the Penalty Hearing After the appellant was found guilty on four charges date was set for hearing as to penalty. The appellant did not attend and his counsel produced medical excuses. Counsel for the IDA objected to an adjournment. The panel cancelled the hearing and set date for written submissions. am aware of nothing in the by‑laws, nor in the rules of natural justice, to require oral submissions on penalty rather than written ones. The appellant declined to make written submission. That was his choice; it did not invalidate the process. DECISION‑‑No Evidence The appellant's basis for arguing that the panel lost jurisdiction by deciding matter without evidence is based on the panel's observation that "the clients believed that the securities had been examined and approved by McLeod Young Weir ". have dealt with this above. It is without merit. Failure to Consider Relevant Matters This point relates to evidence as to how the McLeod head office responded to certain payments sent from the Halifax office related to side deals. Head office knowledge of the side deals had little relevance to Mr. Ripley's guilt or innocence. Whether some officials in Toronto knew what was going on or not, Mr. Ripley was found to have countenanced dealings in securities knowing they had not gone through the approval process. Unreasonable and Contradictory Findings The examples offered of unreasonable and contradictory findings are unconvincing and lack substance; most relate to credibility. Even giving the argument its full weight, in the absence of any evidence of bias or bad faith the panel's findings were within its jurisdiction and within the bounds of the rules of natural justice. PENALTY The penalty of $50,000 fine and $65,000 costs coupled with two-year suspension is obviously an onerous one for Mr. Ripley, who is 56 years old and claims to have exhausted his personal financial resources on his defence. It is however well within the jurisidiction provided by the IDA by-laws, to the observance of which Mr. Ripley had bound himself. Considering the responsibilities of the position which he abused, and the opportunity for personal gain flowing from the dealings in unauthorized securities, the penalty is not unreasonable nor contrary to the dictates of natural justice. CONCLUSION In denying the application for certiorari and prohibition Madam Justice Roscoe held "I find that the Investment Dealers Association of Canada had jurisdiction over Mr. Ripley to conduct disciplinary hearings. I find that the panel was properly consitituted in accordance with the by‑laws of the IDA, that it acted within its jurisdiction, that there is no evidence of bad faith on the part of the panel members and that it complied with the rules of natural justice. The appellant has not shown she erred in law. would dismiss the appeal. Freeman, J.A. Concurred in: Hart, J.A. Nunn, J. 1990 S.H. No. 72667 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DONALD FRANK RIPLEY, and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA, Respondents HEARD: At Halifax, Nova Scotia, before the Honourable Madam Justice Elizabeth Roscoe, Supreme Court of Nova Scotia, Trial Division, in Complex Chambers, on September 5, 6, and 7, 1990. DECISION: November 1, 1990 COUNSEL: George MacDonald and Alexander Cameron Solicitors for the Applicant Robert Barnes and A. David MacAdam, Solicitors for the Respondent, Investment Dealers Association Alan Stern, Solicitor for the Respondents, Paul Pommier, George Dunn and Rene Jarry. S.C.A. No. 02430 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: DONALD FRANK RIPLEY and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA REASONS FOR JUDGMENT BY: FREEMAN, J.A.

This was an appeal from a judgment refusing to gram certiorari and other relief following findings by the respondent disciplinary panel that the appellant was guilty of professional misconduct. The appellant sought declaratory relief or relief under s. 24(1) of the Charter. Dismissing the appeal that (1) the Charter has no application to this self-regulating body; (2) the panel was properly constituted in accordance with the respondent's by-laws; (3) the panel acted within its jurisdiction; (4) there was no evidence of bad faith on the part of the panel members; (5) the panel complied with the rules of natural justice, and (6) the trial judge, in refusing to grant certiorari, made no errors in so concluding.

1991canlii2445.txt

J. Saskatchewan Court of Queen's Bench Citation: Toronto Dominion Bank v. Sheppard Date: 1998-08-06 Docket: Estevan Q.B. 169/96 Between: Toronto Dominion Bank, Plaintiff and Bernard Allan Sheppard and Lila Sheppard, Defendants Before: McIntyre J. Appearances: S.G. Segal, for the Toronto Dominion Bank I.D. Wagner, for Bernard Allan Sheppard and Lila Sheppard McIntyre J.: [1] The defendants seek to set aside a default judgment entered by the plaintiff against them and have the plaintiff's claim struck out. The defendants abandoned their alternate claim to be granted leave to file statement of defence. [2] The statement of claim alleges: The defendants received cheque number 70919 dated February 13, 1995, drawn on the plaintiff bank by Tri-Link Resources in the amount of $18,442.39. The defendants carried on business as hauling sub-contractor to Tri-Link Resources. The cheque was subsequently reported as lost by the defendant, Bernard Sheppard. Tri-Link issued cheque number 71066 as replacement cheque. Cheque number 71066 was deposited to the defendants' account at the Royal Bank in Carlyle, Saskatchewan, on February 21, 1995. The defendant, Lila Sheppard, had cheque number 70919 certified at branch of the plaintiff in Calgary, Alberta. On April 10, 1995, cheque number 70919 was deposited to the defendants credit union account. [3] The plaintiff sought judgment against the defendants in the amount of $18,442.39 plus interest. Default judgment against the defendant, Bernard Sheppard, was taken out January 13, 1997. Default judgment against the defendant, Lila Sheppard, was obtained March 24, 1997. [4] Relief is sought pursuant to Queen's Bench Rules 346 and 173(a) which provide: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be; 346 Subject to Rule 271 any judgment by default, whether by reason of non-delivery of defence or non-compliance with any of these rules or with any order of the court, may be set aside or varied by the court upon such terms as to costs or otherwise as the court may think fit. [5] The defendants claim the statement of claim discloses no cause of action and as such any default judgment may be set aside ex debito justitiae; Dyvig v. Adams, 1941 CanLII 116 (SK QB), [1942] W.W.R. 129 (Sask Dist. Ct.) at 137. The defendants further argue that where judgment is set aside ex debito justitiae delay in bringing the application is not factor; Beaver Lumber Co. v. Hopfauf, 1932 CanLII 192 (SK CA), [1932] W.W.R. 357 (Sask. C.A.) at 362. [6] The defendants say the plaintiff has no cause of action as certified cheque is irrevocable; A.E. LePage Real Estate Services Ltd. v. Rattray Publications Ltd. (1994), 1994 CanLII 1506 (ON CA), 120 D.L.R. (4th) 499 (Ont. C.A.). [7] The plaintiff claims it has a cause of action in either conversion or mistake of fact/unjust enrichment. [8] In considering an application under Rule 173(a) the court may only look at the "notice of motion, the attached statement of claim ... and any document which is referred to in the statement of claim upon which the plaintiff must rely for the establishment of the claim". The court must assume that "... all the allegations in the plaintiff's statement of claim are true, and so assuming, determine if such allegations are sufficient to disclose reasonable cause of action against the defendants ..."; Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (Sask. C.A.). [9] The plaintiff cannot maintain claim of conversion as there is nothing in the statement of claim to suggest the defendant bank had property or possessory interest in the cheque at any material time. While cheque may be the subject matter of an action for conversion, only the payee, endorsee or the drawer can maintain an action in conversion; Arrow Transfer Co. v. Royal Bank, 1971 CanLII 986 (BC CA), [1971] W.W.R. 241 (B.C. C.A.), affm. 1972 CanLII 135 (SCC), [1972] S.C.R. 845 (S.C.C). [10] The right of bank to recover money mistakenly paid out on cheque is canvassed in A.E. LePage, supra, by Finlayson J.A. beginning at p. 506: The analysis begins with Barclays Bank v. Simms [[1979] All E.R. 622 (Q.B.)] case on all fours with the one on appeal, save that there was no issue about certification. Goff J. of the English Court of Queen's Bench stated at p. 542: In the light of the above principles, it is plain that in the present case Barclays are entitled to succeed in their claim. First, it is clear that the mistake of the bank, in overlooking the drawer's instruction to stop payment of the cheque, caused the bank to pay the cheque. Second, since the drawer had in fact countermanded payment, the bank was acting without mandate and so the payment was not effective to discharge the drawer's obligation on the cheque, from this it follows that the payee gave no consideration for the payment, and the claim cannot be defeated on that ground. Third, there is no evidence of any actual change of position on the part of either of the defendants or on the part of National Westminster; and, since notice of dishonour is not required in case such as this, the payee is not deemed to have changed his position by reason of lapse of time in notifying them of Barclays' error and claiming repayment. (Emphasis added). Then, Goff J. embarked upon review of authority dealing with the right of recovery of bank that has mistakenly paid out on cheque. He said at p. 535: From this formidable line of authority certain simple principles can, in my judgment, be deduced. 1. If person pays money to another under mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under mistake of fact. 2. His claim may however fail if: (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; (b) the payment is made for good consideration, in particular if the money is paid to discharge, and does discharge, debt owed to the payee (or principal on whose behalf he is authorized to receive the payment) by the payer or by third party by whom he is authorised to discharge the debt; (c) the payee has changed his position in good faith, or is deemed in law to have done so. Barclays Bank v. Simms is the accepted authority explaining the obligations of bank to its customer and its redress against the payee of cheque who appears to be taking advantage of an innocent mistake on the part of bank employee. However, it seems to me that it is the result in Barclays Bank v. Simms that payee in Canada seeks to avoid by having the cheque certified. [11] It is these principles the plaintiff relies upon in this instance. The defendants say the principles are inapplicable when certified cheque is involved. Finlayson J.A. dealt with the issue as follows at p. 508: ... do not understand the rationale for the proposition that bank can charge fee to payee for representing that the drawer's cheque is valid and not be held to that representation simpliciter. Why is bank entitled to insist that it can only be held accountable to innocent third parties or in circumstances where the payee has acted to its detriment? [12] The above passage would appear to support the defendants assertion. However, at p. 509 Finlayson J.A. indicates there are exceptions to the irrevocable nature of certified cheque. think the answer to this concern is that there is case law, in addition to Barclays Bank v. Simms, supra, that establishes that where drawee bank honours cheque notwithstanding valid countermand and the effect is to satisfy just debt, the bank may successfully defend an action by its customer/drawer for reimbursement: see J. Reynolds, "Countermand of Cheques" (1981), 15 U.B.C.L. Rev. 341 at pp. 363-5; B. Liggett (Liverpool) Ltd. v. Barclays Bank, Ltd., [1928] K.B. 48; Shapera v. Toronto-Dominion Bank (1970), 1970 CanLII 805 (MB QB), 17 D.L.R. (3d) 122, [1971] W.W.R. 442 (Man. Q.B.). This is so even where the drawee bank made an independent decision to create an overdraft to allow cheque to be certified: see Bank of Nova Scotia v. Organ Fisheries (1984), 51 Nfld. P.E.I.R. 322 (Nfld. Dist. Ct.). Further, in certain circumstances, the bank may have an action in restitution against the holder of certified cheque, where payment does not satisfy just debt: see Reynolds, supra, at pp. 359-63; Toronto-Dominion Bank v. Anker Electric Motor and Equipment Co. (1978), 1978 CanLII 1716 (ON SC), 93 D.L.R. (3d) 510, 22 O.R (2nd) 369 (Co. Ct.); and Royal Bank of Canada v. LVG Auctions Ltd. (1983), 1984 CanLII 1921 (ON CA), D.L.R. (4th) 95, 25 B.L.R. 30, 43 O.R. (2nd) 582 (H.C.J.)... [Emphasis added] [13] The present case is one of those circumstances where the bank has an action in restitution against the holder of certified cheque as payment did not satisfy just debt. The defendants in this instance had already deposited the replacement cheque when the original cheque was presented for certification and subsequently deposited by the defendants. The certified cheque did not satisfy a just debt. The defendants had already received payment for their services. [14] Finlayson J.A. found that the irrevocable nature of certified cheque and the liability of bank to the holder of certified cheque, which it certified at the request of the drawer or holder had the advantage of bringing certified cheque squarely within the framework of the Bills of Exchange Act, R.S.C. 1985, c. B-4 and codified the consequences of certification. In recognizing exceptions to the irrevocable nature of certification the commercial utility of certification at the request of the payee is maintained while providing recourse to bank where payee seeks to unjustly enrich itself and then purport to seek refuge behind the "irrevocable nature" of certified cheque. [15] The defendants motion must be dismissed as the plaintiff's statement of claim adequately discloses a cause of action in mistake of fact/unjust enrichment. [16] The plaintiff shall have its costs of the application. Application dismissed.

The defendants sought to set aside a default judgment and have the plaintiff's claim struck out. The defendants abandoned their alternate claim to be granted leave to file a statement of defence. The defendants, carrying on business as a hauling sub-contractor to Tri-Link, reported a cheque drawn on the plaintiff bank as lost. Tri-Link issued a replacement cheque. The first cheque was certified at a bank branch of the plaintiff in Alberta and deposited to the defendants' credit union account. Default judgments were obtained in January/March 1997 against the defendants who now sought to have them set aside pursuant to Queen's Bench Rules 346 and 173(a). The defendants claimed the statement of claim disclosed no cause of action as a certified cheque is irrevocable and as such any default judgment may be set aside ex debito justitiae, in which case delay in bringing the application is not factor. The plaintiff claims it has a cause of action in either conversion or mistake of fact/unjust enrichment. HELD: The defendants' motion was dismissed as the plaintiff's statement of claim adequately disclosed a cause of action in mistake of fact/unjust enrichment. 1)There are exceptions to the irrevocable nature of a certified cheque. The present case is one of those circumstances where the bank has an action in restitution against the holder of a certified cheque as payment did not satisfy a just debt. The defendants in this instance had already deposited the replacement cheque when the original cheque was presented for certification and subsequently deposited by the defendants. The cerified cheque did not satisfy a just debt. The defendants had already received payment for their services. 2)In recognizing exceptions to the irrevocable nature of certification the commercial utility of certification at the request of the payee is maintained while providing recourse to a bank where a payee seeks to unjustly enrich itself and then purport to seek refuge behind the 'irrevocable nature' of a certified cheque.

c_1998canlii14016.txt

nan PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to s. 486.4(1) of the Criminal Code such that any information that could identify the complainant or witness shall not be published in any document or broadcast or transmitted in any way. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 99 Date: 2017 04 10 Docket: CRM 100 of 2016 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and DEAN FRANKLIN LOMMERSE Counsel: Maura Landry for the Crown Brian Smith for the accused JUDGMENT MEGAW J. APRIL 10, 2017 Introduction [1] The accused has applied to exclude certain evidence discovered by the police during the execution of search of the accused’s computer and cellular phone. The initial determination of whether there had been violation of the accused’s s. Canadian Charter of Rights and Freedoms [Charter] right occurred by the judgment dated January 3, 2017. The issue of exclusion of evidence pursuant to s. 24(2) of the Charter was not determined at that time. At the initial voir dire, there had been no evidence presented of either the nature of the evidence seized nor the location from which it was seized. Accordingly, it was not possible, at that time, to enter into s. 24(2) consideration. [2] Following the judgment of January 3, 2017, it was proposed by counsel, and agreed by the court, the Crown would proceed with its case, calling all of its evidence, following which s. 24(2) determination would be made. As result, the trial resumed on February 6, 2017 with the Crown presenting all of its evidence. The results of the seizure were marked as exhibits for identification. The determination of their ultimate admissibility was to await completion of argument on s. 24(2) analysis. [3] That argument has now been completed. This is the judgment determining the admissibility of the exhibits tendered by the Crown. Following this determination, the accused will then present his case. [4] The background to the Regina Police Service obtaining search warrant [warrant] is contained in the judgment dated January 3, 2017. For the purposes of this decision, that background determined Cst. Howell, the investigating officer, had obtained warrant which authorized search of the accused’s computer devices. The Information to Obtain [ITO] in support of the warrant sought only search of the “search history on the computer.” The Crown and the accused presented the case on the basis that this was the limit set forth in the warrant, and, it was on that basis the earlier judgment was determined. [5] Cst. Howell testified on the voir dire that after the complainant’s statement was completed, she told the officer the accused had also taken picture of her while she was naked and in the shower. This information was not included in the ITO. Accordingly, there was no request made in the warrant to search for pictures on the accused’s computer devices. The Crown sought to introduce this further information of the complainant as amplification evidence to expand the scope of the warrant. That application was dismissed in the earlier judgment. [6] At the voir dire, Cst. Howell testified he delivered the seized material, for these purposes consisting of laptop computer and cell phone, to Sgt. Kuan, computer forensic specialist with the Royal Canadian Mounted Police. He testified he gave Sgt. Kuan instructions to search for the following: 1. General search of the internet history; 2. Pictures of the complainant; and 3. Messages between the complainant and the accused. [7] An assistance request was completed by Cst. Howell and provided to Sgt. Kuan. This assistance request was not marked as an exhibit on the voir dire or the trial. As result, that document does not form part of the evidence before the court. However, Cst. Howell testified that it was he who delivered the computer and the assistance request to Sgt. Kuan. The Crown applied to have the evidence given by Cst. Howell on the voir dire admitted on the trial proper. That application was granted. [8] The Request for Assistance said to be completed by Cst. Howell was read into the record at the voir dire. The wording of that Request for Assistance is different than the Assistance Request marked as Exhibit P11 at the trial. [9] Cst. Logan testified at the trial. At the time of this matter, he was member of the ICE Unit within the Regina Police Service. He and Cst. Howell worked together in this unit. He was qualified as an expert in the field of internet child exploitation including the categorization of images and videos depicting such. He has much experience dealing with child exploitation matters. [10] Cst. Logan testified he became involved in this investigation through Cst. Howell. He indicated it was he who sent the Assistance Request, Exhibit P11, to the Tech Crime Unit. He testified, he reviewed the warrant that was received. He remembers little from reviewing that warrant and was not asked to refresh his memory on it during his testimony. He testified “he based his review on the past experience that they must ask for things in the application for the warrant”. [11] It is fair to say, immediately upon Cst. Logan obtaining the laptop computer, he commenced search for child pornography. The first thing he did was run program called “OS Triage” on the computer. This software reviews the images on the computer through an evaluation tool called “hash values”. These hash values are understood to be an algorithm that determines whether child porn is accessible on the computer. The application of the OS Triage did not reveal any accessible child porn. Cst. Logan then went directly to the “Recycle Bin” on the laptop and discovered an image of child porn. [12] Cst. Logan testified he then delivered the laptop to the Tech Crimes Unit to have it forensically analyzed. As result of the immediacy of this matter, due to the approaching court appearance date, the Assistance Request was assigned to Sgt. Kuan to perform the forensic analysis. He received the assignment on July 4, 2013. Apparently, the court date was July 22, 2013. [13] Sgt. Kuan was qualified as an expert in the field of forensic computer and computer device examination, peer to peer file sharing software and computer device applications. His evidence from the voir dire was also applied to the trial proper. This was done on application by the Crown and consented to by counsel for the accused. [14] When Sgt. Kuan received the computer, he did not have copy of either the ITO or the warrant. He did not subsequently obtain those documents. While Cst. Howell testified at the voir dire that he directed the Tech Unit to look for evidence of child pornography, that evidence is not borne out by the testimony of Sgt. Kuan. It appears, according to him, Sgt. Kuan did not have any discussions with any other officers prior to completing his analysis of the computer. While protocol has since changed, in July 2013, he was not required to review the warrant or ITO as part of his analysis. Rather, he relied upon the Assistance Request completed by Cst. Logan. Indeed, Sgt. Kuan testified he did not even know Cst. Logan had operated the computer or run the OS Triage program prior to delivery to Sgt. Kuan. [15] Upon receipt of the computer, Sgt. Kuan began his full forensic analysis. His analysis consisted of three steps. First, he must complete forensic acquisition of the device. This involves him obtaining mirror image of the hard drive of the device. Second, he must authenticate the information obtained through the mirror image. Third, he must obtain all files, including deleted files. [16] Once Sgt. Kuan has obtained the files, he then utilizes forensic program called “C4All” into which images (“C4P”) and videos (“C4M”) are placed. At this stage, the information, if anything is found, is then returned to Cst. Logan to complete categorization of the images or movies. This categorization determines whether the images or videos are considered to be child pornography. [17] The computer storage consists of allocated and unallocated space. Allocated space is that part of the hard drive which is active space. Unallocated space is that part of the hard drive that is free space. This free space is simply overwritten again and again by the computer. [18] It is understood the particular operating system of this computer, Windows XP, keeps track of everything that is being done by the computer user. Although not explicitly stated, it is understood other operating systems do not have this relentless tracking feature. As result of this peculiarity in the Windows XP program, internet history is saved in the allocated space. Sgt. Kuan testified this occurs so the computer can speedily recover the internet page if the user goes on the internet to search it again. This cached information is not available to the user and is an automatic function of the computer. [19] As result of the completion of the C4All program, total of 403 images of either child nudity or child pornography were found. Of these, 373 were unique images. Presumably, the remaining 30 images were duplicates of certain of the unique images. Tab in Exhibit shows the location of the various images. The vast majority were found in “Temporary Internet Files”. Approximately 18 were found in specific locations on the computer: “My Documents/My Pictures”; “Lost Files”; “Recycler”. [20] Sgt. Kuan testified it was possible to utilize different forensic tools to restrict an analysis to specific area of the computer. This would allow him to search for both specific date ranges and specific data. He testified he could use one of these specific forensic tools to obtain only the internet history without extracting any images from the balance of the computer storage locations. [21] According to Cst. Howell’s testimony, the warrant was originally sought to obtain the internet search history of this accused with respect to specific website called Plenty of Fish and also websites generally dealing with massage pornography. Sgt. Kuan obtained the internet search history. Interestingly, here, while Sgt. Kuan testified he found on the internet search history the presence of both the Plenty of Fish website and massage porn type websites, this information never found its way into his report. [22] In fact, Sgt. Kuan was never asked by the investigating officers to provide the results of his analysis of the internet search history. Further, he fairly admitted that while the titles to certain internet search histories found on the computer were indicative of something called massage porn, he did not actually go to those internet sites to confirm that is what they were. [23] It is recalled the very reason for obtaining the warrant was to find corroborative evidence of the statements of the complainant to the effect when she was in the accused’s apartment, he was on his computer looking at Plenty of Fish and massage porn websites. It is further noted the complainant was not asked, either in her statement or in her testimony at trial, for specific dates or times which might coincide with the internet traffic of the accused at the indicated websites. [24] The images found by Sgt. Kuan, and placed in the C4All program, were forwarded to Cst. Logan for review and determination of whether they were child pornography. As indicated, Cst. Logan has expertise in the determination of whether images can be considered to be child pornography. He concluded the various images referred to previously fell into that category. Counsel for the accused acknowledged this classification work was accurate. The court was invited to conclude this was the case without actually reviewing any of the images. While it is certainly possible to form such conclusion without an actual review of the material, that is not course which endorse. As result, Cst. Logan had prepared sample of 12 such images for review by the court. He presented those images in court. There is no question but that those images constitute child pornography. As result, am able to conclude all of the images obtained constitute child pornography. [25] The accused seeks to exclude all of the images of child pornography located on his computer. In the alternative, he seeks to exclude those images not automatically cached by web browser during an internet search. [26] The Charter provides as follows: 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. [27] The test for exclusion of evidence is set forth in Grant, 2009 SCC 32 (CanLII), [2009] SCR 353 [Grant] as follows: (a) Seriousness of the Charter-Infringing State Conduct 72 The first line of inquiry relevant to the s. 24(2) analysis requires court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. 74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. nan (b)Impact on the Charter-Protected Interests of the Accused 76 This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. nan 78 Similarly, an unreasonable search contrary to s. of the Charter may impact on the protected [page397] interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. (c) Society's Interest in an Adjudication on the Merits 79 Society generally expects that criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that judge on s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. 80 The concern for truth-seeking is only one of the considerations under s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII (SCC), [1971] S.C.R. 272 is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates broad inquiry into all the circumstances, not just the reliability of the evidence. 83 The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. nan 85 To review, the three lines of inquiry identified above the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to [page400] particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [28] There are number of authorities which have directly considered the issue of excluding child pornography evidence as result of Charter violation. While the application of s. 24(2) is difficult in all proceedings, it is particularly weighty in matters involving child pornography. That is so, obviously, because of the very evidence itself. The images are haunting and sickening and cause instant revulsion. [29] In reviewing this matter, it is important to start with what this matter was not, according to the evidence of Cst. Howell, the lead investigating officer. This matter was not, at the start, an investigation into child pornography. It was an investigation into complaint of sexual assault of minor and sexual exploitation of that minor. The warrant was obtained to determine if there was corroborating evidence to be found on the accused’s computer which would support the statements being made by the complainant. [30] At the voir dire, Cst. Howell testified the complainant told him, following the conclusion of her video and audio taped statement, that the accused had taken pictures of her in the shower. It was this statement, according to Cst. Howell, that caused him to ask of Sgt. Kuan that he also look for pictures of the complainant when completing his forensic review of the computer. While this evidence of Cst. Howell was not permitted as amplification evidence, am permitted to consider it on the s. 24(2) analysis: Wonitowy, 2010 SKQB 346 (CanLII), 358 Sask 303. [31] There are several problems with this evidence. Firstly, the complainant did not testify as to the accused taking any pictures of her. She was not asked about this. This absence of evidence is significant in assessing what is to be made of Cst. Howell’s assertion. [32] Secondly, neither Sgt. Kuan, nor Cst. Logan, knew what the complainant looked like, nor did they receive description or picture of her. This is so, apparently, despite the assertion Sgt. Kuan was specifically advised by Cst. Howell of the possible presence of picture of the complainant on the accused’s computer files. [33] Thirdly, there is absolutely no evidence to suggest either Sgt. Kuan or Cst. Logan looked for, or even considered looking for, picture or pictures of someone who might be the complainant. They simply did not look for specific picture to attempt to either provide independent evidence or to provide evidence to further corroborate the complainant’s allegations. [34] All of this leads, inexorably, to the conclusion this investigation was to obtain child pornography. In saying that, do not intend to suggest any ill motives to the investigating officers. Rather, it appears, from the weight of all of the evidence that what they intended to do, in the case of both Sgt. Kuan and Cst. Logan, was to search for and obtain, if available, evidence of the accused’s computer having on it child pornography. [35] This is apparent particularly from the testimony of Cst. Logan. Upon receipt of the computer, he immediately ran the OS Triage software looking for “hash values” which would be evidence of the presence of child pornography. There is no indication in the evidence that picture or pictures of the complainant would contain those “hash values”. Following that search (which did not turn up any indication of the presence of such material), he then immediately went to the Recycle Bin to look for the presence of child pornography images. [36] Then, the very reason for obtaining the warrant is, apparently, abandoned right from the start of the search. There is no evidence on this trial of what the accused’s computer’s search history shows with respect to the two areas of prime importance in the ITO. Evidently, no one asked Sgt. Kuan for the information which he had acquired in this regard. [37] When these issues were discussed during argument, counsel for the Crown indicated the investigation took decidedly different turn with the obtaining of statement from the witness, That witness testified as to being with the complainant in the accused’s apartment. She further testified to corroborating events that took place in the apartment. The submission was therefore that the presence of this potential corroboration evidence obviated the need for the search history information. [38] This explanation may very well apply once the trial itself was underway, but, it cannot apply to the work of either Sgt. Kuan or Cst. Logan. The evidence of was not received until she gave statement on January 4, 2014. The computer was seized in June 2013 and the forensic analysis was completed in early July, to accommodate the pending court date of July 27, 2013. Accordingly, the necessity of the search history could not have been obviated at the time the forensic analysis of the computer was being completed. [39] As have indicated, there is no suggestion here the police had any ill-motives. Quite the contrary, they appeared all to be persons dedicated to their positions with the police force. They each gave their evidence genuinely and without hesitation on the steps they had each taken with the investigation. The difficulty lies not with their motives, rather it lies with their failure to abide by that most basic of requirements: the warrant. No one thought to get one that allowed the extent of intrusion into the accused’s privacy. No one questioned what was obtained to ensure they were each acting on solid ground with respect to their search entitlements. [40] This is not something that can be considered technical breach. Cst. Howell asserts he had information from the complainant that nude pictures of her were taken. This information was not provided to the justice in the form of the ITO. The complainant did not provide this evidence when giving her testimony. The information is apparently not to be found in the notes of Cst. Howell, nor in the video or audio statement given by the complainant. It was not remembered until, apparently, the preliminary inquiry in this matter. [41] In light of this, it is possible the justice would have refused to grant more intrusive search. It is possible the justice would not have been satisfied more intrusive search was warranted on the basis of the uncertain nature of the evidence in support of such more intrusive search. [42] In Morelli, 2010 SCC (CanLII), [2010] SCR 253 [Morelli] Fish J. stated: 105 As mentioned at the outset, it is difficult to imagine more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. 106 It is therefore difficult to conceive s. breach with greater impact on the Charter-protected privacy interests of the accused than occurred in this case. 107 turn, finally, to the third factor to be weighed under s. 24(2) of the Charter society's interest in adjudication of the case on its merits. Here, exclusion of the evidence obtained in the search would leave the prosecution with essentially no case against the accused. It would thus seriously undermine the truth-seeking function of the trial, [page291] factor that weighs against exclusion (Grant, at paras. 79-83). [43] The personal nature of all of the information on the computer was emphasized by the Supreme Court of Canada in Cole, 2012 SCC 53 (CanLII), [2012] SCR 34 [Cole]: 47 Computers that are used for personal purposes, regardless of where they are found or to whom they belong, "contain the details of our financial, [page49] medical, and personal situations" (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices "reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet" (ibid.). [44] With respect specifically to cases involving child pornography, Fish J. in Morelli stated: nan To be sure, offences involving child pornography are particularly insidious. They breed demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion. nan It is for this very reason that the police, in enforcing the law, must avoid any temptation to resort to stereotypical, inflammatory, or misleading allegations. And where they yield to that temptation, courts must be particularly vigilant to issue process, or subsequently validate the issuance of process, only where reasonable and probable grounds for search or an arrest are in fact made out. While the law must be relentlessly enforced, legal requirements must be respected, and constitutional safeguards preserved. [45] turn now to the consideration to be applied when considering the application of s. 24(2). While it has been stated in many cases, quote from Justice Fish’s decision in Cole: 80 With the Charter breach established, the inquiry shifts to s. 24(2). 81 Unconstitutionally obtained evidence should be excluded under s. 24(2) if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. This determination requires balancing assessment involving three broad inquiries: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits (R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, at para. 71). 82 The standard of review is deferential: "Where trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review" (R. v. Côté, 2011 SCC 46 (CanLII), [2011] S.C.R. 215, at para. 44). But where the relevant factors have been overlooked or disregarded, fresh Grant analysis is both necessary and appropriate. a. The seriousness of Charter-infringing state conduct [46] As with consideration of the other two inquiries, the evidence here must be divided into two broad categories. The evidence found on the computer, other than through the temporary internet sites, is one broad category of evidence. The evidence found on the computer through the temporary internet sites is second category of evidence. While these are broad categories, they define the nature of the evidence in dispute. [47] The court in Morelli, and confirmed in Cole, identified the intrusiveness of search into one’s personal computer. repeat those comments here from Morelli: nan It is difficult to imagine search more intrusive, extensive, or invasive of one's privacy [page263] than the search and seizure of personal computer. nan First, police officers enter your home, take possession of your computer, and carry it off for examination in place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet generally by design, but sometimes by accident. [48] The Crown in the course of submissions, here, suggested the decision of Fish J. in this first part was impacted significantly by the police officer’s lack of candour and lack of diligence and integrity. There is no doubt that is the case and Fish J. was quite pointed in his comments concerning the police officer’s behaviour, there. [49] Here, the police did nothing to attempt to obtain warrant allowing them to search for child pornography. Rather, they took it upon themselves to search without judicial authority or oversight. That this was done without malice or misconduct, while noticed, does not ultimately affect the nature of the impact on the accused’s Charter right. [50] Really what is being sought here is general acceptance that the failure to obtain search warrant authorizing such search is of little to no consequence. The police did not engage in misconduct, so the argument goes, and accordingly, their failure to obtain warrant can be easily excused. [51] do not see things that way. The investigating officers just did not, apparently, think it necessary to obtain warrant. This is wrong thinking and shows little concern for the Charter rights of those being investigated. In Morelli, there was trial finding of “no deliberate misconduct” by the officer. Despite this, Fish J. stated: 103 We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the officer who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers. [52] The police had no authority to search the computer generally. They were only authorized to look at the internet history. The search of the non-internet history is a serious infringement of the accused’s Charter right. The search of the temporary internet files is less of serious infringement, in these circumstances. b. Impact on the Charter-protected interests of the accused [53] On the second factor in Grant, repeat the words of Fish J. in Morelli: 105 As mentioned at the outset, it is difficult to imagine more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. 106 It is therefore difficult to conceive s. breach with greater impact on the Charter-protected privacy interests of the accused than occurred in this case. [54] That is precisely the situation in this case. echo Fish J.’s comments. [55] Again, the general search of the computer significantly impacts the accused’s Charter interests. This is precisely what Fish J. was referring to. The search of the temporary internet files is less so as the police were authorized to look at the internet history. c. Society’s interest in an adjudication on the merits [56] This then leads me to the third factor. Exclusion of all of the evidence of child pornography found here would leave the Crown with no case on this count of the Indictment. This is real evidence, not conscripted. [57] As indicated, there is difference between that found on the computer in the pictures or recycle bin and those found in the temporary internet files. There may be no justification on the face of the ITO or the warrant for obtaining materials from the computer other than temporary internet files. This was search conducted as straight out child pornography search, quite unconnected with the charges then being investigated by the police. [58] The images found in the temporary internet files are another matter. The warrant authorized obtaining the search history from this computer. There are software tools available that would do solely that. Those tools were not used here. [59] The police had no authority to look generally at the computer. They could have obtained further warrant. It did not occur that this should take place. They did have authority to look at the internet history. [60] While the nature of the offence would suggest society demands complete adjudication on the merits, the nature of the search here suggests otherwise. It is not open season on whatever is found by the authorities. There are limits as to what will be acceptable. After the fact justification is not something the court will support in these circumstances. [61] The police were looking for internet history. While not explained well in the evidence, the temporary internet files are created as a result of visits on the internet. This is the evidence of internet history. Because of its connection, I determine society would have an interest in seeing this evidence determined on its merits. CONCLUSION [62] As a result of all of the foregoing, I determine the materials found through the temporary internet files are not excluded from evidence pursuant to s. 24(2) of the Charter. However, I determine the balance of the images found on the computer are excluded from the evidence at trial pursuant tos. 24(2). Accordingly, I determine as follows:1. Exhibit P6, Tab 1 is admissible;2. Exhibit P6, Tab 2 – the items not found in Temporary Internet files are to be excluded from the evidence at this trial. That is the items in the first row and the last three rows;3. Exhibit P6, Tab 3 is admissible;4. Exhibit P6, Tab 4 relating to Temporary Internet files is admissible; and5. Exhibit P8 with the exception of the indicated excluded pages. M.T. MEGAW nan

HELD: The application was allowed in part and the balance of images found on the computer were excluded from the evidence at trial pursuant to s. 24(2) of the Charter. The court found that the evidence found through temporary Internet sites was admissible. The reason for obtaining the warrant was apparently abandoned by the police at the beginning of the search of the computer. The police had no authority to search the computer generally. They were only authorized to look at the Internet history. The search of the non-Internet history was a serious infringement of the accused’s s. 8 Charter right. The temporary files created as a result of the visits on the Internet was evidence of Internet history, and because of this connection, this evidence was not excluded.

e_2017skqb99.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Guthro, 2005 NSSC 297 Date: 20051101 Docket: SH No. 232556A Registry: Halifax Between: Charlie Guthro v. Her Majesty The Queen Respondent Judge: The Honourable Justice M. Heather Robertson Heard: June 1, 2005, in Halifax, Nova Scotia Written Decision: November 1, 2005 Counsel: David S. Green, for the appellant Andrea E. Jamieson, for the respondent Robertson, J.: [1] This appeal arises from a decision of David Johnson, Adjudicator in the Provincial Court of Nova Scotia, who convicted the appellant for driving a motor vehicle while his license was suspended contrary to s. 287(2) of the Motor Vehicle Act, F.S.N.S. 1989, c. 293, as amended. The offence occurred on February 13, 2003. [2] The appellant plead not guilty and the trial was held on May 17, 2004. Following written submissions, the decision was delivered on September 27, 2004. [3] At the trial, the Crown called one witness, Constable Guy Napier of the Halifax Regional Police Force. The appellant testified as did three other witnesses, his son Dennis Guthro who testified it was he who drove the car; Jacqueline Noble, patron at the nearby gas station, where the ticket was issued; and Neil Upham, an attendant at the service station. [4] The appeal centers upon the adjudicator’s acceptance of Constable Napier’s evidence and the reliability of the evidence, i.e., his glimpse of the appellant driving his auto as a sole occupant while unlicensed versus the defence witnesses who testified that the appellant was not the driver of the vehicle but that his son was. [5] The grounds of appeal are: 1. The Honourable Adjudicator erred in not properly interpreting the provisions of s. 287(2) of the Motor Vehicle Act, R.S.N.S. 1989, c. 298, as amended; 2. The Honourable Adjudicator erred by relying solely upon the evidence of only one Crown witness, police officer, and apparently rejecting in total the evidence of the Appellant and three other civilian witnesses; 3. The Honourable Adjudicator erred by failing to give the benefit of reasonable doubt to the Appellant; 4. The verdict was unreasonable and cannot be supported by the evidence; 5. There was insufficient evidence to prove that the Appellant was in fact the driver of motor vehicle driving while suspended; 6. Such other grounds as may appear from reading of the record. [6] The scope of the appellate review in summary conviction appeal is well settled. [7] In R. v. Ryan, 2002 NSCA 153 (CanLII), [2002] N.S.J. No. 514 (C.A.) Justice Oland reviewed the jurisprudence on the standard of review in summary conviction appeals at paras. 14 and 15 of the decision: Absent an error of law or miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656 at 657, the appeal court is entitled to review the evidence at trial, re‑examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusions. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, summary conviction appeal on the record is an appeal; it is neither simple review to determine whether there was some evidence to support the trial judge's conclusions nor new trial on the transcript. R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381 at para 42 confirmed that the test for an appellate court determining whether judgment is unreasonable or cannot be supported by the evidence was that set out in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at p. 185, namely: whether the verdict is one that properly instructed jury acting judicially, could reasonably have rendered. In Yebes, in discussing the function of an appellate court, the Supreme Court of Canada stated at para 25: The Court must determine on the whole of the evidence whether the verdict is one that properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re‑examine and to some extent reweigh and consider the effect of the evidence. [8] Crown counsel have also cited R. v. Stone (1996), 1996 CanLII 5576 (NS CA), 148 N.S.R. (2d) 46, 1996 CarswellNS 55 (C.A.); R. v. Davis (1996), 1996 CanLII 5574 (NS CA), 148 N.S.R. (2d) 68, 1996 CarswellNS 52 (C.A.) cases which have reviewed. [9] On the issue of credibility of witness, determined at the trial level they rely on Re Cole Estate (1994), 1994 CanLII 4044 (NS CA), 131 N.S.R. (2d) 296, 194 CarswellNS 111 (C.A.), case in which Roscoe J.A. cited with approval the test articulated by MacDonald J.A. in Travelers Indeminity Co. of Canada v. Kehoe (1985), 66 N.S.R. (2d) 434 at para. 15: This and other Appellate Courts have said time after time that the credibility of witnesses is matter peculiarly within the province of the trial Judge. He has the distinct advantage, denied Appeal Court Judges, of seeing and hearing the witnesses; of observing their demeanor and conduct, hearing their nuances of speech and subtlety of expression and generally is presented with those intangibles that so often must be weighed in determining whether or not witness is truthful. These are the matters that are not capable of reflection in the written record and it is because of such factors that save strong and cogent reasons appellate tribunals are not justified in reversing finding of credibility made by trial Judge. Particularly is that so where, as here, the case was heard by an experienced trial Judge. [10] The Crown also cited R. v. W. (R), 1992 CanLII 56 (SCC), [1992] S.C.R. 122, 1992 CarswellONT 90 wherein McLachlin J., as she then was, commented on the scope of appellate review turning on findings of credibility. At para. 21 she stated: 21 It is thus clear that court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility ... The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [11] The evidence of Constable Napier was that while waiting to enter Caldwell Road, he was stopped at stop sign on Sherwood Street which forms with Caldwell Road. He testified that he saw the appellant driving his vehicle along Caldwell Road, at posted rate of speed of 50 km per hour. He testified that he had approximately five seconds to observe the appellant driving the vehicle and that he saw only one occupant in the vehicle. He testified that he called in the vehicle license plate number and he received information back that the license of the registered owner of the vehicle was suspended. [12] He testified that this plate query was completed in approximately two minutes. He then testified that he did u-turn to follow the vehicle. He stated that about half block past Sherwood Street he came up to gasoline gaming establishment called Treaty Gas, where he observed the appellant’s vehicle parked just beyond the front door of the establishment. He stated that he then walked to the rear of the then empty vehicle and saw that its plate matched the plate number of his query. At this point male exited the service station who Constable Napier testified was the appellant; the man he had seen driving the vehicle minutes earlier. [13] Constable Napier said he requested of him driver’s license, vehicle registration and vehicle insurance. Constable Napier then testified: made the gentleman aware of the reason that requested the documentation and that was why was carrying out an investigation with regards to suspended driver. Immediately this gentleman stated to me ... [objection dealt with by the Court and disallowed] “Can’t you give me break.” [14] Mr. Guthro the appellant, in his evidence explained his statement by testifying that Constable Napier had not specified why he wanted to see his documentation and that he believed the reason for the request was that he had failed to turn in his license pursuant to letter he had received from the Registry of Motor Vehicles in December 2002 after his license had been suspended and that he would therefore receive another expensive ticket. [15] He testified that the ticket had been handed to him folded and that not until he returned inside the service station did he realize the nature of the ticket. He said he flipped out and that is when people spoke up, referring to the witnesses Neil Upham and Jacqueline Noble, who agreed he had not been the driver of the vehicle. [16] The appellant also testified that just before this, Constable Napier had asked him to move his vehicle away from the pump, twice, but he had refused saying that he could not, he had no license and that he then went inside to ask his son to move the car. [17] The appellant’s son Dennis Gutho testified that he had been ill that morning and was at home when friend called from the local high school requesting help, as his vehicle would not start and needed jump. He testified that he drove his father’s car, but had asked his father to come along. He testified that on the way to Cole Harbour High they needed gas and stopped at Treaty Gas where he, still feeling unwell, rushed from the car and went into the service station to the bathroom where he remained for some time. [18] This evidence was supported by the evidence of the two independent witnesses Neil Upham and Jacqueline Noble, both of whom said they did not know the appellant before that day and had both volunteered to go to court and testify that he was not the driver of the vehicle because they had seen Dennis Guthro get out of the driver’s side of the vehicle and rush into the service station. Both these witnesses in the course of their testimony had confused passenger side with driver side door and quickly corrected their testimony and testified that Dennis Guthro did get out of the driver’s side of the vehicle. [19] significant issue arising out of the evidence before the adjudicator was whether the vehicle was driven by sole occupant or whether both Guthro’s were in the vehicle as well as their mixed breed dog. [20] This is an issue that the adjudicator did not address. Indeed the adjudicator made no significant review of the evidence before him. [21] The adjudicator stated: had subsequent opportunity to peruse by way of transcript. The accused inter alia indicated he was not driving the vehicle, and the other witnesses globally, either by inference or direct reference, indicated the accused was not the driver of the vehicle. closely observed the deportment and demeanour of all witnesses in this matter. was particularly impressed by the demeanour of the Crown’s witness, Cst. Napier. found his evidence to be detailed, forthright, unreserved, unequivocal, and in particular, unwavering on cross-examination. On the other hand, found the witnesses for the accused and their evidence to be, in some cases, convenient, somewhat confused, illogical, unconvincing and, on the whole, uncompelling. therefore accept the evidence of Cst. Napier in this matter and reject the evidence of the aforementioned witnesses presented by counsel for the accused. Given the experience of the Crown’s witness, his location at the time, the time of day, duration of opportunity, and distance from the accused’s vehicle on initial contact, together with the aforementioned explanation of the accused to the officer, am satisfied that the Crown has established to my satisfaction prima facie case, having proved all the elements of the offence necessary for conviction, and on the basis of the acceptable evidence have heard, I’m satisfied beyond reasonable doubt of the guilt of the accused in this matter. [22] The adjudicator accepted the evidence of Constable Napier over that of the appellant and the three other corroborating witnesses. The adjudicator found the Constable Napier’s evidence to be more credible. He appeared to relate the credibility of the Crown’s witness to the confidence and experience of this witness in giving his testimony. [23] The adjudicator fell into error by failing to address whether the appellant’s evidence raised a reasonable doubt as to his innocence, particularly on the central issue of whether the vehicle was solely occupied. [24] Absent of finding on this issue, the credibility of Constable Napier’s evidence is brought into question. By not making a find on the critical issue of whether there was a sole occupant in the vehicle, this tends to suggest more strongly that the adjudicator engaged in an “either/or” analysis in accepting the evidence of the Crown’s witness over that of the four witnesses for the defence. [25] The adjudicator did not instruct himself in accordance with the test set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 (S.C.C.) where the case rested solely on his findings of credibility. [26] As Cory J. stated at p. there are three steps which must be addressed onthe issue ot credibility: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [27] The adjudicator should have made clear findings of credibility based on the evidence before him. In this case the evidence before the adjudicator was clearly capable of being evidence to the contrary so as to raise reasonable doubt. The adjudicator failed to examine the evidence in this light and make findings of credibility based on the weight of the evidence before him. [28] I allow this appeal of the conviction. I find it would be impractical to order a new trial at this date and accordingly order that a verdict of acquittal be entered. Justice M. Heather Robertson

The appellant was convicted of driving a motor vehicle while his licence was suspended. The appeal centred upon the adjudicator's acceptance of the police officer's evidence and the reliability of that evidence versus the defence witnesses who testified that the appellant's son was actually the driver of the vehicle. Appeal allowed; verdict of acquittal entered. The adjudicator erred by failing to address whether the appellant's evidence raised a reasonable doubt as to his innocence, particularly on the central issue of whether the appellant was the only person present in the vehicle. But not making a finding on this critical issue, this tended to suggest more strongly that the adjudicator engaged in an either/or analysis in accepting the evidence of the Crown's witnesses over that of the four defence witnesses; the adjudicator should have made clear findings of credibility based on the evidence before him.

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J. 2000 SKQB 340 Q.B.G. A.D. 1999 No. 170 J.C.M. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: DANIEL HURD and MEDICAL SERVICES INCORPORATED DEFENDANT Grant Carson for the plaintiff Richard K. Gabruch for the defendant JUDGMENT DIELSCHNEIDER J. July 27, 2000 [1] The plaintiff, Daniel Hurd, purchased medical insurance policy from the defendant, Medical Services Incorporated (MSI), for the period of time he expected to reside in Chicago, Illinois, U.S.A. pursuing studies in optometry. The policy was in effect for the period commencing August 1, 1997 and ending July 31, 1998 and provided coverage to Hurd except for those periods when he was in Saskatchewan. [2] Hurd ordinarily resided with his parents at Melfort, Saskatchewan. While home from Chicago during study break Hurd had an accident while water-skiing following which he experienced chest pains. On August 3, 1997 he consulted Dr. Nelson at Melfort who believed he had strained muscle. When the pain persisted, Hurd, on August 8, 1997, saw the family’s doctor, Dr. Lionel Lavoie. After x-ray, Dr. Lavoie determined that Hurd had pneumothorax, collapsed lung, which he associated with the events of water-skiing engaged in by Hurd, and he referred him to Dr. S.C. Kanthan at the Royal University Hospital in Saskatoon. [3] Dr. Kanthan resolved the pneumothorax by performing thoracostomy, procedure whereby tube is placed into the pleural cavity, the chest area where escaped air is collecting. The tube drains the air and allows the lung to re-inflate. When Dr. Kanthan removed the tube the lung collapsed second time whereupon the procedure was repeated, successfully so. [4] On August 11, 1997, Dr. Kanthan discharged Hurd from hospital and reported to Dr. Lavoie that the pneumothorax was resolved and that follow-up treatment was not necessary. [5] On August 12, 1997, Hurd returned to Chicago to continue his studies. [6] On February 6, 1998, while in class, Hurd experienced discomfort in his chest. Four days later, on February 10, 1998, he had friend drive him to emergency at Mercy Hospital in Chicago. Emergency personnel diagnosed pneumothorax and hospitalized him referring his case to Dr. Craig Adams. [7] Dr. Adams confirmed the diagnosis. He expressed to Hurd his belief that the cause of his condition was bleb which required surgery. bleb is bubble-like structure which develops when there is coalescence of air sacs in the lung. [8] Dr. Adams advised immediate surgery. [9] Two, perhaps three, events combined to postpone the “immediate” surgery to February 24, 1998. Hurd was then writing final examinations and wanted to complete them. On February 12, 1998, when Hurd learned that Medex, the agency representing MSI in the U.S.A., was refusing to authorize payment, Hurd became concerned and contacted MSI in Saskatoon and his parents and Dr. Lavoie in Melfort concerning his position. And thirdly, hospital scheduling had to be taken into account. [10] In any event Dr. Adams agreed to postpone the surgery but subject to conditions. Hurd was never to be alone. He was not to drive an automobile. He was to remain within fifteen minutes travelling time from Mercy Hospital. And he would immediately return to emergency if the symptoms became more severe. [11] On February 24, 1998, the surgery proceeded. Dr. Adams performed thoracotomy with bleb resection, procedure that involved opening up the chest cavity to permit stapling of the offending bleb. [12] The cost to Hurd for the surgery was $26,864.46. MSI rejects Hurd’s claim for reimbursement on two grounds. MSI states that Hurd should have returned to Saskatchewan for the surgery and that, in any event, Hurd’s condition pre-existed purchase of the insurance policy and was not covered thereby. [13] The questions raised by MSI in defending Hurd’s claim are therefore essentially two. Was the surgery necessarily performed in Chicago or could it have been postponed and performed later in Saskatoon? Even if necessary, was the bleb pre-existing condition which in any event exempted MSI from payment under the policy? [14] The medical reports on Hurd’s condition agree that surgery was necessary. There is also substantial agreement that the surgery could be postponed for time. But there is disagreement over the length of any postponement, or the patient’s ability to travel home to Saskatchewan given the circumstances of collapsed lung and the suspected but unconfirmed existence of bleb. [15] Dr. Adams, as Hurd’s attending physician, was adamant that travel was not possibility. His report is dated April 10, 1998: It was medically necessary to perform the surgery in Chicago since Mr. Hurd was firstly symptomatic with pleuritic chest pain and dyspnea on exertion and secondly, at risk of developing tension pneumothorax if subjected to air transportation or pneumothorax becoming larger due to the delay of prolonged ground transportation back home to Canada. Delaying surgery until the patient returned back to Canada could place Mr. Hurd’s life in jeopardy and not be standard of care for treatment of recurrent pneumothorax. [16] have reviewed the medical evidence filed by MSI expressing views contrary to those of Dr. Adams. accept the evidence of Dr. Adams as definitive. do so because he was the attending physician who examined Hurd during his illness. conclude from his report that the surgery was necessary and that it was necessarily performed in Chicago at the time in question. [17] turn then to discussion as to whether the terms of insurance exempted MSI from payment because Hurd could have returned to Saskatchewan. [18] Section IV of the policy is entitled Terms and Conditions and the portion thereof relied upon by MSI in support of one of its reasons for non-payment reads: BLUE CROSS, in consultation with the attending physician, reserves the right to return the patient to Saskatchewan. If any covered person chooses not to return and is, on medical evidence, able to return to Canada following the diagnosis of or the emergency treatment for medical condition which requires continuing medical services or surgery performed outside of Canada, the expense will not be covered by this Policy. Coverage under this Policy will cease and refund of the unused portion of the coverage will be available on request. [19] It is the position of MSI that this clause must be read in conjunction with the following clause set out in Section of the policy under the heading Exclusions and Limitations: The following services are expressly excluded from coverage under this Policy: (Applicable to all sections of this Policy). Any treatment or surgery not required for the immediate relief of acute pain and suffering, or treatment or surgery which could reasonably have been delayed until the Subscriber returned to Saskatchewan, or any treatment or surgery which the Insured elects to have rendered or performed outside of Saskatchewan following emergency treatment or diagnosis outside of Saskatchewan, unless the medical condition reasonably prevented the Insured from returning to Saskatchewan prior to such treatment or surgery. [20] Accepting as I do the evidence of Dr. Adams that travel was dangerous and put Hurd’s life in jeopardy, I find that Hurd was unable to return to Saskatchewan for surgery. conclude therefore that neither of the quoted terms can be construed to relieve MSI of its obligation to pay. [21] turn now to discuss whether the terms of insurance exempt MSI from payment because of condition pre-existing the effective date of the policy. [22] The relevant portions of the policy appear in Section V: The following services are expressly excluded from coverage under this Policy: (Applicable to all sections of this Policy). Services required as result of pre-existing condition. pre-existing condition is any condition which licensed physician was consulted or for which treatment or medication was received prior to the effective date of this insurance. [23] The question must decide is whether the exclusionary clause relied upon by MSI exempted it from liability for payment of Hurd’s claim. Setting aside for the moment the question of the “effective date” of the policy, ask myself whether there is clear evidence of “pre-existing condition” to bring Hurd within the operation of the exclusionary clause. [24] On the medical evidence of this case, two qualified physicians, Dr. Lavoie and Dr. Kanthan, both licensed as the clause under consideration requires, treated Hurd for pneumothorax and sent him on his way to Chicago to continue his studies. Neither doctor detected or made mention that they even suspected bleb as the underlying cause of Hurd’s condition. After restoring the collapsed lung Dr. Kanthan specifically reported that follow-up was not necessary. [25] In February 1998 however, after his initial examination of Hurd, Dr. Adams explained to him, as is reported in paras. 11 and 12 of Hurd’s affidavit, that the previous pneumothorax which was thought to have resulted from the skiing mishap was actually the symptom of an underlying condition, condition which remained undiscovered until there was recurrence. Dr. Adams then went on to express his belief, which he thought surgery would confirm, that the bleb could have existed from birth. In fact subsequent surgery confirmed the diagnosis. [26] The question therefore is whether the drafter of the policy intended as pre-existing condition which two physicians did not detect, and did not treat, or prescribe medication for; condition which Dr. Adams said could not be diagnosed until there was recurrence. rely for guidance on the judgment of Trainor J. in Hoult Estate v. First Canadian Insurance Corp. (1994), 25 C.C.L.I. (2d) 255 at pp. 259-60: In Privest Properties Ltd. v. Foundation Co. of Canada, Vancouver Registry C884875, 28 June 1991 [reported at 1991 CanLII 2346 (BC SC), C.C.L.I. (2d) 23 (S.C.)], Drost J. referred with approval to Couch on Insurance and said at p. 19 [p. 38, C.C.L.I.], It has been said that the general principles of insurance policy interpretation are 1. the objective in construing the policies’ coverage of liability must be to give effect to the policies’ dominant purpose of indemnity; 2. ambiguity in an insurance contract must be construed in favour of the insured; 3. the court should ordinarily strive to give effect to the objectively reasonable expectations of the insured. [27] I conclude therefore that the definition of a “pre-existing condition” is not clear and does not operate to relieve MSI of its obligation under the policy to extend to Hurd the benefits for which he sues in this action. [28] The final consideration concerns the “effective date” of the policy referred to in the exclusionary clause. As said in opening, the policy under review was in effect from August 1, 1997 to July 31, 1998. The strongest and clearest evidence of this is provided in letter dated August 26, 1997 by Colin Wrishko, MSI’s director, to Hurd’s mother in response to her request for confirmation of the period of time through which her son would have medical coverage while out of the province. This letter was written after Hurd experienced the pneumothorax and, perhaps more importantly after Wrishko was informed about it. If, as Wrishko now claims, Hurd was excluded from coverage because of the August experience, he did not raise it as an issue. attach no significance to what he now says. [29] In summary conclude that MSI insured Hurd for medical services required by him while outside the province of Saskatchewan for the period from August 1, 1997 to July 31, 1998. find that during that period of time, in February 1998, Hurd required medical attention and surgery, necessarily performed in Chicago, for condition undetected earlier by qualified medical personnel and therefore not pre-existing condition as that term is defined in the policy. [30] The plaintiff will therefore have judgment for the sum of $26,864.46 prayed for in this action together with costs to be taxed.

The plaintiff purchased a medical insurance policy from MSI for the time he expected to reside in the USA pursuing studies. The policy did not cover the periods he would be in Saskatchewan where he ordinarily resided with his parents. The plaintiff suffered chest pain following a water-skiing accident in August 1997 in Saskatchewan and underwent a thoracostomy for a collapsed lung while in Saskatchewan. He underwent a further thoracotomy in February 1998 while in the USA. MSI denied coverage arguing the plaintiff should have postponed the operation and returned to Saskatchewan for the surgery and that, in any event, the condition pre-existed the purchase of the insurance policy. The medical reports agreed that surgery was necessary. They also agreed it could be postponed for a time but there was disagreement over the length of any postponement or the patient's ability to travel home given the circumstance of a collapsed lung and the suspected but unconfirmed existence of a bleb. HELD: The plaintiff was awarded $26,864.46 plus costs, to be taxed. 1)The evidence that travel was dangerous and put the plaintiff's life in jeopardy was accepted. Therefore the plaintiff was unable to return to Saskatchewan for the surgery. 2)The exclusionary clause did not exempt MSI from liability for payment. The definition of a 'pre-existing condition' is not clear and does not operate to relieve MSI of its obligation under the policy to extend the benefits in question. The policy was in effect from August 1, 1997 to July 31, 1998. It was not raised in a letter confirming the dates of his coverage sent after the plaintiff had experienced the pneumothorax of which MSI had been informed.

4_2000skqb340.txt

Q.B.G. A.D.1996 No. 2464 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GREAT CANADIAN BINGO CORPORATION and THE REGINA EXHIBITION ASSOCIATION LIMITED DEFENDANT Patrick N. McDonald for the plaintiff J. Paul Malone for the defendant JUDGMENT GUNN J. September 16, 1996 This is an application by the Great Canadian BingoCorporation ("GCB") for an interim injunction restraining TheRegina Exhibition Association Limited ("REAL") frominterfering with GCB\'s enjoyment of certain leasehold premisesin the Jubilee Building in Regina Exhibition Park as tenantfrom and after September 1, 1996. In addition GCB seeks aninterim injunction restraining REAL from entering into anylease with Regina Central Bingo Association Inc. ("RCBA") andpreventing REAL from permitting the operation of a bingo hallby RCBA within Regina Exhibition Park except as a subtenant ofGCB. FACTS REAL is an agricultural exhibition association operating at Regina Exhibition Park in Regina, Saskatchewan. It operates number of facilities, including buildings suitable for short or long term commercial leases. One of the buildings is the Jubilee Building, which was leased to FKJ Fundraising Ltd. ("FKJ") pursuant to lease in writing dated April 17, 1991. The lease was for term of five years ending August 31, 1996. FKJ subleased the Jubilee Building to GCB for the term of the lease and REAL consented in writing to this sub-lease. GCB used the Jubilee Building to operate bingo hall. It entered into written agreements with RCBA for the day to day operation of the bingos, including further sub- lease by GCB to RCBA of the Jubilee Building. REAL was not aware of this sub-lease and was not asked to provide its consent, as required by the lease and the first sub-lease. Relevant provisions of the lease are as follows: 15.01 In the event that the Tenant is not, at the time of request, in default of any of the covenants on the part of the Tenant to be paid or performed, the Landlord will, at the expiration of the Term, at the cost of the Tenant and upon request mailed by the Tenant registered post to or delivered to the Landlord, not later than eight (8) calendar months, before the expiration of the Term, grant to the Tenant renewal term of five (5) years, on the same agreements as herein contained save and excepting this paragraph, at rent to be mutually agreed upon provided however, notwithstanding the option to renew hereby granted, the Landlord shall not be obligated to renew the lease for subsequent five year term if: a)the Tenant ceases to use the Leased Premises for bingo purposes; or b)the operations of the Landlord change such that it is no longer feasible to lease the Leased Premises to the Tenant or to any other person. The sub-lease contains the following provisions: 1. The Subtenant [GCB] covenants with the Headtenant [FKJ]: 1.09 not to assign, sublet or part with possession of any part of the Subpremises without the prior consent in writing of the Headtenant and of the Superior Landlord [REAL] which consent may be withheld notwithstanding any statutory provision respecting the withholding of consent without giving reason therefor 2. The Headtenant covenants with the Subtenant: 2.04 In the event that the Subtenant is not, at the time of request, in default hereunder, the Headtenant agrees to exercise the Option to Renew the Head Lease for further term of years in accordance with the Head Lease provided that the notice to renew from the Subtenant shall be received by the Headtenant no later than months prior to the end of the term and provided that the rent (as between the Headtenant and the Subtenant) shall be mutually agreed upon or determined by arbitration as set forth in the Head Lease. GCB did not provide notice to renew its sublease with FKJ. FKJ did not exercise the option to renew the lease with REAL. GCB did not give any formal or written notice to REAL indicating it wished the lease to be renewed. Written notice of renewal should have been delivered to REAL by December 31, 1995. GCB says it entered into negotiations with REAL in November of 1995 for possible relocation of the bingo hall to other premises as an alternative to renewal of the existing lease. GCB says these negotiations continued in January of 1996 but REAL terminated the negotiations and made deal with RCBA to lease the Jubilee Building premises directly to it commencing September 1, 1996. GCB says REAL's course of conduct should estop it from relying on the renewal terms of the lease. There is some dispute on the substance of these negotiations as reflected in the affidavits of Jim Hughston ("Hughston") and Dwayne Bauer ("Bauer") filed in support of GCB's position, and the affidavit of Tom Mullin ("Mullin") filed by REAL. GCB is prepared, for the purposes of this application, to accept the facts presented by Mullin where there is conflict with its position. Mullin is the marketing manager for REAL and is responsible for negotiating all long term leases and contracts at Regina Exhibition Park. He says no representative of FKJ ever indicated to him it wished to renew its lease of the Jubilee Building. He says he had discussions with Hughston in August of 1995, but not about lease renewal. In November of 1995 Mullin says he met with Hughston to discuss the future of GCB at Regina Exhibition Park and says he told Hughston there were number of alternatives to the current lease one of which was the Heritage Building. At paragraph of his affidavit he says the following: There was no discussion at that time about GCB renewing the Lease and all of our discussions at that time were on the basis of exploring all the alternatives available to GCB regarding its future presence at Regina Exhibition Park. There was no clear indication from Hughston that GCB was definitely going to stay at Regina Exhibition Park when the current Lease expired. When we concluded our meeting did not give him any assurances about the future and did not undertake that would get back to him regarding leased premises or terms of new lease. And at paragraph 10 he said the following: [T]here has never been an indication from GCB that it "intended to renew the lease of the existing space if necessary." In all of my discussions with representatives of GCB on the topic they have indicated that they had far more space than they wanted under the current Lease and in fact would have preferred to get out of the Lease. When we have discussed space other than the Jubilee Building it has only been in the context of the various alternatives available to GCB. There has never been clear indication that they wanted to renew the Lease. Mullin says he has never been asked by GCB or by FKJ to negotiate the amount of rent to be paid under renewal of the current lease. Currently bingo is being conducted at the Jubilee Building by RCBA on month to month basis, but there is no agreement in writing between REAL and RCBA with respect to the operation of the bingo hall in the Jubilee Building. THE LAW In Deloitte, Haskins Sells v. Brooker, Robinson, Ogrady and Ernst Whinney (1982), 1982 CanLII 2443 (SK QB), 23 Sask. R. 58 (Q.B.) Vancise J. described the general principles to be applied at p. 62 of his judgment: The following principles determine whether or not an interlocutory injunction will be granted: (1) An interlocutory injunction will only be granted where the right to relief is clear. (2) The plaintiff in asserting that right must show strong prima facie case, in support of the right which he asserts and strong possibility that he will succeed at trial. (3) The plaintiff must be able to show that an injunction until the hearing, is necessary to protect him against irreparable damage and loss, mere inconvenience is not enough. (4) Where any doubt exists as to the plaintiff's right or if his right is not disputed, but if violation is denied, the court should determine on the balance of convenience to the parties the nature of the injury which the defendant on the one hand would suffer if the injunction is granted and he should turn out to be right and that the plaintiff on the other hand might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater that [sic] which the defendant will suffer lies on the plaintiff. (Halsbury's Laws of England (3d Ed.), vol. 21, p. 364. See also Govan Local School Board v. Last Mountain School Division No. 29 (1991), 1991 CanLII 8031 (SK CA), 93 Sask. R. 229 at 234. Estey J. in Aetna Financial Services Limited v. Feigelman et al., 1985 CanLII 55 (SCC), [1985] W.W.R. 97 (S.C.C.) at 103 and 104 states that the rule as to the availability of an interlocutory injunction generally is as stated by McRuer C.J.H.C. in The Chesapeake and Ohio Railway Company v. Ball, 1953 CanLII 102 (ON SC), [1953] O.R. 843 at 854-55: The granting of an interlocutory injunction is matter of judicial discretion, but it is discretion to be exercised on judicial principles. have dealt with this matter at length because wish to emphasize how important it is that parties should not be restrained by interlocutory injunctions unless some irreparable injury is likely to accrue to the plaintiff, and the Court should be particularly cautious where there is serious question as to whether the plaintiff would ever succeed in the action. may put it different way: If on one hand fair prima facie case is made out and there will be irreparable damage if the injunction is not granted, it should be granted, but in deciding whether an interlocutory injunction should be granted the defendant's interests must receive the same consideration as the plaintiff's. DISCUSSION DOES THE APPLICANT HAVE STRONG PRIMA FACIE CASE? REAL submits the legal issues are clear. The lease requires that notice must be given by registered mail or personally delivered eight months before the end of the term of the lease. By implication it would appear this notice ought to be in writing. There is no evidence FKJ, the party with whom REALcontracted, exercised or attempted to exercise the option torenew. REAL submits the injunction application should fail on this basis alone as there is no privity of contract between the parties to this lawsuit. The sublease contains provision whereby GCB could have compelled FKJ to renew the lease, but there is no indication it acted in any way to exercise that right. REAL cites in support of its position Saint John Shipbuilding Dry Dock Co. Ltd. v. Canada (National Harbours Board) (1983), 48 N.B.R. (2d) 27 (C.A.) where the New Brunswick Court of Appeal held that tenant wishing to exercise an option to renew lease must comply with the conditions in the lease respecting the time of its exercise. The right to renew will be lost if the tenant fails to give notice in time and the tenant shall not be entitled to relief from forfeiture. The court relied on several English decisions including West Country Cleaners (Falmouth) Ltd. v. Saly, [1966] All E.R. 210, in which the Court of Appeal held at p. 212: [A]n option [to renew] is privilege right which has always been treated by the law as requiring complete compliance with the terms and conditions on which the option is to be exercised. The basis of GCB's application is estoppel. It says REAL entered into negotiations with it with view to the relocation of the bingo hall and then began to deal directly with GCB's subtenant after the renewal date had passed. In Re 6781427 Holdings Ltd. and Alma Mater Society of University of British Columbia (1987), 1987 CanLII 2889 (BC CA), 44 D.L.R. (4th) 257 (B.C.C.A.) the British Columbia Court of Appeal found that landlord was estopped from relying on the strict notice provisions of an option to renew the lease because it had entered into negotiations with the tenant about expansion and had advised the tenant it would advise the tenant of its position on date well after the renewal option deadline. The court found that, in the circumstances it would be inequitable to permit the landlord to rely on the failure to give written notice as required in the lease. Here, it would appear there were no negotiationsbetween REAL and GCB. The parties met once to discuss GCB's future at Regina Exhibition Park generally, but there is no evidence that REAL made any representations to GCB at the time. There was no promise on the part of REAL to follow up on these discussions, nor was there any discussion about waiving any requirements with respect to its exercising the option to renew either through FKJ or directly. I am not satisfied on the basis of Mullin\'s affidavitthat GCB has a strong prima facie case on the merits. IRREPARABLE HARM Sharpe, in his text Injunctions and Specific Performance (Toronto: Canada Law Book, 1983) at para. 15, says in connection with "irreparable harm": In the context of preliminary injunctive relief, the phrase is given more specific meaning, namely that the plaintiff, before the trial, must risk some injury which cannot be compensated or remedied other than through the granting of an interlocutory injunction. "Irreparable" is not used in the literal sense of being incapable of repair. It has simply been interpreted as "material" injury and "one which could not be adequately remedied by damages": Kerr on Injunctions, 6th ed. (1927), p. 18. GCB managed the business and sublet the premises to RCBA. Under the current arrangements, the business of bingowill continue to be operated by RCBA. If successful at trial the damages to GCB will be easily calculated based on the time it was unable to occupy the premises. BALANCE OF CONVENIENCE In the case of Confran Holdings Ltd. v. Pope (1985), 1985 CanLII 2567 (SK QB), 43 Sask. R. 63 at 67 (Q.B.) Grotsky J. cited 21 Halsburys Law of England (3d) 366 (para. 766) where it was stated: Balance of convenience considered. Where any doubt exists as to the plaintiff's right, or if his right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff. It is clear there will be some inconvenience to REAL if the injunction is now granted as it has undertaken new course of conduct for bingo at the Regina Exhibition Park with RCBA. There will also be some inconvenience to GCB if the injunction is not granted as it wishes to "renew" or "restore" state of affairs which has been in place for some time. Onbalance GCB has failed to satisfy the burden of proof that theinconvenience it will suffer by the refusal of the injunctionis greater than that which will be suffered by REAL if it isgranted. Therefore for the above reasons, and in the exerciseof my discretion, I hereby dismiss the application for aninterim injunction. Costs will be costs in the cause.

An application for an interim injunction restraining the Regina Exhibition Association (REAL) from interfering with GCB's enjoyment of certain leasehold premises in the Jubilee Building and from entering into any lease with Regina Central Bingo (RCBA) and preventing the operation of a bingo hall by RCBA within Exhibition Park except as sub-tenant of GCB. The original five year lease for use of the Jubilee Building as a bingo hall between Fundraising td. and REAL was assigned to GCB with REAL's written consent. GCB further sublet the building without REAL's consent or knowledge. Written notice of renewal was not sent to REAL. The basis of GCB's application was estoppel on the basis that REAL entered negotiations regarding a relocation of the bingo hall and then began to deal directly with CGB's sub-tenant after the renewal date had passed. HELD: The application was dismissed. Costs in the cause. 1)There was no evidence that Fundraisers, the original party to the lease, attempted to exercise the option to renew. 2)GCB did not have a strong prima facie case on the merits. It appeared that there were no negotiations between GCB and REAL. 3)There would not be irreparable harm. Under the current arrangements, the bingo would be operated by RCBA. If successful at trial the damages to GCB can be easily calculated based on the time it was unable to occupy the premises. 4)On balance GCB failed to satisfy the burden of proof that the inconvenience it will suffer by the refusal of the injunction will be greater than that suffered by REAL if granted.

7_1996canlii6810.txt

R. Green, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 237 Date: 2013 06 19 Docket: Q.B.G. 29 of 2012 Judicial Centre: Estevan BETWEEN: HER MAJESTY THE QUEEN and KENNETH BLAIR NEFF Counsel: Andrew S. Davis for the appellant (Crown) David G. Kreklewich for the respondent (accused) JUDGMENT GEREIN J. June 19, 2013 [1] In an information dated November 2, 2010, the accused, Kenneth Blair Neff, was charged that on or about the 23rd day of October, A. D. 2010, at Alida, in the Province of Saskatchewan:(1) ...while his ability to operate a motor vehicle was impaired by alcohol, did operate a vehicle, to wit an Automobile, contrary to Section 253(1)(a) of the Criminal Code. and, (2) ... having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit an Automobile, contrary to Section 253(1)(b) of the Criminal Code The trial was held on January 5, 2012 and on March 1, 2012, the accused was found not guilty of both charges. [2] The Crown did not pursue the first count, but did launch an appeal as to the second count. The grounds of appeal are two in number:1. That the learned trial judge erred in law by holding that the Respondent’s s. 10(b) Charter right was violated. 2. That the learned trial judge erred in law by excluding evidence pursuant to s. 24(2) of the Charter. Upon a review of the facts and circumstances and the law, I reject both grounds of appeal. [3] On October 22, 2010, the accused travelled from his hometown of Carlyle, Saskatchewan, to Alida, Saskatchewan. While there, he visited with an uncle in the latter’s home and then visited with second uncle in local bar. While there, he consumed five to seven drinks. He departed at approximately 2:30 to 2:35 a.m. on October 23, 2010. [4] Some 10 minutes later, at 2:47 a.m., he was stopped by Christopher Gramlich, constable with the R.C.M.P. who was on patrol at the time. There was nothing untoward about the operation of the vehicle, but it was decided to check the driver’s licence, the vehicle registration and sobriety. When the constable approached the vehicle, he asked the accused to put out his cigarette and produce his driver’s licence. It appears the accused had some difficulty locating the licence. The constable found this strange because he believed the licence was easily visible. However, he may have been mistaken. The document he observed may have been form of government identification. [5] slight odour of alcohol was noticed. In response to question, the accused stated he had consumed four or five drinks. There was no other observable sign of impairment. The constable then asked the accused to enter the police vehicle where he asked him to provide sample of his breath into an approved screening device. When the accused complied, the instrument registered “fail”. As result, the accused was arrested for impaired driving and read his right to counsel as follows: I’m arresting you for impaired driving. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the Legal Aid plan to you. can provide you with number you can call free of charge. Do you understand that? (Transcript, p. 17. lines 27 to 28 and p. 18, lines to 7) The accused stated he understood and when asked if he wished to consult counsel, he replied “sure”. He was told this would be done when they got to Carlyle. [6] Upon arrival at the detachment at Carlyle, the accused was placed in small room which was very sparsely furnished. telephone was never provided; telephone directory was never provided; and list of lawyers was never provided. What did happen was that the accused was asked the name of the lawyer he wished to consult. He replied with the name “Vaughn Taylor”. The constable misunderstood the name to “Vagnan”. subsequent search failed to come up with that name. [7] After that total failure, the accused provided the name of Brian Taylor. search of that name resulted in some 60 persons being brought forward. Considering the number and the early hour, the constable refused to pursue any of them. Instead, he again suggested Legal Aid, but the accused refused. At that time, this waiver was read to the accused: You have the right to reasonable opportunity to contact lawyer. am obliged not to take statement from you or ask you to participate in any procedure that might provide evidence against you until you have either exercised your right to that reasonable opportunity to contact lawyer or you are certain you do not want to contact lawyer. ... (Transcript, p. 31, lines 15 to 23) He was then asked if he understood the waiver and whether he was certain he did not want to contact lawyer. Both questions were answered in the affirmative. It is noted that the accused has no recollection of the waiver. See: transcript, p. 109, lines 21 to 24. [8] The accused then provided two samples of breath for analysis. His reasoning is found in the transcript at p. 107, lines 18 to 22: got the impression he was in hurry, because it sounded like he wanted me to blow right away, like because either take the Legal Aid or do without. So did without, because if you refuse, you’re automatically guilty, as far as know. At 0412, the reading was 110 milligrams of alcohol in 100 millilitres of blood and at 0434, the reading was 100 milligrams. Shortly after, the accused was transported to his home in Carlyle. CHARTER DECISION AT TRIAL [9] The learned trial judge had correct understanding of the applicable law: .. This is the decision on the voir dire. And so the issue on the voir dire is the accused’s right to counsel, and choice of legal counsel. This is section 10(b) Charter issue, and sets the right to counsel in perspective, being measure for an individual to rebalance their disadvantage vis-a-vis the state. It is to assist the accused in maintaining their liberty and protect against self-incrimination. Also, we have v. Prosper, [1994] [sic]. If it is alleged to if the accused is alleged to have waived their rights to counsel, the onus is on the Crown to show an unequivocal waiver of the standard for an effective waiver is very high as set by Prosper. The Saskatchewan Court of Appeal provided guidelines for trial judges to consider in v. Eashappie [2009], SKCA [sic] which follows the approach of the Alberta Court of Appeal in v. Luong, [2000] ABCA 301. Onus of breach of section 10(b) lies with the accused. There is an informational duty, which is not an issue in this case, and there is an implementational duty. The implementational duty has two aspects to it. First, to provide detainee with reasonable opportunity to exercise the right, and secondly, refrain from eliciting evidence from detainee until they have had reasonable opportunity to exercise the right to counsel. There are no issues of urgency or danger which is not of concern in this matter relating to that second implementational duty. So as to the first stage, the Crown has the burden to establish that the detainee who invoked the right to counsel was provided with reasonable opportunity to exercise the right. In this case it’s not an issue that the accused invoked his right to counsel. The case law also holds that person has the right to select counsel of their choice and that’s summarized in v. MacLaren, [2001] SKQB [sic]. The Crown has the burden of establishing that the accused was provided reasonable opportunity to speak to counsel of the accused’s choice. (Transcript, p.144, lines to 26; p. 145, lines to 25) [10] He then went on to make these findings of fact: 1. They arrive in Carlyle at 3:45 a.m. 2. The accused told the constable that he wished to consult particular lawyer, his cousin, one “Vaughn Taylor”. 3. The constable mistakenly understood the name to be “Vagnan Taylor”. 4. computer search of that name was unsuccessful. 5. The constable never disclosed that he understood the name to be “Vagnan”. 6. subsequent search of the name, “Brian Taylor”, produced some 60 hits. 7. The constable told the accused that he would not call that many people. 8. The constable did not provide list of the names to the accused and assumed the accused could not narrow the list down. 9. The error in the name, “Vaughn”, is that of the constable and remains so throughout. 10. The searches of the names took 12 to 13 minutes and was not reasonable. 11. The accused was not provided any material to assist in finding lawyer. In the end, the trial judge concluded that the accused was not given reasonable opportunity to exercise his right to counsel of his choice (transcript, p. 153, lines 12 to 24): As such, conclude that the accused was not given reasonable opportunity to exercise his right to counsel of his choice. The opportunity was lost by the error of the constable in the lawyer’s name search, and subsequent to that, lack of an alternative method used to search for the lawyer as indicated previously by using the name Taylor, search on the name Taylor, or Taylor Law Firm or V. Taylor. So in the matter, the accused has shown, on balance of probabilities, his Charter rights had been breached. This is the first stage of the analyses. [11] The trial judge then went on to consider remedy. He considered the criteria set forth in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353. He concluded that the appropriate remedy was to exclude the results of the analysis of the breath samples of the accused (transcript, p. 155, lines 18 to 26; p. 156, lines to 5): In conclusion, on balancing all factors, particularly the ease that the (inaudible) [sic] comply with section 10(b), and particularly in this case, no access to material to choose lawyer, and the constable’s, find, unreasonable effort at locating the requested lawyer, as such have concluded that the exclusion of the certificate, and any evidence as to breath samples given by the accused, all being subsequent to the Charter 10(b) breach is the proper remedy, and that the administration and the exclusion of such would not bring the administration of justice into disrepute, and it would cause that if the evidence was admitted. So that’s the ruling on the voir dire. STANDARD OF REVIEW [12] This appeal is brought by the Crown pursuant to ss. 813(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). On such an appeal, this Court does not enjoy an unfettered discretion. The standard of review was set forth in R. v. Helm, 2011 SKQB 32 (CanLII), 368 Sask. R. 115 at paras. 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and re‑weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. [13] Whether there has been breach of the Canadian Charter of Rights and Freedoms (“Charter”) and whether evidence should be excluded are both questions of law. As such, they are reviewable on standard of correctness. See R. v. Willier, 2008 ABCA 126 (CanLII), 429 A.R. 135 at para. 21 and R. v. Buhay, 2003 SCC 30 (CanLII), [2003] S.C.R. 631 at para. [14] At the center of this appeal are these two sections, both of which are found in the Charter: 10. Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; 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. [15] There are two issues to be addressed: 1. Was there breach of s. 10(b)? 2. If so, was it an error to exclude the certificate of analysis? In answering these two issues, it must be determined whether the trial judge was correct. [16] Each counsel cited several decisions from both Saskatchewan and elsewhere. have read them and others. They are useful as they give much guidance and am grateful. Unfortunately, none of them deal with factual situation like that which presents itself before me. [17] The purpose and importance of s. 10(b) of the Charter were discussed in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.R. 173, 118 D.L.R. (4th) 83. particularly note these remarks at para. 16 The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] S.C.R. 1233, at pp. 1242‑43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in position of disadvantage relative to the state. Not only has this person suffered deprivation of liberty, but also this person may be at risk of incriminating him‑ or herself. Accordingly, person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] S.C.R. 151, at pp. 176‑77; and Prosper. Under s. 10(b), detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. Throughout my deliberations, these comments have been with me. [18] There are two components to s. 10(b) the informational one and the implementational one. In this case, the first presents no problem. The accused was clearly informed of his right to consult counsel. It is the second component, the implementation, which presents the difficulty. In this instance, the accused was not provided an opportunity to consult counsel of his choice. It is necessary to determine whether responsibility for that failure lies with the state, in the person of the police officer, or the accused. [19] It is obvious that the implementation process went awry at the very start when the officer misunderstood the name of the lawyer desired and requested by the accused. Here make these observations. It is difficult to understand how the name “Vaughn” could be understood or heard as “Vagnan”. There really is no similarity. [20] One might suggest that the accused mispronounced the name. That strains credulity when one considers these facts. The name was that of relative who was known to the accused. It is most unlikely he would mistakenly pronounce the name. At all times he was alert, quiet and polite. His speech was not slurred. Again, it is unlikely that some physical impediment caused the accused to make mistake. It is much more likely that the officer made mistake. [21] Be all that as it may, the fact remains that when the computer search was negative, the matter was abandoned. The officer did not return to the accused to check the spelling of the name. Rather, another name was sought from and provided by the accused. When that computer search resulted in a large number of names, once again the officer did not turn to the accused in an attempt to reduce the number of names. Instead, the project was abandoned and waiver of counsel was read to the accused. [22] The police officer acted in perfunctory fashion and displayed an attitude of indifference, unconcern and haste. All of this was present from the time of the stop, when the accused entered the control and power of the police. Early on, the officer made serious mistake and then compounded it. The direct result was that the accused was prevented from consulting counsel of his choice. This constituted breach of s. 10(b) of the Charter. [23] The waiver did not remedy the deficiency for the accused did not fully comprehend the situation. This rendered any wavier ineffective. The trial judge committed no error in so finding and finding a breach of s. 10(b) for there was evidence to support both findings and there was no error of law. [24] Having so concluded the learned trial judge turned to s. 24(2) of the Charter and the test in R. v. Grant, supra. In that case, the Supreme Court speaks of balance taking into account the following: (1) The seriousness of the breach; (2) The impact of the breach on the practical interests of the accused; (3) The interest of society in the adjudication of the case on its merits. The ultimate question is whether the admission of evidence would bring the administration of justice into disrepute. [25] In this case, the trial judge addressed the factors and correctly applied the test. As there was no error, am not prepared to set aside his decision. am also mindful of these remarks in Grant, supra, at para. 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates decision tree, albeit more flexible than the Stillman self‑incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. CONCLUSION [26] In the result, the appeal is dismissed. There will be no costs. J. W. F. Gerein

The accused was charged with one count of impaired driving and one count of operating a motor vehicle while his blood alcohol content exceeded .08, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. After trial, the accused was found not guilty on both charges. The Crown appealed on the basis that the trial judge erred in law in finding that the accused's rights were violated pursuant to s. 10(b) of the Charter and by excluding the evidence pursuant to s. 24(2) of the Charter. The accused was stopped by RCMP at 2:47 am to check his licence, registration, and sobriety. There were no driving irregularities leading to the stop. The officer noted a slight smell of alcohol and the accused blew a 'fail' on the roadside screening device. The accused indicated at roadside that he would like to contact a lawyer. At the detachment, the accused was asked which lawyer he wanted to contact and the accused gave a name to which the officer misunderstood. A search for the misunderstood name by the officer did not result in any findings. A search for a second name given by the accused resulted in 60 persons and the officer did not pursue any of them. The officer suggested legal aid but the accused refused. The accused was never provided a phone or a phonebook. The accused subsequently indicated that he understood the waiver regarding legal counsel and that he did not want to contact one. The accused did not recall this waiver. The accused indicated that he provided breath samples right away because he thought the officer was in a hurry and he understood that if he did not provide breath samples he was automatically guilty. The accused's readings were .11 and .04. The trial judge held that the accused was not given a reasonable opportunity to exercise his right to counsel of his choice and that the appropriate remedy was to exclude the breath sample results. HELD: The appeal was not successful. Whether there has been a Charter breach and whether evidence should thus be excluded are both questions of law reviewable on a standard of correctness. There is both an informational component and an implementational component to s. 10(b). The implementational component was the one of concern because the accused was not provided with the opportunity to consult counsel of his choice. The appeal court had to determine who was responsible for that failure. The failure was that of the officer first in misunderstanding the lawyer's name, then in not asking the accused the name again, and then in abandoning the search of the second lawyer when too many names were returned. The waiver did not remedy the situation because the accused did not fully understand it and it was therefore not effective. The trial judge did not err in finding that the accused`s s. 10(b) rights were breached. The trial judge correctly applied the test for s. 24(2) and the finding that the admission of the breath samples would bring the administration of justice into disrepute was not set aside.

5_2013skqb237.txt

J. 1997 S.PHa (PH) No. 0357 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Flora Burt and Shelly Dawn Seward -and- Howard LeLacheur DECISION HEARD BEFORE: The Honourable Justice Robert W. Wright, in Chambers, at Arichat, Nova Scotia on October 7, 1999 ORAL DECISION: October 7, 1999 WRITTEN RELEASE OF DECISION: November 2, 1999 COUNSEL: Gerald MacDonald, Counsel for the Plaintiffs Paul McLean, Counsel for the Defendant WRIGHT, J. (Orally): This is an application on behalf of the plaintiffs, Flora Burt and her daughter Shelly Dawn Seward, now residents of Jasper, Alberta, essentially for an Order disallowing the limitation defence raised by Judgment Recovery on behalf of the defendant, Howard LeLacheur, pursuant to Section 10 of the Fatal Injuries Act. The action arises out of single car accident in which the defendant’s uncle, Vincent LeLacheur, was killed leaving him surviving his wife, the plaintiff Flora Burt, who was then pregnant with the second plaintiff, Shelly Dawn Seward. The accident occurred on August 12, 1972. The action itself was not issued until July 18, 1997. It was served on November 4, 1997 on the defendant, Howard LeLacheur and provided to Judgment Recovery on January 23, 1998. On February 23,1998, defence was filed by Judgment Recovery on behalf of the defendant. In that defence, paragraph reads that: “The Defendant pleads and relies on the Statute of Limitations (in Nova Scotia) and notes that the motor vehicle accident, which forms the subject matter of the Statement of Claim herein, is said to have occurred on the 12th day of August, 1972, now over 25 years ago.” An affidavit was filed by the plaintiff, Flora Burt, in support of this application in which she attests that the first time she became aware that the driver of the car at the time of the accident was or may have been Howard LeLacheur, rather than her deceased husband, Vincent LeLacheur, was in February of 1997 when she was so informed by family member named Kelly LeLacheur, who was in turn informed by another family member that this information had been revealed to him by Howard LeLacheur. Upon learning that, the plaintiffs sought legal advice which culminated in the commencement of this action by Originating Notice issued July 18, 1997. The action is brought under the provisions of the Fatal Injuries Act. While the Fatal Injuries Act preserves an action by those persons entitled to benefit under its provisions, there is very specific limitation period contained in Section 10 of the Act. It reads as follows: Not more than one action shall lie for and in respect to the same subject matter of complaint and every such action shall be commenced within twelve months after the death of the deceased person. In this case, that means in order to have complied with Section 10, the plaintiffs would have to have commenced their action under the Fatal Injuries Act not later than August 11, 1973. The action, in fact, was commenced on July 18, 1997, some 25 years later. What the plaintiffs say, however, is that they are entitled to rely on the discoverability rule coupled with the fraudulent concealment rule so that the limitation period, it is argued, should not begin to run until February of 1997, that being the date upon which they learned for the first time that Howard LeLacheur was or may have been the driver of the vehicle at the time of the fatality. It is submitted by plaintiffs’ counsel that the action is accordingly not out of time relying, as said, on the discoverability rule coupled with the fraudulent concealment rule. Since that is the main thrust of their position, the saving provisions of Section 3(2) of the Limitations of Actions Act really have no application here and that was conceded by plaintiffs’ counsel in an exchange with the Court in oral submissions this morning. The plaintiffs’ position here really stands or falls on the successful application of the discoverability rule coupled with the fraudulent concealment rule. The lead argument advanced by defence counsel on behalf of Judgment Recovery is that the discoverability rule does not apply to the limitation period specified in Section 10 of the Fatal Injuries Act. Mr. McLean is not suggesting that the plaintiff actually knew of the revelation about the identity of the driver of the car before 1997 but argues that the discoverability rule does not apply to limitation period such as is found in Section 10 of the Fatal Injuries Act because that limitation period is prescribed regardless of the plaintiffs’ knowledge or state of knowledge. had occasion to consider this issue not too long ago in the case of Marshall Parker et al. (S.H. No. 139222) upon which defence counsel relies. In that case cited, with approval, the reasons for judgment of the Manitoba Court of Appeal in Fehr Jacob 1993) 1993 CanLII 4407 (MB CA), 14 CCLT (2d) 200 where Justice Twaddle said as follows: “In my opinion the Judge-made discoverability rule is nothing more than rule of construction. Whenever statute requires an action to be commenced within specified time from the happening of specific event, the statutory language must be construed. When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injuries sustained, the Judge-made discoverability rule applies. But when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the Judge-made discoverability rule may not extend the period the Legislature has prescribed.” also make reference to the decision of the Nova Scotia Court of Appeal in Sawh Petrie (1987) 76 NSR (2d) 223 where Justice Matthews said at page 234: “The principle or rule as expressed in Kamloops and Central Trust is applicable where the enactment speaks of the tolling of prescription after the cause of action arose. It is not applicable here where the tolling begins “after the date in the matter complained of such professional services ... terminated. For these reasons am of the opinion that the result in Kamloops and Central Trust cannot be obtained here.” In both cases have just referred to, the commencement of the limitation period was marked by or triggered by the termination date of professional services, an event which clearly occurs without regard to the injured party’s knowledge. Likewise, Section 10 of the Fatal Injuries Act identifies specific event for the tolling of prescription. It does not speak in terms of the limitation period running from the time when the cause of action accrued. If that were the case, it might be open to interpretation, and the discoverability rule could be invoked as rule of construction. It cannot, however, be invoked in respect of Section 10 of the Fatal Injuries Act for the simple reason that the Legislature has prescribed the happening of specific event, namely, the death of the deceased person, from which the prescriptive period begins to run. It is without regard to the injured party’s knowledge. So, for reasons similar to those which expressed in Marshall Parker, supra, have concluded that the discoverability rule does not apply in this case. The only remaining issue that think need address in rendering this decision is the correlating argument by plaintiffs’ counsel that there was fraudulent concealment on the part of the defendant, Howard LeLacheur, of the alleged fact that he was the driver of the vehicle when the accident took place some 25 years earlier and not Vincent LeLacheur. Plaintiffs’ counsel submits that such withholding of information, coupled with the discoverability rule above mentioned, should prevent the limitation period from starting to run until February of 1997. In my view, the plaintiffs have failed to establish that they are entitled to rely on the application of the fraudulent concealment principle. It is neither pleaded in the Statement of Claim, nor is there anything approaching satisfactory evidentiary basis before me upon which claim for fraudulent concealment can be made out. To date, there has been no discovery or interrogatories or any other sort of pre-trial procedures involving the defendant, Howard LeLacheur although understand Mr. LeLacheur has not been cooperative in participating in this litigation. At the same time, neither has he been examined on discovery through notice. The fact of the matter is that we have nothing in the way of evidence from Howard LeLacheur, nor do we have evidence from any of the family members through whom this chain of communication came, nor from the R.C.M.P. to whom this statement was allegedly made by Howard LeLacheur. At the same time, we have admissions by the plaintiff, Flora Burt, in her discovery examination which took place on October 29, 1998 of her failure to make any inquiries about the accident of any sort to anyone, family members, R.C.M.P., or whomever. At no time did she make any inquiries to anyone until she says she was contacted in February of 1997 by family member passing on the revelation from Howard LeLacheur as to the identity of the driver at the time of the accident. Mr. McLean has filed an affidavit attached to which is the discovery transcript of the evidence taken from Flora Burt on October 29, 1998. Mr. McLean makes reference to several passages in his brief but the two most prominent passages are to be found first at page 30 of the transcript where, after asking several questions laying the foundation, the question was asked to Ms. Burt: Q. Was there reason you hadn’t seen either Howard or his father? A. Oh, seen them. just didn’t speak to them about the accident. Secondly, at page 39, Ms. Burt was asked the question: Q. And so from 1972 up to February of 1997 you hadn’t made any inquires or investigations to find out who the driver had actually been? No. The situation, in short, is that we have plaintiff, Flora Burt, who until 1997 made no inquiries to Howard LeLacheur or any other family member, nor the police as to how this accident happened. She could have asked Howard LeLacheur that question but for some reason did not do so which find surprising even though she was at relatively young age and pregnant at the time. In the result, 25 years went by without anything being said by the parties to one another about the tragedy that had taken place. To compound the difficulty surrounding this application, it is to be noted that the revelation even as made is based on double hearsay, i.e. from Howard LeLacheur allegedly to, believe, his brother, then on to daughter and then on to Flora Burt. All things considered, there has not been established sufficient evidentiary basis upon which this Court can make finding of fraudulent concealment on the part of the defendant. In the result, the plaintiffs’ application to disallow the defence of limitation is dismissed. In the peculiar circumstances of this case, I decline to award costs to Judgment Recovery.

The deceased was killed in a single car accident in 1972, leaving his wife, the plaintiff, who was pregnant with the second plaintiff, his daughter, as his survivors. In 1997, the plaintiffs first learned through other family members that the defendant, a nephew of the deceased, had revealed to them that it was actually he who was the driver of the car at the time of the accident. They brought an action under the provisions of the Fatal Injuries Act. This was an application to disallow the limitation defence raised by Judgment Recovery on behalf of the defendant. Dismissing the application without costs, that the limitation as prescribed by the Act is twelve months, which the plaintiffs had clearly exceeded. This time period is without regard to the injured party's knowledge of whether or not a claim exists.

9_1999canlii1682.txt

1993 S.H. No. 93‑5605 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HARRY GRANT and ALLSTATE INSURANCE COMPANY, body corporate, ALLSTATE INSURANCE COMPANY OF CANADA, body corporate, ALLSTATE LIFE INSURANCE COMPANY, body corporate, ALLSTATE LIFE INSURANCE COMPANY OF CANADA, body corporate, Defendant HEARD: at Halifax, Nova Scotia, before the Honourable Justice A. David MacAdam, on December 10, 11, 12, 13 and 14, 1995. DECISION: Orally December 14, 1996 RELEASE OF DECISION: February 16, 1996 COUNSEL; R. Ritchie Wheeler, Esq., for the plaintiff D. Geoffrey Machum, Esq., for the defendant J.: On November 5, 1991, the plaintiff, Mr. Grant, together with three other sales agents employed by the defendant, herein "Allstate", were notified their employment was being terminated. At the time, the plaintiff was also advised he would receive salary continuation and benefits (excluding disability) "until January 5, 1993, or until you secure alternative employment, whichever first occurs". In addition, Allstate agreed to provide him with the relocation counselling services of Peat Marwick Stevens Kellogg. BACKGROUND Mr. Grant joined Allstate in November, 1965, and continued in their employ, as a sales agent, for approximately 26 years. The Allstate agent's compensation agreement, in force at the time of his termination, provided for monthly compensation based on the "net written premium on new policies recorded in your account during the previous month" calculated in accordance with certain percentages for the different lines of insurance as therein stipulated together with renewal compensation calculated by reference to the "net premium on renewal policies recorded in your account during the two production quarters preceding the particular compensation quarter" multiplied by the applicable percentages and with the resulting dollar amount totalled and divided by six. Although the formula for calculating the plaintiff's compensation was changed in January, 1967, the basic format of the compensation remained the same, namely, after achieving certain minimums prior to which he was entitled to receive guaranteed monthly compensation from Allstate, Mr. Grant was to be paid on the basis of new policies written during the previous month together with renewal compensation calculated using the average renewals for the prior two quarters. Mr. Grant's success as sales agent, measured by the level of his compensation as compared to that of the other sales agents, placed him at or near the top of Allstate's sales agents employed within the Province of Nova Scotia. Nevertheless, and although Allstate has not, at any time, sought to justify the termination on the basis of cause, there were concerns expressed about Mr. Grant's lack of productivity in obtaining new policies and, in particular, in writing new life insurance policies. In the mid‑1980's, Allstate initiated program it entitled "The Neighbourhood Office Program" and invited its agents to convert to this program. At the same time, agents were offered new compensation contract that effectively increased the level of compensation on new policies written and at the same time reduced the level on renewals. By letter dated December 8, 1989, Lawrence E. Clodge, Senior Vice‑President, advised that effective July 1, 1990 no further conversions to the Neighbourhood Office Program status or the new compensation contract would be available to agents on staff prior to the introduction of these programs. At the same time he advised, in his letter to Mr. Grant, that it was the intention of Allstate to "direct all evolving technology regarding point of sale assistance to retail and Neighbourhood Office environments only". The plaintiff declined to accept the program on the basis the Neighbourhood Office Program required the agent to fund their own expenses and would not, in his opinion and in his circumstances, be of benefit to him. Because the bulk of his compensation, at this time, was for policy renewals, he believed the effect of the emphasis on new business represented by the increase in the rate of commission for new business, and the reduction in the rate for renewals, would have adversely affected his level of income. Similarly, in respect to the Neighbourhood Office Program, the transfer of responsibility for office expenses to the agent would, in the view of Mr. Grant, result in an overall reduction in his level of compensation. Mr. Grant testified he was assured by Dennis Madden, the Atlantic Canada Sales Manager of Allstate, that although his office might be on the 15th floor of an office tower there would always be "a place for him to work". Mr. Madden, on the other hand, although acknowledging there were number of discussions between himself and Mr. Grant about the new compensation contract and the Neighbourhood Office Program testified he has no recollection of ever saying to Mr. Grant he would be able to keep his job even if he didn't agree to go along with the Neighbourhood Office Program. By 1991, Allstate, having concluded that its business plans did not include the retention of direct offices, decided to close all direct offices, excepting only those in the Province of Quebec. On November 5, 1991, while Mr. Grant and his three fellow agents were being terminated, Allstate also closed all of the other direct offices in Canada, except only in the Province of Quebec. The decision to terminate the plaintiff was therefore the result of business plan involving the reorganization and restructuring of its sales agent system by the implementation of the Neighbourhood Office Program throughout Canada. At the meeting on November 5, 1991, the defendants' representatives restated the intention of Allstate to allocate and utilize its resources in supporting the new program and continued, in respect to the "direct office" where the plaintiff and the other three terminated sales agents worked: After considerable thought and analysis, it has been concluded that this office no longer complements our on‑going strategic direction and therefore, we must inform you that effective immediately we will no longer be serving customers out of this location. As such, your current position is no longer available." Although he was one of limited number of "senior" sales agents employed by Allstate, as of the time of his termination, Mr. Grant acknowledged, on cross‑examination, he had no managerial or supervisory functions and was not responsible for hiring or firing nor for the preparation of budgets. Mr. Madden also testified that direct office agents have no management or supervisory responsibility. He said by 1991 the only Maritime direct sales office of the defendant was the one located in Halifax where Mr. Grant and his three colleagues were the resident sales agents. He also confirmed the new compensation plan increased the commissions for new business and, at the same time, reduced commissions for renewals. The plan, he acknowledged, was intended to emphasize the creation of new business and therefore was consistent with the overall objectives of the Neighbourhood Office Program, although not part of the Neighbourhood Office Program. He testified existing agents were not required to accept the new compensation program even if agreeing to participate in the Neighbourhood Office Program. The compensation plan was only compulsory in respect to agents hired after its implementation by the company. Mr. Madden testified, to his understanding, the failure of Mr. Grant to accept the new compensation program had no part in his termination. He said Mr. Grant and the other three sales agents were terminated because the company was going in different direction that didn't include the continuation of direct offices. On re‑examination, Mr. Grant restated his belief that if he had accepted the Neighbourhood Office Program he would also have been required to accept the new compensation contract. Mr. Grant testified, following his termination, he experienced difficult emotional time realizing, at age 50, he had lost his job and his only source of income, and feeling he could have avoided the termination if he had decided to accept the Neighbourhood Office Program. He attended the counselling services funded by Allstate and talked to various persons in the insurance industry about his availability for employment. One of the persons with whom he spoke was Bill Sleigh, the President and owner of Sleigh Insurance Services. Mr. Sleigh testified Mr. Grant approached him about the prospects for employment. However, when informed Mr. Grant's employment contract with Allstate incorporated two year "non‑competition clause", he decided not to offer him employment. The clause in question reads: "For period of two years immediately following the termination of your employment under this agreement, you agree that you will not solicit or sell insurance of any kind A. with respect to any person, company or organization to whom you previously sold an Allstate policy, or B. within one mile from any Allstate location from which you solicited or sold insurance during the year immediately preceding such termination." Mr. Sleigh, on cross‑examination, acknowledged his office was within radius of one mile of the closed office. However, he said this was not the reason that had caused him to decline to offer position to Mr. Grant. Mr. Sleigh responded to counsel that his concern related to the prohibition against Mr. Grant selling insurance of any kind to any person, company or organization to whom he had previously sold an Allstate policy. The plaintiff decided his best option was to open his own office, in partnership with one of the other Allstate sales agents who was terminated in November, 1991. Allstate, in addition to writing and congratulating him on the opening of his business, took the occasion to remind him of the two year prohibition against soliciting insurance of any kind with respect to any person, company or organization to whom he had previously sold an Allstate policy. ISSUES 1. At the time of his termination, was the plaintiff owed any arrears of salary? 2. Has the plaintiff, in the circumstances, failed to mitigate his damages? 3. What, in the circumstances, is the period of reasonable notice to which the plaintiff was entitled? ARGUMENT 1. At the time of his termination, was the plaintiff owed any arrears of salary? The plaintiff submits at the time of his termination, in November 1991, Allstate was, in effect, one month in arrears in paying him compensation. The plaintiff suggests that since compensation is calculated, in part, on the basis of the prior month's productivity, he would not have received commissions for the sales generated by him during the month of October, 1991. His argument is founded on the premise that his salary was by way of commissions and, excluding the 14 months' salary continuation, he was not paid for commissions earned during the month of October, excepting to the extent he received compensation for the five days worked at the beginning of November, 1991. The submission of the plaintiff is without merit and involves misunderstanding as to the true nature of the terms of compensation as between himself and Allstate. Although calculated, in respect to new policies, on the prior month's productivity and with respect to renewals, on an averaging of the two prior quarters, the compensation paid each month is for the month worked rather than for the preceding month or some other period. Part IIA of the compensation agreement outlines the basis of calculating compensation "for each month of your employment", including the using of the prior month's sales, and in the case of renewals, the average over the previous two quarters. This interpretation of the terms for compensation is strengthened by the provisions dealing with payment on termination. Clause XII of Part IV provides, in part, as follows: "Any compensation payable under this agreement or any supplement thereto shall be payable only with respect to employment during the continuance of this agreement. When this agreement is terminated, your compensation for the month in which such termination occurs shall be determined as described below.” The clause then provides that where termination occurs at the end of month, the compensation for the final month is to be arrived at by applying the appropriate percentages to the net written premium on new policies recorded in the terminated employee's account during the month preceding such final month of employment, together with the monthly renewal compensation calculated by applying the appropriate percentage to the net written premiums on renewal policies recorded in the terminated employee's account, during the two production quarters preceding the compensation quarter in which the said final month falls, and then totalling the resulting dollar amount and dividing the total by six. The basis of calculation is therefore the same as for the monthly payments of compensation during the term of employment, namely the calculation of income based on the new policies sold during the prior month and the calculation, in respect to renewals, based on the average of the two preceding quarters. The clause then continues: "If, however, such termination occurs on date other than the last day of month, your compensation for the days during that month up to such termination date shall be calculated as though for the full month as above described but pro‑rated in accordance with the number of such elapsed days in that month." Clearly, both on an interpretation of the provisions dealing with the compensation itself, as well as the provisions dealing with compensation on termination of employment, there was, once he received pro‑rated amount to November 5, 1991, no month for which, to that time, he had not been compensated during his period of employment with the defendant. In fact, this is borne out, by his admission during his evidence, that there was no month of his employment with Allstate for which he was not paid. 2. Has the plaintiff, in the circumstances, failed to mitigate his damages? Allstate submits the plaintiff has failed to mitigate his damages arising out of the termination on November 5, 1991. In this respect they note the admission of Mr. Grant that if he had pursued obtaining employment, rather than commencing his own business, he would likely have obtained work with compensation at between $1,800 to $3,000 month. The defendant submits it is, in the circumstances, entitled to credit but claims this credit only to the extent that any awarded reasonable period of notice exceeds the already paid 14 months provided by the defendant to the plaintiff. Clearly, there is responsibility on the plaintiff to mitigate any damages arising as result of the termination, without notice, by the defendant. In Holland v. Midland Walwyn Capital Inc. (1993), 1993 CanLII 4537 (NS SC), 124 N.S.R. (2d) 204, Justice Davison, in dealing with the responsibility of the dismissed employee to seek alternative employment, stated, at p. 213‑214: "A wrongfully dismissed employee is required by law to make reasonable efforts to secure other employment. The doctrine of mitigation in wrongful dismissal cases was set out by Chief Justice Laskin in Michaels et al. v. Red Deer College (1975), 1975 CanLII 15 (SCC), N.R. 99; 57 D.L.R.(3d) 386 (S.C.C.), as follows: 'The primary rule in breach of contract cases, that wronged plaintiff is entitled to be put in as good position as he would have been in if there had been proper performance by the defendant is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.' The burden is on the defendant to show an employee could have avoided portion of the loss. An employee may reject alternate employment if it is reasonable to do so. Generally, an employee is entitled to await position analogous to his or her former employment. The dismissed employee, Mr. Holland, like Mr. Grant, began his own firm. Justice Davison found he made little effort to secure alternative employment and on the issue of mitigation concluded, at p. 214: "Midland has satisfied me that Holland's efforts to mitigate were scant. cannot accept the submission on behalf of Holland that 20 months is reasonable notice period. find that proper notice period on the evidence to be 14 months, notwithstanding Holland's long service with Midland. have no doubt that after 14 months following his departure from Midland, Holland would have secured position with comparable income if he had not elected to start new business." In the present circumstances, it is clear, although contacting number of persons involved in the insurance industry, Mr. Grant did not pursue the possibility of alternative employment with enthusiasm or commitment. On his evidence, he prepared neither resume nor sought recommendation from his former employer in order to assist him in such pursuit. Although he spoke to number of persons in the insurance industry, it is clear that early on he reached the decision to establish his own business, in partnership with another of his terminated colleagues. The question then becomes, whether or not his course of conduct was, in the circumstances, reasonable. In this respect, the evidence of Mr. Sleigh to the effect that the existence of the "non‑competition" clause was material factor in determining whether to offer Mr. Grant position is also relevant in considering the reasonable alternatives available to Mr. Grant following his termination. Clearly, his ability to generate income in job where compensation is measured by formula tied to productivity would be severely hampered by prohibition against selling to any person he had been successful in selling on behalf of his former employer. At age 50 he would presumably, for the first two years at least, be limited to contacting persons for whom he had no prior business dealings or associations, unless he had previously been unsuccessful in selling them insurance on behalf of the defendant. Clearly, where the employer seeks to enforce the "non‑competition" clause, of which here this is not in dispute, it must recognize this may constitute factor in determining whether or not the terminated employee has made reasonable efforts to seek and obtain alternative employment. The evidence of Mr. Sleigh confirms the existence of this clause as an impediment to Mr. Grant's successfully obtaining new employment. On the other hand, and although the non‑competition clause would equally apply to the business which he established, the restrictions against contacting former clients would be offset against the anticipation of long‑term benefits in establishing his own business. In all the circumstances, his course of conduct was not unreasonable, and as such, did not constitute a failure by the plaintiff to mitigate his damages. 3. What, in the circumstances, is the period of reasonable notice to which the plaintiff was entitled? The factors cited by Chief Justice McRuer in Bardal v. The Globe Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 are often cited in deciding the period of reasonable notice to which dismissed employee is entitled, in the absence of just cause. At p.145, Chief Justice McRuer says: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant." In Squires v. Ayerst, McKenna Harrison Inc. (1991), 1991 CanLII 4349 (NS SC), 104 N.S.R. (2d) 124 (N.S.S.C.), at p. 136, Gruchy, J. listed number of factors he considered in determining the appropriate length of notice to which dismissed employee was entitled. Gruchy, J. considered: 1. the availability of similar employment in this regard; 2. the plaintiff's relatively high corporate status for person of his age; 3. the plaintiff's age, which is factor reducing the period of notice herein; 4. the plaintiff's length of service with the defendant; 5. the plaintiff's loyalty to the defendant; 6. the marital and family status of the plaintiff; 7. the apparent contribution of the plaintiff to the defendant in terms of building business and in the performance of his job; 8. the degree of security of position which the plaintiff ought reasonably to have anticipated; 9. the plaintiff's relocation from his original home to his present residence in Nova Scotia; 10. there was no evidence to indicate that the nature of the defendant's business was such as would lead the plaintiff to anticipate mobility of employment. 11. the manner in which the plaintiff was dismissed; 12. lack of forewarning; 13. the accusation by the defendant that the plaintiff had, in effect, acted fraudulently to obtain personal benefit, (although this is factor which may more appropriately affect costs); 14. actions of the defendant taken subsequent to the dismissal in an apparent attempt to justify it." With the exceptions of numbers 9, 10, 13, and 14, the plaintiff submits the remaining factors are also relevant in determining the appropriate period of notice in respect to the dismissal of the plaintiff by Allstate. In this respect, counsel suggests that "availability of similar employment not only includes employment of like nature or character but also includes employment of an equivalent or reasonably close pay scale." Counsel notes that at the time of dismissal the plaintiff's compensation was in excess of $90,000.00 annually, and for person of his age and education, with his experience limited to the field of insurance sales, and in view of the "non‑competition clause imposed by the defendant", no similar employment was available to the plaintiff. Although "availability of similar employment" is clearly factor to be considered in deciding the appropriate period of notice, the submission of plaintiffs counsel places, in our view, too narrow focus on what is meant by "availability of similar employment" in the context of dismissed employee. Although the characteristics noted by counsel are relevant, they do not preclude consideration of whether, having regard to the age, educational and experience background and interests of the dismissed employee, there may be similar employment, although at compensation level substantially less than that previously enjoyed by the dismissed employee. Comparable compensation level is factor but its absence doesn't preclude an examination of reasonable alternatives. Clearly, as suggested by counsel, the plaintiffs age is factor, particularly where the basis of compensation is dependent upon developing "book of repeating clients". Mr. Grant's years with the plaintiff had enabled him to develop such 'book of clients" who annually renewed their contracts of insurance with Allstate, thereby providing the plaintiff with continuing income, calculated, in part, on these renewals. Clearly, at age 50, the plaintiff's prospects for developing "book of repeating or renewal business" was not as great as it was in his 20's particularly when he is precluded for two years, from soliciting or selling insurance to persons he had earlier sold insurance on behalf of the defendant. His age, combined with the nature of the business, and the format of compensation, are clearly factors to be considered. Although, there was some evidence of concerns by the defendant, on the plaintiffs failure to achieve marketing goals in respect to new business, and in particular, life insurance, there was no suggestion he was other than an "honest and loyal employee", as submitted by his counsel. He was, as also suggested by his counsel, the "major bread winner" in his family. Counsel also referred to the circumstances of the dismissal, including the lack of any prior warning by the defendant indicating the plaintiffs job was in jeopardy. suggested "non‑factor" is the lack of managerial or supervisory responsibility of the plaintiff in his former position with Allstate. In his supplementary memorandum, counsel refers to the decision of Justice MacPherson in Cronk v. Canadian General Insurance Company (1994), 1994 CanLII 7293 (ON SC), 19 O.R. (3d) 515. 55 year old plaintiff was terminated as an assistant underwriter following 29 years service. In awarding the plaintiff 20 months salary, as damages in lieu of notice, Justice MacPherson dismissed, as factor, considerations of the nature and character of the employment as they related to managerial and non‑managerial functions. In so dismissing the managerial/clerical distinction, Justice MacPherson noted studies by the Council of Ontario Universities reviewing the relationship between education and employment. He then continued, at pp. 525‑526: Drawing on the statistical material compiled in their studies, the Council of Ontario Universities describes the employment situation in Canada and in Ontario in the early 1990s in these terms (The Financial Position of Universities in Ontario: 1994, v. 2): [I]n Canada ... [w]hile the number people who did not go any further than high school and who were employed decreased substantially during both 1991 and 1992, the number of university graduates who held jobs increased in both years ... [E]ven in recession wracked Ontario, the number of university graduates who were employed has increased each year while the number of employed men and women without post‑secondary training has been sharply reduced since 1990. My conclusion, based on the above data, is that it is wrong to contend, as the defendant has, that clerical workers like Ms. Cronk or other employees in low level positions should receive shorter notice period than managers or professionals because the former are likely to obtain new positions more quickly than the latter. Indeed, the data support the opposite conclusion. Statistically speaking, in Ontario in 1993 fired clerical employee was in terrible situation with respect to finding employment." However, on appeal, the Ontario Court of Appeal, at 1995 CanLII 814 (ON CA), [1995] O.J. No. 2751, rejected the dismissal by MacPherson, J. of "character and nature of employment" as factor in determining the appropriate period of notice. LacourciŠre, J.A. in reasons, generally concurred in by Mordin, A.C.J.O., stated at p. 33‑34: The principle that senior employees are entitled to lengthier periods of notice has also been applied in Ansari v. British Columbia Hydro and Power Authority (1986), 1986 CanLII 1023 (BC SC), B.C.L.R. (2d) 33 where McEachern C.J.S.C. stated at p. 43: At the end of the day the question really comes down to what is objectively reasonable in the variable circumstances of each case, but repeat that the most important factors are the responsibility of the employment function, age, length of service and the availability of equivalent alternative employment, but not necessarily in that order. In restating this general rule, am not overlooking the importance of the experience, training and qualifications of the employee but think these qualities are significant mainly in considering the importance of the employment function and in the context of alternative employment. The argument before MacPherson, J. proceeded on the express acceptance by both parties of the distinction between clerical and managerial employees, and on the concession that the respondent's function was clerical and did not involve specialized knowledge or managerial responsibilities. Despite these concessions, the motions court judge rejected principle which has been widely accepted and applied by trial judges and Canadian appellate courts and which has found favour with the Supreme Court of Canada in Machtinger v. Hoj Industries Ltd., 1992 CanLII 102 (SCC), [1992] S.C.R. 986. Iacobucci J. quoted the classic statement of McRuer C.J.H.C. in Bardal, noting that it is the most frequently cited enumeration of factors relevant to the assessment of reasonable notice (at p. 998). The following cases are indicative of the wide acceptance by appellate courts of the Bardal principle: Dafoe v. Microtel Ltd. (1987), A.C.W.S. (3d) 433 (B.C.C.A.), McHugh v. City Motors (Nfld.) Ltd. (1989), 1989 CanLII 265 (NL CA), 74 Nfld. P.E.I. R. 263 (Nfld. C.A.), Wiebe v. Central Transport Refrigeration (1994), 1994 CanLII 6406 (MB CA), C.C.E.L. (2d) (Man. C.A.), Pelech v. Hyundai Auto Canada Inc. (1991), 1991 CanLII 920 (BC CA), 63 B.C.L.R. (2d) 24 (C.A.). In Desnaulniers v. Wire Rope Industries Ltd., judgment of the British Columbia Supreme Court released April 21, 1995, Baker, J. referred to Justice MacPherson's decision under appeal and stated at p. 34: Whether Justice MacPherson is correct in his interpretation and application of the law in Ontario, the applicable law in British Columbia is expressed in Ansari [supra] and Pelech [supra]. In another judgment of the British Columbia Supreme Court, Hester v. International Land Corp. (released March 28, 1995), Errico J. refused to depart from the principle enunciated in the Ansari decision and rejected the conclusions reached by MacPherson J. in the judgment under appeal. The Cronk decision on the notice period was, however, followed by Ferrier J. in Kwasnycia v. Goldcorp. Inc., an unreported decision of the Ontario Court General Division, delivered January 10, 1995. In my opinion, the learned motion court judge's reasons do not justify departing from the widely accepted principle. He erred in doing so on the basis of his own sociological research without providing counsel an opportunity to challenge or respond to the results of the two studies relied upon. agree with the appellant that the factual conclusions which he drew from these studies are beyond the scope of proper judicial notice. As noted by this court in R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195, at p. 201: [I]t has been held that, generally speaking, court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources who accuracy cannot reasonably be questioned. The conclusion of the motions court judge based on the studies prepared by the Council of Ontario Universities are obviously not so generally known or accepted as to challenge the validity of an established principle which has found judicial acceptance for over three decades. It is not, as the respondent contended, an undisputed 'social reality' as was the background information concerning the circumstances encountered by spouses at the dissolution of marriage, in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813 at 874. Before taking new matters into account based on statistics which have been considered in the judgment under appeal, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response." Justice Morden, in separate reasons, noted at p.49: "... There can be no doubt that the case law in this country, before and after Bardal, and in England, has generally recognized seniority as being factor favouring longer notice periods." He then, at p.50 continues: "I agree with LacourciSre J.A. that MacPherson J. erred in collapsing the 'character of employment' factor into the re‑employability factor. It may be that it cannot be said dogmatically that senior employees take longer to find new employment than do junior ones. However, if the policy of the law which makes responsibility of employment factor favouring longer notices is one that requires reconsideration, do not think, having regard to the record in this case and the positions taken by the parties before MacPherson, J., that this is an appropriate case in which to embark on such reconsideration." Similarly, nothing has been here provided to justify departure from the long accepted consideration of the nature of the employment function as one of the factors to be considered in assessing the appropriate reasonable period of notice. Although the data referred to by MacPherson, J. suggests, and it really is indisputable, that the work force is increasingly composed of persons with university degrees, this does not mean that dismissed persons with senior managerial or supervisory responsibilities will be more likely to find alternative employment than persons without such responsibilities. The data referred to by Justice MacPherson simply confirms that the work force is now composed of greater percentage of university graduates than formerly. The likelihood of re‑employment remains factor of the availability of suitable positions in the marketplace. Until, however, there are as many managerial or supervisory positions as there are non‑managerial and non‑supervisory positions, the fact remains there will be more of an opportunity for an individual seeking non‑managerial or non‑supervisory position to obtain new or replacement employment. It may well be, and certainly is irrelevant to the issues to be decided in this case, that persons with university degrees will accept non‑managerial or non‑supervisory positions. Managerial and supervisory functions are part of the characteristics of employment and the extent to which they are or are not present, remain one of the factors to be considered in determining the appropriate period of notice pursuant to the enumeration of factors in Bardal. The plaintiff, in dismissing the managerial/clerical distinction, cites number of Nova Scotia decisions involving periods of notice of between 15 and 24 months. The defendant, in response, notes that in each case the dismissed employee occupied position of management or of supervisory responsibility and this was one of the factors considered by each court in assessing the appropriate or reasonable period of notice to which the dismissed or constructively dismissed employee was entitled. Counsel for the defendant also refers to the decision of Justice Holland in Kiffe v. Allstate Insurance Company of Canada (1986), O.J. 661 where, after finding the termination was for just cause, he provisionally assessed the period of notice for 52 year old salesperson who had worked for Allstate for period of almost 20 years, apparently performing functions essentially similar to that of the plaintiff, at 12 months. The plaintiff cites the decision of the Nova Scotia Supreme Court in Connor v. Canada Life Insurance Company (1991), 108 N.S.R. (2d) 361 where 53 year old plaintiff was dismissed from clerk‑related duties after 12 years of employment. The period of notice deemed appropriate was 10 months reduced by one month, on the principle of "near cause". Considering the nature of Mr. Grant's position, and although not involving managerial or supervisory functions, it is clear, as reflected by the level of his income, that he had been successful in developing substantial clientele, and thereby promoting the interests of the defendant as well as of himself. To recognize the nature of his employment is not to dismiss the contribution by Mr. Grant, during his period of service with Allstate, nor to minimize the degree to which the defendant has benefitted by his efforts. In assessing the appropriate period of notice, taking into account the principles cited by Chief Justice McRuer in Bardal, as well as the factors listed by Justice Gruchy in Squires, there are two additional factors that are relevant in the particular circumstances of this case. Firstly, the court is aware, through the evidence and the positions of the parties, that Mr. Grant received salary continuation for period of 14 months following his termination in November of 1991. Secondly, and despite the volume of authorities as well as learned articles on the subject, the determination of reasonable notice is not "precise science" such as to necessarily result in one period being reasonable and another, approximate but different period, being therefore unreasonable. Absent information, as to what has already been provided by Allstate to the plaintiff, the court would then have chosen one of these as the period to which the plaintiff was entitled. In the circumstances of Mr. Grant, is the defendant entitled to ask whether the 14 months of salary continuation was unreasonable and, receiving negative response, to seek the dismissal of the plaintiffs claim; or, is the plaintiff entitled to ask whether some period in excess of 14 months notice was reasonable, in all the circumstances, and upon receipt of an affirmative response, to recover damages calculated on the difference between the amount already paid and the amount awarded. potential additional and significant effect of how the question is stated and answered is the matter of costs and the application of the general principle that "costs shall follow the event". In this regard, it is necessary to consider the concept of "ballpark justice" or "fairness" and its possible application in the present circumstance. In Employment Law Manual, by John R. Sprout, (Carswell, 1992), Volume at p. 6‑22.1, the author observes: "The concept first appeared in the following trilogy of cases in the Supreme Court of Ontario: Perry v. Gulf Minerals Can. Ltd. (1985), 30 A.C.W.S. (2d) 524 (Ont. H.C.); Rivers v. Gulf Can. Ltd. (1986), 13 C.C.E.L. 131 (Ont. H.C.); and McKee v. NCR Can. Ltd. (1986), 10 C.C.E.L. 128 (Ont. H.C.). The classic statement on ballpark justice was made by Mr. Justice R.E. Holland in Perry, as follows: It appears to me that in judging the severance arrangements should not arbitrarily fix what consider to be proper period of notice based on the facts of the case and the authorities, but rather should approach the matter first on the basis of whether or not the employer's severance arrangements were fair. If the period of notice under the severance arrangements was reasonable, then do not think that should interfere or tinker with the result. If the period notice was unreasonable, that is different matter and the Court should interfere. (at p.6 of the judgment). This doctrine was subsequently applied in McKee by Mr. Justice Reid of the Ontario Supreme Court. In that case, the employee had been offered 12 months' notice upon termination by the employer. In all the facts of the case, Reid J. found that he might have granted 12 to 15 months' notice. Applying the ballpark justice doctrine, however, Mr. Justice Reid found that the employer's offer of 12 months' notice was within the 'reasonable range' and awarded the employee 12 months' notice." Justice Rutherford of the Ontario General Division in McCrea v. Conference Board of Canada (1993), 45 C.C.E.L. 29 rejected the concept of "ballpark justice" or "reasonable range" on the basis it afforded "curial deference" to the position of the employer, an approach normally reserved only for judicial review of decisions taken "in judicial or quasi‑judicial setting where reasonable result is the duty of the authority making the assessment." He continues by observing there is no such mandate on an employer in providing notice, or compensation in lieu thereof, to dismissed employee. He then, at pp. 35 or 36, says: ". Moreover, do not see any basis for proceeding in fashion which has the result of placing the dismissed employee in position of having an onus to show that the notice given was beyond the bounds of what anyone considers reasonable. It is all very well to say that it is consonant with the requirement that reasonable notice be given, that the notice or payment in lieu thereof must therefore be assessed to determine if it was reasonable. But should that really lead to anything other than the traditional approach in which what is reasonable is determined in court as matter of fact, or mixed fact and law? ... We all know that reasonable people may differ on matters but that, in my view, should not deprive the plaintiff in wrongful dismissal action from seeking the uncompromised judgment of the court." The approach was similarly rejected by Justice Ferguson in Garvin v. Rockwell International of Canada Ltd. (1993), 50 C.C.E.L. 295 (Ont. Gen. Div.), where, at pp. 302‑304, he states: "In my view it is not appropriate to apply threshold or ballpark approach. In my view the trial court should not express its view by reference to range but should make specific determination as to what it thinks is the reasonable period of notice in the circumstances and then award judgment if the employee received any less." On the other hand, as noted in the Employment Law Manual, supra, the principle has received some favourable consideration in other jurisdictions, and in particular, by the New Brunswick Queen's Bench in Locke v. Avco Financial Services Can. Ltd. (1987) 85 N.B.R. (2d) 93, 217 A.P.R. 93 (Q.B.), where the court, at p. 99, stated: "There is logic to this approach. Settlements should be encouraged and as well employers should be encouraged under these circumstances to make reasonable proposals rather than treating the matter in totally adversary fashion." The Court, however, at pp. 99‑100, concluded that: "In the present circumstances the defendant's proposal was for nine months firm and the possibility of further six months on month to month basis. In addition there was disagreement between the parties with respect to pension contributions and bonus payments. As shall detail shortly it is my finding that the plaintiff was entitled to recognition of these compensations. In the appropriate case one might well be inclined to follow the rationale referred to. On the facts in the present case do not feel that the proposal put forward by the defendant was such as to modify my consideration of period of 18 months notice as being reasonable." On the other hand, this doctrine or principle was rejected by the Alberta Queen's Bench in Heinz v. Cana Construction Co. (1987), 1987 CanLII 3203 (AB QB), 55 Alta. L.R. (2d) 382, 82 A.R. 197 (Q.B.)., where Justice Stratten also interpreted the principle as one of "curial deference" and found it inappropriate in determining the appropriate or reasonable period of notice to be afforded to dismissed employee. He concurred with the comments of O'Driscoll J. in Grant v. MacMillan Bloedel Indust. Ltd. (1982), 83 C.L.L.C. 12007 at 12012 (Ont. H.C.), that such "curial deference" is not applicable to the employer since they are not an impartial nor an independent third party judicial arbitrator. The British Columbia Supreme Court in Michalchuk v. B.C. Hydro Power Authority (1987), 1987 CanLII 4025 (ON CJ), A.C.W.S. (3d) 418 (B.C.S.C.), stated: "While respectfully prefer not to adopt the approach mentioned by Holland and Galligan, J.J. as an invariable rule, agree that the selection of notice period is not precise exercise and the Plaintiff has not satisfied me that 15 months is not reasonable compensation in lieu of notice in this case. (at p. of the judgment)." As noted by the authors of the Employment Law Manual, at p. 6‑25, although it is unclear whether the court in fact applied the ballpark justice doctrine, it awarded the period of notice offered by the employer on the basis the offer was reasonable. In the present circumstances, it would be both naive and arbitrary, on the part of the court, to suggest the selection of either a 14 or 15 months notice period, as a reasonable period of notice, was being made in the absence of knowledge of what has already been provided to the plaintiff by Allstate. The selection of reasonable period cannot be made in vacuum of the information communicated during the course of the trial. In weighing the reasonableness of the employer's conduct, we are, with deference to the authorities to the contrary, not affording to the employer "curial deference". The plaintiff, in paragraph of the Statement of Claim, alleges "... that he was wrongfully dismissed without any cause whatsoever, and also without sufficient notice or severance pay." Equating the phrase "sufficient notice" with the phrase "reasonable notice", the issue raised by the plaintiff is whether the notice provided by the defendant was "sufficient notice" or "reasonable notice" in the circumstances. For the reasons already noted, it cannot be said the salary continuation for 14 months was not "sufficient notice" or "reasonable notice". The statement by the British Columbia Supreme Court in Michalchuk, supra, that the selection of notice period is not precise exercise, is in accordance with the views already stated herein. In the circumstances, the suggestion outlined by the authors of the Employment Law Manual, supra, at p. 6‑25, provides realistic and reasonable approach, in weighing the respective positions of the parties, in coming to court: "It is respectfully submitted that if the ballpark justice principle is to be applied it should be limited to those cases in which the Judge is truly undecided where the period of notice should fall within certain, and relatively narrow, range. In such cases it would be consistent with the general principles of contract law to look at the conduct of the parties. If either of the contracting parties has made an offer within the range, then this element of conduct, although perhaps deserving of only slight weight, may be enough to tip the judicial scale in favour of finding that the offered notice corresponds with reasonable notice." In so limiting the doctrine, the authors concur in the comments of Justice O'Driscoll in Grant v. MacMillan Bloedel Indust. Ltd., supra, that to afford broader scope, would be to grant the position of the employer degree of "curial deference" to which only judicial or quasi‑judicial body is now entitled. We also agree it is only to judicial or quasi‑judicial bodies that "curial deference" should be afforded. However, the issue, in claim for inadequate or insufficient notice, is founded on an allegation that what was provided by the employer was neither "sufficient" nor "reasonable" in the circumstances. The question, logically, is whether what was afforded was in fact "sufficient" or "reasonable" having regard to all the circumstances, including the guiding principles set out in Bardal and the factors amplified on by Justice Gruchy in Squires. If, in fact, what the claimant received was "sufficient" or "reasonable", then it follows the dismissed employee was afforded the period of notice to which he was entitled under law. If the employee did not receive "sufficient" or "reasonable" notice, then he is entitled to an order providing for compensation on this failure. The decision does not grant the employer "curial deference" any more than it does the position of any party in legal proceeding where the "reasonableness" of their conduct is brought into question. The function of the court is to imply, in contract of indefinite employment, provision, incorporating period of notice, applicable in the circumstance of subsequent dismissal without just cause. This proceeding, by the plaintiff, is founded on the basis the period provided by the employer was not reasonable, in the context of this implied term of the employment contract. The employer provided 14 months salary continuation. The question is, whether, in the circumstances, it was "reasonable". In the absence of fixed notice periods, either by statute, by agreement or otherwise, the determination of this question rests on the court's assessment of what is "reasonable". In considering what is "reasonable", it is, we suggest folly, amounting to naivete, to suggest the court will not make such determination in the context of what has actually occurred and, therefore, by assessing whether what the employer has provided constitutes the provision of "reasonable notice". Where an employee has been dismissed, without any notice, the court hears the parties, and receives their submissions, and decides what is "reasonable notice" in the circumstances. Where period of notice has already been provided, the question is whether it was "reasonable", in which case, the employer has met the implied term of the contract, or whether it was unreasonable, and the employer has thereby violated the implied term of the contract of employment. Here, as already noted, a period of 14 months was "reasonable" though, as also noted, a period of 15 months would not have been "unreasonable". The plaintiff has therefore not established he has not received "reasonable notice" and therefore the claim for damages against the employer is dismissed. Costs The defendant seeks cost on the basis it has been successful, citing Orkin, The Law of Costs, (Second Edition 1994) at p. 2‑23: “The principal that successful party is entitled to his or her costs is of long standing and should not be departed from except for very good reasons." The plaintiff, although acknowledging there is presumption in favour of costs following the cause, suggests there are exceptions, citing Orkin, The Law of Costs, (Second Edition, 1995) at pp. 2‑37 and 2‑38: "An action or motion may be disposed of without costs when the question involved is new one, nor previously decided by the courts on the theory that there is public benefit in having the court give decision; or where it involves the interpretation of new or ambiguous statute; or new or uncertain or unsettled point of practice; or where there were no previous authoritative rulings by courts: or decided cases on point; ... The Principle that costs are usually to follow the event is recognized in C.P.R. 63.03(1): Unless the court otherwise orders, the costs of proceeding, or of any issue of fact or law therein, shall follow the event." The Court of Appeal in Bent v. N.S. Farm Loan Board (1978), 30 N.S.R. (2d) 552 after acknowledging that C.P.R. 63.03 provides that costs of proceeding shall follow the event, unless the Court otherwise orders, added "... costs are always in the discretion of the Court." Justice Hart, on behalf of the Court, continued by restating the principle that "the discretion of the Court must, however, be exercised judicially." He then refers to the statement by Lord Goddard in Lewis v. Haverfordwest Rural District Council [1953] ALL E.R. 1599, at 1600: "... it is the settled practice of the court that in the absence of special circumstances successful litigant should receive his costs." As to the exercise of discretion by Court in denying costs to successful party on the basis the action or application involved new question, not previously decided by the Courts, defendants' counsel refers to the decision of Roscoe, J., as she then was, in Turner‑Lienaux v. The Attorney General of Nova Scotia (1992), 1992 CanLII 4534 (NS SC), 115 N.S.R. (2d) 200 where the unsuccessful plaintiff argued against the awarding of costs because, inter alia, the matter involved novel question of law of interest to all management levels employees in the civil service. Justice Roscoe, at p. 214 stated: "Although the present case was novel, am not satisfied that it was of significant public importance and interest. have no information before me as to how many Civil Service competitions are held for management employees annually, or for that matter, how many unsuccessful candidates in those competitions may have been effected by the outcome of this particular case." Counsel continues by suggesting the reasons of Justice Roscoe indicate "novelty alone is not necessarily sufficient to justify denial of costs but rather there must be some overriding public importance or interest for which there is no evidence in this case." However, examples of where successful parties have been awarded costs include, in addition to where the "matter is one of great civic interest and importance", (Chater v. Dartmouth (1975), 20 N.S.R. (2d) 34) (T.D.), cases where the pleadings did not disclose the eventual successful ground of defence (Laffin v. Hamel (1976), 23 N.S.R. (2d) 89) (T.D.) where the successful party had not specifically plead the defence and the other party was led to believe another question was the primary issue (Munroe v. Clarke (1977), 23 N.S.R. (2d) 652) (T.D.), and where there was laches by successful plaintiff in case involving real property (McCormack Estates v. Feelan Estate (1986), 59 Nfld. P.E.I. R. 215 (P.E.I. S.C.). The listing of exceptions to the usual rule of "costs following the event or cause" is far from exhaustive. After considering an issue concerning ownership of roadway access to three lakes, Justice Cavarzan of the Ontario General Division, in Beaumaris Fishing Club v. Corp. of the Township of Gravenhurst (1991), 1991 CanLII 7345 (ON SC), O.R. (3d) 774, in denying costs to the successful party, at p. 785 said: The real issue raised in these proceedings was, if not entirely novel, one in which the courts appear not to have ruled authoritatively. In the circumstances, and notwithstanding that the applicant has been successful in part, it is my view that this is not an appropriate case for an award of costs." Also, in Hounsome Estates v. John Deere Ltd. (1991), 1991 CanLII 7069 (ON SC), O.R. (3d) 89, Justice Rosenburg, at p. 97‑98, in denying costs to the successful applicant trustee, said: "... Under the circumstances and in view of the uniqueness of the situation, there being no previously decided cases on the precise point (as acknowledged by both counsel),there will be no order as to costs." Plaintiff's counsel suggests the concept of "ball park" justice is such an exception, being notion for which there has been no previously decided authoritative rulings by the Court. However, and as already reviewed, we have declined to apply the principle or notion of "ball park justice", but rather to adopt the approach suggested by the authors of Sproat, Employment Law, supra. In doing so, we recognize that absent knowledge of the salary continuation the plaintiff has already received, and in view of the imprecise nature of the determination of reasonable notice, the award of reasonable notice could have as likely been for fifteen months as for fourteen months. Having been advised, since release of oral reasons, that the defendant, prior to the conclusion of trial, had offered to consent to the discontinuance of these proceedings, by the plaintiff, without costs and in view of lowest suggested period of notice, by the plaintiff during final argument, of eighteen to twenty months, we award the defendant one half of its costs, together with all of its disbursements, calculated on Scale Three. For purposes of calculating costs the amount in issue is the difference between the fourteen months already paid to the plaintiff and the proposal by his counsel, for the court to award at the equivalent of at least eighteen months salary, together with the one month's arrears of salary argued by the plaintiff. The amount in issue is therefore the equivalent of five months salary. J. Halifax, Nova Scotia February 16, 1996

The plaintiff was terminated as a sales agent after being employed by the defendant for 26 years. As part of the termination package he received 14 months salary continuation. The plaintiff claimed that he had not received 'reasonable notice' and sought damages. He also claimed that he was owed arrears of salary at the time of his dismissal. The defendant argued that the plaintiff had failed to mitigate his damages. Dismissing the action, that the appropriate period of notice was in the range of 14 to 15 months. Since the calculation of a 'reasonable period of notice' is not an exact exercise, either period could have been justified. Thus, it could not be said that the 14 month period given by the defendant was unreasonable. Furthermore, the plaintiff was not owed any arrears. Finally, in view of a non-competition clause in the contract of employment, it was not unreasonable for the plaintiff not to have pursued employment with other insurance companies any more than he had.

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_Q.B. A.D. 1995 No. 1412 J. C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HEATHER JANE GRAY and DOW CORNING CANADA INC., DOW CORNING CORPORATION, THE DOW CHEMICAL COMPANY, MEDICAL ENGINEERING CORPORATION and BRISTOL-MYERS SQUIBB COMPANY DEFENDANTS N. W. Fursman for the plaintiff (respondent) R.G. Kennedy for the defendant (applicant) The Dow Chemical Company No one appearing for the other parties FIAT GEREIN J. April 24, 1996 The statement of claim in this action was served ex juris upon all the defendants. At this time the onedefendant, The Dow Chemical Company, seeks a declaration thatthis Court lacks jurisdiction to entertain the action insofaras it relates to that particular defendant. The Court is alsoasked to set aside the service ex juris. have concluded that the requested relief should not be granted. The Facts For the purpose of this application assume that all the allegations in the statement of claim are true and that they do form the basis of good cause of action in both tort and contract. These are the circumstances of the plaintiff. On May 1, 1980, she underwent bilateral augmentation mamoplasty and received silicone breast implants manufactured by Dow Corning Canada Inc. or Dow Corning Corporation. Ten years later on July 23, 1990, the plaintiff received replacement breast implants, bearing the trade name Surgitek, which were manufactured by Medical Engineering Corporation and Bristol- Myers Squibb Company. Finally, on October 1, 1992, she had the breast implants removed. The plaintiff presently suffers from fibromyalgia,chronic fatigue and a persistent immune mediated skin rash onher chest. It is alleged that her condition is a result ofthe silicone implants, the connection having been discoveredonly in 1994. It is further alleged that her condition was caused by negligence attributed to the manufacturers of the breast implants. Four of the defendants are American corporations with their respective head offices in the United States of America. The remaining defendant is Dow Corning Canada Inc. which is incorporated pursuant to the laws of Canada with its head office located in Mississauga, Ontario. To ensure that there was no uncertainty about its status and sphere of business activity, an affidavit was filed on behalf of the defendant, The Dow Chemical Company, setting forth the 2.Dow Chemical was founded in 1897 in the State of Michigan and incorporated in the State of Delaware in 1947. At present it is publicly held corporation organized under the laws of the State of Delaware having its principal offices at the Dow Centre in Midland, Michigan. 3.Dow Chemical was served with the Statement of Claim in this action at its offices in Midland, Michigan on or about November 7, 1995. 4.Dow Chemical does not now, nor has it ever carried on business within the Province of Saskatchewan, has no assets nor employees located within the Province of Saskatchewan, and is not licensed nor registered to carry on business within the Province of Saskatchewan. accept that The Dow Chemical Company has no presence in Saskatchewan. now quote those paragraphs in the statement of claim which particularize the claim and give details about the role of the various defendants. 11. The Plaintiff states that her symptoms and damages were caused by the negligence of the Defendant manufacturers of the breast implants. Such negligence includes, but is not limited to the following: (a) the design of the breast implants were defective: (i)the Defendants relied upon inadequate research and development tests in their design of the product; (ii)the Defendants failed to conduct appropriate clinical tests and investigations on human subjects following the design stage of the product; (iii)the Defendants misinterpreted the results of research and investigations which were undertaken; (iv)the Defendants deliberately or negligently ignored the tests which contraindicated the use of silicone breast implants; and (v)the Defendants incorporated material in the design of the breast implants which stimulated the formation of excess scar tissue within the breast, and have tendency to leak, and to harden. (b)the manufacture of the breast implants was defective: (i)the implants leak their viscous silicone filling into the breast tissues; (ii)the implants stimulate the formation of excess scar tissue within the breast; and (iii)the implants are made of foreign substance which is inappropriate for implantation within the human body. (c)the Defendants failed to properly warn the Plaintiff and her caregivers of the risks and dangers associated with the breast implants: (i)accordingly, the Plaintiff's consents to the surgical procedures were not informed as regards the nature of the material to be implanted in her body. 12. The Defendants delayed, concealed, and/or deliberately, negligently, or otherwise failed to reveal relevant test data and documents to the United States Food and Drug Administration (the "FDA"), Health and Welfare Canada ("H&WC"), the medical profession, Heather June Gray, and the public at large. This failure to disclose pre- and post-dated the implant 13. The Defendants provided assurances to the FDA, H&WC, the medical profession, and the public at large that the symptoms of this Plaintiff were not related to the silicone gel breast implants, despite being possessed of information to the contrary. In the circumstances, the Defendants were under further obligation to advise individuals who had already received implants and their medical caregivers, of the dangers associated with those implants. 14. The Defendants negligently acted in concert with other manufacturers of silicone breast implants with respect to the amount of information they provided to or withheld from this Plaintiff, the appropriate regulatory authorities, the medical profession, and the public at 15. The Plaintiff further alleges that the Defendants designed, manufactured and marketed breast implants that were dangerous, not of merchantable quality and not fit for their purpose. 16. The Defendants expressly and implicitly warranted that these silicone breast implants were fit for the purposes intended as cosmetic aids, and that they were of merchantable quality. The Defendants were in breach of these express and implied warranties. 17. The Plaintiff, when purchasing these silicone implants, relied upon the representations of the Defendants with respect to the implants, that they were fit for the purpose intended and that they were of merchantable quality. The Plaintiff has acted and relied upon those misrepresentations to her own detriment. 18. The Plaintiff pleads and relies upon the provisions of the Sale of Goods Act, R.S.S. 1978, Chapter S.1, and amendments thereto, and The Consumer Products Warranties Act, R.S.S. 1989, c. C-30, and amendments thereto. 19. The Plaintiff further states that the Defendant Dow Chemical is at law responsible for the liabilities of Dow Corning with respect to silicone breast implants. Dow Corning Corporation was created by Dow Chemical for the sole purpose of designing, manufacturing and distributing silicone products, including silicone gel breast implants. Following the creation of Dow Corning Corporation, Dow Chemical continued to be involved in the field of silicone research and dominated and controlled Dow Corning Corporation in all respects. Dow Corning Corporation was in fact an agent, creature, or puppet of Dow Chemical with respect to silicone breast implants. 20. Dow Chemical's involvement with silicone breast implants includes, but is not limited to the following: (a)Dow Corning dominated and controlled Dow Corning Corporation's silicone breast implant operations such that Dow Chemical was the de facto operating mind; (b)Dow Chemical scientists provided the scientific basis for the use of silicone in medical devices; (c)Dow Chemical performed experiments and studies which contraindicated the use of silicone in medical devices and showed that the projects were potentially hazardous to those who received them; (d)Despite evidence to the contrary, Dow Chemical continued to represent to the medical and scientific community, and the general public, that silicone was an appropriate produce for insertion into the human body; (e)Dow Chemical provided scientific assistance and guidance, including use of their laboratories and researchers, to Dow Corning Corporation; (f)Dow Chemical conspired and/or acted in concert with Dow Corning Corporation to study the effects of silicone on the immune system in secret and deceptive 21. The Plaintiff states that the facts of this case entitle her to rely on the principle of res ipsa loquitur. On the basis of what is set out above, the question to be answered is whether this Court should accept jurisdiction in respect to the defendant, The Dow Chemical Company. As indicated earlier, believe that it should do so. The Submissions On behalf of The Dow Chemical Company it is acknowledged that on occasion Saskatchewan court will assume jurisdiction over matter even though the defendant does not reside within the province and cannot be served therein. However, it is submitted that this is not such an occasion for the statement of claim does not disclose an actionable wrong on the part of The Dow Chemical Company. Rather, it does no more than describe relationship between that company and another and that relationship in itself does not provide justification for this Court to assume jurisdiction. This is so even if there is derivative liability for that condition arises totally in foreign jurisdiction and it is there that the legal consequences of the relationship should be pursued. In opposition, the plaintiff points to the fact that she has suffered injury and consequent damages in Saskatchewan and says that this is sufficient basis upon which to generally assume jurisdiction. Contrary to the view of the defendant, the plaintiff submits that the statement of claim does describe wrongful conduct on the part of The Dow Chemical Company and that such conduct caused her damage in both tort and contract. It should be noted that the within application is founded solely on the argument that this Court has no jurisdiction over The Dow Chemical Company. The doctrine of forum non conveniens was not invoked and have not taken it into consideration in my deliberations. The Law There are two sources from which the Court of Queen's Bench in Saskatchewan acquires jurisdiction over an in personam action. The first is the common law which provides that this Court has jurisdiction where there is service of the process within the province. The second is what is frequently called "assumed jurisdiction" which is creation of legislation. It empowers court to assume jurisdiction over cause of action which arose in this province despite the fact that the defendant's residence is elsewhere and the process must be served ex juris. This new jurisdiction was introduced in England by The Common Law Procedure Act, 1852, 15 Vict., c. 76. That same jurisdiction was incorporated into the law of Saskatchewan by the enactment of s. 12 of The Queen's Bench Act, R.S.S. 1978, c. Q-1. As stated in Standard Trust Co. v. Ginnell (1993), 1992 CanLII 8118 (SK QB), 106 Sask. R. 27 (Q.B.), the exercise of the statutory jurisdiction is governed by Rule 31 of The Queen's Bench Rules of Court. The parts of that rule which are relevant to this application are the following: 31(1) Service out of Saskatchewan may be effected without order wherever: (f)the action is in respect of contract where: (v)a breach or alleged breach of contract wherever made has been committed in Saskatchewan or (vi)damages have been sustained in Saskatchewan, arising from breach committed elsewhere; or (g)the action is founded on tort committed in Saskatchewan; In applying rule 31(1)(g) it is necessary to determine the situs of particular tort. This problem confronted the Supreme Court of Canada in Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] S.C.R. 393. The unanimous resolution is well summarized in the headnote to the reported judgment. 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. Accordingly, the Courts of Saskatchewan had jurisdiction to entertain the present action. With the foregoing in mind, turn to the application itself. Analysis The defendant, The Dow Chemical Company, is not resident in Saskatchewan and has no direct or real connection to the province. As result, that defendant cannot be served with the statement of claim within the territorial jurisdiction of this Court. It therefore follows that this Court does not have jurisdiction over that defendant on the basis of the common law. One must then move on to determine whether there is statutory jurisdiction. The plaintiff herein is assumed to have suffereddamages both in contract and tort. Applying Queen\'s Bench Rule31(1)(f) and (g) and following what was stated in the Morancase, this Court should assume jurisdiction absent any reasonto the contrary, although any uncertainty or doubt is to beresolved in favour of the defendant. It is argued that such reason does exist in that the statement of claim makes no allegation that the plaintiff's damages were caused by the defendant, The Dow Chemical Company, and more particularly by any culpable conduct on the part of that defendant. In short, it is argued that there is no causalconnection between the defendant, The Dow Chemical Company, andthe plaintiff\'s damages. Rather, the pleadings portray nothing more than relationship, akin to that of vicarious liability, between the defendant, The Dow Chemical Company, and one of the other defendants, namely, Dow Corning Corporation. It is submitted that the existence of such relationship is not in itself sufficient to justify this Court assuming jurisdiction over the action. This submission may well have merit were the statement of claim drafted in the manner suggested. However, do not see it that way when read the pleading as whole and not in isolated segments. In my opinion, the statement of claim speaks to four main topics, vis-�-vis, the activities of the defendants. The first is the negligence in the design and manufacture of the breast implants. These allegations are contained in para. 11 and specifically refer to the negligence of the "Defendant manufacturers". take this phrase to mean those parties who actually created or fabricated the implants. This being so, the paragraph cannot be interpreted as including the defendant, The Dow Chemical Company, but rather it has reference to the other four defendants. The second topic, which is set out in paras. 12 to14, inclusive, addresses the failure to inform certainregulatory bodies and the public at large about the risk ofbreast implants. This failure to inform is attributed to all defendants without exception. Assuming that the defendants had duty to provide information and failed to do so with resultant damage to the plaintiff, then an action will lie in tort. In respect to this the court should assume jurisdictionand it should do so in respect to the defendant, The DowChemical Company, for that party is here included with theother defendants. The third topic is that of contract and those allegations are contained in paras. 15 through 18, inclusive. The allegations of non-merchantable quality and breach ofwarranties are made about all of the defendants. recognize that these paragraphs contain references to manufacturing and that the defendant, The Dow Chemical Company, was earlier omitted from that activity. However, there still remains thematter of marketing and distributing the implants and insofaras The Dow Chemical Company may have played a role in that areait could be accountable in contract. The pleading alleges such accountability on the part of that company and therefore this Court should assume jurisdiction over the claim in contract through the operation of Queen's Bench Rule 31(1)(f). The final topic is contained in paras. 19 and 20. Here the allegations are only in respect to the defendant, The Dow Chemical Company, and not the other defendants. The allegations are somewhat extensive, but in general they address two situations. The first is the plea that the corporate entity, DowCorning Corporation, was created for a specific task by thedefendant, The Dow Chemical Company, and that in the carryingout of that task they were in reality one and the same entity. The plaintiff here is suggesting that the corporate veil shouldbe pulled aside and any wrongful acts of Dow CorningCorporation should be treated as being those of The DowChemical Company. Were this to occur, the result would be something other than imposition of responsibility by reason of vicarious liability. If the plaintiff succeeds, the wrongful act or fault would be directly attributable to The Dow Chemical Company. This differs significantly from vicarious liabilitywhere no fault is attributable to the third party, butliability attaches because of the relationship such asemployer-employee, or principal-agent. If fault is found to bedirectly attributable to The Dow Chemical Company, then thereis a causal connection. The second situation is that the defendant, The DowChemical Company, breached its duty to disclose the riskinherent to the breast implants. This is largely repetition of what is stated earlier in the statement of claim, but what is significant is that the defendant, The Dow Chemical Company, is singled out. Thus, here also there is an allegation which suggests link between the alleged failure to disclose and the plaintiff's injuries. Accordingly, in respect to both situations, thereare allegations which I must assume have a factual basis. That being so, the statement of claim does disclose wrongful conduct on the part of the defendant, The Dow Chemical Company, and there is causal connection between that conduct and the alleged damages suffered by the plaintiff. Accordingly,liability may rest with the defendant, The Dow ChemicalCompany, in both tort and contract and it is appropriate forthis Court to assume jurisdiction in respect to the claim as itrelates to the defendant, The Dow Chemical Company. Conclusion In the result, the application is dismissed. Theplaintiff will have her taxable costs of the application in anyevent of the cause.

FIAT. The plaintiff brought an action against five defendants claiming fibromyalgia, chronic fatigue and a skin rash were the result of silicone implants. One of the defendants, Dow Chemical, sought a declaration that the Court of Queen's Bench did not have jurisdiction to hear the action and to have the service ex juris set aside. Dow Chemical argued that there was no causal connection between it and the plaintiff's damages. HELD: The application was dismissed. The plaintiff was awarded her taxable costs in any event of the cause. It must be assumed that the allegations have a factual basis and liability may rest with the defendant, Dow Chemical, in both tort and contract, therefore it was considered appropriate to assume jurisdiction. 1)The Court did not have jurisdiction over the defendant on the basis of common law. The defendant is not resident in Saskatchewan and has no direct or real connection to the province. 2)The plaintiff is assumed to have suffered damages in both contract and tort. Applying Queen's Bench Rule 31(l)(f)(g) and the Moran case, the Court should assume jurisdiction absent any reason to the contrary. 3)Three of the four main topics in the statement of claim have reference to Dow Chemical: the failure to inform certain regulatory bodies and the public at large about the risk of breast implants; marketing and distributing the implants which were of non-merchantable quality and breach of warranties. 4)The final plea was that Dow Corning and Dow Chemical were in reality one and the same entity. It was thus suggested that the corporate veil should be pulled aside and any wrongful acts of Dow Corning should be treated as those of Dow Chemical. This differs significantly from vicarious liability where no fault is attributable to the third party but liability attaches because of the relationship. If fault were found to be directly attributable to Dow Chemical there would be a causal connection. 5)The allegation that Dow Chemical breached its duty to disclose the inherent risk suggested a link between the alleged failure to disclose and the injuries. 6)The doctrine of forum non conveniens was not invoked and therefore not considered. Appeal to Court of Appeal dismissed Sept. 9/96.

9_1996canlii6809.txt

J. 1994 S. H. No. 112402 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN RESPONDENT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 18, 2008. PLACE HEARD: At Halifax, Nova Scotia, before the Honourable Chief Justice Glube DATE HEARD: April 18th, 1995 DECISION: April 18th, 1995 (orally, at conclusion) WRITTEN RELEASE OF ORAL DECISION: April 20th, 1995 COUNSEL: Adrian C. Reid, Q.C., for the appellant Burnley A. Jones and Christine Driscoll, for the respondent TO PUBLISHERS OF THIS CASE: PLEASE TAKE NOTE that s. 38(1) of the Young Offenders Act applies and this decision may require editing before publication. Section 38(1) provides: "38(1) Subject to this section, no person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto; or (b) of any hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have commited an offence in which the name of the young person, child or young person who is victim of the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify the young person or child, is disclosed." FURTHER NOTE there is ban on publication of the original Youth Court decision dated December 7th, 1994; as well as any portion of this decision which quotes directly from said decision. GLUBE, C.J.: (Orally) want to thank counsel for providing their material in advance and would indicate that have listened very carefully to what has been said this morning and it, for the most part, echoes what is in the briefs already. have had the opportunity, as said, of reading them and of reaching decision on this matter and I'd like to give it now. On November 10th, 1993, R.D.S was charged with three counts under the Criminal Code. The first, unlawful assault against peace officer engaged in the execution of his duty, contrary to s. 270(1)(a); the second, unlawful assault against the same peace officer, with intent to prevent the peace officer from lawfully arresting N.R., contrary to s. 270(1)(b); and the third, unlawfully resisting the same peace officer who was engaged in the lawful execution of his duty, contrary to s. 129(a). After appearing in Youth Court December 7th, 1993 and entering not guilty plea, and after numerous appearances in Youth Court, all resulting in adjournments, R.D.S. was finally tried on December 2nd, 1994, and following an oral decision on that date, was acquitted on all charges. On December 22nd, 1994 the Crown filed notice of appeal; on January 13th, 1994 the Learned Trial Judge filed Supplementary Reasons. Only two persons were called as witnesses at the trial before the Learned Trial Judge, namely: Constable Donald Stienburg, the peace officer named in the indictment, and the defendant, R.D.S. Although the facts have been set out in detail by both sides and have been presented here this morning as well in detail, do not propose to repeat them here. have read the transcript and the summaries provided by both counsel, as well as the briefs of both counsel. The appellant refers to both the reasons given orally at the conclusion of the case, as well as the document entitled "Supplementary Reasons" filed after the notice of appeal. The appellant sets out the grounds of appeal as follows: "1. THAT the Learned Youth Court Judge based her decision on considerations which were not supported in the evidence. 2. THAT the Learned Provincial Court Judge made findings of credibility based on considerations which are not based upon or supported by the evidence. 3. THAT the Learned Youth Court Judge erred in ruling certain relevant and probative evidence to be inadmissible in particular statements made by the Respondent at the time of the commission of the offence." Grounds one and two were argued together by the Crown. On the first two grounds the Crown submits the issuing of Supplementary Reasons following the filing of an appeal was inappropriate. am of the view that the Supplementary Reasons are not the proper basis for deciding this appeal. In my respectful opinion, the decision was made on December 2nd, 1994 and the Supplementary Reasons did not form the basis of the Crown's appeal. Although judge is not obliged to advise counsel they will receive additional reasons, it would be usual for judge to say something, either at the conclusion of the case and the oral reasons or very soon after that time. Although another issue intervened in this case relating to request from the press, there was no advice that further reasons on the actual decision would be forthcoming. They were not received until after the notice of appeal, and suggest the filing of those reasons was not practice that judge should follow. do not propose to consider the elaborated reasons in rendering this decision. Both parties this morning have agreed that the judge was functus at this time, as she had made decision. But would like to make some further comments because my research, as said, this past weekend did lead me to perhaps confirm that position which had come to without doing any further research. The release of the Supplementary Reasons by the Learned Trial Judge caused me some concern, and after writing the above, tried to research the issue but was unable to find any specific cases directly on point, except cases which fall under the provisions of s. 682(1) of the Criminal Code. believe they are analogous to the present situation and therefore may apply. R. v. A.W.E., [1993] S.C.R. 158 dealt with the gratuitous report sent to Court of Appeal by trial judge purporting to be under the provisions of section 682(1) of the Criminal Code. (The section deals with reports to the Court of Appeal.) At the present time, reports are only to be made upon request by the Appeal Court. At p. 173 of the decision, Lamer C.J.C. states: It is well established that trial judge, in furnishing the Court of Appeal with report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, trial judge's report will be held invalid..." Some years earlier, in the case of R. v. Hawke, 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19 at p. 53, case in which again no report was requested, after discussing the Criminal Code section on reports, Dubin J.A. (as he then was) states at p. 53: In the case at bar, it would not be unreasonable for the accused to feel that the learned trial Judge has put himself into the appellate arena in support of his conviction. It is to be observed that this is not case where trial Judge had indicated the result that he had arrived at and announced that that he proposed to give his reasons later. In this case the trial was over, the rulings had been made after lengthy argument and supplementary reasons were delivered only by reason of the appeal. In this case, the appearance of justice would have been better served if the trial Judge had been content to let the matter stand as recorded in the transcript of the evidence." Finally, as found in Tremeear's Criminal Code under s. 682, there is the case of R. v. Watkins (1986), Q.A.C. 210 (C.A.). As said, the quote in Tremeear's is somewhat misleading and the quote when you draw up the case from Quicklaw is different. It was sent back for new trial for reasons other than the report. The initial decision of the trial judge held the lack of serenity of the room where the accused's confession was made rendered the confession inadmissible; the report to the Court of Appeal said the statement was not admitted because of language difficulty. Essentially the Court of Appeal said that the trial judge "erred in not admitting the statement at trial and that the judge's second thoughts, after notice of appeal was filed by the Crown should be ignored". In the present case, the Supplementary Reasons add number of factors about the demeanour of the peace officer which were not contained in the original decision, and also contains specific reference to outside material which was not contained in the original decision. All of these decisions, as said, were read by me after had concluded that would not consider the Supplementary Reasons, and had written the remarks which made just few moments ago. Turning back to the decision of December 2nd, the Crown says that the decision on that date flows or appears to flow as much from the Trial Judge's own preconceptions regarding the attitude of the police towards minorities as it does from the evidence. The Crown cites remarks by the Trial Judge, such as, that there is tendency for police to overreact when dealing with non‑white groups. The Crown suggests that analyzing this and other remarks in the December 2nd decision show clearly the Trial Judge's conclusions on credibility flow from racially based bias against police, and not from the evidence. Further, the Crown submits that this creates an appearance of unfairness. The Crown goes further and alleges that the remarks exhibit real bias. The respondent submits that there is no appeal on questions of facts, however, believe the law is otherwise. The normal function of an Appeal Court is not to substitute its own view of the facts for the trial judge, as found in the case of R. v. Bursey (1982), 53 N.S.R. (2d) 353 (C.A.). The usual issue is whether there was evidence on which properly instructed jury acting judicially could reach the same conclusion as the Provincial Court judge. (R. v. Arthur (1981), 1981 CanLII 353 (BC CA), 63 C.C.C. (2d) 117 (B.C.C.A.) leave to appeal refused December 21, 1981 and there are many decisions on this philosophy.) Also, s. 813 of the Criminal Code deals with summary conviction appeals, and following it is reference to the case of R. v. Crocker (1986), 73 N.S.R. (2d) 151, where it states the Crown has the right to appeal on facts, but an acquittal will only be set aside where the verdict is unreasonable or not supported by the evidence. In the case at bar, if there is to be found an apprehension of bias, then the verdict would not be supported by the evidence. Before dealing with the apprehension of bias, wish to deal with one other matter raised in argument. The Crown submitted in argument that the apparent preconception of the Learned Trial Judge against the police generally, created the appearance of unfairness and with such preconceptions, Constable Stienburg could not hope for fair hearing. The respondent submits the Constable was not on trial, that the Learned Trial Judge's comments dealt with the police in general and not the specific actions of Constable Stienburg, and the respondent hoped for and received fair trial. In the case of R. v. Wald, (1989) 1989 ABCA 49 (CanLII), 47 C.C.C. (3d) 315, although in different context, namely, one of determining the validity of certain sections under the Criminal Code in relation to s. and 11(d) of the Charter, Hetherington J.A. states at p. 336: "There will be prejudicial effect in the sense of an injury to the case for the Crown if the trier of fact forms an opinion of, or is biased against, the complainant as result of evidence as to her sexual reputation or as to her sexual activity with persons other than the accused.. Such prejudicial effect would render hearing unfair to the Crown. The principles of fundamental justice require that hearing be fair to both the Crown and the accused." Fundamental justice requires impartial decision makers, and includes natural justice and duty to act fairly. These remarks were made in the context of an administrative tribunal in the Supreme Court of Canada case of Pearlman v. Manitoba Law Society, 1991 CanLII 26 (SCC), [1991] S.C.R. 869; however, they surely apply equally, if not even more, to court. Turning to the issue of the apprehension of bias, the defence submits that the Trial Judge made findings of fact based on the credibility of the witnesses before her, and that in no way has she suggested in her reasons for making the decision that they were based on racial attitude or predisposition against police officers. There is certainly nothing in the transcript of the actual evidence which was heard on December 2nd to suggest any bias or apprehension of bias, but when turn to the decision rendered the same day, and presume immediately following the evidence and counsel's submissions, it contains thorough review of the facts and finding based upon credibility in favour of the accused. Had the decision ended there, at p. 68 of the original transcript, where she states: [redacted]” had it ended there, there would have been no basis for this appeal as the Crown has already conceded. Unfortunately, the decision did not. The Learned Trial Judge went on to add two more paragraphs which read as follows: A[redacted]” On thorough review of the transcript, find no basis for these remarks in the evidence. There was no evidence before the trial court as to the "prevalent attitude of the day" or otherwise the remarks made relating to the police. With great respect, judges must be extremely careful to avoid expressing views which do not form part of the evidence. The test of apprehension of bias is an objective one, that is, whether a reasonable right‑minded person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. In my respectful opinion, in spite of the thorough review of the facts and the finding on credibility, the two paragraphs at the end of the decision lead to the conclusion that a reasonable apprehension of bias exists. Having found that, need go no further as such finding requires that new trial be ordered. As find there must be new trial, do not propose to deal with the suggested error in ruling certain evidence inadmissible. That will be matter for decision by the trial judge hearing the new trial. In conclusion, the appeal is allowed and a new trial is ordered in front of a different trial judge. J. Halifax, Nova Scotia

The young offender appealed his convictions contending an apprehension of bias on the part of the Youth Court Judge who made comments about the police and non-white accused. The Judge also wrote supplementary reasons after the appeal was filed. Allowing the appeal and ordering a new trial in front of a different trial judge, that there was no evidence before the Youth Court Judge as to the comments made. The court applied an objective test and concluded a reasonable apprehension of bias existed. Supplementary reasons should not be written without a request from the Court of Appeal.

b_1995canlii9321.txt

nan Date:19991108 C.A.C. 150706 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Wood, 1999 NSCA 134] BETWEEN: JOHN DOUGLAS WOOD Appellant in person and HER MAJESTY THE QUEEN Kenneth W.F. Fiske, Q.C. for the Respondent/Applicant Respondent/ Applicant Application heard: November 2, 1999 nan Decision delivered: November 8, 1999 nan BEFORE THE HONOURABLE CHIEF JUSTICE GLUBE, IN CHAMBERS GLUBE, C.J.N.S.: (In Chambers) [1] Following an application for release pending appeal pursuant to section 679(1) of the Criminal Code, Justice Cromwell issued a written decision on October 19, 1999, granting the release with conditions, pending Mr. Wood’s appeal scheduled to be heard January 26, 2000. The original order is dated October 20, 1999 and an amended order changing several of the conditions is dated October 26, 1999. On the same date as the amended order, the Crown applied for a review under s. 680(1) of the Code. s. 680. (1) decision made by judge under section ... 679 may, on the direction of the Chief Justice ... of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. In the commentary following s. 680, it states in part: ... The procedure involves two steps. An application is made to the chief justice or acting chief justice of the court of appeal for direction that the decision be reviewed by the court of appeal. If the direction is refused, no review will be held.... [Tremeear’s Criminal Code, The 2000 Annotated, p. 1002.] [2] Counsel for the Crown relies upon his submission to Justice Cromwell that Mr. Wood, who was on day parole at the time of his 679(1) application, was not in custody, therefore, Justice Cromwell misinterpreted the definition of custody by granting the 679 application. He submits this is case of “first impression,” raising issues which should be considered by panel of the Court and says if review is ordered, he would raise the following grounds: 1. Whether the Chambers Judge erred in law in ruling the appellant, at the time the application under s. 679 of the Criminal Code was made, was “in custody” within the meaning of s. 679 of the Code. 2. Whether the Chambers Judge erred in law in ruling the Court had jurisdiction to hear the appellant’s application for judicial interim release under s. 679 of the Criminal Code when the appellant at the time of the application was on release from the federal penitentiary on day parole granted by the National Parole Board under Part ll of the Corrections and Conditional Release Act. [3] Counsel for the Crown was asked to determine whether any other case law was available in addition to that cited in Justice Cromwell’s decision. Both Crown counsel, who was given additional time, and Mr. Wood, who is representing himself, claimed they could not find any other cases on this issue. [4] The hearing of this appeal is scheduled for January 26, 2000. Although it has no bearing on this decision, the appeal has been rescheduled several times due to delay in obtaining the transcript for the appeal book. Had the hearing gone ahead as initially scheduled, the issue of whether or not person on day parole is in custody would never have arisen as at the time, Mr. Wood was serving his time in custody in penitentiary. [5] After reviewing the decision of Justice Cromwell and without any new precedents being provided by the Crown following an opportunity to do so, and on the facts of this case, find should not exercise my discretion to give direction for review. [6] Based on the cases cited in the decision of Justice Cromwell, in my opinion, day parole with a requirement to return to a halfway house each night is a form of custody which then allows for an application and release under s. 679 of the Code. [7] am unable to conclude that the Court of Appeal would come to any other conclusion. The application for direction that the decision of October 19, 1999 be reviewed is refused. Glube, C.J.N.S.

The appellant was granted release pending appeal, on conditions. The Crown applied for a review. The Crown contended that the Chambers judge misinterpreted the definition of custody in granting the application, as the appellant was on day parole at the time of the application. Dismissing the application, that day parole with a requirement to return to a halfway house each night is a form of custody which allows for an application and release under s. 679 of the Code.

e_1999nsca134.txt

J. C.A.C. No. 122673 NOVA SCOTIA COURT OF APPEAL Roscoe, Hart and Jones, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and EDWIN LEO SAVOURY Respondent Robert E. Lutes, Q.C. for the Appellant Pamela S. Hutt for the Respondent Appeal Heard: April 2, 1996 Judgment Delivered: April 2, 1996 THE COURT: Leave to appeal is granted, but the appeal is dismissed as per oral reasons for judgment of Roscoe, J.A.; Hart and Jones, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by ROSCOE, J.A.: This is an appeal by the Crown from a sentence imposed by a Provincial Court judge for a break, enter and theft charge to which the respondent pled guilty. The respondent was sentenced to pay fine of $2,500.00 or 50 days in default, plus victim fine surcharge of $250.00 and three years probation. The terms of the probation order included direction that the respondent pay restitution to the victims in the amount of $300.00, that he not have contact with the victims and that he continue treatment with his psychiatrist. The respondent used rock to break the patio doors of his neighbour's house, cutting his hand in the process. He removed lingerie from chest of drawers in the master bedroom, and dripped blood throughout the house. He has prior record for similar offence also involving break into house for which he received suspended sentence. The Crown contends the sentence inadequately reflects the element of deterrence, and that it is inadequate having regard to the nature of the offence and the circumstances of the respondent. The pre-sentence report indicated that the respondent, aged 24, was suffering from physical ailments that caused him to be depressed and that he had attempted suicide. He was seeing psychiatrist who recommended further treatment. Although the respondent was unemployed at the time of the offence, he had, by the time of sentencing, obtained full-time employment with the Armed Forces for six month term with the possibility of further extension. We have been advised that his employment has in fact been extended for another year. The sentencing judge was obviously persuaded that there was more hope for rehabilitation of the respondent if he was able to continue the sessions with his psychiatrist and retain the employment opportunity. He said: don't think incarceration is required for the protection of the public in this case. think it is important that Mr. Savoury deals with his underlying problem and obtains insight in his behaviour. think it is important, of course, that there is an address of the general deterrence aspect, but think it can be done through heavy fine and three year probation with the terms suggested by Crown Counsel. The role of this Court in sentence appeals is as stated by Macdonald, J.A. in R. v. Cormier (1974), 1974 CanLII 1577 (NS CA), N.S.R. (2d) 687 (S.C.A.D.) at pages 694 695: Thus it will be seen that this Court is required to consider the fitness" of the sentence imposed, but this does not mean that sentence is to be deemed improper merely because the members of this Court feel that they themselves would have imposed different one; apart from misdirection or non-direction on the proper principles sentence should be varied only if the Court is satisfied that it is clearly excessive or inadequate in relation to the offence proven or to the record of the accused. This test was recently approved by the Supreme Court of Canada in its decision in R. v. Shropshire (1995), 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193. The trial judge, in our view, considered the correct principles of sentencing in this unique case. It is apparent that the respondent did not commit this break for the usual reasons and that he requires psychiatric assistance. While obviously extremely lenient, the sentence is not so manifestly inadequate, in all the circumstances, as to justify interference by this Court at this time. While we grant leave to appeal, we dismiss the appeal. Roscoe, J.A. Concurred in: Hart, J.A. Jones, J.A. 1995 C.A.C. No. IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN, and EDWIN LEO SAVOURY, RESPONDENT NOTICE OF APPLICATION FOR LEAVE TO APPEAL (SENTENCE) 1. Place of Proceedings: Dartmouth, in the County of Halifax 2. Judge: Honourable Judge Jean-Louis Batiot 3. Court: Provincial Court 4. Crown Attorney: John A. Feehan 5. Defence Counsel: Pamela Hutt 6. Offence of which Respondent sentenced: That he at or near Porters Lake, in the County of Halifax, Province of Nova Scotia, did break and enter certain place to wit: the dwelling house situate at Cheviot Hills, and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code. 7. Plea: Guilty 8. Sentence: Imposed fine of $2,500. plus 50 days in default; $250. VFS plus probation for three years 9. Date of Conviction: July 19, 1995 10. Date of Sentence: October 25, 1995 C.A.C. No. 122673 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN and EDWIN LEO SAVOURY REASONS FOR JUDGMENT BY: ROSCOE, J.A.

The respondent pled guilty in provincial court to a charge of break, enter and theft for breaking into his neighbour's house and removing lingerie from a chest of drawers in the master bedroom.. He was sentenced to pay a fine of $2,500 or 50 days in default, plus a victim fine surcharge of $250 and three years probation. The terms of the probation order included a direction that the respondent pay restitution to the victims in the amount of $300, that he not have contact with the victims and that he continue treatment with his psychiatrist. The Crown appealed the sentence, alleging that it inadequately reflected the element of deterrence. Dismissing the appeal, that the trial judge considered the correct principles of sentencing . This was a unique case where it was apparent that the respondent did not commit the offence for the usual reasons and that he required psychiatric treatment.

1996canlii5602.txt

J. NOVA SCOTIA COURT OF APPEAL Citation: Terry v. Francis, 2004 NSCA 118 Date: 20041006 Docket: CA 213701 Registry: Halifax Between: Jennifer Ann Terry v. Steven Alexander Francis Respondent Judges: Glube, C.J.N.S.; Freeman and Cromwell, JJ.A. Appeal Heard: September 27, 2004, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Cromwell, J.A.; Glube, C.J.N.S. and Freeman, J.A. concurring. Counsel: Theresa Marie Forgeron, for the appellant respondent not appearing Reasons for judgment: [1] Ms. Terry appeals an order of Vernon MacDonald, J.S.C. (Fam. Div.) which, in response to an application by Mr. Francis to vary a child maintenance order, reduced his child maintenance obligation to $1.00 per month. Ms. Terry submits that the judge erred in principle by allowing Mr. Francis’ variation application to proceed even though he had not made adequate disclosure of his financial situation. [2] Mr. Francis and Ms. Terry are the parents of two children, aged and 7. On July 2, 2002, in response to an earlier variation application by Mr. Francis, M. C. MacLellan, J.S.C.(Fam. Div.) affirmed the amount of maintenance set out in an earlier order in the monthly amount of $265 and confirmed the considerable arrears payable under that order. The judge also directed Mr. Francis to provide Ms. Terry with “...a copy of his income tax return, completed and with all attachments, even if the return is not filed, along with all notices of assessment received from Revenue Canada, on or before June 1st of each and every year.” [3] Justice MacLellan’s order, like the preceding one, immediately fell into arrears. In fact we were told at the hearing that Mr. Francis had never paid any child support voluntarily under these orders and that what had been recovered was as result of the efforts of the Maintenance Enforcement Program placing garnishments against his wages. [4] In April of 2003, less than a year after the variation application to Justice MacLellan, with arrears now approaching $4000, Mr. Francis again applied to vary the maintenance order. In support of his application, he filed an incomplete Statement of Financial Information. It did not attach any income tax information for the 2002 tax year or the statement of earnings or statement from an employer as required by paragraph in Part of the form. Even though he acknowledged receiving student loan and showed some $6500 expenses per year for books and tuition, no documentation relating to his student loan was attached and the only income shown was included under the heading “Gross Salary or Wages or Net Professional Income.” [5] The application came on for hearing in December of 2003 before Justice MacDonald. By then, Mr. Francis’ incomplete Statement of Financial Information was 10 months out of date and he was in default of the disclosure provision in Justice MacLellan’s order. Mr. Francis told the Court that his tax information was with Block, but he could not afford the fee for them to file his return or to get his documents back. He presented no T-4 slips and incomplete income documentation for the 2002 and the 2003 years. He also sought to rely on medical disability of which he had given no previous notice. [6] Counsel for Ms. Terry objected to the variation application being entertained because of Mr. Francis’ lack of disclosure of income documentation and of his alleged medical problems. The judge indicated in response to counsel’s objection that if counsel were disadvantaged, he could adjourn the proceedings. However, the judge heard the evidence and submissions and gave decision. [7] The judge appeared concerned that court staff had scheduled the application without the proper documentation being in the file and that Mr. Francis, as self represented litigant, should not suffer for that oversight. Mr. Francis was apparently eligible for Legal Aid but had chosen to represent himself. The judge appears to have given no weight to the disadvantage which the incomplete and late disclosure worked on counsel for Ms. Terry. [8] The standard of appellate review is to determine whether the reasons of the judge at first instance disclose an error in principle, significant misapprehension of the evidence or that the award is clearly wrong: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 at paras. 11 and 12; Betlem v. Tzagarakis, 2003 NSCA 141 (CanLII), [2003] N.S.J. No. 458 (Q.L.) at para. 2. [9] In my opinion, the judge’s decision was procedurally unfair to Ms. Terry and wrong in principle. He erred in hearing Mr. Francis’ application to reduce the amount of child maintenance and to cancel arrears absent full disclosure by Mr. Francis. As Goodfellow, J. put it in MacLean v. MacLean (2002), 2002 NSSC (CanLII), 200 N.S.R. (2d) 34 at para 19, “Full disclosure in family matters is given. Failure of party to [disclose] will, in most circumstances, result in adverse consequences.” In my respectful view, only in rare circumstances should a party applying to reduce a child support obligation be heard absent that party making full disclosure. Moreover, the absence of disclosure here was unfair to Ms. Terry as it prevented her from making full response to Mr. Francis’ application. [10] would set aside the order of MacDonald, J.S.C.(Fam.Div.) and dismiss Mr. Francis’ application without prejudice to his bringing new variation application on proper material. [11] Ms. Terry did not request costs and would therefore order none. Cromwell, J.A. Concurred in: Glube, C.J.N.S. Freeman, J.A.

The father, who was in arrears under an order requiring him to pay child support, applied to vary the support order which had been made less than a year before. He failed to make the required financial disclosure and relied on a medical disability of which he gave no prior notice. The judge allowed the application to proceed, over the objections of the mother, and reduced the child support obligation to $1 per month. The mother appealed. Appeal allowed; the judge's decision to allow the application to proceed was procedurally unfair to the appellant and wrong in principle. Only in rare circumstances should a party applying to reduce child support be heard absent that party making full disclosure.

7_2004nsca118.txt

Lane J.A. IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 206 Date: December 11, 2013 File: 26/12 and 27/12 Location: Weyburn Between: Maintrack Café Ltd. and Lilia Turcan and Christos Karampatsos Self-Represented For the Plaintiff Self-Represented For Lilia Turcan Self-Represented For Christos Karampatsos JUDGMENT K. BAZIN, [1] The plaintiff puts forward that he loaned $5,000.00 each to the defendants, with an additional $1,000.00 to Christos. The front of the three cheques were filed as an exhibit with the Court. There is no issue that the defendants received $5,000.00 each. [2] The defendant Christos Karampatsos (Christos) states that he received the $1,000.00 cheque, cheque number 16733, and simply was asked to sign it and return it, which he did. He claims he did not receive any money for the cheque. $1,000.00 Cheque [3] As for the $1,000.00 cheque, John Georgacacos (John), owner of the plaintiff corporation, and the only witness for the plaintiff stated that the cheque was for $1,000.00 and he had previously given Christos cash. The return of the cheque was to pay it back. John states that Christos wanted money to do something so he gave one thousand dollars cash and that they had to pay it back. So when the thousand dollar cheque is paid to Christos he then pays it back, in returnd for the $1,000.00 loaned. Christos says that he signed the cheque and gave it back to John. [4] Christos says that he did not know why this was done but simply did it. John says it was for wages but it does not show up as wages or an advance of wages, although the $1,000.00 and the $5,000.00 which are claimed as loans, show up as loans in the accounting documentation prepared by the plaintiff. [5] What John had testified to, that he had given $1,000.00 cash advance and that the return of the $1,000.00 dollar cheque was repayment of the advance, does not make sense. What one would expect to have happened is that if it was $1,000.00 cash advance it would simply be deducted from Christos’ wage and shown as an advance. This is not recorded this way in the plaintiff’s records filed as exhibits. The $1,000.00 shows loan, but it does not show it being paid back. [6] In addition when discussing this issue of the $1,000.00 loan, John testified that he would give Christos cash several times. He said that he gave Christos $2,000.00 cash to buy car on Sunday. He stated that the $2,000.00 referred to in the counterclaim by Christos which is deduction from his cheque, was funds to buy car. This will be discussed further when we examine the deductions from the paycheques of Christos. [7] I find that there is actually no loan given to Christos as far as the $1,000.00 is concerned. There is no record of it, as far as loan documentation goes. The accounting records do not show it as wages advanced, as testified to by John. Since Christos was on salary, if this was an advance, one should see some record of the thousand dollars being deducted from one of his paycheques being either September, October, or November. This does not occur. In addition if it was for wages it should also show up in Christos’ T4 slip, which it does not. John’s explanation that it was an advance for wages is not supported by the companies’ records. [8] In addition the back of the cheque was not produced to indicate where it was deposited. [9] As to the $5,000.00 loan to Lilia Turcan (Lilia), which will be canvassed in more detail later in this decision, all parties testified that she was not involved in any discussions as to the giving of these funds to her. The parties in their testimony all state that Lilia was never involved in discussion with John for the money. She testified that her husband brought home the cheque, asked her to sign it and then she gave it back to him. It was her understanding that it was gift. In addition, John testified that he never had discussions with Lilia as to the five thousand dollar alleged loan. [10] There was no documentation signed by Lilia. John indicated that this is how in Greece they do business, simply by verbal agreements. [11] It is also noted that the plaintiff filed the front of each cheque, but did not file copy of the back of the cheques being the two $5,000.00 cheques and the $1,000.00 cheque. [12] As such I find that there was no loan of $1,000.00 to Christos. $5,000.00 Cheque to Christos [13] As to the $5,000.00 cheque to Christos, he is not denying receiving the funds, but states that it was gift from his uncle to himself, and an equal gift to his wife. This was to help them in establishing themselves in Canada. [14] At the time of the payment of $5,000.00 to Christos and his wife, the defendants were living in John’s home with his wife and family. Christos and his wife Lilia, who was expecting baby, had just moved recently from Greece in order to work for the plaintiff. There’s nothing to indicate that matters were not amiable, between John and the defendants. The defendants had the free use of John’s home and also the free use of John’s car whenever they needed it. [15] Considering that the defendants were new to Canada and to large extent reliant upon John and his family for their employment and housing, it would not be out of the ordinary for John to provide them gift to start them in Canada. Although the cheques come from the corporate plaintiff, the corporation is controlled by John. [16] I am not satisfied on a balance of probabilities that the $5,000.00 was a loan, as there's no loan documentation prepared and/or signed, which one would anticipate considering the plaintiff is a corporation. John testified that he had been in business in Canada for 35 years, and infer that he would be well aware of the benefit of written document for any loans. It would be simple matter for the corporation to have asked for and received loan documentation if in fact they were loaning money to the defendants. There of course is no need for documentation if it is simply gift to assist the defendants to start their life in Canada. The plaintiff as well could have verbal loan with the defendants. [17] The payback of the loan, as set out in the Statement of Claim at $500.00 per month, was never taken from the defendant’s wages, which the plaintiff testified was part of the agreement. It is also unclear as to why loan was to be made and then seven days later the first payment would be taken out. John did not know why the amount of $400.00 was taken, when he stated the agreement was to be $500.00 per month. There was no explaination why monthly amounts of $400.00 per month were not taken from both defendants, as this would have been simple arrangment with the corporation’s accountants, which John testified they used. [18] There were, in addition, several inconsistencies in the testimony of John, which have referred to in the thousand dollar loan part of this decision. [19] The defendants testified that there was no request to pay the loan back until about year later. This is not disputed by the plaintiff, who indicated they sent out demand letter close to the time of issuing the Statement of Claim, but there was no request to pay it back earlier. [20] The plaintiff could well have made loan to Christos without documentation, but looking at the evidence as whole, the plaintiff has not made out, on balance of probabilites their case for loan to Christos. $5,000.00 Cheque to Lilia [21] For the same reasons as set out in the foregoing paragraphs relating to the $5,000.00 cheque to Christos, they equally apply to the $5,000.00 cheque to Lilia. In addition, Lilia never spoke to anyone about the $5,000.00, but simply accepted what her husband had told her that it was gift from his uncle. [22] In addition both defendants indicated that they were never asked to pay the money back until near the time of issuing the Statement of Claim. They testified they were never asked by John to pay the money back but believe they did receive letter from the plaintiffs' lawyer just shortly before receiving the Statement of Claim. The Statement of Claim was issued December 11, 2012, approximately one year after the defendants were no longer employed by the plaintiff. [23] I find that the plaintiff has not proven on the balance of probabilities that the $5,000.00 to her was a loan, and find that it was a gift. [24] Accordingly the plaintiff’s claims are hereby dismissed. Counterclaim by Christos [25] Christos claims by way of counterclaim as against the plaintiff, the $2,400.00 of which $2,000.00 was cheque signed and returned to the plaintiff and $400.00 was deducted from his paycheque for the repaying back of expenses incurred by the plaintiff to have him come to Canada. [26] The defendant Christos, at the time had agreed to these amounts being paid back to the plaintiff. [27] No evidence was put forward by the defendant Christos that supports that these payments were not consented to and agreed to. The defendant Christos states that the plaintiff could not lawfully ask for funds back for expenses incurred. However the defendants have not put forth any information to support this allegation. [28] The counterclaim as to the $2,400.00 is not proven. [29] Christos claims vacation pay in the amount of $437.12 and an additional $575.00 for nine days worked in December that was not paid. [30] The employee detailed record filed by the plaintiff shows that the December 31, 2011 cheque had gross payment of $1,014.02. The net pay was $.21. The plaintiff stated this was for payback of the loans, whereby $960.00 was paid towards the loans. In addition $53.81 was withheld for CPP and EI. [31] The amount withheld totals $1,121.43. Having found that there is no substance to the $1,000.00 loan and the $5,000.00 loan was gift, there is no basis to withhold the $960.00 from Christos on his last cheque. As such find that he has proven that the plaintiff owes him the sum of $960.00, being deductions from his December cheque. Lilia’s Counterclaim [32] Lilia, like Christos, claims back $2,400.00 which was paid to the plaintiff for repayment of expenses related to the plaintiff bringing her to Canada. As with her husband Christos, I find this was agreed to by Lilia and there if no evidence to support that the refund of these monies was not by agreement by the defendant Lilia. [33] Lilia also claims for wages for December 2011. She has claimed that she worked eight days and never received the cheque for her hours or vacation pay. [34] Lilia’s Record of Employment (ROE), states $417.68 for vacation pay. Lilia did not receive cheque for her work in December as shown on the plaintiff’s records. Her Record of Employment that was filed as an exhibit does show she was paid vacation pay of $417.68. infer that she would have been entitled to the $417.68 on her last cheque, from the fact this is how her husband Christos was paid on his last cheque in December as well. [35] The defendant Lilia also claims that her Record of Employment as prepared by the plaintiff is inaccurate, and she claims that she had worked more than 600 hours, which she had in mind, in order to collect maternity leave. She claims that the plaintiff falsely put inaccurate hours on her Record of Employment to prevent her from obtaining maternity leave benefits. [36] As to the hours worked by Lilia, she testified that she worked six days week with one day off for the months of September and October. She stated that in November when she gave the plaintiff her doctor slip that she could only work six hours, he was upset and told her she would only work three hours day. She testified that she worked on average four hours day, and on other days longer, but on average would work four hours day, for November and December. The plaintiff filed handwritten notes, which were not identified as to who wrote them, for November and December. From the notes it does appear, if they were accepted, that Lilia is working on average four hours per day and some days are and some days are ½. Lilia disputes that these are accurate records as of the days she worked. They do support her testimony that for November and December, that when she worked she averaged about hours. [37] The plaintiff also testified that the November pay stub showing 166 hours is inaccurate and that Lilia was overpaid for November, and this is why she was given no money for December by way of wages for her hours worked or holiday pay. John testified that the error was made by the accountant as he did not know she was not working full-time. [38] John initially testified that Lilia was paid by the hour, but later when trying to explain why Lilia did not receive any funds for December, he testified that she was paid by salary for September and October and then by the hour once her hours were reduced in November 2011. [39] accept the defendant’s evidence as to what hours she worked. From the testimony of John, it is clear that he is unclear on many aspects of when Lilia worked and how she was paid, and the company records are also unreliable. [40] From the evidence find as fact that Lilia Turcan worked the following hours in 2011: 1) September 26 days hours 234 hours 2) October 26 days hours 234 hours 3) November 26 days hours 104 hours 4) December days hours 32 hours Total hours worked 604 hours [41] Having accepted Lilia's testimony as to working four hours for November, accept that she was overpaid for November, by approximately 62 hours and at $15.00 an hour this would be $930.00. She should have been paid $480.00 for her 32 hours worked in December, and in addition should have received $417.68 for vacation pay. This totals $897.68. It is very close to the $930.00 that was deducted by the plaintiff for overpayment. [42] As such, conclude that $32.32 is owed by the plaintiff to the defendant Lilia Turcan in relation to wages and vacation pay. [43] Lilia also claimed against the plaintiff the sum of $12,000.00, being funds she lost due to the plaintiff’s inaccurate Record of Employment. [44] Lilia filed letter from Service Canada indicating that she was not able to qualify for special benefits due to the fact that she did not have 600 hours of insurable employment. find that the plaintiff (defendant by counterclaim) had filed an inaccurate number of hours worked by the defendant, with the knowledge that she was attempting to claim maternity benefits. [45] It was clear in the evidence of all parties that John was unhappy about Lilia being asked to work less hours by her doctor, and that one of the reasons that Christos and as well Lilia were dismissed was that Christos had wanted documentation, being Lilia’s Record of Employment in order to file for maternity leave. There was misunderstanding between John and Christos as to when this could be prepared and when the plaintiff had to provide the document to Lilia. This misunderstanding does not affect the fact that once she was dismissed by the plaintiff, the plaintiff had an obligation to record accurate working hours in the Record of Employment for Lilia. [46] The defendant, Lilia is entitled to damages as against the plaintiff for negligence in the filing of the Record of Employment. [47] As the amount of damages is not known at this time, and as the defendant may be able to now qualify and receive funds retroactively for the special benefits from Service Canada, in light of the Court’s finding that she has worked 604 hours, the issue of damages as to this aspect of the defendant Lilia’s claim is adjourned to a date to be determined by the parties and the Court. It may be that there are no damages incurred by the defendant Lilia if she now qualifies for payment from Service Canada. [48] If she is not able to obtain the payments that she had lost, the Court will hear evidence and argument on the quantum of damages to be paid by the plaintiff to the defendant Lilia. [49] As there was mixed success by all parties, no costs are awarded. [50] Dated this 11th day of December, 2013.

HELD: The Court concluded that the $1,000 loan did not exist, there was nothing on the books showing an advance of wages as submitted by the plaintiff. The Court was not satisfied that the defendant husband received a loan from the plaintiff in the amount of $5,000. There was no loan documentation, which would be expected given the money was advanced from the plaintiff corporation. The plaintiff never demanded any of the money be paid back until just before issuing the statement of claim. The Court also held that the $5,000 to the defendant wife was a gift. The counterclaim of $2,400 was not proven; there was no evidence that these payments were not made with consent. The $960 should not have been taken off of the defendant husband’s cheque because the $1,000 and $5,000 loans were not made out. The defendant husband was successful in this portion of his counterclaim. The Court found that $2,400 given to the plaintiff by the defendant wife was also by agreement. The defendant wife’s testimony with respect to her hours worked were favoured over the plaintiff’s. The defendant wife was overpaid for work in November so the plaintiff was only owed $32.32. The plaintiff filed an inaccurate Record of Employment knowing that the defendant wife was trying to obtain employment insurance. The amount of damages owing to the defendant wife was adjourned to allow her to make a new claim with Service Canada for employment insurance given the Court’s determination of her hours worked, which would be enough to qualify for employment insurance.

d_2013skpc206.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 113 Date: 2013-10-29 Between: Docket: CACV2471 The Director under The Seizure of Criminal Property Act, 2009 Prospective Appellant (Applicant) and Aaron Tropeau, Cheryl Brinkman and the Chief of Police of the Saskatoon Police Service Prospective Respondents (Respondents) Before: Richards C.J.S. (in Chambers) Counsel: Tammy Pryznyk for the prospective appellant Aaron Tropeau and Cheryl Brinkman appearing on their own behalf Application: From: 2013 SKQB 361 (CanLII) Heard: October 24, 2013 Disposition: Application dismissed Written Reasons: October 29, 2013 By: The Honourable Chief Justice Richards Richards C.J.S. I. introduction [1] The Director under The Seizure of Criminal Property Act, 2009, S.S. 2009, c. S-46.002 (the “Act”) seeks leave to appeal Queen’s Bench Chambers decision which denied his application for the forfeiture of vehicle registered to the respondent Cheryl Brinkman. The Director’s application was brought pursuant to s. of the Act on the ground that the vehicle had been used in criminal activity. [2] Ms. Brinkman and the respondent Aaron Tropeau are common-law spouses. [3] The vehicle in question (the “Vehicle”) is 2010 Ford Transit Cargo Van. Ms. Brinkman purchased it in 2010, with money received from her father’s estate. Beginning in January of 2012, she and Mr. Tropeau used it to haul items on an on-call basis. The business averaged $3,000 in profit every month. [4] In March of 2012, Mr. Tropeau was seen removing copper material from the back of truck. As witness approached the scene, Ms. Brinkman (who was sitting in the Vehicle) called out warning to Mr. Tropeau. [5] second incident occurred on March 29, 2012. Mr. Tropeau was found in the back of parked truck with rolls of copper in his arms. Ms. Brinkman was also at the scene. When the driver threatened to call the police, Ms. Brinkman and Mr. Tropeau returned to the Vehicle and fled. [6] third incident took place in January of 2013. Mr. Tropeau was seen operating the Vehicle near fenced compound. He entered the compound through hole in the fence and returned to the Vehicle with two pails full of copper wire. [7] Mr. Tropeau pled guilty to three counts of theft under $5,000 and one count of break and enter. He was sentenced to 12 months of probation and 80 hours of community service. Ms. Brinkman was charged with two counts of theft under $5,000. Both charges were ultimately withdrawn but Ms. Brinkman does not deny her involvement in the events of March 21 and March 29, 2012. [8] Ms. Brinkman is 58 years of age. She suffers from chronic depression and has been diagnosed as “borderline bipolar.” She has been receiving ongoing psychiatric care. She was also diagnosed with brain aneurysm in March of 2010. The resulting surgery has left her with both physical and mental limitations. More recently, Ms. Brinkman advises that cancer problem, formerly in remission, has returned. [9] Mr. Tropeau is 51 years of age. He also has medical problems. He was admitted to hospital in February of 2013 with necrotizing fasciitis. This has affected his leg strength and left him, he believes, largely unemployable. Nonetheless, he contends that he will be able to operate the haulage business so long as he takes some care. [10] Ms. Brinkman and Mr. Tropeau indicate that they are dependent on the Vehicle to earn their living. They say it is their only asset of any value and that, without it, they will be forced to live on social assistance. III. the decision of the chambers judge [11] The Director brought an application for the forfeiture of the Vehicle pursuant to s. 3(1) of the Act. Section 3(1) reads as follows: 3(1) The director may apply to the court for forfeiture order if the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity. [12] There was no real contest about whether the vehicle was used as “an instrument of unlawful activity” within the meaning of s. 3(1). As result, the key issue before the Chambers judge was whether it clearly would not be “in the interests of justice” to make forfeiture order. In this regard, s. 7(1) of the Act says this: 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] [13] The Chambers judge canvassed the relevant authorities, including this Court’s recent decision in Saskatchewan (Director, Seizure of Criminal Property Act, 2009) v. Mihalyko, 2012 SKCA 44 (CanLII), 348 D.L.R. (4th) 756. He then examined the particulars of the situation before him, noting that the Vehicle had been used in several criminal acts and that the acts in question were planned and deliberate. The Chambers judge also noted that the Vehicle was worth considerably more than the amount of copper involved in the attempted thefts and that the loss of the vehicle would have drastic consequences for Ms. Brinkman and Mr. Tropeau as it is what stands between them and life on the welfare rolls. The judge further observed that, as of the date of his decision, Ms. Brinkman and Mr. Tropeau had already been without the Vehicle for some nine months because it had been held by the Director pending the outcome of his application. [14] In the end, the Chambers judge decided not to order the forfeiture of the Vehicle. He wrote as follows: [33] In all the circumstances of this exceptional case, exercise my limited discretion to refuse forfeiture of the vehicle. In coming to this difficult decision, fully accept, and agree with, the proposition that exception from forfeiture under s. is to be ordered sparingly and only in rare cases. After giving this application considerable thought, have decided this is such case. Very little public interest would be served by forcing these middle aged and ailing respondents to forfeit their vehicle, and with it their livelihood, as consequence of three ineptly carried out efforts to steal copper material. To do so, in my opinion, would narrowly cross the threshold of being draconian and manifestly unjust. IV. analysis [15] The test for granting leave to appeal is well known. It involves consideration of both the merits and the importance of the proposed appeal. See: Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121. [16] In this case, the Director submits that the Chambers judge made four errors of consequence in coming to his decision. He says the judge erred by:(a) considering certain information about the circumstances of Ms. Brinkman and Mr. Tropeau even though that information had been submitted by those two individuals as part of their arguments rather than formally by way of affidavit;(b) characterizing the evidence of Sgt. Pfeil as having been made on information and belief;(c) failing to give primacy to the interests of the public and, in particular, failing to consider the need to deter crime, the need to remove the profit from crime and the need to compensate victims; and(d) taking into account the fact that the vehicle had been been held by the Director for 90 days. [17] With respect to issues (a) and (b), I am not persuaded that, in the context of this case, questions of evidence are of sufficient importance to engage the attention of the Court. [18] With respect to issue (c), I am not at all sure that the Chambers judge overlooked the interests of the public or failed to consider the need to deter crime, undercut the profitability of crime and so forth. He conducted a relatively thorough review of the relevant case law in the course of establishing the framework governing his decision-making. This included Saskatchewan (Director, Seizure of Criminal Property Act, 2009) v. Mihalyko, supra. Paragraph of his decision would suggest that the judge did consider matters relating to the deterrence of crime. The Chambers judge was also at pains to underline the exceptional nature of his power to deny forfeiture application. [19] With respect to issue (d), the Director has raised a point of some interest but I am not convinced that it needs to be explored at this time and in the context of this particular case. doubt that the Chambers judge’s decision on this issue will have an especially important precedential impact given that he emphasized s. of the Act is to be engaged “sparingly and only in rare cases” and given his characterization of the facts before him as “exceptional.” [20] Taking into account both the merits and the importance of the Director’s proposed appeal, I am not persuaded by his arguments about granting leave to appeal. V. conclusion [21] In the end, this is not a case where, in my view, leave to appeal should be granted. The Director’s application is dismissed. The Vehicle shall be returned to its owner, Ms. Brinkman. DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of October, A.D. 2013. “Richards C.J.S.” Richards C.J.S.

HELD: The applicant’s first two grounds of appeal related to the evidence of the respondents’ and police. The Court of Appeal was not persuaded that questions of evidence were of sufficient importance to grant leave. The applicant’s third ground was that the Chambers judge failed to take into account the interests of the public, particularly, the need to deter the public and the need to remove profit from crime to compensate victims. The Court of Appeal did not grant leave on the third ground. The Chambers judge reviewed the relevant case law and did not fail to take those items into account. The last ground of appeal was the fact that the vehicle had already been held for 90 days. The Court of Appeal said that this ground did raise some interest but they were not convinced that this was the case to grant the leave to appeal.

c_2013skca113.txt

Court No. 1851 Estate No. 021902 IN THE COURT OF QUEEN’S BENCH IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF JACOLYN ANDREA NEWTON Jacolyn Andrea Newton, Bankrupt, on her own behalf Dean Burlingham, Trustee Greg Gabruch, counsel for Canada Student Loans FIAT MARCH 13, 1996 Maurice J. Herauf, Registrar After careful consideration, I would prefer to adjourn the discharge hearing for a period of 6 months. This would allow the Court to assess the financial circumstances of the bankrupt and her spouse at that time. The objecting creditor will be responsible for arranging date for the discharge hearing to reconvene sometime in September or October, 1996.

Fulltext of judgment follows: After careful consideration, I would prefer to adjourn the discharge hearing for a period of 6 months. This would allow the Court to assess the financial circumstances of the bankrupt and her spouse at that time. The objecting creditor will be responsible for arranging a date for the discharge hearing to reconvene sometime in September or October, 1996.

c_1996canlii5150.txt

J. Q.B. A.D. 1996 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: WIND POWER INC. and DOVE INDUSTRIES, INC. PLAINTIFFS (RESPONDENTS) and SASKATCHEWAN POWER CORPORATION DEFENDANT (APPLICANT) Murray R. Sawatzky for the applicant Patrick N. McDonald for the respondents FIAT GEATROS J. April 7, 1998 [1] The defendant "SaskPower" seeks an order pursuant toQueen\'s Bench Rule 547 requiring the plaintiffs to postsecurity for its costs in this action, on the ground:. . . that Wind Power Inc. is a non-resident plaintiff with little or noassets in the province of Saskatchewan andDove Industries, Inc., while a corporationin the province of Saskatchewan, wasincorporated specifically for a wind powerdemonstration project which did notproceed (and which is related to thesubject matter of this action) andaccordingly has little or no assets in theprovince. [2] Rule 547 reads in part: 547(1) Where plaintiff in any action or issue, or the petitioner or applicant in any proceeding by way of originating notice resides out of Saskatchewan, or, although temporarily resident within Saskatchewan is ordinarily resident out of Saskatchewan, or where under the provisions of any statute defendant may be entitled to security for costs, and the defendant by himself or his agent alleges by affidavit that he has good defence on the merits and stating the nature of such defence, the defendant shall be entitled to serve notice of motion for an order requiring the plaintiff within time to be limited by the court to give security for the defendant's costs in such amount and in such manner and form as the court may direct. [3] The question arises whether this Court has jurisdiction to direct security in the present circumstances and, if so, whether it should do so. [4] Basic facts alleged are not in dispute. Wind Power Inc. is an Alberta company extra-provincially registered in Saskatchewan. It has developed wind power installations in Alberta. Dove Industries, Inc. is Saskatchewan company. It was formed for the purpose of initiating and developing pilot project in Saskatchewan. Its shareholders are farmers in the Swift Current district. So we have situation where we have resident and non-resident plaintiffs. [5] Rule 547 is limited to cases where the plaintiff is non-resident, or where the defendant is given statutory right to apply. The latter prerequisite does not exist here. The former applies only as to one of the plaintiffs. [6] The plaintiffs contend that their claims are joint. They cite Willowtree Investments Inc. et al. v. Brown (1985), 48 C.P.C. 150 (Ont. S.C.) for authority that where there is more than one plaintiff and their claims are joint, security will not be ordered from non-resident plaintiff where there is plaintiff within the jurisdiction. The headnote of the report fairly summarizes the ruling that was made: Where there is more than one plaintiff and the claims are joint so that all plaintiffs must succeed or all must fail, security will not be ordered from non- resident plaintiff where there is plaintiff within the jurisdiction. Conversely, where the claims are several so that one plaintiff may succeed while another fails, non-resident plaintiff may be ordered to post security. In this case, all of the claims to which was party were joint and therefore security could not be ordered. [7] am inclined to agree with Mr. McDonald that the reason for that rule is because in the case of joint claims both plaintiffs must succeed or both must fail, and if both fail each plaintiff is liable for 100 percent of the costs. Be that as it may, am firmly of the view that am empowered to direct security for costs in the present instance against both plaintiffs even if accept that their claims are joint, notwithstanding the circumstances may not fall in the categories enumerated by Rule 547. [8] In Ontario, it has been held that the court has no jurisdiction to do so. Referring to the rule in that province, at the time Rule 373, covering the situations where security for costs may be ordered, Fraser J., in K.V.C. Electric Ltd. v. Louis Donolo Inc. (1964), 1964 CanLII 295 (ON SC), O.R. 565 (H.C.J.), said, at p. 573: am of the opinion that, subject to any specific statutory provisions, security for costs may be ordered only in the categories enumerated in R. 373. That assessment appears to be in place in Ontario to this time. In Saskatchewan, it is otherwise. [9] In McRobb Holdings Ltd. v. Chelico's Restaurants Ltd., 1993 CanLII 9035 (SK QB), [1993] W.W.R. 752 (Sask. Q.B.), my brother Halvorson J. alluded to the analogous rule in Ontario then in place (R. 56.01) and said: Because most conceivable situations are encompassed by r. 56.01, it has been adjudged that the rule is code. Therefore, the court has no jurisdiction to order security except in the instances enumerated in the rule. Inherent jurisdiction of the court at common law to order security no longer exists in Ontario (see Mark M. Orkin), The Law of Costs, 2nd ed. (Toronto: Canada Law Book, 1993), para. 501). This rationale should not be superimposed on R. 547 which is not as expansive as its Ontario counterpart. It cannot be said R. 547 was intended to be codification of all situations where security could be ordered. comparison with r. 56.01 underscores the many shortcomings of R. 547. Rule 547 is not code which confines the court's jurisdiction to those areas particularly mentioned in the rule. The common law has not been supplanted entirely by the rule. The court is still permitted to invoke its inherent jurisdiction to regulate its own procedure by ordering security for costs in instances not covered by the rule. [10] Reference is made to the statement of Lord Alverstone C.J. in J.H. Billington, Limited v. Billington, [1907] K.B. 106, at p. 109: have always understood that the power of the Superior Courts of common law to order security for costs arose from the inherent jurisdiction of those Courts over their own procedure. [11] Halvorson J., in asserting his inherent jurisdiction, ordered deposit by way of security for the costs of the defence in the circumstances before him that did not fall within Rule 547. In my judgment, this court has the power to order that security be given in all cases where it is thought just to do so. Mr. McDonald makes reference to Clark Window Products Ltd. v. Remai Investment Corp. (1992), 1992 CanLII 7954 (SK QB), 99 Sask. R. 239 (Q.B.) where the court dismissed the application for the reason that the defendant did not meet the requirements of Rule 547. In that case, any questions of inherent jurisdiction were neither raised nor dealt with. [12] have further observation in the matter of inherent jurisdiction. This is Superior Court having specific characteristic that is stated by Furlong C.J. in Bursey v. Bursey (1966), 58 D.L.R. (2d) 451 (Nfld. S.C.) to be as follows, at p. 455: That characteristic is the manner in which plenary powers of superior Court may be cut down or limited. The matter was considered just 300 years ago in Peacock v. Bell and Kendal (1667), Wms. Saund. 73 at p. 74, 85 E.R. 84, when, as it is reported, it was held: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged. It would appear that this dictum has remained undisturbed by time as find it is repeated in substantially the same words in Hals., 3rd ed., p. 349, as follows: Prima facie, no matter is deemed to be beyond the jurisdiction of superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. and later at p. 457: can only say then, that in my opinion the jurisdiction of this Court is sufficiently ample for it to dispose of all matters which come before it and which the Court is not specifically forbidden to [13] See also Camosun Commercial Co. Ltd. v. Garetson Bolster (1914-15), VII W.W.R. 219 (B.C.S.C. Ch.). [14] Viscount Haldane stated at an earlier time in Board v. Board, 1919 CanLII 546 (UK JCPC), [1919] A.C. 956 (P.C.), on an appeal from the Supreme Court of Canada, at p. 963: it is the rule as regards presumption of jurisdiction in (a Superior Court) that, as stated by Willes, J. in London Corporation v. Cox (1867) L.R. H.L. 239, 259), nothing shall be intended to be out of the jurisdiction of Superior Court, but that which specially appears to be so. [15] It follows, in my judgment, that the powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court, unless, in the words of Stark J. in Re Michie Estate and City of Toronto et al. (1968), 66 D.L.R. (2d) 213 (Ont. H.C.) at p. 215, ". the Legislature divests from this universal jurisdiction by legislation in unequivocal terms." Accordingly, it is open to me to make the order sought if the circumstances warrant. [16] Given that assessment, it is not necessarily fatal to the applicant's motion if it is determined the plaintiffs' claims are joint. Only that it is consideration, seriously to be looked at. SaskPower insists that the plaintiffs' claims are several, not joint. It argues that even with respect to the joint submission made on the particular proposal concerned, the claims for damages sustained by each plaintiff are different as each performed different work sustaining allegedly different damages. In short, it is urged, that it is not necessarily true that if one plaintiff succeeds at trial the other will necessarily succeed at trial as well. [17] To analyse the nature of the claims in depth at this stage in order to determine whether they are joint or several would be to essentially make findings that are only for the trial judge. At all events, it would be open for me to direct that security be posted in either event against either or both of the plaintiffs. In McRobb Holdings Ltd., supra, Halvorson J. required the plaintiff, not non- resident, to deposit security for costs, in circumstances where the plaintiff no longer carried on business and was without assets. [18] In the present case, given the amount of the claim against SaskPower in the amount of $6,400,000.00 and the significant claim for costs which could be awarded to it in the event of successful defence, in excess of $55,000.00, with little or no assets in the province held by either plaintiff, one being non-resident, would be inclined to grant SaskPower the relief it seeks. But there is significant factor that precludes me from making that kind of an order. It has to do with the delay by SaskPower in bringing its application. [19] This action was commenced in April, 1996. The plaintiffs point out that SaskPower knew that Wind Power Inc. was an Alberta company. SaskPower would know that the action was not going to proceed quickly. There was an exchange of documents, and motion in September 1996, by the plaintiffs for production of documents claimed as privileged. The disclosure of documents is completed, as well as the examinations for discovery. The parties made joint request for pre-trial conference signifying that thereafter they were ready for trial. Yet, an application for security for costs had not yet been launched. The pre-trial conference took place on January 28, 1998. trial date was set for September 28 to October, 1998. SaskPower has only now made this application. [20] It is disclosed that SaskPower raised with plaintiffs' counsel the issue of security for costs back in September, 1996. It was advised of the plaintiffs' position. SaskPower held the matter in suspense before resorting to the present application. [21] Mr. McDonald refers to cases that have held that failure to move promptly for security for costs may be fatal to later application if, through delay, plaintiff has been lulled into the false belief that he may proceed with his action without being called upon to advance security. Included is McCormack v. Newman et al. (1983), 35 C.P.C. 298 (Ont. S.C.). Given the correspondence between the parties in September, 1996, when SaskPower raised the matter of security for costs and nothing was done as regards thereto until the present time, after the pre-trial conference and the fixing of trial date, would that not foster the belief that the plaintiffs could proceed without being called on to advance [22] At all events the delay, which find to be substantial, has to be explained. In general, unexplaineddelay by the defendant in seeking security for costs willprevent an order being obtained: Gosselin v. Wong (1983), 33 C.P.C. 262 (Ont. S.C.). See also Cohen v. Power et al. (1971), 1970 CanLII 228 (ON SC), O.R. 742 (Ont. S.C.). It is obvious that motions of this sort should be taken as early as reasonably possible, so that the plaintiffs will not proceed very far in ignorance of the fact that they are going to be asked to provide security for costs: Petter v. Roberts, [1949] O.W.N. 611 (Ont. H.C.). The practice, suggest, is that the proper time to move for an order for security for costs is immediately after the close of pleadings, in order that the plaintiff, before entering upon discoveries and preparing for trial, may know whether he will be called upon to provide security, and if so, the amount of security. Here SaskPower not only did not move upon the close of pleadings but not even reasonably soon after some discussion of the matter that took place in September, 1996, without resolution. [23] In Thole v. McKenna (1988), 1988 CanLII 5343 (SK QB), 71 Sask. R. 106 (Q.B.) my brother Grotsky said, at p. 108, "In this jurisdiction, delay has been treated as sufficient ground, in appropriate circumstances, for refusing an application for security for [24] SaskPower says that it did not proceed with an application at an earlier stage of the proceedings as it wished to provide an opportunity at the pre-trial conference stage for the matter to be resolved. am not persuaded that thereby the parties would be more inclined to enter into meaningful settlement discussions, as alleged. accept the reason advanced by SaskPower for the delay, but it does not suffice to grant it the relief it seeks. To make an award forsecurity for costs at this stage would place a burden on theplaintiffs and possibly prevent the action from taking placeat the scheduled time. See Perentes et al. v. Cordogianes Estate et al. (1985), 1984 CanLII 2232 (SK QB), 36 Sask. R. 159 (Q.B.). [25] Again, the time to have brought the application was at least soon after September, 1996. The fact that it was not made until now would have left the plaintiffs with the distinct possibility that, ultimately, the court was not going to be asked by SaskPower to have them furnish security. [26] In my judgment, there are "appropriate circumstances", per Grotsky J. in Thole v. McKenna, supra, to deny the defendant an order that the plaintiffs post security for costs at this stage of the action. In the exercise of mydiscretion, I would dismiss SaskPower\'s motion. The plaintiff shall have one set of costs of the application in any event of

FIAT. SaskPower sought an order pursuant to Queen's Bench Rule 547 to require the plaintiffs to post security for costs on the ground Wind Power was a non-resident plaintiff with little or no assets in the province of Saskatchewan. HELD: The motion was dismissed. 1)Rule 547 is limited to cases where the plaintiff is a non-resident or where the defendant is given a statutory right to apply. Wind Power is an Alberta company extra-provincially registered in Saskatchewan. Dove Industries, a Saskatchewan company incorporated specifically to develop a pilot project in Saskatchewan which did not proceed, had shareholders in the province. 2)Given the amount of the claim against SaskPower in the amount of $6,400,000 and the significant claim for costs in excess of $50,000 the Court would have granted the security for costs but for the delay by SaskPower in bringing its application. The action was commenced in April 1996. Unexplained delay by a defendant in seeking security for costs will prevent the grant of an order. To make an award for security for costs at this stage would place a burden on the plaintiffs and possibly prevent the action from taking place at the scheduled time. 3)The plaintiff was awarded one set of costs in any event of the cause.

3_1998canlii14061.txt

NOVA SCOTIA COURT OF APPEAL Citation: 2301072 Nova Scotia Ltd. v. Lienaux, 2007 NSCA Date: 20070112 Docket: CA 271137 Registry: Halifax Between: Charles D. Lienaux and Karen L. Turner-Lienaux v. 2301072 Nova Scotia Limited and Marven C. Block, Q.C. Respondents and The Toronto-Dominion Bank Intervenor Judge: The Honourable Justice Thomas Cromwell in Chambers Application Heard: January 11, 2007, in Halifax, Nova Scotia Held: Leave to amend notice of appeal granted. Counsel: Charles D. Lienaux, for the appellants Gavin Giles, Q.C., for the respondent 2301072 Nova Scotia Ltd. Dufferin R. Harper and Barbara Kerr, Articled Clerk, for the Intervenor Reasons for judgment: [1] The appellants apply for leave to amend their notice of appeal. Leave is required because the notice was filed more than 20 days ago: Rule 62.04(4). The application is opposed by the respondent 2301072 Nova Scotia Limited and the intervenor. As, in my view, their arguments in opposition to the amendment relate to the merits of the point raised by it, those arguments are for panel and not chambers judge to consider. The amendment should be granted but without limiting the responding parties from arguing these points before the panel. [2] The underlying proceeding is an application for leave to appeal and, if granted, an appeal from an order requiring the appellants to post security for costs with respect to certain interlocutory applications in which they will be the moving parties. The appellants wish to add as ground of appeal that the respondent, the plaintiff in the main action, is not “lawful plaintiff” and, therefore, not entitled to security for costs. This point was raised before the chambers judge in the Supreme Court and is referred to in his reasons. The judge ruled that this was “[a]n interesting argument but not one that deserves much consideration whatsoever at this stage”: 2301072 Nova Scotia Limited. v. Lienaux, [2006] N.S.J. No. 328 (S.C.) at para. 19. [3] As noted, the Rules permit the appellants to amend their grounds without leave within 20 days of filing their notice. Had the appellants done so, the arguments advanced in opposition to the amendment would have had to be raised by way of an application to quash this ground of appeal. Such an application would have to have been heard by panel. The fact that leave to amend is now required does not, in my view, permit me, sitting alone in Chambers, to rule on the merits of the point raised by the amendment. That is what am being asked to do by the respondent and the intervenor. [4] The respondent and the intervenor oppose the amendment on three grounds: first, that the allegations of champerty and maintenance that underlie the proposed amendment were not justiciable issues before the chambers judge, were irrelevant to the security for costs application, were not ruled on by the chambers judge and, therefore, should not be raised on appeal; second, that the torts of champerty and maintenance have been all but eliminated by the common law and, therefore, the point raised is bad in law; and third, that the issues of champerty and maintenance are not reasonably necessary to the appellants’ presentation of their appeal. [5] The position advanced by the respondent and the intervenor in opposition to the amendment misconceives, fundamentally, the role of a chambers judge of this Court who is asked to grant leave to amend a notice of appeal. These points each relate to the substantive merit of the arguments the appellants wish to make on appeal if leave to amend the notice of appeal is granted. It is not the role of chambers judge in this Court to rule on the merits of complex legal points such as these. [6] The focus of the chambers judge is generally on the procedural aspects of getting an appeal ready to be heard by panel. With certain exceptions which are not relevant here, chambers judge does not deal with matters that effectively dispose of an appeal. The exceptional cases in which chambers judge does so are generally concerned with procedural or jurisdictional matters, not the merits of the appeal: see, for example, Rules 62.11(d) and 62.17(1)). [7] The merits of an appeal and of arguments to be advanced on appeal are to be heard and determined by panel of the court, not by single judge in chambers. As Saunders, J.A. put it in Lane v. Carsen Group Inc. (2003), 214 N.S.R. 92d) 108; N.S.J. 129 (Q.L.) (C.A. Chambers) at para 7, “[w]hether there is any merit to this or any other ground of appeal is for the panel to decide.” [8] The proposed amendment relates to matter that was raised before the judge of first instance and addressed, if not determined, by him. As for prejudice, my focus must be on the question of whether there is any prejudice to the respondent or the intervenor as result of the appellants raising this issue now by way of amendment rather than in the original notice of appeal. [9] The amendment will not interfere with the date set for filing the appeal book or result in any wasted effort to address the appeal as originally framed. Any prejudice to the respondent or intervenor which may result if the amended ground is found to be without merit is not prejudice which is attributable to the fact that the ground is advanced by way of amendment as opposed to having been included in the original notice of appeal. There is no suggestion of any prejudice in that sense resulting from the amendment. [10] In my view, the amendment is reasonably necessary for the presentation of the appeal and will not occasion prejudice in the sense which is relevant to this application. [11] Leave to amend the notice of appeal is granted. The permitted amendment is to add to the notice of appeal the following ground of appeal: 1. THAT the learned Chambers Judge erred in law when he ruled contrary to the law prohibiting champerty and maintenance that 2301072 Nova Scotia Limited is lawful plaintiff in proceeding S.H. No. 102390. [12] The amended notice of appeal shall be included in the appeal book and leave to amend is granted on the condition that the appeal book be filed, as previously ordered, on or before January 15, 2007. [13] As agreed in chambers, costs of this application will be costs in the cause of the appeal. Cromwell, J.A.

The appellants applied for leave to amend their notice of appeal in regard to an order requiring them to post security for costs with respect to certain interlocutory applications. The application was opposed, inter alia, on the basis that the allegations which underlie the proposed amendment were not justiciable issues before the trial judge, were irrelevant on the application and were not ruled on by the trial judge. Application to amend the notice of appeal allowed; the amendment is reasonably necessary for the presentation of the appeal and will not occasion prejudice to the respondent. The respondent's opposition to the application fundamentally misconceived the role of a chambers judge who is asked to grant leave to amend a notice of appeal. It is not the role of a chambers judge to rule on the substantive merits of the arguments the appellants wish to make. The focus in this situation is on whether there is any prejudice to the respondent as a result of this issue being raised by amendment rather than in the original notice of appeal.

c_2007nsca4.txt

Docket: CA 161677 Date: 20000607 NOVA SCOTIA COURT OF APPEAL [Cite as: Barefoot v. Paranet Services Inc., 2000 NSCA 75] Glube, C.J.N.S.; Freeman and Bateman, JJ.A. BETWEEN: PARANET SERVICES INC., body corporate, carrying on business under the name ATLANTIC BUILDING SYSTEMS and ROBERT BRETT BAREFOOT Respondent REASONS FOR JUDGMENT Counsel: Peter C. Ghiz for the appellant M. Chantal Richard for the respondent Appeal Heard: May 29, 2000 Judgment Delivered: June 7, 2000 THE COURT: Appeal dismissed per reasons for judgment of Bateman, J.A.; Glube, C.J.N.S. and Freeman, J.A. concurring. BATEMAN, J.A.: [1] This is an appeal from the decision of Justice John M. Davison of the Supreme Court, in chambers [reported at [2000] N.S.J. No.37 (Q.L.)], dismissing the appellant’s application, inter alia, to set aside recovery order issued by the Prothonotary. BACKGROUND: [2] The appellant, Paranet Services Inc. carrying on business as Atlantic Business Systems (“ABS”) agreed to provide materials and labour to construct home for the respondent, Robert Brett Barefoot, in Sapporo, Japan. As part of that arrangement ABS contracted to ship the necessary building materials and supplies to Mr. Barefoot in Sapporo in three separate containers. Whether the shipment of fourth container was contemplated is in dispute. The first two containers were shipped in September and October, 1999. By fax dated October 22, 1999 ABS advised Mr. Barefoot that the third container was ready for shipment and that the total amount owing to ABS to that point, including the cost of shipment of the container was $41,802.14 (CDN) or $28,289 (US). This amount was wired by Mr. Barefoot to ABS on October 26, 1999. On November 5, 1999, Mr. Barefoot received further invoice from ABS advising that the balance owing was $83,896.60 (CDN) or $43,789.17 (US). This sum was in addition to the invoice of October 22 and included the cost of fourth container yet to be shipped and for labour supplied by ABS. ABS advised that if Mr. Barefoot did not pay this further amount, the third container would be re-routed back to Canada. That additional sum was not paid and by mid-November the arrangement between the parties had completely broken down. ABS tradesmen were called off the project and the third container was re-routed to Canada. [3] On January 11, 2000 Mr. Barefoot commenced an action against ABS in the Supreme Court alleging, inter alia, breach of contract and seeking possession of the third container. On January 13, 2000 he successfully applied to the Supreme Court for an interlocutory recovery order. That order was issued ex parte by the Prothonotary pursuant to Civil Procedure Rule 48.01. Mr. Barefoot posted cash security in lieu of the bond which is required by the Rule. [4] ABS applied, pursuant to Civil Procedure Rules 48.06 and 48.08, for interlocutory relief from the recovery order and for security for costs. That application was heard by Justice Davison. He granted the order for security but dismissed the Rule 48 application. It is from that dismissal that ABS appeals. [5] The Notice of Appeal lists seven grounds, which can be summarized as follows: The judge erred: (i) in striking the appellant’s affidavit from the record and in failing to consider three further affidavits filed by the appellant; (ii) in permitting reference to Mr. Barefoot’s affidavit, which had been filed in support of the original recovery order, and in not requiring Mr. Barefoot’s attendance for cross-examination on that affidavit; (iii) in failing to conclude that the respondent had not made full and fair disclosure of the facts on the original application for the recovery order; and (iv) in incorrectly applying the legal principles relevant to Rule 48.08. STANDARD OF REVIEW: [6] In Gateway Realty Ltd. v. Arton Holdings Ltd. and LaHave Developments Ltd. (1990), 1990 CanLII 2410 (NS CA), 96 N.S.R. (2d) 82, Matthews, J.A. wrote at p. 85: [10] The approach an appeal court must adopt in considering discretionary order made by chambers judge has been stated by this Court in Exco Corporation Limited v. Nova Scotia Savings and Loan et al. (1983), 59 N.S.R. (2d) 331; 125 A.P.R. 331, wherein Chief Justice MacKeigan in delivering the unanimous judgment of the Court on an appeal concerning an interlocutory injunction stated at p. 333: "This Court is an appeal court which will not interfere with discretionary order, especially an interlocutory one such as this that is now before us, unless wrong principles of law have been applied or patent injustice would result." [7] The original recovery order was obtained pursuant to Civil Procedure Rule 48.01 which provides in relevant part: 48.01 (1) Any party or intervenor in proceeding may apply for an interlocutory order to recover possession of property that was unlawfully taken or is unlawfully detained from him by any other party, or is held by an officer under any legal process issued in the proceeding. (2) When an applicant applies to recover possession of personal property and files an affidavit that complies with rule 48.02 and bond that complies with rule 48.03, the prothonotary, on an ex parte application, shall, unless the court otherwise orders, grant and issue an interlocutory recovery order in Form 48.04A. [8] Rule 48.03 requires bond with sureties in an amount equal to one and one-quarter (1¼) times the value of the property sought to be recovered. Rule 48.02 sets out the information to be contained in the affidavit filed in support of the application: 48.02. The affidavit of an applicant or his agent in support of an interlocutory recovery order shall, (a) sufficiently describe any property claimed and the value thereof, (b) set out facts showing that, (i) the applicant is the owner or lawfully entitled to the possession of the property; (ii) the property was unlawfully taken or is unlawfully detained from the applicant by the other party or is held by an officer under any legal process issued in the proceeding; (iii) the applicant or his agent has made demand for the property which has been refused; and (c) state the applicant was advised by his solicitor, naming him, and verily believes he is lawfully entitled to recover possession of the property. [9] ABS, on application before Justice Davison, sought the following relief, as is relevant to this appeal: (i) an order, pursuant to Rule 48.06(1) or 48.08(b), that ABS was entitled to retain possession of the third container; (ii) an order, pursuant to Rule 48.06(1)(b), releasing ABS from the requirement to file bond; and, (iii) pursuant to Rule 48.03(4), an order requiring the Prothonotary to assign to ABS the proceeds of the cash in lieu of bond filed by Mr. Barefoot. [10] Civil Procedure Rule 48.06 and 48.08 provide, as relevant here: (1) Any party or person, claiming to be the owner or entitled to possession of any property recoverable under an interlocutory recovery order, is entitled to retain or regain possession of the property if he files with the prothonotary, and delivers to the sheriff as his agent, not later than three (3) days after true copy of the order is served on him, (a) an affidavit stating he is entitled to possession of the property by virtue of the facts set forth therein; and (b) unless the court otherwise orders, bond in Form 48.06A, in an amount equal to one and one‑quarter (1¼) times the value of the property recovered, as determined by the sheriff, with two sufficient sureties who are approved by the sheriff and who shall justify, or other form of sufficient security, approved by the sheriff. 48.08. Any party or person, claiming an interest in any property taken under an interlocutory recovery order or claiming that the order was wrongfully granted or issued, may (b) make an application in the proceeding as party or intervenor, and the court may on the hearing thereof; (i) grant the applicant reasonable opportunity to amend any affidavit or bond used in support of the grant of the order; (ii) upon such terms as it thinks just, vary or modify or set aside the order or stay the proceeding; (iii) order any property taken under the order to be held by the sheriff pending judgment or further order of the court or to be returned or disposed of upon such terms as it thinks just, or to grant any other relief with respect to the return, safety, or sale of the property, or any part thereof; (iv) order any bond to be released or given; (v) grant such other order as it thinks just. (Emphasis added) [11] ABS took the position before Justice Davison that the original recovery order should not have been granted because Mr. Barefoot’s affidavit in support was deficient and, that, in any event, ABS was entitled to retain possession of the container. ABS filed four affidavits on the application, the deponent in each being Douglas MacArthur, an officer of the appellant company. The first, filed January 17, 2000, contained fifty-six (56) paragraphs primarily responding to the affidavit filed by Mr. Barefoot in the original application for recovery order; the second, dated January 19, attached copies of the Statement of Claim and Defence; the third, dated January 19 (“the main affidavit”), titled “Supplementary Affidavit of Douglas MacArthur” was an expanded version of the first affidavit; the final affidavit, dated January 20, simply confirmed that it was Mr. MacArthur, for ABS, who had all of the dealings with Mr. Barefoot in relation to the house construction and stated that his three earlier affidavits were prepared in his capacity as president and chief executive officer of the company. [12] Counsel for Mr. Barefoot objected to the form and content of the MacArthur affidavits. Justice Davison said of the main affidavit: [12] It contains 85 paragraphs and is replete with paragraphs which were irrelevant, scandalous, containing information not within the personal knowledge of the deponent, with no indication of information and belief and paragraphs which intend to attack the credibility of the plaintiff with respect to the affidavit he supplied to the court in the process of getting the recovery order. [13] He cited Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 1993 CanLII 3403 (NS SC), 123 N.S.R. (2d) 46 (S.C.) and Wall v. 679927 Ontario Ltd. et al. (1999), 1999 CanLII 7240 (NS CA), 176 N.S.R. (2d) 96 (C.A.), both decisions addressing the proper requirements of affidavits. He referred in particular to the comments of Cromwell, J.A. in Wall at p.110: [41] ... that the Chambers judge erred in failing to make clear ruling on the admissibility of the Carter affidavit. It was central to his conclusions and its admissibility, in its entirety, was objected to and the objection was fully argued. Moreover, significant portions of the affidavit are clearly irrelevant, scandalous or consist of innuendo and conjecture. The affidavit is so fundamentally defective that the court should not be required to take it apart in pieces to preserve some possibly admissible material. It should have been struck. (Emphasis added) [14] Justice Davison considered whether the main affidavit could be edited but concluded that it was so materially defective it ought to be struck. In so doing he cited examples of paragraphs from the affidavit, which were objectionable for variety of reasons: in one paragraph the affiant attested to question of law; in others there is no indication of the affiant’s source of knowledge; others are irrelevant and scandalous. He referred, as well, to eighteen (18) paragraphs of the affidavit which purport to contradict portions of Mr. Barefoot’s affidavit. As noted by Justice Davison, the contest between Mr. Barefoot’s interpretation of the contract and that of ABS is precisely the subject matter of the main action. These issues will only be resolved in the context of findings of credibility. Such matters do not readily lend themselves to resolution on an interlocutory application. He referred again to Cromwell, J.A. in Wall, at p.106: [26] an interlocutory application for security for costs should not be the occasion for the determination of the merits of the case where it is complex or depends on disputed facts and findings of credibility. [15] Cromwell, J.A. elaborated at p.111: [43] Our system of civil litigation is based on the principle that disputed issues of fact are to be determined at trial. There are numerous instances throughout our rules of procedure in civil matters that illustrate this principle. [47] This reluctance to assess the merits of claim or defence before trial is based both on procedural values and practical concerns. The prime procedural value is that "plenary trial on the merits" is key element of fair procedure: see Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201; 164 D.L.R. (4th) 257 (C.A.) per Borins, J.A., at para. 6. Practical concerns relate to the difficulty of making correct factual determinations on the limited material available on interlocutory applications and the important advantages of trial court in evaluating evidence in light of the factual context of the entire case rather than on selective and partial record at the interlocutory stage: see Rexcraft, supra, at para. [48] In my view, consideration of the extent to, and the manner in which, the merits of the case may be assessed on security for costs application must take place in the context of this reluctance, evidenced throughout our Rules, to assess the merits of cases turning on disputed facts other than at trial on the merits. [16] Although made in the context of an application for security for costs, Justice Cromwell’s remarks are applicable in broader context. [17] Civil Procedure Rule 38.02 provides: (1) An affidavit used on an application may contain statements as to belief of the deponent with the sources and grounds thereof. (2) Unless the court otherwise orders, an affidavit used on trial shall contain only such facts as the deponent is able of his own knowledge to prove. [18] The words of Justice Davison in Waverley, supra at p.50, bear repeating: [13] Great care should be exercised in drafting affidavits. Both pleadings and affidavits should contain facts but there are marked differences between the two types of documents. Affidavits, unlike pleadings, form the evidence which go before the court and are subject to the rules of evidence to permit the court to find facts from that evidence. They should be drafted with the same respect for accuracy and the rules of evidence as is exercised in the giving of viva voce testimony. [14] Too often affidavits are submitted before the court which consist of rambling narratives. Some are opinions and inadmissible as evidence to determine the issues before the court. [19] would agree with Justice Davison’s assessment of Mr. MacArthur’s main affidavit. It contains substantial commentary, opinion and scandalous allegations irrelevant to the matters in issue on the application. Parts of the affidavit are narrative rant, paragraphed at random and attacking Mr. Barefoot’s character. Included are comments such as: “. he appeared to be using drugs or experiencing withdrawal symptoms”; “. it became increasingly likely by his actions that he was frequent drug user .”; “. he proceeded to eat too many jelly donuts”; “Barefoot again went back to the trunk of his car and, in an extremely agitated state, again began looking for something. was afraid it might be gun.”; “[he] got back into his car and almost ran me over down (sic) before could run behind street light pole.” The offending material so pervaded this lengthy affidavit, it could not be and should not have been edited by the judge so as to conform with the requirements of Rule 38.02. While some technical deficiencies in affidavits may not preclude admission, this material was markedly below the standard. [20] The appellant, while maintaining that the affidavit was not fatally flawed, says in the alternative, that Justice Davison should have considered the remaining three affidavits in support of his application. The information from the first affidavit was incorporated into the main affidavit. The first affidavit suffers from the same deficiencies. Additionally, the appellant’s intention was clearly to replace the earlier affidavit with the subsequent one. In any event, it, like the main affidavit, was not admissible. The remaining two affidavits do not advance the application. They simply attach the pleadings and confirm Mr. MacArthur’s status in the company. [21] Counsel for ABS further submits that, independent of Mr. MacArthur’s affidavits, there was sufficient information in the respondent’s cross-examination of him to support the application. The respondent had objected to the admission of the affidavits. Justice Davison reserved his decision on that issue. Accordingly, Mr. Barefoot’s counsel, while maintaining the position that the affidavits were inadmissible, cross-examined Mr. MacArthur. In my view, upon the judge ruling subsequently that the affidavit was inadmissible, the cross-examination cannot form part of the evidence. In any event, am not satisfied that the information provided in the cross-examination, even had it been admissible, would have satisfied the requirements of Rule 48.06(1)(a). [22] In summary, having excluded the main affidavit, there was, in my opinion, no admissible evidence before the judge to found the appellant’s position. The remaining evidence neither supported Mr. MacArthur’s application for recovery order pursuant to Rule 48.06(1)(a) nor was it adequate to justify the setting aside or modification of the original recovery order pursuant to Rule 48.08(b)(ii). Justice Davison did not err in dismissing the applications. DISPOSITION: [23] I would dismiss the appeal with costs to the respondent, in any event of the cause, fixed at $1000 plus disbursements. Bateman, J.A. Concurred in: Glube, C.J.N.S. Freeman, J.A.

Respondent obtained ex parte recovery order. Appellant applied for the return of the property under Rules 48.06 and Rule 48.08. Its application was dismissed and the appellant appealed that order. Appeal dismissed. The affidavit material filed by the appellant in support of its application was so defective as to be not admissible. The affidavits contained substantial commentary, opinion and scandalous allegations irrelevant to the matters in issue. Some portions of the affidavits dealt with the subject matter of the main action which are not to be resolved on an interlocutory application. The offending material so pervaded the affidavit that it could not be edited out.

d_2000nsca75.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 309 Date: 2012 08 01 Docket: Q.B.G. No. 592 of 2012 Judicial Centre: Saskatoon BETWEEN: STUART OLSON DOMINION CONSTRUCTION LTD., and WILLIAM J. SCHMIDT, Counsel: No one appearing for the plaintiff Dale W.J. Brown for the applicant SGI Blair P. Bleakney for City of Saskatoon FIAT ACTON J. August 1, 2012 [1] This is an application by Saskatchewan Government Insurance on behalf of the defendant for an order pursuant to Rule 107A(c) of The Queen’s Bench Rules and s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31, granting leave to the defendant, William J. Schmidt, to add the City of Saskatoon as a third party to this action. [2] The defendant is being sued by the plaintiff for damage to construction site under the Senator Sid Buckwold Bridge in Saskatoon, caused as result of his truck leaving the surface of the road at the head of the bridge going over the guardrail and falling into the excavation pit. [3] The defendant alleges that the road condition was icy on the exit ramp leading up to the Buckwold Bridge and the City of Saskatoon had not taken steps to address the icy road surfaces. The ice and snow had built up along the edge of the road such that it acted as ramp that lifted the truck up and over the guardrail to land in the excavation site. [4] The defendant wishes to add the City of Saskatoon as third party to this action. [5] The law respecting an application to add third parties in Saskatchewan is set out in the recent case of Koskie v. Canadian Pacific Railway Co., 2011 SKQB 458 (CanLII), [2011] S.J. No. 821 (QL), wherein Currie J. states at para. [8] In Saskatoon Roman Catholic Separate School Division No. 20 v. Dunmac General Contractors Ltd., 2002 SKQB 404 (CanLII), [2002] S.J. No. 601 (Sask. Q.B.) at para. 9, Justice McIntyre summarized the process of determining whether to grant leave to add third party under that Act: (a) determination should be made as to whether the third party notice establishes prima facie claim against the proposed third party; (b) If it does, then determination of whether causal connection exists between the cause of action pled in the statement of claim and the cause of action pled in the third party notice is necessary; (c) If there is causal connection the application may be dismissed where extreme hardship or prejudice would result and directions cannot materially relieve against it. [6] This issue was also considered by the Saskatchewan Court of Appeal in MacPherson Engineering Inc. v. Regina (City), 2008 SKCA 144 (CanLII), 314 Sask. R. 182, wherein the court stated in paras. [6] In B. (D.) v. C. (M.), 2011 SKCA (CanLII), [2001] W.W.R. 617, this Court affirmed that Chambers judge will consider the same principles whether the application is pursuant to s. of the Act or Part Seven IV of The Queen’s Bench Rules in determining whether to grant leave to issue third party claim. These principles were summarized in MacDonald v. Hauer (1965), 1965 CanLII 438 (SK CA), 49 D.L.R. (2d) 365, at p. 372, as follows: ... the defendant serving the third-party notice need only raise claim, which, if established, would entitle him as against the third party, to one of the forms of relief referred to ... The application is purely one of procedure and no substantive rights between the parties can be determined on it. It is not proper to assess evidence or to go into possible defences. For this reason the material filed in denial of the claim raised in the third-party notice or that designed to oppose it on its merits should not be considered. Any important questions of law raised are better left for the trial. There must, however, be some material by which the prima facie claim of the respondent is shown. [7] On leave applications pursuant to s. of the Act, Jackson J.A. in B. (D.) v. C. (M.) stated at para. 9: While leave is required under s. of The Contributory Negligence Act, it does not elevate the standard beyond that established for third party notices under Rules 107 to 107(I). The Court balances the same factors of prejudice to the plaintiff and the expediency of one, rather than multiple, proceedings. The Court considers such applications from perspective of being disposed to grant them subject to certain well-defined criteria and the need to protect the plaintiff in certain circumstances. [8] Hence, the issue before the Chambers judge was to determine whether MacPherson had filed material which established prima facie claim against the City and whether there was any prejudice to the plaintiff if the Third Party Claim was grafted onto the plaintiff’s action. [7] The issue was also addressed by Allbright J. in Bucsis v. Rocy Housing Ltd., 2009 SKQB 271 (CanLII), 336 Sask. R. 1, where he stated at para. [17] As these passages demonstrate, it is incumbent upon me, as the Chambers judge, to ascertain or determine whether the defendant, Rocy (applicant), has filed material which establishes prima facie claim against the proposed third party, Future Exteriors Ltd., and whether there was any prejudice to the plaintiffs if the third party claim was to go forward as proposed. This latter aspect involves assessing what actual or potential prejudice may be experienced by the plaintiffs. He went on further in para. 19 to state: ... am satisfied from review of all of the pleadings, and particularly the proposed third party claim, that this pleading does establish prima facie claim against the proposed third party Future Exteriors Ltd. From the pleadings, it would appear that the third party was major player in undertaking the work which is the subject of the plaintiffs’ loss and claim. To refuse the application under s. of The Contributory Negligence Act, would likely result in the requirement for second litigation process to be commenced, that being by the defendants against the proposed third party claiming contributory negligence. This would to large extent create legal process almost wholly duplicating that which is embodied in the litigation to this stage. Courts have been vigilant to attempt to prevent such duplicate processes where the issue of prejudice could be addressed through direction and order from the Court on the combined process as an alternative. [8] In the current situation the defendant has already commenced separate action Q.B.G. No. 533 of 2012, against the City of Saskatoon for damages resulting from the truck leaving the road. The statement of claim has been served and the defendant has prepared and served statement of defence. No further action has been taken in these proceedings. [9] The additional action was commenced due to limitation periods and the applicant argues that adding the City to this action will allow all damages to be considered and where responsibility should lie for damages arising from the truck leaving the road in one proceeding. [10] The City of Saskatoon opposes the application and argues that s. 308 of The Cities Act, S.S. 2002, c. C-11.1, which reads: 308 city is not liable for damage caused: (a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device or barrier; or (b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing adjacent to or in, along or on street that is not on the travelled portion of the street. [11] The City also referred this court to the case of Truong v. Saskatoon (City), 2001 SKQB 419 (CanLII), 211 Sask. R. 115, wherein Wilkinson J. stated at para. [77] There is yet another ground on which the City is absolved from liability. The Supreme Court of Canada in Lewis [1997 CanLII 304 (SCC), 220 N.R. 81, 153 D.L.R. (4th) 594], recognized that it was entirely permissible for local authority to limit its liability. Section 154(1.1) of The Urban Municipality Act, 1984 states: 154(1.1) No action may be brought pursuant to subsection (1) for the recovery of damages: (a) caused by the presence or absence or insufficiency of wall, fence, guardrail, railing or barrier; or (b) caused by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree or other material or thing, adjacent to or in, along or on the road right of way but not within the roadway. [12] Having reviewed all of the pleadings and particularly the third party claim I accept that the applicant has made out a prima facie claim against the proposed third party. There is no prejudice to the plaintiff, for whom no one appeared on this application, as the court has been advised that the plaintiff has settled with its insurer who is requesting settlement from the defendant’s insured. I am satisfied there is a causal connection which exists between the cause of action pleaded in the statement of claim and the cause of action plead in the third party notice. am also aware that s. 308 of The Cities Act may be an absolute defence to the City. However as stated by the Saskatchewan Court of Appeal in MacPherson Engineering Inc., supra, the application is purely one of procedure and no substantive rights between the parties can be determined on it. It is not proper to assess evidence or go into possible defences. [13] Therefore the application to add the City of Saskatoon as a third party is granted as requested.

SGI applied on behalf of the defendant for an order under Queen's Bench Rule 107A(c) and s. 7 of The Contributory Negligence Act for leave to add the City of Saskatoon as a third party to the action. The defendant is being sued by the plaintiff for damage caused to a construction site under a bridge in Saskatoon. The damage is alleged to have been caused when the defendant's truck left the ramp leading onto the bridge and fell into an excavation pit. The defendant argues that the City should be added as a third party because the City did not take proper steps to clear snow from the ramp, which provided a surface for his vehicle to launch off of. HELD: The application to add the City of Saskatoon as a third party was granted. The applicant has made out a prima facie case against the proposed third party. There is no prejudice to the plaintiff because he has settled with his insurer and is requesting settlement with the defendant's insurer. There is a causal connection between the cause of action plead in the statement of claim and the third party notice. It is immaterial at this stage that the City may have an absolute defence.

b_2012skqb309.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Colley, 2007 NSPC 30 Date: June 12, 2007 Docket: 1706704-06 Registry: Halifax Between: Her Majesty the Queen v. Carlo Lenn Colley Judge: The Honourable Associate Chief Judge R. Brian Gibson, J.P.C. Heard: May 14, 2007 Date of Decision: June 12, 2007 Charges: On or about the 8th day of October, 2006 at or near East Preston, Nova Scotia, did unlawfully wound Roger Simmons thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code. AND FURTHER that he at the same time and place aforesaid, in committing an assault on Roger Simmons, use or threaten to use weapon, or imitation thereof, contrary to Section 267(a) of the Criminal Code. AND FURTHER that he at the same time and place aforesaid, unlawfully have in his possession weapon, for purpose dangerous to the public peace, contrary to Section 88 of the Criminal Code. Counsel: G. Arthur Theuerkauf, Senior Crown Attorney David Green, Defence Attorney By the Court: [1] On Sunday, October 8, 2006 between the approximate time of 11 a.m. and 12 noon, at or near East Preston, Nova Scotia, the Accused, Carlo Lenn Colley, struck the right arm of Roger Simmons with shovel causing fracture of his ulna bone. Mr. Colley also struck Mr. Simmons in the rib cage area with his fist, causing fracture of one of his ribs. At the time that Mr. Simmons was struck and injured by Mr. Colley, both individuals were on the residential property occupied by Mr. Simmons. [2] Mr. Colley claims that he struck Mr. Simmons in self-defence. Absent consideration of defence evidence, the Crown evidence clearly establishes prima facie case inasmuch as that evidence establishes that Mr. Colley intentionally struck and thereby intentionally applied force to Mr. Simmons causing him to suffer wounds. The issue to be determined is whether, despite the claim of self-defence and evidence adduced in support thereof, the Crown has proven beyond a reasonable doubt any or all of the Criminal Code charges against him, being that of aggravated assault, by wounding Roger Simmons, contrary to S.268; that of assault of Roger Simmons by using or threatening to use a weapon, contrary to S.267(a); and that of possessing a weapon for a purpose dangerous to the public peace, contrary to S.88. [3] The defence evidence includes testimony given by the Accused. Therefore, have instructed myself regarding the issue of credibility relative to proof beyond reasonable doubt in accordance with the direction found in the case of R. v. W.(D). (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), where at page 409, the following was stated on behalf of the Court by Cory, J.: “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.207. 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.” [4] According to Mr. Colley, Roger Simmons got out of his truck and walked toward him with the knife in his hand. In response, Mr. Colley testified that he retreated, picked up shovel, and swung it with both hands thereby striking the right arm of Roger Simmons. This, according to Mr. Colley’s testimony, caused the knife to fly from Mr. Simmons’ hand to an undetermined location. Apparently no one saw where the knife landed. [5] physical struggle between Mr. Colley and Mr. Simmons then ensued. Mr. Colley, aged 36 years, man significantly larger, heavier and younger than Roger Simmons, who is approximately 30 years older than Mr. Colley, quickly gained the upper hand in that struggle. Roger Simmons went down on the ground and as he did, he grabbed the bottom of the pants worn by Mr. Colley. While he laid on the ground, holding onto Mr. Colley’s pants, Mr. Colley struck Mr. Simmons in the area of his ribs with his fist with at least two and likely more blows. Mr. Colley justified those blows as measures to keep Mr. Simmons from causing him to fall. According to Mr. Colley, Mr. Simmons was pulling on the bottom of the pant legs in what he believed was an attempt to cause him to fall. [6] The struggle ended when one of the individuals who had gone to Mr. Simmons’ property with Mr. Colley in his truck, intervened. About the same time, Vonita Simmons, wife of Roger Simmons, heard the commotion and came outside. [7] Whether or not the evidence establishes that Mr. Colley acted in self-defence or is sufficient to raise reasonable doubt relative to proof of the charges can only be determined by considering all the relevant evidence, including the circumstances that led to the altercation. [8] Mr. Colley stated to Vonita Simmons that Roger Simmons had had knife. conclude that these words were uttered to justify his actions but nevertheless is evidence consistent with his evidence that Mr. Simmons had knife. Mr. Colley would have had reason to make some attempt to justify his actions by virtue of the fact that Vonita Simmons is his aunt, being his mother’s sister. She has son who is Mr. Colley’s cousin. Mr. Colley enjoys positive relationship with both Vonita Simmons and her son and was, prior to this event, frequent visitor at the Simmons’ property. Roger Simmons, who has been married to Vonita Simmons for 20 years, is Mr. Colley’s uncle by marriage. [9] Whatever the quality of the relationship that may have existed between Mr. Colley and Mr. Simmons prior to October 8, 2006, it was clearly soured by the accusations of theft made by Mr. Simmons to Mr. Colley on the morning of October 8, 2006. Mr. Simmons suspected that Mr. Colley had, without authorization or permission, taken some two by four pieces of lumber from Mr. Simmons’ property. Mr. Simmons, upset by his suspicions, had sought out and found Mr. Colley at Mr. Colley’s residence that morning. He stated his accusations to Mr. Colley. Later the same morning, Mr. Simmons again encountered Mr. Colley at the residence of Mr. Slawter and repeated his accusation. In addition to his accusations, Mr. Simmons told Mr. Colley to stay off his property. conclude from the evidence that both individuals were angry at one another, however during these two occasions, no physical altercation occurred. [10] In response to the direction by Mr. Simmons to stay off his property, Mr. Colley stated that he would go to the property if he wanted to because it was his aunt’s property. After the repeated accusation of theft and direction to stay off the Simmons’ property, Mr. Colley proceeded to drive his truck directly to the Simmons property, accompanied by two individuals, Jamal Williams and Cisco Williams. Mr. Colley parked his truck on the right-hand side of the road, across the road from the entrance to the driveway on the Simmons property. Shortly after parking his vehicle in that location, Mr. Simmons arrived in his truck and drove into his driveway distance of approximately three vehicle lengths from the road and parked near his house. Mr. Colley then got out of his vehicle, walked across the road and down the driveway towards the Simmons vehicle. In so doing, Mr. Colley walked past shovel which was lying on the ground close to some garbage cans near the edge of the paved portion of the road adjacent to the Simmons driveway. It was apparent from his evidence that he had seen the shovel as he walked down the driveway. This was the shovel that he subsequently picked up and used after retreating in response to seeing what he described as rusty knife in Mr. Simmons’ hand. [11] Mr. Colley testified that the reason he went to the Simmons property was to talk to his aunt and explain to her that he did not take the missing lumber. While Mr. Colley may have ultimately achieved that outcome if there had not been physical altercation, do not believe that this was his primary motivation for going to the Simmons property, if his motivation at all. accept the evidence of Jamal Williams who testified that the purpose, stated by Mr. Colley, for going to the Simmons property was to show Mr. Simmons that he could go upon the Simmons property despite being directed by Mr. Simmons to stay off that property. Mr. Colley testified that he believed he had right to go on the Simmons property despite being told by Mr. Simmons to stay off that property. Mr. Colley stated to Mr. Simmons that he would go onto Mr. Simmons yard any time he wanted to in response to Mr. Simmons’ direction not to go onto his property. Mr. Colley also testified that he was angered by the allegations of theft and the direction to stay away from the Simmons property. After Mr. Simmons repeated the theft allegations the second time at the Slawter property, Mr. Colley testified that both he and Mr. Simmons went “barrelling out” to Mr. Simmons property. [12] find that Mr. Colley drove to location near the Simmons property and proceeded to enter thereon for the primary purpose, if not the sole purpose, of challenging Mr. Simmons’ authority to direct him not to come upon that property. Although Mr. Simmons denied having either stick or knife in his hand when he got out of his truck, do not find that denial to be credible. Mr. Simmons, in giving statement to the police, stated that he had stick in his hand. Cisco Williams, during his direct testimony, stated that he saw either stick or butcher knife in Mr. Simmons’ hands. Cisco Williams and Jamal Williams, who were both in Mr. Colley’s truck, were not in particularly good position to observe exactly what was in Mr. Simmons’ hands. Whether or not the device in Mr. Simmons’ hand was knife or stick, conclude that it could have been knife. Thus, have assessed Mr. Colley’s evidence and his claim of self-defence on the basis that Mr. Simmons could have had knife in his hand. [13] find that Mr. Colley, by driving in anger to Mr. Simmons’ residential property and entering thereon, despite being told not to enter upon the property, placed himself in the role of an aggressor. It would have been reasonable for Mr. Simmons to have believed Mr. Colley to be a trespasser and thereby, in accordance with S.41(1) of the Criminal Code, justified in using no more force than was necessary to prevent the perceived trespass. In light of the differences in age and size, the preceding verbal exchanges and the clear challenge that Mr. Colley presented to Mr. Simmons’ authority to direct Mr. Colley to stay off his property, it would have been reasonable for Mr. Simmons to arm himself with knife. Beyond stepping toward the advancing Mr. Colley, with the knife in his hand, Mr. Simmons made no motion to use the knife. [14] The evidence establishes that Mr. Colley retreated to the area near where the shovel was located, which was near the edge of the pavement. Cisco Williams and Jamal Williams testified that Mr. Colley ran back to the area where the shovel was located. Mr. Simmons did not chase Mr. Colley. There was no reason why Mr. Colley could not have retreated altogether from the Simmons property, with or without the shovel in hand, to the safety of his truck where two of his friends were sitting. Cisco Williams testified that Mr. Colley would have had no problem outrunning Mr. Simmons if he had been chased. [15] Rather than continue to retreat, find from the evidence that Mr. Colley picked up the shovel and moved toward Mr. Simmons, swinging the shovel, striking Mr. Simmons on the arm and thereafter continuing as the aggressor in the ensuing struggle. Exactly how far back down the driveway Mr. Colley moved toward Mr. Simmons before striking him with the shovel isn’t exactly clear. However, Cisco Williams testified that the “fist fight”, which occurred after Mr. Simmons was struck with the shovel, started beside Mr. Simmons’ truck which was parked about three truck lengths down the driveway. There is no evidence that Mr. Simmons retreated after being struck by the shovel. Thus, conclude that Mr. Simmons had not walked more than few steps past the back of his truck before being struck with the shovel. [16] Consistent with his role as the aggressor in this altercation, Mr. Colley stated, when he saw the knife held by Mr. Simmons, “so it’s going to be like that”. In essence, Mr. Colley retreated, armed himself with shovel in the face of seeing Mr. Simmons armed with the knife, then proceeded toward Mr. Simmons and engaged himself with Mr. Simmons by swinging the shovel. By grabbing the shovel and then proceeding towards Mr. Simmons, rather than retreating, Mr. Colley placed himself in the role of what can only reasonably be seen as resisting trespasser. By virtue of S.41(2) of the Criminal Code, conclude that Mr. Colley committed an assault without justification or provocation. Even if S.41(2) is not applicable, Mr. Colley was under no imminent danger and there was no need to move toward Mr. Simmons and strike him to defend himself. [17] Mr. Colley, until the direction given to him by Mr. Simmons to stay off his property, would have been justified in holding the opinion that he had an implicit invitation to enter upon the Simmons property. That implicit invitation, having been expressively revoked with the direction from Mr. Simmons to stay off the property, ought to have been seen by Mr. Colley as termination of any legal justification to enter upon the Simmons property, absent subsequently expressed invitation from some other individual authorized to extend that invitation, such as his aunt Vonita Simmons. There is no evidence of such an expressed invitation given subsequent to Mr. Simmons’ direction to stay off his property. [18] Mr. Simmons, on the other hand, as a person in possession of real property, was justified in using force to prevent what he perceived as a trespass upon his property provided he used no more force than was necessary. Exhibiting knife and stepping toward Mr. Colley, in my opinion was within the scope of reasonable force. [19] The evidence, given by Defence witnesses, about Mr. Simmons subsequently retrieving what was described as rifle or shotgun after the altercation and pointing it in the direction of Mr. Colley’s truck as he drove away is mostly irrelevant to determination of these charges. Whether or not Mr. Simmons actually carried out that act am not certain. He denied doing so and his wife, Vonita Simmons, stated that Mr. Simmons did not possess or own firearm. However, Mr. Colley’s evidence about how he saw Mr. Simmons’ intention to use what he described as rifle or shotgun is relevant to the assessment of how he saw Mr. Simmons’ intention relative to the knife that he possessed. Relative to the alleged pointing of the rifle or shotgun, Mr. Colley testified that he was not afraid because he “knew” Mr. Simmons “wouldn’t use it”. Regarding the knife, Mr. Colley rather weakly stated that he had concern that Mr. Simmons might throw the knife at him if he ran, thereby offering that as the reason why he chose instead to disarm Mr. Simmons. In light of how Mr. Colley saw Mr. Simmons’ intention to use the rifle or shotgun, I am unable to believe that Mr. Colley could ever have thought that he was facing an imminent attack when Mr. Simmons stepped toward him holding the knife or that Mr. Simmons would throw the knife at him if he retreated fully from Mr. Simmons’ property. Rather, the gesture of holding knife and stepping forward could only reasonably have been seen as warning to come no further and to leave. Mr. Colley was not prepared to heed the obvious meaning of that gesture. Rather, he was intent in prevailing over Mr. Simmons’ direction to stay off his property and assert what he unreasonably believed to be his right to enter thereon. [20] do not believe Mr. Colley’s evidence that he acted in self-defence. The evidence does not support that claim. Furthermore, his evidence, when considered in the context of all the evidence, does not raise reasonable doubt. Nevertheless, do not believe that Mr. Colley intended for Mr. Simmons to suffer such serious injuries. The blow to the arm, although not carefully measured, was intended to disarm Mr. Simmons, not to cause the fracture. Similarly, do not believe Mr. Colley intended Mr. Simmons to suffer cracked ribs. Mr. Colley acted from anger and acted in manner to have his will prevail over that of Mr. Simmons relative to access to the Simmons property. He appears to regret that Mr. Simmons suffered such injuries and is sorry that that was the outcome. [21] In conclusion, I find Mr. Colley guilty of all three charges. However, based upon the principles expressed in the R. v. Kienapple (1974) 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 decision, a conviction should enter upon only the S.268 aggravated assault. R. Brian Gibson, J.P.C. Associate Chief Judge

Immediately after the complainant accused the defendant of stealing lumber from his property and directed him to remain off the property, the defendant entered upon the complainant's property in a state of anger to challenge the complainant's authority to issue such a direction. The complainant armed himself with a knife when the defendant entered the property, at which point the defendant grabbed a shovel, moved towards the complainant, struck him on the arm with the shovel and punched him in the ribs while he was on the ground. The complainant suffered a fractured ulna bone and a fractured rib. The defendant, who was charged with aggravated assault, assault by using or threatening to use a weapon and possession of a weapon, claimed to have acted in self-defence. Defendant found guilty of all three charges; conviction entered only on the aggravated assault charge. The actions of the complainant were justifiable as using no more force than was necessary to prevent a perceived trespass; the defendant, who was under no imminent danger, and could reasonably have retreated upon seeing the knife, instead chose to arm himself with a shovel and strike the complainant.

2007nspc30.txt

2001 SKQB 124 Q.B.G. A.D. 1998 No. 1698 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DR. MAHER HANNA and DR. ETTIENNE CROUSE and DR. DAVID KIRSCH, and the PIPESTONE DISTRICT HEALTH BOARD DEFENDANTS Dr. Maher Hanna appearing for himself Richard B. Morris for the defendants Dr. Ettienne Crouse and Dr. David Kirsch Brian J. Kenny for the defendant Pipestone District Health Board JUDGMENT DIELSCHNEIDER J. March 9, 2001 [1] The plaintiff, Maher Hanna, a medical doctor, brings this action against the defendants, Ettienne Crouse and David Kirsch, also medical doctors, alleging that each of them owed a duty of trust and a fiduciary duty to act towards him in good faith in connection with an arrangement entered into by all of them to perform the on-call services required of each of them by the defendant, Pipestone District Health Board. [2] Hanna practises family medicine in Moosomin, Saskatchewan in clinic independent from the clinic in which Crouse and Kirsch practise. Hanna is member of the Moosomin Family Clinic which he owns, and Crouse and Kirsch practise family medicine in the Moosomin Family Practice Centre which they established in 1994. [3] All three medical practitioners were, during the period under discussion, members of the medical staff of the Moosomin Union Hospital where all retained privileges. The Moosomin Union Hospital is general health care facility under the control of the Pipestone District Health Board. [4] Soon after they formed their clinic, Crouse and Kirsch initiated an on-call system whereby all the medical practitioners having privileges at the hospital would perform on a rotation basis the on-call duties required of them by the hospital. The proposed system was completely voluntary. doctor could join or not join. [5] Pipestone District Health Board and Moosomin Union Hospital required of each physician having privileges to practise in the hospital to be on-call to answer the needs of patients admitted by him or her on continuous basis, 24 hours day and seven days week. In addition, each doctor was required to respond to the hospital's calls relating to its emergency cases, as for example, persons injured in highway accident. [6] The arrangement proposed by Crouse and Kirsch had one doctor respond on rotation basis to the hospital's call for treatment of all patients, regardless of which doctor had admitted them, and to all emergencies. [7] Because the arrangement was voluntary doctor choosing not to enter into the arrangement would remain on call to look after his own patients at all times, and to respond to emergencies. [8] The arrangement worked well. [9] That is to say, the arrangement worked well until it was frustrated by the conduct of Hanna. [10] In 1995 Hanna established clinic in Regina, Saskatchewan and began dividing his time between the clinic there and the one in Moosomin. Hanna was habitually late in arriving in Moosomin to respond to his weekend on-call duties when it was his turn. Sometimes he did not show at all. [11] Given these circumstances the remaining doctors set up new on-call roster which did not include Hanna. [12] There can be no question but that this action by the doctors was completely necessary in the interest of providing good patient care to the hospital. Indeed such was necessary under the bylaws governing the hospital. [13] Hanna's exclusion from the on-call roster was of course authored by his own conduct. Not only was he remiss in performing his on-call duties but there were serious questions about his professional competence. He would admit patient and fail to attend upon him or her for several days. Or he would fail to diagnose an obvious condition. [14] The situation had serious consequences for the hospital. The administrator for the hospital intervened without success as did the chief executive officer of the Pipestone District. When meeting was convened to attempt to develop resolution to the problems in the hospital caused by Hanna, he failed to attend. find totally unacceptable the reasons he gave for his absence from that meeting. [15] It is difficult to read into these circumstances those considerations which in law give rise to duties of trust or breach of fiduciary duty raised by Hanna in his pleading. [16] Hanna was unrepresented by legal counsel at this trial. Nevertheless, have studied the legal brief filed by his counsel at the pre-trial hearing. [17] And have read the briefs of counsel at trial. [18] On my review I find, first of all, no evidence of a legally binding contract between the doctors pursuant to which they would carry out their on-call obligations to the hospital. The arrangement here was entirely voluntary. There is no evidence of an expressed intention that the arrangement entered into by the doctors in 1994 was contemplated as legally enforceable one. [19] It was, in short, gentlemen's agreement. The arrangement has none of the characteristics normally attending duty of trust or fiduciary duty. The dominant and overriding obligation of each doctor was to provide continuous care to his patients, as said, 24 hours day, seven days week. It was permitted by the hospital that this obligation could be performed by fellow doctor having privileges in the hospital but the obligation itself always remained with each individual doctor. have no doubt that reliance by any doctor upon Hanna to perform his or her on-call duties risked jeopardizing his or her relationship to the hospital and had the potential of placing in jeopardy his or her privileges with the hospital. [20] Even though it is alleged in Hanna's claim that there was both duty of trust and fiduciary duty owed by the defendants, find it difficult on the facts here to distinguish between the two allegations and therefore treat them as synonymous. [21] The common characteristics defining fiduciary relationship were discussed by Cameron J.A. in Baskerville v. Thurgood, 1992 CanLII 8313 (SK CA), [1992] W.W.R. 193 (Sask. C.A.) at 203: As the judgments in LAC Minerals, supra, suggest, actions founded in breach of fiduciary duty fall to be determined along these lines: (1) Was the relationship between the parties of such class or category, or of such nature in fact, as to have given rise to fiduciary duty in one of them? If so, (i) what was the nature of the fiduciary duty and its obligations, (ii) did the conduct complained of fall within the scope thereof, and (iii) did it constitute breach? (3) If so, what remedies are available and which is appropriate? And at 210: As the cases demonstrate, those calling for fact-based approach to deciding whether relationship gave rise to fiduciary duty are often difficult to determine. There is no "formula" for their determination, as Justice Sopinka observed in LAC Minerals, though "certain common characteristics are so frequently present in relationships that have been held to be fiduciary that they serve as rough and ready guide": (1) The fiduciary has scope for the exercise of some discretion or power. (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests. (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [22] This case must, in my view, be resolved on consideration of the implications raised by Cameron J.A.'s first question, namely, was the relationship between all the doctors, or even those of one clinic set up against those of the other clinic, such that it gave rise to fiduciary relationship. The first question coming to my mind is, was there fiduciary, person, that is to say, one of the doctors, in position of dominancy? Did that person have power over the other members of the on-call arrangement? Was there any member of that arrangement who had power over Hanna? The answer, on the facts here, is resounding no. There being no fiduciary with power over anyone there is no fiduciary relationship, and of course no breach giving rise to an action for damages. [23] turn then to consider whether there existed fiduciary relationship between the hospital and Hanna. [24] The first point make is that the hospital was neither the originator of the on-call arrangement introduced by the doctors nor party to it. On my review believe it is fair to say that the administrator of the hospital and the chief executive officer for Pipestone District tolerated the plan and, to that extent only co-operated with the doctors in its implementation because when it operated well it delivered to the hospital the services it required. But there is no evidence that Pipestone District formally approved the system or was party to it. [25] The relationship between hospital and its doctors, here between Pipestone District Health and Crouse, Kirsch, Hanna and such other doctors having privileges in the Moosomin Union Hospital is one that is defined by The Hospital Standards Act, R.S.S. 1978, c. H-10, The Hospital Standards Regulations, 1980, Sask. Reg. 331/79, and the bylaws of Pipestone District Health. Not to be omitted from the consideration is the impact brought to bear upon that relationship by the College of Physicians and Surgeons for Saskatchewan. hospital is never, at least on the facts here, in the position of fiduciary towards its doctors. [26] The relationship between the Moosomin Union Hospital or Pipestone District Health was not compromised by the arrangement entered into by the doctors to deliver on-call services. Nor was that relationship one governed by the rules governing trustees or fiduciaries. [27] There is no basis either in fact or in law supporting the existence of a trust or a fiduciary relationship between Hanna and the defendant Pipestone District Health. [28] For the foregoing reasons I dismiss Hanna's action against Crouse and Kirsch with costs to be taxed. And I also dismiss Hanna's action against Pipestone District with costs to be taxed.

The medical doctor alleged the other medical doctors owed a fiduciary duty to act in good faith with respect to their agreement to perform on-call services for the District Health Board. Under the voluntary arrangement doctors who chose not to enter the arrangement remained on-call to look after their own patients and to respond to emergencies. It worked well until Hanna established another clinic and began dividing his time between Regina and the Moosomin clinic. HELD: The actions against the doctors and health district were dismissed with taxed costs. 1)Hanna's exclusion from the roster was authored by his own conduct. When he was habitually late on his weekend on-call duties and sometimes failed to show at all, the remaining doctors set up a new on-call roster which did not include him. Such action was necessary under the bylaws governing the hospital and to provide good patient care to the hospital. He was not only remiss in performing his on-call duties but there were serious questions about his professional competence. He would admit a patient and fail to attend upon him or her for several days. Or he would fail to diagnose an obvious condition. His reasons for his failure to attend a meeting convened by the hospital administrator to resolve the problems was unacceptable. 2)There was no evidence of a legally binding contract between the doctors. The on-call arrangement was voluntary. There was no expressed intention that it be legally enforceable. 3)The common characteristics defining a fiduciary relationship were discussed in Baskerville v. Thurgood. There was no fiduciary with power over anyone and therefore no fiduciary relationship with respect to the doctors. 4)The relationship between the hospital and its doctors having privileges in the hospital is one that is defined by the Hospital Standards Act and Regulations and bylaws of the Health District. Consideration was also given to the relationship with the College of Physicians and Surgeons. A hospital is never, on the facts, in the position of a fiduciary towards its doctors. There was no basis in law or fact supporting the existence of a fiduciary relationship between Hanna and the Health District.

b_2001skqb124.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 544 Date: 20121116 Docket: QBC 25 of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and ASHTON JOSEPH JAMES LAVALLEE AND RONALD DEVIN ZERR Counsel: Christopher D. White for the Crown Bobby P. Hrycan for the applicant, Ronald Devin Zerr Jeffrey W. Deagle for the accused, Ashton Joseph James Lavallee (appearing but not participating) DECISION ON SECOND STAGE O’CONNOR APPLICATION MADE BY RONALD DEVIN ZERR CHICOINE, J. November 16, 2012 BACKGROUND [1] On November 9, 2012, this Court directed the Crown to seek from the relevant police agencies or prosecution service the police reports and witness statements, including statements of the accused, in respect of two Crown witnesses, namely, the alleged victims of the aggravated assaults, Robert Lowenberger and Kelly Charbonneau, and in respect of particular offences for which these two individuals have previously been convicted (2012 SKQB 543 (CanLII)). I also directed the Crown to provide updated criminal records for each of Robert Lowenberger and Kelly Charbonneau. This information was to be delivered to the office of the local registrar at the Judicial Centre of Regina by 3:00 p.m. on Thursday, November 15, 2012, in sealed envelope so that it could be reviewed by myself as the trial judge to make all necessary determinations as to propriety of disclosure pursuant to the directives set forth in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411, [1995] S.C.J. No. 98 (QL), and as clarified in R. v. McNeil, 2009 SCC (CanLII), [2009] S.C.R. 66, including any conditions for their release to counsel for Mr. Zerr. [2] had also directed the Crown to inform Robert Lowenberger and Kelly Charbonneau that an order for disclosure had been made and invited all of the parties to make further submissions in writing with regard to the second stage of the O’Connor disclosure process, especially with regard to any conditions for release of any documents or the information they contain. [3] The Crown did file packet of documents with the court before the appointed time which it described in cover letter as follows: Information relating to the following charges for Robert Lowenberger: 1. RM 01038940 Documents relating to s. 266 charge, concluded April 29, 2003 (13 pages); 2. RA07018174 Documents relating to s. 254(5) charge, concluded July 10, 2007 (3 pages). Information relating to the following charges for Kelly Charbonneau: 3. RM99050865 Documents relating to two s. 267(b) charges, concluded February 7, 201 (10 pages); 4. RM02020716 Documents relating to s. 253(a) charge, concluded December 27, 2002 (6 pages); 5. RM01007839 Documents relating to s. 252(1) charge, concluded January 14, 2003 (11 pages); 6. RM02005189 Documents relating to s. 266 charge, concluded January 17, 2003 (7 pages); 7. RM03044518 Documents relating to s. 267(b) charge, concluded March 16, 2004 (16 pages); 8. RM04053781 Documents relating to s. 253(b) charge, concluded September 15, 2005; 9. RA06031410 Documents relating to s. 253(b) and s. 129(a) charges, concluded January 4, 2007 (18 pages); 10. RM07004188 Documents relating to s. 264.1(1)(a) charge, concluded February 9, 2007 (6 pages); 11. 2007-621834 Documents relating to s. 253(b) charge, concluded June 11, 2007 in Brandon, MB (3 pages). [4] note, and the Crown has now confirmed, that there were only 12 pages at tab of the packet, and not 18. This was typographical error. [5] The Crown has advised that Robert Lowenberger and Kelly Charbonneau have been informed that disclosure order was made concerning their criminal histories. The court has not received any submissions from these two individuals or any other parties in respect of the second stage of the O’Connor disclosure process or with regard to any conditions for release of any documents or the information they contain. PROCESS AT THE SECOND STAGE [6] In O’Connor, the Supreme Court provided the following list of factors for consideration in determining whether or not to order production to the accused (at para. 156): (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; [and] (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. [7] In McNeil, the Supreme Court stated that in most cases, useful starting point for courts in balancing the competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against the accused. Once court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. The accused’s interest in obtaining disclosure for the purpose of making full answer and defence will, as general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. [para. 20] [para. 39] [para. 42] DECISION [8] Having reviewed the records, and upon considering all of the factors referred to in the above-noted jurisprudence, I have decided to produce all 95 pages of documents to counsel for both of the accused, Ronald Devin Zerr and Ashton Joseph James Lavallee. Some of the documents have words, phrases or numbers that I have blacked out where the information had no probative value or where the privacy interest of the witness would have been unjustifiably affected. These include, for example, residence addresses and telephone numbers. have numbered all pages to correspond with the list provided by the Crown as described above such that the number starts with the tab under which the document was found and then the chronological number of the page. (For example, 5-2 is the second page under tab 5.) [9] Copies of these pages will be made available to counsel for the accused and to Crown counsel in sealed envelopes. The original packet of documents filed by the Crown will be retained by me until the trial is completed, including any possible appeals. [10] It is hereby ordered that the 95 pages of documents are being released under the following conditions: (a) Only counsel for the accused will have possession of these documents. He may review them with the accused and with any expert that he may consider calling as witness at the trial. (b) Crown counsel will receive copies of the same documents as are being released to counsel for the accused. Crown counsel may review the documents with the corresponding witness and with any expert that he may consider calling as witness at the trial. (c) Except for the purpose of providing copy to an expert witness, none of the documents may be photocopied unless with prior permission of the court, as for example, for the purpose of using any document at the trial and having sufficient copies for reference during examination or cross-examination of witness. (d) These documents are not to be used or referred to in any other court proceedings, whether civil or criminal. (e) Any person who sees these documents is not to disclose their contents to anyone not entitled to inspect them. (f) Upon completion of the trial and after the time for any appeal has expired, the documents shall be returned to the clerk of this Court in sealed envelope for delivery to me and to be destroyed. OTHER ISSUES [11] Counsel are reminded that this ruling concerns the issue of disclosure only. The manner in which the documents and the information they contain can be used in examination or cross-examination of the witnesses at trial has not been determined. J. G. A. Chicoine

The accused was charged with second degree murder and two counts of aggravated assault. The accused made an O'Connor application for third party records relating to the two surviving Crown witnesses. In particular, the accused sought disclosure of police reports, videotaped evidence, witness statements, warned statements regarding the multiple arrests and charges incurred by the victims and disclosure of their criminal records. In 2012 SKQB 543, the Court ordered production of the records. This decision deals with whether the documents should be produced to the accused. HELD: The documents were disclosed to the accused. The judge vetted the documents to black out words, phrases or numbers that have no probative value or where the privacy interest of the witness would have been unjustifiably affected.

5_2012skqb544.txt

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Subject: Family Law, Divorce Act, Custody/Access, Domestic Violence, Summary: The parties had been in relationship for approximately years. They were 20 and 18 years of age when they commenced their relationship. They had two children and years of age. The wife requested an equal time shared parenting arrangement. The husband requested sole custody with the children in the wife’s care every second weekend. The wife alleged the husband was abusive of her. The parties had little face to face communication. The wife frequently did not respond to the husband’s reasonable requests involving the children. Issue: What custodial/access arrangement was in the best interest of the children? Result: The children were placed in the husband’s sole care and custody. The wife’s allegations of abuse were unfounded. The nature and cause of conflict between the parties made it unlikely conflict would be diminished under joint custodial arrangement. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: C. J. R. v. C. S. J. ), 2010 NSSC 85 Date: 20100305 Docket: 1201-062869, SFHD-060128 Registry: Halifax Respondent Judge: The Honourable Justice Beryl MacDonald Heard: January 25, 26, 27, 2010, and February 1, 2010, in Halifax, Nova Scotia Written Decision: March 5, 2010 Counsel: Mary Jane McGinty, for the Applicant Kenzie MacKinnon, for the Respondent By the Court: [1] This is divorce proceeding. The Husband and the Wife married on June 15, 2006. They had co-habited prior to their marriage since September 1999. At that time the Husband was 20 years of age and the Wife was 18. The Husband and the wife met in Halifax, Nova Scotia at Navy Reserves training course. The Husband had completed high school. The Wife had not. They have two children; the youngest is now years of age and the oldest is 6. The parties separated December 22, 2007. Both are employed in the Navy and may be subject to deployments that will take them out of Nova Scotia for significant periods of time although the husband, due to recent injury, may be leaving the Navy and pursuing other employment he is confidant will be available to him. [2] All assets have been divided between the parties. The children have been in the husband’s primary care since the separation. This did not occur with the consent of the wife. Unfortunately it has taken this long to bring this matter forward to final hearing. As result is the children have been in the husband’s primary care for approximately years. They have become familiar with the structure and routine he has put in place for them. They have become familiar with the pattern of time when they are in the wife’s care. The Interim Order issued in this proceeding dated May 19, 2009 placed the children in the primary care of the husband. The wife was to have the children in her care on alternate weekends from Friday evening until Sunday evening. In the week when the children were not to be with the wife on the weekend they would be in her care on Monday evening and Wednesday evening. The wife is now seeking an equal time shared parenting arrangement. The husband wants the present parenting arrangements to continue although he is open to providing additional parenting time to the wife. [3] am satisfied that all jurisdictional requirements of the Divorce Act have been met and that there is no possibility of reconciliation. am further satisfied there has been permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for period in excess of one year from the commencement date of this proceeding. divorce judgment will be issued. CREDIBILITY [4] The testimony, both orally and in affidavits, given by the husband and his witnesses differs materially from that given by the wife. [5] When witnesses have different recollection of events the court must assess the credibility of their statements. adopt the outline for assessing credibility set out in Novak Estate, Re, 2008 NSSC 283 (CanLII), at paragraphs 36 and 37: [36] There are many tools for assessing credibility: a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness' testimony. c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution R. v. Mah, 2002 NSCA 99 (CanLII) at paragraphs 70‑75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) at paragraphs 51‑56). [37] There is no principle of law that requires trier of fact to believe or disbelieve witness's testimony in its entirety. On the contrary, trier may believe none, part or all of witness's evidence, and may attach different weight to different parts of witness's evidence. (See R. v. D.R. [1966] S.C.R. 291 at paragraph 93 and R. v. J.H. supra). BEST INTEREST OF THE CHILD Custodial Arrangements [6] What parenting arrangement is in the best interest of these children? Many courts have attempted to describe what is meant by the term “best interest” Judge Daley in Roberts v. Roberts, 2000 CarswellNS 372 said: .......These interests include basic physical needs such as food, clothing and shelter, emotional, psychological and educational development, stable and positive role modeling, all of which are expected to lead to mature, responsible adult living in the community.... [7] In Dixon v. Hinsley (2001) 2001 CanLII 38986 (ON CJ), 22 R.F.L. (5th) 55 ONT. C.J), at para. 46 the following appears: The “best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual, and moral well being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development ... [8] Several cases have attempted to provide guidance to the court in applying the best interest principle: See for instance Foley v. Foley (1993) 1993 CanLII 3400 (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C); Abdo v. Abdo (1993) 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d)1 (N.S.C.A). [9] The Divorce Act has itself provided the court with further direction in section 17 (10) requiring the court to: ...give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [10] This wording does not suggest there is to be presumption it is in the best interest of children to be parented by both parents in an equal time sharing arrangement, although many strive to suggest this is so. Therefore the question is how much contact with each parent is in the best interest of these children given their ages, stage of development, personalities, educational and other needs in the context of the ability of each parent to carry out his or her parental responsibilities and obligations. [11] review of many of the decisions in which judges have attempted to determine what is in child’s best interest reveal preference to continue children in the care of the person who is determined to be their “primary care parent”. This has led to discussion about how court can determine the identity of this person. In Burns v. Burns 2000 NSCA (CanLII), the Court of Appeal did provide some guidance and Justice Roscoe stated: 29..........the actual period of time spent with the children is not the only determinant. More importantly, in my opinion, is which parent has taken primary responsibility for all the important decisions concerning the health, safety, education, and overall welfare of the children, since the parties separated....... 30 In addition to the major matters, the primary caregiver is the parent who deals with the countless loess significant, but nonetheless obligatory, daily arrangements for the children’s clothing, haircuts, hygiene, extracurricular activities and everyday mundane affairs. Who would buy present for them to take to school friend’s birthday party? Who makes the appointments and takes then to the dentist? Which parent is keeping the record of their vaccinations, and fills their prescriptions? Who goes to the parent-teacher interviews? Who chose the pre-school?.......... [12] The decisions and activities described by Justice Roscoe are critical to child’s well being and may be overlooked by parent who has never been required to make these decisions or carry out these activities. However, because the primary care parent in relationship was frequently the female partner, this analysis has come under attack particularly from fathers. The division of labour within family often evolves to place the female partner in the role of primary care parent. It is easier to have one person attending to many of the above described parenting functions. But these are functions the other parent can learn to perform. It may be more important to examine the nature and quality of the child’s relationship with each of his or her parents than it is to merely add up the number of parenting tasks performed by each and assume the parent who preforms more of these tasks is the “primary care parent” who should therefore have day to day care of the child. More illuminating might be answers to questions like these: What does the parent know about child development and is there evidence indicating what is suggested to be “known” has been or will be put into practice? Is there good temperamental match between the child and the parent? freewheeling, risk taking child may not thrive well in the primary care of fearful, restrictive parent. Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline.? Does the child respond to the parent’s attempts to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid? How does that parent give comfort and guidance to the child? Is the parent emphatic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification of his or her own personal needs through the child? Can the parent examine the proposed parenting plan through the child’s eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child? Has the parent made changes in his or her life or behaviour to meet the child’s needs, or is he or she prepared to do so for the welfare of the child? [13] In this case have very little information upon which to assess the quality of the relationships between these children and their parents. The husband has acknowledged the children love their mother and do want to spend time with her. He has concerns about her parenting but he has not suggested her contact should be less than what is provided in the Interim Order. [14] The husband considers himself to be the “primary care parent” of the children. Certainly he has performed the majority of the “parenting tasks” since the separation but that merely is reality created by the separation itself and says nothing about the wife’s ability to perform those same functions. In fact she was required to perform all of the parenting tasks when the husband was deployed. The husband has suggested the wife was very stressed when parenting alone but that is understandable given the ages of the children and the lack of family and social supports existing for this family at that time. The evidence provided by the husband does not satisfy me that the wife is unable to preform the basic parenting tasks. The husband does complain about the wife’s ability to manage her finances. While he was deployed the parties debt situation worsened which is puzzling given their combined incomes at the time. However, have no evidence of any misuse of joint funds and therefore can draw no conclusions relative to parenting as result. The evidence before me does not suggest one or the other of these parents was the “primary care parent” during the marriage. They both performed the parenting tasks required of them as the need arose and both are able to perform those tasks. [15] significant portion of the wife’s evidence was devoted to portraying the husband as domineering, controlling and therefore abusive person. Nevertheless she has concluded that it would be best for the children at this time for (the husband) and to have shared parenting relationship in which, when either of us is not sailing offshore, the children are in our care for equal amounts of time” This suggests that whatever occurred between the parties has not caused the wife concern about the husband’s ability to appropriately parent these children. Therefore his allegedly abusive behaviour toward her should have no relevance to the appropriate parenting plan for these children. If party expects court to believe that abuse matters then the position taken should be indicative of the abuse suffered. parent truly concerned about the best interest of his or her children would not permit them to be parented by person who is abusive of intimate partners. If domestic violence is occurring this issue must be taken seriously and must not used as tactic to engage judicial sympathy. [16] The words “domestic violence” do and have defined number of behaviours including isolated or rare incidents in relationship push, shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” toward others may be quite different from those designed for persons who resort to abuse as mechanism of coercive control. Differentiation must be made between these two dynamics when both may be and frequently are referred to as “domestic violence”. In this decision use the term only to refer to violence against an intimate partner which has as its purpose coercive control over that partner. [17] Children are harmed emotionally and psychologically when living in home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Department of Justice website providing information about spousal abuse. [18] In this case the totality of the evidence suggests what violence there has been between the parties was often initiated by the wife. However, the husband is not blameless and both should pursue counseling to learn how to disengage from arguments and how to manage their frustration and anger. would not categorized what has happened between them as use of violence as mechanism of coercive control. Further the wife’s testimony that the husband did not support her return to high school, would not permit her to explore her native heritage, and isolated her from her friends and family is not supported by other testimony in this proceeding including her answers to questions put to her under cross-examination. I did not find the wife to be a credible witness and a further example of this was her allegation that the husband when deployed at sea “would not allot funds from his pay directly to me while he was gone....”. In fact all of the husband’s pay went directly into joint account with the wife. She had full access to those funds. This willingness of the wife to be untruthful or to misconstrue events in the telling of them, her contrived belief that she has been victimized by the husband, and her lack of insight about her contribution to the deterioration of their relationship suggests potential for continuing conflict between them. [19] In this proceeding the wife requests shared parenting with the husband. In Nova Scotia there are few written decisions providing guidance about the factors it may be important to consider when applying the best interest principle to request for shared parenting. Farnell v. Farnell [2002] N.S.J. No. 491, is one of those decisions and in it Justice Goodfellow commented: [10] “.........Shared custody rarely in my experience works and only seems to where there is present an environment where the children thrive when the children are able to fluidly move from one home to another by reason of parents who are mature in circumstances and reside in such close proximity that the children can go back and forth themselves, continue in the same school, continue with extracurricular activities, church or other activities that they would normally engage in. Such situation is next to impossible to attain and continue when children live at long distances .” [20] Parents in shared parenting arrangement must exhibit an ability to cooperate and jointly plan for their children. They must be able to do so on continuous basis, far more frequently than is expected from parents who have other parenting arrangements. Conflict and the potential for conflict must be at minimum. Each parent must respect the other and their value systems and methods of discipline should not be substantially dissimilar. They must be able to communicate face to face. They must respond quickly to inquiries from the other parent about issues involving the child, focusing on the child’s need not on the parent’s issues. Routines in each household should be similar to ensure the child is not confused by or encouraged to become oppositional because of different standards and expectations in each home. [21] shared parenting arrangement is not in the best interest of these children. The evidence presented during the hearing raises several concerns leading to this conclusion. The wife has been given opportunities to be involved in decisions relating to the oldest child’s educational program. It is clear she does not like the recommendations made by the child’s teacher, which have been accepted by the husband, to deal with the behavioral and learning challenges the child is facing. However the wife has taken no personal initiative to speak with this teacher. In addition this teacher has recommended the child be tested for ADHD. The wife objects to the child being “labeled” and has not been supportive of the teacher’s request or the testing although she now, belatedly, suggests she agrees the testing should be completed. Her responses to the concerns raised about this child’s educational progress suggests co-operative decision making between these parents will be difficult and potentially conflictual. [22] After the parties separated there was period of time when they appeared to parent co-operatively. Although the children were primarily in the husband’s care, when the parties arranged for the children to be parented by the wife, she did so in the matrimonial and the husband moved out for that period of time. However, when the husband decided he could not financially afford to keep the matrimonial home and have separate residence, the relationship between the parties began to deteriorate. The wife did not agree with this decision but was unable to finance her ownership of the home. It had to be sold. Her bitterness about this decision is evident and it appears to influence her present relationship with the husband. She is disrespectful of the husband personally and of the requests he makes in respect to the children. She often does not reply to his inquiries. She has suggested she has not received many of these inquiries. do not accept that testimony. am concerned she may reject the husband’s requests merely because he has made them. [23] These parents do not live reasonably close to one another. The husband lives in Cole Harbour, Nova Scotia and the wife lives in PMQ in Halifax. These are entirely different communities. These parents communicate through e-mail. Face to face meetings have resulted in unpleasant confrontations. [24] Discussions about what is an appropriate decision to make for child’s benefit should not be overwhelmed in “power struggle” between the parents. do find the wife has viewed her relationship with the husband as power struggle. For example, rather than take the opportunity to be with her children, when asked by the husband to care for them on night he wished to go out, she refused telling him am not your babysitter”. She did not have the Christmas vacation time with the children she initially requested because she would not co-operate to confirm the arrangement in consent order essentially because the husband would not agree to her requests relating to the matrimonial home. [25] am satisfied these parents are unable, at this stage in their relationship, to meet the basic requirements for successful shared parenting. [26] While shared parenting is inappropriate for these children what about joint custody? Conflict between parents does not necessarily mean joint custody is also inappropriate. Gillis v. Gillis (1995), 1995 CanLII 4416 (NS SC), 145 N.S.R. (2d) 241 (N.S.S.C.); Rivers v. Rivers (1994), 1994 CanLII 4318 (NS SC), 130 N.S.R. (2d) 219 (N.S.S.C. [27] Joint custody is difficult concept for many to understand. It does not refer to physical closeness to the child nor to shared day-to-day parenting. Joint custody does not mean parent has the right to micro-manage the daily care of the child by the other parent. Each has the right to make independent decisions in that sphere when the child is in his or her physical care. At one time it was clear that joint custody required joint decision making while “sole custody” did not. Recently however, it is not uncommon for joint custodial arrangements to give one parent “final decision making authority” and for sole custodial arrangements to require information to be provided and consultation undertaken with the other parent. What any of these categorizations now mean has become blurred and indistinct. Third parties dealing with parents must be given an entire copy of an order involving children to understand what information may be released to parent, what consultations may include that parent and what parent is to provide direction to the service provider. [28] Perhaps joint custody is more appropriately considered as philosophical concept. It requires parents to remain as committed to their children as they were when living together. When child is ill and treatment must be chosen, when choice must be made about schooling, when there is decision to be made about religious training, when child is in trouble with the law or has behavioural problems, joint custody means the parents will discuss these issues and come to joint decision as parents do in intact families. This process is fluid one and only requires elaboration when it is clear there are impediments to joint decision making. [29] Given that distinctions between joint custody and sole custody are now often difficult to discern, what difference remains upon which to determine whether custodial arrangement is to be labeled as one or the other? Aside from any tax or income benefit arguments, the most significant effect of the labels may be the parents’ response to and interpretation of the words used. An order for joint custody that authorizes one parent to make final decision if agreement cannot be reached may be an attempt to recognize and preserve the responsibilities of parenthood but to avoid continuing litigation when there is an impasse. Unfortunately this type of order may still provide one parent with reason not to seriously consider the other parent’s opinion or to meaningfully consult with the other parent. If this occurs the result may be further resentment by the insufficiently consulted parent and this can further impede the potential for joint decision making. am attracted to the comments made by Justice Bertha Wilson then of the Ontario Court of Appeal, in her dissenting opinion in Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C. A.) at p. 73 commenting upon the concern about further litigation between parents: “And what if occasional resort has to be made to the courts when the parents cannot agree on major matter affecting the child? Is this to be determinative consideration? It seems to me to be modest price to pay in order to preserve child’s confidence in the love of his parents and with it his own sense of security and self-esteem.” [30] Children do benefit from joint decision making because they will have the benefit of the expedience, knowledge and analysis provided by each of their parents. However an appropriate consideration of each parental viewpoint may not occur if there is power imbalance. Why would it be in the best interest of child to create potential power imbalance? Is it because the court believes the parents will, if ordered, suddenly put aside their differences and fully participate in decision making? If this is the case the court should award joint custody without giving one parent “final decision making authority”. If it isn’t why wouldn’t an order giving one parent sole custody with requirement to inform and consult with the other parent be more in the child’s best interest? Perhaps joint custody is preferred to avoid the negative consequences word choice can have on parental perception. Parents who have joint custody may be less likely to consider their parenting role to have been diminished and therefore be less likely to withdraw from meaningful contact with their children. Continuing to respect the role and responsibility both parents have in fulfilling parental obligations may encourage parents to overcome existing conflict between them. These are suggestions found in reported decisions. However, joint custody must not be granted as form of wishful thinking. The nature and extent of the conflict between the parties must be analysed to determine if joint custody is in child’s best interest. [31] The court in Godfrey-Smith v. Godfrey-Smith (1997), 165 N.S.R. (2d), 245 (N.S.S.C.) at paragraph noted that the parents had in the early months of their separation displayed, “.... healthy amount of cooperation as far as the children were concerned.” The Court then stated: [17] It is painfully obvious to me that these parties in recent months have demonstrated depressing lack of cooperation. This has resulted in the vitiation of virtually all direct communication between them. They do not meet face-to-face. They do not talk on the phone. Their e-mails are curt at best. They use their children as messengers and then wonder why things get lost in the translation. [20] It seems to me that when facing contested application for joint custody court should make distinction between the parties’ inability to communicate as opposed to the parties’ unwillingness to communicate. To do so it will be necessary to explore their relationship with both pre-and post-separation with view to determining how they have historically handled parenting issues. [22] Thus, the parties relationship at the time of the divorce may be of less significance than the relationship during the marriage; it being expected that conflict precipitated by litigation will likely abate in time. ............ [32] There has been conflict between these parents. They no longer have face to face contact. Their conflict may have been fuelled by the existence of these proceedings. Excerpts appearing on pages 56 an 59 from Norris Weisman’s article entitled, On Access After Parental Separation, 36 R.F.L. (3d) 35 explain this phenomena: ...the adversarial nature of litigious proceedings can shift the focus of the hearing away from the children and their needs towards an emphasis on the martial sins of the parents; revive and escalate the conflict between the parents; harden their positions; and tempt them to exert pressure upon the child to choose one parent over the other........ ...the litigation itself is often motivated by need for public vindication, to ward off depression, or salvage shattered self –esteem. These parents enter into litigation to prove that the other spouse has behaved badly or is wrong, and, by contrast, that they themselves are good and right. [33] These parents were young and immature at the beginning of their relationship. They have faced personal challenges including raising their children while attempting to advance in their chosen careers. Each has parented these children alone for periods of time. Initially after separation they were able to work out child care schedule, admittedly with some difficulties, and make adjustments when necessary. However, the intervening conflict has caused the wife to perceive herself as a victim of the husband’s abuse; it has exposed her own lack of insight into the dynamics of their relationship and the impact upon their children; her reflex action is not to cooperate with the husband; she now has little respect for him. She has been unresponsive to his reasonable requests; her focus has not been upon the needs of her children. am not satisfied conflict driven by these factors will disappear merely because an order for joint custody, by its very nature, requires the parties to cooperate. am not persuaded the appropriate response to this dilemma is to provide an order for joint custody giving the husband final decision making authority. A track record of respectful parenting may alter this conclusion in the future but for the present I find it to be in the best interest of these children to be in the sole custody and care of the husband. [34] The husband shall provide the wife with information about all services provided to the children by others, including those provided by schools, physicians, dentists, counsellors, recreation providers, and religious institutions. He is to provide the name and address of service providers and he is to explain why the service is necessary if the reason for the services is not apparent. Copies of all reports received are to be given to the wife. The wife is to have the authority to consult with all third party service providers so she may be informed about their recommendations and understand the reasons for their recommendations. If these recommendations require parent to follow course of action when parenting child the wife shall comply with the recommendations when that child is in her care. Parenting Plan [35] Unfortunately neither party presented the court with detailed parenting plan outlining when the children will be in the wife’s care, what will happen during holidays, during the summer, on birthdays etc. do know the husband requests the children continue to be in the wife’s care as is set out in the Interim Order. The husband has stated he is prepared to agree the children be in the wife’s care for other periods. He had suggested they stay with her overnight on Sunday and then be taken by the wife to the school and caregiver. do not know if that is practical. do accept the evidence that the children appear to have experienced no negative consequences arising from the present schedule. The present schedule will remain in effect but it must contain further detail. The Interim Order does not state the pick up and return times. It does not state where transitions are to happen. Presently they take place away from the parties residences. This is unsatisfactory for the children but may lessen the potential for conflict. The order reflecting this decision is to include the detail about drop off and pick up times and the place for transitions. It is to include arrangements for holidays, Christmas, March Break and summer vacation. It is to include clause providing the wife such other reasonable parenting time as the parties can agree upon”. If the parties cannot agree upon the details and holiday parenting time retain jurisdiction to resolve these issues. CHILD SUPPORT [36] The parties have not made submissions requesting change in child support other than the change that may have been appropriate if shared parenting arrangement had been ordered. Therefore the wife shall continue to pay child support to the husband as is required by the terms of the Interim Order dated August 26, 2009. [37] If the parties are unable to resolve the issue of costs, the Husband shall first provide written submissions to this court and to the Wife after which she shall have 14 days to file with this court and copy her reply to the Husband. If the Wife raises anything in her submissions not addressed by the Husband in his he shall file with this court and copy to the Wife his response in writing within days. Beryl MacDonald, J.S.C.

The parties were separated and had difficulty communicating. They were together for eight years, and had two children (ages six and three). The husband had interim care and sought sole custody/primary care, while the wife wanted shared custody (50/50). She alleged the husband was abusive. The evidence showed she unreasonably refused to cooperate with him in relation to matters concerning the children. Sole custody/primary care to the father, with access to the mother as per the interim arrangement (every second weekend and other times). The mother was not credible and her allegations of abuse unfounded. If a party expects the court to believe there was domestic abuse, their position on parenting should reflect that. Shared custody arrangements require cooperation and the ability to jointly plan. Similarly, joint custody requires a level of cooperation. A requirement to make decisions jointly is not in the children's best interests if it leads to conflict and creates a potential power imbalance. Looking at the nature and extent of the parents' conflict, sole custody is appropriate until there has been an established track record of respectful parenting.

4_2010nssc85.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 205 Date: November 27, 2014 Information: 43842507 Location: Saskatoon Between: Her Majesty the Queen Appearing: Frank Impey For the Crown Lisa Watson For the Accused JUDGMENT S.L. METIVIER, INTRODUCTION [1] The accused, D.R., is charged with sexual assault of the complainant, C.B., contrary to s. 271 of the Criminal Code. The accused and complainant are related. The charge arises from sexual activity that occurred between the accused and the complainant in December, 2012, in Saskatoon, Saskatchewan. [2] The complainant says that she has no memory of the sexual activity due to an alcohol induced blackout. The Crown argues that there was no consent. The accused does not deny that he had sex with the complainant. He claims that the activity was consensual or, alternatively, that he had an honest but mistaken belief in consent. [3] The Crown called three witnesses: the complainant, C.B., her mother, F.B., and her uncle, R.B.. The accused testified and called two additional witnesses: M.R. and J.R.. [4] The Supreme Court of Canada discussed the law of sexual assault in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] SCR 330. In order for an accused to be convicted of sexual assault, the Crown must prove beyond reasonable doubt that they committed the actus reus (wrongful act) and that they had the necessary mens rea (mental intent). The actus reus of the offence is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or willfully blind to, lack of consent, either by words or actions, from the person being touched. (Ewanchuk, at para. 23) [5] Consent is an essential component of both the actus reus and mens rea. If the activity was consensual, there was no actus reus. If the accused believed the activity was consensual, he lacked the mens rea for sexual assault. [6] The issues in this case are: 1. Did the complainant consent to having sex with the accused? 2. If the complainant did not consent, did the accused have an honest but mistaken belief in consent? [7] As the Court heard contradictory evidence with respect to the central issue of consent, this case involves an assessment of credibility, which is to be assessed in light of all the evidence having regard to the principles established by the Supreme court of Canada in R. v W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. III ANALYSIS 1. Did the complainant consent to having sex with the accused? [8] Consent of the complainant is to be determined by reference to the complainant’s subjective state of mind towards the sexual touching, at the time it occurred. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. (Ewanchuk, at para. 29) [9] To be legally effective, consent must be voluntary. Therefore, even if the complainant consented, or her conduct raises reasonable doubt about her non-consent, circumstances may arise that call into question what factors prompted her apparent consent. (Ewanchuk, at para. 36) Under section 273.1(2) of the Criminal Code, no consent is obtained if “the complainant is incapable of consenting to the activity”, as might arise due to intoxication. [10] The complainant testified that she spent the afternoon at friend’s house, where she consumed between 14 and 16 ounces of whiskey. The accused and the complainant’s mother, F.B., picked her up around 5:00 p.m. and took her to SARCAN Recycling to sell some bottles. She used the money from SARCAN to purchase two litre bottle of Appaloosa beer, which she continued to drink while they drove around in the accused’s vehicle. [11] The next thing the complainant remembers is lying on bed in the bedroom of strange house; she was naked from the waist down, with her pants and underwear still on one leg. The accused was lying on the floor beside her. She quickly realized what had happened, put her clothes on and left. [12] The complainant testified that “no one goes and has sex with an uncle”, and stated that she did not consent to having sex with the accused. [13] The accused testified that this was not the first time the two of them engaged in consensual sexual activity. In July, 2012, he spent the night at the complainant’s house where they had sex three times throughout the night. The two of them talked about starting relationship after the first encounter, but agreed that it would not work because they were close relatives and their family would not accept it. [14] The evening in December, 2012, began with the accused drinking with the complainant and her mother, F.B., at F.B.’s house. He decided to leave around 10:00 p.m. as was feeling buzzed from the alcohol and wanted to drive home while he was still sober enough to do so. [15] As he was leaving, the complainant asked him for ride to friend’s house. They stopped at house on 23rd Street and eventually ended up back in his vehicle together. The complainant asked him if there was someplace they could “be together” which he understood to mean “sleep together”. He told the complainant that he would ask his sister, J.R., if she had spare room. They drove to his sister’s house and he obtained his sister’s permission to have woman sleep over. The complainant followed the accused into the bedroom and they closed the door. [16] The accused and the complainant laid down on the single bed and started to kiss and touch each other. They both removed their clothes and the foreplay progressed to sexual intercourse. While they were engaged in sexual intercourse, the accused’s daughter, M.R., burst into the room, admonished them for having sex, and demanded that the complainant leave. [17] As the complainant has no memory of the sexual activity, the only evidence before me as to what occurred between the complainant and the accused in the bedroom leading up to and during the sexual activity is the evidence of the accused, which included the following: The complainant asked him if there was place where they could “be together”; They agreed to go to his sister’s house to see if she would give them room; They both walked into the room, and took off their own clothes; They engaged in mutual foreplay which progressed to sexual intercourse. [18] J.R. testified that the accused came to her house that evening and asked if he could sleep there with woman. Upon providing her permission, the accused went and got the complainant from his vehicle. Ms. J.R. said that she engaged in casual conversation with the complainant about their children following which the complainant followed the accused into the bedroom. She felt uncomfortable with the situation because the accused and the complainant are related. She telephoned the accused’s daughter, M.R., and asked her to come deal with it. [19] M.R. went to the house after receiving telephone call from J.R. She burst into the bedroom and demanded to know what was going on. She said that she did not see anything but blankets as it was dark in the room. She got into an argument with her father and told the complainant to leave. [20] The complainant said that after she realized what happened, she ran from the house and eventually took cab to friend’s house. Her mother told her that the incident was all over Facebook. She said that she felt dirty, gross, and ugly and stayed inside her friend’s residence for four days. [21] The complainant’s evidence as to her subjective state of mind is not reliable given her testimony that she has no memory of the events due to an alcohol induced blackout. While the complainant’s actions after the incident may be consistent with an absence of consent, they are equally consistent with regret, humiliation and embarrassment caused by the activity being broadcast. The evidence of the accused and J.R. is indicative of active participation. While there were some minor inconsistencies, the evidence of the defence witnesses raises reasonable doubt about the complainant’s non-consent. [22] That is not the end of the matter as still must consider whether the complainant had the capacity to consent to sexual activity due to her level of intoxication. [23] The complainant’s evidence pertaining to her level of intoxication is not supported by the other witnesses. F.B. adamantly stated that her daughter was sober when she and Mr. D.R. picked her up to take her to SARCAN. J.R. testified that when the complainant came into her house that night, they had a conversation about their children; the complainant seemed happy and in a good mood, and not particularly intoxicated. The accused testified that the complainant had been drinking, but was not drunk or blacked out; she had no difficulty understanding him and was able to communicate effectively. [24] I am not satisfied beyond a reasonable doubt that the complainant was incapable of consenting due to her level of intoxication. [25] Having found that the complainant’s conduct raises reasonable doubt about her non-consent and that she was capable of consenting, need not consider whether the accused had an honest but mistaken belief in consent. IV CONCLUSION [26] I find the accused, D.R., not guilty. S.L. Metivier,

There was contradictory evidence regarding the central issue of consent and therefore the court had to assess credibility. The complainant’s action of fleeing the situation was found to be consistent with both not consenting and with regret, humiliation and embarrassment. The evidence of the accused’s witnesses was found to raise a reasonable doubt about the complainant’s non-consent. The court concluded that the complainant was not as intoxicated as she said; for example, she had a conversation with the accused’s sister. Therefore, the court was also not satisfied beyond a reasonable doubt that the complainant was incapable of consenting due to her level of intoxication. It was unnecessary for the court to consider whether the accused had an honest but mistaken belief in consent. The accused was found not guilty.

9_2014skpc205.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 519 Date: 2006 12 08 Docket: Q.B.G. No. 1690/2006 Judicial Centre: Regina BETWEEN: BANK OF MONTREAL and PATCHRITE INC. Counsel: Rick M. Van Beselaere for the applicant Michael J. Morris for the respondent JUDGMENT ZARZECZNY J. December 8, 2006 INTRODUCTION [1] The Bank of Montreal (the “Bank”) presents a motion to the Court to determine the priority position of the Bank and the respondent Patchrite Inc. (“Patchrite”) respecting assets leased by Patchrite to Sweeprite Mfg. Inc. (“Sweeprite”). The applications are brought pursuant to ss. 63 and 66 of The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2 (the “PPSA”). [2] Counsel for the parties have cooperated in having this motion heard and decided by filing an Agreed Statement of Facts (“Agreed Statement”) with attached exhibits. photocopy of the Agreed Statement (without exhibits) is attached as Schedule “A” to this judgment. The whole of the Agreed Statement with exhibits is incorporated by reference into this judgment. BACKGROUND FACTS AND CIRCUMSTANCES [3] Sweeprite was incorporated by Leslie Hulickso in January of 1985 and it commenced business as an equipment manufacturing company specializing in the manufacture of commercial street and parking lot sweepers. Patchrite was also incorporated by Mr. Hulickso, in May of 1990, for the purpose of manufacturing and marketing pothole patching machines. It never commenced that business. [4] third company involved in these circumstances is Gateway Capital Corp. (“Gateway”) incorporated as capital pool company. [5] In 2000 Mr. Hulickso began negotiating the sale of Sweeprite to Gateway. Although the sale was initially hoped to include Sweeprite’s land, building and equipment located at 1891 Albert Street North in Regina, Saskatchewan, the deal ultimately concluded was for Sweeprite’s business only. Its land, building and equipment assets were not included in the sale. Rather, these assets were transferred by Sweeprite to Patchrite by virtue of “Rollover Agreement” dated May 1, 2001. Sweeprite maintained possession and use of the land, building and equipment throughout. Patchrite obtained mortgage over the real property and Sweeprite made the mortgage payments. Amounts paid by Sweeprite to Patchrite were treated by both companies as rental expenses and income. [6] In February of 2002, Sweeprite and Gateway signed Letter of Intent whereby Gateway agreed to acquire Sweeprite by share purchase to close May of 2002. formal agreement was signed April 11, 2002, however, for various reasons, the closing date for the sale transaction was extended and it did not close until January 31, 2003. Upon closing Sweeprite and Gateway amalgamated and continued as Sweeprite. [7] An equipment lease (the “Equipment Lease”) covering the equipment that is the subject of the application before the Court (the “leased equipment”) was signed by Sweeprite as lessee and Patchrite as lessor on May 23, 2002 (exhibit “B” to the Agreed Statement). The leased equipment was the equipment that had been used and continued to be used by Sweeprite in its manufacturing processes. It is listed as Schedule “A” to the Equipment Lease. The total book value of the leased equipment was $331,738.00. [8] The Equipment Lease was for term of three years. By its provisions the lease term was not to begin until after the closing date of the agreement between Sweeprite and Gateway January 31, 2003. The lease provided for the payment of minimum annual rental of $24,000.00 and it includes an offer to purchase the leased equipment for $212,000.00. The first monthly rental payment under the lease of $2,000.00 was made by Sweeprite to Patchrite in February of 2003. [9] In June of 2005, Patchrite and Sweeprite executed Lease Extension and Amending Agreement. It provided that the Equipment Lease’s term would be extended to May 1, 2007. Patchrite never registered an interest at the personal property security registry as lessor of the equipment leased to Sweeprite either of the original Equipment Lease or the extension or renewal agreement. [10] The parties have agreed that this Equipment Lease is the only written lease of equipment (personal property) by Patchrite to any lessee. Patchrite has no other personal property leases. [11] After the land, building and equipment Rollover Agreement of May 2001, in December of 2001 Patchrite became actively engaged in and has since earned income from contract with Rite Way Mfg. Co. Ltd. (“Rite Way”). The work for Rite Way involves research, design and development work for the “python” grain harvesting combine. It has not yet entered production. [12] Patchrite is not and has never been wholesaler or retailer of any kind of goods (personal property). [13] In April of 2004, Sweeprite granted the Bank security interest in all of its present and after-acquired personal property (Appendix “C” to the Agreed Statement) in support of loan facilities provided to Patchrite by the Bank. The Bank registered financing statement in the personal property registry on April 6, 2004. [14] Sweeprite ran into financial difficulty in the fall of 2005 and was unable to meet all of its obligations. The Bank appointed receiver and manager. Subsequently Sweeprite was deemed to have made an assignment in bankruptcy in January of 2006. In the course of the administration of the bankruptcy of Sweeprite, this dispute has now arisen between Patchrite and the Bank regarding priority to the leased equipment. [15] By agreement between the Bank and Patchrite, the leased equipment has now been sold and the sum of $100,000.00, the amount the parties have agreed represents the value of the equipment, has been placed in trust to be paid out in accordance with the determination by this Court of the legal priorities to the leased equipment in issue between these parties. THE ISSUE [16] By their agreed statement the parties have agreed to and stated the issue for determination by this Court as follows at paragraph 31: 31. The issue to be decided by the Court is which of the Bank of Montreal or Patchrite has priority to, or entitlement to, the equipment subject to the Lease. That issue requires a determination on whether the Lease was a “lease for a term of more than one year” as defined in s. 2(1)(y) of The Personal Property Security Act, 1993.... [17] Subsections 3(2) and 2(1)(y) of the PPSA define and apply to leases of personal property for term of more than one year. They provide as follows: 3(2) Subject to section and section 55, this Act applies to transfer of an account or chattel paper, to lease for term of more than one year and to commercial consignment, that does not secure payment or performance of an obligation. 2(1) In this Act: ... (y) “lease for term of more than one year” includes: (i) lease for an indefinite term, including lease for an indefinite term that is determinable by one or both of the parties not later than one year after the day of its execution; (ii) lease initially for term of one year or less than one year, where the lessee, with the consent of the lessor, retains uninterrupted or substantially uninterrupted possession of the leased goods for period of more than one year after the day on which the lessee, with the consent of the lessor, first acquired possession of them, but the lease does not become lease for term of more than one year until the lessee’s possession extends for more than one year; and (iii) lease for term of one year or less where: (A) the lease provides that it is automatically renewable or that it is renewable at the option of one of the parties or by agreement of the parties for one or more terms; and (B) the total of the terms, including the original term, may exceed one year; but does not include: (iv) lease involving lessor who is not regularly engaged in the business of leasing goods; (v) lease of household furnishings or appliances as part of lease of land where the goods are incidental to the use and enjoyment of the land; or (vi) lease of prescribed goods, regardless of the length of the lease term. [Emphasis added] [18] Patchrite argues that, by virtue of subclause 2(1)(y)(iv), “lease for term of more than one year” does not include “a lease involving lessor who is not regularly engaged in the business of leasing goods ...” Patchrite claims that it is “not regularly engaged” in the business of leasing goods. This lease of equipment to Sweeprite was the only lease transaction which it ever has or ever expects to engage in. Leasing is not part of the business Patchrite regularly engages in. It sees its business as consisting of research and development in particular for the python combine by virtue of its contract with Rite Way. [19] The phrase “regularly engaged in the business of leasing goods” appears in the PPSA legislation of most provinces. number of decisions have been rendered interpreting and applying this phrase to the circumstances of companies that find themselves with an unregistered lease interest in personal property that is also subject to competing claim of registered security holder. Often this is in the context of bankruptcy and/or security enforcement proceedings taken by the registered interest holder. [20] In the case of Paccar Financial Services Ltd. v. Sinco Trucking Ltd. (Trustee of), 1989 CanLII 287 (SK CA), [1989] W.W.R. 481; (1989), 74 Sask. R. 181 (C.A.), Paccar had leased certain vehicles to Sinco who subsequently made bankruptcy assignment. The trustee in bankruptcy claimed the trucks relying upon s. 20(1)(d) of the PPSA. The trustee asserted that Paccar was required to register financing statement in respect of its lease which was for term of more than one year. Paccar argued it was not regularly engaged in the business of leasing goods and therefore did not need to register financing statement. Paccar claimed the exception provided for by subclause 2(1)(y)(iv) of the PPSA. [21] Paccar argued that the four trucks in question were leased for the first time and that it was the first time that it had carried on business in that fashion. Its general business involved selling trucks upon conditional sales contracts or financing leases with options to purchase. [22] The trial judge held that the exemption claimed by Paccar did not apply. On appeal the Court of Appeal stated at p. 496: ... Paccar did not fit the description because it was large financial institution regularly engaged in financing the purchase of Kenworth trucks, and that while lease transactions were rarely used, they were in fact used for financing and as result the exemption did not apply.... [23] Similar conclusions were reached by Gunn J. of this Court in the case of East Central Development Corp. v. Freightliner Truck Sales (Regina) Ltd., 1997 CanLII 11021 (SK QB), [1997] W.W.R. 231; (1997),153 Sask. R. 161 (Q.B.) and by Ball J. in Karkoulas v. Farm Credit Canada, 2005 SKQB 367 (CanLII); (2005), 270 Sask. R. 291 (Q.B.). In the latter case, Ball J. focussed upon the substantial nature of the personal property lease and observed at para. 20, “... it is not the number or frequency of the leases that determines the application of the PPSA; it is whether the lease involved lessor who was regularly engaged in leasing the goods.” [24] The only authority which appears to come to contrary result is the case of Planwest Consultants Ltd. v. Milltimber Holdings Ltd., 1995 CanLII 9153 (AB QB), [1995] 10 W.W.R. 334 (Alta. Q.B.); aff’d 1997 ABCA 318 (CanLII), [1998] W.W.R. 214 (Alta. C.A.). That case involved mortgagee who became owner of the land, building and restaurant equipment in the building as result of foreclosure upon its mortgage. The mortgagee, now owner, leased the land, building and the restaurant equipment in the building to tenant who operated the business as restaurant (as was previously the case). The court concluded that in these unique circumstances the mortgagee, now owner and landlord, was entitled to the exemption from the registration requirements of the PPSA. The owner/landlord was found to be primarily engaged in the purchase, sale and financing of commercial properties, and investment consulting and not regularly engaged in the business of leasing chattels which was only incidental to and not regular part of the business of the lessor on this singular occasion. [25] The situation of Patchrite is quite different and distinguishable from that of Milltimber, the lessor in the Planwest, case, supra. [26] There is no evidence of any business activity at all that Patchrite engaged in until May of 2001 when it had transferred to it Sweeprite’s land, building and equipment. Patchrite in turn rented back the building, land and equipment, none of which ever left Sweeprite’s possession, to Sweeprite under the terms of non-written agreement. Sweeprite paid Patchrite rental for the fiscal period from July 1, 2000 to June 20, 2001 of $22,500.00, for the fiscal period July 1, 2001 to June 30, 2002, $69,659.53, and from July 1, 2002 to January 31, 2003, $23,701.71. [27] Ultimately Patchrite and Sweeprite entered into the equipment lease dated May 23, 2002, for term of three years, term which, by virtue of the agreement, began running January 31, 2003. The equipment lease required Sweeprite pay Patchrite an annual rent of $24,000.00 and recognized that the equipment leased had book value of $331,738.00. Patchrite granted Sweeprite an option to purchase the leased equipment for purchase price of $212,000.00. [28] In 2001 when the non-written lease/rental agreement first began, Patchrite had no other business except the ownership and lease to and/or rental of the land, building and equipment to Sweeprite. It was not until December of 2001 when it obtained the research and development contract with Rite Way. [29] The business of leasing which had started in the spring of 2001 under the non-written arrangement and which continued thereafter by virtue of the equipment lease until the bankruptcy of Sweeprite, was, from May to December of 2001, the only business of Patchrite and thereafter continued to be a significant part of Patchrite’s business. [30] In these facts and circumstances, I find and conclude that Patchrite was “regularly engaged in the business of leasing” within the meaning of subsection 2(1)(y)(iv) of the PPSA and therefore it is not entitled to the exemption from the registration requirements of s. 3. The lease in question was therefore “a lease for a term of more than one year” within the meaning of the PPSA and it required registration. Having failed to register its leasehold interest at the personal property registry Patchrite’s claim to the equipment is subordinate to the registered and first priority claim of the Bank. [31] Orders reflecting this judgment of the Court may issue. J. T. C. Zarzeczny

The Bank presents a motion to the Court to determine the priority position of the Bank and the respondent corporation respecting assets leased by the respondent to Sweeprite. By agreed statement of facts and issue, the parties have agreed that the issue to be determined is whether the Bank has priority to, or entitlement to, the equipment subject to the Lease. This requires a determination of whether the Lease was a 'lease for a term of more than one year' as defined by s. 2(1)(y) of The Personal Property Security Act. HELD: The respondent was 'regularly engaged in the business of leasing', within the meaning of s. 2(1)(y)(iv) of the PPSA and therefore is not entitled to the exemption from registration requirements of s. 3 of the Act. The lease in question was therefore 'a lease for a term of more than one year' within the meaning of the Act and it required registration. Having failed to register its leasehold interest at the personal property registry, the respondent's claim to the equipment is subordinate to the registered and first priority claim of the Bank. 1) There is no evidence of any business activity at all that the respondent engaged in until May 2001 when it had transferred back to it Sweeprite's land, building and equipment. The respondent in turn rented back the building, land and equipment, none of which ever left Sweeprite's possession, to Sweeprite under the terms of non-written agreement. Sweeprite paid rental to the respondent. Ultimately the respondent and Sweeprite entered into the equipment lease for term of years. 2) In 2001 when the non-written lease/rental agreement first began, the respondent had no other business except the ownership and lease to and/or rental of the land, building and equipment to Sweeprite. It was not until December of 2001 when it obtained the research and development contract with Rite Way. 3) The business of leasing, which had started in the spring of 2001 under the non-written arrangement and which continued thereafter by virtue of the equipment lease until the bankruptcy of Sweeprite, was from May to December of 2001 the only business of the respondent and thereafter continued to be a significant part of the respondent's business.

e_2006skqb519.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fortune v. Reynolds and Brookville Carriers Inc., 2002 NSSC 288 Date: 20020501 Docket: SP 06094 Registry: Pictou Between: Frank Fortune v. Brian Reynolds and Brookville Carriers Inc. Defendants Judge: The Honourable Justice Hilroy Nathanson Heard: May 1, 2002, in Pictou, Nova Scotia Written Decision: January 22, 2003 (Oral decision rendered May 1, 2002) Counsel: Wayne A. Bacchus, Esq., for the Plaintiff/Respondent Louis Martin Boudreault, Esq., for the Defendants/Applicants Nathanson, J.: (orally) [1] Thank you very much for your submissions. [2] spent good part of last evening reviewing the contents of both your briefs, and my problems this morning arise from the manner in which the application was initiated and with the arguments that were raised in those briefs. [3] The application says that it is for determination of question of law pursuant to C.P. Rule 25.01. Unfortunately, it does not say what the question of law is. When I then read in the brief for the applicant that the sole issue is “Is the plaintiff barred from suing in Nova Scotia regarding the motor vehicle accident which occurred in the Province of Quebec?”, I concluded that that was the question of law, and that seems to be the focus of the arguments that were raised in the brief by the applicant. The application was also for directions as to procedure to govern the future course of conduct of trial, in the alternative to determination of the question of law and, secondly, to dismiss the action because Nova Scotia is a forum non conveniens. The problem is that the applicants appear to have argued determination of question of law, but the respondent has argued forum non conveniens, or at least has focused on them. [4] The applicants did not really make any submissions of substance concerning forum non conveniens, and at the same time the applicants have not provided lot of information about the circumstances surrounding the accident such as whether there were any witnesses and where they may be resident; police whether report was filed; whether anybody investigated the accident; whether any of them are witnesses; whether there are police reports; whether the plaintiff was seen by doctors and, if so, where they are located and whether they might be called to testify at trial. So am in bit of quandary. am trying to make the application and the response to the application fit together. [5] think that you are both right and you are both wrong at the same time because you are both dealing with only part of the law. My understanding of this area of the law is, but it perhaps can be summarized, possibly over-simplified, with the following statements. First, the plaintiff has a prima facie right to select the forum of his choice. Secondly, this right is subject to the defendants’ right to try to establish that the forum chosen is forum non conveniens and that more convenient forum exists elsewhere. Third, the factors to be considered by the Court in making that determination are set out in case law, two of which have been referred to me are O’Brien vs. Attorney General of Canada and Oakley vs. Barrie. [6] The substantive law which governs will be the law of the place where the injury occurred. In this case, it is Quebec, and that, think, is the true ratio of the cases of Tolofson v. Jensen; Lucas (litigation Guardian of) v. Gagnon. [7] The governing procedural law will be the law of the place of trial or lex fori, and that was decided in Brown vs. Marwieh. do not want to get into the law of Quebec. That may be something that more properly should be raised at trial if it is necessary. But would say this, do not consider myself competent to interpret the law of the Province of Quebec. have enough difficulty with the law of the Province of Nova Scotia, and think that if there is trial, and if Quebec law is involved, as think it is, according to the Rule that have just mentioned, somebody is going to have to come forward with an expert witness with respect to the law in existence in the Province of Quebec. [8] am not going to accept the paragraph in Mr. Murphy’s affidavit in which he purports to express an opinion as to what the law is, and am not going to accept counsel’s submissions this morning with respect to that narrow point. [9] So, coming back to the questions which have been raised: Is the plaintiff barred from suing in Nova Scotia? The answer to that is, as I said, the plaintiff has a prima facie right to select the forum of his choice. In this case the plaintiff has chosen Nova Scotia and, following the next rule, unless the defendant, that is the applicants here, can show that Nova Scotia is forum non conveniens, the plaintiff’s choice of jurisdiction of forum will govern. In the absence of so many facts about the circumstances surrounding the accident and the witnesses likely to be called on behalf of the defendant, I find that Nova Scotia is forum conveniens. have considered the factors set out in O’Brien vs. Attorney General of Canada and Oakley vs. Barrie, and have considered the factual submissions that have been made on behalf of the respondent in this application, and that is the conclusion that have reached. [10] It is an entirely different question, as I said, as to what law will apply to a trial in Nova Scotia and, as I have previously stated, the rule is that the substantive law that governs will be the law of the place where the injury occurs. That is the law of Quebec. Counsel are going to have to find some way of not only getting the law, but also interpretations of the law, before the Court in Nova Scotia. do not think you should automatically expect judge presiding at trial in Nova Scotia to be the interpreter of the law of Quebec. [11] If there is a procedural problem, a problem arising from procedural law, before or during trial, that problem will undoubtedly be determined in accordance with the procedural law of the place of trial, and that is Nova Scotia. [12] The notice of application was amended to include an additional claim for costs. do not think that amendment was necessary in Nova Scotia because costs are always in issue. But it does bring to the Court’s attention the necessity of dealing with costs, and that seems to be problem. The application was for: (a) determination of question of law that question has been determined; (b) directions as to the procedure to govern the future course of conduct of the trial believe that has been dealt with; and (c) to dismiss the action for forum non conveniens that was refused. So would say that the applicants have been successful, although the result is not to their liking, am sure. [13] With respect to the determination of question of law and with respect to directions as to procedure, the applicants have been unsuccessful with respect to questions arising from forum non conveniens. [14] If counsel would like to add anything before decide what to do about costs, would be glad to hear them once again. Mr. Martin Boudreault No My Lord, I’ve nothing else to add. The Court Nothing. Mr. Bacchus Yes My Lord we also were seeking costs in our response or in our Memorandum of Law and we tried to avoid court by correspondence and it necessitated this and it of course took time from our firm to prepare this, and as such we believe that some costs should be awarded. The Court Well, don’t know. have nothing before me as to who did what, who agreed to what, and who disagreed with what prior to hearing of the application. In the absence of evidence of that kind, don’t want to base decision on what it might have been. think the applicants had every right to bring this application, probably had duty to do so because of the rather unusual circumstances of the occurrence of the accident in different jurisdiction. am going to grant the applicant some costs even though it has been unsuccessful on the question of forum non conveniens because, in different sense, the applicants have not been successful in getting what they want. am going to keep those costs relatively low. am going to suggest an amount like $400.00.

The plaintiff was injured in a motor vehicle accident in Quebec and commenced an action in Nova Scotia. The applicant applied to determine whether the plaintiff was barred from suing in Nova Scotia concerning the Quebec accident and to dismiss the action on the basis that Nova Scotia was a forum non conveniens. Application to dismiss the action dismissed; the forum conveniens is Nova Scotia. The plaintiff has the prima facie right to select the forum subject to the defendant's right to establish that the forum is non conveniens. In the absence of many facts about the circumstances surrounding the accident and the witnesses likely to be called by the defendant, Nova Scotia is the forum conveniens. The substantive law governing the proceeding will be the law of the place where the accident occurred and the governing procedural law will be the law of the place of the trial.

6_2002nssc288.txt

2004 SKQB 374 D.I.V. A.D. 1996 No. 77 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: MICHELLE DAWN LILLEY and CURTIS WILLIAM PILAT RESPONDENT R.B. Hunter for Michelle Dawn Lilley T.F. Huber for Curtis William Pilat FIAT WILSON J. September 16, 2004 [1] Michelle Lilley and Curtis Pilat are the parents of one child, Stephanie Brook Pilat, born April 9, 1992. By order of Archambault J., dated March 6, 1996, Mr. Pilat was ordered to pay the tax deductible/tax inclusive sum of $600.00 per month as support for Stephanie. Mr. Pilat applies to reduce his support obligation and rescind arrears which have accumulated under Archambault J.’s order. [2] The primary questions to be answered by the court on this application are as follows: 1. What is Mr. Pilat’s current income? 2. Is Mr. Pilat underemployed and, if yes, should income be imputed to him pursuant to s. 19(1)(a) of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”)? [3] The secondary questions to be answered are as follows: 1. What are the appropriate s. Guideline expenses for Stephanie and how should these expenses be shared by Mr. Pilat and Ms. Lilley? 2. Should the child support variation in this matter be retroactive? and 3. Should costs of this application be granted to either Mr. Pilat or Ms. Lilley? [4] Before answering the above questions it is necessary to set out the history of this variation application and the factual context in which the questions above will be determined. HISTORY OF APPLICATION [5] Mr. Pilat commenced this application to vary in June of 2002. Mr. Pilat made this application after experiencing substantial decrease in his income when he was fired by his long-term employer, Ipsco, in June, 2001. [6] Mr. Pilat’s application proceeded before McIntyre J. on August 21, 2002. The application was adjourned sine die with direction to return the matter to court once the grievance filed by Mr. Pilat concerning his termination from Ipsco was determined by an arbitrator. Further, McIntyre J. was desirous of Mr. Pilat fully complying with the Notice to Disclose served on Mr. Pilat by Ms. Lilley in August, 2002, before making determination of the matter. McIntyre J. did, however, indicate that any support variation would be effective on September 1, 2002, or such date as the presiding judge may determine. [7] The arbitration decision was handed down September 30, 2002. The arbitrator, Mr. Semenchuk, upheld the termination of Mr. Pilat by his employer, Ipsco. After the arbitration decision was rendered this matter should have been returned to court but Mr. Pilat had not as yet completed his response to the Notice to Disclose. In fact, Mr. Pilat did not provide his Reply to the Notice to Disclose until August 11, 2003. [8] Upon receiving and reviewing Mr. Pilat’s Reply, Ms. Lilley was of the view that Mr. Pilat was required to provide additional financial disclosure. Mr. Pilat filed Supplemental Reply on September 3, 2003, but, again, it was not satisfactory. Ms. Lilley then brought motion to force Mr. Pilat to provide additional financial disclosure. [9] Ms. Lilley’s application for further disclosure was before me on September 10, 2003. made an order allowing Ms. Lilley to cross-examine Mr. Pilat on the affidavits and financial statements Mr. Pilat had filed in this matter and further order requiring Mr. Pilat to produce certain documents. Mr. Pilat was cross-examined by Ms. Lilley on October 15, 2003. During the examination Mr. Pilat gave numerous undertakings, most of which have been satisfied. In any event, the matter was brought back before me with the request that now make determination in this matter, based on all of the evidence filed. [10] Ms. Lilley and Mr. Pilat were married on October 20, 1990, and separated on January 28, 1996. The parties were divorced on June 7, 2000. The one child of their marriage, Stephanie, has been in the primary care of Ms. Lilley since the parties' separation. [11] Mr. Pilat is currently 38 years old. He has grade 12 education. Mr. Pilat commenced employment with Ipsco on February 1, 1993, where he worked until his employment was terminated in June, 2001. In his last full year with Ipsco, being the 2000 taxation year, Mr. Pilat’s gross annual income was the sum of $52,377.00. [12] In 1995, Mr. Pilat started business known as Great Plains Outfitters Ltd. This business offers hunting and fishing packages and operates on seasonal basis, that is, for approximately three months each fall. Although initially Mr. Pilat was the sole owner of Great Plains Outfitters, in February, 1999, Mr. Pilat sold two-thirds of his business to two other partners. Mr. Pilat remains one-third owner. [13] Mr. Pilat’s employment with Ipsco was terminated as result of an unexplained absence from work after Mr. Pilat received suspension for insubordination. Since his termination Mr. Pilat has not obtained full-time employment with another employer. Mr. Pilat has, however, continued to work seasonally as guide for Great Plains Outfitters and has received employment insurance benefits to supplement his income in the 2001, 2002 and 2003 taxation years. [14] review of Mr. Pilat’s tax returns discloses the following: Year Gross Annual Income 2001 Ipsco employment 16,726.00 EI 10,490.00 2002 Employment Income 16,800.00 Employment Insurance 2,478.00 Other Income 1,903.00 2003 Employment Income 10,000.00 Employment Insurance 5,782.00 [15] During the examination of Mr. Pilat held October 15, 2003, Mr. Pilat was aggressively questioned regarding his attempts to find full-time employment. Upon reviewing the transcript of the examination it is clear that Mr. Pilat has not vigorously pursued employment opportunities since his termination with Ipsco. During the year following his termination, Mr. Pilat only applied for positions with two companies, namely Elite Security and Degelman Industries. In addition, he had "discussions" with unions. Mr. Pilat did obtain temporary work with Elite Security, however, he was never hired full time. [16] Mr. Pilat's plan for the future, as stated in his examination, is to return to school to upgrade his highschool marks so that he can proceed into the College of Engineering. He stated that he intended to return to school in February 2004. have no evidence before me as to whether Mr. Pilat has in fact returned to school even though requested that Mr. Pilat produce confirmation of his school attendance. [17] Based on all the evidence it appears that Mr. Pilat intends to continue with his employment/ownership of Great Plains Outfitters and to only work three months of the year. Mr. Pilat's estimate of income, should he only work for Great Plains Outfitters, is that he would earn the gross annual sum of $21,000.00. Mr. Pilat argues that his income should be determined to be the sum of $21,000.00 and that he should pay child support for Stephanie based on the aforesaid income. [18] Ms. Lilley is employed as verification income security worker by the Department of Community Resources and Employment. The income information provided by Ms. Lilley shows gross annual income from employment in the sum of $37,203.00 as well as some additional rental income in the sum of $2,328.00. Ms. Lilley pays union dues in the sum of $504.00 per year which must be deducted from her income. Ms. Lilley's total gross income is, thus, the approximate sum of $39,000.00. The information respecting Ms. Lilley's income was obtained from review of the last sworn financial statement filed by Ms. Lilley which statement was sworn September 8, 2003. [19] As set out previously, Mr. Pilat argues that his child support obligation for Stephanie should be based on gross annual income in the sum of $21,000.00. Ms. Lilley takes the position that should impute income to Mr. Pilat in the range of $50,000.00 to $70,000.00 per year and base his child support obligation on the imputed income. [20] Section 19(1)(a) of the Guidelines allows court to impute income to payor upon conclusion that the payor is intentionally underemployed or unemployed. Based on the evidence before me and, more specifically, Mr. Pilat's employment history and the employment opportunities available, Mr. Pilat is underemployed and it is appropriate to impute income to him. [21] It appears that Mr. Pilat has made the decision to work only three months of each year. Although he made some attempt to locate full-time employment after his termination from Ipsco, he did not aggressively pursue employment and, within one year of his termination, appears to have "given up" on finding job. Mr. Pilat is not without qualifications and expertise and could, believe, find employment paying reasonable salary should he choose to do so. At minimum, Mr. Pilat could work minimum wage job for the nine months he is not working as hunting guide. [22] On all of the evidence I find it is Mr. Pilat\'s choice to work a minimum amount each year and, if he should return to school, it will be his choice to attend school and severely limit his earnings for a significant period of time. It has been said in number of cases that individuals who are subject to support obligations are entitled to make decisions in relation to their careers as long as the decisions are reasonable at the time having regard to all the circumstances. Those circumstances include the age, education, experience, skills, historical earning capacity and health of the payor; the standard of living experienced during marriage; the availability of work; the payor's freedom to relocate; the reasonableness of the career aspirations and the motives behind them, as well as any other obligations of the payor. Mr. Pilat\'s decision to work only three months of the year and/or return to school is not a reasonable decision when he has a continuing obligation to provide support for his child, Stephanie. [23] Having determined that Mr. Pilat is underemployed, must determine the amount of income to be imputed to the respondent. Although Ms. Lilley argues that should impute income to Mr. Pilat in the range of $50,000.00 to $70,000.00 per year, it is clear on the evidence that Mr. Pilat's top earnings from his employment with Ipsco were the sum of $52,000.00. Further, it has been held that court should not attribute income to payor based on former employment that is no longer available or practicable Magee v. Magee (1997), 1997 CanLII 11187 (SK QB), 159 Sask. R. 223 (Sask. Q.B.); Phillips v. Phillips (1995), 1995 ABCA 232 (CanLII), 14 R.F.L. 4th 113 (Alta. C.A.). [24] Mr. Pilat's former employment at Ipsco is no longer available but have no doubt that should Mr. Pilat choose to do so he could obtain employment with reasonable income during the nine months of the year he is currently not working. Accepting Mr. Pilat's own position that he will be able to earn the approximate sum of $21,000.00 per year from his employment/ownership with Great Plains Outfitters, it is my view that he should be able to find employment that would provide additional income of at least $19,000.00 per year. Mr. Pilat\'s income is, for the purpose of this application, imputed to be the sum of $40,000.00. Based on this income Mr. Pilat must pay the net sum of $328.00 per month as and for the support of Stephanie. [25] Ms. Lilley has submitted evidence respecting extracurricular activities and has requested an order for sharing of the expenses relating to those activities in proportion to the income of the parties. As set out previously, Ms. Lilley's income from her employment and rental income is the approximate sum of $39,000.00. Thus, any sharing of s. 7 special expenses should be based on Mr. Pilat\'s imputed income of $40,000.00 and Ms. Lilley\'s income of $39,000.00. [26] Stephanie is heavily involved in the Queen City Kinsman Gymnastics Club. According to the evidence before me Stephanie trains for six hours per week with the cost of her program being the annual sum of $1,416.00 and the further sum of $230.00 for commitment fees. Stephanie also attends summer camp training programs. have determined that the total annual expense that should be shared by Mr. Pilat and Ms. Lilley for Stephanie's gymnastics is the sum of $2,000.00. Utilizing the ChildView, Version 2004.2.0 program, Mr. Pilat must pay the sum of $84.00 per month as his contribution towards Stephanie's gymnastics. [27] The remaining two questions to be answered are the questions of retroactivity and costs. [28] As regards Mr. Pilat\'s request for a retroactive variation, I have determined that the same is warranted. Mr. Pilat commenced his application for variation in June, 2002, and McIntyre J. was clearly of the view that any variation of support should be retroactive to September 1, 2002. In light of the fact that Mr. Pilat\'s previous support obligation was tax deductible/tax inclusive, Ms. Lilley may in fact benefit from a retroactive variation as the child support she will receive pursuant to my order will be payable on a net of tax basis. [29] As regards the issues of costs, Rule 608(2) provides that successful party will be entitled to costs of family law proceeding unless, pursuant to Rule 608(3), the successful party has behaved unreasonably or has acted in bad faith during family law proceeding. The difficulty in the matter before me is determining whether or not Mr. Pilat has, indeed, been successful on this motion. Although Mr. Pilat's support obligation decreases from the monthly sum of $600.00 to the monthly sum of $412.00, his previous payment was tax deductible while his ongoing payment will be net of tax. It is very likely that Mr. Pilat’s financial position has not changed as result of my order for child support. Further, have grave concerns respecting the substantial delays in this proceeding, which delays were primarily the result of Mr. Pilat's unwillingness to provide adequate financial disclosure. [30] Ms. Lilley has requested that order costs as against Mr. Pilat for the additional legal expenses associated with having to submit motions to the court in order to force Mr. Pilat to disclose financial information. am willing to grant her some costs as it is clear that the discovery motion which heard in this matter would not have been necessary had Mr. Pilat provided appropriate financial disclosure. Costs are awarded to Ms. Lilley in the sum of $750.00 payable forthwith. (1) Mr. Pilat, having income imputed to him in the sum of $40,000.00, shall pay child support to Ms. Lilley, pursuant to s. 3(1)(a) of the Guidelines in the amount of $328.00 per month commencing September 1, 2002, and continuing on the first day of each and every month thereafter. (2) Ms. Lilley has gross annual income in the sum of $39,000.00. Based upon extraordinary extracurricular expenses in the annual sum of $2,000.00, Mr. Pilat will pay his proportionate share in the sum of $84.00 per month commencing September 1, 2002, and continuing on the first day of each and every month thereafter. (3) Each party shall provide to the other, on or before June of each year, copy of their income tax return as filed with Canada Customs and Revenue Agency. (4) Ms. Lilley shall have costs in this matter which are hereby set in the sum of $750.00 payable by Mr. Pilat forthwith.

FIAT: In 1996, the respondent was ordered to pay $600 per month as child support for his daughter. He now applies to reduce his support obligation and rescind the arrears which have accumulated. HELD: 1) In 1999, the respondent sold his ownership interest in a business and retained a one-third interest. In 2001, he was terminated from his full-time employment as a result of an unexplained absence from work after he received a suspension for insubordination. Since his termination, he has not obtained full-time employment. He has continued to work seasonally 3 months a year and earn the gross amount of $21,000. The Court found that it is the respondent's choice to work a minimum amount each year. It has been said that individuals, who are subject to support obligations, are entitled to make decisions in relation to their careers as long as the decisions are reasonable at the time having regard to the circumstances. The respondent's decision to work only three months a year and to possibly return to school is not reasonable. 2) For the purposes of this application, the respondent's income was imputed to be $40,000 and he was ordered to pay $328 per month as support for his daughter. 3) The sharing of the s. 7 special expenses should be based on the respondent's imputed income. 4) A retroactive variation of child support is warranted. The respondent commenced his application for variation in June 2002 and the chambers judge was of the view that any variation of support should be retroactive to September 2002. In light of the fact the respondent's previous support obligation was tax deductible/tax inclusive, the petitioner may in fact benefit from a retroactive variation as the child support she will receive, pursuant to this order, will be payable on a net of tax basis. 5) Rule 608(2) provides that a successful party will be entitled to costs of a family law proceeding unless, pursuant to Rule 608(3), the successful party has behaved unreasonably or has acted in bad faith. The difficulty in the matter before me is determining whether or not the respondent has been successful. Although his support obligation decreases, his previous payment was tax deductible while his ongoing payment will be net of tax. It is very likely that the respondent's financial position has not changed as a result of the order. The Court also had grave concerns respecting the substantial delays in the proceedings caused by the respondent's unwillingness to provide financial disclosure. Costs were awarded to the petitioner in the sum of $750, as the discovery motion would not have been necessary had the respondent provided appropriate financial disclosure.

3_2004skqb374.txt

C.A.C. No. 104578 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Pugsley, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY Respondents James C. Martin and Christopher Bundy for the Appellant Warren K. Zimmer for the Respondent, Patriquen and Kevin Burke, Q.C. for the Respondent, Nagy Appeal Heard: October 5, 1994 Judgment Delivered: December 20, 1994 THE COURT: The appeal is allowed and a new trial is ordered as per reasons for judgment of Roscoe, J.A.; Chipman, J.A. concurring and Pugsley, J.A. dissenting. ROSCOE, J.A.: The respondents were charged with possession for the purposes of trafficking and cultivation of marijuana contrary to Sections 4(2) and 6(2) of the Narcotic Control Act. At the commencement of their trial in Supreme Court, after the jury selection, voir dire was held to determine the admissibility of evidence obtained by the police as result of seizure of marijuana plants. The respondents alleged that their Charter rights under s. 8, to be secure from unreasonable search and seizure, had been violated. Constable Furey, of the R.C.M.P. Bridgewater detachment, was the only witness to testify on the voir dire. On July 12, 1992, he received telephone call from casual acquaintance who informed him that marijuana plants were growing on piece of property at Lapland, Lunenburg County. Constable Furey and the informant drove to the property, which was accessed by leaving the paved highway, travelling few miles on woods road, then parking the vehicle and walking short distance on secondary woods road to clearing. At the clearing Constable Furey observed approximately 100 marijuana plants in various stages of growth, most of which were staked and surrounded by chicken wire. On July 31,1992, Constable Furey returned to the site with two other policemen and took photographs of the plants. It was on this visit that they first observed beaten path through the woods which led to residence approximately 500 yards from the crop. On August 20, 1992, the informant advised Constable Furey that two unknown people were in the area of the residence. The next day Constable Furey and another policeman attended at the site, hid in the woods and conducted surveillance. After an hour or so, the respondents arrived in truck carrying several five gallon jugs of water and commenced watering the marijuana plants. They were arrested and the plants were seized. Later in the day the police obtained search warrants to search the house. No evidence relevant to this case was seized from the house. Constable Furey indicated that prior to August 21st he did not know who owned the property where the plants were growing nor who occupied the house. Crown counsel at the trial agreed that the land and residence were owned by Louis Charette, and that the property was "occupied and possessed" by the respondents. The trial judge found that the police did not have reasonable grounds for their belief that the property searched contained narcotics, that they only had mere suspicion. He stated: “Therefore, there was no lawful entry and the warrant obtained after the three entries but before the search of the residence was invalid. The warrantless search was unreasonable. Clearly, s. of the Charter was infringed." On the question of whether the evidence should be excluded pursuant to s. 24(2) of the Charter the trial judge considered the three part test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 and found: (1) that the admission of the evidence would not render the trial unfair; (2) that the police were not acting in good faith because they ought to have known that warrantless searches are presumed to be unreasonable, therefore the breach was serious, and; (3) that the administration of justice could be brought into disrepute if the evidence were admitted. In concluding that the evidence was not admissible, he said: “. The courts cannot condone practice of deliberate, unlawful conduct which may intrude on individual privacy." The respondents were acquitted when the Crown offered no other evidence. The issues raised by the Crown\'s appeal of the acquittal are: (1) Whether the learned trial judge erred by finding that the respondents' rights under s. of the Charter had been violated. (2) Whether the learned trial judge erred in excluding the evidence obtained as result of the search under s. 24 of the Charter. 1. Was there breach of s. of the Charter? Section provides: "Everyone has the right to be secure against unreasonable search or seizure." What is protected by s. is person's reasonable expectation of privacy (Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] S.C.R. 145). The question in this case is whether there is reasonable expectation of privacy in secluded plot of land surrounded by woods in rural area. It is not necessary for person to have proprietary interest in the place searched in order to establish rights pursuant to s. 8. The respondents do need to establish however that they had reasonable expectation of privacy in the place searched before s. protection can be found to have been violated. In Hunter v. Southam, Dickson, J. as he then was, adopted the reasoning of the United States Supreme Court in Katz v. United States (1967), 389 U.S. 347 when it interpreted the Fourth Amendment of the United States Constitution as providing protection "of people, not places". The issue in Katz was whether police use of an electronic listening device placed on the outside of phone booth contravened the Fourth Amendment. Stewart, J. for the majority said: "Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was "constitutionally protected area." The Government has maintained with equal vigor that it was not. But this effort to decide whether or not given "area", viewed in the abstract is "constitutionally protected" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protection. ...[citations omitted]... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Harlan J. in concurring opinion stated: "As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to "place". My understanding of the rule that has emerged from prior decisions is that there is twofold requirement, first that person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable". Thus man's home is, for most purposes, place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable." In Hunter v. Southam, after considering Katz, Dickson, J. accepted the reasonable expectation of privacy test as appropriate “for construing the protections in s. 8" and said that the assessment in particular case must be whether: “. the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement." (p. 159) Katz has also been approved in several other Supreme Court of Canada decisions, including most recently R. v. Plant, 1993 CanLII 70 (SCC), [1993] S.C.R. 281 where Sopinka for the majority said at page 291: “The purpose of s. is to protect against intrusion of the state on an individual's privacy. The limits on such state action are determined by balancing the right of citizens to have respected reasonable expectation of privacy as against the state interest in law enforcement. See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145, at pp. 159‑60. Section protects people and not property. It is, therefore, unnecessary to establish proprietary interest in the thing seized. See Hunter, supra, at p. 158; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417, per La Forest J., at pp. 426‑27; Katz v. United States, 389 U.S. 347 (1967). In this respect, must disagree with the Court of Appeal which relied on the absence of proprietary interest on the part of the appellant in the computer information. In balancing the reasonable expectation of privacy of the individual with the interests of the state in law enforcement, this Court has determined that electronic taping of private communication by state authorities violates the personal sphere protected by s. 8: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30. Similarly, such investigative practices as videotaping of events in private hotel room (R. v. Wong, 1990 CanLII 56 (SCC), [1990] S.C.R. 36) and seizure by state agents of blood sample taken by medical personnel for medical purposes (Dyment, supra) have been found to run afoul of the s. right against unreasonable search and seizure in that the dignity, integrity and autonomy of the individual are directly compromised. While this Court has considered the possibility of violations of s. in relation to informational privacy (Dyment, supra, at p. 429), we have not previously considered whether state inspection of computer records implicates s. of the Charter." In Plant, the Court adopted an American approach to the privacy expectations in information kept by third parties and found that there is no reasonable expectation of privacy in computer records of electricity consumption, since the records did not contain personal and confidential information. One of the factors taken into account in coming to that conclusion was that the records of energy consumption were "subject to inspection by the public at large." In this case, Crown counsel admitted at the trial that the respondents "occupied and possessed" the land in question. On the appeal, counsel for the respondents contend that this admission restricts the Crown's right to argue that the respondents had standing to rely on s. 8. However, as indicated in Plant, the propriety right alone, is not determinative of the privacy interest. The right of people to privacy on open privately‑owned land has not yet been considered by the Supreme Court of Canada, but similar question regarding cultivation of marijuana on Crown land was determined in R. v. Boersma, unreported, June 17, 1994 (Q.L., S.C.J. No. 63). In brief decision, lacobucci, J. for the Court said: “This appeal comes to us as of right. The appellants were charged with the possession and cultivation of marihuana on what was Crown land. The plants were being cultivated in plain sight and were observed by police officers walking by on dirt road. In these circumstances, we agree with Lambert J.A. of the British Columbia Court of Appeal that the appellants had no reasonable expectation of privacy with respect to the area on which marihuana was being cultivated and were thus not entitled to the protection of s. of the Canadian Charter of Rights and Freedoms. Accordingly the appeal is dismissed." The trial judge in Boersma held that the accused had reasonable expectation of privacy in the remote land and that the warrantless search violated his s. Charter rights. Lambert, J.A. for the British Columbia Court of Appeal, (unreported, November 10, 1993, Q.L., B.C.J. No. 2748) said at paragraph 9: “The key question in this appeal, as it was the key question before the trial judge, relates to whether the two accused had established "reasonable expectation of privacy" protected by s.8 of the Canadian Charter of Rights and Freedoms with respect to the area in which marijuana was being cultivated. That corresponds to the second issue raised by the Crown. In my opinion, this case is quite different on its facts than Kokesch. There private house was involved. In this case the activity was being carried out on Crown land that is accessible to everyone. In my opinion, there is quite different expectation of privacy in private house and for activities being carried on in private house than there is for activities being carried out in the open air and particularly in the open air on Crown land. An argument advanced with some force on behalf of the two accused in this Court was that the police themselves were trespassers on the interest in the land on the road side of the fence as they passed through and around the chain and as they walked along the road. In my opinion, the conduct of the police in this respect has no relevance to the question of the reasonable expectation of privacy of the two accused on Crown land. They have, in my opinion, no reasonable expectation of privacy with respect to this kind of activity, and by that mean gardening activity on Crown land, when the privacy relates to whether they were susceptible to being seen by other people. If they do not have right of privacy or expectation of privacy with respect to being seen people who are also on the Crown land they do not acquire an expectation of privacy when they are on the Crown land in relation to people viewing them from land subject to private interest adjacent to the Crown land. For those reasons consider that the two accused in this case had no reasonable expectation of privacy in relation to the gardening type of activity and in relation to being seen engaging in that gardening type activity at the time when they were doing so. In the words used in the Supreme Court of Canada in Plant v. The Queen, in which judgment was rendered on 30 September 1993, it is my opinion that in this case there was no expectation that the dignity, integrity, and autonomy of the two accused would be free from being compromised in the circumstances have described." In my view, the expectation of privacy on privately held woodland is not substantially different from that of Crown land, As with the computer records in Plant, woodlands in rural areas are in some respects "subject to inspection by members of the public at large". See for example the provisions of the Angling Act, R.S.N.S. 1989, c.14 which allow any resident to cross on foot any uncultivated land in order to access lake, stream or river for the purpose of fishing. "Uncultivated" is defined as land in its natural wild state and includes land that has been cleared. In Oliver v. United States, 104 S.Ct.1735 (1984), the United States Supreme Court confirmed that the Fourth Amendment protection does not extend to "open fields". Justice Powell, speaking for the majority, relied on Katz, supra, for the proposition that: "... The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as 'reasonable'."..." (p. 1741) After referring to the fact that certain enclaves, most significantly the home, are free from interference Justice Powell remarked: "In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as practical matter these lands usually are accessible to the public and the police in ways that home, an office, or commercial structure would not be. It is not generally true that fences or "No Trespassing" signs effectively bar the public from viewing open fields in rural areas. And [the accused] concede that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable." After explaining the distinction between open fields and the "curtilage", or the land immediately surrounding and associated with the home, Justice Powell asserts that the term "open fields" includes any unoccupied or undeveloped area outside the curtilage and has been extended to include thickly wooded areas. In the conclusion of his opinion he states: "Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment." Oliver v. United States was relied on by VanCamp, J. in R. v. Marchese, unreported, May 25, 1989, Q.L.; O.J. No. 796 (Ont.H.C.), case also involving search for marijuana in an open field. I adopt the reasoning of Justice Powell expressed in Oliver in concluding that the respondents did not have a reasonable expectation of privacy in the clearing in the woods where the marijuana plants were growing and therefore there was no breach of their s. 8 Charter rights It is not necessary to determine if the searches were unreasonable and if so, whether the evidence should be excluded or not pursuant to s. 24(2) of the Charter. The appeal should therefore be allowed and a new trial ordered. There is however another point that requires comment. In this case the respondents submit that the admission of Crown counsel at the commencement of the voir dire went beyond that referred to above and that there was also an admission that there was prima facie breach of s. because there were warrantless searches. It is submitted that "in conceding prima facie breach of Section 8, the Crown was also conceding that the respondents had reasonable expectation of privacy with respect to their occupation and possession of the property." do not agree that the Crown conceded there was reasonable expectation of privacy; those words were not used in the passage where the discussion of admissions took place. It is difficult to discern exactly what concessions were made because of Crown counsel's apparent confusion about what he was being asked to admit and the frequent interruption of his submissions regarding the procedure he intended to follow, both by defence counsel and the trial judge. In the event however that defence counsel had the understanding that the expectation of privacy was conceded and that to decide the appeal on that point would be unfair to the respondents, propose to address the other issues argued on the appeal. 2. Was the search reasonable? warrantless search is prima facie unreasonable. In order to prove that it was reasonable the Crown must establish, among other things, that it was authorized by law. (See R. v. Collins, supra.) The Supreme Court has decided in R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.R. 223 that "... warrantless searches pursuant to s. 10 NCA must be limited to situations in which exigent circumstances render obtaining warrant impracticable. Warrantless searches conducted under any other circumstances will be considered unreasonable and will necessarily violate s. of the Charter. To the extent that s. 10 NCA authorizes search in the absence of the limiting circumstances, it is invalid." (p. 241) Since there were no exigent circumstances in this case it must be concluded that the search was not reasonable, assuming at this point that there was reasonable expectation of privacy. 3. Should the evidence be excluded pursuant to s.24(2) of the Charter? When Court of Appeal reviews decision of trial judge made pursuant to s. 24(2) of the Charter, it should not substitute its view absent any unreasonable finding of fact, or error in law or principle. (See R. v. Grant, supra, p. 256.) In this case, the trial judge commenced the s. 24(2) analysis by saying: "Evidence obtained as result of warrantless search is tainted. It usually is not admissible. But it may be admissible if its admission would not bring the administration of justice into disrepute." With respect, the statement that "the evidence ... is usually not admissible" is an oversimplification and is inaccurate. An analysis of the twenty‑one cases decided by the Supreme Court of Canada since 1982, dealing with warrantless searches that were found to have breached s. of the Charter reveals that in eight of those cases, the evidence was excluded pursuant to s. 24(2). In the other thirteen cases, the evidence was admitted. The cases where the evidence was excluded are: R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265; R. v. Pohoretsky, [1987] R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] S.C.R. 755; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.R. R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615; R. v. Dersch, 1993 CanLII 32 (SCC), [1993] S.C.R. 768; and R. v. Borden, unreported, September 30, 1994, Q.L. S.C.J. No. 82. The cases where the Supreme Court determined that the evidence was admissible despite the s. breach are: R. v. Seiben, 1987 CanLII 85 (SCC), [1987] S.C.R. 295; R. v. Hamill, 1987 CanLII 86 (SCC), [1987] S.C.R. 301; R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] S.C.R. 548; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30; R. v. Thompson, 1990 CanLII 43 (SCC), [1990] S.C.R. 1111; R. v. Wong, 1990 CanLII 56 (SCC), [1990] S.C.R. 36; R. v. Tessier, 1991 CanLII 21 (SCC), [1991] S.C.R. 687; R. v. Wise, 1992 CanLII 125 (SCC), [1992] S.C.R. 527; R. v. Erickson, 1993 CanLII 103 (SCC), [1993] S.C.R. 649; R. v. Plant, supra; R. v. Grant, supra; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] S.C.R. 263; and R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] S.C.R. 20. In addition to the inaccurate statement, the trial judge appears to have placed the onus on the Crown to prove that the evidence should be admitted, which is an error in law. Combined with the statement that the evidence is "usually not admissible", it amounts to saying that prima facie, the evidence should be excluded. However, the evidence is prima facie admissible. (See R. v. Brown (1987), 1987 CanLII 136 (NS CA), 76 N.S.R. (2d) 64 (N.S.S.C.A.D.)) It is the party applying to exclude the evidence who must establish on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. (Collins v. R., supra, at p. 280.) Because of these two errors, it is necessary for this Court to reconsider the s. 24(2) application to exclude the evidence. The three part test developed in Collins requires consideration of the following matters: (1) Does the admission of the evidence effect the fairness of the trial? (2) Is the Charter violation of trivial or serious nature? (3) Whether the justice system reputation will be better served by the inclusion or exclusion of the evidence? The admission of the evidence in this case would not effect the fairness of the trial. As indicated in Collins at page 284: "... Real evidence that was obtained in manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair." The second part of the test requires consideration of whether the police officers acted in good faith, whether it was technical or inadvertent breach, whether the breach was motivated by urgency to prevent the loss of the evidence and whether the evidence could have been obtained without Charter violation. In this case, the trial judge found that the officers acted in bad faith because they knew or ought to have known the law that warrantless searches are presumed to be unreasonable". When questioned about the reason for not obtaining warrant, Constable Furey testified that he felt there was no reason to obtain warrant "given the circumstances the information provided by the source and attending the property to confirm the information provided". In answering questions by the trial judge as to why he did not apply for warrant, he stated that in the past "searches have been conducted in similar circumstances of property excluding structures whether it be barns or homes and we've accessed land before to search land without warrant." The officer was not questioned about what statutory authority or which case he was relying on as authority for conducting warrantless search of open land as were the officers in Grant, Wiley and Plant, supra. Section 10 of the Narcotic Control Act states: "A peace officer may, at any time, without warrant enter and search any place other than dwelling‑house, and under the authority of warrant issued under section 12, enter and search any dwelling‑house in which the peace officer believes on reasonable grounds there is narcotic by means of in respect of which an offence under this Act has been committed." The officers in Grant, Wiley and Plant, supra, were held by the Supreme Court of Canada to have been acting in good faith because they relied on the apparent statutory authority in s. 10 of the Narcotic Control Act and they had reasonable and probable grounds to believe that there were narcotics at the place searched. It was not until the decisions in Grant, Wiley and Plant that warrantless searches under s. 10 of the Narcotic Control Act were declared unconstitutional absent exigent circumstances. Before those cases in 1993, the Supreme Court of Canada had not addressed that question specifically in case where there were reasonable and probable grounds. In Kokesch, for example the warrantless perimeter search was unreasonable because the officers did not have reasonable and probable grounds required for warrantless search pursuant to s.10 of the Act. In Wiley, supra, the trial judge had concluded that the police had acted in bad faith because they did not undertake "cautious and careful interpretation of previous court decisions" In the Supreme Court however, Sopinka, J. found: (p.278) "In this case, the Court of Appeal overruled the trial judge who excluded the evidence. It did so principally on the basis that the trial judge erred in respect of his determination that the police did not act in good faith. The Court of Appeal was of the view that the trial judge considered that the judgment of this Court "turned back the clock" in respect of investigations which pre‑dated that judgment. agree that this was an error on the part of the trial judge and that, for this reason, it was appropriate for the Court of Appeal to interfere with the trial judgment. Moreover, agree with McEachern C.J.B.C. that the police acted in good faith relying on the judgment of the Court of Appeal in Kokesch, supra, and s. 10 NCA.” In this case, one of the factors that led the trial judge to find bad faith was that he found that the police had only mere suspicion, not reasonable and probable grounds to believe that the crop existed. That is an assessment based on the reliability or credibility of the informant and the information he provided. In that respect, the officer said he had no reason to disbelieve the informant, person whom he had known for three years, although he had never acted as an informer in the past. In Plant, Sopinka, J. assessed the reliability of the "tip" as follows: (p.297) ". The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant's house in fairly specific geographic region, albeit without specifying an exact street address. It is impossible to determine whether the source was credible except by reference to the fact that the information was subsequently corroborated by police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant. conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant." In this case, the information received was "compelling" as it identified specific location in remote area and the informant was prepared to take the officer there to point out the exact site. At that point there was no other method of determining whether it was reliable other than by police reconnaissance. It was not feasible for example to check electricity usage as in Plant, since this crop was growing out‑of‑doors. In this case, it appears from the evidence that the crop could not be seen from the woods road, so it was necessary to enter upon the lands to corroborate the information. Having done that, and observed the crop firsthand, in minimally intrusive fashion, the police then had reasonable and probable grounds and could have obtained warrant. They did not because they did not understand that it was required. In my view, there was no evidence of bad faith in this case, and therefore, if there had been breach of s. 8, it should not have been classified as serious or flagrant. With respect to the third part of the test under s. 24(2), the conclusion of Sopinka, J. in Plant seems to be particularly applicable to the facts of this case: (p. 301) "With respect to the third factor to be considered, have concluded that the administration of justice would not be brought into disrepute should the evidence be admitted. The guilt of the appellant with respect to cultivation of marihuana contrary to s. 6(1) NCA is clearly established on the real evidence. Further, as previously indicated, the offence is serious one punishable by imprisonment for maximum of seven years. Exclusion of the evidence would result in the absence of evidence by which the appellant could be convicted. In these circumstances, the seriousness of the offence militates in favour of the admission of the evidence: see Collins, supra, per Lamer J. (as he then was), at p. 286. agree with the Court of Appeal that, on balance, exclusion of the evidence would have greater negative effect on the repute of justice than would its admission." In this case, it is my opinion that, having regard to all the circumstances, the respondents did not satisfy the onus of establishing that the admission of the evidence would bring the administration of justice into disrepute. Summary: To summarize, in conclusion, in my view, there was no breach of s. 8 of the Charter because the respondents did not have a reasonable expectation of privacy in the field where the marijuana crop was growing. In the event however that the respondents were under the misunderstanding that the issue of privacy interests had been conceded at the trial, the issue of whether the evidence should have been excluded pursuant to s. 24(2) has been addressed as if there had been breach of s. and unreasonable searches. The respondents did not meet the burden of proving that the administration of justice would be brought into disrepute by the admission of the evidence, so it should have been admitted. Accordingly, the appeal should be allowed and a new trial ordered. Roscoe, J.A. Concurred in: Chipman, J.A. PUGSLEY, J.A. (Dissenting) have had the benefit of reading the reasons for judgment prepared by Justice Roscoe. respectfully disagree that the respondents did not have reasonable expectation of privacy in the clearing where the marijuana plants grew. In my opinion, there was breach of the respondents' rights under s. of the Charter. I, as well, respectfully disagree with Justice Roscoe's conclusion that the evidence contained in violation of the s. right, should not be excluded under s. 24(2) of the Charter. The issues in this case, arise as consequence of members of the R.C.M.P., without warrant, entering upon land, known to be privately held, in rural forest setting, in search of evidence of crime. In location that could not be seen from any vantage point accessible to the public, the police discovered in excess of 100 marijuana plants. The discovery is apparently the only evidence to incriminate the respondents. The agreement reached by counsel for the Crown at trial, (on appeal the Crown was represented by counsel from the Department of Justice, Halifax) and for the respondents, are of importance when considering the issues: (1) The property, although owned by one Louis Carrette, was occupied and possessed at all relevant times by the respondents. Unfortunately the boundaries of the "property" were never specified and this failure leads to some difficulty in attempting to define the area over which the respondents had "reasonable expectation of privacy". It is clear from the transcript, that the property includes residence, clearing in which the marijuana was growing, and well travelled path of 500 yards in between (hereinafter referred to as the "Property". Constable Furey, testified that on July 31 he took photographs of the residence, the clearing, two or three outbuildings adjacent to the residence, as well as lake behind the residence. It is reasonable to infer all were included within the confines of the Property; (2) There were three warrantless searches of the Property by the R.C.M.P. on July 12, 31, and August 21, 1992. The trial evidence given by Constable Furey, the only witness on the voir dire discloses: Initial search on the morning of July 12, 1992 was prompted by telephone call to Constable Furey's home. He had known the caller in "casual social manner" for approximately three years. They had met occasionally over coffee. The caller had never acted as paid, or unpaid informant for the R.C.M.P. The caller stated that there was growth of what he "felt to be marijuana plants" on particular piece of land. Constable Furey was not advised by the caller of his source of knowledge, nor did Constable Furey inquire respecting the source. The caller took Constable Furey by car on paved road approximately 20 minutes distant from the Town of Bridgewater. Upon leaving the pavement, the vehicle was operated on gravelled or "forest or woods" road for one and one‑half to two miles. They then left the vehicle and walked, for approximately five minutes, on secondary woods road, not accessible by vehicle because of fallen trees and growth, to clearing. The clearing contained in excess of 100 healthy marijuana plants, appropriately staked, wired and attended. The Property is located in Lapland, wooded rural community, and the only industry is that of forestry. On July 31, Constable Furey returned to the Property with two members of the R.C.M.P., Bridgewater Drug Section, so they could have direct knowledge of the growth and take photos. While in concealed position at the end of the treeline, Constable Furey noted that there was vehicle at the residence "as well as children playing going back and forth from the lake very close by to the residence itself.” beaten path extended from the clearing approximately 500 yards to residence and two to three outbuildings. The path appeared to be frequently walked. Another crop site was close to, and visible from, the residence. On August 21, 1992, Constable Furey attended with member of the provincial emergency response team. They were armed, dressed in camouflaged gear, and used two‑way walkie‑talkies. They waited, concealed in separate locations, at the edge of the treeline. After the respondents watered and spoke with the plants, Constable Furey and his associate, on the count of three and with weapons drawn, emerged from their observation posts, and arrested the respondents for violations of the Narcotic Control Act. search warrant was obtained in the afternoon authorizing search by the R.C.M.P. of the residence and outbuildings. There was no evidence to establish the existence of exigent circumstances, rendering it impractical to obtain warrant. Constable Furey testified he did not consider warrant was needed because "in the past, searches have been conducted in similar circumstances of property excluding structures whether it be barns, or homes, and we've accessed land before to search land without warrant." The visits of July 21 and August 21 were motivated primarily on the evidence discovered by Constable Furey on the warrantless search of July 12. While some additional information from the caller was received between July 12 and July 31, and again between July 31 and August 21, no attempt was made to verify the information given. In my opinion, it is reasonable inference from the evidence to conclude that all observations made by Constable Furey and his associates, of the clearing, the residence, the outbuildings, the lake and the pathways connecting them, were made while the R.C.M.P. were located on the Property and that the secondary woods road, only accessible by foot, was located on the Property as well. The evidence further discloses, in my opinion, that Constable Furey knew on the first warrantless search made on July 12, that the Property was, in fact, private property. Section of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. Some of the writers, interested in this section, have found it useful to refer to the case law developed in the United States relating to the Fourth Amendment to the Constitution. It provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Our Supreme Court has determined that the standards under s. only apply where person has reasonable expectation of privacy, following the American analysis that privacy, rather than property, is the interest that should be protected by the laws governing search and seizure. The conclusion have reached, respecting the respondents' reasonable expectation of privacy in the clearing, is inconsistent with that expressed by the majority of the Supreme Court of United States in Oliver v. United States (104 S.C.T 1735 (1984)). It is apparent from Justice Powell's reasons that he was, in part, influenced by the "historical underpinnings" of the open fields doctrine, as well as "the historical and contemporary understanding" of the purposes of the Fourth Amendment (at 1742) (an editor's note makes it clear that the use of the term "open fields" may "include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither "open" or "field" as those terms are used in common speech.) The American approach is to be contrasted with the purposive approach adopted by the Supreme Court of Canada. Justice LaForest in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145 stated at p. 154: The American courts have had the advantage of number of specific prerequisites articulated in the Fourth Amendment to the United States Constitution, as well as history of colonial opposition to certain Crown investigatory practices from which to draw out the nature of the interests protected by that Amendment and the kinds of conduct it proscribes. There is none of this in s. 8. There is no specificity in the section beyond the bare guarantee of freedom from "unreasonable" search and seizure; nor is there any particular historical, political or philosophic contest capable of providing an obvious gloss on the meaning of the guarantee. In some areas of privacy analysis, the Supreme Court of Canada has rejected well developed American standards (R. v. Duarte (1990), 1990 CanLII 150 (SCC), 53 C.C.C. (3d) (S.C.C.)). The editors of Search and Seizure Law in Canada (Hutchinson, Morton and Bury, Carswell 1994, 1‑12) state: The development of the law in the cases noted above, made it clear that the guarantee in s. of the Charter will follow different course than that followed by the American cases. The cases referred to include Duarte. The question in this appeal, to paraphrase the comments of LaForest, J. in R. v. Wong (1991), 1990 CanLII 56 (SCC), C.R. (4th) (S.C.C.) is not whether the respondents, who may have engaged in illegal activity of cultivating and trafficking marijuana, have reasonable expectation of privacy because they carried out their activity in clearing of the forest in Lapland, but the "neutral" question of whether, in our society, persons who are in possession of large property in forested area, have reasonable expectation of privacy with respect to activities that take place on their property within 500 yards of their dwelling. The respondents have argued strenuously that statement at trial by Crown counsel that there "was foray, that prima facie there's breach of s. 8" constituted an acknowledgment that the respondents had reasonable expectation of privacy with respect to their occupation and possession of the Property. Constable Furey was the only witness during the voir dire. The transcript of the trial evidence placed before us also includes copy of counsel's submissions. It is noted that Crown counsel submitted during the course of its argument, that it was "an unnatural interpretation to say that people in the woods have reasonable expectation of privacy." While both counsel for the respondents addressed this issue in their subsequent submissions, neither advanced an argument to the trial judge that the concession made by the Crown of prima facie breach of s. 8, deprived the Crown from arguing that the respondents had reasonable expectation of privacy. This omission lends support to the Crown's submission on appeal that Crown counsel at trial had not conceded that the respondents had reasonable expectation of privacy in the clearing. conclude, therefore, the Crown is not barred from raising this issue on appeal. The critical question, therefore, is whether the respondents had reasonable expectation of privacy in activities carried on by them on the Property. conclude in the circumstances of this case, that they did. If the respondents had located their garden in the curtilage, directly outside the front door of the residence, there would, in my opinion, be no doubt that they would have reasonable expectation of privacy to that area. In the circumstances of this case, where the respondents are admittedly in possession and occupation of large property, their expectation should be no less because the garden is located in clearing some 500 yards from the residence, and connected to it by well travelled path. There is no evidence establishing active occupation of any other properties in the vicinity. There is no evidence to suggest that the Property was used by hikers, hunters or fishermen. There is some evidence that the Property, including the residence and the lake, was used by the respondents and their children in an ordinary domestic manner. number of urban conveniences are not available to those who decide to live in rural setting. Those who make that choice, obviously are prepared to give up the urban advantages to enjoy life free from interference. The comments of Justice Marshall, on behalf of the minority dissenters in Oliver v. United States, supra, are apposite: Privately owned woods and fields that are not exposed to public view regularly are employed in variety of ways that society acknowledges deserve privacy. Many landowners like to take solitary walks on their property, confident that they will not be confronted in their rambles by strangers or policemen. Others conduct agriculture businesses on their property. Some landowners use their secluded spaces to meet lovers, others to gather together with fellow worshippers, still others to engage in the sustained and creative endeavour. Private land is sometimes used as refuge for wild life, where flora and fauna are protected from human intervention of any kind. Justice LaForest echoed this theme in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] S.C.R. 417 at 427 when he stated: Grounded in man's physical and moral autonomy, privacy is essential for the well being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The respondents, being in lawful possession of the Property, would have available civil remedies exercisable against trespassers. In addition, s. 41 of the Code recognizes that certain amount of defensive force is justifiable in dealing with trespassers. (See also s. 42.) Unlike the fact situation in Oliver v. United States, supra, there is no evidence in this case that "no trespassing signs" were posted on the Property. do not consider that omission, in view of the location and lack of accessibility to the Property, affects the respondents' reasonable expectation to privacy. The location of the Property, mitigates against visits from those out for casual stroll in the woods. Justice Roscoe has referred to the decision of both the Supreme Court of Canada and the British Columbia Court of Appeal in R. v. Boersma, (unreported) June 17, 1994, Q.L. S.C.J. 63, November 10, 1993 Q.L. B.C.J. 2748. The key element in these two decisions would appear to be the location of the marijuana plants on Crown land. Lambert, J.A., on behalf of the British Columbia Court of Appeal, stated at p. 5: In this case the activity was being carried out on Crown land that is accessible to everyone." In the present case, it was agreed that the cultivation occurred on Property in possession of the respondent. The evidence discloses that the clearing was located adjacent to woodland path some five minutes by foot from woods road. The facts, in my respectful opinion, are not comparable. conclude the respondents did have reasonable expectation of privacy for activities conducted in the clearing, and as there were no exigent circumstances, that the search was not reasonable. It remains to be considered whether the respondents have established on the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. The evidence sought to be excluded is real evidence. The exclusion of real evidence, in these circumstances, will rarely be considered to affect the fairness of the trial (R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 at 284). It is relevant to consider the seriousness of the Charter violation to assist in assessing the disrepute that the administration of justice would suffer if the impugned evidence were admitted. The Crown justifies the three warrantless searches conducted in this case in its reliance on s. 10 of the Narcotic Control Act: peace officer may, at any time, without warrant enter and search any place other than dwelling‑house, and under the authority of warrant issued under section 12, enter and search any dwelling‑house in which the peace officer believes on reasonable grounds there is narcotic by means of or in respect of which an offence under this Act has been committed. To succeed in this argument, in this case, in my opinion the Crown must establish that: (1) The police had reasonable grounds to believe there was marijuana on the Property; (2) There was no authoritative case law reasonably available to the police in the summer of 1992, establishing that s. 10 was available only in exigent circumstances. In my opinion, the Crown has not satisfied either burden. In support of the police's position, on the first point, is the identification of specific location in remote area and Constables Furey's evidence that: had no reason to disbelieve any of the information he was providing. based my credibility on this particular individual on the proceeding three years where had come to know this individual in casual, social manner. The caller, however, was not known previously reliable informant, and the information was not corroborated by police investigation prior to making the decision to conduct the search. This is not the case of one warrantless search, but rather three separate warrantless searches, the first separated in time by almost six weeks from the third, with no attempt by the police to verify the information by independent investigation, or to determine the source of the caller's information. Constable Furey considered his attendance on the Property, on July 12, as confirmation of the information provided and hence the basis for the further warrantless searches. The comments of Sopinka, J. in Kokesch, 1990 CanLII 55 (SCC), [1990] S.C.R. (at p. 29) are particularly apposite: It should not be forgotten that ex post facto justification searches by their results is precisely what the Hunter standards were designed to prevent. The "totality of circumstances" in my opinion, do not meet the standard of reasonableness required by the section (Wilson, J.A., in R. v. Debot (1990), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 215 (S.C.C.)). With respect to the second issue, the burden of which rests on the Crown, the three warrantless searches took place in the month of July and August, 1992. While it is accurate that the Supreme Court of Canada did not specifically consider the "exigent circumstances" principle until the trilogy of cases (Grant, Wiley, Plant), there was sufficient reference in Kokesch to alert the police to the Court's predisposition. Dickson, C.J.C., was in the minority in his conclusions concerning s. 24(2), but his opinion that the warrantless perimeter search conducted was unlawful, was adopted by the majority (Sopinka at p. 26). In the course of making this determination, Dickson, C.J.C. fully endorsed the "comments of Martin, J.A., on the interpretation of s. 10(1) of the Narcotic Control Act" as expressed on behalf of the Ontario Court of Appeal in R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 12 C.C.C. (3d) 97. In Rao, Martin, J.A., stated at p. 123: In my views, the warrantless search of person's office requires justification in order to meet the constitutional standard of reasonableness secured by s. of the Charter, and statutory provisions authorizing such warrantless searches are subject to challenge under the Charter. The justification for warrantless search may be found in the existence of circumstances which make it impracticable to obtain warrant: see, for example, s. 101(2) of the Code, s. 11(2) of the Official Secrets Act. The individual's reasonable expectation of privacy must, of course, be balanced against the public interests in effective law enforcement. However, where no circumstances exist which make the obtaining of warrant impracticable and when the obtaining of warrant would not impede effective law enforcement, warrantless search of an office of fixed location (except as an incident of lawful arrest cannot be justified and does not meet the constitutional standard of reasonableness prescribed by s. of the Charter. [emphasis added] The Kokesch decision was handed down on September 30, 1990, almost two years before the searches in this case occurred. To expect the R.C.M.P. of Bridgewater, Nova Scotia, in July of 1992, to be familiar with decision of the Supreme Court of Canada delivered in September 1990, on the important issue of limiting the rights of entry and search under s. 10 of the Narcotic Control Act, is not, in my opinion, to impose "burden of instant interpretation of court decisions" on the police (see Sopinka, J. in Kokesch at p. 33). This circumscription of police power in the field of search and seizure should have been known to Constable Furey. In this sense, the police cannot be said to have proceeded in good faith, as that term is "understood in s. 24(2) jurisprudence" (Sopinka, J. in Kokesch at p. 32). conclude that the Crown has not met the two burdens that suggest it is obliged to meet in this case, when it attempts to justify its position under s. 10. conclude the Charter violation to be serious one. The administration of justice could suffer some degree of disrepute from the exclusion of the impugned evidence since we are led to believe that the outcome of the trial will depend on this ruling. If, however, the government "becomes law breaker, it breeds contempt for law" (Brandeis, J. in Olmstead v. U.S. (1928), 277 U.S. 438 at 485). The police, in dealing with casual social acquaintance not previously reliable informant, conducted three warrantless searches without making any attempt to carry out any independent investigation to check the reliability of, or source of the caller's information, or to determine the current limits on their authority. In my opinion, the adminstration of justice would suffer far greater disrepute if the evidence were admitted than if excluded. would uphold the decision of the trial judge that the evidence from the search is inadmissible and accordingly dismiss the appeal. Pugsley, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIAAPPEAL DIVISION on appeal from THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN versus MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY HEARD BEFORE: Mr. Justice Hilroy Nathanson DATE HEARD: April 7, 1994 PLACE HEARD: Bridgewater, Nova Scotia COUNSEL: Michael K. Power, for the Prosecution Warren K. Zimmer and Kevin Burke, for the Defence APPEAL OF ACQUITTAL C.A.C. No. 104578 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN ‑and‑ MICHAEL RONALD PATRIQUEN and BARRY ALEXANDER NAGY Respondents REASONS FOR JUDGMENT BY: ROSCOE, J.A. PUGSLEY, J.A. (Dissenting)

The respondents were charged with possession for the purposes of trafficking and cultivation of marijuana, contrary to s. 4(2) and 6(2) of the Narcotic Control Act. RCMP had investigated a tip that a large crop of marijuana plants was being grown on a private property located in a clearing off a woods road. They did not have a search warrant to enter the property, and arrested the respondents after observing them care for the plants. At trial, the court held their right to be secure from unreasonable search and seizure had been violated, and acquitted them. The Crown appealed the acquittal. Per Roscoe, J.A., Chipman, J.A. concurring, allowing the appeal and ordering a new trial, that there was no s. 8 breach because the respondents did not have a reasonable expectation of privacy in the field where the marijuana crop was growing. The court reviewed case law regarding 'open fields', and 'uncultivated' lands, and adopted the reasoning in Oliver v. United States, 104 S.Ct.1735(1984) in reaching its conclusion. Per Pugsley, J.A., dissenting, dismissing the appeal, that the respondents had a reasonable expectation of privacy in activities carried on by them on their private property. As there were no exigent circumstances, the search was not reasonable and the evidence should be excluded.

6_1994canlii3963.txt

J. 2004 SKQB 516 Q.B.C.N.J. A.D. 2003 No. 26 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and DAREN WAYNE SMITH APPLICANT A.G. McIntyre for Her Majesty the Queen G. Orris, Q.C. for Daren Wayne Smith JUDGMENT ZARZECZNY J. December 16, 2004 INTRODUCTION [1] At approximately 3:00 p.m. on June 22, 2002, Cst. Brent Olberg of the Saskatchewan Customs and Excise Division of the Royal Canadian Mounted Police, accompanied by six other members of the British Columbia RCMP drug squad and Abbottsford City Police, some of whom were uniformed, attended to search the residence of the accused Daren Wayne Smith located at 36387 SamTree Place, Abbottsford, British Columbia (the “Smith residence”). Cst. Olberg had previously applied for and obtained two Saskatchewan search warrants, one issued pursuant to s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, (the “Code Warrant”) and one pursuant to s. 11 of the Controlled Drugs and Substances Act, S.S. 1996, c.19 (the “CDSA Warrant”). These Saskatchewan warrants were “backed” by the endorsement of British Columbia Justice of the Peace. Cst. Olberg, the search leader and designated exhibit handler, knocked on the door of the Smith residence loudly announcing his presence as police officer. Repetitions of these actions did not result in anyone answering the door. Cst. Olberg heard movement inside and after waiting approximately two minutes he and the accompanying officers forced entry to the Smith residence. The accused Smith was in the entrance hallway. [2] Cst. Olberg took hold of Smith, forcibly put him to the ground, handcuffed him and advised him that he had search warrants authorizing the search of his residence. He arrested him and advised him he was under arrest. He gave him copy of both search warrants. [3] Smith was the only occupant of the premises. During the search suitcase containing $750,000.00 Canadian cash and some American cash was found in the shower of the main floor bathroom. Additional items seized included an automobile and certain recreational vehicles found in the yard area of the premises. [4] The search of Smith’s residence, the seizure of the money (and other items) and Smith’s arrest were the culmination of an investigation that had begun many months earlier. The investigation concerned alleged illegal cross-border drug trafficking between the United States and Canada including evidence allegedly implicating the accused, Smith. These investigations were outlined in and the subject matter of two Informations to Obtain the Code and CDSA Warrants. The investigations and the Informations to Obtain the search warrants were the responsibility of and the latter were sworn by Cst. Olberg. [5] Daren Wayne Smith currently stands charged with offences alleged to have occurred between July 1, 2001, and June 22, 2002, as set out in current Indictment before this Court. The charges are summarized as follows: 1) Conspiracy to possess marihuana for the purpose of exporting it contrary to s. 6(2) of the CDSA and s. 465(1)(c) of the Code; 2) Conspiracy to possess marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA and s. 465(1)(c) of the Code; 3) Possession of marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA; 4) Knowingly possessing property or proceeds of property obtained through the commission of an indictable offence contrary to s. 354(1)(a) and s. 355(a) of the Code; 5) Participating in the activities of criminal organization contrary to s. 467.11 of the Code. THE APPLICATION [6] The accused applies by notice of motion to quash the search warrants that were issued authorizing the search of his residence and to exclude any evidence obtained as a result of the search (the “Application”). The Application alleges a violation of the accused’s s. 8 Canadian Charter of Rights and Freedoms Part 1 of the Constitution Act, 1982 being Schedule B to the Canada Act, 1982, (U.K.), 1982, c. 11 (the “Charter”) rights. The exclusion Application relies upon s. 24(2) of the Charter. [7] After the arraignment of the accused and the receipt of his not guilty plea to all outstanding charges counsel agreed that the court hold voir dire to hear and determine the application. At the voir dire evidence was received including the testimony of the only appearing witness, Cst. Olberg. THE POSITION OF THE APPLICANT [8] The applicant accepts that reasonable and probable grounds existed and were advanced by Cst. Olberg in his Informations to Obtain (exhibits P-2 and P-4 respectively) the Code and CDSA Warrants. That point is not in issue in this Application. Rather the applicant challenges the legal validity of each of the two warrants as issued based upon “facial” deficiencies and/or omissions apparent on the face of the warrants including non-compliance with mandatory requirements of the Code and the CDSA. [9] The applicant argues that if the court agrees that the warrants as issued are invalid then the resultant search of Smith’s residence and its surrounding premises was warrantless search. The search therefore was per se unreasonable and in violation of Mr. Smith’s s. Charter rights. The items seized during the search ought to be excluded as evidence at his upcoming trial by virtue of s. 24(2) of the Charter. THE CROWN’S POSITION [10] Counsel for the Crown accepts that for search warrant to be valid it must substantially comply with the requirements of the law, in particular, s. 487 of the Code (authorizing the issuance of warrant) and Form of the Code (the form specified for warrant) (See R. v. Dombrowski (1985), 1985 CanLII 182 (SK CA), 37 Sask. R. 259; 18 C.C.C. (3d) 164 (Sask. C.A.); Alder v. Attorney-General of Alberta, 1977 CanLII 2098 (AB QB), [1977] W.W.R. 132; 37 C.C.C. (2d) 234 (Alta. S.C.) and The Law of Search and Seizure in Canada, 5th ed., Fontana p. 91-93). The Crown accepted, at paragraph 29 of its written submissions and during the oral argument upon the voir dire, that “it is conceded that the s. 487 warrant cannot be sustained”. This was an appropriate stipulation by counsel for the Crown since careful examination of the Code Warrant demonstrates clearly that nowhere in the warrant is an offence stipulated as required. [11] The Crown nevertheless argues that even though the Code Warrant is invalid the CDSA Warrant does meet the minimum lawful requirements and therefore it authorized the search of Smith’s residence. In consequence the seizure of the property from inside the dwelling and the vehicles and equipment seized from the surrounding premises are legal and valid. [12] In the context of s. 24(2) Charter considerations, the Crown argued that if both warrants were found to be invalid nevertheless the resultant warrantless search of Smith’s residence and surrounding premises and the seizures effected ought not, in the circumstances, to be excluded as evidence at the trial. [13] The issues to be decided as result of this voir dire are as follows: 1. Are the Criminal Code and CDSA Warrants Valid? 2. If the Code and CDSA Warrants are invalid with the result that the accused’s s. Charter rights have been violated, should the evidence obtained as result of these seizures be excluded from the evidence at the accused’s trial pursuant to s. 24(2) of the Charter? ANALYSIS Validity of Search Warrants [14] Counsel for the Crown contends that only if both warrants are found to be invalid is s. 24 of the Charter engaged. agree with and accept this submission. Since the Crown has already stipulated that the s. 487 Code Warrant is invalid that leaves only the facial validity of the CDSA Warrant to consider. Background Facts and Circumstances [15] The decision to search the Smith residence came as result of some many months of investigations principally conducted by Cst. Olberg based upon information he had received from Customs and Excise officers and RCMP members of the drug squad. These investigations, as Cst. Olberg testified to at the voir dire, initially related to suspected illegal vehicular border crossings in Southern Saskatchewan. Some of the evidence that was obtained during this investigation implicated the accused. These investigations culminated in an incident which occurred on June 20, 2002, the day before the Warrants were applied for and issued and two days before the Smith residence search. Cst. Olberg testified that information had been received from U.S. border customs agents advising that vehicle had attempted to enter the United States via an illegal point of entry south of Lake Alma, Saskatchewan. Upon detention of this vehicle it was searched and very large quantity of marihuana was discovered having an estimated street value in excess of one million dollars. The single occupant was arrested. After further investigation, the Crown alleges that it has determined that the vehicle was rented vehicle and that it had been rented by the accused, Smith. [16] These culminating circumstances in Cst. Olberg’s long and detailed investigations prompted him to conclude that he had reasonable and probable grounds to obtain the search warrants ultimately applied for authorizing the search of the Smith residence in Abbotsford, British Columbia. [17] It is against this background that the court turns now to consider the validity of the search warrant(s). The Code, CDSA and Search Warrants [18] Section 487(1)and (2) of the Code provide as follows: 487(1) justice who is satisfied by information on oath in Form that there are reasonable grounds to believe that there is in building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue warrant authorizing peace officer or public officer who has been appointed or designated to administer or enforce federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act or Parliament, to, as soon as practicable, bring the thing seized before, or make report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. (2) Where the building, receptacle, or place in which anything mentioned in subsection (1) is believed to be is in any other territorial division, the justice may issue his warrant in like form modified according to the circumstances, and the warrant may be executed in the other territorial division after it has been endorsed, in Form 28, by justice having jurisdiction in that territorial division. [19] Section 11(1), (3) and (4) of the CDSA provides as follows: 11(1) justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (a) controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which controlled substance or precursor referred to in paragraph (a) is contained or concealed, (c) offence-related property, or (d) any thing that will afford evidence in respect of an offence under this Act is in place may, at any time, issue warrant authorizing peace officer, at any time, to search the place for any such controlled substance, precursor property or thing and to seize it. (3) justice may, where place referred to in subsection (1) is in province other than that in which the justice has jurisdiction, issue the warrant referred to in that subsection and the warrant may be executed in the other province after it has been endorsed by justice having jurisdiction in that other province. (4) An endorsement that is made on warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to deal with the things seized in accordance with the law. [20] Additionally, Forms 28 and 28.1 to the Code are of relevance and they provide as follows: FORM 28 (Sections 487 and 528) Endorsement of warrant Canada, Province of (territorial division) Pursuant to application this day made to me, hereby authorize the arrest of the accused (or defendant) (or execution of this warrant, in the case of warrant issued pursuant to section 487), within the said (territorial division). Dated this ........... day of ........... A.D. ....... at ........................ ................................................. Justice of the Peace in and for ............ FORM 28.1 (Subsection 487.03(2)) Endorsement (order or authorization) Province of ............ (territorial division) Pursuant to application this day made to me, hereby authorize the execution of this order, in the case of an order issued under section 487.051 or 487.052 (or execution of this authorization in the case of an authorization issued under section 487.055 or 487.091), within the said (territorial division). Dated this ........ day of ............ A.D. ...., at ............................ .................................................. Justice of the Provincial Court [21] In his evidence, Cst. Olberg admits and takes responsibility for the shortcomings appearing on the face of both the Code and CDSA Warrants. He testified that these were the first Informations to Obtain Search Warrants that he had sworn and for which he was responsible as lead investigator notwithstanding his some eight to nine year career in the RCMP. He testified that although he had the assistance of his senior officer supervisors in preparing both the Informations to Obtain the Warrants and the Warrants themselves no one noticed the shortcomings in the Warrants as he had prepared them. [22] Cst. Olberg testified that he prepared the Informations to Obtain and the Warrants on the word processing facilities of his computer which contained various “template” or “boilerplate” forms including s. 487 Code Warrants, s. 11 CDSA Warrants, as well as various forms for out-of-province Endorsement or “backing”. [23] In the preparation of the Informations to Obtain the Warrants and the Warrants themselves he “cut and pasted” from these various boilerplate forms injecting, where he thought appropriate and necessary, some of the information specific to the accused and the offences under investigation. These he derived either from original material which he had created on his computer or transposed from the Informations to Obtain the Warrants that he had prepared. [24] The relevant documentation included the two Informations to Obtain the s. 487 Code and s. 11 CDSA Warrants and the Code and CDSA Warrants themselves. Each of the warrants included an out-of-province Endorsement Form, the particular form used appearing to be the Code s. 487.03 Form. [25] It is unfortunate from the perspective of the Crown, that none of the reviewing supervisory officers, the issuing Justice in Saskatchewan or the Endorsing Justice in British Columbia read the warrants presented with sufficient care or attention. Clearly, both the Warrants have obvious and noticeable omissions and/or errors. Nor do they read properly from the standpoint of simple English. [26] Nevertheless, and notwithstanding this observation, the evidence satisfies me that there was no bad faith, malice or intentional omission involved in the preparation of the Warrants. Cst. Olberg was negligent in failing to review the applicable sections and forms of the Code and the CDSA. Having prepared the Warrants he neglected to review them with the care and detail necessary and appropriate to such an important exercise. The same must be said of all others involved in the process including the senior reviewing officers and the issuing and endorsing Justices. The absence of any malevolent intention, while it does not in these circumstances bear directly upon the validity of the Warrants, is nevertheless commented upon because of the bearing that it may have upon any s. 24(2) Charter analysis that may need to be undertaken. Objections to the Warrant [27] Moving from the general to the specific the applicant’s objections to the validity of the CDSA Warrant can be summarized as follows: 1) The list of “things” that will afford evidence in respect of the alleged offence under the CDSA as outlined on the first page of the warrant is repetitive and confusing. At the end of the recitation it specifies that the items referred to or “things” are with reference to transactions “during the period commencing one year prior to the earliest commencement date of the offences described below and ending on June 21, 2002". The subsequent recitation of the offences appearing on page do not specify any dates and accordingly this earlier description of the time frame has no commencement reference point. Clearly, as is illustrated by the introductory portions of page 2, dates contemplated were omitted in the phrase introducing the offences reading, as it does: “between and/or on or about, at, did unlawfully;”. Neither the date nor location contemplated for insertion in this portion of the warrant were inserted. 2) The controlled substance contemplated for identification and insertion into the first three offences on page is omitted. In the fourth and fifth subparagraph appearing on page there is reference to subsections 8(1) and 9(1) of the CDSA. These sections were repealed by c. 32, s. 48 of the Statutes of Canada in 2001 and they were not in existence at the time the Warrants were issued (nor are they now in existence). 3) The extra-provincial endorsement form is the wrong form. As it clearly provides on its face it relates, to s. 487.03 of the Code and makes reference to matters clearly not relevant to the CDSA Warrant including “telephone records, production order and assistance order”. The endorsement also has left blank the identification of the province in the second and third line of the endorsement. 4) The Endorsing British Columbia Justice limited the execution of the Warrant by imposing three exclusionary conditions which an Endorsing Justice is not entitled in law to do. Additionally, the endorsing justice violated the sealing order of the Saskatchewan Justice and reviewed the sealed Informations to Obtain. [28] In answer to these deficiencies the Crown argues that there is sufficient information in the CDSA Warrant to meet the requirement that the Warrant contain statement of the offence(s) on the face of it. Counsel for the Crown refers to page of the Warrant identifying cannabis marihuana as the controlled substance in respect of which the Warrant is sought to provide evidence. Counsel accepts, however, that nowhere in the offence listings on page of the Warrant is there any reference to the name of the persons to be charged, the time frame or dates over which offences are alleged to have been committed, statement of the place or location within Canada where the offences are alleged to have been committed nor, in the listing of the offences, is there any reference to the controlled drug or substance alleged to be possessed for the purpose of trafficking, trafficked in, produced or in relation to which property or proceeds of property were derived from the illegal activity referenced. [29] Counsel for the Crown argues that the illegal substance is named as “cannabis marihuana” on page 1. The omitted references to the illegal substance in the charges on page is cured by reference to page 1. The other particulars such as dates over which and the location where offences listed were committed, while desirable, are substantively not necessary to the validity of the warrant. Additionally, the incorrect reference to repealed sections of the CDSA on page in the description of the fourth and fifth of the listed offences are clearly in error and excused by s. 583 of the Code. [30] Section 583 reiterates the requirements of valid counts or charges in an indictment as specified by s. 581. These sections are clearly applicable to the validity of charges in an indictment, however, are instructive in the context of the wording of charges or offences as contained in warrant such as the CDSA Warrant under review. While it may be that offences as described in warrant need not comply fully with the requirements of s. 581 of the Code at the investigation stage and prior to formal charges being laid, nevertheless as previously noted, the various elements of an offence must be sufficient, even in warrant, to identify, to person confronted with warrant to search his dwelling, the offences in respect of which the warrant authorizes the search. [31] While certain of the individual omissions or misstatements might individually be excusable, an overall reading of the warrant and in particular pages and (the latter outlining, as it was intended to do, the proposed offences in respect of which the warrant authorization pertains) is inadequate and unsatisfactory to meet the minimum offence description requirements contemplated by Form of the Code as those requirements have been further interpreted and identified to apply in the Dombrowski and Alder cases, (supra). As the author Fontana observed in his text The Law of Search and Seizure in Canada at p. 36: Those Criminal Code sections that authorize the issue of search warrants are almost unanimous in requiring that the informant disclose the alleged offence in his sworn information, or his written report. There is no similar specific requirement in the authorizing sections, however, saying that the offence must be stated on the face of the search warrant itself. The nearest that the Criminal Code comes to this requirement is the direction within the contents of Form No. which says, in parenthesis, “describe things to be searched for and offence in respect of which search is to be made.” Since s. 487 is the comprehensive search warrant section, applicable to all offences in the Code, and since s. 487 incorporates by reference Form No. 5, it may be taken that statement of the offence is required on the face of the search warrant itself, as well as on the Information [32] These requirements are equally applicable to CDSA s. 11 warrant as they are to s. 487 Code warrant. In the result, find and conclude that the CDSA Warrant, as was the admitted case with the Code Warrant, is invalid in that it does not sufficiently or adequately state the offences in respect of which the Warrant was issued. [33] Having so concluded must conclude that the resulting search was not legally authorized as required and therefore the search and subsequent seizures in this case were unreasonable within the meaning of s. of the Charter. [34] Had it been necessary to consider the point, would have agreed with the submissions of the Crown with respect to the endorsement form attached to the Warrant which was intended to authorize its execution in British Columbia. Although portions of the endorsement form are clearly referable to s. 487.03 Warrant, nevertheless those portions of it including the identification of the endorsement as being made pursuant to s. 487.03 and the reference to telephone records, production order and assistance order are superfluous. There is no form of endorsement specified for s. 11 CDSA Warrant although one might appropriately conclude that Form 28 in its wording is clearly more appropriate than the form used or, for that matter, Form 28.1. The form does specify territorial jurisdiction of British Columbia and that its endorsement “authorizes the execution of this warrant .” to which the endorsement is attached. would have concluded, in the circumstances, that to the extent that the object of the endorsement is to clearly inform recipient that its provisions, being initially authorized in another province, was authorized for execution in British Columbia it sufficies to communicate that. Had that been the only ground of objection the court would have ruled the warrant valid. Charter s. 24(2) [35] Sections and 24 of the Charter provide as follows: Everyone has the right to be secure against unreasonable search or seizure. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute. [36] An applicant who seeks exclusion under s. 24(2) bears the ultimate burden or persuasion of satisfying the court, on balance of probabilities, that admission of the proposed evidence could bring the administration of justice into disrepute. [37] warrantless search (in this case the result of having concluded that the two search warrants as issued were invalid) is presumed to be unreasonable unless it can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265. Under Collins warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable. The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by reasonable law and carried out in reasonable manner (R. v. Mann, 2004 SCC 52 (CanLII); (2004), 185 C.C.C. (3d) 308, (S.C.C.), R. v. Collins, supra, and R. v. Buhay, 2003 SCC 30 (CanLII); [2003] S.C.R. 631). [38] Where s. 24(2) of the Charter is engaged, as it clearly is in this case, the appropriate analysis requires consideration of three factors, now commonly referred to as the “Collins Test” including trial fairness, the seriousness of the breach and the effect of exclusion/inclusion upon the repute of the administration of justice (See Collins, supra; R. v. LaPlante (1987), 1987 CanLII 209 (SK CA), 59 Sask. R. 251; 40 C.C.C. (3d) 63 (Sask. C.A.) at p. 79-80; R. v. Turcotte, 1987 CanLII 984 (SK CA), [1988] W.W.R. 97; (1987), 39 C.C.C. (3d) 193 (Sask. C.A.) esp. at pp. 208 and 210). [39] Based upon the evidence received it is clear (and indeed stipulated to by counsel for the applicant at paragraphs 69 and 70 – Brief of Law) that the evidence seized in this case was non-conscriptive within the meaning of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607. Accordingly, its admission would not render the trial unfair. [40] The second and third of the Collins Tests, namely; the seriousness of the Charter breach, and the repute of the administration of justice require that “all the circumstances” referred to in ss. 24(2), that are applicable, be considered and analysed. These factors include, but are not limited to: the kind of evidence that was obtained in the course of the Charter breach the Charter right being infringed whether the Charter violation was serious or merely technical in nature was the Charter breach deliberate, willful or flagrant, was it inadvertent or committed in good faith did it occur in circumstances of urgency or necessity were other investigatory techniques available would the evidence have been obtained in any event is the offence involved serious is the evidence essential to substantiate the charge are there other remedies available (see Collins, supra, per Lamer J. at p. 87). [41] The degree of seriousness of the breach will increase the greater the expectation of privacy (R. v. Belnavis, [1997] W.W.R. 41 per Cory J.). Highly protected spheres of privacy include the body (R. v. Stillman, supra; R. v. Mann, supra) and personal residences (R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] S.C.R. 13). Analysis of the Applicable Circumstances [42] The actions of Cst. Olberg and the other members of the RCMP who assisted him to prepare the Informations to Obtain and Search Warrants, although not meeting the standard of due diligence expected of them when preparing serious and important documents such as these, nevertheless were not motivated by bad faith, ill will against the accused or callous or wilful disregard for his privacy rights. There is no evidence that was presented that suggested otherwise. Cst. Olberg and those attending officers assisting in the search were all of the belief that Cst. Olberg possessed two valid search warrants, the Code and CDSA Warrant. Cst. Olberg testified that it was only some weeks if not months after the search took place that upon closer scrutiny he first became aware of certain deficiencies in these Warrants which might place their validity in doubt. He reported the matter to his supervisors and the assigned Crown prosecutor immediately. [43] The search conducted was of the accused’s personal residence. The accused was entitled to have high expectation of privacy. This is recognized and protected by the law and in particular s. of the Charter (See R. v. Silveria, supra at p. 367). Except for the evidence with respect to the protective action taken by Cst. Olberg to ensure that the searching officers were not interfered with or endangered by the accused when he was encountered immediately upon their entry to the premises (namely, the accused forcibly being put to the ground, handcuffed and briefly physically restrained) there was no excessive or unauthorized use of force at any time during the course of the search. The search took place mid-afternoon during daylight hours. [44] Cst. Olberg testified that after this initial restraint the accused was co-operative and no further physical restraining force was required. The accused was the only person found in the premises. The evidence established that the police were reasonably confident of this fact since Cst. Olberg had had the premises under surveillance for some time before the search entry occurred. In summary, the search when it occurred was thought to be authorized by valid warrants. The now determined s. Charter breach was not then deliberate, wilful or flagrant. There was not any bad faith. [45] The evidence leaves little doubt that the offences for which the accused was being investigated and with which he now stands charged are very serious offences. They include conspiracy to commit number of CDSA offences including exportation, trafficking and possession for the purposes of trafficking in marihuana, possessing the proceeds of crime and participating in criminal organization. The evidence of Cst. Olberg satisfies the court that the final incident precipitating the application for and obtaining of the search warrants involved the apprehension and seizure of an individual driving van which appears to have illegally crossed the Canada–U.S. border on June 20, 2002, the day before the issuance of the warrant and two days before the search. The van is alleged to have contained marihuana having an estimated street value exceeding one million dollars. The vehicle was subsequently found to be leased in the name of the accused. This precipitating event along with the months of investigation leading up to it, generating facts implicating the accused in large illegal cross-border drug operation did, as previously noted and as the applicant’s counsel accepts, provide reasonable and probable grounds for the issue of the two impugned warrants. [46] The existence of reasonable and probable grounds to obtain search warrants to search the accused’s residential premises, together with the seizure of some $750,000.00 in cash from the accused’s residence as a result of the search fulfill a number of the “circumstances” requirements listed in reference to s. 24(2) of the Charter. [47] It is now appropriate to consider, more particularly, the third and final consideration in the Collins Test, that is, whether the exclusion of the evidence in all the circumstances would bring the administration of justice into disrepute. Exclusion of the evidence may substantially impact upon the Crown’s case against the applicant, particularly with respect to the proceeds of crime charge but as well the other counts of the indictment. As pointed out at paragraph 57 of the Mann, (supra) decision, “possession of marihuana for the purposes of trafficking remains serious offence despite continuing debate about the extent of the harm associated with marihuana use”. While the expectation of privacy that the accused had with respect to his private residence is high, nevertheless, the nature and circumstances of the Charter s. breach in this case, combined with the “circumstances” the court has reviewed respecting how the Warrants were prepared and executed, are factors which have led this Court to conclude that the violations of the accused’s s. Charter rights in this case were of less serious nature when compared to the circumstances reviewed by other courts leading them to conclude that the evidence obtained must be excluded. [48] As Lamer C.J.C. commented in R. v. Jenereau, 1992 CanLII 117 (SCC), [1992] S.C.R. 259 “For these reasons, in my opinion, the exclusion, rather than the admission of the impugned evidence would have brought the administration of justice to disrepute”. This is the same conclusion have reached with respect to the evidence obtained in all of the circumstances of this case. [49] In the result I have concluded and rule that although the search warrants relied upon in this case are invalid and therefore the resultant search of the accused’s premises was a violation of his s. 8 Charter rights, nevertheless the facts and all the circumstances established by the evidence do not satisfy me that the admission of the evidence in the further trial proceedings against the accused would bring the administration of justice into disrepute. Therefore, the application of the accused to exclude the evidence pursuant to s. 24(2) of the Charter is dismissed.

The accused applies by notice of motion to quash the search warrants that were issued authorizing the search of his residence and to exclude any evidence obtained as a result of the search. The application alleges a violation of the accused's s. 8 Charter rights. HELD: Although the search warrants relied upon in this case are invalid and the resultant search of the accused's premises was a violation of his s.8 Charter rights, nevertheless, the facts and all the circumstances do not satisfy the Court that the admission of the evidence would bring the administration of justice into disrepute. The application to exclude the evidence is dismissed. 1) The Crown stipulated the s. 487 Criminal Code warrant is invalid. That leaves the validity of s. 11 of Controlled Drugs and Substances Act (CDSA). 2) The CDSA warrant is invalid in that it does not sufficiently or adequately state the offences in respect of which the warrant was issued. The search was therefore warrantless. 3) The evidence seized was non-conscriptive and so its admission would not render the trial unfair. 4) There was no bad faith, malice or intentional omission involved in the preparation of the warrants. The officer was negligent in failing to review the applicable sections and forms of the Code and the CDSA. The absence of any malevolent intention, while it does not bear on the validity of the warrants, has some bearing in the s. 24(2) Charter analysis. 5) The existence of reasonable and probable grounds to obtain the search warrants to search the accused's residential premises, together with the seizure of $750,000 in cash from the accused's residence as a result of the search, fulfill a number of the circumstances under s. 24(2) of the Charter.

4_2004skqb516.txt

Information 24191289 2007 SKPC 01 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT BUFFALO NARROWS, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- MARJORIE LOIS HANSEN Gerald Perkins For the Crown James Scott For the Accused January 3, 2007 E. Kalenith, P.C.J. JUDGMENT INTRODUCTION [1] Marjorie Hanson applies for relief pursuant to The Canadian Charter of Rights and Freedoms (“the Charter”) on the basis of post-charge delay denying her the right to have her trial in a reasonable time. I find that there was a Charter breach and that the appropriate remedy is a stay of proceedings. My reasons follow. [2] The accused is charged that: on or about May 18, 2004, at Buffalo Narrows, Saskatchewan, she did: Count unlawfully produce Cannabis Marihuana contrary to Section of the Controlled Drugs and Substances Act (“the CDSA”) and Count unlawfully possess Cannabis Marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to Section 5(2) of the CDSA. HISTORY OF PROCEEDINGS [3] The following dates are relevant to this application: (a) May 19, 2004 the Information was sworn charging the accused; (b) May 19, 2004 the accused first appeared in court with Legal Aid as her counsel, was released on an Undertaking Given to Judge subject to number of restrictive conditions, and the Information was adjourned to September 8, 2004 for disclosure; (b.1) August 24, 2004 the defence forwarded Consent Order to the Crown authorizing opening of sealed Search Warrant and Information to Obtain, the edited copy of which was provided on November 2, 2004, only after counsel for the co-accused consented to the Order in late October 2004; (c) September 8, 2004 the Information was adjourned to October 6, 2004, and then to November 3, 2004, for defence election on Count 2; (d) November 3, 2004 defence election of Queen’s Bench Judge Alone made and then the Information was adjourned by the defence to November 17, 2004, then to December 8, 2004, then to February 23, 2005 (on which date reelection was made on Count to Provincial Court), and then to March 9, 2005, in each case to be spoken to; (e) March 9, 2005 not guilty plea was entered and the trial was set for September 28, 2005; (f) September 28, 2005 the Information was adjourned at defence request to October 19, 2005, then to October 26, 2005, then to November 19, 2005, and then to December 14, 2005, in each case to be spoken to; (g) December 14, 2005 new trial date was set for June 14, 2006; (h) June 14, 2006 the trial was adjourned to November 29, 2006 at Crown request, the Accused not waiving delay; (i) November 29, 2006 the trial was adjourned at Crown request due to the inability of some Crown witnesses able to travel to Buffalo Narrows in the bad weather, new trial date being set for January 19, 2007, the defence not waiving delay; (i.1) December 13, 2006 Charter motion argued and decision reserved to this date. [4] The relevant time periods are: (a) From May 19, 2004 to mid-June, 2004 date of swearing the Information to the date of an interview by Legal Aid defence counsel two months; (b) From June 2004 to November 2004- delay in unsealing and obtaining edited copy of search warrant documents five months; (c) From November 2004 to March 2005 adjournments at defence request until the defence was ready to set trial date four months; (d) From March 2005 to September 2005 time from plea to the earliest trial date six months; (e) From September 2005 to December 2005 adjournments at defence request until ready to schedule new trial date three months; (f) From December 2005 to June 2006 delay to second trial date six months; (g) From June 2006 to November 2006 delay to third trial date five months; (h) From November 2006 to January 2007 delay to fourth trial date two months; (i) Date of swearing the Information to latest trial date two years, seven months. [5] In deciding whether the right to trial within reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed consider the factors outlined by the Supreme Court of Canada in R. v. Morin (1972) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1(“Morin”): (a) Length of delay; (b) Waiver of time period; (c) Reasons for the delay, including: (i) inherent time requirements; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations on institutional resources; (v) other reasons for the delay; (d) Prejudice to the accused. [6] The onus is on the accused to prove the breach on balance of probabilities. Length of delay [7] In Morin, the Supreme Court of Canada proposed that as general guideline delay of eight to ten months in Provincial Court would be acceptable. find this to be consistent with the reality in Buffalo Narrows, where trials are set within six months of entering plea. [8] The length of delay in this case from the date of charge to the date of trial is approximately thirty-one months. The Crown concedes, and find, that the length of delay is sufficient to warrant an inquiry into the reasons for the delay. [9] The accused requested the adjournments from May 19, 2004 to November 3, 2004 to seek counsel and to obtain and to obtain disclosure of the information relating to the search warrant. attribute four months of this delay to the accused because find that the Crown should have arranged for the editing of the search warrant material within one month of the consent order having been provided to it, and that it was not necessary to delay having the order issued, and the material edited, simply because counsel for the co-accused had not yet consented to the order. The delay from November 3, 2004 to March 9, 2005, delay of five months, attribute to the accused as these adjournments were at her request for the purpose of deciding defence election and entering plea. The delay from September 28, 2005 to December 14, 2005, period of approximately three months, is attributable to the accused as delay until the accused was ready to set new trial date (the second one). do not accept the Crown argument that there is waiver of the delay caused by the adjournments from the dates of December 14, 2005 and June 14, 2006. For there to be valid waiver, it must be clear and unequivocal. The endorsement is silent as to waiver from December 2005, and clearly indicates no waiver of delay from June 14, 2006, and therefore find there is no waiver of the delay for these periods of time. The total delay attributable to the accused is twelve months. The remaining delay of nineteen months occurred for the reasons indicated below. Inherent time requirements [10] Arranging for the accused’s appearance in court, and some time between plea and trial, led to some delay. deduct this six-month period from the delay being considered. Actions of the accused [11] The accused did not contribute to the remaining delay. There were some delays attributable to the accused in time until she was ready to enter pleas, and later until she was ready to have the matter rescheduled for trial, delays which were deducted above. Otherwise, she appeared on all court dates and was diligent about having the charges set for trial. Actions of the Crown [12] The remaining delay of thirteen months is either attributable to the Crown or caused by factors outside the control of the accused. Limitations on institutional resources [13] There is no evidence that any lack of institutional resources caused any delays in this case. Other reasons for delay [14] The weather caused delay from November 29, 2006 to January 19, 2007, period of two months. [15] As indicated in Morin, prejudice can be inferred from prolonged delay. [16] Evidence was led by the accused that she suffered actual prejudice because the outstanding charge has affected her ability to apply for higher-paying job opportunities, and has caused her stress and frustration. She further alleges that the passage of time makes it more difficult to properly defend against the charges. The Crown argues that the accused could have applied to amend her conditions of release, as she did in September 2004 and March 2005, so as to alleviate any restrictions that prevented her from obtaining better paying jobs. The Crown further argues that stress and frustration are irrelevant and are part of the usual effects of being subject to criminal charge. The accused argues that she was reluctant to make further applications to amend her release conditions given the amendments she had already obtained to improve her job opportunities. [17] I find that in this case the accused has suffered actual prejudice and that the delay in bringing this matter to court from the time of swearing the Information to the date of trial has prejudiced the accused’s ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, I find that these could have been overcome by applications to amend her conditions of release. [18] Given the finding of actual prejudice, the question remains as to whether the prejudice to the accused was such as to outweigh the prejudice to society that would result if the accused was not to face trial for this charge. [19] The Crown suggests, and find, that there is heightened public interest in offences of this nature, as there is in offences of violence, in having these offences tried. On the other hand, there have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached on these charges. No explanation is offered for the adjournments except for the last adjournment caused by bad weather. Fairness to the accused requires that even for offences such as these that trials be held within reasonable period of time so that the accused does not suffer undue prejudice and so that she can fairly defend herself and so that society’s interest in having these matters heard can also be done within reasonable period of time. In this case, find the prejudice to the accused outweighs the public interest in having her tried for the charge. The just and appropriate remedy under section 24 of the Charter is to grant stay of proceedings. E.Kalenith, P.C.J.

The accused applies for relief pursuant to the Charter on the basis of post-charge delay denying her the right to have her trial in a reasonable time. HELD: There was a Charter breach and the appropriate remedy is a stay of proceedings. 1) The length of delay in this case from the date of charge to the date of trial is approximately 31 months. The Supreme Court proposed as a general guideline a delay of 8 to 10 months in Provincial Court as acceptable. This is consistent with the reality in Buffalo Narrows, where trials are set within 6 months of entering a plea. 2) 12 months of the delay can be attributed to the accused. 6 months was deducted from the delay for inherent time requirements in arranging for the accused's appearance in Court. The remaining delay of 13 months is either attributable to the Crown or caused by factors outside the control of the accused. 3) In this case the accused has suffered actual prejudice in that the delay in bringing this matter to Court from the time of swearing the Information to the date of trial has prejudiced the accused's ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, this could have been overcome by applications to amend her conditions of release. 4) There have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached. No explanation is offered for the adjournments except for the last adjournment caused by bad weather.

8_2007skpc1.txt

Q.B.G. A.D. 1999 No. 1441 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALMA SCOBEY and NADINE ONOUSHKO and THE OFFICE OF THE RENTALSMAN RESPONDENTS Joanne C. Moser for the applicant Reginald A. Watson for the Nadine Onoushko JUDGMENT MacDONALD J. July 22, 1999 [1] This is an application pursuant to Rules 664(1) and 674 of The Queen’s Bench Rules for an order: (a) Quashing a decision of the Office of the Rentalsman; (b) If necessary, remitting the matter back to the Rentalsman for determination. [2] Prior to hearing the merits of the application itself, counsel for the respondent, Nadine Onoushko, raised a preliminary objection with the court and argued that the matter should not proceed by way of judicial review but that the applicant should be restricted to an appeal of the decision of the Rentalsman in accordance with the provisions of s. 49(1) of The Residential Tenancies Act, R.S.S. 1978, c. R-22 as am. by S.S. 1992, c. 37, s. 18 (the “Act”). Section 49(1) reads as follows: 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. [3] The decision of the Rentalsman in this instance was rendered on December 8, 1997. In order to appeal the applicant should have filed notice of the appeal on or before January 7, 1998. [4] The applicant, in her affidavit states that she never received notice of any of the proceedings before the Rentalsman therefore making it impossible for her to appeal within 30 days. [5] Since there is nothing in the Act which allows this Court to extend the time for filing an appeal, to deny the applicant an opportunity to bring the application for judicial review would be to deny her an opportunity to pursue her only remedy in the circumstances. [6] Therefore, the preliminary objection by counsel for the respondent, Nadine Onoushko, to the application is dismissed and the local registrar is instructed to return the matter to the chambers’ list on August 19, 1999 in order to hear argument on the merits and to allow counsel for the respondents an opportunity to file material.

The applicant sought an Order quashing a decision of the Office of the Rentalsman pursuant to Queen's Bench Rule 664(1) and 674. The respondent raised a preliminary objection, arguing that the matter should not proceed by way of judicial review but that the applicant should be restricted to an appeal of the Rentalsman's decision under s.49(1) of the Residential Tenancies Act, and that the applicant had failed to do so within the prescribed 30 day limit. The applicant argued that she never received any notice of proceedings making it impossible for her to appeal within 30 days. HELD: Preliminary objection dismissed. The court ordered that the application be returned to the Chamber's list for a hearing on the merits. Since there is nothing in the Act that allows the court to extend the time for filing an appeal, to deny the application for judicial review would deny the applicant an opportunity to pursue her only remedy in the circumstances.

3_1999canlii12841.txt

E.J. GUNN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 219 Date: 2011 06 02 Docket: Q.B.G. No. 1500/2010 Judicial Centre: Saskatoon BETWEEN: DENNIS TOFIN, and SPADINA CONDOMINIUM CORPORATION, Respondent Corporation and TONY BORYSKI, MAURICE DUVAL, BENJAMIN GOLDSTEIN, ELAINE MALKIN, TOM McCLOCKLIN, JR., TOM McCLOCKLIN, SR., SANDY REES, Respondent Directors and REMBRANDT HOLDINGS LTD., and COMMERCE HOLDINGS LIMITED, Respondent Commercial Owners Counsel: Gary A. Meschishnick, Q.C. for the applicant M. Kim Anderson for the respondent corporation Naheed Bardai for the respondent commercial owners DECISION DOVELL J. June 2, 2011 [1] The applicant, Dennis Tofin (“Tofin”), a residential unit owner at Spadina Condominium Corporation (the “Condominium Corporation”), has brought this application against the Condominium Corporation, its board of directors (the “Board”) and the owners of three commercial units seeking relief pursuant to Rule 664 of The Queen’s Bench Rules. The applicant, in particular, is asking the Court for a declaration interpreting the bylaws of the Condominium Corporation with regard to the election of the members of the Board with a view to determining the voting rights of the commercial owners. [2] Preliminary objections were made pursuant to Rule 319 of The Queen’s Bench Rules by the Condominium Corporation and the commercial owners with regard to the content of the applicant’s affidavit material filed in support of his application. The preliminary decision of the Court clarifying what the Court would disregard within the affidavits filed by the applicant was provided to the parties prior to the argument of the merits of the application on May 18, 2011. [3] In addition to the vetted affidavit materials filed by the parties, an agreed statement of facts was filed by the parties. A. Background Facts [4] Spadina Condominium is 32‑unit condominium. The three largest units in the condominium are commercial units while the remaining twenty‑nine units are residential units. The unit factors of all of the owners were shown in Exhibit “A” to the agreed statement of facts. The commercial units are apportioned 4,431 unit factors of the total 10,000 unit factors in the condominium, and the residential units are apportioned 5,569 unit factors. [5] Accordingly, the commercial owners hold 44.31 percent of the total votes, and the residential unit owners hold 55.69 percent of the total votes. [6] The present commercial owners, Rembrandt Holdings Ltd. and Commerce Holdings Limited, purchased the commercial units at the condominium in approximately September 2006 from the applicant, Dennis Tofin. [7] All of the condominium units and common property are controlled, managed and administered by the Spadina Condominium Corporation, body corporate continued pursuant to the provisions of The Condominium Property Act, 1993, S.S. 1993, c. C‑26.1 (the “Act”). The bylaws of the Condominium Corporation, attached as Exhibit “B” to the agreed statement of facts, were unanimously passed on December 29, 1998, and registered in accordance with the Act on January 16, 1999. Pursuant to the provisions of s. 39 of the Act, the powers of the Condominium Corporation are to be exercised and the duties of the Condominium Corporation are to be performed by the Board. [8] At all material times, the Board has consisted of seven persons. Up to and including October 9, 2009, the Board consisted of Peter Dielschneider, Maurice Duval, Betty Orchard, Eleanor Williams, Tom McClocklin Jr., Tony Boryski and Dennis Tofin. [9] An issue arose with respect to the interpretation of Section 3.3 and Article of Bylaw No. governing the election of members of the Board. [10] The commercial owners’ interpretation of the bylaw was that: (a) The commercial owners were and are entitled to nominate up to three persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the commercial owners’ nominees and, where the owners neglect or refuse to cast their votes in such manner, the commercial owners may vote separately as class to elect their nominees; and (d) There is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. [11] The applicant’s interpretation of the bylaw was that the commercial owners were entitled to nominate up to three persons for election to the Board and to exercise their right to see them elected but were not entitled to vote on the election of the remaining four positions on the Board. [12] general meeting of the owners of the Condominium Corporation was to be held to elect new Board on October 9, 2009. In advance of the meeting, the commercial owners obtained legal opinion as to the interpretation of the voting provisions of the bylaws. That opinion of Naheed Bardai of MacPherson, Leslie Tyerman was attached as Exhibit “C” to the agreed statement of facts. The opinion of Naheed Bardai was provided to the Board in advance of the meeting as was the legal opinion of William J. Shaw of McDougall Gauley. The applicant, on the instructions of the Board, had obtained the legal opinion of William J. Shaw as to the interpretation of the voting provisions of the bylaws. The opinion of William J. Shaw was attached as Exhibit “D” to the agreed statement of facts. [13] During the meeting held on October 9, 2009, there was discussion as to the voting rights of the commercial owners. [14] The following individuals were nominated at the meeting: (a) Tony Boryski; (b) Maurice Duval; (c) Benjamin Goldstein; (d) Elaine Malkin; (e) Tom McClocklin Sr.; (f) Tom McClocklin Jr.; (g) Betty Orchard; (h) Sandy Rees (also referred to in affidavit material as “Reese”); and (i) Dennis Tofin. [15] As there were only seven positions on the Board, vote was required. The vote was carried out by way of polled vote, and each owner was allowed to vote their unit factors for each of the seven positions on the Board. The commercial owners did not use their special rights as set out in Sections 3.3(c) and 3.3(e) of Bylaw No. at the meeting. Nor did the commercial owners vote their unit factors as separate class to elect any nominees at the meeting. [16] The following individuals (the respondent directors) were elected to the Board as result of the vote: (a) Tony Boryski, resident owner; (b) Maurice Duval, resident owner; (c) Benjamin Goldstein, resident owner; (d) Elaine Malkin, resident owner; (e) Tom McClocklin Jr., commercial owner; (f) Tom McClocklin Sr., commercial owner; and (g) Sandy Rees, commercial owner representative. [17] The minutes of the October 9, 2009, meeting were attached as Exhibit “E” to the agreed statement of facts. [18] The majority of the Board are of the view that the proper interpretation of the provisions governing the election of directors was:(a) The commercial owners were and are entitled to nominate up to three persons for election to the Board;(b) All owners, residential and commercial, were entitled to vote on all nominees to the Board;(c) All owners have agreed to cast their votes so as to elect the commercial owners’ nominees and, where the owners neglect or refuse to cast their votes in such manner, the commercial owners may vote separately as a class to elect their nominees; and(d) There is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. [19] In preparation for this application, the present chairman of the Board, Benjamin Goldstein, called meeting of the Board on April 27, 2011, at which time the chairman asked for the opinions of the board members respecting the interpretation of the bylaw and vote was taken with regard to the Board’s current interpretation of the bylaw. [20] vote was taken at the meeting of the Board, and resolution was passed by majority of to 1. None of the three commercial unit directors, Tom McClocklin Sr., Tom McClocklin Jr. or Sandy Rees, took part in the discussion or voted during the meeting. [21] By resolution, the Board of the Condominium Corporation determined that the following interpretation is, has been and continues to be the Board’s interpretation of the bylaws: That the Board of Directors hereby confirms that since October 9, 2009 it has been, and that it continues to be the opinion of the Board that the following is the proper interpretation of Section 3.3 of the Bylaws of the Corporation, where the Board is to consist, as it does now, of seven members: (a) The Commercial Owners are entitled to nominate up to persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the Commercial Owners’ nominees and where the owners neglect or refuse to cast their votes in such manner, the Commercial Owners may vote separately as class to elect their nominees; and (d) There is no restriction in the Bylaw limiting the right of the Commercial Owners to vote on positions to the Board. B. Relevant sections of Bylaw No. of Spadina Condominium Corporation [22] The relevant sections of Bylaw No. are: ARTICLE THREE BOARD MEMBERS ... Section 3.3 Election and Term a) The unit owners may elect the board members to hold office for term expiring not later than the close of the third annual meeting of the unit owners following the election. It is not necessary that all board members elected at meeting of unit owners hold office for the same term. board member not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of unit owners following his or her election. All board members retiring at any given election may stand for re‑election. b) If an election of board members is not held at the proper time, the incumbent board members shall continue in office until their successors are elected. c) Where the Board is to consist of three or four persons, the Commercial Owner may nominate one (and no more than one) nominee to the Board. Where the Board is to consist of five or six persons, the Commercial Owner may nominate up to (and no more than) two nominees to the Board. Where the Board consists of seven persons, the Commercial Owner may nominate up to (and no more than) three nominees to the Board. d) Where the terms of the Board members are staggered, such that not all of the positions on the Board are up for re‑election, section 3.3(c) shall be read subject to the provision that the Commercial Owner shall only [be] permitted to nominate such number of directors (if any) as will result in the representation set out in section 3.3(c). e) Subject to section 3.3(d), where the Commercial Owner has nominated someone to the Board pursuant to section 3.3(c), the unit owners shall cast their votes so as to elect such nominees to the Board. Where the unit owners neglect or refuse to so cast their votes, the Commercial Owner shall be entitled to vote separately as class to elect its nominee(s). ... ARTICLE SEVEN MEETINGS OF UNIT OWNERS ... Section 7.2 General Meetings a) All meetings of unit owners other than annual meetings shall be called general meetings. The board may, whenever it thinks fit, convene general meeting. b) The board, on the written request of owners or their designates entitled to vote who represent not less than 25% of the total unit factors for the units, shall convene general meeting no later than 45 days after the request is received by any member of the Board. ... Section 7.4 List of Unit Owners Entitled to Notice For every meeting of unit owners, the Corporation shall prepare list of unit owners, or first mortgagees and other persons entitled to vote at the meeting, showing the number of unit factors each such unit owner, first mortgagee, or such other person [is] entitled to vote. The unit owners, first mortgagees and other persons listed shall be those shown on the property register at the close of business on the day immediately preceding the day on which notice of the meeting is given. The list shall be available for examination by any unit owner during reasonable hours at the condominium premises. ... Section 7.7 Quorum quorum for the transaction of business at any meeting of unit owners shall be those persons representing majority of the unit factors held by those persons entitled to vote, present in person or by proxy, provided that at least 50% of the unit factors so represented must be unit factors held by Residential Owners, and 50% of the unit factors so represented must be unit factors held by the Commercial Owner. Section 7.8 Right to Vote Subject to the provisions of this paragraph, and of paragraph 7.9 as to the authorized representatives of any body corporate and paragraph 7.12 as to joint owners, at any meeting of unit owners in respect of which the Corporation has prepared the list referred to in paragraph 7.4, every person who is named in such list shall be entitled to vote the unit factors shown thereon opposite his or her name. In the absence of such list, every person shall be entitled to vote at the meeting who at the time is entered in the unit register as the owner, first mortgagee or other person entitled to vote with respect to one or more units. ... Section 7.14 Votes to Govern At any meeting of unit owners, every question shall, unless otherwise required by the Act or these bylaws, be determined by the majority of the votes cast on the question. In the case of an equality of votes, either upon show of hands or upon polled vote, the chairman of the meeting shall not be entitled to second or casting vote, and the motion shall be deemed to have been defeated. Section 7.15 Show of Hands Subject to the provisions of these bylaws, any question at meeting of unit owners shall be decided by show of hands unless polled vote on the question is required or demanded as set out below. Upon show of hands, every person who is present and entitled to vote (except as may be restricted by paragraphs 7.12 and 7.13), shall have one vote, regardless of the number of unit or unit factors he or she may own or represent. Whenever vote by show of hands has been taken, declaration by the chairman of the meeting that the vote upon the question has been carried by particular majority or not carried, and an entry to that effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the said question, and the result of the vote so taken shall be the decision of the unit owners upon the question. Section 7.16 Polled Votes On any question proposed for consideration at meeting of unit owners, and whether or not show of hands has already been taken, any unit owner, first mortgagee, proxyholder or other person entitled to vote at the meeting may require and demand polled vote. polled vote so required shall be taken in such manner as the chairman shall direct. request for polled vote may be withdrawn at any time prior to the taking of the polled vote. If polled vote is taken, each person present in person or by proxy and entitled to vote shall be entitled to the number of votes as corresponds to the unit factors for his unit or units, subject to the limitation as set forth in paragraphs 7.12 and 7.13. The result of the ballot so taken shall be the decision of the unit owners upon such question. [Emphasis added] C. Relevant provisions of The Condominium Property Act, 1993 [23] The relevant provisions of The Condominium Property Act, 1993, supra, are: 35(1) corporation is responsible for the enforcement of its bylaws and the control, management and administration of the units, and of the common property and common facilities. ... Board of Directors 37(1) corporation is to have board of directors that is constituted in accordance with the bylaws of the corporation. ... Duties of Board 39(1) Subject to any restriction imposed or direction given at general meeting, board shall exercise the powers and perform the duties of the corporation. ... Voting Rights of Owners 41(1) Subject to subsections (2) and (5) to (12), each owner has number of votes that bears the same proportion to the total number of votes as the owner’s unit factor bears to the total of the unit factors. (2) Subject to the right of any owner to ask for vote by unit factors in person or by proxy, the bylaws of corporation may provide for voting by show of hands for specified purposes. (3) Unless otherwise provided for in this Act, all questions proposed for the consideration of the owners at meeting of owners shall be determined by majority of the votes cast. ... Bylaws generally (3) The bylaws of corporation bind the corporation and the owners to the same extent as if the bylaws: (a) had been signed and sealed by the corporation and by each owner; and (b) contained covenants on the part of each owner with every other owner and with the corporation to observe, perform and be bound by all the provisions of the bylaws. ... Subject matter of bylaws 47(1) Subject to the regulations, corporation may pass bylaws: (a) governing the number, qualifications, nomination, election, remuneration, term of office and filling of vacancies of member of the board; (2) No bylaw shall be passed pursuant to subsection (1) that is contrary to this Act or the condominium plan. [Emphasis added] D. Analysis 1. Standard of Review [24] The applicant has brought this application pursuant to Rule 664 of The Queen’s Bench Rules. He seeks an order in the nature of declaration. [25] As stated by this Court in Anderson v. Owners: Condominium Plan 99SA34021, 2010 SKQB 53 (CanLII), 352 Sask. R. 106, in order to succeed on an application such as this one, the applicant must point to clear public or statutory duty on the part of the Condominium Corporation. As was determined in Anderson, condominium corporation does not meet the definition of body which owes public duty. However, in certain circumstances, condominium corporation owes statutory duty. [26] Section 35(1) of The Condominium Property Act, 1993, provides: 35(1) corporation is responsible for the enforcement of its bylaws and the control, management and administration of the units, and of the common property and common facilities. [27] condominium corporation is mandated by s. 35(1) of the Act to interpret and enforce its bylaws. In this case the Condominium Corporation, or more particularly its Board, has interpreted Section 3.3 of Bylaw No. as follows: That the Board of Directors hereby confirms that since October 9, 2009 it has been, and that it continues to be the opinion of the Board that the following is the proper interpretation of Section 3.3 of the Bylaws of the Corporation, where the Board is to consist, as it does now, of seven members: (a) The Commercial Owners are entitled to nominate up to persons for election to the Board; (b) All owners, residential and commercial, are entitled to vote on all nominees to the Board; (c) All owners have agreed to cast their votes so as to elect the Commercial Owners’ nominees and where the owners neglect or refuse to cast their votes in such manner, the Commercial Owners may vote separately as class to elect their nominees; and (d) There is no restriction in the Bylaw limiting the right of the Commercial Owners to vote on positions to the Board. [28] Although the applicant argued that the appropriate standard of review is correctness, the Court is not prepared to accept that proposition. The appropriate standard of review is reasonableness. [29] In Anderson, supra, our Court considered the standard of review to be applied when faced with an application for judicial review of condominium board’s decision. Although in that case the Court concluded that judicial review did not apply to discretionary decisions of condominium board, it concluded that in situation where judicial review did apply, such as statutory duty situation, the standard of review was reasonableness. At paragraphs 32 and 33, Goldenberg J. held: [32] If judicial review has application, then the standard of review is “what is reasonable [for the condominium association] in carrying out its statutory duty”: Buskell v. Linden Real Estate Services Inc., 2003 MBQB 211 (CanLII), [2004] W.W.R. 366, at para. 19; Baliwalla v. York Condominium Corp. No. 438, [2007] O.J. No. 1673, at para. 15; and Devlin v. Condominium Plan No. 9612647, 2002 ABQB 358 (CanLII), 318 A.R. 386, at para. 3. And additionally: [33] court ought not lightly to interfere in the decisions of democratically elected board of directors acting within its jurisdiction. Desjardins v. Winnipeg Condominium Corp. No. 75, 1990 CanLII 11081 (MB QB), [1991] W.W.R. 193 (Man. Q.B.), at para. 6. The court should defer to duly elected condominium boards, and only if the court is satisfied of improper conduct should they direct and/or grant any remedies. 934859 Alberta Inc. v. Condominium Corporation No. 0312180, 2007 ABQB 640 (CanLII), 434 A.R. 41, at paras. 54‑55. [30] As held in the Anderson decision, supra, due deference should be given to the Board with regard to its interpretation of the bylaw. [31] As outlined above, it is established law that when it comes to such an interpretation, the Board’s decision is entitled to deference. In Devlin v. Condominium Plan No. 9612647, 2002 ABQB 358 (CanLII), the Alberta Court of Queen’s Bench held at paragraph 3: [3] Bylaws are in place for good reason and should be enforced, and message will be sent by the Court that where the Board acts reasonably in carrying out its duty to enforce the bylaws and restrictive covenants, the Board will be supported by the Court, however, when the bylaw and restrictive covenant are clearly prohibited under the Condominium Property Act then the Court will intervene. [32] As well, the Ontario Court of Appeal stated in London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154 (CanLII), 221 O.A.C. 240, with regard to the deference to be paid to condominium boards when it came to the enforcement of condominium’s bylaws, at paragraph 6: [6] ... we consider that it is for the Condominium Corporation to interpret its Declaration and Bylaws and that so long as its interpretation is not unreasonable, the court should not interfere. [33] The Court has concluded that the interpretation of Section 3.3 of Bylaw No. as adopted by the board of directors of the Spadina Condominium Corporation is reasonable and consistent with the language of the bylaws. 2. Interpretation principles [34] The wording of Section 3.3 of Bylaw No. is clear, plain and unambiguous. [35] The applicant is asking the Court to interpret Section 3.3 of Bylaw No. in such way that the commercial owners would only be permitted to vote for their own nominees and would be barred from voting for or against anyone nominated by the residential owners. There is no specific provision in the bylaws that would allow such an interpretation resulting in such a restriction on the commercial owners’ voting rights. [36] In addition, within the bylaws of condominium corporation, the owners of the condominium units are able to agree upon how they will cast their votes but to prohibit an owner from voting altogether would be contrary to the voting rights as set out in s. 41 of the Act. [37] Section 41 of The Condominium Property Act, 1993, provides: 41(1) Subject to subsections (2) and (5) to (12), each owner has number of votes that bears the same proportion to the total number of votes as the owner’s unit factor bears to the total of the unit factors. (2) Subject to the right of any owner to ask for vote by unit factors in person or by proxy, the bylaws of corporation may provide for voting by show of hands for specified purposes. (3) Unless otherwise provided for in this Act, all questions proposed for the consideration of the owners at meeting of owners shall be determined by majority of the votes cast. [38] Further, s. 47(2) of The Condominium Property Act, 1993, provides: 47(2) No bylaw shall be passed pursuant to subsection (1) that is contrary to this Act or the condominium plan. [39] The Act provides that all owners are to vote on all questions proposed at any meeting. The applicant is asking the Court to interpret Section 3.3 of Bylaw No. in such way that the commercial owners would not be allowed to cast their vote on the remaining four positions on the Board. Section 3.3 of Bylaw No. does not expressly state that, and the applicant is asking that the Court imply that term within the bylaw. To do so would result in Section 3.3 of Bylaw No. being in contravention of s. 41 of the Act, and that is prohibited by s. 47 of the Act. The Court is not prepared to do so. [40] There was great deal of time spent during the argument of this matter on whether or not the Court should consider principles of contract interpretation in determining whether the Board had properly interpreted the bylaw. In considering those principles, the Court could ascertain the intention of the parties at the time the bylaws were enacted and could imply terms to give effect to that intention. The Court has concluded that principles of contract interpretation have no place within the scope of the within application, being the interpretation of condominium bylaw. This process is not analogous to the interpretation of contract. The owners of condominiums within condominium corporation are not in the same position as the parties to specific contract. [41] Although s. 44(3) of the Act makes reference to the bylaws of corporation binding the corporation and the owners to the same extent as if the bylaws had been signed and sealed by the corporation and by each owner, the resultant relationship is not the same as that of individual parties who had agreed to the terms of the contract. Notwithstanding some of the owners of condominium corporation not being in agreement with certain provisions of the bylaws, those same owners are bound to comply with all of the provisions of the bylaws eventually enacted by that condominium corporation. [42] Although as counsel for the applicant argued it was only an Alberta Provincial Court decision, this Court has concluded that it totally endorses the position taken by the Provincial Court of Alberta in Wilson v. Condominium Corp No. 021 1057, 2010 ABPC 150 (CanLII). That Court held that when considering whether Court can imply terms into condominium bylaw, the Court held at paragraph 23: 23 was not provided with any authority, nor was able to locate any, to support the proposition that trial judge is able to imply terms or provisions into condominium corporation’s by‑laws. In my view, principles of contract interpretation dealing with ascertaining the intention of the parties to contract and implying terms to give effect to that intention have no application to the interpretation of the rights and obligations created by by‑laws promulgated under the requirements imposed by legislation. By‑laws are not negotiated as between the condominium corporation and unit owners and [sic] my view the court should not be reading provisions into the by‑laws at the instance of either of the parties. [43] As such, this Court is not prepared to consider the arguments of the applicant’s counsel with regard to the intent of the applicant at the time the bylaws were enacted or apply other principles of contract interpretation in determining whether the Board’s interpretation of Section 3.3 of Bylaw No. was reasonable. E. Conclusion [44] For all of the reasons as outlined in this decision, the application of the applicant is dismissed. The interpretation of the board of directors of the Spadina Condominium Corporation of Section 3.3 of Bylaw No. 1, as confirmed in its resolution of April 27, 2011, is reasonable and one that this Court is not prepared to interfere with. [45] As indicated to counsel at the time of the application, if the matter of costs cannot be resolved as amongst the parties, leave is given to the parties to argue the matter of costs at time to be arranged with the Local Registrar. J. M.L. Dovell

The applicant is a residential unit owner in the condominium corporation. He sought a declaration pursuant to Queen's Bench Rule 664 interpreting the bylaws of the condominium corporation with respect to the voting rights of the commercial unit owners. The condominium has 32 units with the three largest units being commercial units. The remaining 29 units are residential. The parties agreed that the commercial owners were entitled to nominate and vote for three positions on the Board of Directors. A dispute arose as to whether the commercial owners were entitled to vote on the election of the positions on the Board designated for representatives of the residential unit holders. The Board of Directors passed a resolution interpreting the bylaw such that the commercial owners were entitled to nominate up to three people for election to the Board, all owners were entitled to vote on all nominees, all the owners agreed to cast their votes so as to elect the commercial owners nominees and where that does not happen the commercial owners are entitled to vote as a class to elect their nominees and there is no restriction in the bylaw limiting the right of the commercial owners to vote on positions to the Board. HELD The appropriate standard of review is that of reasonableness and deference must be given to the Board of Directors with regard to its interpretation of the bylaw. There is no specific provision in the bylaws that would restrict the voting rights of the commercial owners. Prohibiting any owner from voting altogether would be contrary to s. 41 of The Condominium Property Act because the Act provides that all owners are to vote on all questions proposed at any meeting. The proper interpretation of the bylaws has nothing to do with the principles of contract interpretation. The application was dismissed. The interpretation of the bylaw by the Board of Directors was reasonable and that Court was not prepared to interfere with it.

b_2011skqb219.txt

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: LeBlanc v. Khallaf, 2010 NSSC 219 Date: 20100608 Docket: SFHMCA-069695 Registry: Halifax Between: Heidi Crystal Elizabeth Jacqueline LeBlanc v. Mostafa Ahmed Khallaf Respondent Judge: The Honourable Justice Beryl MacDonald Heard: May 26, 2010 and June 2, 2010 in Halifax, Nova Scotia Written Decision: June 8, 2010 Counsel: Tammy Wohler, counsel for the Applicant Christine Doucet, counsel for the Respondent By the Court: [1] This is an interim proceeding and, as is the case with all proceedings involving children, must decide what is in the best interest of this particular child. However, the determination of this child’s best interest is made understanding that an interim order is intended to be of short duration and is to deal with the immediate problem of where child should live and what role each of the parents should play until court has an opportunity to conduct full investigation into the best interests of the child at later hearing. [2] In Marshall v. Marshall (1998) Carswell, N.S. 183, the Nova Scotia Court of Appeal approved the test applied by Judge Daley in W. (L.S.) v. W. (I.E.) (1989) Carswell, N.S. 410 for interim applications of this nature At paragraph of that decision Judge Daley wrote: “Given the focus on the welfare of the child at this point, the test to be applied on an application for an interim custody order is: what temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible. With this in mind, the following questions require consideration. (1) Where and with whom is the child residing at this time, (2) Where and with whom has the child been residing in the immediate past; if the residence of the child is different than #1, why and what were the considerations for the change in residence. (3) The short term needs of the child including: (a) age, educational and/or pre-school needs, (b) basic needs and any special needs, c) the relationship of the child with the competing parties, (d) the daily routine of the child; (4) Is the current residence of the child suitable temporary residence for the child taking into consideration the short term needs of the child and (a) the person(s) with whom the child would be residing; (b) the physical surrounding including the type of living and sleeping arrangements, closeness to the immediate community and health, c) proximity to the pre-school or school faculty at which the child usually attends, (d) availability of access to the child by the non-custodial parent and/or family members; (5) Is the child in danger of physical, emotional or psychological harm if the child were left temporarily in the care of the present custodian and in the present home. [3] In Marshall v. Marshall the Court of Appeal summarized this test and stated in paragraph 26 “.. If there is no reason to change the existing situation, that situation should continue until the trial...” [4] Courts are also directed to ensure the terms of the interim order are sufficient to maintain the child’s relationship with both parents pending trial. [5] The testimony of the parties and their affidavits confirm the following information: The parties commenced relationship in early 2007 and began residing together in May of that year. They underwent some form of marriage ceremony in April 2007. It is not clear that ceremony is recognized in Canada for purposes of the Divorce Act. The child was born December 1, 2007 and is now approximately years old. The parties stopped living together in early 2008 at which time the Mother moved into her mother’s apartment taking the child with her. Approximately weeks later the Father moved into his brother’s apartment where he continues to reside. The Mother moved into her own apartment in May 2008. Her apartment was in the same building as is her mother’s apartment. She has now resumed living with her mother who does assist her in caring for the child. The child has an allergy to peanuts severe enough to require the parties to have an e-pie pen available at all times The Father is not Canadian citizen but he is permanent resident. His nationality is Egyptian and both he and the Mother refer to him as “Muslim” take this to mean person who follows the Islamic faith although he does not appear to be strict observer to the tenets of that faith. This child does not have passport. This child attends day care center, and has done so since January 19, 2009. [6] All other significant information provided by the Mother and grandmother, both in testimony and in affidavits, differs materially from the information given by the Father in his testimony and affidavits. This difference is, unfortunately, not an unusual situation in these matters. will never know the “truth” about what really happened. All can do is apply the legal principles developed by our courts to assess “credibility”. The action imbedded in this word requires me to sort out reliable from unreliable information and to assess what information is most persuasive. [7] In assessing credibility adopt the outline set out in Novak Estate, Re, 2008 NSSC 283 (CanLII), at paragraphs 36 and 37: [36] There are many tools for assessing credibility: a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness' testimony. c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution R. v. Mah, 2002 NSCA 99 (CanLII) at paragraphs 70‑75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) at paragraphs 51‑56). [37] There is no principle of law that requires trier of fact to believe or disbelieve witness's testimony in its entirety. On the contrary, trier may believe none, part or all of witness's evidence, and may attach different weight to different parts of witness's evidence. (See R. v. D.R. [1966] S.C.R. 291 at paragraph 93 and R. v. J.H. supra). [8] In assessing the credibility of each of these parties have been urged by the Mother to accept all of the evidence she has provided as reliable and to reject the evidence of the Father. am not satisfied all of her evidence is reliable or that all of the Father’s evidence is unreliable. He has admitted he lied to her friends in an attempt to make arrangements to see the child. do not draw the conclusion from those events that everything else he has said is lie. [9] The Mother has nothing positive to say about the Father, notwithstanding her admission that she had tried to repair their relationship after their separation. This negativity calls into question her objectivity in recalling past events. For example, the Mother, in paragraph 12 of her affidavit sworn March 26, 2010, states, “Since our separation in March, 2008, (the father) has never asked to see (the child) alone or to take her to his place. He told me that he didn’t want to take her out....” The Father in his affidavit sworn May 17, 2010 states in paragraph c) “.... would also sometimes take (the child) to the Halifax residence of my mother’s friend, who would cook us traditional meal.....” In her reply affidavit sworn May 26, 2010 in paragraph 13 the Mother states, “...(the child) has only been to (his mother’s friends house) in ** two times of my knowledge nor has she been alone in his care long enough for him to have taken (the child) without my knowledge, especially for traditional Arab dinner.” Then she states in paragraph 21" (The father) has never taken (the child) anywhere without one of my family members present.” But because she admits the Father has taken the child to his mother’s friend’s house he may have done so while alone, as he suggests, and it is implicit he went there without her or one of her family members. In short she often exaggerates or overstates her case and this does effect the reliability of her evidence. The reality is neither of these parents have provided completely reliable evidence and must analyze their evidence allegation by allegation. [10] In this interim preceding the Mother is requesting the child be placed in her sole custodial care with supervised access for the Father at Veith House. She had proposed number of persons who were prepared to act as supervisors but the Father is not prepared to have his access supervised by them. [11] The Father is seeking joint custodial arrangement with unsupervised access. He has not provided specific schedule for that unsupervised access. He has recognized, because the child has not seen him for approximately months, period of supervised reintroduction would be appropriate. He proposes that his first two weeks of access should be supervised through Veith House twice weekly for one evening visit and one daytime visit. [12] The Maintenance and Custody Act, R.S.N.S. 1989, c. 160, does provide direction about the relationship between parents and their children and directs: 18(4) Subject to this Act, the father and mother of child are joint guardians and are equally entitled to the care and custody of the child unless otherwise (a) provided by the Guardianship Act; or (b) ordered by court of competent jurisdiction. [13] Joint custody or joint guardianship is difficult concept for many to understand. It does not refer to physical closeness to the child nor to shared day-to-day parenting. It is philosophical concept in many ways. It requires parents to remain as committed to their children as they were when living together. When child is ill and treatment must be chosen, when choice must be made about schooling, when there is decision to be made about religious training, when child is in trouble with the law or has behavioural problems, joint custody means the parents will discuss these issues and come to joint decision, as parents do in intact families. Children benefit from joint decision making because they will receive decision based upon the expedience, knowledge and analysis provided by both of their parents. [14] Joint parenting does not mean one parent has the right to micro-manage the daily care of child by the other parent. Each has the right to make independent decisions in that sphere when the child is in his or her physical care. Absent evidence to the contrary the expectation is that each parent loves the child and would do nothing to cause harm to the child. Parenting styles may be different, but unless there is clear evidence that the style of parenting harms the best interest of the child in some material way, the style of parenting is generally not relevant to the choice of parenting plan. [15] Conflict between parents does not necessarily mean joint custody is inappropriate. Gillis v. Gillis (1995), 1995 CanLII 4416 (NS SC), 145 N.S.R. (2d) 241 (N.S.S.C.); Rivers v. Rivers (1994), 1994 CanLII 4318 (NS SC), 130 N.S.R. (2d) 219 (N.S.S.C. ). It has been suggested that parents who have joint custody may be less likely to consider their parenting role to have been diminished and therefore be less likely to withdraw from meaningful contact with their children. Continuing to respect the role and responsibility both parents have in fulfilling parental obligations may encourage parents to overcome existing conflict between them. These are suggestions found in reported decisions. However, joint custody must not be granted as form of wishful thinking. The nature and extent of the conflict between the parties must be analysed to determine if joint custody is in child’s best interest. [16] There has been conflict between these parents. They no longer have face to face contact. Their conflict may have been fuelled by the existence of these proceedings. Excerpts appearing on pages 56 an 59 from Norris Weisman’s article entitled, On Access After Parental Separation, 36 R.F.L. (3d) 35 explain this phenomena: ...the adversarial nature of litigious proceedings can shift the focus of the hearing away from the children and their needs towards an emphasis on the martial sins of the parents; revive and escalate the conflict between the parents; harden their positions; and tempt them to exert pressure upon the child to choose one parent over the other........ ...the litigation itself is often motivated by need for public vindication, to ward off depression, or salvage shattered self –esteem. These parents enter into litigation to prove that the other spouse has behaved badly or is wrong, and, by contrast, that they themselves are good and right. CUSTODIAL ARRANGEMENT [17] am satisfied that these parties have not had particularly good relationship from the very beginning. It is apparent that neither fulfilled the other’s expectations, some of which may have been culturally influenced, although the evidence of that is inconclusive. Presently neither parent has respect for the other although have noted the Father appears more kindly disposed toward the Mother than she is toward him The Mother has nothing positive to say about the Father nor is she prepared to admit that he has any genuine desire to parent his child. On the other hand am satisfied the Father was not significantly involved in carrying out parental responsibilities when the parties were living together nor after their separation. have no concrete examples before me suggesting these parents have exercised joint decision-making in respect to this child. The evidence do accept is that the Father was more wrapped up in his own life and in his relationship with the Mother than he was in discussing arrangements to be made from time to time for the child. He expected the Mother to look after these details and she did. In addition the Father is awaiting trial on charge of assault against the Mother and he may only have contact with her through third parties for the purpose of arranging access. This is not circumstance under which joint custodial arrangement can be organized. At the present time the child’s best interest, on an interim basis, is to be in the sole custody of her Mother. [18] The Mother is seeking to have the Father’s access supervised. In Miller v. McMaster, 2005 NSSC 259 (CanLII), Justice Forgeron commented upon the situations in which it is appropriate to require parent’s access to be supervised: [11] Supervised access is not long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following: [a] where the child requires protection from physical, sexual or emotional abuse; [b] where the child is being introduced or reintroduced into the life of parent after significant absence; [c] where there are substance abuse issues; or [d] where there are clinical issues involving the access parent. [12] Supervised access is not appropriate if it’s sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the child and each application is to be determined on its own merits. [19] To this list would add that supervision is often appropriate where there are material concerns about parent’s ability to perform parenting tasks [20] The Mother’s reasons for her request for supervision are as follows:- Because of the Father’s family ties in Egypt and Kuwait she is concerned he will be able to obtain an Egyptian passport for their daughter and remove her permanently from Nova Scotia. The Father is an abuser of marijuana and because of this abuse the child will be at risk if in his care unsupervised. The Father has verbally and physically abused her and therefore presents risk of harm to the child. The Father has made threats to physically harm the child. The Father minimizes the significance of the child’s allergy to nuts and nut products and therefore will be inattentive to her safety. The Father has not had contact with this child since January 2010. The Father’s parenting skills are inadequate and he would need training prior to caring for this child unsupervised. FLIGHT RISK [21] If the Father attempted to flee with this child to Egypt or elsewhere he would encounter numerous difficulties. Nevertheless the Mother suggests should accept this as risk proven on balance of probabilities on the evidence before me. The only “evidence” provided is that the Father is from another country and still has family living in Egypt and Kuwait. She has suggested he has threatened her with removal of the child which he has denied. Given the volatile nature of their relationship would not be surprised if in anger he may have made statement that he would take the child away from her but the evidence does not suggest realistic likelihood of his doing so. The Mother also suspects he may be able to obtain passport for the child from Egypt that would permit him to remove the child from Canada but she offers no information to suggest how this might be possible nor to support her argument that the insertion of clause preventing the issuing of passport to the child without consent of both parents will prevent this from occurring. cannot act on suspicions. must act on evidence and have none to justify the insertion of this clause Canadian passport authorities will not issue passport for child without the consent of both parents unless the parent requesting the passport is sole custodial parent and there is no specific access provided to the other parent. As result there is no means by which the Father can obtain Canadian passport for this child. [22] The threat of removal of the child from her present residence in and of itself would not be sufficient reason to order supervised access. There must be evidence to suggest there is real likelihood that the parent making the threat has the capacity and will to carry out the threat. In this case that evidence is lacking. MARIJUANA USE [23] The Father has admitted to marijuana use. The Mother alleges he abuses this drug to the point of impairment and when impaired he would be unable to properly supervise the child or exercise good judgment in respect to the child’s care. There is little evidence to substantiate this allegation. The Father does acknowledge he uses marijuana but he denies abuse. In addition, his evidence is that he would not use this substance while caring for his daughter and would be prepared to abide by condition that he not be under the influence of marijuana at least 12 hours before the time when he would exercise access with the child. am satisfied the child’s interests will be protected by the inclusion of this provision in the order. DOMESTIC ABUSE [24] The evidence convinces me that the Father has made hurtful and unkind remarks to the Mother. am also satisfied there was an altercation between them during which he damaged her jacket. This is admitted by the Father. What he does not admit is any one sided slapping or pushing. Both he and the Mother were pushing and shoving each other. The words “domestic violence” do and have defined number of behaviours including isolated or rare incidents in relationship push, shove, rudeness, disrespect, and name calling all of which are unpleasant to those on the receiving end of these behaviours but which should not necessarily be accepted as an indication that the relationship requires judicial intervention. If these behaviours have no pattern of repetition and leave little if any lasting impact upon the recipient they need not be monitored with the same vigilance as will be the case when coercive control is involved. Counselling programs for persons who are “unpleasant” toward others may be quite different from those designed for persons who resort to abuse as mechanism of coercive control. Differentiation must be made between these two dynamics when both may be and frequently are referred to as “domestic violence”. In this decision use the term only to refer to violence against an intimate partner which has as its purpose coercive control over that partner. [25] Children are harmed emotionally and psychologically when living in home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Government of Canada Department of Justice website providing information about spousal abuse. On the evidence before me I cannot categorize the violence that occurred between these parties during the incident in question, nor the other unpleasant events that have occurred in their relationship, as domestic violence requiring the Father’s access to be supervised. Both parties during the most recent incident had an opportunity to prevent escalation. The Mother could have allowed the Father to take the jacket and leave. The Father could have left without getting into tug-of-war over the jacket. Both made very bad judgments. THREAT TO HARM THE CHILD AND ATTENTION TO ALLERGIES [26] The Father does not admit the allegations made by the Mother about threats to harm the child nor about his placing the child in situations where there are peanuts present. The evidence is inconclusive and as result the Mother has not proven these allegations on the necessary balance of probabilities. LACK OF RECENT CONTACT [27] It is fact the Father has not had contact with the child since January 2010 Given her age the parties agree there would need to be gradual reintroduction between Father and child and that this should be managed by utilizing the services provided by Veith House. PARENTING ABILITY [28] The Mother was the primary care parent during her relationship with the Father. While am satisfied the Father loves the child and would do no purposeful harm am not satisfied he fully understands how to properly care for year old child. This does not mean he cannot learn how to perform the tasks that will be required of him and to assist him in that regard will require him to attend course in parenting such as those offered by Family SOS, for example, so that he will be better prepared to take on these tasks in the future. am not entirely satisfied the Father understands the nutritional requirements of child this age and therefore concerned about the meals he might prepare. do believe he is capable of cooking and expect he will seek out information, perhaps from Family SOS, about the types of meals suitable for children of different ages. These deficiencies do not suggest he could not care for the child for two to three hour period unsupervised. TERMS OF THE ORDER [29] As result of these findings the Interim Order will contain the following terms: [30] The Mother shall have sole custody, care and control of the child. [31] The Father shall have supervised access for the maximum time available through Veith House twice a week. After exercising this access for a period of six weeks Veith House personal are to prepare and provide a report to the parties about the interaction between parent and child and if no significant concerns are identified access shall be as follows:- Two weeks after the receipt of the report from Veith House the Father shall begin unsupervised access to occur twice a week, the first visit on a weekday afternoon/evening for a period of two hours and the second visit on a weekend for a period of four hours, the date and time to be reflected in the order based upon the agreement of the parties. If the parties cannot agree upon the date and time retain jurisdiction to do so. If the report from Veith House reflects significant concerns supervised access is to continue until positive report is received after which the provisions for unsupervised access shall apply. The reports are to be prepared by Veith House personal and provided to the parties in six week intervals. [32] If the parties disagree about the significance of any concern reported by Veith House personal retain jurisdiction to adjudicate upon this matter. [33] The Father is not to be under the influence of any non-prescription drug 12 hours before and while he has the child in his care. [34] The Father is to attend a course in parenting such as those offered by Family SOS so that he will be informed about child development and understand how to appropriately parent the child. Beryl MacDonald, J.S.C.

The parties' hostility prevented them from reaching an agreement on interim parenting arrangements for their two-and-a-half-year-old child. There was a no contact order in place pending the outcome of domestic violence charges against the father (who had not seen the child for four months). The mother had nothing positive to say about him. They disagreed about the extent of his marijuana use, and the extent of his involvement with the child. He agreed to abstain from drugs around the child and for 12 hours before access. The mother expressed concern the father was a flight risk because he was from Egypt and had family support outside the country. Sole custody to the mother, with supervised access for a period of time (to reintroduce the father to the child), moving to increasingly longer periods of daytime access. The father must complete a parenting course to better learn how to meet the child's various needs. There was insufficient evidence to show he is unable to protect the child from her severe nut allergy. There was insufficient evidence to establish he is a flight risk. Even if he had threatened to flee with the child, it is relevant that he lacks the means to do so. While there has been unpleasantness and some violence between the parties, the evidence does not establish domestic violence of a nature that would require supervised access on an ongoing basis.

8_2010nssc219.txt

nan 2004 SKQB 372 Q.B.G. A.D. 2003 No. 2306 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: THE CITY OF REGINA and GARY WAYNE KIVELA RESPONDENT (COMPLAINANT) and SASKATCHEWAN HUMAN RIGHTS COMMISSION and CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL NO. 21 RESPONDENTS AND Q.B.G. A.D. 2003 No. 2342 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL NO. and GARY WAYNE KIVELA RESPONDENT (COMPLAINANT) and SASKATCHEWAN HUMAN RIGHTS COMMISSION and THE CITY OF REGINA RESPONDENTS Gail D. Wartman for the City of Regina Gary Wayne Kivela, self-represented Milton C. Woodard, Q.C. for the Saskatchewan Human Rights Commission Neil R. McLeod, Q.C. for Canadian Union of Public Employees Local No. 21 JUDGMENT BARCLAY J. September 16, 2004 [1] This is an appeal by the City of Regina (the “City”) and Canadian Union of Public Employees Local 21 (“CUPE”) from a decision dated October 10, 2003, of Roger J. F. LePage, sitting as a Tribunal (the “Tribunal”) under The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”), in the matter of complaints filed by Gary Wayne Kivela (“Mr. Kivela”), against his employer the City. [2] The grounds of appeal in respect of the City are as follows. The Tribunal erred in law in ruling that Mr. Kivela made his complaint within the Code’s limitation period. The Tribunal further erred in law in finding that the City was not prejudiced by the considerable time that has elapsed since many of the events raised since this complaint took place; The Tribunal erred in law in deciding that the City was responsible for harassment against Mr. Kivela, factoring that finding into the overall decision on liability and remedy for discrimination: Procedurally, during the hearing of this matter, and later, in its written submissions, the Saskatchewan Human Rights Commission (“Commission”) took the position that harassment was no longer an issue being pursued in the proceedings, with the result that the City presented limited evidence on the issue of harassment; The Tribunal has improperly imparted to the City burden akin to vicarious liability or fiduciary duty regarding the alleged acts of harassment which either were unknown to the supervisors of Mr. Kivela, or were events in which such supervisors acted appropriately in the circumstances; The Tribunal erred in its application of the law on the duty to accommodate in ruling that the City should also have accommodated Mr. Kivela retroactively when the City took steps in 1996 to remedy the situation of others passing Mr. Kivela by in acquiring seniority. The Tribunal further erred in failing to find that the City accommodated Mr. Kivela adequately, reasonably, and to the point of undue hardship; The Tribunal erred in its interpretation of the concept of “undue hardship” as it is defined in paragraph 2(1)(q) of the Code and in the common law. The Tribunal erred in law in failing to recognize the legal significance of Mr. Kivela’s resignation from his employment with the City. [3] As to the position of CUPE with respect to liability, the main grounds of appeal are as follows: The Tribunal erred in law in finding that the City had discriminated against Mr. Kivela, in contravention of the Code, by finding that the City had failed to reasonably accommodate him; The Tribunal erred in law in finding that the resignation of Mr. Kivela from the employ of the City in 1999, was result of discriminatory treatment. [4] During oral argument it became clear that the main issues on the appeal were the duty to accommodate and the alleged resignation of Mr. Kivela. [5] Both the City and CUPE take issue with certain findings of fact made by the Tribunal. Notwithstanding their concerns, am of the view that the facts which are set out in some detail in the decision of the Tribunal and in the brief of the Commission are reasonably accurate and have been referred to in my judgment. Here the appeal from the Tribunal is only on question of law (s. 32 of the Code). By inference this denies the existence of any appeal on question of fact. As stated by La Forest J. in the Supreme Court of Canada decision in Kourtessis v. Minister of National Revenue, 1993 CanLII 137 (SCC), [1993] S.C.R. 53 at 69-70: Appeals are solely creatures of statute; see R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is widespread expectation that there must be some way to appeal the decision of court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature. [6] Mr. Kivela filed a complaint under Part II of the Code, alleging that CUPE discriminated against him on the basis of his disability. Mr. Kivela alleges the following: have disability, Cerebral Palsy. was employed as truck driver by the City of Regina from July 1982 until November 12, 1998 during which time was member of the Canadian Union of Public Employees, Local 21. During my employment, was denied permanent position. was kept on casual status for more than 15 years, which was highly unusual. was also paid less than other worker’s [sic] doing the same work. raised my concerns with my union but they did not represent my interests or bargain fairly on my behalf. believe my disability was factor in their inaction. have reasonable grounds to believe, and do believe, the Canadian Union of Public Employees (CUPE) Local 21 discriminated against me in regard to employment because of my disability, contrary to Section 18 of The Saskatchewan Human Rights Code. [7] Mr. Kivela also filed similar complaint against the City. It reads as follows: have disability, Cerebral Palsy. was employed as truck driver by the City of Regina from July 1982 until November 12, 1998. During my employment, was discriminated against by the City of Regina. For example, for the first three or four years was paid $5.00 less per hour than others doing the same job. was kept in casual position as long as was there, even though people who started after me moved on to permanent positions. believe the City of Regina could have accommodated me in permanent position by giving me duties could perform along with driving truck. In 1998, left my employment because of this discrimination. have reasonable grounds to believe, and do believe, the City of Regina discriminated against me in the terms and conditions of my employment because of my disability, contrary to Section 16(1) of The Saskatchewan Human Rights Code. [8] The City and CUPE deny that Mr. Kivela was discriminated against on the basis of his disability. They argue that they have met their duty to accommodate with regards to Mr. Kivela as an employee of the City. [9] The Tribunal heard five days of testimony from witnesses for both Mr. Kivela, the City and CUPE, as well as oral argument from their respective counsel and from Mr. Kivela personally. [10] Mr. Kivela is the complainant in this case. Mr. Kivela was born in Whitewood, Saskatchewan, on January 17, 1950. He has had Cerebral Palsy since birth. Cerebral Palsy is qualitative motor disorder caused by damage to the brain. common effect of Cerebral Palsy is lack of muscle control and body movements. It is not progressive disease. Rather, Cerebral Palsy conditions may improve, worsen or remain unchanged. Mr. Kivela’s Cerebral Palsy is visible through his lack of control over his muscles and in his speech. He walks with considerable difficulty, using cane to help his balance. Mr. Kivela’s speech is also affected by his Cerebral Palsy, in that his speech is slow and slurred and often difficult to understand. Today, Mr. Kivela experiences further health problems, such as osteoarthritis of the major joints of his knees and feet, resulting in further degeneration of his physical capacity. [11] Mr. Kivela came to be employed as casual truck driver with the City from July 5, 1982 until November 12, 1998. The City and CUPE accommodated him initially to allow him to occupy this position. Driving an eight-ton tandem axle truck owned by the City, Mr. Kivela hauled gravel, slag, street sweepings, asphalt and snow. To drive the eight-ton truck, Mr. Kivela possessed the necessary A-3 licence, and special modifications were made to the truck to accommodate Mr. Kivela’s disability. Modifications included an extra step into the truck, raised floor boards and special hand levers. [12] As casual employee with the City, Mr. Kivela began work in the spring (April-May), and would be laid off in the fall (October-November), the exact work period being dependent upon weather conditions and his level of seniority. Mr. Kivela’s casual employment hours always entitled him to collect Employment Insurance (“EI”) in the winter. [13] Because of Mr. Kivela’s Cerebral Palsy, he is limited in his ability to perform certain tasks of physical labour in his employment with the City. Thus, Mr. Kivela’s job was confined to hauling materials with an eight-ton tandem truck. While Mr. Kivela was somewhat slower in manoeuvring his unit, and required special assistance in maintaining his unit, the City administration and CUPE were both pleased by his work and ambition to be independent. [14] In the spring, Mr. Kivela often began hauling street sweepings, eventually working on the asphalt, hauling gravel, or any other material the City needed to be hauled. The tandem truck he drove was one of the 12 or 13 trucks purchased by the City in 1982. Mr. Kivela drove the same truck until November 12, 1998. In 1994, the City purchased semi-trailer trucks to replace most of their tandem trucks. Mr. Kivela testified that the Highway Board did not want to give him the required A-1 licence to drive semi-trailer truck. After the purchase of the semi-trailer trucks, Mr. Kivela experienced reduction in the amount of his work. The semi-trailers essentially took over hauling the materials that the tandems used to haul. In one effort to ensure Mr. Kivela did not lose hours, belly plow was attached to his truck enabling him to plow snow in back alleys during the winter. However, once the City began using the semi-trailers, Mr. Kivela testified that 90% of the time he was finished work by 2:00 p.m. In addition, fellow employees often told Mr. Kivela to “get lost for an hour or two,” in the afternoon. Although he would still receive his wage, this resulted in feelings of embarrassment for Mr. Kivela. [15] Mr. Kivela was first hired as casual employee with the City and remained casual throughout his 16-year career. In his initial hire, Mr. Kivela was accommodated, as he did not have the physical capacity to work as labourer, the normal entry level position with the City. With the agreement of CUPE, accommodation was made to hire Mr. Kivela as casual employee in roadway construction and he was assigned to drive tandem truck. Mr. Kivela would not have to serve time as casual labourer to acquire seniority before being assigned to drive truck. At first, Mr. Kivela was paid as labourer until his seniority would give him priority to drive truck. At that point, CUPE negotiated pay scale for Mr. Kivela, reducing his pay by 4% to reflect the jobs and duties he was unable to perform, such as vehicle inspection which represented 20 minutes every eight hour shift. Thus, Mr. Kivela received 4% less in wages than other comparable City employees right up until his last day of work. During this hearing, the City acknowledged the wage differential was inappropriate and compensated Mr. Kivela in the amount of $8,902.00. [16] Mr. Kivela boasts an unblemished driving record for the 16 years he was employed with the City. Throughout Mr. Kivela’s testimony, recurring theme was obvious, in that his main goal throughout his 16 years with the City was to go from casual employee status to become permanent employee with the City. His efforts to convince the City to give him permanent position were endless. Mr. Kivela communicated his desire and intention to become permanent employee through numerous attendances at City Hall and the Public Works Committee. On November 15, 1982, Mr. Kivela made submission to City Council asking to be put on permanent or to have contract, and made other submissions on November 1, 1983. On April 23, 1990, Mr. Kivela again wrote to the City and complained about not being made permanent. In the fall of the same year, Mr. Kivela had meeting with the City’s Administrative Services Manager, Warren Bobbee expressing his concerns about becoming permanent employee. In December 1991, Mr. Kivela again made submission to City Council to be put on permanent staff or to secure long-term contract with the City. In addition to these efforts, Mr. Kivela applied twice for permanent jobs. The evidence shows that Mr. Kivela also directly sought help from CUPE on one occasion to attend meeting at City Hall in 1996 or 1997. His testimony was that CUPE told him it was up to the City to give him permanent status. [17] Seniority is the process by which casual employees may gain permanent status. Seniority within certain division will determine who is the first to be rehired in the spring and who is the last to be laid off in the fall. Mr. Kivela worked in the Roadway Construction Division of the Public Works Department. Casual employees within the Roadway Construction Division are recalled according to their seniority in comparison with other casual employees in Roadway Construction. As an example, casual employee in Water Distribution could not claim the right to be recalled into Roadway Construction based on seniority. However, in bidding for permanent positions, seniority throughout the Department is considered. Permanent employees have priority over casual employees in bidding for any permanent position, amongst those who are qualified. If there are no qualified permanent employees who want to transfer into the position, then priority is determined between casual employees based on seniority, amongst those who are qualified. [18] Seniority for permanent employees is determined by reference to the date of appointment to permanent position. permanent employee gets seniority date and has priority over other employees who have more recent appointment date. All permanent employees have priority over casual employees no matter how recent their appointment. Seniority for casual employees is determined by total number of hours worked. Separate seniority lists are maintained for both casual and permanent employees and updated regularly. At any time City employee can determine who they have priority over and who has priority over them. The seniority lists were much in evidence before the Tribunal. [19] In order to help explain the impact of the seniority system on Mr. Kivela, it is useful to describe how he was first hired by the City in 1982. The City could not have employed Mr. Kivela in the first place without significant accommodation within the seniority system. The entry-level position for every employee within CUPE’s jurisdiction (outside workers) is as Labourer I, which, as the name indicates, involves physically demanding work. This is the lowest position in terms of work assignment, skill level and rate of pay. The usual process is that applicants are hired on as Labourer in casual position and then as their seniority increases they can apply for other positions. Labourer employees have to compete with other employees with more seniority, but they always have priority over external applicants. It is possible that when highly skilled position needs to be filled, an external applicant can be hired if there is no internal employee with the necessary qualifications. But this was rare circumstance and it certainly would not have happened with respect to the truck driving positions. [20] Because of his Cerebral Palsy, Mr. Kivela could not perform the work of Labourer I. He could only drive truck. The City has had number of truck driver positions over the years, usually referred to in the Collective Bargaining Agreement as an Operator II. Had Mr. Kivela been able to gain employment with the City he would eventually have been able to bid into an Operator II position when he became the person with the most seniority. But it would be impossible for Mr. Kivela to ever gain employment with the City because the entry-level position was something he could not do because of his disability. The requirement of building up seniority as Labourer presented an insurmountable barrier for Mr. Kivela because of his disability. [21] In approximately 1981/1982, Mr. Kivela had his own truck and was lobbying the City to provide him with hauling contracts. It is fair to say that Mr. Kivela himself did not understand the potential to become City employee. For variety of reasons, simply providing Mr. Kivela with his own contracts was not possible. However, the City did arrange, with CUPE’s cooperation, to bring Mr. Kivela on staff in special casual position, with the approximate rate of pay for Labourer I, but with truck driving assignment. Several years later when Mr. Kivela would have had the seniority to bid into truck driving position, he was reclassified as casual truck driver and given the prevailing rate of pay for truck driver less small amount to reflect the fact that there were some tasks he could not perform. In this way Mr. Kivela was allowed to bypass the barrier that otherwise would have prevented person with Cerebral Palsy, no matter how skilled, from ever becoming truck driver with the City. In order for this scheme to work, both the City and CUPE had to agree to forego the seniority rights in the Collective Bargaining Agreement. Otherwise, someone already working as Labourer would have had priority to be assigned to truck. [22] Mr. Kivela was, in each season after 1982 and until the end of his employment, casual employee. He was called back for the construction season, in order of his seniority, and assigned to drive tandem truck. Other casual employees with more seniority than Mr. Kivela either could not or did not use their seniority to bump Mr. Kivela off his truck. It was an informal arrangement that was never tested in the grievance process. casual employee, with more seniority, would still be hired back in the spring ahead of Mr. Kivela and laid off in the fall after him, even if the work available was driving tandem truck. But as soon as Mr. Kivela’s name came up on the seniority list, he was brought back and assigned to tandem truck. [23] Because Mr. Kivela could only drive truck, he was not able to maintain his position on the seniority list. number of casual employees, who started after Mr. Kivela, and who in 1989 had fewer hours of total seniority, were able to work more hours than Mr. Kivela, pass him in total hours and thereby gain seniority ahead of him. [24] In the spring and fall of each year, casual employees had opportunities to continue working at stock piling, general maintenance, putting up snow fences, and other physical activities. Other employees gained seniority advantage over Mr. Kivela by working at these jobs he could not do because of his disability. [25] The conclusion is inescapable that the reason Mr. Kivela was passed in seniority was because others worked at jobs that Mr. Kivela could not do. The other theoretical possibilities are that others passed Mr. Kivela because either he turned down work other than truck driving that he could do or that others gained more hours driving truck when Mr. Kivela did not want to or was otherwise unavailable. Neither of these theoretical possibilities have any substance in fact. The evidence was that Mr. Kivela was always enthusiastic about working and never turned down any work driving truck. Truck driving was his life. An employee who had less seniority than Mr. Kivela could not bump him off his truck and therefore could never gain more seniority over Mr. Kivela by driving truck because Mr. Kivela would be there driving as well. They could only gain more seniority by working at jobs other than truck driving at time when there was no truck driving for Mr. Kivela. [26] The seniority lists show that in 1989 Mr. Kivela had more hours of seniority than William Hildebrand, Delbert Cyr, Tim LaFontaine, Tony Rope, Kerry Rusk and Jeff Dodds. By December 31, 1992, Hildebrand had passed Mr. Kivela. By July 21, 1993, all of Rope, Rusk and Cyr had passed Mr. Kivela. These individuals, as between themselves, changed order on the seniority lists as they made personal choices, or got more work as result of special skills or from being in the right place at the right time. But the fact of the matter is that they all accessed work opportunities that are not available to Mr. Kivela and, because of that, they gained priority for further opportunities in priority over Mr. Kivela. [27] The fact that others passed Mr. Kivela on the casual seniority lists had two major effects. First, any individual with more seniority would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. He was still recalled and laid off according to his seniority. Those who had gained more seniority by doing work that Mr. Kivela could not do, also had priority over Mr. Kivela, even to drive truck, when recall and layoffs were occurring. Secondly, those who had gained more casual seniority had priority over Mr. Kivela to bid on permanent positions. [28] The manner in which permanent positions were filled also worked to Mr. Kivela’s disadvantage. Kevin Faul testified that most of his tandem truck drivers (those in his division) occupied permanent positions. There would be as many permanent tandem truck driver positions as the City felt were needed on year round basis. But the only way casual employees became permanent truck drivers was to bid into other permanent positions, then, when the next permanent truck driver position came open, the employee could use his seniority as permanent employee to bid back into this position. However, because of his disability, Mr. Kivela could not perform any of the other permanent jobs. In effect, Mr. Kivela was in exactly the same position he was in, in 1982. The only way he could gain the seniority necessary to work at the job he was capable of performing was to first work at jobs he was not capable of performing because of his disability. As with the casual positions, no other permanent position has been identified which Mr. Kivela could do other than driving truck. Witnesses Behman, for the City, and Cronin for CUPE clearly understood that it would be almost impossible for Mr. Kivela to ever get position as permanent truck driver. [29] Both the City and CUPE understood that some further accommodation in addition to what had already been arranged in 1996 was necessary and they were prepared to make that happen. The accommodation plan was to allow Mr. Kivela to fill position he could not do and then assign him as permanent employee to drive tandem truck. Again, it was almost exactly the same solution that was implemented in 1982 when the City and CUPE agreed to hire Mr. Kivela as labourer and yet assign him to truck driving duties. [30] The City and CUPE were too late in developing their plan. The plan was conceived in approximately early 1999, to be executed when Mr. Kivela got to the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work. It was assumed that the appropriate time to give the next available position to Mr. Kivela would be when he reached the top of the seniority list. However, this timing did not take into account that Mr. Kivela should have been at the top of the seniority list much sooner than 2000. [31] The permanent seniority list as of December 18, 2001, shows that Hildebrand, Rusk and Dodds, who passed Mr. Kivela on the seniority list, were permanent employees by 1996. Rope became permanent on April 18, 1999, approximately one month prior to Mr. Kivela’s resignation, and Cyr became permanent on June 23, 1999, approximately one month after. Lafontaine became permanent at some unspecified date, but is not on this seniority list as he was terminated for reasons irrelevant to this inquiry. [32] The 1996 agreement was implemented to keep Mr. Kivela from falling further back in seniority. Even the employee who was the next lowest employee on the casual seniority list in April of 1996, Leonard Homeniuk, had permanent position by September 2000, only one and one-half years after Mr. Kivela resigned. All of these individuals acquired permanent positions within Public Works and would be able to bid back into Roadway Construction. [33] Because of the way in which the system made permanent positions available, others were able to be flexible in ways that Mr. Kivela was not in order to gain permanent status. [34] Permanent status was something that was extremely important to Mr. Kivela. It was guarantee of permanent, year round employment. In addition, permanent employees are entitled to double time for overtime (as opposed to time and one-half for casuals), mandatory access to the City’s Disability Plan and mandatory access to the Permanent Employees’ Superannuation Plan, which is defined benefit plan, as opposed to the money purchase plan available to casual employees. (Admittedly, casual employees now have some access to the Permanent Employees’ Superannuation Plan if they opt in). There would have been no difference between Mr. Kivela’s assignment as permanent truck driver and casual, other than these benefits. The designation was the same (e.g. Operator II or Tandem Truck Driver), and the work and rate of pay were the same. It was simply way of designating some employees as year round workers and providing them with benefits accordingly. One of the injuries suffered by Mr. Kivela as result of not being made permanent at the appropriate time is that he was not able to access the City’s disability plan in 1999. [35] Mr. Kivela’s numerous attempts to gain permanent status over 16-year period were unsuccessful. His frustration with the City and with CUPE heightened once he became aware of other casual City employees, hired after Mr. Kivela, passing him on the seniority list. The fact of other employees passing Mr. Kivela on the seniority list had two major effects. First, any individual with more seniority in his department would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. Since recall and layoff was still according to seniority, employees who gained more seniority by doing work that Mr. Kivela could not do, had priority over him, even to drive truck during recall and layoff. Secondly, employees who gained more casual seniority had priority over Mr. Kivela to bid on permanent positions. [36] Only after Mr. Kivela’s attendances upon the City requesting that he be made permanent employee were actions taken to maintain his position on the seniority list. In 1996, communications between Mr. Kivela, the City and CUPE took place regarding Mr. Kivela’s seniority situation. The City and CUPE recognized that the only way Mr. Kivela would ever gain the seniority necessary was to work at jobs he was not capable of performing. Effective April 1, 1996, Mr. Kivela was credited with seniority hours from the point in time in which his position on the seniority list is to be recalled. In other words, accommodation was made so that Mr. Kivela would no longer be passed by another casual employee on the seniority list. In the fall of the same year, an arrangement was made to allow Mr. Kivela to cross boundaries so that he could go to other divisions and get work, according to his seniority. This allowed him to accumulate more hours of work and hence, seniority. [37] While the agreement remedied the loss of seniority for Mr. Kivela from that point forward, it did nothing to rectify the previous loss of seniority from 1982 to 1996. Neither the City nor CUPE corrected the problem retroactively. [38] Mr. Kivela became so stressed about his employment situation and particularly his lack of permanent status that he was not able to continue working. This occurred on November 12, 1998, following two full days of hauling crushed concrete. On the third day, Mr. Kivela was told that his truck was too small and that he was to go to the Water Works Department, where workers had previously expressed fear of working with him. Mr. Kivela did not want to go to Water Works. He feared that he was being pushed out of his employment as tandem truck driver. He then received his normal layoff notice as casual employee effective November 15, 1998. It was at this time that Mr. Kivela began to see Dr. Blignaut who diagnosed him as being depressed and he commenced drug therapy in December of 1998. Upon referral from Dr. Blignaut, Mr. Kivela also saw Dr. Beattie, psychiatrist in January 1999, who assessed Mr. Kivela as suffering from reactive depression and paranoid personality. [39] In the winter of 1999, during the seasonal layoff, Mr. Kivela corresponded with the City about obtaining permanent status and the need for further accommodation. By letter dated February 5, 1999, the City agreed to certain requests but made it clear that it was not prepared to deviate further from the seniority provisions of the Collective Bargaining Agreement. In fact, the City advised him to contact his CUPE representative regarding his concern about becoming “permanent staff.” [40] In the spring of 1999, Mr. Kivela did not return to his employment, stating he had health problems. In letter written by Mr. Kivela to the City and CUPE, he explained that he was under doctor’s care for stress and depression. Mr. Kivela sent letter to the City resigning as at May 20, 1999. Mr. Kivela’s testimony was that he did not resign for the “fun of it.”. Mr. Kivela stated the reason he resigned was to gain access to his pension fund. He would not have resigned if he had been entitled to disability plan, which at the time was only available to permanent employees. His claim for compensation from the Workers’ Compensation Board had been denied in December 1998. When his EI ended in the spring of 1999 Mr. Kivela had to apply for social assistance. Before applying for social assistance, he resigned and drew partially upon his City pension plan. [41] Mr. Kivela’s Cerebral Palsy became more severe after he left work in November 1998. Working was good therapy for his disability and Mr. Kivela claims that his condition has deteriorated. Mr. Kivela also remains on anti-depressants to this day. [42] Mr. Kivela alleges that the City and CUPE brought this lawsuit on themselves through 16 years of “disability discrimination.” His Cerebral Palsy became more severe after he had to leave his employment because of stress, burnout and depression. He maintained that he would have enjoyed an excellent permanent career if the City and CUPE would have treated him fairly instead of disability discrimination. [43] It is probably fair to say that Mr. Kivela did not fully appreciate exactly why he was not made permanent. But the fundamental allegation is simply that both the City and CUPE discriminated against Mr. Kivela in relation to his employment because of his disability. The Commission substantiated this allegation before the Tribunal by showing that there was a discriminatory impact on Mr. Kivela as a result of the seniority system established by the collective agreements in force from time to time between the City and CUPE. [44] As to accommodation, the Tribunal made the following finding: 116. It is my conclusion that all of the efforts actually made in response to Mr. Kivela, although reasonable, did not deal directly and effectively with his claim that the seniority standards in the collective agreement were discriminatory towards him on the basis of his disability. While not disregarding the efforts of the Respondents going to great lengths to accommodate Mr. Kivela, I agree with the Human Rights Commission that their efforts of accommodation were “too little, too late” to reverse the systemic discrimination experienced by Mr. Kivela over the years. While reasonable and acceptable, the accommodations do not meet the duty to accommodate short of undue hardship. 117. In conclusion I find that the City of Regina and the Canadian Union of Public Employees, Local 21 contravened sections 16 and 18(1) of the Code by discriminating against the complainant Mr. Kivela on the basis of his disability. Neither the City nor CUPE established their inability to accommodate Mr. Kivela in obtaining permanent employee status with the City in 16 years, or that their duty to accommodate would cause undue hardship. also find that the Respondents have not suffered prejudice having regard to the length of time that has passed, as has been suggested. The duty to accommodate is positive one, and an on-going obligation, imposing on the employer the duty to explore all possible accommodations available to the employee. STANDARD OF JUDICIAL REVIEW What is the Appropriate Standard of Judicial Review? [45] Although there was some confusion as to the appropriate standard of review for decisions of human rights commissions, and in particular the amount of deference that should be afforded by the courts to these tribunals, the matter has now been conclusively decided by the recent decision of the Supreme Court of Canada in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] S.C.R. 825. In this case teacher publicly made racist and discriminatory comments against Jews during his off‑duty time. His writings and statements communicated his anti‑Semitic views including four books or pamphlets, letters to local newspaper, and local television interview. complaint was filed with the New Brunswick Human Rights Commission. The commission found that the teacher’s off‑duty comments denigrated the faith and belief of Jews and that the school board which employed the teacher was guilty of discrimination by failing to meaningfully discipline him. The commission directed the school board to comply with the following: (a) place Ross on leave of absence without pay for period of 18 months; (b) appoint him to non‑teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted non‑teaching position; and (d) terminate his employment with the school board immediately if he published or wrote anti‑Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in non‑teaching position. The Court of Queen’s Bench allowed the teacher’s application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph of the order violated ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2(d), it could be saved by s. of the Charter. The Court of Appeal dismissed the cross appeals with respect to clause 2(d), and allowed the teacher’s appeal, holding that clauses 2(a), (b) and (c) of the order infringed Ross’ freedom of expression and freedom of religion, and could not be justified under s. 1. The Supreme Court of Canada allowed the appeal and clauses 2(a), (b) and (c) of the order were restored. [46] The decision of the Supreme Court of Canada is of importance as it raises two general issues in relation to the standard of judicial review. The first relates to the standard of deference to be applied to the Commission’s finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board’s order. [47] With respect to the administrative law issue, the superior expertise of human rights tribunal is confined to fact finding and decision making in the context of human rights and therefore, reasonableness is the test for judicial review. However, if the issue is one of law, the standard of review is one of correctness. [48] In other words, the appropriate standard of review by superior court of factual determination is whether the decision is patently unreasonable. La Forest J., in Ross, stated at p. 847: ... On the basis of this difference between human rights tribunals and labour tribunals, the Court confined the superior expertise of human rights tribunal to fact‑finding and adjudication in human rights context. The standard of review on the basis of reasonableness is applicable to these matters.... [49] Where human rights commission is required to interpret laws of general application, the correctness test applies. In the Supreme Court of Canada decision in Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] S.C.R. 554, which was cited with approval in Ross, La Forest J. stated at p. 585: ... The superior expertise of human rights tribunal relates to fact‑finding and adjudication in human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not on standard of reasonability. [50] The Supreme Court of Canada’s decision in Ross concerning “jurisdictional facts” has extended the deference provided to human rights commission to include not only the “jurisdictional facts” upon which the legal question is decided, but also the legal question itself. This proposition was asserted by La Forest J., speaking for the unanimous full court at p. 849: ... The expertise of the tribunals appointed under their aegis is limited to fact‑finding and adjudication in human rights matters. In the process of performing its adjudicative function, human rights tribunal will be called on to apply general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary. That having been said, do not think the fact‑finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, inquiry into the appropriate standard of review is largely governed by the fact that the administrative law issue raised calls upon this Court to consider whether the finding of discrimination by the Board of Inquiry was beyond its jurisdiction.... [51] The City contends that during the hearing of this matter, and later, in its written submissions, the Commission took the position that harassment was no longer an issue being pursued in the proceedings, with the result that the City presented limited evidence on the issue of harassment. [52] There is merit to this submission. This is reflected in the memorandum of law filed by the Commission. The following extract from the memorandum states: Kivela also makes allegations of harassment. The Commission chooses not to press this point although it does appear that some isolated derogatory remarks in relation to disability may have been made. [53] It was confirmed on the record that Mr. Kivela is not independently represented by legal counsel and he therefore will be relying on representations made by counsel for the Commission. [54] This ground of appeal is therefore allowed. Accommodation [55] The leading case regarding the principle of accommodation is Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (SCC), [1985] S.C.R. 536 (“Simpson Sears”). In that case the appellant was required by her religion to not work from sundown Friday to sundown Saturday. However, her employer required all full-time employees to share in the work during the busiest times of the week: Thursday evenings, Friday evenings, and all day Saturdays. The appellant was informed that she would be allowed to work Monday to Thursday. But if she did so she would lose her status of being full-time employee and consequently she would lose the benefits accruing to full-time employees. The Supreme Court held that Simpson-Sears’ policy had discriminatory effect on the appellant. Therefore it was required to attempt to accommodate her. As Simpson-Sears had failed to take any accommodating steps, and had not established that any accommodation would result in undue hardship, the violation was established. [56] In Simpson Sears the court held that an employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is intended to apply, may nevertheless be discriminatory if it affects person or persons differently from others to whom it is intended to apply. The intent to discriminate is not governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect of the alleged discriminatory action that is significant. The aim of the Ontario Human Rights Code is to remove discrimination—its main approach is not to punish the discrimination but to provide relief to the victim of discrimination. [57] In case of adverse effect discrimination, the employer has duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer’s business. There is no question of justification because the rule, if rationally connected to the employment, needs none. If such reasonable steps do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part, must sacrifice either his religious principles or his employment. [58] The complainant first must establish prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship. Here, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant. [59] In Simpson Sears, the court established two important concepts: 1) that intent to discriminate is not requisite element of finding of discrimination, and 2) that what is important is whether there is adverse effect discrimination. McIntyre J. states at pp. 549-550: do not consider that to adopt such an approach does any violence to the Ontario Human Rights Code, nor would it be impractical in its application. To take the narrower view and hold that intent is required element of discrimination under the Code would seem to me to place virtually insuperable barrier in the way of complainant seeking remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184). Furthermore, as have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour. In other words, we are considering what are essentially civil remedies. The proof of intent, necessary requirement in our approach to criminal and punitive legislation, should not be governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be necessary element of proof. And at pp. 551-552: distinction must be made between what would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts practice or rule which on its face discriminates on prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts rule or standard which is on its face neutral, and which will apply equally to all employees, but which has discriminatory effect upon prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code am of the opinion that this Court may consider adverse effect discrimination as described in these reasons contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects person or group of persons differently from others to whom it may apply. From the foregoing therefore conclude that the appellant showed prima facie case of discrimination based on creed before the Board of Inquiry. [60] McIntyre J. went on to describe the duty of an employer to accommodate short of undue hardship. He states at p. 555: Accepting the proposition that there is duty to accommodate imposed on the employer, it becomes necessary to put some realistic limit upon it. The duty in case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer.... The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part‑time work, must either sacrifice his religious principles or his employment. And at pp. 558-559: ... Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in position to show its absence. The onus will not be heavy one in all cases. [61] I agree with the Commission that in effect, the seniority system prevented a person such a Mr. Kivela from ever getting a permanent position, without accommodation, by giving priority to all those who could work more hours or gain permanent status by being flexible enough to work at the wide range of positions that the City had to offer. Mr. Kivela could never take advantage of this reward system because he could only bid into truck driver positions. [62] The City and CUPE were too late in developing their plan. The plan was conceived in early 1999, to be executed when Mr. Kivela reached the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work. [63] Had the impact of the seniority system on Mr. Kivela, because of his disability, been properly taken into account, he would probably have achieved permanent status before 1996 when number of those who passed him did. And certainly he would have achieved this status prior to his last day of actual work in November of 1998. Mr. Kivela was faced with compound problem. He needed to be accommodated in the process for becoming permanent. And, in assessing the appropriate time to do this, the City and CUPE needed to take into account that Mr. Kivela was lower on the seniority list than he ought to have been. [64] Here, the characterization of the order of the Tribunal is not to direct that Mr. Kivela be given a permanent position despite the seniority rights of others. It is to give Mr. Kivela the benefits he would have had if his seniority had accrued in a non‑discriminatory manner. It is true that the Tribunal suggests that Mr. Kivela could have been accommodated in 1996 by giving him permanent position. But this is only because it was reasonable to assume that Mr. Kivela could have been entitled to permanent position by that time. It would have been equally acceptable if Mr. Kivela’s seniority had simply been readjusted to take into account the decline in his seniority position. [65] It is not without significance that CUPE admitted that the seniority provisions in the Collective Bargaining Agreement did, in fact, discriminate. However, it denied liability for any period prior to 1996 because it was not aware of the problem prior to that date. I agree with counsel for the Commission that whether CUPE did or did not have knowledge is irrelevant. The breach occurs as soon as there is discrimination. The employer and CUPE are jointly responsible where a collective bargaining agreement that they negotiated is discriminatory. In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] S.C.R. 970, the Supreme Court of Canada decided that in organized workplaces the responsibility for discrimination that results from the operation of collective bargaining agreement rests not only with the employer but also with the union. At p. 989, Sopinka J. states: The duty to accommodate developed as means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of work rule without any intention to discriminate. It enabled the employer to justify adverse effect discrimination and thus avoid absolute liability for consequences that were not intended. Section of the Act, like many other human rights codes, prohibits discrimination against person with respect to employment or any term or condition of employment without differentiating between direct and adverse effect discrimination. Both are prohibited. Moreover, any person who discriminates is subject to the sanctions which the Act provides. By definition (s. 1) union is person. Accordingly, union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, union must have the same right as an employer to justify the discrimination. In order to do so it must discharge its duty to accommodate. [66] In my opinion CUPE is jointly responsible for the seniority provisions in the Collective Bargaining Agreement. As soon as the employer and/or the union contribute to adverse effect discrimination, the violation has occurred. For either the union or employer to avoid liability they must discharge their duty to accommodate. If the actions of the employer and/or union have discriminatory effect on the employee, to avoid liability they must take steps to accommodate. Sopinka J. also described further, the extent of the duty at pp. 984-985: The concern for the impact on other employees which prompted the court in Hardison to adopt the de minimis test is factor to be considered in determining whether the interference with the operation of the employer’s business would be undue. However, more than minor inconvenience must be shown before the complainant’s right to accommodation can be defeated. The employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interference or inconvenience is the price to be paid for religious freedom in multicultural society. And he then went on, at pp. 991-992, to describe what that meant to the union: The timing and manner in which the union’s duty is to be discharged depends on whether its duty arises on the first or second basis as outlined above. agree with the submissions of the respondent union and CLC that the focus of the duty differs from that of the employer in that the representative nature of union must be considered. The primary concern with respect to the impact of accommodating measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to measure which would have this effect. Although the test of undue hardship applies to union, it will often be met by showing of prejudice to other employees if proposed accommodating measures are adopted. As stated previously, this test is grounded on the reasonableness of the measures to remove discrimination which are taken or proposed. Given the importance of promoting religious freedom in the workplace, lower standard cannot be defended. [67] In my view, the problem Mr. Kivela faced in respect of seniority should have been remedied at an earlier date to avoid discrimination. [68] agree with the Tribunal that although all of the accommodations made for Mr. Kivela by the City and CUPE were reasonable, the accommodations did not rectify the cumulative negative impact upon Mr. Kivela of having the seniority provisions apply to him for almost the duration of his employment. The cumulative effect continued to impact on Mr. Kivela’s ability to obtain permanent employment until he left his employment. [69] As to undue hardship, some of the factors include financial cost, disruption of collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. One must balance these factors against the right of the employee to be free from discrimination. (See Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] S.C.R. 489). [70] Therefore, the next question to determine is whether the City and CUPE accommodated Mr. Kivela up to the point of undue hardship. It is clear that an employer and/or union must take reasonable measures short of undue hardship to accommodate Mr. Kivela. It is critical to underscore that the City and CUPE did not contend that the accommodation made in 1996 altering the seniority provisions of the Collective Bargaining Agreement were an undue hardship. By way of analogy, would it have been undue hardship to implement the 1996 provision earlier or when the cumulative negative impact of the seniority provisions were realized to implement them retroactively? [71] Here the Tribunal’s finding that there was no undue hardship is supported by the evidence. According to the evidence there are approximately 1,400 casual and permanent positions. Moving Mr. Kivela up the seniority list would have relegated certain union members in a large bargaining unit by one, which is insignificant. If this occurred, although Mr. Kivela would obtain the next permanent position, this would not be in disregard of the rights of other employees. Neither the City nor CUPE presented any evidence that would establish that a retroactive adjustment itself would create an undue hardship in the context that it would cause the seniority list to become unmanageable or ambiguous. It is not without significance that even if the membership of CUPE opposed the placing of Mr. Kivela into a permanent position, this by itself, does not justify a finding of undue hardship. [72] Furthermore, the fact that Mr. Kivela was accommodated number of times by ignoring the seniority rights of employees with no apparent hardship, neither the City nor CUPE attempted to establish before the Tribunal that the accommodation they had already engaged in produced hardship. [73] therefore conclude that Mr. Kivela has established prima facie case of discrimination against both the City and CUPE. The onus then shifts to the City and CUPE to show that they have taken such reasonable steps to accommodate Mr. Kivela as are open to them without undue hardship. Here the City and CUPE did not discharge the onus of showing that they had taken reasonable steps to accommodate Mr. Kivela. Both the City and CUPE are jointly liable. therefore agree with the decision of the Tribunal in this regard. Termination [74] The City and CUPE contend that the Tribunal erred in law in failing to recognize the legal significance of Mr. Kivela’s resignation from his employment. As an answer to this ground of appeal the Tribunal made the following findings of fact: Mr. Kivela was very depressed and truly perceived himself to be in dead end job; He had no knowledge of plan in place where he would become permanent, and honestly believed that he would never become permanent; He resigned only to obtain pay out of his pension contributions; Had Mr. Kivela achieved permanent status with the City, he would not have resigned; · His resignation was one effect of the discrimination. [75] take comfort in the comments of LaForest J. in the decision of the Supreme Court of Canada in Canada (Attorney General) v. Mossop, supra, in which he stipulated that the fact finding expertise of human rights tribunals should be restrictively interpreted. He then went on to say at p. 849 that: ... finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. The Board heard considerable evidence relating to the allegation of discrimination and was required to assess the credibility of the witnesses’ evidence and draw inferences from the factual evidence presented to it in making determination as to the existence of discrimination. Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise relative degree of deference to the finding of discrimination.... [76] The authorities relied on by the City and CUPE to support their submissions can be characterized as claim for wrongful dismissal. Here, the Tribunal was dealing with complaints of discrimination. The authorities relied on are clearly distinguishable. The mandate of the Tribunal once a finding of discrimination is made is to determine what losses are caused by the discriminatory conduct. Here, the Tribunal made such finding and that is within its jurisdiction. agree with the Tribunal that the purpose and intent of the Code is to put complainant back in the position he would have been if the contravention had not occurred. [77] Here, the Tribunal is exercising statutory authority. Therefore the question to determine is whether the violation is substantiated and what damages flow from that violation. [78] In my view, there is no merit to this ground of appeal. What is the Legal Effect of Delay of Complaint Under the Code? [79] The right of complainant to file complaint comes from the Code and not Commission policy. The right is based on reasonable grounds under s. 27. [80] Here the Tribunal found that the violation of the Code had an ongoing effect. also am of the view that the implementation and mechanics of the seniority system was easily identifiable from the Collective Bargaining Agreement since 1982. In terms of what positions Mr. Kivela, in view of his condition was able to do, most of the witnesses who testified before the Tribunal were employed by the City for many years and were very knowledgeable as to all material facts and therefore the City and CUPE were not deprived of procedural fairness. This ground of appeal fails. [81] As to damages, the tribunal made the following statement: 159. During oral arguments the parties invited the tribunal, in the event the respondents are found to have discriminated against Mr. Kivela, not to make final order regarding the quantum of damages. This was to allow reasonable opportunity for the parties to negotiate solution that may meet the needs of all parties. agree to do so. The tribunal therefore retains jurisdiction regarding the calculation of damages. The parties shall have 30 days from the date this decision is rendered to reach agreement, failing which the hearing shall be reconvened to hear further representations on the calculation of damages. also retain jurisdiction to address any questions of clarification that may arise regarding the remedies of their implementation. [82] During oral argument on the appeal the parties concentrated on liability and there was paucity of submissions on damages. I therefore will permit the parties, if they cannot settle the quantum of damages, to refer that issue to the Tribunal. After that has been done and the Tribunal makes decision, the parties have leave to refer the matter to the Court of Queen’s Bench and will therefore retain jurisdiction. CONCLUSION [83] For all the above reasons, the appeals by the City and CUPE on liability are therefore dismissed. Costs may be spoken to.

This is an appeal by the City of Regina (the City) and Canadian Union of Public Employees Local 21 (CUPE) from a decision of the Tribunal under The Saskatchewan Human Rights Code (the Code) in the matter of complaints filed by the respondent against the City and CUPE. It became clear that the main issues on the appeal were the duty to accommodate and the alleged resignation of the respondent. The respondent filed a complaint under Part II of the Code alleging that CUPE and the City discriminated against him on the basis of his disability. The Commission substantiated this allegation before the Tribunal by showing there was a discriminatory impact on the respondent as a result of the seniority system established by the collective agreements in force from time to time between the City and CUPE. The Tribunal found that all of the efforts made in response to the respondent did not deal directly and effectively with his claim that the seniority standards in the collective agreement were discriminatory towards him on the basis of his disability. The Tribunal agreed with the Commission that their efforts were too little too late to reverse the systemic discrimination. The accommodations did not meet the duty to accommodate short of undue hardship. The Tribunal found that the City and CUPE contravened s. 16 and s. 18(1) of the Code by discriminating against the respondent on the basis of his disability. HELD: The appeals by the City and CUPE on liability are dismissed. The parties were allowed to refer the issue of damages to the Tribunal. 1) The superior expertise of human rights tribunal is confined to fact finding and decision making in the context of human rights and therefore reasonableness is the test for judicial review. If the issue is one of law, the standard of review is one of correctness. In other words, the appropriate standard of review by superior court of factual determination is whether the decision is patently unreasonable. Where human rights commission is required to interpret laws of general application, the correctness test applies. 2) The Court agreed with the Commission that the seniority system prevented a person such as the respondent from ever getting a permanent position, without accommodation, by giving priority to all those who could work more hours or gain permanent status by being flexible enough to work at the wide range of positions that the City had to offer. The respondent could not take advantage of this reward system because he could only bid into truck driver positions. The City and CUPE were too late in developing the plan. The plan was conceived in early 1999 to be executed when the respondent reached the top of the seniority list, probably in about 2000. But by this time, he was unable to work. 3) The characterization of the order of the Tribunal is not to direct the respondent be given a permanent position despite the seniority rights of others. It is to give him the benefits he would have had if his seniority had accrued in a non-discriminatory manner. 4) Whether CUPE had knowledge of the problem is irrelevant. The breach occurs as soon as there is discrimination. The City and CUPE are jointly responsible where a collective bargaining agreement that they negotiated is discriminatory. 5) For either the City or CUPE to avoid liability they must discharge their duty to accommodate up to the point of undue hardship. 6) The Tribunal's finding that there was no undue hardship is supported by the evidence. There are approximately 1,400 casual and permanent positions. Moving the respondent up the seniority list would have relegated certain union members in a large bargaining unit by one, which is insignificant. If this occurred, although the respondent would obtain the next permanent position, this would not be in disregard of the rights of other employees. Neither the City nor CUPE presented any evidence that would establish that a retroactive adjustment itself would create an undue hardship in the context that it would cause the seniority list to become unmanageable or ambiguous. It is not without significance that even if the membership of CUPE opposed the placing of the respondent into a permanent position, this by itself does not justify a finding of undue hardship. 7) The mandate of the Tribunal, once a finding of discrimination is made, is to determine what losses are caused by the discriminatory conduct. The Tribunal found that the respondent's resignation was one effect of the discrimination. The Court found there was no merit to this ground of appeal.

e_2004skqb372.txt

PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40000538 HER MAJESTY THE QUEEN Kopperud T.B. Bekolay, P.C.J J. Syrniuk, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. M. Popescul, SANDERSON, BALICKI, POPESCUL FORSYTH LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. 1. After the Crown withdrew one count at the opening of the trial, the accused stands charged that on or about the 27th day of October, 2000 at or near Prince Albert, in the Province of Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in one hundred millilitres of blood, have the care and control of motor vehicle contrary to Section 253(b) and Section 255(1) of the Criminal Code. 2. The Crown called as witnesses, Randy Persicke, the boyfriend of the accused's sister-in-law, Dawn Marie Anderson, the accused's sister-in-law, John Gary Ross, civilian who at the time of trial was an inmate, Cst. Brent McDonald, and Dr. Felix Depadua. The accused testified on his own behalf and called as witnesses, Randy Hurd, fireman, and Susan Kopperud, his wife. 3. In making my findings of fact, accept the evidence of Cst. Brent McDonald in respect to the time of day of the various events. In doing so note that both Randy Persicke and Dawn Anderson's recollection of the time of day of the accident was one-and-a-half to two hours out. also note that Dawn Anderson said that she remembered that they left the acreage about 11:00-ish and that the accident was about 11:00 to 11:30 because she had to work the next day and "so was kind of keeping track of the time". Her willingness to give this explanation under oath, when she was so clearly wrong raises the question as to what weight should give the balance of her evidence. However, am also mindful that she did not deny that there could have been an open bottle of beer in the vehicle but testified that she "doesn't recall [one]". She also stated quite frankly in cross-examination when asked if she noted whether the accused's eyes were red or blood-shot that: "I would not notice, red, blood-shot eyes or watery eyes". 4. In assessing Randy Persicke's evidence am mindful that of all the witnesses to the events of the evening in question, he had consumed the most alcohol. He had consumed from to 12 beer. His recollection of the time of the accident was also as noted some two hours out. He regarded the accused's driving as normal when Ross and even the accused suggested otherwise. This is significant to the assessment of his evidence and suggests either that his memory of events was significantly affected by his alcohol consumption on the night in question, or, degree of partiality in favour of the accused or combination of both. 5. There is nothing in the evidence to suggest that John Ross had any connection to the accused or his friends. There is nothing in the evidence to suggest that he had any reason whatsoever to taint his evidence by favouring either the Crown or the accused. He gave his evidence in straight-forward manner without hesitation. He had an excellent recollection of the events of the night in connection with this case. accept his evidence. 6. On the night in question, Dr. Felix Depadua's mind was directed to the medical needs of this patient. His evidence disclosed good memory of these matters. His mind and efforts were not directed to criminal law enforcement and its requirements. His evidence suggests very limited memory of what was done on the night in question and subsequently in regard to matters peculiar to the requirements for the enforcement of criminal law. His evidence is based on normal practise not specific memory. In assessing his evidence am also mindful of his statement that in these matters he relies on the police officers, whom he trusts. 7. In assessing Randy Hurd's evidence am mindful that his attention was to his job. That is, he was focused on rescuing the accused and securing his safe transport to the hospital. The degree of this focus is emphasized by the fact that Mr. Hurd testified that he did not smell alcohol. This in context where all three passengers in the vehicle testified that they had been consuming alcoholic beverages. As Mr. Hurd testified, he could not comment on the degree of intoxication as this was not his function. 8. In assessing the evidence of the accused am mindful of his admission that the accident did affect his memory of the events following it. am also mindful of the fact that the accused had no recollection of having passed the Ross vehicle just before the accident. On the other hand, note that the accused admitted that he was not driving like he would normally drive. He was perhaps going too fast for the road conditions, showing off his new vehicle. 9. Keeping these assessments of the witnesses in mind, find the facts to be as follows: 10. The accused arrived home from Moose Jaw between 10:15 and 10:30 p.m.. Shortly thereafter he went into Prince Albert, to bar where he had three or four regular beer. He returned home about 11:15 to 11:30 p.m. He consumed one beer at home. His wife asked him to go to town for milk and cigarettes. He invited Randy Persicke to come and see his new Jeep. His sister-in-law decided to go too. He drove into town to the store via Paulsen Road. Purchased his items and started for home along the same road. 11. This road is gravel road that is always wash-board. accept Cst. McDonald's evidence that on the night in question it was wash-board but that it was not at its worst condition. The accused was showing off his new vehicle. He was driving faster than he should have given the condition of the road. He passed the Ross vehicle. The accused's vehicle was bouncing on the wash-board. The accused lost control of his vehicle which went sideways on the road then hit the ditch; rolled up the bank and back down again. The vehicle ended up resting on the driver's side. 12. John Ross saw this accident occur. He got out of his vehicle, yelled to the occupants of the accused's vehicle that he would go for help, and proceeded to the pay phone at Fast Gas on 16th Avenue West. He spotted police vehicle and at 1:10 am. flagged down Cst. Brent McDonald. He informed Cst. McDonald that there had been single vehicle accident on Paulsen Road with people who he believed to be hurt in the vehicle. He did not then or at any time that evening advise Cst. McDonald of the nature of the driving of the driver of the Kopperud vehicle. 13. As Cst. McDonald proceeded immediately to the scene of the accident, he requested an ambulance. As he approached he saw Randy Persicke walking from the vehicle towards him waving his arms. Randy Persicke advised him that the guy behind the wheel was hurt bad. Cst. McDonald observed the accused to be in the driver's compartment laying on the driver's door panel with his left leg pinned by the steering wheel. The accused's head was being held by Dawn Reid- Anderson who was in the rear compartment behind the driver's seat. 14. After the ambulance arrived, the ambulance attendant kicked out the window. When Cst. McDonald got to the vehicle, he detected strong odour of liquor from the vehicle. At 1:34 a.m. the accused was extracted from the vehicle and placed on spine board. The officer found one OV bottle of beer laying on the driver's door panel in the vehicle. This bottle contained about 1/16 of liquid that smelled to the officer like beer. note that none of the occupants of the vehicle could recall seeing this bottle of beer on the night in question but accept the officer's testimony that he did find the bottle as he related. 15. At 1:41 a.m. the accused arrived at the hospital. He was having great trouble breathing and was supplied with ventilator part of the time. Cst. McDonald observed strong smell of alcohol from the accused's breath when he was face to face with the accused. He noted the accused's eyes to be bloodshot. The accused was understanding the nurses and doctors caring for him. 16. Based on the following observations the officer reached the conclusion that the accused had been operating motor vehicle while impaired: (1) the accused was located in the driving compartment behind the driver's wheel; (2) an odour of alcohol emanated from the vehicle as soon as the officer could get close enough to smell the same; (3) the officer found an open OV bottle of beer in the vehicle's driver compartment which was about 1/16 full of liquid which smelled like beer; (4) having noted the position of the accused's vehicle and the nature of the accident, knowing that he had no difficulty staying on the road with the police vehicle, nor had the fire or ambulance attendants had any difficulty, he concluded that it was inexplicable as to why sober driver would leave the road; (5) once face to face with the accused at the hospital, he noted and confirmed the smell of alcohol on the breath of the accused and that the accused's eyes were red and bloodshot. 17. Cst. McDonald then spoke with Dr. Depadua who informed the constable that the accused would be held in hospital. The officer then asked the doctor if he could speak to the accused in regard to blood demand. The doctor advised him he could go ahead. The accused was having trouble breathing, x-rays were being taken. But by 1:55 a.m. the officer went into the emergency room and read the demand for sample of the accused's blood from his card. The accused acknowledged that he understood saying, "go for it, but don't forget that wash-board road when you write that report". The accused was advised of his arrest. The officer read the accused his Charter Rights, reading again from his police card. The officer said that the accused acknowledged he understood and declined to call lawyer. 18. There was no blood kit at the hospital so Cst. McDonald had to arrange to have one brought to the hospital. When it arrived he gave it to laboratory technician, Tracy Tumak. There was some difficulty getting blood from the accused. Tumak tried and could not get blood; Nancy Andres, another laboratory technician, and Dr. Depadua were there. Cst. McDonald did not know which of them got the blood sample. But at 2:41 a.m. Cst. McDonald seized two vials of blood from Nancy Andres. She placed the seals on the vials. 19. Tracy Tumak filled out the form Certificate of Qualified Medical Practitioner (P-2 in these proceedings) and Dr. Depadua signed it in the presence of Cst. McDonald. The constable then served the accused in the emergency room with true copy of the Certificate. 20. There is no issue in respect to continuity. Therefore, will not review the facts around the arranging for the analysis of the blood and the obtaining of Certificate of Analysis. 21. On March 1, 2001, the constable was informed by the Crown office that he had had the doctor complete the wrong form (P-2). take it that this advice was given to the officer by the Crown based on an understanding that it was Dr. Depadua who had taken the blood sample. 22. The officer obtained the vials of blood back from Winnipeg. He took the blood vials and what he now understood to be the proper Certificate of Qualified Medical Practitioner (P-5) to Dr. Depadua at his home The officer filled out the new form in the presence of Dr. Depadua. He showed Dr. Depadua the blood vials with the doctor's initials on them. Dr. Depadua signed the new Certificate. am satisfied that the doctor has no real recollection either of who actually took the blood nor of signing the second certificate. The doctor testified as if the officer had brought the second certificate to him at the hospital. accept the officer's evidence that the second certificate was signed at the doctor's home. To the doctor's credit no one drew this scenario to his attention. To have done so may have refreshed his memory. conclude that in signing the second certificate the doctor first looked at the vials, saw his signature, and then wholly trusting the officer signed the second certificate (P-5). 23. The doctor testified that it is standard procedure for the physician to take the blood where police are asking for blood sample. He also testified that "anyone who took blood will sign the test-tube or piece of paper". He was shown the two vials of blood (P-1) and said that it was his signature on the label at the bottom of the vial. But he went on to say that he could not be 100% sure that he had taken the blood himself. conclude that the Crown has established beyond reasonable doubt that the blood was either taken personally by Dr. Depadua or was taken by technician under his supervision. On the evidence as whole, am left with reasonable doubt as to who actually took the blood. However, am satisfied beyond reasonable doubt that the Crown has proved that the blood is that of the accused. 24. A number of issues were raised in submissions of counsel at trial:(1) whether the police officer had reasonable and probable grounds to make the demand?(2) whether the demand met the requirements of (I) the sample being taken by a medical practitioner or under the supervision of a medical practitioner; (II) whether the officer had actually obtained information from the physician so that he could be confident and advise the accused that the taking of the blood sample would not endanger the life of the accused?3. whether the accused gave a valid consent?4. whether the blood samples were taken as soon as practicable?5. whether the Crown can rely on the Certificate of Qualified Medical Practitioner (P-5) where on the evidence as a whole there is a reasonable doubt as to whether the physician took the sample himself or supervised a technician in the taking of the sample? Issue #1 Whether the Police Officer had Reasonable and Probable Grounds to Make the Demand? 25. I have found that the officer had the following grounds when he made the demand: (1) the accused was in the driver\'s compartment of the vehicle; (2) odour of alcohol from the vehicle and subsequently confirmed to be coming from the accused\'s breath; (3) open 1/16 full OV bottle of beer in the vehicle; and (4) the nature of the accident. In determining whether these facts form the requisite reasonable and probable grounds have reviewed R.v. Knox (1996), 1996 CanLII 171 (SCC), 109 C.C.C. (3d) 481 S.C.C., R.v. Babineaux, (1981) 11 M.V.R. 204 (N.B.C.A.); R.v. Burnshaw [1995] C.C.C., (3d) 93 (S.C.C.); R.v. Hopke, decision of McPherson C.J.Q.B. #575 of 1994; R.v. Wheeler, [1994] N.J. No. 737 Man. P.C.; R.v. Authurs, (1981), 63 C.C.C. (2d), 573, (Sask. C.A.); and Forseburg, decision of my brother Kolenick P.C.J.; upon this review of the case law, I conclude that the facts that were in the mind of the officer at the time he decided to make the demand did amount to reasonable and probable grounds for his doing so. Issue #2 Whether the Demand Met the Requirements of (I) the Sample Being Taken by Medical Practitioner or Under the Supervision of Medical Practitioner (II) Whether the Officer Actually Had Obtained Information From the Physician so that He Could be Confident and Advise the Accused that the Taking of the Blood Sample Would Not Endanger the Life of The Accused? 26. The relevant parts of subsections 254(3) and (4) read: "254(3) where peace officer believes on reasonable and probable grounds that person ... at any time within the preceding three hours has committed, as result of consumption of alcohol, an offence under subsection 253, the peace officer may, by demand to that person forthwith or soon as practicable, require that person to provide then or as soon thereafter as is practicable ... (b) where the peace officer has reasonable and probable grounds to believe that, by reason of the physical condition of the person, (i) the person may be incapable in providing sample of his breath; or (ii) it would be impracticable to obtain sample of his breath, such samples of the person's blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the persons' blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. (4) samples of blood may only be taken from person pursuant to demand made by peace officer under subsection (3) if the samples are taken by or under the direction of qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person ... 258(1) In any proceedings under section 255(1) in respect of an offence committed under Section 253 or in any proceedings under subsection 255(2) or (3), ... (d) where sample of the blood of the accused has been taken pursuant to demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to warrant issued under section 256 if ... (ii) both samples referred to in subparagraph (i) were taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time, (iii) both samples referred to in paragraph (i) were taken by qualified medical practitioner or qualified technician under the direction of qualified medical practitioner, ... (v) an analysis was made by an analyst of at least one of the samples that was contained in sealed approved container, evidence of the result of the analysis is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time of when the offence was alleged to have been committed was the concentration determined by the analysis or, where more than one sample was analysed and results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentration determined by the analyses; (d.1) where ... sample of the blood the accused have been taken as described in paragraph ... (d) under the conditions described therein and the results of the analyses show concentration of alcohol in blood exceeding 80 milligrams of alcohol in 100 millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed, did not exceed 80 milligrams of alcohol in 100 millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded 80 milligrams of alcohol in 100 millilitres of blood; (e) certificate of an analyst stating that the analyst has made an analysis of sample of the blood, ... of the accused and stating the result that the analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; ... (h) where sample of blood of the accused has been taken pursuant to demand made under subparagraph 254(3) or otherwise with the consent of the accused or ... (i) certificate of qualified medical practitioner stating that (A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of the blood sample from the accused would not endanger the life or health of the accused and, ... (B) at the time the sample was taken an additional sample of the blood of the accused was taken to permit an analysis of one of the samples to be made by or on behalf of the accused, (C) the time when and place where both samples referred to in clause (B) were taken, and (D) both samples referred to in clause (B) were received from the accused directly into or placed directly into approved containers that were subsequently sealed and that are identified in the certificate, (ii) certificate of qualified medical practitioner stating that the medical practitioner caused the sample to be taken by qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A) or (iii) certificate of qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D) is evidence to the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and (i) certificate of an analyst stating that the analyst has made an analysis of sample of blood of the accused that was contained in sealed approved container identified in the certificate, the date on which and place where the sample was analysed and the result of that analysis is evidence of the facts alleged in the certificate without proof the signature or official character of the person appearing to have signed it." 27. These provisions of the Criminal Code create evidentiary rules that assist the Crown in its proof of the essential elements of the offence. Of particular significance in this case, subsection 258(1)(h) (supra.) permits proof by certificate of certain matters as set out in the provision and certified by qualified practitioner. It states that the following may be proved by certificate of qualified medical practitioner: (1) sample was taken by the medical practitioner; (2) the medical practitioner held the opinion that the taking of blood samples would not endanger the life or health of the accused; (3) an additional sample of blood was taken; (4) the time when and place where both samples were taken; and (5) both samples ... were received from the accused directly into approved containers that were subsequently sealed and that are identified in the certificate. 28. In this case the Crown attempted to prove these listed items by filing the certificate of qualified medical practitioner (P-5). The certificate which sets out the particulars was signed by Dr. Depadua and on its face appears to meet the requirements of the section in order to be valid proof of the facts stated in the certificate. However, the evidence at trial disclosed that the document was completed by the police officer; that the doctor had no recollection of having addressed his mind to the facts as set out in the certificate at the time he signed the certificate; nor did he recall signing the certificate. In fact his testimony was in relation to visit by the officer at the hospital and not at his home. P-5, am satisfied on the evidence of the officer, was signed at the doctor's home. The doctor also testified that he relies on police officers and trusts them. His testimony on whole led me to conclude that he would have signed anything placed before him by the police officer. 29. Although have no doubt that the police officer acted with the greatest of integrity in taking the second certificate to the doctor and in obtaining the doctor's signature on it, am left with reasonable doubt as to whether the doctor addressed his mind to the facts and opinions to the truth of which he was certifying. I, therefore, find that the medical certificate (P-5), cannot be accepted as proof of the facts set out therein. 30. In the absence of the certificate has the Crown established beyond reasonable doubt the matters that could have been proved by the certificate? 31. (a) Has the Crown proved beyond reasonable doubt that the samples were taken by medical practitioner or under the supervision of medical practitioner? As set out in my findings of fact, I am satisfied that, although the Crown has not proved whether the doctor or a technician actually took the blood sample, there is no other logical conclusion on the facts than that either the doctor took the samples himself or the technician took them under the supervision of the doctor. 32. (b) Has the Crown proved beyond reasonable doubt that before the samples of blood were taken, the doctor was of the opinion that the taking of the blood samples from the accused would not endanger his life or health? As stated in my findings of fact, am satisfied that Dr. Depadua's attention on the night in question was wholly directed to the care and treatment of his patient. I am satisfied that the doctor would have acted to prevent any occurrence that would have endangered the life or health of his patient. Given that the doctor was present when the blood was taken either taking it himself or supervising its taking conclude that the doctor was of the opinion that the taking of the sample would not endanger the accused's life or health. have no doubt in drawing this conclusion despite the fact that the doctor had no recollection of telling the officer that there would be no danger to the life or health of the accused in taking the blood sample. To reiterate, the doctor's attention was not focused on the legal requirements of the Criminal Code. However, he was focused on the needs of his patient. In re-examination the doctor testified that if he said it was okay to take the sample then the taking of the sample would not endanger the life or health of the accused. have found that indeed the officer did ask the permission of the doctor to take the samples and have no doubt in accepting the officer's testimony that the doctor advised him that it was okay to do so. The doctor clearly would not have done so if he were of the opinion that in doing so there would be any danger to the life or health of his patient. 33. Was the doctor's opinion that the taking of the sample would not endanger the life or health of the accused communicated to the officer? The officer testified that after he formed the opinion that he had reasonable and probable grounds to make demand, he spoke with the doctor. The doctor advised him that the accused would be kept in hospital. The officer testified that he asked the doctor for permission to get blood in respect to impaired driving. The doctor subsequently told him "now you can talk to him now". The officer then proceeded to make the demand reading from the card supplied by his police force for such purpose. 34. Although the officer could have communicated his request of permission from the doctor to make the demand in more explicit language in respect to the question of any danger to the life or health of the accused, am satisfied that in receiving permission from the doctor, the officer was of the view that the doctor was granting such permission because the doctor held the opinion that the taking of the blood samples for law enforcement reasons would not endanger the life or health of the accused. am assisted in reaching this conclusion, when review the evidence as whole and see how careful the officer was in not jumping to conclusions that he had reasonable and probable grounds. 35. (c) Has the Crown established that an additional sample was taken, the time when and place where both samples were taken, and that both samples were received from the accused directly into approved containers that were subsequently sealed and that are identified as being the blood of the accused. The two vials of blood were entered in evidence. Each vial has the accused's name, the date and time of taking of the samples, the initials of the doctor and police officer. The police officer testified to receiving both these vials on the date in question from the technician who was working with the doctor to care for the accused. accept this evidence as establishing that the blood was taken at the specific time and place as stated on the vial and that the said blood was taken from the accused. accept the evidence of the officer and doctor that the samples were taken from the accused while at the Victoria Hospital, Prince Albert. There is no evidence before me to suggest that the vials entered into evidence are not approved containers. Each vial is sealed. I conclude that the Crown has proved beyond a reasonable doubt by other evidence all of the matters that could have been proved by the certificate, P-5, if it could have been relied upon. Issue #3 Whether the Accused Gave Valid Consent 36. Having found that the officer has reasonable and probable grounds to make a demand for a sample of the accused\'s blood pursuant to the requirements of Sections 254 and 258 of the Criminal Code, the accused\'s consent was not required. See: R.v. Knox, (1966), 1996 CanLII 171 (SCC), 109 C.C.C. (3d) 481 at para. 8. Issue #4 Whether the Blood Samples Were Taken as Soon as Practicable? 37. The officer arrived at the scene of the accident at 1:12 a.m.. The accused arrived at the hospital at 1:41 a.m. The doctor gave the officer permission to make the demand at 1:52 a.m.. The officer made the demand at 1:55 a.m.. Given the condition of the accused and his need for care and, given the limitations on the opportunities to the officer to observe the accused to determine if he had reasonable and probable grounds to make a demand, there is no question in my mind that the officer proceeded with all due diligence and without any unnecessary delay. From the time of the demand to the seizure of the blood by the officer is some 46 minutes. accept the testimony of the officer that there was no blood kit at the hospital. He had to arrange to have kit brought to the hospital. Once it arrived, it took some 20 minutes to get the blood from the accused. The medical staff were having difficulties getting the blood. The accused complained about how long it was taking. Given these facts, I conclude - relying on the approach taken in R.v. Van Der Veen, (1988), 1988 ABCA 277 (CanLII), 44 C.C.C. (3d) 38 (Alberta Court of Appeal), and, R.v. Phillips, (1988), 1988 CanLII 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. Court of Appeal) - the blood was taken within a reasonably prompt time under all of the circumstances. Issue #5 Whether the Crown Can Rely on the Certificate of Qualified Medical Practitioner (P-5) Where on Evidence as Whole There is Reasonable Doubt as to Whether the Physician Took the Sample Himself or Supervised Technician in Taking of the Sample? 38. As indicated in my discussion of the issue under the question of whether the demand met the requirements on issue #2, indicated that found it necessary to say that could not rely upon the certificate of the qualified medical practitioner in all of the circumstances of this case. However, as indicated in the discussions under that issue also concluded that all of the elements that would have otherwise been proved by entry of the certificate, have been proved by the Crown beyond reasonable doubt by other evidence led. 39. There is no basis on the evidence as a whole to exclude the Certificate of Analyst. Therefore, it establishes that the accused\'s blood alcohol level at the time of driving was 159 milligrams of alcohol in 100 millilitres of blood. 40. On review of the evidence as a whole I have no reasonable doubt that the Crown has established all of the elements of the offence, I find the accused guilty as charged. DATED this 19th day of December, A.D., 2001, at the City of Prince Albert in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge

The Crown withdrew one count at the opening of the trial and the accused was charged with operating a motor vehicle while having a blood alcohol concentration in excess of .08 contrary to s.253(b) and s.255(1) of the Criminal Code. In issue was whether the police officer had reasonable and probable grounds to make the breath demand; whether the demand met the requirements of the sample being taken by or under supervision of a medical practioner; whether the officer actually obtained information that taking the sample would not endanger the accused's life; whether the accused gave valid consent; whether the blood samples were taken as soon as practicable; whether the Crown could rely on the certificate where there was a reasonable doubt as to whether the physician took the sample himself or supervised a technician. HELD: The accused was found guilty. There was no basis on the evidence as a whole to exclude the Certificate of Analysis, which established the accused's blood alcohol level was 1.59 at the time of driving. 1)The officer had reasonable and probable grounds when he made the demand, including the accused was in the driver's seat; the odour of alcohol; the open bottle of beer; the nature of the accident. 2)Although the medical certificate could not be accepted as proof of the facts set out therein, the Crown did prove beyond a reasonable doubt by other evidence all the matters that could have been proven by the certificate. There was a reasonable doubt as to whether the doctor addressed his mind to the facts and opinion to the truth of what he was certifying. The doctor's mind was directed to the medical needs of the patient. His evidence was based on normal practice - not specific memory. There was no other logical conclusion that either the doctor or technician took the samples. The doctor would not have given permission to take samples if there was any danger to the life or health of his patient. 3)Since the officer had reasonable and probable grounds to make a demand for a sample of blood, the accused's consent was not required. 4)The officer proceeded with all due diligence and without any necessary delay. The blood was taken within a reasonably prompt time under all the circumstances. 5)The accused's admission that the accident affected his memory of the events following it and had no recollection of having passed the other vehicle just prior and that he was not driving like he normally drove and was perhaps going too fast for the road conditions (the gravel road was a wash board but was not at its worst condition) were noted.

7_2001canlii346.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Cluett v. Metro Computerized Bookkeeping Limited et al 2004 NSSC 196 Date: 2004/10/05 Docket: S. H. No. 174414 Registry: Halifax Between: Jeanette Cluett v. Metro Computerized Bookkeeping Limited and Ian Hill Defendants Judge: The Honourable Justice K. Peter Richard Heard: September 20, 21 and 22, 2004, in Halifax, Nova Scotia Counsel: Kevin A. MacDonald, for the plaintiff Raymond S. Riddell, Q.C., for the defendants By the Court: [1] In this action the Plaintiff, Jeanette Cluett (Cluett) claims against Metro Computerized Bookkeeping Limited (Metro) and Ian Hill (Hill) damages for breach of contract in the amount of $20,000 as well as general damages and exemplary damages. Hill and Metro counterclaim for the sum of $56,000 for additional rent and unpaid business taxes for 1992. [2] At pretrial conference it became clear that there are two preliminary issues involving an application by the plaintiff to add or substitute another plaintiff and to seek relief from the provisions of the Limitation of Actions Act. At that time directed that would deal with these matters at the opening of trial. After two days of hearings the matter was adjourned pending the determination of these preliminary issues. [3] The plaintiff Cluett she had Grade IX education and had subsequently taken courses in accounting or bookkeeping. She had been employed in the securities section of Canada Trust following which she worked as an accounts receivable clerk at the Holiday Inn. Sometime later she became office manager for Maritime Graphic Arts and then was employed by the Royal Nova Scotia Yacht Squadron as an accountant for four years. It was in this position that she met the Defendant Hill who seemed impressed with her abilities. Hill told Cluett that if she ever wanted to make move he might have something for her. In 1988 Cluett left the RNSYS and joined Hill Investments where she acted as office manager and did most of the accounting for several of the companies in which Hill had interests. In this capacity she did most of the accounting for the defendant Metro. After Metro acquired the Maritime Motel she did the accounts for that operation also. find that at all material times Cluet was an experienced and competent records keeper and office manager. [4] In June of 1991 Cluett, through numbered company, 2110250 Nova Scotia Limited, assumed the operation of the Maritime Motel by lease with an option to purchase. The lessor was Metro. During the time that she operated the Motel Cluett continued to do the "financials" for Hill Investments. On September 30, 1993, after some 27 months, she gave up the operation of the Motel and also resigned her other employment with Hill Investments. This action relates to this time frame. [5] Sometime in 1993 Cluett began treatment with her family doctor for stress and depression. According to the evidence she was prescribed medium strength dosage of Atavin which is described as medication used "to relieve nervousness and tension or improve sleep disturbances". Cluett indicated that in 1994 through 1996 she had several personal problems including the serious illnesses of her mother and her sister. These and other stresses prompted her doctor, in early 1996, to order her on sick leave for two to four months. [6] After her departure from the Motel and Hill Investments Cluett through her numbered company operated video rental outlet for about six months in early 1994. She worked for another company for period of time but this was terminated when she went on sick leave as previously indicated.. Although the evidence is not clear, it appears that Cluett returned to employment with Sobeys for about three months. Following that she ran small gift shop at the Lord Nelson Hotel, again through her numbered company. It appears that this lasted about two years. At the present time Cluett, through the same numbered company operates commercial and domestic cleaning company and has been so engaged for about five years. [7] The defendants Hill is businessman in the metro area with wide ranging interests in businesses such as automobile sales, automobile and property leasing as well as the operation of Metro Computerized Bookkeeping. All of his operations were conducted through limited companies and he did little or no business in his personal capacity. At times material to this action Hill spent considerable time (approximately four winter months) out of the country. Hill described 2001 as "not good year". His son, quadriplegic with whom he had very close relationship, died in June of that year. Hill had, what he described as "nervous breakdown" and went into extreme depression. Later that year he underwent surgery for prostate cancer. Sometime in November 2001 storage building, owned by one of the Hill companies and containing many of the old corporate records, was destroyed by fire. For this reason Hill or his business associate Corkum were unable to review any of their documents relating to this matter. The Cause of Action [8] In May of 1991 Cluett and Hill commenced negotiations respecting the operation of the Maritime Motel in Bedford. On 13 May Hill wrote memo to Cluett outlining the terms of five year lease with option to purchase. The proposal called for base rental of $90,000 per year and additional rental of $20,000 payable on 30 September of each year. It also called for "security deposit" of $20,000. As to the security deposit the proposal stated: “A security deposit of $20,000 would be held by Metro during the term of the lease to be returned to you upon satisfactory completion of the lease or to be applied to the purchase price of the property should you exercise your option to purchase referred to below.” The security deposit is the subject matter of this action. [9] Cluett immediately instructed her lawyer, Kevin MacDonald to incorporate numbered company through which she would operate the Motel. She entered into possession of the Motel on June on her understanding that Metro would provide the lease purchase agreement later in the month. Cluett also retained MacDonald to act for her in the sale of her home since she needed cash for the payment of the security deposit. Also, there was small home on the Motel property which she intended to move into in order to be close to her business. [10] The evidence is not clear as to the preparation of the lease after Cluett went into possession of the Motel property. draft was prepared by Metro, or by Hill's business associate Eric Corkum, although there is some suggestion that another lawyer may have had hand in the preparation of the lease. In any event, draft copy of the lease was given to Cluett's lawyer who made several changes in the interests of his client. Sometime during the summer, or probably in September of 1991 Cluett was successful in selling her home. In early October Hill attended at the Motel and took delivery of the $20,000 cheque drawn on Cluett's personal account and marked as "Sec. Dep M.Motel". In the records of Cluett's numbered company the security deposit is recorded as "shareholders loan". Later financial statements of the numbered company show that this shareholders loan had been paid off. [11] The lease was long time "in process" as evidenced by the fact that Cluett's lawyer wrote letter to Metro indicating that if the lease was not executed within reasonable time then she would require the return of the security deposit. It is unclear what happened as result of this, but in letter from Hill to Cluett of 24 September, 1992 Hill indicates that the lease was never executed. [12] During the time that Cluett was operating the Motel she was also employed by Hill Investments keeping the records for one or more of the Hill companies. [13] There is evidence to show that the Motel operation was not as lucrative as Cluett had originally hoped which may have been due, at least in part, to downturn in the economy which had detrimental effect on the tourism industry. On 23 September, 1992 Hill and Cluett met to review the situation. This resulted in the letter of 24 September which outlined the terms of new arrangement which included lower rental and other decreased expenses for Cluett. The letter also enumerated outstanding obligations under the lease which totaled $56,000. This amount was comprised of “additional rental” for two years and unpaid realty taxes. This letter was apparently passed to Cluett's lawyer who responded by letter of 30 October 1992 which stated in part that Cluett: “wishes to have no further dealings with yourself or Metro Computerized Bookkeeping in relation to the Maritime Motel.” The letter further advises Metro that Cluett is entitled to return of the $20,000 security deposit... and reserves her right to maintain an action against Metro if the deposit is not returned to her. [14] In spite of that letter new lease with term of one year was drafted and given to Cluett's lawyer for review. Several changes were made and the revised document was reviewed by Cluett and Hill at the Motel in early October. It was then signed by the parties and Cluett delivered the signed copies to her lawyer who completed the jurat and registered the lease on 22 October, 1992. This lease contained clause which purported to cancel all of the debts between the parties “By signing this lease the parties herein and Jeanette Cluett acknowledge that any agreements or leases entered into prior to the date of this lease on the property are replaced by this agreement and any monies owing between the parties are considered null and void.” In her evidence Cluett said that she never read the leases that evening before signing it, even though she had initialled all of the changes before signing. [15] On 10 August, Cluett 1993 wrote letter to Hill indicating that she would not be renewing the lease for the Motel and would terminate her employment with Hill Investments as of 30 October, 1993. Cluett said that in conversation with Hill around this time she asked for the return of the $20,000 and he said "its all gone". She said that she then knew he would not repay the security deposit. conclude from the evidence that the separation on 30 October was amicable. Cluett asked if she could stay in the house for October if necessary, Hill agreed to this although it proved unnecessary since Cluett found alternate accommodation. On 28 July, 1994, at the request of Cluett, Hill wrote what only can be described as glowing letter of recommendation for Cluett which ended with the comment believe whomever employes (sic) Jeannette would acquire valuable asset". Cluett also said she continued friendly relationship with Hill's disabled son. [16] Based on this evidence find that this alleged cause of action arose on October 1992 when Cluett, through her numbered company executed the lease (without purchase option) which purported to absolve the parties from any and all debt existing at the time. Hill was of the opinion that all outstanding matters between the parties had thus been resolved. [17] Cluett said that on New Years Eve of 2000 she resolved to do whatever was necessary to get the $20.000 security deposit returned to her. Even after making that decision it was some seven and half months, in mid‑August that she met with Hill to make her demand. In August of 2001 Cluett met with Hill at Tim Horton's on Kempt Road and made demand for the return of the security deposit. Hill said he dismissed this demand as frivolous. Hill said he was upset with this turn of events and he advised her to call Eric Corkum. This happened years and 10 months after the cause of action arose without any other activity during the intervening time. The action was not commenced until October, 2001, full nine years after the cause of action arose on October 1992. [18] There is no evidence that Cluett sought or received any legal advice during this time respecting the matter. It was open to Cluett to seek such advice respecting her legal rights as set out in MacDonald's letter of 30 October 1992 at any time but she apparently elected to do nothing. [19] This is contractual matter which, under S. (1) (e) of the Limitation of Actions Act, requires that the action must be commenced "within six years after the cause of any such action arose". However, S.3 of the Act purports to give the trial judge wide discretion in disallowing defence based upon the prescribed limitation period. The relevant portions of S.3 are: 3(1) In this Section, (a) "action" means an action of type mentioned in subsection (1) of Section 2; (b) "notice" means notice which is required before the commencement of an action; (c) "time limitation" means limitation for either commencing an action or giving notice pursuant to (i) the provisions of Section 2, (ii) the provisions of any enactment other than this Act, (iii) the provisions of an agreement or contract. (2) Where an action is commenced without regard to time limitation, and an order has not been made pursuant to subsection (3), the court in which it is brought, upon application, may disallow defence based on the time limitation and allow the action to proceed if it appears to the court to be equitable having regard to the degree to which (a) the time limitation prejudices the plaintiff of any person whom he represents; and (b) any decision of the court under this Section would prejudice the defendant or any person whom he represents, or any other person. 3(4) In making determination pursuant to subsection (2), the court shall have regard to all the circumstances of the case and in particular to (a) the length of and the reasons for the delay on the part of the plaintiff; (b) any information or notice given by the defendant to the plaintiff respecting the time limitation; (c) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent that if the action had been brought or notice had been given within the time limitations; (d) the conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (e) the duration of any disability of the plaintiff arising after the date of the accrual fo the case of action; (f) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (6) court shall not exercise the jurisdiction conferred by this Section where the action is commenced or notice given more than four years after the time limitation therefor expired." [20] shall now deal with each of the circumstances of the case as outlined in S.(3)(3) of the Act. (a) The delay in this case is full nine years after the cause of action arose. I am unable to discern, from the evidence of the plaintiff, any valid reason for such a lengthy delay. She did speak to stress related health problems which required medication and four month period of leave. But her own evidence indicates that she was actively involved in business, either self‑employed or as an employee during the balance of these years. (b) ‑ I am satisfied that the defendants thought that all outstanding issues with Cluett had long since been settled so they had no possible reason to give any notice to Cluett respecting time limitations. (c) This action could have been commenced at any time after 30 October 1992. In my view, the elapse of 9 years raises a presumption that the evidence would be less cogent than it otherwise would have been. The evidence of Hill, taken as whole, suggests certain lack of cogency which can be attributed to the passage of time and the fact that for nine years the matter was completely "out of mind". Further, in mid November 2001 the defendant's storage warehouse in Dartmouth was destroyed by fire and the defendant lost many old records including those relating to Metro and the Maritime Motel. The defendant was therefore prevented from determining what, if any, old records would have been germane to the defence of the plaintiff's action. (d) The defendants were not aware of the cause of action until the Cluett/Hill meeting in August of 2001 at Tim Horton's. Accordingly, there were no requests made by the plaintiff to which the defendants could respond. (e) It seems that this circumstance relates to disability arising out of the cause of action. In this case there is no disability other than that alluded to in (a) above. (f) This also seems to relate more to personal injury situation. In the context of this case, the plaintiff's lawyer had stated the nature of the claim to the defendants in his letter of 30 October 1992. It is presumed that this was done on the instructions of Cluett. Therefore, it is reasonable to conclude that the plaintiff acted neither promptly nor reasonably by "sitting on her rights" for some nine years. In Butler v. Southam, (2001), 2001 NSCA 121 (CanLII), 197 N.S.R. (2d) 97 NSCA) Cromwell, J.A. said at para 142 "Moreover, concern with the Plaintiff's diligence is consistent with s. (2)'s focus on what is equitable. It will generally be less equitable for limitation defence to defeat the claim of diligent Plaintiff than of one who has sat back on his or her rights."(underscoring mine). [21] In Woods v. Hubley, (1996), 1995 CanLII 4280 (NS CA), 146 N.S.R. (2d) 97, Chipman JA noted in paragraph 36: review of all of the cases suggests to me that the amendments give trial judge very substantial discretion to virtually do away with limitation defences, subject only to the limit imposed by s. 3(6) of the Act. do not read this as direction to the trial judge to routinely grant all applications for relief from statutory time limitations. Indeed, such an interpretation is tantamount to adding four years to the prescribed limitation periods as matter of course. In the Random House Dictionary, 2nd Ed discretion is defined as "The power or right to decide or act according to one's own judgement". In my view, had found in favour of the plaintiff and disallowed the defence under the Limitation of Actions Act would have abdicated my statutory duty to exercise discretion. [22] Accordingly, the plaintiff's application to disallow the defence under the Limitations of Actions Act is denied and the action fails on that ground. [23] Since this disposes of the entire action deem it unnecessary to rule upon the other preliminary matters which counsel addressed in their submissions. [24] In the result, the plaintiff's action is dismissed. Costs will follow the cause. If necessary, will accept submissions from counsel respecting quantum of costs. [25] Judgement Accordingly

The plaintiff brought an action against the defendants for breach of contract in regard to the defendants' refusal to return to her the substantial security deposit that she paid as part of a motel lease. After being clearly told that the money would not be returned, she waited 9 years before commencing the action. The plaintiff applied for an order disallowing the defendants' limitation defence. Application to disallow the limitation defence dismissed; plaintiff's action dismissed. The plaintiff's evidence did not show any valid reason for such a lengthy delay and the defendants thought that all outstanding issues with the plaintiff had long since been settled. Not only was there a presumption that the evidence would now be less cogent than it would have been, but the defendants' storage warehouse was destroyed by fire 3 years ago resulting in the loss of many old records, including those relating to the motel.

d_2004nssc196.txt

Dated: 20020917 2002 SKCA 102 Docket: 447 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Gerwing, Sherstobitoff Lane JJ.A. HER MAJESTY THE QUEEN and CORY MICHAEL HERZBERG COUNSEL: Anthony B. Gerein for the Crown William A. Selnes for the Respondent DISPOSITION: On Appeal From: QBG of 2002, J.C. of Regina Appeal Heard: September 17, 2002 Appeal Allowed: September 17, 2002 (orally) Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane SHERSTOBITOFF J.A. (orally) [1] This appeal is from an order made by a Queen’s Bench judge prohibiting McMurtry P.C.J. from continuing as trial judge in respect of criminal charges against the respondent Herzberg. [2] Herzberg was charged with impaired driving, driving with a blood-alcohol level exceeding .08, and dangerous driving. He moved for stay of proceedings on the ground that the Crown had failed to provide adequate disclosure. In response, the Crown filed an affidavit to show that disclosure had been made. The affidavit had appended as exhibits the items disclosed, among them, copy of the criminal record of Mr. Herzberg. The application was dismissed. [3] At the opening of the trial, the defence applied for stay on the ground of perception of bias on the part of the judge because the respondent’s criminal record was before her. She dismissed the application, noting first that she had not read the criminal record, and secondly that trial judges often are necessarily made aware of evidence that is both incriminating and inadmissible and are nevertheless required to continue with the proceedings on the basis that the inadmissible evidence cannot be taken into account in reaching verdict. [4] The respondent then applied to the Queen’s Bench for an order of prohibition. The order was granted on the following reasoning: Counsel for Mr. Herzberg contends that an accused’s criminal record cannot be put into evidence unless the accused takes the stand. Crown counsel contends that the trial had not commenced as no evidence had been called and therefore it could not be said the criminal record was put into evidence at trial. Once Judge McMurtry heard argument in respect to the Charter applications, which she did on October 11, 2001, in my view the trial had commenced. Even though Judge McMurtry had not read the criminal record she was aware of its existence as her decision dated December 17, 2001, indicated. The case law indicates, in my opinion, the existence of criminal record should not be made to trial judge unless the accused is called as witness. The Crown was at fault in this case by filing the criminal record in the affidavit. In my opinion, the Crown did not have to disclose to the trial judge any indication of criminal record. [5] The appeal must be allowed. There is abundant authority that disclosure of an accused’s criminal record to the court, whether composed of judge and jury or jury alone, does not amount to an automatic disqualification of the court on the ground of apprehended bias, appearance of bias or other prejudice to the accused. [6] The judgment of Matheson J. in R. v. Peters (1991), 1991 CanLII 7670 (SK QB), 96 Sask. R. 177, is almost directly on point. In that case, Crown witness inadvertently disclosed that the accused had criminal record by stating that he had served notice to seek greater penalty by reason of prior conviction. After considering relevant authorities, the judge said at pp. 182-83: [28] Judges of facts, whether they be juries or judges sitting alone, have sworn duty to base their conclusions solely on the admissible evidence which has been adduced during the course of the trial. Quite often evidence is adduced which must be ignored. The evidence may be irrelevant. Conversely, it may be relevant and of probative value but may be deemed inadmissible because its prejudicial value to the accused outweighs its probative value. In those instances, the evidence, or at least the nature thereof, will likely have been disclosed to the trier of fact. If the trier is jury, clear instructions will be delivered to ignore the inadmissible evidence. If the trial judge considers that the inadmissible evidence may nevertheless unduly influence the judgment of the jury, he may exercise his discretion and declare mistrial. It does not appear, however, that he possesses discretion to dismiss the indictment. [29] Trials of charges contained in informations are not, of course, conducted before judge and jury. By analogy, however, if inadvertent evidence should be adduced before judge, and he considers that he will be unable to ignore such evidence when making his final decision, the proper course would be to declare mistrial: Attorney General of Quebec v. Bissonnette, supra [(1980), 17 C.R. 26]. To equate an irregularity to statutory prohibition would seem to be an unwarranted extension of the intention of Parliament. [30] Very often trial judges are required to determine the admissibility of evidence which may be highly damaging to the accused, such as statements by the accused, or intercepted communications. The evidence, if admitted, may be very significant factor in the determination of the guilt or innocence of the accused. Generally speaking, it is necessary for the trial judge to hear good deal about the evidence before decision can be made as to its admissibility. Even although the exact statement alleged to have been made by the accused may not be revealed, it may be properly inferred that there would be no attempt to introduce it into evidence unless it tended to establish the guilt of the accused. [34] The court concluded, in Corbett, supra [1988 CanLII 80 (SCC), [1988] S.C.R. 670], that s. 12 of the Canada Evidence Act did not violate the right, guaranteed by ss. 11(d) of the Charter to any other person charged with an offence, to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. That conclusion was reached notwithstanding an acknowledgement that the jury, even although properly instructed, might use the evidence of prior convictions for an improper purpose. An overriding faith in the jury system was clearly manifested by the court, assuming that juries should be properly instructed as to the limited use which may be made of evidence that the accused was previously convicted of criminal offences. [35] If jury is deemed capable of assimilating proper instructions regarding evidence of prior convictions, one must assume that trial judges fully comprehend those instructions. [36] The evidence complained of was inadvertently introduced. If inadvertent errors should automatically result in termination of the proceedings, then more egregious, and perhaps deliberate, errors on the part of the Crown, or its witnesses, would necessitate no less result. standard of perfection would then be required of the Crown, standard which humans are quite incapable of achieving. [37] Every individual charged with criminal offence is guaranteed the right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. Although it is the responsibility of the presiding judge to ensure fair hearing, there is no law which guarantees that inadvertent, inadmissible evidence will not be introduced. If an error of that nature should occur, the error should be ignored, or, if it is deemed too significant to be ignored, mistrial should be declared, permitting new hearing which will contain no record of the inadvertent error. If that is the proper procedure, it necessarily follows that the accused's rights, as guaranteed by the Charter are not violated when the inadvertent error occurs. [7] In this case, when the matter was raised with the trial judge, she said that she had not read the record, that she was not biased as a result of the information tendered at the pre-trial proceedings, and that the record was something she could put out of her mind as she did in all instances where she ruled evidence inadmissible. In these circumstances she was correct to dismiss the application for a stay and to decline to recuse herself. [8] The appeal is allowed, the order for prohibition is quashed, and the matter is remitted to the Provincial Court for trial.

The accused applied for a stay of proceedings on the ground the Crown failed to provide adequate disclosure. In making disclosure, the Crown appended a copy of the respondent's criminal record to its affidavit. The defence then applied for a stay on the ground of perception of bias on the part of the Provincial Court judge because the respondent's criminal record was before her. The Crown appealed the order which prohibited the judge from continuing as trial judge in respect to the respondent's criminal charges of impaired driving, driving with blood alcohol levels exceeding .08, and dangerous driving. HELD: The appeal was allowed. The order for prohibition was quashed and the matter was remitted to the Provincial Court for trial. There is abundant authority that disclosure of an accused's criminal record to the court alone does not amount to an automatic disqualification of the court on the ground of apprehended bias, appearance of bias or other prejudice to the accused. The judgment in R. v. Peters is almost directly on point. The judge in this case said she had not read the record, she was not biased as a result of the information tendered at the pre-trial proceedings and the record was something she could put out of her mind as she did in all instances where she ruled evidence inadmissible. She was correct in these circumstances to dismiss the application for a stay and to decline to recluse herself.

3_2002skca102.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 188 Date: 2018 06 25 Docket: CRM 19 of 2017 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN and CORY JAY GRAHAM and MELANIE AMY BOULETTE Counsel: Denis I. Quon for the Crown Tanner J. Daniels for the accused JUDGMENT SCHERMAN J. June 25, 2018 Introduction [1] Cory Jay Graham [Cory] and Melanie Amy Boulette [Melanie] are charged with, between August 31, 2016 and September 15, 2016, at or near Medstead in the Province of Saskatchewan: a. Unlawfully producing cannabis marihuana contrary to section 7(1) of the Controlled Drugs and Substances Act, SC 1996, 19 [CDSA]; b. Unlawfully possessing cannabis marihuana in an amount exceeding kilograms, for the purposes of trafficking, contrary to s. 5(2) of the CDSA; and c. Unlawfully having in their possession Canadian currency of value exceeding $5,000 knowing that all or part of the said property was obtained by the commission in Canada of an offence punishable by indictment contrary to s. 354(1)(a) of the Criminal Code, RSC 1985, C-46. [2] At the conclusion of trial Crown counsel applied to amend the indictment to cover the period March 1, 2016 to September 15, 2016. In Murray, 2003 SKCA 120 (CanLII), 241 Sask 101, the Saskatchewan Court of Appeal held that an amendment to an information expanding the time particulars of the offence can be made at trial based upon evidence that indicates the offence may have been committed within the amended timeframe. Since the evidence was to the effect that marihuana plants did not start arriving until early June, grant amendment of the indictment to cover the period June 1, 2016 to September 15, 2016. [3] Cannabis marihuana was being grown during the period and at the location particularized in the charges against them on property the accused owned. The central issues with respect to the charges are whether the Crown has proven beyond reasonable doubt that: a. They were unlawfully producing cannabis; b. They possessed the cannabis for the purposes of trafficking; and c. The currency in question was obtained by the commission in Canada of an offence punishable by indictment. [4] The defendants testified. Their evidence, in extreme summary, was that: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana or parties to its production; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. Background Facts [5] Having been alerted by provincial conservation officer that marihuana appeared to be in production on the property in question, the local RCMP detachment decided to investigate. It asked for the assistance of an RCMP emergency response team [ERT]. The ERT, consisting of approximately eight individuals, conducted surveillance, commencing in the late afternoon of August 14, 2016. The ERT’s role, if decision was made to enter the property, included securing the property, making sure there were no guns, establish perimeter and guard the site and any arrested individuals until the site and arrested individuals were turned over to the investigation team. [6] Their observations caused them to believe marihuana was being produced on the subject property. The evening of August 14, 2016 they testified they heard generator running, could smell marihuana and at 11:19 p.m. vehicle with one individual in it drove up to the site but shortly departed. During the day of August 15, 2016 they observed single vehicle with one individual in it drive up to the site and then leave. [7] They heard voices throughout their observations but those voices appeared to be coming from what was stated to be house closer to the lake. Based on other evidence the only house closer to the lake would have been the accused’s residence which was approximately 1/4 mile to the east. [8] Their observations led them to believe the site contained marihuana grow operation. general warrant was obtained mid-afternoon of September 15, 2016, and the ERT entered the property at approximately 7:00 p.m. on September 15, 2016. This approach was timed so that the setting sun would be in the eyes of any persons present on the site and thus make their approach less noticeable. [9] The initial plan was to enter the property pursuant to the general warrant, make more precise observations as to what was on the site and with that information obtain specific search warrant if justified. At the time they initiated this plan the site appeared to have no one present on it. [10] The property was fenced with page wire fence and locked gate. Within the property were two greenhouses. Shortly before their actual entry onto the property two male individuals drove up to the gate in pickup truck, entered the fenced in area and then entered the most southerly of the two greenhouses. The police entered the property through the then unlocked gate and approached the greenhouse the two individuals had entered. They deployed “flash bang” to distract the individuals, entered the greenhouse, told the two individuals that they were under arrest, took them to ground and handcuffed them. The two individuals were the accused Cory Jay Graham and one Oscar Gutierrez Reyes [Oscar]. RCMP members testified that these two individuals appeared surprised and that Oscar made the spontaneous statement “call the police”. [11] Approximately 15 to 20 minutes after the arrests were made, the accused Melanie drove up to the site in another truck, with two young children accompanying her. While not then arrested, she was kept under observation. [12] Members of the RCMP ERT searched the property including the greenhouses, the two trucks mentioned above, third truck within the fence and an ATCO trailer located next to the greenhouses. double barrel shotgun and rifle were found in the truck which brought Cory and Oscar to the site. The truck and firearms were Cory’s. There was also ammunition in the truck. The truck driven by Melanie had nothing of significance in it. [13] Found within the ATCO trailer were, inter alia: a. Health Canada “Personal-Use Production Licences” for marihuana, one in the name of Oscar Gutierrez Reyes and one in the name of Brooke Bettencourt. These licences had respective expiry dates of March 31, 2014, respective maximum indoor plant numbers of 390 and 59 and indoor production site addresses for locations in Ontario. These licenses were sitting on table inside the trailer; b. Electronics including computer to monitor the environment within the greenhouses; and c. Five bags of dried marihuana. [14] There was also found within the trailer various documents belonging to Cory that in general sense related to his previous work as consultant in the oilfield. Cory owned the trailer and under clause 14 of lease between Cory and Oscar, Cory was to provide an office shack at the property for security and maintenance personnel. [15] The two greenhouses contained some 750 marihuana plants. While the greenhouses had equipment for overhead irrigation, it was not being used and the plants were watered manually. The greenhouses had furnace fired heating system and were connected to the computers in the ATCO trailer to monitor temperatures. [16] Upon the ERT securing the site they informed the investigation team of the RCMP and turned Cory and Oscar over to the investigation team. The investigation team took over the investigation, conducted thorough search of the site, the ATCO trailer, the vehicles and the residence of Cory and Melanie located to the east of the greenhouse site. Numerous photographs were taken and exhibit items seized. box was found within the residence that contained $6,210 in cash, and it was seized. [17] Samples of the marihuana plants in the greenhouses were seized and sent for analysis. The balance of the plants were destroyed. The analysis confirmed the plants were indeed marihuana plants. That this was so was conceded by the accused from the outset. [18] The evidence clearly established that this was relatively sophisticated marihuana grow operation. The plants were healthy and some four to six weeks away from harvesting. [19] Corporal Michael Schmidt was tendered to provide opinion evidence. He was qualified as an expert entitled to provide opinion evidence with respect to the production, packaging and distribution of marihuana, including the characteristics of operations involved in the illegal production of marihuana as well as in respect of the pricing of marihuana and the jargon within illegal trafficking in marihuana. The Crown’s Position [20] In the proceedings the Crown acknowledged that the five bags of marihuana were not the accused’s property, but rather the property of Oscar. While the licences had expiry dates of March 31, 2014, the Crown agreed that the effect of two Federal Court decisions in Allard Canada, 2014 FC 280 (CanLII), 451 FTR 45 [Allard], and 2014 FCA 298 (CanLII), 324 CRR (2d) 78, was mandatory injunction extended the expiry dates of Personal-Use Production Licences issued under the Marihuana Medical Access Regulations, SOR/2001-227 (since repealed), until certain constitutional challenges were decided. [21] The Crown does not challenge that the expiry date of the licences here in question were extended or grandfathered by the Allard decision. However, its position is that: The licences were only valid for their specified growing location in Ontario and not at the accused’s site in Saskatchewan; The licences only permitted some 449 plants to be grown at those locations and not the some 700 plants that were being grown; If the accused were mistaken that these licences were validly in effect for their location that was mistake of law, not mistake of fact and thus is not defence for them; Notwithstanding the lease, which the Crown views as sham, the accused were in fact in control of the premises and actively participated in the husbandry of the plants and thus they were both producing and in possession of marihuana; The quantity of the marihuana being grown coupled with the conclusions to be drawn from their circumstances and various text messages they were involved in establishes they were producing the marihuana for the purposes of trafficking; and Based on the totality of the evidence, the only rational conclusion to be drawn in respect of the cash found in their residence is that it was property obtained by the commission of an indictable offence in Canada. [22] The Crown says the evidence of the accused should not be believed, that the totality of the evidence must be looked at and when attention is paid to things they themselves said in text messages they created it is clear that the accused were active participants in the marihuana grow operation and were in the possession for the purpose of trafficking in marihuana. The Accused’s Position and Evidence [23] It is undisputed that some 700 plants of marihuana were being grown on the accused’s property. As stated above, the defence evidence in summary was: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. [24] The Crown challenges the veracity of the accused’s evidence. Given their testimony, the application of the principles of W.(D.), 1991 CanLII 93 (SCC), [1991] SCR 742, [W.(D.)], is major element of this case. more detailed analysis of their evidence is required. [25] Cory’s work background was what he described as consultant in the oilfield, working both domestically and internationally. With the downturn in the oil and gas industry he was not actively so engaged in 2016. From 2012, Melanie and Cory owned and operated gas station and restaurant (Graham’s Gas Grill) on Highway #4 near Glaslyn, Saskatchewan which Melanie managed. They sold that business by March of 2016 but the sale was not completed until June of 2016. cheque in the amount of $70,880.28 issued on June 24, 2016 from their lawyer to Melanie representing their net proceeds on that sale [26] Melanie testified that she and Cory began discussing greenhouse venture to grow vegetables and she approached her brother David Boulette [David] who agreed to go into business with them under an arrangement where David would fund 70 percent of the cost, but Cory was to do all the work. She testified corporation “Maple D’s Leaf Products” [Maple D] was incorporated in which David and Cory were the shareholders. No corporate records were entered into evidence showing when, indeed if, the entity was incorporated, who the shareholders were, their respective shareholdings nor who the officers and directors were; although March 3, 2016 email of Melanie to Deanna at Farm Credit Canada [FCC] and David stated that Maple was incorporated with David as the sole director and that they would transfer title to the land to Maple in order for FCC to be first on title. [27] business plan dated “Feb 18, 2016” was submitted under the name “Maple D’s Leaf Products” to FCC seeking financing. Melanie testified this business plan was submitted by David. This business plan stated, inter alia: The project was built around highly successful businessman whose initial objective was to produce and supply lettuce to local and regional markets and to successfully apply “for cultivation and sale license under the MMPR system” (page 2); It was seeking financing for the purchase of equipment and development costs estimating it would begin to make profit in year two; The company was owned by its founder David Boulette with Melanie Boulette running the day-to-day operations at the greenhouse (page 3); The operation would initially utilize 4,000 square foot greenhouse to be expanded after the first successful harvest (page 3); David Boulette is successful businessman in various ventures over several industries and is expanding his portfolio into this area (page 5); and The personnel plan includes project managers who will oversee all design and construction of the hydroponics facilities and consultant specializing in hydroponics who works for David Boulette in other horticulture projects in Ontario (page 6). [28] There was limited evidence about David Boulette beyond the information contained in the documents submitted to FCC. These documents included: 2013 income tax assessment showing his net income to be $187,500 originating entirely from dividends; 2014 notice of assessment showing his taxable income to be $268,333; and net worth statement putting his net worth at $5,047,000 which included house worth $3,820,000 and U.S. house worth $650,000. [29] Clearing of trees on the accused’s property to establish greenhouse site was underway by February 16, 2016. Cory had found used greenhouses for sale in British Columbia on Kijiji. In early March he travelled to Duncan, British Columbia with two hired assistants to dismantle two greenhouses purchased for about $15,000 and to arrange for their shipment back to Saskatchewan. The shipment cost was about $3,000. David paid these costs. Photographs taken during the dismantling in Duncan show this was underway between March 24 and 27. The greenhouses arrived at the accused’s location by April but at that time snow was still on the ground. [30] The evidence does not provide precise information as to when construction of the greenhouses on the Graham/Boulette property started, although common sense suggests it would likely have started once the frost was out of the ground and the ground had dried sufficiently to permit construction. Cory’s testimony was that oilfield operations were shut down during spring break-up and he was able to undertake the construction along with two individuals he hired to assist. [31] Cory’s testimony was that at some point in May when construction was approaching completion he fell from ladder, shattered his left elbow requiring surgery and the insertion of four pins. He also tore the rotator cuff on his right shoulder which also required surgery; but that did not occur until eight months later. He testified that both arms were in slings, he was originally on drug, hydromorphone, which he did not do well on and so he was switched to OxyContin which it turned out he could not tolerate. He said that he felt highly intoxicated for about two months and life was pretty much haze until into July when he spoke to his doctor about getting him off the OxyContin and he went on medical marihuana for the pain for which he obtained licence. He testified that he began sending resumes out looking for work by August, but he was unable to return to that work until after his surgery in February of 2017 and he did not get back into oilfield work until that spring. [32] The testimony of Cory and Melanie was that following Cory’s injury there were discussions with David about what to do, that David mentioned he may be able to find someone to lease the property and he subsequently told them about an acquaintance, Oscar, whom they were told had licence to produce medical marihuana, was looking for cheaper place to grow and was interested in growing in Saskatchewan where there was more sunshine. [33] They testified that David and Oscar flew out in the latter part of May for Oscar to check out the greenhouses and an agreement was reached. Cory testified that Oscar came with copies of marihuana production licences in the names of himself, Brooke and one Walter Cabrera. He explained that the expiry dates were “grandfathered” but that he would have to get the production location addresses changed with Health Canada. The accused agreed in then handshake agreement to lease the greenhouses to Oscar if they were able to satisfy themselves that what Oscar was representing to them was correct. [34] Melanie testified she consulted with their lawyer Aaron and had telephone contact with Health Canada in an attempt to confirm what Oscar had told them. She testified that Health Canada advised her that they could not share details of individual licences by reason of privacy concerns but she was informed that court decision had the effect of extending expiry dates in licences and that licences could be so grandfathered. Relying on this and Oscar’s representations that he would get the production locations changed they agreed to lease the site to Oscar to grow medical marihuana under the licences of Oscar, Brooke and Walter. Subsequently they received from Oscar copy of letter from Health Canada that stated the new address for production licence for Oscar was their property. For reasons discussed below am satisfied that this document was forgery and probably was created by Oscar. Cory testified that both Brooke and Walter told him that the addresses on their production licences had been changed to their property. [35] Using various precedents she found online, Melanie prepared written lease which went through various drafts before it was executed on August 8, 2016. Her evidence was that most of the discussion of the terms occurred between David and Oscar, that they agreed the rental payment would be lump sum payment of $12,000 at the end and that David was concerned about getting back some of what he had put into the purchase of the greenhouses. [36] The lease contains many provisions that legally trained draftsman would not have included in such lease. There is language that appears to have its origin in leases of commercial property that would include base rent and additional rents for operating costs. The lack of legal sophistication in the preparation of this lease is obvious. That aside, the following terms of this lease are significant: f. “Premises” means the commercial premises at Acre Portion of LSD 2-21-51-15 W3 and comprises Leasable Area of 8000 square feet. 3. The Landlord agrees to rent to the Tenant the commercial premises municipally described as Acre Portion of LSD SE 21-51-15 W3, (the “Premises”) and comprises Leasable Area of 8000 square feet. The Premises are more particularly described as follows: The property and lease is in reference to the acres that the greenhouses reside on including the two greenhouses totalling 8000 sq. ft. The Premises will be used for only the following permitted use (the “Permitted Use”): Agricultural/medical use. 10. The Tenant covenants that the Tenant will carry on and conduct its business from time to time carried on upon the Premises in such manner as to comply with all statutes, bylaws, rules and regulations of any federal, provincial, municipal or other competent authority and will not do anything on or in the Premises in contravention or any of them. 14. The Landlord agrees to supply and the Tenant agrees to use and maintain in reasonable condition, normal wear and tear excepted, the following chattels: a. The landlord agrees to provide an office shack at the property for security and maintenance personnel. 22. The tenant is permitted to operate in this property under the agreement that he will only operate under the license provided to him by Health Canada. The owner also requires additional security features in place to protect the area from theft or vandalism due to the nature of the medical plant. The tenant will ensure personnel are at the property the majority of the time. The landlord has no control over the leased area once this agreement is signed, and must provide full access to the tenant and his staff. 28. The Tenant will not engage in any illegal trade or activity on or about the Premises. [37] Cory’s evidence was that after the handshake agreement was made with Oscar: a. Oscar, Walter and Cody Smeets [Cody] arrived in early June; b. David had arranged for them to initially stay at David’s mother’s place which was close to the accused’s residence; c. Oscar went back to Ontario while the other two stayed working in the greenhouses; and d. Oscar came back in Hummer with an RV trailer and brought with him small plants which Oscar described as clones. The RV trailer was parked on the site and was their accommodations. They also had tent. Melanie’s recollection and evidence was that Oscar came back with plants but that it was Walter and Cody who brought the trailer. [38] photograph dated June 15 shows small pots of plants spaced out within greenhouse partially covering the greenhouse floor space. An earlier photograph dated June 8, 2016 shows greenhouse that appears to then be empty of plants. Both Cory and Melanie testified that Oscar told them there were only 400 plants and the licences were for 500. [39] Cory testified that throughout the summer there was usually one of Oscar, Walter or Cody present, although they would go back and forth to Ontario. Melanie’s testimony was there was always one of them present. Brenda Bettencourt came out once as well. Cody was there for most of the summer and for significant period of the summer had girlfriend by the name of Melissa with him and she, for period of time, had her young son with her. [40] Cody and Melissa visited Cory and Melanie at their residence from time to time. Melanie’s testimony was that she did not like Cody, referencing that Cory liked to drink and this gave Cory the opportunity to go drink with Cody and have fire on the beach. Melissa and her son would come over so her son could play with Melanie’s children and he was present for birthday party of one of Melanie’s children. Walter was the next most present person and Oscar made several visits. [41] Cory testified that Oscar and his crew were hard to get along with and were not good tenants. In explaining this Cory referenced things not getting looked after, that they were messy, there was garbage in the compound, they whined about stuff including that they expected him to supply water right on the location and not to have to truck it from the lake. [42] July 29, 2016 text message exchange between David and Cory evidences that there was then already conflict between Cory and Melanie on the one hand and Oscar on the other. Melanie testified that during July 29 trip to Saskatoon, she had been asked by Oscar to pick up particular product or products for him. As evidenced by text message communications between Melanie and Oscar, she was having difficulty in identifying or finding the specific product Oscar wanted and it is clear that Melanie took offence at Oscar’s language or manner and reported her offence to Cory. Later that day Cory texted David words that suggested he was prepared to kick Oscar out. David responded stating “Okay but wait until after the harvest. We dont need him being snake and pulling his license”. [43] Cory, Melanie and their children went to Florida in late August and they made arrangements for Cody to feed their five dogs while they were gone. When they returned they found Cody and Melissa had made use of their house, the beach was mess and Melanie felt they had partied there throughout. She testified she stewed on this for few days and couple days later when she went down to the greenhouse site, after significant wind storm, she observed that some plastic covering and motor on one of the greenhouses was ripped off. [44] Melanie testified she and Cody “had words” during which Cody said his job was to look after the plants not fix the greenhouse. Cody then went to Cory and told him to calm his wife down. At this point Cory told Cody to get out. Cody packed up the trailer and left and when doing so took the licences telling Cory it was now an illegal grow op. Their testimony is that Cory then went to the site, placed locks on the gate into the compound and did not return to the site until September 15, 2016 at the time of the arrests. [45] Following Cody leaving there was text or chat communication among Cory, David and Oscar. The text or chat messages and the evidence generally makes it clear that David was attempting to mediate resolution of the conflict. Among those text or chat communications were the following: a. By Cory at 1:12 p.m. on September 13 (Exhibit P26, page 42): So what’s going on here? When Cody left he took the licences and was told it was no an illegal grow op. So now you want back in on this deal Oscar? That’s fine but let’s get somethings straight. Cody will not be coming back here. Period. That ship has sailed. when someone wants to come out here, I’m the first fuckin person who gets notified. Last fuckin checked, make the payments on the property. b. By David at 1:13 p.m. on September 13 (Exhibit P26, page 43): Oscar was coming told Mel. He is bringing the licenses back. Originally he wanted to bring Walter but Walter doesnt want to come so he convinced Cody. They are staying my moms and are renting there own car. Oscar is bringing some product that he owes me. He also wants to check on how things are looking. c. By Oscar at 2:27 on September 13 (Exhibit P26, page 46): Ya you did Cory ur arm has been broken go smoke another crack pipe sesously think you got to stop drinking it’s going to your head d. By Oscar at 2:31 on September 13 (Exhibit P26, page 47) Any way its illegal were evicted need my employees e. By Oscar at 2:32 p.m. on September 13 (Exhibit P26, page 45): Yo we aren’t coming back it’s an illegal op now Cause you and your wife are kids [46] Cory and Melanie testified that Oscar flew back into Saskatchewan and came back to their residence with the licences on September 15, 2016 the same day that they were arrested. Cory testified this was few days after he kicked Cody out. Given this evidence and the September 13 communications above, conclude that Cody was kicked out either September 12 or 13. Cory testified that when Oscar arrived they sat down in his house and discussed the situation to smooth things over. Cory testified that around 7:00 p.m. Oscar wanted to go over to the greenhouses and asked him to come to show him how to operate the furnaces. He stated that when the flash bang went off Oscar started screaming phone the police. [47] Cory testified that he was not involved in the growing of the plants, as far as he knew there were only 400 plants and that they were being grown pursuant to the Health Canada licences. He was never part of plan to sell the marihuana and he did not stand to profit from it except by virtue of the rental payment. [48] Melanie testified that while she had seen Cory at the greenhouse site drinking with Cody and he did go there to look after equipment supplied, she never saw Cory helping with the plants. She testified that while she had been asked to help repot the plants in June she never did because she was too busy [49] The evidence of the accused was that Melanie having sold the store and Cory being unable to work due to his injuries, they and their two children spent periods of the months of July and August away from their home including camping at Lac Des Isles and their lot at Lac-Clair, had trip to Edmonton and went to Florida for approximately 10 days in the latter part of August. Melanie estimated that over the summer they were away from their residence approximately one-half of the time. [50] Melanie testified they were told there were only 400 plants. She considered the plants to be the property of Oscar, Walter and Brooke and at no point possessed or intended to sell the produce. She acknowledged that on one trip to Saskatoon she agreed to pick up supplies for Oscar but states that in the final analysis she did not pick up anything for him and this occasion ended up with her and Oscar having the argument of July 29, 2016 referred to above. The Crown’s Position and the Evidence it Relies on [51] The Crown says the accused should not be believed and that when the evidence as whole is considered it is clear that the accused were active participants in the marihuana grow op in question and the appropriate inference to draw is that they were producing the marihuana for the purposes of trafficking. [52] In support of this position the Crown relies, inter alia, on the following evidence: a. From the outset the plan was to eventually grow marihuana as the business plan filed with FCC indicated and as Cory acknowledged in his testimony; b. An April 26, 2016 text (Exhibit P26 page 14) from Melanie’s phone to telephone number 1-226-929-2303 asking “How much top soil do we need?” with the argument by the Crown that the number is Oscar’s by inference from the fact that there is also found on Melanie’s phone photograph of Oscar of June 22, 2016 that the Crown suggests was sent from the phone number 1-226-929-2303 (Exhibit P26 page 6). On that premise the Crown then argues, given her testimony she had not met Oscar until he came to inspect the greenhouses in late May or early June, there are serious credibility issues with her evidence generally; c. The lease signed curiously does not require rent to be paid until December 31; d. The 700 plants in the greenhouses significantly exceeded the 400 permitted by the licences of Oscar and Walter; e. There is no record of Melanie calling Health Canada as she testified she did on two occasions; f. text message exchange from Melanie to her mother on July 4, 2016 references needing help potting 400 plants (Exhibit P26 page 12); g. The July 23, 2016 texts on Cory’s phone to 1-941-914-7513, (Exhibit P26 pages 35 and 33) stating inter alia: 1. Starting at indicated message time of 8:45 a.m. “If he’s such pro, he should have had us test the water in the very beginning!”, subsequent references to deficiencies in the plants and “he’s clueless”; 2. Starting at indicated message time 5:15 p.m. of “Ph water is too high” and “Ph is fixed, flushing plants today, and Mel: everyone else O”; h. The July 29, 2016 text messages between Melanie and Oscar related to Melanie picking product up for Oscar in Saskatoon (Exhibit P26 pages 26 to 29); i. The July 29, 2016 text messages between David and Cory where Cory is talking of throwing Oscar out and David is telling him wait until after harvest, we don’t need him pulling his licence (Exhibit P26 page 39 to 41); j. The texts between Oscar and Cory following Cory kicking Cody out (Exhibit P26 pages 42 to 47) where at page 42 Cory states that when someone comes out he is the first person to get notified since when he last checked he makes the payments on the property; k. The text of Cory to David at page 44 where he makes statement that “I work here 24 hrs day”; l. Various text messages or photographs of Melanie demonstrate what the Crown characterized as keen interest in marihuana; m. The fact that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator; n. The presence of many firearms and $6,210 in cash in their residence; and o. Text messages between Cory and one “Whozurr Paddy [Paddy] (Exhibit P32) with language suggestive of trafficking. Analysis of the Crown’s Position Regarding Credibility and the Evidence [53] Since the accused testified, application of the principles set forth in W.(D.) is required. What follows is composite of the instructions given in W.(D.) with an addition (the “secondly” below) added by the judgment of Wood J.A. in C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 CCC (3d) 146 (BC CA) at 155: “First, if you believe the accused, obviously you must acquit; “Secondly, if, after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; “Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; “Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” In W.(D.) Cory J. also said the following at 757: 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. Second, 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 [1988 CanLII (SCC), [1988] SCR 345], at p. 357. [55] There are aspects of the evidence of Cory and Melanie that believe and there are other aspects that am not sure what to believe. Looking at the evidence as whole see reason to be suspicious that the involvement of Cory and Melanie went beyond what they testified to. It is clear to me based on Cory’s communication with Paddy and indeed his own testimony that he was involved in illegal dealing in cigarettes. This is clear from review of the text messages found in Exhibits D4 and D7. However, in the final analysis am unable to conclude that the accused are being dishonest when they testify that their involvement with Oscar was to lease the greenhouses to him and in their purported belief that the marihuana being produced by Oscar was being produced under valid licences. [56] Crown counsel argues that words “if you have another pound ready to go” in the text messages in Exhibit P32 must be reference to marihuana because you do not sell cigarettes by the pound. While this isolated phrase in Cory’s communications with Paddy could relate to marihuana, “could” is not good enough. The balance of this conversation could equally well relate to cigarettes. Bulk tobacco can be sold by the pound, and gifts of tobacco are common in First Nations’ culture. It is clear they were dealing in cigarettes and since the marihuana crop in question was four to six weeks from being harvested conclude it is speculation to conclude this one phrase “another pound” was reference to marihuana. Cory’s later text of September 10 to Paddy “Gonna have 500 in 3-4 weeks too” is at least as likely to be reference to 500 cartons of cigarettes as anything else. [57] That the accused intended from the outset of their greenhouse project to eventually use the greenhouse to grow marihuana, if the legislation came to permit such and they were able to get licence, should in no way lead me to conclude that the accused were more likely to be involved in the illegal growing and trafficking of marihuana in 2016. Many individuals and corporations were doing the precise same planning. [58] The argument advanced that various text messages or photographs of Melanie demonstrates what the Crown characterized as keen interest in marihuana, and this assists in proof that she was during 2016 involved in illegal production and possession of marihuana for the purposes of trafficking, is to my mind non sequitur. If, as the accused have testified, they had plans to grow marihuana if it became legal to do so, it is logical that Melanie would have keen interest. She would want to learn what she could. [59] The argument that since the number 1-226-929-2303 appears associated with photograph of Oscar that came to be on Melanie’s phone on June 22, 2016 is not sufficient basis to conclude that she was not credible (having testified that she did not meet Oscar until his first visit in June) or that she was already communicating with Oscar in April about details of growing in the greenhouse. Curiously this number, along with another number that could also be telephone number, appears to have been assigned as jpeg identifier to this photograph. The evidence simply does not permit me to conclude this photograph was sent from 1-226-929-2303. [60] The April 26, 2016 exchange of texts starting with Cory texting Melanie at 7:04 a.m. that 76 cubic yards was needed per greenhouse 6” deep does not support the drawing of the inferences the Crown suggests. At 7:07 a.m. Melanie texts 1-226-929-2303 asking how much topsoil was needed 4” or 6”. At 7:08 1-226-929-2303 responds “6”. The accused testified they put topsoil in the greenhouses, but when Oscar and his crew arrived, they had it removed and the marihuana plants were in fact grown in individual pots. Photographs confirm this was so. Thus, it seems probable that someone other than Oscar (texting from 1-226-929-2303) was informing Melanie that 6” of topsoil was required. [61] conclude that it is illogical to conclude that Oscar would be advising Melanie in April of 2016 that 6” of topsoil was required when he, an experienced grower, would have known he would be growing the plants in individual pots. Further, it is also illogical that an experienced grower would in April be giving instructions to inexperienced people he did not know with plans to construct greenhouses in Saskatchewan and how much topsoil to place in the greenhouses to grow marihuana. [62] The evidence is that David was resident of Ontario. It was he who submitted the business plan to FCC to grow lettuce in the greenhouse. The information he submitted in that application attested to his involvement and experience in horticultural ventures in Ontario. In these circumstances logic suggests that the probability is that Melanie was communicating with David. Since have no direct evidence as to whose telephone number 1-226-929-2303 was and given the issues discussed above, find there is no basis to conclude that Melanie was in communication with Oscar in April of 2016. [63] The Crown has placed significant emphasis on the text messages of July 23 relating to the PH of the water and specifically the statement “Ph is fixed, flushing plants today. Mel: everyone else O”. However these texts must be assessed in their context. The evidence satisfies me that the water supply was the adjacent Birch Lake and that there was conflict between Oscar and Cory with respect to the suitability of that water, that Oscar expected water to be available on site as opposed to having to truck it up from pump that drew the water from the lake and then he complained about the quality of the water. It appears from the evidence generally that Oscar had expectations of Cory, whether as landlord or otherwise, with respect to the water. What is clear from the texts is that Cory is taking no responsibility for the problems that Oscar and Cody are complaining of. [64] In this exchange of texts Cory is venting to David about conflict between him and Oscar. It is often not possible to extract from the texts what portions are Cory’s own statements and what portion are him in effect repeating what Oscar and Cody are complaining to him about and what are his own observations and statements. do not know whether the statement “Ph is fixed flushing plants today” is Cory repeating what Oscar and/or Cody are saying they have done, whether Cory is attributing some solution with Ph problem in the water to Melanie and if so, how that leads to the conclusion that the accused were participants in the grow op. [65] When Cory asks David “Who’s actually running ur farm with o? I’m assuming not him. want to talk to the guy who grows for you. Not third party of info.”; it appears that Cory is seeking information in the context of what appear to be allegations or complaints by Oscar about problems in the water supply. am unable to conclude that the only rational inference to be drawn from this and other text messages the Crown relies upon is that Cory and Melanie were necessarily involved in the production. If they are being criticized for the water supply being provided, it would be reasonable for them to seek information from knowledgeable individuals. This text does corroborate that David was involved in “farm” operations in Ontario. Unexplained is the reference to “o” and what, if any, common operations Oscar and David had there. [66] The Crown argues that David’s text at page 41 of P26 “I’ll be there at the end to make sure there is no funny business with the cuts. He gets 25% Nothing else” calls for the inference that the product was being shared and thus the accused were producing and in possession. While this text could lead to the inference that such was possible or even probable, am unable to conclude it is the only reasonable inference to draw. The statement is David’s not Cory’s. It is possible David had deal with Oscar about who gets what cut. This does not prove the accused were participating. [67] The fact that Cory was prepared to kick Oscar’s crew off the property four to six weeks from valuable harvest, in circumstances where there is no evidence to support the conclusion that he and Melanie had any idea as to how to continue to care for this crop and harvest and prepare it for distribution, coupled with the fact that David intervened to get Oscar back on site, supports the defence position that they had no interest in the crop. The actions of David in arranging for Cory to accept Oscar back raises the possibility that he had an unspecified interest in the crop. [68] The expert evidence presented by the Crown was to the effect that the marihuana crop in question was very healthy and that the knowledge level required to run such large scale marihuana grow operation would be that of someone with “vast” experience in growing marihuana. There is nothing in the evidence to suggest that the accused had any such knowledge or experience. While they may have hoped to gain knowledge or experience for future legal operation by observing, it is not an offence to observe and learn. This, in the circumstances, is rational alternative explanation for the accused’s so described keen interest and willingness to provide accommodations that went beyond the strict scope of landlord’s responsibilities. [69] Any suggestion that Melanie would possess and contribute knowledge with respect to ph problem in the water seems unlikely given the evidence generally and with specific reference to her demonstrated lack of knowledge in her text messages six days later on July 29, 2016 where she ends up angry at Oscar because she perceives him as treating her badly when he asked her to pick up products which she knew nothing about. [70] do not conclude that because there is no record of Melanie calling Health Canada, as she testified she did on two occasions, that her evidence in this respect should not be believed. Based on the evidence presented conclude it is entirely possible that Health Canada would, in response to call from member of the public, decline to give information about particular licence on the grounds of privacy without making record of that call. Business records are made to record communications that are viewed as significant. There is nothing in the evidence to suggest that each and every call made is documented by Health Canada. [71] Melanie testified that she had been asked to help repot the marihuana plants and had been willing to do so and had discussions with her mother about also helping. The fact that there were such discussions and that she would involve her mother supports the evidence of herself and Cory that at all times they thought the activities being carried on were entirely legal under the licences that they had been provided. Melanie’s testimony was that as her commitments worked out she was unable to assist in the repotting. have no basis to reject this evidence as dishonest. Further, the reference in these emails to repotting 400 plants corroborates the evidence of Cory and Melanie that they were told there were only 400 plants. [72] In similar vein, the various text messages between David and Cory expressing concerns about Oscar pulling his licence and Oscar taking the position that after Cody was ejected and left taking the licences meant it was then an illegal grow op lend credence to the evidence of Melanie and Cory that they believed that the marihuana grow operation that was being carried on, in the greenhouses they owned, was licenced and legal. [73] Cory’s text of September 13, 2016 to David (Exhibit P26, page 44) where he said he had no problem with Oscar coming but not Cody and added “I work here 24 hrs day. It was too much for him to water the plants last time so that’s the end of it” need not be interpreted as Cory stating he worked at the greenhouses 24 hours day nor as implying he had to do watering because Cody was not. The evidence is that Cory and his family were only at their home about 50 percent of that summer and, shortly before Cody was sent away, the family had been in Florida. He does not state that he works at the greenhouse 24 hours day. The word “here” in literal sense would reference wherever he was at the time. What he intended by the words is uncertain. [74] If in fact Cory did assist with watering the plants, that assistance would not be inconsistent with providing an accommodation to tenant. It is only if such assistance was found to constitute the actus reus of illegal production that the Crown’s position that mistaken belief that in the authority granted by the Personal-Use Production Licences constitutes mistake in law needs to be considered. [75] It is most curious, perhaps suspicious, that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator. However, their residence was significant distance from the greenhouses and there was no evidence that the power from the household generator flowed to the greenhouses. Indeed the evidence is that the greenhouses had their own generator. The lease provides that the tenant is responsible for their own electrical charges. While curious, it would be an inappropriate inference to conclude from this curious fact that it is probative of guilt of the charges laid. [76] While the Personal-Use Production Licences of Oscar and Brooke Bettencourt were expired, am satisfied that by operation of the decision in Allard that they continued to be operative provided the remaining terms of conditions were complied with. The evidence was that the accused early on identified the fact that the production locations needed to be changed on the licences and their evidence is that Oscar represented to them that this would be and was done. [77] purported letter from Health Canada changing the production location of Oscar’s licence to the accused’s property was entered into evidence as Exhibit P33. They testified Oscar provided this to them. am satisfied that this letter is in fact forgery, but have concluded that this forgery was likely the work of Oscar. The letter shows the Old Address to be 1001 Ottawa Street South, Kitchener, Ontario whereas the licence itself shows Oscar’s mailing and production address to be Petersburg, Ontario address. If the accused had forged the letter, they would logically have had scrupulous reference to the precise terms of the licence and this address variation would not have occurred. The accused can be faulted for being too trusting; but in the circumstances do not find their reliance on this letter to be either recklessness or wilful blindness. Legal Issues and Overall Analysis [78] In Vickers, 2016 BCCA 98 (CanLII) [Vickers], the British Columbia Court of Appeal said the following: 23 As is well-known, in circumstantial case, the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. The proper approach, as the judge recognized here, is not to examine each individual circumstance in isolation. Rather, the question is whether all of the evidence taken together proves an accused's guilt and is inconsistent with any other rational conclusion: Ngo at paras. 53-57. Although the burden of proving guilt always rests on the Crown, that burden does not include an added burden of negating every speculative conjecture consistent with innocence: R. v. Tahirsylaj, 2015 BCCA (CanLII) at para. 39. Unlawful Production [79] Other than the presence of Cory in the greenhouse at the time of his arrest, there is no direct evidence that Cory had any involvement with the husbandry operations at the greenhouse. The same applies to Melanie. Cory’s evidence was that he was there at the time of arrest because Oscar had asked him to come to show how to light the furnace. Melanie’s evidence was that Cory would deal with equipment issues at the greenhouses. In asking the court to find the accused guilty as charged, the Crown does so by asking the court to draw inferences from circumstantial evidence. [80] For the reasons outlined in the section above have concluded the accused’s actions are not inconsistent with rational conclusions other than that they are guilty of the charges. Their actions and communications could be consistent with landlord/tenant relationship with tenant whom they reasonably believed to be conducting legal marihuana grow operation. [81] The Crown argues that should find the lease to be sham, based upon inferences drawn from the text message communications and other circumstantial evidence. The text messages in question have been proven as facts; but as stated in Vickers, in circumstantial evidence cases the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. [82] am unable to conclude that the accused’s evidence in respect of the lease and their lack of involvement in production of the marihuana in question is untruthful. There is reason for the Crown to be suspicious; but good reason to be suspicious is not proof beyond reasonable doubt. I have concluded it is possible that the lease represented the actual arrangement between them and Oscar, that they believed only 400 plants were in the greenhouses and that the grow operation being carried on under Oscar was a legal grow operation. [83] In Jackson, 2007 SCC 52 (CanLII), [2007] SCR 514, the Supreme Court of Canada confirmed an earlier decision that held mere presence at the scene of crime does not prove culpable participation in it. In that case conviction for production was upheld because the appeal court held it was open to the judge, based on all of the circumstantial evidence, to conclude that the accused’s presence was culpable. The factual situation there permitted the conclusion there was no rational explanation for the accused’s presence in the remote location other than his participation in the production. It did not involve evidence of lease arrangement and evidence of belief that the operation was lawful one. [84] leave for later discussion the Crown’s argument that any mistake Cory and Melanie may have been operating under was mistake of law, which is not defence to the charges. It is trite law that mistakes of law cannot negative the required mens rea for an offence. We are all presumed to know the law. But both actus reus and mens rea must be present for finding of guilt. The following discussion addresses the actus reus of the offences of unlawful production and possession for the purposes of trafficking. [85] The Crown has not satisfied me beyond reasonable doubt that either of the accused were either actively involved or party to the production of the marihuana. The CDSA defines “produce” in s. 2(1) as: 2(1) to obtain the substance by any method or process including: (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained There is no direct evidence that either of the accused participated in cultivating, propagating or harvesting the marihuana or in any other activity relating to the husbandry operations within the greenhouses. [86] Occasional presence to observe or for other purposes related to landlord’s status or role cannot constitute being involved in the production. The actus reus of the offence requires direct actual involvement in the husbandry process or involvement as party to the offence. The evidence does not satisfy me that the accused were parties to the offence of illegal production. The circumstantial evidence permits other rational conclusions for their orthogonal involvement. [87] When Cory provided maintenance to the equipment or went with Oscar on September 15, 2016 to show him how to light the furnace, this quite rationally could have been in satisfaction of his responsibilities as landlord or as an accommodation to his tenant. While Melanie was apparently willing to obtain products for Oscar when she travelled to Saskatoon, the evidence is that she did not in the final analysis obtain any products for Oscar to use in respect of his husbandry of the marihuana. Thus she did not in fact do anything to aid Oscar to commit an offence, if in fact Oscar was guilty of illegal production of marihuana. [88] The test to determine party liability in regard to whether someone is aiding and abetting the illegal production of marijuana was summarized in Pavalaki, 2013 BCSC 990 (CanLII) (aff’d in 2014 BCCA 491 (CanLII)): 40 Section 21(1) of the Criminal Code provides: 21.(1)Every one is party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; c) abets any person in committing it. 41 “Aiding” and “abetting” are often referred to collectively but these acts are independent of each other. "Aiding" in s. 21(1)(b) involves assisting or helping principal to commit an offence whereas “abet” in s. 21(1)(c) includes encouraging, instigating, promoting or procuring the commission of crime: see R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at para. 26; and R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] S.C.R. 411 at para. 14. 43 Abetting in the commission of the offence requires at least encouragement; there must be, at minimum an act to facilitate the commission of the offence, not passive acquiescence or mere presence. The fact of the accused’s presence at the property must be bolstered by circumstances which show that the only rational inference to be drawn is that the accused was aiding or abetting in the production of the marihuana. 46 In addition to the act of aiding, section 21(1)(b) requires proof that the accused has performed the act “for the purpose of” aiding the principal to commit the offence. [89] Although intent and knowledge can be inferred from the circumstances, accidentally aiding and abetting does not attract criminal liability. The Court in Ngo, 2009 BCCA 301 (CanLII), explained: 52 ... an individual may be found guilty of production as either principal, or as party who aids or abets the principal: Hubble [2002 BCCA 561], at paras. 10, 15; Criminal Code s. 21. In grow op case, an accused may be found to have aided or abetted in the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the crime. 87 The appellant relies upon R. v. F.W. Woolworth Co. Ltd. (1974), 1974 CanLII 707 (ON CA), O.R. (2d) 629, 18 C.C.C. (2d) 23 (C.A.), for the proposition that an individual who “incidentally and innocently” assists in the commission of crime cannot be guilty as party to the offence. The respondent takes no issue with the proposition that in order to find the appellant guilty as party to the offence of marijuana production, the trial judge had to find that the appellant had the necessary mens rea: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at paras. 37-38, 116 C.C.C. (3d) 334. In the case at bar, it was open to the trial judge to infer knowledge and an intention to aid or abet from all the circumstances and he did so. [Emphasis added] [90] The mens rea element for someone who aids in the production of marihuana is distinct mens rea from that of the principal. The mens rea must involve an intention to aid the principal in what the aider knows or should have known was an illegal act. Innocently providing aid does not constitute the required mens rea. Possession for the Purposes of Trafficking [91] There are here two essential elements to the offence of possession for the purposes of trafficking. The Crown must prove both possession and that the possession was for the purposes of trafficking. Section of the CDSA adopts the definition of “possession” in s. 4(3) of the Criminal Code, which reads as follows: (3) For the purposes of this Act, (a) person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [92] Traffic is defined in s. of the CDSA as meaning: traffic means, in respect of substance included in any of Schedules to V, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations. [93] In Pham (2005), 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326 (affirmed by the Supreme Court of Canada at 2006 SCC 26 (CanLII), [2006] SCR 940) the Ontario Court of Appeal summarized the law with respect to possession as follows: [14] Section 4(3) of the Code creates three types of possession: (i) personal possession as outlined in s. 4(3)(a); (ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and (iii) joint possession as defined in s. 4(3)(b). [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), C.C.C. (2d) 285, [1972] W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.). [16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). [17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. (QL): There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of scale in bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge. The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge. [18] The onus is on the Crown to prove beyond reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p. 448 C.C.C., [page 407] Martin J.A. noted that the court may draw “appropriate inferences from evidence that prohibited drug is found in room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. [94] The direct evidence does not satisfy me that either of the accused ever had personal possession or control of the marihuana plants. Nor does the circumstantial evidence satisfy me that they had joint or constructive possession by virtue of some arrangement or agreement with Oscar. [95] The Crown argues that Cory retained some level of control over the premises and thereby had possession or control of the marihuana. The lease provides: It is solely for production of personal medical marihuana within the terms of the lessees’ Health Canada permit; The tenant will comply with all statutes and laws; The tenant is to have quiet enjoyment; and In paragraph 22 the tenant will only operate under the licence provided by Health Canada, is to provide additional security features given the nature of the plant and the landlord has no control over the leased area once the lease is signed. Retaining some measure of access to and control of the premises, buildings and equipment as landlord and engaging in activities to operate, maintain or repair the structure and equipment is quite different thing than having possession or control of the marihuana being grown within leased premises. Under the provisions of the lease the landlord would have no possessory interest in the plants nor right to exercise any control over those plants. [96] Even if there is an argument that by virtue of Cory’s control of the premises as landlord, he thereby had some form of possession or control of the marihuana, the evidence does not satisfy me that such possession was for the purposes of trafficking. am not satisfied that as landlords Cory or Melanie could be said to possess the marihuana for the purposes of trafficking which is defined as “to sell administer, give, transfer, transport, send or deliver”. Under the terms of the lease they would at most be allowing Oscar to take what was his property. The Mistake of Law Argument [97] The Crown relies on the Ontario Court of Justice decision in Zheng, 2015 ONCJ 30 (CanLII) [Zheng], for its position that mistaken belief in the validity of licences is mistake as to law which does not provide defence to possession and possession for the purposes of trafficking charges. This argument is made in the context of the mens rea or mental element of the offence and is moot if the Crown has not proven the actus reus of the offences. Nonetheless because the Crown has placed significant emphasis on the argument now address it. [98] find the Zheng decision distinguishable on the facts. The defendant there was an employee of the producer of the marihuana and was providing security and other services in respect of the marihuana. On this basis the court found him to be in possession or control and then found possession for the proposes of trafficking. The trial judge found the defendant to be in fact in possession by virtue of his work duties. [99] Similarly the Crown relies on the decision in Lima, 2017 SKCA 108 (CanLII) [Lima], where at para. 25 the Court of Appeal stated “we note the very strong argument that mistaken belief in one’s authority to transport marijuana is not mistake of fact, but rather mistake of law for which no defence is afforded” citing Zheng. In Lima the accused was found guilty of trafficking in marihuana in circumstances where he had actually harvested, packaged and shipped the marihuana. He defended and appealed on the basis that he believed he was entitled to do this under licence of his brother whom he was assisting. It is to be noted that Lima’s actions constituted the actus reus of trafficking and as consequence the trial judge concluded his mistaken view of the law did not give him defence to the offence charged. [100] Moving beyond the actus reus of the offence, the mens rea required to be found guilty as party to an offence must surely involve the actor having knowledge or being willfully blind to the fact that the aid or assistance being provided was related to the commission of criminal offence as opposed to some innocent act. mistake in law by Oscar as to whether his licence permitted him to carry on the activity would not be defence for him to charge of possession or trafficking. It makes sense that when person himself personally performs the actus reus of an offence, mistaken belief in the law cannot operate as defence. [101] Should party whose actions unwittingly aid person to commit criminal offence be held to have him or herself committed that offence? Can it not be properly concluded that party lacks the necessary mens rea to aid or abet an illegal act if they are operating under the mistaken belief that the party who they assist is not doing anything illegal. [102] In Pappajohn, 1980 CanLII 13 (SCC), [1980] SCR 120, Dickson J., albeit in his dissent, explained the parameters wherein mistake is defence at page 148: Mistake is defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as negation of guilty intention than as the affirmation of positive defence. It avails an accused who acts innocently, pursuant to flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is defence though, in the sense that it is raised as an issue by an accused. [103] In law the mistake does not need to be solely of law or fact, as mistakes based on mixed fact and law can be exculpable. In Davidson (1971), 1971 CanLII 1199 (BC CA), CCC (2d) 509 (BCCA), the British Columbia Court of Appeal explained at page 516: If indeed there was mistake of law, then juxtaposed with that mistake was mistake of fact, namely, the mistaken belief of the appellant that the mineral claims had been duly recorded in his name under the circumstances described. As was said by Dixon, J., in Thomas v. The King (1937), 59 C.L.R. 279 at p. 306; approving the judgment of Jessel, M.R., in Eagles field v. Marquis of Londonderry, [1876] Ch.D. 693 at p. 702 (C.A.), “But, in any case, in the distinction between mistakes of fact and of law, mistake as to the existence of compound event consisting of law and fact is in general one of fact and not mistake of law.” [104] In Legrande, 2014 ABCA 192 (CanLII), 575 AR 355, leave to appeal to the Supreme Court of Canada refused, the Alberta Court of Appeal found that “a mistake about the scope or extent of lawful authorization is mistake of law, not of fact”. In this case two aboriginal hunters shot at decoy moose located on an animal sanctuary where hunting was prohibited. The hunters argued that although they were aware that there were restrictions regarding where they could hunt, they were mistaken as to their authority to hunt on the sanctuary. Though distinguishable factually, the following excerpt is helpful in clarifying the line between mistake of fact and law: 13 The appellants rely on R. Chapin, 1979 CanLII 33 (SCC), [1979] SCR 121 in which the appellant was acquitted of hunting in close proximity to bait, because she did not realize there was bait in the area. That was found to be mistake of fact, but the decision is distinguishable. If Chapin had known there was bait in the area, but did not know that hunting near bait was illegal, she would have been operating under mistake of law. The present appellants were operating under mistake of law as to the legality of hunting where they were, not under any mistake as to the physical attributes of the area. R. Alphonse (1993), 1993 CanLII 4517 (BC CA), 80 BCLR (2d) 17, 83 CCC (3d) 417 (CA) also does not assist the appellants. In Alphonse the appellant did not realize that the land on which he was hunting was privately owned. An error as to the title of land was found to be an error of fact, not law. Alphonse knew that he was not allowed to hunt on private land, and there was no error of law involved. [105] On the facts as find them here, the defendants were aware of the laws in place to regulate the production of medicinal marijuana. That is they were aware that the operation needed to be property licensed. They were not mistaken about the requirements of the law. [106] Rather the mistakes they made were twofold: They were mistaken not about the scope of the authority, but that authorization had been granted to grow at the location. This mistake, arguably legal, was coupled with mistake about set of facts. They held mistaken belief that the information contained in the letter provided to them by Oscar was accurate. As result, the mistaken belief of fact rooted their misunderstanding of the authority to grow marihuana at the location. Such mixed mistake exculpates because the belief demonstrates mental state inconsistent with that required for guilt. [107] When the accused did not him or herself commit the actus reus of the defence but it is being alleged that the accused is guilty as party by reason of providing some assistance to the active offender; then reasonable mistaken belief that the active offender was not performing an illegal act is, in my opinion, more properly classified as mistake of fact as opposed to mistake of law. The Possession of Property Obtained by Commission of an Indictable Offence [108] am not satisfied on the evidence that the $6,210 in cash found in their house was obtained by the commission of an indictable offence. The accused’s evidence was that these funds had their origin in the recent sale of recreational trailer sold by them. The marihuana being produced was not ready for harvest and sale and thus the funds could not logically have had their origin in that product. While there was evidence of the illegal sale of cigarettes, there is no evidence proving that such activity as occurred was such as to constitute an indictable offence or was occurring at such level as to generate proceeds in this amount. am not in position to disbelieve the accused’s evidence as to the origin of these funds. Thus the circumstantial evidence surrounding these funds is not such as to be inconsistent with any reasonable alternative but guilt of the accused. Conclusion [109] I find the accused not guilty on all counts.

HELD: The accused were each acquitted of all charges. The court believed the evidence provided by the two accused and found that it was possible that the lease represented the actual arrangement between them and O.G. and that they believed that there only 400 plants in the greenhouses and they were part of a legal grow operation. The letter provided by O.G. purporting to change the address of his licences was found to have been forged by him. Regarding the possession for the purpose of trafficking, the court found that it was not satisfied on the evidence that either of the accused ever had personal possession or control of the marijuana plants nor that they had joint or constructive possession by virtue of some arrangement with O.G. The accused had explained that the cash seized by the police from their house had been received by them after they sold a trailer.

b_2018skqb188.txt

J. Date: January 10, 2003 Docket: [02D0013] IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: Minister of Community Services v. T.K.G., G.H., J.R.L. and S.A.H., 2003 N.S.F.C. 1] IN THE MATTER OF: An Application pursuant to Rule 37.11(2)of the Civil Procedure Rules setting aside the decision of the Honourable Chief Judge John Comeau dated November 12, 2002, placing the child C. (born [in 1993]) in the permanent care of Family and Children’s Services of Digby County; BETWEEN: Minister of Community Services APPLICANT/RESPONDENT and T.K.G., G.H., J.R.L. and S.A.H. RESPONDENTS/APPLICANT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 23, 2008. HEARD BEFORE: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia DATE HEARD: December 3, 2002 PLACE HEARD: Digby, Nova Scotia DATE OF DECISION: January 10, 2003 COUNSEL: W. Bruce Gillis, Q.C., for the Applicant Andrew Ionson, Esq., for the Respondent, T.K.G. THE APPLICATION: [2] The Applicant is T.K.G., who was one of the Respondents in the original application. She is the mother of the child, C., born [in 1993], and asks the court, pursuant to Civil Procedure Rule 37.11(2), to set aside its decision granting permanent care and custody to Family and Children’s Services by order dated November 12, 2002. [3] In her affidavit the Applicant sets out her understanding of what occurred from the date the child was found in need of protective services (protection hearing), to the order of November 12, 2002 (disposition review hearing). On April 30, 2002, consented to finding that C. was in need of protective services pursuant to section 22(2)(b) and (ja) of the Children and Family Services Act. Under the protection order C. was placed in the temporary care of the Applicant, and was granted access to my son; appeared with my then counsel, Patricia Reardon, for pre-disposition proceeding before the Family Court sitting at Digby in or about the month of October, 2002. At that proceeding, do verily believe date for the Disposition Hearing was scheduled. When left court that day, did verily believe the hearing was scheduled for the Family Court at Digby on November 14, 2002; On November 12, 2002 attempted to contact my counsel by telephone during the morning to discuss with her evidence that would be presenting at the hearing scheduled for November 14. It was my understanding my counsel needed information by November 12, 2002 as she would be meeting with the lawyer for the Applicant to discuss the evidence that would be presented on the 14th; was advised by my counsel’s receptionist that my counsel was at the court house at Digby. As result of my conversation with the receptionist attended at the Digby court house where arrived at approximately 11:00 a.m. there spoke with court clerk whom do verily believe was Cyndi Gennette. was advised that Ms. Reardon was no longer at the court, and that all matters before the court were concluded; was able to reach my counsel later in the day. Ms. Reardon advised me that the disposition hearing had been scheduled for that day. She advised that as had not appeared, she had applied to the court and had been permitted to withdraw as my counsel. Ms. Reardon also said that the court had placed my son C. in the permanent care of the Applicant; As result of my mistake was unable to appear before the court and present evidence of the plan that wished to present to the court regarding the ongoing care of my son, C.. hereby make application under Civil Procedure Rule 37.11(2) requesting that this Honourable Court set aside the decision reached November 12, 2002. [4] Sarah Wallace, social worker for Family and Children’s Services, has filed response in the form of an affidavit. The admissible paragraphs provide an outline of the Minister’s understanding of what resulted in an order for permanent care and custody. THAT on October 8th, 2002, was present in Family Court at Digby, Nova Scotia, for Disposition Review. T.K.G. was present with her counsel, Patricia Reardon, and requested an assessment by Psychiatrist John Curtis. It was agreed that she could pursue such an assessment but any information with respect to the Disposition Review Hearing would have to be before the court for disclosure by November 5th and the matter was set over to November 12th, 2002 in the presence and with the knowledge of T.K.G. and her counsel. THAT on November 7th, 2002, the Respondent T.K.G. met with me and Worker Tracy Saulnier-Terrio at our office in Digby. T.K.G. stated that she was not drinking or doing drugs or any sort and that she felt that foster home was the best place for her son, C., to be at that point and that she needed more months to get her life together. THAT we advised her that the Agency was going ahead with the submitted Plan of Care requesting permanent care and custody and that she could present her side of the story to the judge the following Tuesday, November 12th, in court. THAT after confirming that T.K.G. was no where present in the court house the judge proceeded to decide the matter in her absence and placed C. in the permanent care and custody of the Agency. TRANSCRIPT EVIDENCE: [5] At the court hearing on November 12, 2002, the Applicant was represented by counsel, Patricia Reardon. She advised her client was not in attendance. Ms. Reardon: Well she isn’t visually. I’m sure she knew that today was the day but. [6] The Deputy Sheriff was again asked to check the court premises to see if the Applicant was there and he received no response. [7] The transcript discusses further the absence of the Applicant and the position of Family and Children’s Services. MR. GILLIS: Thank you, Your Honour. have some sympathy for Ms. Reardon’s position because I, as understand it, she’s essentially without much by way of instructions but this was originally set for the 8th of October and at that time an adjournment was requested by the Respondent in order for her to have time to see psychiatrist and to establish attendance at AA. THE COURT: There was list of things in the July 18th order, believe. MR. GILLIS: And number of other things, right. THE COURT: The July 18th order, believe, yeah. MR. GILLIS: Right. Yeah. We needed to find out who her family doctor was and whether there was going to be reference to psychiatrist and so on and so forth. Your Honour adjourned it to today’s date on the understanding, and there was an order issued saying that all reports and affidavits to be presented by her would be filed by the 5th of November together with witness list of who was intended to be here today for the disposition hearing or guess it’s review, not disposition but, there is before you the Agency’s Plan of Care which has been filed since September indicating that we’re looking for permanent care and custody. We have, as of yet, no response to the requirement for what is the Plan of Care from the Respondent, the alternate Plan of Care. My understanding from my friend is that, although she’s got some verbal direction, she has had no instructions. We were looking for such things as even confirmation of her employment, her employment hours, where she’s working, that sort of thing and there’s really nothing here and my friend, as understand it, is here without client to give her instructions. Our proposal would be there would be choice of things to do either proceed to put evidence on the stand. We have Mr. we have report in from Kevin Graham and Kevin Graham is here. He has come down and is available to confirm the contents of his report and answer any questions on it. We have the affidavit of the social worker involved and we have the Plan of Care before you and I’m happy to proceed on those. THE COURT: Ms. Reardon what do you say? MS. REARDON: Well, Mr. Gillis has very adequately summed up this dilemma that have today. have received some oral instructions from T.K.G. and had reason to believe that she does, in fact, have an apartment because spoke to where she was staying and was told that she had that she’s not where she was and that she didn’t have telephone number yet. have reason to believe that she is working because I’ve gotten messages, gotten responses after left messages there. My concern is that she hasn’t, mean among other things, she has not given me letter from her employer yet. understood from talking to her that she had rent receipt but don’t have it. have reason to believe, although that there was no referral to psychiatrist... THE COURT: She hasn’t attended AA. MS. REARDON: She says she’s attended AA. THE COURT: Oh, according to the affidavit. [8] During the course of this proceeding counsel for the Applicant withdrew as solicitor of record because of lack of instruction from her client. This was accepted by the court. [9] The court went on to make decision referring to an order of July 18th, 2002, which required the Applicant to attend AA regularly, attend regular addiction counselling for alcohol and drug abuse, submit to urine testing and continue to attend mental health counselling at service or agency recognized by Family and Children’s Services, temporary care and custody was granted to the agency with access. review of disposition was set for October 8th, 2002, and on that date, by consent of counsel, it was set for November 12th, 2002. [10] The court’s decision on November 12th, 2002, is set out in the transcript of the hearing. THE COURT: So, based on the evidence that was taken at the interim hearing and all the affidavits and attachments that came from Pictou County, the court made finding then that the child was in need of protective services and made further finding at the protection hearing, based on that same evidence, and based on the same evidence today and the report of Mr. Graham, there was an order dated July the 18th where the Respondent was to comply with certain things in order to protect the child. She’s failed to do that. She’s failed to take an interest in her child, failed to appear here and looking at the plan of the Agency, there’s no plan on the part of the mother and also looking at how the child is doing in the foster home, think that what the agency is asking for is in the child’s best interests and I’ll make an order for permanent care and custody to the Agency. [11] The evidence before the court from all proceedings indicates the Applicant has failed to recognize and take control of her alcoholism. professional report prepared by Kevin Graham and dated July 2002 refers to this problem and the Applicant’s unwillingness to do anything about it. Her personal difficulties, denial, misrepresentations, irresponsibility, poor judgment and decision making all erode her parenting capacity to the point that she is not able to provide stable and secure home for C. at present. She has not indicated she is willing to change. ISSUE: [12] Whether the court should set aside its order for permanent care and custody. THE LAW: Arguments of Counsel: 1. On behalf of the Applicant: [13] The jurisprudence in Nova Scotia indicates that C.P. Rule 37.11(2) has not been used in the context of family law matter. It is further submitted that as there is no provision to set aside an order for permanent care under the Children and Family Services Act (there is provision to terminate) or regulations made thereunder, or under the Family Court Act or Family Court Rules, the Civil Procedure Rules apply and more particularly, rule 37.11. [14] Reference is made in the decision of Squitti v. Squitti [1997] No. 4781 where Justice McCartney set aside an ex-parte order where the Respondent failed to notice the hearing date because she was in crisis. In Roberts v. White [1987] O.J. No. 625, Master McBride set out what he/she considered to be the test. think there are two principal requirements to be observed by person moving under this rule [Rule 37.14(1)(b) which is similar to our Rule 37.11(2)]. The first is that the mover must demonstrate that he failed to appear because of an accident, or his mistake or that there was insufficient notice. The second requirement is one to the end that relief from an order made in the absence of person must be promptly sought. 2. On behalf of the Agency: [15] Counsel on behalf of the agency (Family and Children’s Services) argues that the decision and principle set out by Justice Haliburton in Cameron v. Gabriel S.A.R. 01552 July 20, 1999. In that case an application to set aside was dismissed for various reasons including reference to the court being “functus officio” and there was no accident, mistake or insufficient notice. The court also felt that C.P. Rule 37 did not apply to the particular type of action it was dealing with. [16] Civil Procedure Rule 37.11(2) is as follows: 37.11(1) When party fails to attend on hearing of an application or on any adjournment thereof after being served with notice of application, the court may proceed in his absence. [E. 32/5(1)] (2) party who has failed to appear on an application through accident, mistake, insufficient notice or other just cause may, within ten days from the time when the order granted on the application comes to his attention, apply on notice to set aside or vary the order and the court may do so on such terms as it thinks just. [E. 28/4(1); 32/5(4)] CONCLUSIONS/DECISION: [17] There is no provision in the Family Court Rules to set aside an order of the court and in that event reference is made to the Civil Procedure Rules. The Applicant has complied with the time requirements set out in Rule 37.11(2) having made application on November 20, 2002 to set aside the order of November 12, 2002. [18] The Applicant’s argument is one of mistake as to the hearing date. Her counsel at the time referred to her inability to contact and communicate with the Respondent now Applicant) so she withdrew. [19] In family law matters the paramount consideration will always override any technical argument. It is in the best interests of the child that because of this mistake, the court take jurisdiction and set aside the permanent care and custody order to allow the Applicant another disposition review hearing [20] The order of November 12, 2002 is set aside under C.P. Rule 37.11(2) and this matter will be set down for a disposition review hearing on a date convenient to counsel. [21] At the hearing, the Applicant will be required to prove compliance with the order of July 18, 2002 and file written plan for the long term care of the child. Order accordingly. John D. Comeau Chief Judge of the Family Court for the Province of Nova Scotia.

The mother of a child applied to have the court set aside its decision granting permanent care and custody of the child to the Agency. When the applicant did not appear at the original hearing, her counsel withdrew as solicitor of record. She now argued that she had made a mistake in the hearing date. Application allowed; previous order set aside and matter set down for disposition review hearing. In order to protect the best interests of the child, the court must take jurisdiction and set aside the previous order to allow the applicant another disposition review hearing.

8_2003nsfc1.txt

J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ALEM MENKERIOS and ACKLANDS LIMITED DEFENDANT The plaintiff appeared on his own behalf B. W. Wirth for the defendant JUDGMENT HALVORSON J. December 19, 1994 The plaintiff's finger was amputated after he injected it with paint from sprayer rented from the defendant. At issue is the defendant's potential liability forfailure to warn the plaintiff of the danger in using anairless paint sprayer. FACTS On December 30, 1988, the plaintiff rented paint sprayer from shop called "The Rent‑It‑Centre" which is tradename owned by the defendant. He signed form of agreement, and upon asking, was told how to clean the gun part of the sprayer after completion of the work. No warning was given respecting any hazards in using the sprayer, and no warning was printed on the agreement. After his painting project was finished, the plaintiff attempted to clean the gun with solvent in the manner which had been described to him. He experienced difficulties. The gun nozzle plugged and the paint and solvent dribbled out instead of spraying. He became angry. He bounced the sprayer on the floor and turned the switch on and off several times while activating the gun trigger. Then, while he was holding the gun in his right hand, he pulled the trigger with his left, and the sprayer began to function. jet of paint and solvent mixture pierced the tip of the plaintiff's right index finger which he had unintentionally placed in front of the nozzle. The plaintiff was rushed to hospital where surgical procedures were performed to clean the wound and stop the progress of the foreign substance. He remained in hospital for approximately two weeks. As the wound was not healing satisfactorily, discussions ensued respecting amputation of the finger. Naturally, the plaintiff wished to retain as much of the digit as possible. He delayed his decision for about week. Finally, on January 17, 1989, the finger was amputated at the second knuckle. LIABILITY It is the plaintiff's contention that this airless paint sprayer was hazardous product, so the defendant was duty bound to provide warning to renters, but did not. Reference is made to principles enunciated in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), Crocker v. Sundance North West Resorts, 1988 CanLII 45 (SCC), [1988] S.C.R. 1186, Burfitt v. A. and E. Kille, [1938] K.B. 743, Smithson and Smithson v. Saskem Chemicals Limited, Standard Brands Canada Limited (Nabisco Brands Ltd.), Yorkton Co‑operative Association Limited and O.K. Economy Stores Limited, 1985 CanLII 2547 (SK QB), [1986] W.W.R. 145. In contrast, the defendant says warning was unnecessary because the dangers associated with placing finger in front of the sprayer nozzle would be well known to the ordinary, prudent person. Cited in support of this proposition were these comments from Fridman, The Law of Torts in Canada, Vol. (Toronto: Carswell, 1990), p. 10: Where the dangers of use are sufficiently apparent or well‑known to the ordinary prudent person, warning about such dangers is unnecessary. What the law is concerned with is dangers which would not be appreciated by, or known to the ordinary user or consumer of the product, dangers which are foreseeable by the manufacturer or other transferor but not expected by the ultimate user of consumer. [Emphasis added] am satisfied an airless paint sprayer of this type is dangerous. There was evidence the paint is ejected under pressure in the 2,500 pound per square inch range. Moreover, there was testimony as to the risk of damage should this spray hit the skin. Furthermore, I conclude that an ordinary userof this sprayer would not appreciate the disastrousconsequences likely to ensue if the unprotected body came incontact near the nozzle. The plaintiff says he was unaware of the danger, and believe him. Another witness testified how he once injected himself with an airless sprayer because he did not know the risk involved with the high pressure equipment, and he suffered permanent injury. These two victims were examples of ordinary users being harmed. In one sense the plaintiff was less vulnerable than an average renter because he was familiar with paint sprayers. He is an autobody man and uses sprayers in his trade. Seemingly, therefore, he was not likely candidate to inject himself. Yet he did. If he was not alive to the risk, should the defendant expect otherwise from renters who are unfamiliar with sprayers generally? In another sense the plaintiff was more vulnerable. He commonly puts his finger over the nozzle of his sprayers in the course of cleaning his equipment. The reason there is little or no risk in so doing is the minimal pressure at the nozzle. His sprayers operate on compressed air, and the pressure rarely exceeds 100 pounds. It is easy to understand how the plaintiff might have been lulled into accidentally allowing his finger to come near the nozzle of the defendant's sprayer. In his experience, there was no risk of danger at the nozzle. Danger was not expected by the plaintiff, but it was foreseeable by the defendant. That is why the defendant routinely warned prospective renters of the high pressure in the sprayer. There was evidence as well, from another lessor who explained how written warning notices were given to renters. Apparently, the industry is very cognizant that an airless paint sprayer can be hazardous in the hands of persons who do not appreciate the force of the spray which is emitted. It appears the reason no warning was given to the plaintiff when he picked up the sprayer can be attributed to careless lessor. This leads to an additional ground upon which the defendant seeks to avoid liability. In fact, the plaintiff did not lease the sprayer directly from the defendant. He leased from one Scott who operated leasing business out of his gas station. The defendant says Scott was an independent contractor for whose negligence the defendant is not vicariously liable. This is challenged by the plaintiff who laid an evidentiary foundation for an argument that the defendant and Scott were informal partners. Apart from the Scott operation, the defendant had three separate rental outlets run exclusively by the defendant. In support of the independent contractor theory, the defendant underscores the following factors: Scott owned the business premises; he set his own hours and hired his own staff; and the defendant did not direct or control Scott. Reliance is placed on the decisions in Stuart v. Pennant School District, 1927 CanLII 127 (SK CA), [1927] W.W.R. 949, Phil Lloyd's Restaurants Ltd. and Kormish (suing on behalf of himself in his personal capacity and on behalf of all creditors of Phil Lloyd's Restaurants Ltd.) v. North Forty Restaurants Ltd., Lloyd, Beatty and Gaudet (1983), 1983 CanLII 2086 (SK QB), 25 Sask. R. 40. On his part, the plaintiff points to these factors as indicators of partnership: the defendant owned the equipment to be leased by Scott; the defendant and Scott shared the rental profits 60‑40; Scott used the defendant's standard rental agreement; Scott operated under the defendant's tradename "The Rent‑It‑Store" with consequent signage; this name appeared in the yellow pages with the defendant's name; Scott's operation was connected to the defendant's rental outlet by computer and modem; Scott's rental income was monitored by the defendant through the computer; and there was nothing at Scott's outlet which indicated to the public that they were dealing with someone other than the defendant. Cited in support of the plaintiff's position was the judgment in Eisert v. Rural Municipalities of Martin and Silverwood (1956), 1955 CanLII 241 (SK CA), 18 W.W.R. 314. do not find it essential to resolve the issue whether the arrangement between the defendant and Scott was partnership or independent contractor. This is so because inthe particular circumstances, the defendant cannot escaperesponsibility to the plaintiff in either relationship. Having provided Scott with dangerous product for lease to others, the defendant remained vicariously liable. The defendant cannot delegate the duty of care owed to the plaintiff here. That proposition was spelled out by the Supreme Court of Canada in City of St. John v. Donald, 1926 CanLII 66 (SCC), [1926] D.L.R. 185 at 191: [I]t is, no doubt, the general rule that the person who employs an independent contractor to do work in itself lawful and not of nature likely to involver injurious consequences to others is not responsible for the results of negligence of the contractor or his servants in performing it. The employer is never responsible for what is termed casual or collateral negligence of such contractor or his workmen in the carrying out of the contract; and it is not universally true that he is responsible for injury occasioned by improper or careless performance of the very work contracted for; he is not so where the work is not intrinsically dangerous and if executed with due care, would cause no injury, and the carrying out of it in that manner would be deemed to have been the thing contracted for. His vicarious responsibility arises, however, where the danger of injurious consequences to others from the work ordered to be done is so inherent in it that to any reasonably well‑informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precautions would be indisputable. That duty imposed by law he cannot delegate to another, be he agent, servant or contractor, so as to escape liability for the consequences of failure to discharge it. [Emphasis added]. third line of defence was advanced. The defendant contends the plaintiff is bound by term of the rental contract which stipulated that "The liability for injury caused by the operation of the equipment shall be that of the Lessee. ." As so often happens, the plaintiff was handed the contract and was shown where to sign, which he did without reading the document. He was unaware of the waiver term which is in small print on the reverse side. In light of thesefacts, I conclude the waiver is ineffective (see Crocker). find that the defendant is liable for the damage suffered by the plaintiff as consequence of the defendant's negligence in failing to warn of the danger in using an airless paint sprayer. DAMAGES Generally, damages flowing from the partial loss of an index finger are not great. However, on the facts before me, the plaintiff's loss is somewhat more extensive than the average. This is due to his unique situation. He now has less than half an index finger on his main working hand. This was his trigger finger for the many pieces of equipment in his shop which have triggers. He must now engage those triggers with the next finger which causes him difficulties. The hand tires easily. His grip is weakened. The stub finger is sensitive to cold and if bumped. corrective procedure may alleviate some of this discomfort. Measuring damages by comparison to similar cases is the accepted method of assigning monetary value to the loss. This is an imprecise exercise, but it is the best available. Cited to me as helpful are the assessments in Belof v. Buhs (1981), 1981 CanLII 2152 (SK QB), 12 Sask. R. 43 (Q.B.) and Pound v. Nakonechny, Busch and Heinrich, 1982 CanLII 2460 (SK QB), [1982] W.W.R. 761 (Sask. Q.B.) and the usual array of cases from Goldsmith, Damages for Personal Injury and Death in Canada, (Toronto: Carswell, 1991‑1992). These awards must be grossed up for inflation (see Bunce v. Flick, [1991] W.W.R. 623 (Sask. C.A.) and Demyen Sirounis (1991), 93 Sask. R. 66 (C.A.). The plaintiff is not entitled to the benefit ofinflation for all the years 1989 to 1994 because there was noexcuse for dragging on this minimal damage action for sixyears. Had the claim been adjudicated in timely fashion, only few years of inflation would have intervened. Taking all of these factors into account, I assessthe plaintiff's damages for pain and suffering and loss ofamenities of life at $10,000. In addition, the plaintiff claims loss of income, past and future. He says he was unable to function at his job for about three months after the amputation, although he apparently went to work. He needed an extra man. If there was financial loss here, there was no evidence to prove it, nor was there basis laid for calculation. Then, in December, 1989, bank seized the plaintiff's assets, and he made an assignment in bankruptcy three months later. He maintains this resulted from his injury and subsequent inability to work full time that year. Again, this assertion was not substantiated by evidence. His tax returns do not reflect diminished income. Part of the problem in considering this past income loss is that the plaintiff was self‑employed during 1988‑89, but he was salaried worker before and after that. His net income was much less when he owned his own business. Essentially, he was better off financially after his business failed, and he worked for others. Today, he has his own shop again. There may well have been past loss of income, but it was not proved. Loss of earning capacity seems apparent. He says it now takes him nearly twelve hours to accomplish the work he formerly did in nine. His expertise is in meticulous painting and reassembling of vehicles. Because of the missing index finger, he tires more quickly holding paint sprayer and other equipment, so he produces less. He sometimes requires assistance for heavy or fine tasks. He has learned to compensate. As stated in Dagenais v. Glombowski (1987), 56 Sask. R. 60, the plaintiff must establish on balance of probabilities that future loss will occur. Matheson J. commented that the evidence need only reveal reasonable, as distinct from speculative, possibility of loss being incurred. Considering all the evidence I conclude the loss ofcapacity exists, but it is not great. A nominal award of$5,000 under this head is fair and adequate. further argument must be settled. The defendant contends the plaintiff should be responsible for share of his loss because he was contributorily negligent. This submission has two prongs. The first prong is based on the fact that the plaintiff delayed some five days before authorizing the amputation of the finger. Any exacerbation of the damages resulting from this procrastination should not be charged to the defendant. The plaintiff had duty to mitigate his loss. accept this argument, but nothing flows from it. There was no evidence that the delay in the decision made any difference, and in particular, it was not shown that earlier amputation would have saved more of the finger. The second prong arises from the circumstances related by the plaintiff as to how his finger came to be in the vicinity of the nozzle. The defendant says the plaintiff was negligent in allowing his finger near the spray. disagree. The plaintiff had no reason to be scrupulously careful about the position of his finger because he was unaware of the risk. Respecting the banging of the sprayer on the floor, it is speculation only, that this was contributing factor. Finally, Saskatchewan Health sustained an expense of$3,789.50 for the plaintiff's care, and the defendant isliable for that indebtedness. The plaintiff shall have judgment against thedefendant for $18,789.50 ($10,000 + $5,000 + $3,789.50) pluscosts and pre‑judgment interest on $10,000 from January 1,1990 to December 31, 1990. This interest has been limitedbecause the plaintiff ought to have brought the matter on fortrial more expeditiously. He cannot expect to receive interest for the years in which he did not vigorously prosecute his claim. This is especially so here where the non‑pecuniary damage issue was uncomplicated.

The Plaintiff rented a paint sprayer from the Defendant. He accidentally injected one of his fingers with paint. The finger had to be amputated. He commenced these proceedings against the Defendant seeking damages for a failure to warn him of the danger associated with the use of the paint sprayer. HELD: Judgment for the Plaintiff. 1)The paint sprayer was of the 'airless' type. It operated at 2,500 lbs. pressure. This would not have been appreciated by the ordinarily prudent user. The Defendant therefore had a duty to warn. 2)The Defendant could not escape liability because the sprayer had been rented from a location owned and operated by an independent contractor. Where an enterprise or activity is inherently dangerous, the duty to warn can not be delegated. In such a situation the party who retains the independent contractor remains vicariously liable. 3)The waiver in the rental contract was ineffective. It was a standard form agreement signed on its face with the terms of the contract on the reverse. 4)The Plaintiff was awarded general damages of $10,000.00, $5,000.00 for loss of earning capacity and recovered $3,789.50 for SHSP. 5)The usual increase in general damages for inflation and pre-judgment interest were both reduced because the Plaintiff had not presecuted his action expeditiously.

c_1994canlii4958.txt

J. 2003 SKQB 487 D.I.V. A.D. 2003 No. 172 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: CHRISTINE JAMES and RYAN MATTHEW ROSS (ROLLHEISER) RESPONDENT Jeffrey P. Reimer for the petitioner Donald G. Findlay for the respondent JUDGMENT DAWSON J. November 19, 2003 [1] At issue on this application is the interim custody of Keanna Marie James (Ross), child of the petitioner Christine James and the respondent Ryan Ross (Rollheiser) and, child support. INTERIM CUSTODY BACKGROUND FACTS [2] By way of background, the parties began to cohabit in May of 1998. In May of 1999, Keanna was born. Although there is conflicting affidavit evidence with regard to the date the parties ceased to cohabit, it is somewhere in the period between October of 1999 and April of 2000. Since the time the parties ceased to cohabit, Keanna has resided with the petitioner. The respondent has had access. [3] The respondent states in his affidavit dated October 3, 2003, that the parties had an arrangement in May and June of 2000, where the parties would “switch Keanna back and forth every second day,” and that after that the respondent had access to Keanna every weekend until November 2002 when, the respondent alleges, the petitioner ended access. The respondent says that in February 2003, the respondent was “allowed to have Keanna every second weekend, except for period of two weeks in March.” [4] The petitioner denies in her reply affidavit dated October 8, 2002, that the parties had any arrangement switching Keanna every second day or every weekend. She states that the parties had an arrangement from the outset whereby the respondent would see Keanna every second weekend and that is what happened. The petitioner asserts that the every second weekend access was interrupted over the years “by couple of violent episodes instigated by Ryan.” Counsel for the petitioner argued in chambers that the respondent made no attempts at gaining custody until he was served with the application of the petitioner. [5] have also reviewed the various affidavits of some of the family members and relatives of the parties. Although they are of no assistance in assisting me in determining the specific time periods wherein the respondent purported to have access to the child, they are nevertheless all consistent in establishing one thing; that the respondent did, in fact, have plenty of access to the child at various times from 1999 to 2003. [6] The petitioner herself, in her affidavit dated September 2, 2003, admits that since the parties ceased to cohabit, the respondent has “exercised access with their daughter on fairly regular basis.” As well, in her subsequent affidavit dated October 8, 2003, the petitioner confirms various access arrangements that the parties had, save for those she explicitly disputes. [7] The surplus of the various affidavits of the parties to the applications consist of accusations and constant strife about past access arrangements. The affidavits of the parties and their family members and relatives satisfy me that both parties are loving parents to their child. will also say that the mutual love and acceptance demonstrated by the families and relatives of each party, along with the overall concern for the best interests of the child, is self-evident and commendable. INTERIM CUSTODY LAW AND ANALYSIS [8] The purpose of an interim custody order is to give person the right and duty to care for child until permanent order or another interim order is made. On an interim application, the focus differs from that of permanent custody hearing. Rather than focussing on the long-term best interests of the child, court focusses on the short-term needs of the child. As a result, interim orders usually reinforce the status quo in an attempt to reflect on the best interests of the child. [9] Sections and of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 prescribe the relevant considerations in determining interim custody: 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (2) Where the court grants custody of child to parent pursuant to subsection (1), the court, where in its opinion it would be in the best interests of the child to do so, may by order, authorize the parent to appoint person: (a) to have custody of the child on the parent’s death; (b) to be the guardian of the property of the child on the parent’s death; or (c) to have both of the duties mentioned in clauses (a) and (b). (3) On an application and prior to making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate. ... 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. [10] In considering an interim application the following questions might be posed, as noted by James G. McLeod in his book, Child Custody, Law Practice, 3d ed. (Toronto: Thomson Canada Limited, 1992, looseleaf, updated 2003): (a) Where and with whom is the child residing at the time of the interim hearing? (b) Where and with whom had the child been residing in the immediate past? (c) If there has been change in the child’s residence or primary caregiver in the recent past, why was the change made and who participated in the decision? (d) Are the child’s current living arrangements suitable for the child, taking into consideration the short-term needs of the child and the temporary nature of the order? (e) Is the current caregiver suitable role model and able to meet the child’s needs? (f) Are there any problems with the child’s current parenting or living arrangements? (g) Is there any reason to change the child’s current parenting or living arrangements? [11] Here I must take into account the current status quo, namely, that the child has and does reside with the petitioner, with access and visitation arrangements to the respondent. Keanna is doing well and has loving, stable relationship with her mother. The petitioner has provided suitable care and has met Keanna’s needs. Notwithstanding the instances of suspended access, the arrangements for access appear to have worked relatively well and appear to be in Keanna’s best interests. There is plenty of affidavit evidence to support this: (a) The petitioner admits that “in general, Ryan loves Keanna” and has exercised access to her on fairly regular basis; (b) Both parties have been willing to make arrangements in the past; (c) Efforts have been made by the respondent at contact with the child. (d) Efforts have been made by the respondent to make the child feel comfortable, happy while at his home; (e) Efforts have been made by the family members and relatives of both families to provide living environment for the child; and (f) Evidence that the child expresses content and joy with the respondent and his family (including new sister). [12] The respondent wishes to change the status quo on an interim basis to have Keanna reside with him every second week. The respondent has stated in an affidavit that he maintains odd work hours and suggests that if he had equal time with his daughter, his present wife would care for Keanna rather than having Keanna go to daycare as she presently does. This would be significant change in the status quo and one that is not yet established to be in Keanna’s best interests. [13] Based on the evidence before me, I make an order for interim custody to the petitioner with access to the respondent. The order is consistent with previous decisions of this Court. See for example Green v. Anderson, [1996] S.J. No. 752 (QL) (Q.B.), Kwok v. MacDonald, [1997] S.J. No. 478 (QL) (Q.B.), Hudson v. Hudson, 2000 SKQB 192 (CanLII); (2000), 192 Sask. R. 274 (Q.B.), Yurchak v. Yurchak, 2000 SKQB 213 (CanLII); (2000), 192 Sask. R. 312 (Q.B.), Prettyshield-Nicholls v. Maloughney, 2002 SKQB 299 (CanLII); [2002] S.J. No. 440 (QL) (Q.B.), and G.J.S. v. L.J.M., 2002 SKQB 417 (CanLII); [2002] S.J. No. 610 (QL) (Q.B.). [14] Both parents were ordered to complete the Parenting After Separation course. Both parties must file certificate of completion once the course is completed. [15] The parties raised in their material the issue of each other’s lack of cooperation and communication. While am not in position, at this stage, to decide whether or not the accusations of each party are substantiated, can say, with relative certainty, that there is an unhealthy degree of constant bickering. Keanna is likely affected to varying degrees by the discord between the parties. would go on to comment that it is evident that as long as the parties work on establishing better communication, the child will benefit from contact with both parents, with minimal disruption. [16] Accordingly, there will be the following order: (a) The petitioner shall have interim custody of Keanna Ross (James); (b) The respondent shall have reasonable access including every second weekend, reasonable telephone access and reasonable access during holiday periods. INTERIM CHILD SUPPORT [17] The respondent, on October 15, 2003, was ordered to file year to date income information. That has now been filed. find the respondent’s income for the purposes of interim child support to be $23,175.00. The respondent shall pay interim child support in the amount of $193.00 per month commencing on December 1, 2003 and a like amount on the first day of each month thereafter until further order. [18] find the petitioner’s income for the purposes of interim child support to be $4,921.96 (the average of her 2000 and 2001 income). [19] find the child care costs to be $125.00 per month. The respondent shall pay his proportionate share of childcare costs (being 82.5%) in the amount of $103.00 per month commencing with $206.00 payable forthwith for October and November, 2003 and like amount on the first day of each month thereafter until further order. [20] The petitioner shall have costs of her application.

At issue was the interim custody of the child and child support. HELD: Interim custody was given to the petitioner with access to the respondent. The respondent was ordered to pay interim child support in the amount of $193 per month. On an interim custody application, the Court must take into account the status quo.

2003skqb487.txt

J. 1986 SN. No. 04087 IN THE SUPREME COURT OF NOVA SCOTIA (Cite as: Cape Breton Development Corporation v. D. Roper Services Limited, 2001NSSC179) Between: CAPE BRETON DEVELOPMENT CORPORATION Plaintiff/Defendant by Counterclaim v. D. ROPER SERVICES LIMITED Defendant/Plaintiff by Counterclaim DECISION HEARD: Before the Honourable Justice A. David MacAdam, at Sydney, Baddeck and Halifax, Nova Scotia DATES: May 2, 3, 7, 8, 9, 22, 23, 24, 28, 29, 30, 31, June 4, 5, 6, 7, 11, 12, 13, 14, 18, 19, 20, 21, 27, 28, 2001, in Sydney, Nova Scotia Oral Argument: October 5, 2001 Final Written Submissions: October 25, 2001 WRITTEN RELEASE OF DECISION: December 14, 2001 COUNSEL: George W. MacDonald, Q. C. Aidan J. Meade, counsel for the plaintiff/defendant by counterclaim Gary J. Corsano Nicole E. LeBlanc, counsel for the defendant/plaintiff by counterclaim PARAGRAPH A. BACKGROUND ...................................................................................................... B. THE TENDER and THE CONTRACT................................................................... (1) The Nature of the Work.............................................................................. 19 (a) Banking of Coal.................................................................................. (b) Blending of Coal................................................................................. 21 (c) Lifting of Coal..................................................................................... 22 (d) Rental and Standby............................................................................. (2) The Scheduling of the Work........................................................................ (3) Contractor’s Other Responsibilities........................................................... 27 (a) Maintenance of the banks, ditches, railway.......................................... 27 tracks and roadways C. CONTRACT PERFORMANCE and PAYMENT................................................ (1) Operational, Payment and Performance Issues......................................... 30 (a) Misrepresentation by Devco............................................................... (b) Bad Faith by Devco............................................................................ (i) Unfairly Interpreting the Contract............................................ 34 (ii) Lack of Cooperation by Devco.............................................. (iii) Improper Payment by Devco to Burns.................................... 39 Contracting (c) Rental of Equipment............................................................................ 41 (d) Loading of C.N. Railcars.................................................................... 44 (e) Use of Back End Dozers.................................................................... 45 (f) Use of Track Dozers.......................................................................... 47 (g) Emptying Silos.................................................................................... 48 (h) Continued Use of “C” Track and “H” Track........................................ 49 (i) Restoring Condition of Banks After Termination.................................. 56 (j) Additional Devco Crew Costs to Adjust C.N. .................................... 60 Cars (k) Dead Freight C.N. Cars................................................................... 61 (l) Damage to Devco Railcars................................................................. 62 (m) Cost of Steel Cable and Sling........................................................... 63 (n) Overpayment..................................................................................... (i) Trucking to Pioneer................................................................ 67 (ii) Banking Pioneer Fines............................................................ 68 (iii) Rejected Roper Charges........................................................ 69 (a) Lifting for Sysco Trucks.............................................................. (b) Hourly Rental and Standby......................................................... 74 (c) Fuel Tax Increases...................................................................... 75 (d) Lifting to Brookfield.................................................................... 76 (e) Snow Removal.......................................................................... 77 (f) Carbogel ................................................................................... 78 (g) Invoice 023............................................................................ 79 (h) Overtime charges...................................................................... (i) Radial Bin Stacker..................................................................... (2) Overall Contract Performance................................................................... (a) By Roper Ltd.................................................................................... (b) By Devco.......................................................................................... 95 D. CONTRACT TERMINATION............................................................................ 102 E. LAW and ARGUMENT........................................................................................ (1) Negligent Misrepresentation.......................................................................... (2) Breach of Contract....................................................................................... (3) Contra Proferentum Rule.............................................................................. 154 F. DAMAGES................................................................................................ (1) Damages for Breach of Contract.............................................................. 158 (a) Devco’s Damage Claim..................................................................... 166 (b) Roper Ltd. Damage Claim................................................................. (i) Lost Profits from Failure to Complete Contract.................................. 168 (ii) Forced Liquidation of Capital Assets.................................................. 173 (iii) Specific Cost Recoveries................................................................... 178 (iv) Lost Opportunity............................................................................... 183 (v) Exemplary Damages.......................................................................... 187 (vi) Loss of Profit..................................................................................... 189 G. CONCLUSION 191 MacADAM, J.: [1] In early May 1985, Cape Breton Development Corporation, (herein “Devco”), issued an invitation for tenders for the banking, blending and lifting of coal products at its Victoria Junction Coal Preparation Plant, (herein VJCPP “). The invitation for tenders suggested bidders inform themselves about Devco’s operations at the VJCPP, including at the newly constructed lifting and banking centre (herein “LBC”). D. Roper Services Limited, (herein “Roper Ltd.”), was one of number of contractors who responded to the invitation for tenders by submitting bid to carry out the required work. Among the other contractors submitting bids was Doug Burns Contracting Limited, (herein “Burns”), whose existing contract to provide these services to Devco was about to expire. Roper Ltd. was the “low bidder” and Burns the second “low bidder”. Roper Ltd., having been awarded the contract, it commenced operations in late July 1985 and continued until terminated, without prior notice, by Devco on March 11, 1986. [2] Devco brings this action, claiming reimbursement of monies advanced to Roper Ltd. under the contract, and for expenses it incurred for equipment rentals and other activities it says were required because of the failure of Roper Ltd. to perform under the contract. Roper Ltd. counterclaims for damages arising out of losses, it says it suffered, by Devco’s unjustified termination of the contract and for services it performed under the contract, and as extras, and for which it has never been paid. [3] Devco processed coal received from various sources and of different grades or qualities. Prior to the construction of the LBC, the coal, depending on its grade or quality, would be stock piled in banks at centres known as “H” track and “C” track. By 1985 Devco had decided to construct more modern centre for the banking, blending and loading of coal, resulting in the construction of the LBC. [4] The primary sources of coal in 1985 were two operating collieries, known as the Lingan Mine (herein “Lingan”), and the Prince Mine, (herein “Prince”). Coal from the Lingan mine was delivered by rail to the VJCPP, where it was conveyed to the wash plant to be washed, graded and depending on whether it was of metallurgical quality or thermal quality to be conveyed to one of two loadouts, metallurgical silo with capacity of approximately 3,000 tons or thermal chute with capacity of approximately 250 300 tons. [5] By 1985 Devco had also decided to transport coal by its own trucks, together with some independent third party trucks, from the Prince mine to the VJCPP. In addition to the Lingan and Prince mine coal, Devco also purchased coal from other producers, which coal was transported to the LBC. [6] At each of the tracks, including the LBC, there were rail lines for handling railcars that were used, in addition to trucks, in delivering the coal to Devco’s customers. Devco had its own railway cars for delivery to some of its customers, as for example, Nova Scotia Power Corporation and the international pier at Sydney where coal would be loaded onto ships for delivery to international customers. In addition, Canadian National Railways supplied railcars that were loaded for delivery to other customers in North America. Once the railcars were loaded, they would be moved or shunted to weight scale where they would be weighed prior to delivery to the customer or the international pier. [7] The work of banking, blending and lifting coal was carried out by the use of coal haulers, graders, bulldozers and loaders, as well as other miscellaneous support equipment and vehicles. [8] The advent of the LBC also coincided with Devco restructuring the personnel involved in overseeing the banking, blending and lifting of coal at the VJCPP. Barry Martin, (herein “Martin”), became the coal handling manager of the VJCPP and the international pier and Keith MacVicar, (herein “MacVicar”), was appointed coal handling coordinator. In addition, three shift managers were hired to oversee the activities during each of the three shifts. John Maxner, (herein “Maxner”), James Hirtle, (herein “Hirtle”), and the late Myron Gouthro, (herein “Gouthro”), had little prior experience, and in some cases, none at all, in the banking, blending and lifting of coal. B. THE TENDER and THE CONTRACT [9] The invitation for tenders described the nature of the work to be carried out, certain terms and conditions that would apply to the performance of the work and the procedure for bidding for the contract. [10] Following receipt of the invitation, Don Roper, (herein “Roper”), President of Roper Ltd., with the assistance of civil engineer business associate, reviewed the terms of the tender. Together they attended at the LBC and met with MacVicar who provided tour of the VJCPP operations and generally explained the services that were required. Roper testified during this attendance he was led to believe that once the coal at “C” and “H” tracks had been depleted, these areas would no longer be used. The intention was eventually to only bank, blend and load coal at the LBC. Martin and MacVicar, as well as the general manager of transportation, W. MacLellan, (herein MacLellan ”), all agreed Devco’s long range plan was in due course to focus operations at the LBC. They, however, also testified that no time limit had been set for the cessation of operations at “C” and “H” tracks. [11] Prior to being awarded the contract meeting was held between Devco and Roper Ltd., during which Roper advised he did not then own the equipment listed in the tender, but had made arrangements to obtain it in the event he was the successful bidder. Following this meeting Devco decided to award Roper Ltd. the contract and did so by the issuance of purchase order incorporating the terms and conditions in the invitation to tender, the prices bid by Roper Ltd. in the response to the invitation and additional terms and conditions relating to the performance of the contract. summary of some of the terms and conditions of the contract are outlined in the pre-hearing submission filed by counsel for Devco: Item Banking and blending approximately 3,387,500 tonnes of wash plant product at 35¢/tonne. Item Banking of approximately 875,000 tonnes of thermal product from the wash plant at 35¢/tonne. Item The banking of approximately 980,000 tonnes of metallurgical product from the wash plant at 35¢/tonne. Item The blending and banking of approximately 3,906,228 tonnes of Prince Mine and third party of coal at 20¢/tonne. Item The banking of approximately 170,000 tonnes of domestic screened and pea product coal using radial stacker at 55¢/tonne. Item The lifting from various stock piles of approximately 9,438,000 tonnes at 18¢/tonne. In addition to the unit prices on per tonne basis, the Purchase Order allowed Roper $22.00 per hour for standby time and set out equipment rental rates that would be charged for any extra work that Devco awarded to Roper. The Purchase Order also incorporated by reference the general conditions and specifications set out in the tender. The following clauses from the specifications and general conditions are relevant to this action. Clause “Contract Term” Contract was to run from June 17, 1985 [sic] to March 31, 1988 “subject to cancellation Clause 14". Clause “Work Schedule” The work was to be carried out twenty-four hours per day on three-shift basis as needed. The banking and blending work was to be five-day week on an “as required basis”. The lifting was to be seven-day week, again “as required”. As well the contractor was to arrange his operations to coincide with the schedule of the Coal Preparation Plant and delivery of coal from other sources, as well as the lifting schedule as determined by the Superintendent of Coal Handling”. Clause “Contractor’s Equipment” The contractor was required “to supply and maintain” sufficient equipment. In particular, this clause listed trucks, regular dumps and/or bottom dump trailers, graders, rubber-tired dozer and loaders. This clause expressly stated that “delays in operations due to breakdown of equipment will not be tolerated. The contractor shall maintain sufficient standby equipment to prevent delays due to equipment failure”. Devco reserved its right to reject equipment not in proper repair and to substitute from other sources at the contractor’s expense if Devco deemed it necessary to maintain continuous and consistent operation. Clause “Banking CPP” This clause also emphasized the need to have sufficient equipment available. In particular the contractor was to have enough equipment to truck coal from the wash plant and take it to the banking areas. Banking was to be carried out on an “as required” basis. It also called for the contractor to maintain banking areas in general. Clause “Banking Blending Prince Coal Other Production” This clause once again emphasized the requirement to have sufficient equipment on hand to handle the banking and blending of coal from the Prince Mine as well as other sources. Prince Coal was to be blended with product from the wash plant. Clause “Lifting” This clause set out in detail the many obligations of the contractor relating to lifting off banked and blended coal. There was emphasis placed on avoiding “unnecessary delays”. Once again the contractor was obligated to “maintain sufficient loading equipment on the site”. With regard to the CN railcars, the contractor was obliged to load to the proper weight. Clause 10 “Coal Tonnages” This clause is short but important in the context of this action and is therefore set out in full: “The tonnages of coal indicated in this Contract are approximate and are based on the latest information available. The Corporation assumes no responsibility for quantities above or below the tonnages indicated”. Clause 12 “Inspection” This clause required the contractor to “thoroughly familiarize himself” with operations at the wash plant and LBC before submitting bid. Clause 14 “Contract Cancellation” Again this is short but important clause and is out in full: “This contract may be cancelled by either party following written notice thirty (30) days in advance of such intention or by mutual agreement by both parties.” [12] With the exception of “Item 4", being, “the blending and banking of approximately 3,906,228 tonnes of Prince Mine ”, the estimated volumes of coal to be handled during the term of the contract inserted in the purchase order were the same estimates as appeared in the original invitation for tender. “Item 4", however, differed from the estimate in the invitation for tender where the amount was shown as “approximately 4,503,300 tonnes of Prince Mine Selminco and Gillcraft products”. [13] Following issuance of the purchase order, Roper met with representatives from Devco during which there was discussion about Roper Ltd’s inability to commence the contract on June 17, 1985, since it would not be able to have equipment on site by that time. Devco agreed to delay commencement of the contract until July 24, 1985, on Roper’s assurance he would, by then, be able to have the necessary equipment on site. Devco arranged for the previous contractor, Burns, to carry out necessary operations at the LBC until Roper Ltd. was in position to have its’ equipment on site. [14] Although the equipment eventually purchased by Roper Ltd. was not the same type and model of equipment as it listed in the response to the tender, no objection appears to have been taken with the equipment delivered to the site. The witnesses on behalf of Devco acknowledged they saw nothing wrong or inappropriate in the equipment Roper Ltd. brought on site. [15] Roper Ltd. commenced work at the LBC in late July, during the period known as the “Miner’s Vacation”, when traditionally the VJCPP was closed down, apart from some occasional lifting or loading of coal. This was viewed by witnesses on behalf of Devco as useful in enabling Roper Ltd. to further familiarize itself with operations at the VJCPP at time when there were limited activities required to be carried out. [16] In view of Devco’s agreement to delay commencement of the contract with Roper Ltd. and the acknowledgement by number of the witnesses called on behalf of Devco, that the equipment supplied by Roper Ltd., although not as described in the response to the invitation for tenders, appeared to be satisfactory for the performance of the contract, nothing herein turns on the delay in commencement of the work nor in respect to the type of equipment brought on site by Roper Ltd.. [17] Counsel for Roper Ltd. suggests, in considering the volumes to be handled pursuant to the contract, the court should regard the estimate in respect to banking and blending under “Item 4" as the amount shown in the invitation for tenders rather than the lesser amount shown in the purchase order. During the course of trial, counsel appeared to suggest the provision in the purchase order incorporating the terms and conditions contained in the specifications made this the relevant figure for purposes of the contract, rather than the figure set out in the purchase order. With counsel’s suggestion, cannot agree. Roper Ltd. acted in response to the purchase order and the contract between the parties is the purchase order, including, as provided in the purchase order, the incorporation of terms and conditions in the invitation for tenders. Clearly, this would require incorporation of such terms and conditions as were not inconsistent with the specific terms and conditions in the purchase order itself. [18] If, on receipt of the purchase order, exception was to be taken, it should have been taken immediately and not at the time of this litigation. The fact the discrepancy was apparently not noticed, at least by the witnesses at trial on behalf of both Devco and Roper Ltd., is of no consequence since it was to the purchase order Roper Ltd. responded. Roper Ltd. accepted its terms and conditions by proceeding to deliver the equipment and perform the services called for under the purchase order. By way of example only, if Devco had decided to delete one of the intended operations and had issued purchase order accordingly, then it would be up to Roper Ltd. to decide whether to accept the scope of operations then contained in the purchase order or to indicate that since they varied with the invitation for tender it was no longer bound by its response. Roper Ltd.’s option was to reject the purchase order as not being in conformity with the terms and specifications in the invitation for tender. It chose not to follow this option. Even if Roper, as he testified, failed to notice the change in the estimates, it is not now open to him to select figure which he considers more beneficial to his position. Roper Ltd. accepted the purchase order by acting under it. In fact, Roper, by written acknowledgement dated June 15, 1985, confirmed an amendment to the purchase order extending the time to have equipment on site to July 24, 1985. As such, counsel for Devco says, Roper Ltd. has confirmed in writing the purchase order, as amended, as being the contract between the parties. In any event, the relevant figures for purposes of considering the estimates made by Devco, and relied upon by Roper Ltd., are those in the purchase order. (1) The Nature of the Work [19] The work performed by Roper Ltd. essentially fell into four categories; (a) Banking of Coal [20] Banking involved transporting coal, by the use of coal haulers, from the metallurgical silo and the thermal chute to the banks, either at the LBC, “C” or “H” track. As the coal haulers transported the coal they were first required to proceed to the weight scale to be weighed. These weights were used in calculating the amounts owed Roper Ltd.. (b) Blending of Coal [21] Blending involved combining the Lingan coal from the wash plant with the lower quality coal transported to the banks from Prince Mine. The coal was blended in order to produce the quality or grades of coal required by different customers. For this service Roper Ltd. was again to be paid on the weights determined at the weight scale. (c) Lifting of Coal [22] Roper Ltd. was required to lift coal from the banks into either railcars or other trucks for shipment to Devco’s customers. Payment for this operation was again to be based on the tonnages lifted which were determined when the railcars or vehicles proceeded to appropriate weight scales. (d) Rental and Standby [23] Roper Ltd., as requested by Devco, provided hourly rates for the rental of the equipment it was supplying. Rental rates were to be paid when equipment was used for work other than services called for under the contract. There was also standby rate that applied when equipment was required to be on site, and subject to certain minimum time requirements, was not being used for reasons other than the breakdown of the equipment itself. These reasons could include, by way of example, lack of product, breakdowns in Devco’s equipment or lack of railcars or trucks into which to load product. (2) The Scheduling of the Work [24] Among MacVicar’s responsibilities was setting, and providing to the shift managers, the schedule of work to be performed during each shift. In addition to the shift managers employed by Devco, Roper Ltd. employed shift managers to oversee performance by its employees in the carrying out the work required under the contract. The work schedules were made available to the Devco and the Roper Ltd. duty shift managers who then had responsibility to ensure the scheduled operations for their particular shift were carried out. Although there was some evidence suggesting the timeliness of delivery of the work schedules was less than ideal, it appears generally the shift managers involved received the schedules in advance of their shifts. [25] MacVicar testified the expectation was the work scheduled for particular shift would be completed during the shift and would not have to be carried over onto the next ensuing shift. He also testified, as did Martin and others, that customers of Devco required timely delivery of coal. In addition, it is clear that when ships arrived at the international pier in Sydney, of particular importance was the timely delivery of coal for loading on ships, since delays in loading could lead to demurrage charges being made against Devco. [26] Also of importance was need to continually empty the metallurgical silo and thermal chute and to transport the coal to the banks so that neither the silo, nor the chute, would become full. When the silo or chute was full of particular type of coal, the plant would have to be shut down until space was made available by the emptying of the silo or chute. Also, on occasion, the metallurgical silo was used to hold thermal coal and in preparation for loading the thermal coal it was necessary to first unload or empty the metallurgical coal so there was not mixture of the two grades of coal. It was testified that when there was such mixture, either as result of thermal coal being placed in the metallurgical silo or the thermal coal being accidentally loaded onto bank containing metallurgical coal, the grade of that coal was reduced to the lower of the two grades resulting in financial loss to Devco. (3) Contractor’s Other Responsibilities (a) Maintenance of the banks, ditches, railway tracks and roadways [27] Clause 6, of the tender specifications, provided the contractor was responsible for any part of the stockpile which is effected [sic] by adverse weather”. Clause 8, which dealt with lifting, stated the successful contractor was to maintain all access roads to and from the banking station that is to include snow removal when necessary and also the grading and general upkeep of roadways.” The contractor was also required, in respect to stockpiles from which coal had been lifted, to immediately service and recompact the banks in order to prevent spontaneous combustion or run off due to adverse weather that could cause deterioration in the quality of the product. [28] In his post hearing submission, counsel for Roper Ltd. suggested it is significant that in an earlier invitation for tender issued in 1984 there was different wording in respect to these obligations, submitting, as consequence, Roper Ltd.’s responsibilities under the contract were not as extensive as they would have been if the wording in the 1984 invitation for tenders had been used. The contractual obligation to “maintain the banks”, is to be construed by the wording in the contract, and any variation in wording between the 1984 invitation for tenders and the 1985 invitation for tenders is inconsequential. Roper Ltd., under its contract, was required to maintain and service the banks and in order to do this it was necessary to remove snow from the areas in which coal was being banked and areas from which coal was being lifted. [29] further concern, with respect to the work, was the need to keep the banks compacted and thereby to reduce the build up of methane gas and the risk of fire within the banks. When fire occurred in bank, it was necessary to concentrate efforts on removing the area of the bank subject to the fire, so as to avoid it spreading to the remainder of the bank and thereby increasing the loss to Devco. Fire was avoided by compacting the banks as tightly as possible and this was particularly of significance in respect to the banking of the lower grade of coal received from the Prince Mine. C. CONTRACT PERFORMANCE and PAYMENT (1) Operational, Payment and Performance Issues (a) Misrepresentation by Devco [30] In his post-hearing written submissions, counsel for Roper Ltd. says the phrase at clause of the tender specifications, requiring the contractor to provide or maintain sufficient equipment and personnel to load railcars and/or trucks with coal from the “various stockpiles at the banking station and other stockpiles at the Coal Preparation Plant until their depletion.”, is ambiguous in that, “until their depletion” can refer to either both the “banking station” and “other stockpiles”, or only to “other stockpiles”. Quite frankly, in the circumstance of this contract, there is no ambiguity and it is clear the reference to until their depletion”, obviously refers to “other stockpiles at the Coal Preparation Plant”, and not to the “stockpiles” at the “banking station”. [31] Nevertheless, counsel refers to the parol evidence rule, citing Fridman, The Law of Contract (Third Edition), at pp. 456 58: Parol extrinsic evidence may not be admitted where the effect of such evidence would be to contradict the written contract. It is otherwise where the purpose and result of allowing such evidence to be given would be to explain or interpret the true intentions of the parties, where such are not clear from the document. Where the contract as written is ambiguous, extrinsic evidence can be admitted to resolve such ambiguity. But it must be ambiguity that exists in the language as it stands, not one that is itself created by the evidence that is sought to be adduced. [32] Counsel says, having regard to the extrinsic evidence, there was collateral warranty or implied term, namely, that it was Devco’s intention to deplete the stockpiles at “C” track and “H” track and to concentrate operations at the LBC. Counsel suggests this was misrepresentation, citing BG Checo International Ltd. v. British Columbia Hydro Power Authority 1993 CanLII 145 (SCC), 1993 CarswellBC 10 [1993] [33] There was no misrepresentation, but simply subsequent decision by Devco to continue using “C” track and “H” track, notwithstanding its original intention had been to deplete the coal at these tracks and to concentrate activities at the LBC. Although several of the Devco witnesses testified they were not aware of any time frame for depletion of the tracks, am satisfied the clear understanding at the time, at least as communicated to Roper Ltd., was that its activities would be limited to depletion of the tracks and it was not to be involved in the further banking and lifting of coal at “C” and “H” tracks. To the extent this decision by Devco caused additional expense to Roper Ltd., it is entitled to be reimbursed. There was, however, no misrepresentation that would entitle Roper Ltd. to any award other than for any increased costs caused by the apparent change of mind on the part of Devco. (b) Bad Faith by Devco (i) Unfairly Interpreting the Contract [34] Roper suggests, in how he was treated, Devco showed bad faith, including attempting to “get rid of him”. In claiming an extra for bank maintenance, particularly in respect to snow removal and dust control, Roper, in addition to alleging this was not specifically provided for in the contract, says when Roper Ltd. was replaced by Burns the latter received additional payment for these services. The allegation Burns was paid additional monies for work, that under Roper Ltd.’s contract was interpreted by Devco to be included within the contract and not as additional work, appears in respect to number of issues and number of claims for additional payment by Roper Ltd.. What was or was not in Burns’ contract, whether the contract preceding the period Roper Ltd. carried out operations at the LBC or following dismissal of Roper Ltd., is irrelevant. Each contract must be judged on its own and interpreted in the context of conditions and circumstances at the time of awarding the contract and the time for performance by each party of its obligations under the contract. In respect to this as well as other issues, Roper Ltd.’s contract must be interpreted in the context of its provisions as to whether work performed by Roper Ltd. was part of the contract for which Roper Ltd. was paid in accordance with its terms or constituted additional work for which Roper Ltd. was entitled to additional payment. [35] Martin, during the course of his evidence, acknowledged that following his leaving Devco he became employed with Burns and for some time had received overtures from Burns, including during the period relevant to this proceeding. This fact does not support the apparent suggestion of counsel for Roper Ltd. that some how Devco interpreted its contract with Roper Ltd. in bad faith by applying standards, terms or conditions differently to Roper Ltd. than to Burns. Burns’ contract may have been worded differently and its terms may have been negotiated differently. Burns was hired to come on stream at time when Devco had little alternative, since it had summarily dismissed Roper Ltd.. Whether that provided Burns with additional negotiating leverage, is both unclear and irrelevant. The fact is, Roper Ltd.’s contract must stand on its own and must be interpreted in that context. (ii) Lack of Cooperation by Devco [36] In his post-hearing submission, counsel for Roper Ltd. also suggests that from the moment Roper Ltd. arrived on the scene it was given hard time. Everywhere the company turned it was “up against wall”. Counsel refers to the evidence of Lawrence Digou, (herein “Digou”), the maintenance employee of Roper Ltd., saying to him it was obvious from the first day they were not welcome by the Devco staff and were not well treated, specifically by Martin and MacVicar, who he described as “terrible people to deal with”. The summary of Digou’s evidence is not inaccurate. However, there is nothing in the facts to substantiate the allegation that Devco employees acted so as to place Roper Ltd. “up against wall”. It is clear there were difficulties, including personality clashes, between some of the Devco employees and some of the Roper Ltd. employees. There were occasions of difficulties between senior Devco personnel and Roper himself. Nevertheless, these same senior employees had reviewed and accepted Roper Ltd.’s tender proposal and in the fall of 1985 accepted Roper’s suggested amendment to the terms of payment to provide for weekly draw to be set off against subsequent earnings. [37] There was also reference to the area or location provided by Devco for Roper Ltd. to use in servicing its equipment and criticism by witnesses called on behalf of Roper Ltd. of the terrain and lack of cooperation by Devco. On the evidence it appears the area Roper Ltd. was provided was the same location allocated to Burns for it to service its’ equipment. In this regard, counsel for Devco also comments that under the contractual documents Devco had no obligation to provide Roper Ltd. with any area to service its’ equipment. [38] Considering the evidence, it is clear there was tension and personality conflicts between employees of the two parties. Nevertheless, am not satisfied Roper Ltd. has established some basis for claim against Devco based on these tensions and conflicts. Perhaps Devco may have done more; perhaps Roper Ltd. may have been more amenable and receptive to the problems its lack of performance was causing Devco in its operations, both in production and in marketing its products to its’ customers. However, no claim has been advanced in respect to the latter, nor has basis for claim been sustained in respect to the former. (iii) Improper Payments by Devco to Burns [39] Counsel for Roper Ltd., queried the use by Devco of an existing unused purchase order as the means by which rental invoices submitted by Burns were authorized to be paid by Devco. Notwithstanding the substantial effort by counsel to paint this mechanism as something untoward and ominous, there was in fact nothing to substantiate how Roper Ltd. was adversely affected by the methodology used by Martin and MacVicar, internally to Devco, to obtain approval for payment of equipment rented from Burns. How Devco internally supported the payment of invoices rendered by Burns is irrelevant to any claim by Roper Ltd. or defence by Roper Ltd. to any claim made by Devco. It is in fact irrelevant to this proceeding. [40] Also raised by counsel for Roper Ltd., is the extent to which individual rental invoices are supported by documentation produced by Devco. Having in mind that these events occurred in excess of 15 years ago and that none of the shift managers were seriously challenged by counsel for Roper Ltd. as to their entries concerning the breakdown of the Roper Ltd. equipment, the rental of the Burns’ equipment and in what functions and at what locations the rental equipment was used, am satisfied that in general, rental charges were substantiated, subject, however, that the only rental for which indemnity may be claimed is for the rental of equipment used to perform function contracted to be performed by Roper Ltd. or for which Roper Ltd. received credit for the tonnages banked, blended and/or lifted. (c) Rental of Equipment [41] When equipment breakdowns occurred, and there was need for additional equipment, in many cases MacVicar or the shift manager would speak to either Roper or the Roper Ltd. shift manager about the need for additional equipment and whether Roper Ltd. was able to provide it. Although in some instances Roper Ltd. was able to secure equipment from other sources, it is clear that in the vast majority of occasions Roper Ltd. was simply unable to provide substitute equipment as required. Devco then would contact Burns for the rental of equipment to continue operations while the Roper Ltd. equipment was down. On the evidence, it appeared Burns had decided it would not rent equipment directly to Roper Ltd., who had supplemented it as the contractor performing the banking, blending and lifting operations at the VJCPP. At the same time, Burns was employed on the site in performing other contracts and therefore, presumably, found it to be in its interests to rent equipment to Devco, notwithstanding the equipment would be used to carry out work that had been contracted to Roper Ltd.. Even to the extent there were occasions when representatives from Devco may not have directly communicated, in advance, with either Roper or the Roper Ltd. shift manager, am satisfied, having considered the evidence and the shift manger’s reports, that there were compelling needs for the rental of this equipment. Apart from limited number of occasions when Roper Ltd. was able to secure equipment from third parties, it was generally unable to provide substitute equipment. [42] During the course of reviewing some of the Devco shift manager’s reports, counsel for Roper Ltd. noted apparent inconsistencies between the times stated on the rental invoice and the times reported in the shift manager’s reports for the equipment being on site. To the extent there were such discrepancies, find them insignificant and accept the invoices as reflecting the times charged to Devco by Burns for the rental of this equipment. Whether the discrepancy could be accounted by delays between the equipment arriving and being observed on site by the Devco shift manager, or for delays between when the rental was completed and Burns was able to remove the equipment from the site, is irrelevant. Having regard to the circumstances under which the shift manager reports were prepared, namely, customarily at the conclusion of the shift, although not necessarily in respect to all the recorded information, and that the focus of the rental was to get the work done, am satisfied, on the evidence and the balance of probabilities, that for the most part the rental times sufficiently approximate the period for which the rental equipment was provided. In fact, there was no evidence suggesting the amounts invoiced by Burns to Devco were not paid by Devco for rental. To the extent the rental was of equipment to carry out work contracted to be performed by Roper Ltd., or for which Roper Ltd. received payment for the tonnages handled, Devco is entitled to reimbursement for the expense. [43] Devco’s rental claim, in the amount of $135, 179.00 is allowed, subject to reduction of $5,000.00 to account for any use of this equipment to perform services not included under the contract or for which Roper Ltd. did not receive compensation for any tonnages banked, blended or loaded. (d) Loading of C.N. Railcars [44] The C.N. railcars were required to be loaded within certain weight tolerances and when overloaded were returned from the weight station to have coal removed in order to ensure they were not overweight. Similarly, when cars were under loaded by weight, they would often be returned from the weight scale, because under the transportation contract between Devco and Canadian National Railways, the railway would charge for full load of coal even though the railway car was not fully loaded. It was therefore important to properly load the cars, since there would be delays when the railcars were returned to either have more coal loaded or to have some coal removed in order to meet the tolerances for the particular railcar. On the evidence, this would disrupt other loading activities since the loading of the C.N. railcar was regarded as priority, to ensure the coal reached the customer within the contract scheduled time periods. The Devco shift manager’s shift reports document series of loading adjustments caused by either overloading or under loading of railway cars. It appears suggestions were made to Roper Ltd. to have its operators weigh their loaders empty and then loaded and from this determine how many bucket loads would be required in order to load railway car within its allotted tolerances. Roper testified this was done and yet the operators on occasion continued to have difficulty in loading the railway cars within the specified tolerances. He suggested, from an experience he had, that the weight of the coal would sometimes vary when it was taken from different banks, surmising this was on account of varying water content of the coal within different banks. Admittedly, on the evidence, Burns’ loaders, apparently both in the pre-Roper Ltd. contract as well as the post-Roper Ltd. contract period, also had difficulty in loading C. N. cars. However, what is relevant in the context of this proceeding is the marked increase in the frequency of loading failures by Roper Ltd., as compared to Burns. (e) Use of Back End Trucks [45] In his post-hearing submission, counsel for Roper Ltd. notes Burns, who was involved in the trucking of coal from Prince Mine to the LBC, was permitted to use “back end dumping trucks”, rather than being required to use “bottom dump trucks”, in dumping coal on the LBC banks. There was some evidence the graders used to level or blend the coal on the banks had more difficulty when the coal was left in single large pile, rather than being spread into rows as would occur when “bottom dump trucks” were used. However, there is no evidence substantiating what additional cost, either in terms of time or wear and tear on the grader equipment, was caused by any apparent” concession to Burns to permit it to use “back end dumping trucks”. [46] Also, recognizing clause permitted Roper Ltd. to use “regular dumps and/or bottom dump trailers”, there is no basis for the suggestion by Roper Ltd. that Devco, by permitting Burns to use “end dump trucks” unfairly or improperly added to its cost or expense. If Roper Ltd. could use such trucks, there was no reason why other contractors were not equally entitled to use such trucks. The use of “bottom dumps” may have made the work of grading or blending easier, but Roper Ltd. knew, by its own contract, that regular dumps were permitted. (f) Use of Track Dozers [47] The LBC was constructed with an asphalt pad, whereas the older “C” and “H” tracks had the coal banked on ground base. As result of the use of an asphalt pad, Devco had decided it would only permit rubber tired dozers so as to avoid damage to the asphalt pad, while track dozers had been used in working on “C” and “H” tracks. With this in mind, the invitation for tenders specifically provided that the successful bidder would have to use rubber tired dozers. During the course of the contract and in renting equipment from Burns, on occasion track dozers were brought on site and used on the LBC. When examined in respect to this apparent inconsistency, the Devco witnesses stated the urgency of the situation required the use of track dozers when rubber tired dozers were not available. In order to avoid damage to the pad, they were transported onto the banks on the LBC before being unloaded, rather than being driven over the asphalt pad onto the LBC banks. Apart from the obvious intention to suggest some form of discrimination in treatment, there is nothing in the use, in the circumstances as described by the Devco witnesses, of track dozers that would create right of action or claim to indemnity by Roper Ltd. from Devco. (g) Emptying Silos [48] In his post-hearing submission, counsel for Roper Ltd. states Devco would often require Roper Ltd. to empty the metallurgical or the thermal load outs “in very short periods of time, rather than providing him with full eight hour shift in which to do this and thereby placing excessive demands not otherwise required by the contract.” The submission is without any merit whatsoever. The submission would permit Roper Ltd. to leave the silo full, resulting in the wash plant closing down and with no responsibility on the part of Roper Ltd., until the expiration of the eight-hour shift. As already observed, in respect to the provisions dealing with work scheduling, Roper Ltd. was to arrange its operations to coincide with the schedule of the VJCPP. The contractual documents clearly stipulate the schedule was to be set by Devco, not by Roper Ltd., and even during the course of his evidence, Roper never suggested it was Roper Ltd., rather than Devco, that determined when work was to be performed. The suggestion also belies common sense having regard to the acknowledged effects of full silo or chute on the operations of the wash plant, namely causing it to shut down until there was silo or chute available to receive processed coal product. (h) Continued Use of “C” Track and “H” Track [49] As noted, the contract provided that the contractor was to maintain sufficient loading equipment and personnel on each shift to load railcars and/or trucks with coal from the various stock piles at the banking station and other stockpiles at the VJCPP until their depletion. As commented on by counsel for Devco in his post-hearing submission, both Martin and MacVicar testified it had always been Devco’s intention that lifting may have to be carried out on number of different banks at the same time. However, they also testified, as previously noted, on their understanding Devco intended, at some point, to concentrate operations at the LBC, although adding they were not aware any time period for such concentration had ever been set. Roper testified he had assumed from his discussions, apparently with MacVicar and perhaps others, that work would be concentrated at the LBC and he would only be involved in “C” and “H” tracks until they were depleted. [50] Clearly, Roper Ltd. was entitled to assume its activities on “C” and “H” tracks would be limited to depletion and there was nothing in the contractual documents, nor the evidence, to support any suggestion or requirement it would have to continue banking at either of these tracks. The reference to “other stockpiles at the Coal Preparation Plant”, clearly refers to “C” and “H” tracks and the reference to depletion clearly implies activities would be limited to lifting coal rather than to banking additional new loads of coal. [51] am satisfied, to the extent Roper Ltd. was required to lift from “C” and “H” tracks, this was consistent with its obligations under the contract, providing the coal lifted had existed on the tracks at the time Roper Ltd. came on site. To the extent there was any banking or other lifting at either “C” or “H” track, this was additional to the contract. Although these were not, as suggested by Roper Ltd.’s counsel, some kind of justification for the equipment failures, am satisfied there was additional time, effort and expense incurred in such activities. [52] In letter written to Martin on January 27, 1986, Roper voiced number of concerns with the operation of the contract. In respect to the continued use of “H” track, he wrote: We also wish to bring your attention to the change in operations related to the banking/blending and lifting operations at the Victoria Junction Coal Preparation Plant. Currently only one pad is being fully utilized at the LBC while the other pad is substantially (over 75%) under utilized. We have been directed to build several new banks on H-track which we understood was to be eliminated after the stockpile on hand at commencement of the contract had been depleted. [53] The concerns expressed by Roper were never contradicted nor responded to by Martin, nor apparently by anyone else at Devco. [54] The issue, however, is not so simple since Roper Ltd. apparently was paid the tonnages that were banked and lifted and any claim for compensation would therefore only relate to any additional cost incurred in carrying out this banking or additional lifting at other than the LBC. Similarly, Roper Ltd. would not be responsible for the rental of any equipment from Burns, or any other contractor, that was used in banking coal at either “C” or “H” track or in lifting any such additional banked coal except only to the extent it received credit for the volumes handled. [55] By stating in the contract Roper Ltd. was required to lift from these other stockpiles until their depletion, Devco clearly suggested, and Roper Ltd. was entitled to assume, that no additional coal would be added while the two tracks were being depleted. As noted, however, there has to be an adjustment to recognize Roper Ltd. received compensation for coal banked and lifted at “C’ and “H” tracks, since this coal would have been weighed and credited to Roper Ltd.’s account. As consequence, Roper Ltd. would have suffered some, albeit apparently only small loss, by the ongoing use of “C” and “H” tracks. (i) Restoring Conditions of Banks After Termination [56] Hirtle testified that at the time Roper Ltd. was terminated, the banks at the LBC were in “God damn mess”. Replete in the documentary evidence introduced at trial, are references to complaints by the Devco shift managers, as well as others, about the lack of maintenance of the banks and the condition to which they had deteriorated. It is therefore not surprising that in March 1986, when Roper Ltd. was terminated, there were again concerns as to the condition of the banks and the need for maintenance. [57] MacLellan prepared memo to Walter MacKenzie, Vice President of Surface Operations, in which he outlined summary of the work he believed had to be carried out at the LBC to restore the banks. Counsel notes that in the contract entered into with Roper Ltd., clause 12 stated that the contractor was to familiarize themselves with the operation of the VJCPP and to inspect the banking and lifting areas. The clause then continues: He should point out areas in the banks where he feels hot spots or similar problems may arise. These areas, where necessary, will be immediately fixed by the Corporation. Thereafter, the Contractor shall be responsible for all Coal in banks at the Victoria Junction Coal Preparation Plant whether actually placed there by him or not. [58] The evidence of Maxner, Hirtle and MacLellan was to the effect it took some time to restore the banks. Counsel for Roper Ltd. notes the estimate prepared of maintenance costs appears to postdate the bill that was forwarded to Roper Ltd. for these extra costs and therefore, presumably, notwithstanding the submission of the invoice to Roper Ltd., the work had not by that time actually been completed. Devco acknowledges it does not have the precise costs associated with the work carried out to restore the banks and the claim presented is based on the cost estimates that were developed by the contractor in consultation with MacLellan. [59] Counsel for Roper Ltd. also suggests that some of the work, namely, “snow removal from bank faces” was not included in the Roper Ltd. contract as Roper Ltd. was responsible only for snow removal from access roads. As noted earlier, this suggestion is without merit and clearly Roper Ltd. was responsible for the restoration of the banks, including removal of snow. Nevertheless, it is also clear there is no evidence that all the work contained in the estimate was necessarily done or carried out, or in fact had to be carried out in view of other activities carried out in banking, blending and lifting by Burns following termination of Roper Ltd.. Devco is entitled to some compensation. At issue is whether it is entitled to the full amount claimed, $66,582.00, or some lesser amount. Having regard to the evidence relating to the circumstances of this claim, would reduce the amount by $20,000.00, leaving net claim of $46,582.00. (j) Additional Devco Crew Costs to Adjust C.N. Cars [60] Devco claims the sum of $3,062.00 as compensation for costs to adjust C. N. cars. Devco submits the basis of this claim is the testimony of Devco witnesses in noting failure to properly fill C.N. cars would result in extra costs to Devco. Reference was made to letter of November 5, 1985, by MacLellan, that cars being returned for adjustment resulted in costs to Devco, as well as disruption of operating schedules and letter of February 19, 1986, by Martin writing about the internal costs to Devco. Although there was substantial evidence, both oral and documentary, supporting the fact railway cars were returned for adjustment and sometimes the same cars were returned for adjustment on number of occasions and this clearly would have cost implications to Devco, am not satisfied there was, in the evidence, substantiation for this particular charge and therefore this claim for reimbursement is not allowed. (k) Dead Freight C.N. Cars [61] As noted by counsel for Devco, Martin, MacVicar and MacLellan testified about problems arising from the improper weighing of cars and that when underweight Devco would be liable for dead freight. Dead freight referred to the under loading of the railway cars for which the C.N. levied “full car” charges to Devco. Roper Ltd. was advised of these charges on March 10, 1986, in other words, one day preceding its termination. Notwithstanding the lack of merits in counsel for Roper Ltd.’s argument, that the requirement for properly loading the C.N. cars was unreasonable on Devco’s part, am nevertheless satisfied there is lack of documentary and evidentiary support for the particular charges sought to be claimed by Devco against Roper Ltd. in respect to this item. (l) Damage to Devco Railcars [62] On the evidence of Devco witnesses, it appears there was damage caused to certain railway cars by Roper Ltd.’s employees, presumably while carrying out the loading of the cars themselves. There was evidence of letter dated November 21, 1985, particularizing claim for reimbursement of damages in the amount of $735.00 and notwithstanding Roper Ltd.’s denial of responsibility, am satisfied sufficient evidence has been brought forward to substantiate this claim (m) Cost of Steel Cable and Sling [63] MacLellan testified about an incident when Roper Ltd. damaged steel cable it borrowed from Devco. MacLellan testified Devco had to purchase new cable, for which it now claims the sum of $697.00. Counsel for Roper Ltd. submits no invoice has been produced substantiating the purchase of steel cable and sling to replace the damaged cable. Nevertheless, am satisfied on the evidence that the cable was damaged and Devco is entitled to be compensated, whether or not replacement cable and sling were in fact purchased. In the absence of evidence contradicting the amount of $697.00 as the cost that would be required to replace the cable and sling, the amount is allowed. (n) Overpayment [64] In the fall of 1985, Roper, at meeting with Devco, indicated he was having financial difficulties and requested weekly draw to be credited against the amounts owed by Devco to Roper Ltd. for work it performed under the contract. In his post-hearing submission, adjusted during oral submissions, counsel for Devco calculated the overpayment of these weekly draws as follows: Amount advanced by Devco to Roper under P.O. 44851:$1,047,730.73 Contractual entitlement Banking 612,540 tonnes 35¢$ 214,389.00 Blending 589,572 tonnes 20¢$ 117,914.00 Stacker 14,982 tonnes 55¢ 8,240.00 Lifting 1,447,599 tonnes 18¢$ 260,567.82 Subtotal 601,110.82 Extras: Standby 35,413.00 Rentals 191,886.00 Trucking to Pioneer$ 56,354.00 Subtotal 283,653.00 OVERPAYMENT 162,966.91 [65] Counsel have agreed on the amount paid by Devco to Roper Ltd. that is relevant in calculating the Devco “overpayment claim”. Although not disputing there was an overpayment which is now due by Roper Ltd. to Devco, counsel for Roper Ltd. suggests there are errors in the calculation that would have the effect of reducing the amount of the overpayment. [66] The calculations of the actual tonnages handled by Roper Ltd. were apparently made by reference to database created by counsel for Roper Ltd.’s law firm (herein “Sampson McDougall Database”). On the evidence it appears number of services performed by Roper Ltd. were not included as part of the general banking, blending and lifting figures included under the “contractual entitlement” calculations. These services, not being part of the specific obligations under the contract were apparently treated in the Sampson McDougall Database as additional services or extras. These additional services, counsel for Roper Ltd. asserts, should be added to the agreed services in determining the offset or contra against the amounts paid by Devco. Although not expressly agreeing, counsel for Devco has not seriously contested the suggested composition of the Sampson McDougall Database. (i) Trucking to Pioneer Coal Company [67] It appears Roper Ltd. trucked coal, apparently amounting to 212,754.4 tonnes, from the wash plant to the Pioneer Coal Company, “(herein “Pioneer”), operation and these services, although provided for in an amendment to the contract, were treated separately in the Sampson McDougall Database. Although Roper Ltd. invoiced the majority of the trucking at the contract rate of thirty (30¢) cents per tonne, it billed some of the trucked coal to Pioneer at sixty (60) cents per tonne and other trucking at an hourly rate of seven-five ($75.00) dollars per hour. Roper, having apparently been advised to expect to truck approximately 3,000 tonnes per shift, had unilaterally made adjustments in the rate Roper Ltd. was charging because of the approximately two-thirds reduction in the volumes it was handling. There was no justification or basis for changing the agreed rate of compensation, and it is on the agreed rate of thirty (30) cents per tonne the value of these services are to be calculated. The contra or offset is therefore 63,826.32. (ii) Banking Pioneer Fines [68] It also appears that banking of the Pioneer coal was another service performed by Roper Ltd., to be charged to Devco, that was not included in the general banking, blending and lifting calculations in the Sampson McDougall Database. On the evidence it appears Roper Ltd. banked approximately 117,032.2 tonnes at an agreed rate of twenty (20) cents per tonne for total value of 23,406.44. (iii) Rejected Roper Charges [69] Other suggested discrepancies in the overpayment calculation relate to number of charges made by Roper Ltd. which were rejected, in whole or in part, by Devco. To the extent Roper Ltd. is entitled to claim for any of them, then the amount or value of such will serve to reduce the amount of the overpayment. (a) Lifting for Sysco Trucks [70] Counsel for Roper Ltd. suggests that omitted from the Devco analysis of the overpayment are some invoices issued by Roper Ltd. for the lifting of coal into Sysco trucks, including some loading services which were calculated at double the rate provided in the contract and others at an hourly rate of $65.00 per hour. Counsel asserts Roper Ltd. is entitled to compensation for lifting onto Sysco trucks at an hourly rate, adding his understanding, that when Roper Ltd. was replaced by Burns it was paid an hourly rental for lifting to Sysco truck. For reasons already reviewed, how Burns was paid is irrelevant in determining Roper Ltd.’s entitlement to compensation. There is nothing in the contract entitling Roper Ltd. to an hourly rate, and as suggested by Devco’s counsel, the compensation for lifting into trucks or railcars is to be calculated by applying the lifting rate to the quantities loaded. Roper Ltd.’s counsel concludes his submission on this question: In the event this Honourable Court finds that Roper was not entitled to bill this work at an hourly rate, Roper claims payment for the work at per tonnage rate as confirmed by the tonnages moved in the coal handling statements. [71] Counsel in saying the tonnages were part of the services performed by Roper Ltd., but not incorporated in the Devco calculations, submits Roper Ltd., at least in the alternative, should be entitled to credit for the tonnages lifted at the rate per tonne provided in the contract. In their submission, Devco disputes any entitlement to an hourly rate, but make no comment on whether their calculation of the credits, either by way of contractual entitlement or extra, included loading of all the coal into the Sysco trucks. [72] Roper Ltd.’s Counsel does not identify the coal handling statements to which he is referring. Devco’s counsel, in his written submission suggests Roper Ltd., until March 1986, charged for lifting into Sysco trucks on the basis of the tonnages lifted. It was only in March 1986, counsel suggests, Roper Ltd. unilaterally commenced charging an hourly rate for lifting coal into trucks for delivery to Sysco, and only these changes were rejected. [73] Roper, on being cross-examined in respect to records from his office containing reference to lifting into Sysco trucks off “C” track and “H” track, indicated that although it looked like he was advancing claim he did not have any “backup documentation” to support the claim. He did not appear to take issue with counsel’s suggestion Roper Ltd. had been paid the earlier times it loaded coal into Sysco trucks. As such, am satisfied, the claims rejected by MacVicar, on the basis they were advanced as hourly charges are represented by three invoices dated in March 1986 totalling 110 hours at $65.00 per hour. The coal handling statements for the coal lifted into the Sysco trucks show total of 7,688.2 tonnes lifted into Sysco trucks between February 15, 1986 and March 11, 1986. At the contract rate for lifting of eighteen (18) cents per tonne, the total to which Roper Ltd. is entitled is $1,383.88. Admittedly, the Roper Ltd. records appear to suggest substantially greater tonnages. However, in light of Roper’s uncertainty as to the nature and quantification of this portion of the claim, and recognizing the quantities recorded in the Coal Handling Statements introduced in evidence in support of the tonnages lifted by Roper Ltd. into Sysco trucks during this period and absent any calculation by counsel for Roper Ltd. suggesting any higher figure, am only prepared to allow the sum of $1,383.88 as credit or contra for these services. (b) Hourly Rental and Standby [74] Counsel for Roper Ltd. originally submitted the calculation of the overpayment in respect to the offset for standby and rentals did not take into account certain errors acknowledged by MacVicar during his testimony. The parties, in their post-trial written submissions, appear to agree on credit of $191,886.00 in respect to rentals and $35,413.00 in respect to standby, and these amounts are allowed. (c) Fuel Tax Increases [75] The contract indicated Roper Ltd. was entitled to an adjustment in the event of an increase in the cost of fuel or wages. On November 12, 1985, Roper Ltd. was reimbursed in the amount of $1,812.00 for an invoice issued in respect to increases in the cost of fuel. However, subsequent invoices issued by Roper Ltd. with respect to additional fuel increases, totalling $6,402.16, were not approved, nor included in the calculation of credits to be applied against the payments made to Roper Ltd.. MacVicar testified he was not aware why these invoices were not approved. In the absence of evidence to substantiate the non-approval of these invoices, Roper Ltd. is entitled to have these fuel increases included as an additional credit (d) Lifting for Brookfield [76] Again it appears the coal lifted for delivery to Brookfield was included in the Sampson McDougall Database as an extra and, as such, Roper Ltd. is entitled to credit. The value of this credit is $2,016.13. (e) Snow Removal [77] Roper Ltd. received an order under purchase order no. 449952 with respect to providing additional snow removal services. It appears these services, apparently in the amount of $15,750.00, have not otherwise been included in the contra calculations. Roper Ltd. is entitled to the further adjustment. (f) Carbogel [78] Again, counsel for Roper Ltd. suggests services provided in respect to snow removal and material handling at the Carbogel Plant pursuant to purchase order 44681, in the amount of $3,505.93, are not shown as credit in the calculation of the overpayment. Roper Ltd. is entitled to this further credit. (g) Invoice 023 [79] Evidence was introduced of an invoice, being invoice 023, issued to Devco on September 24, 1985, with respect to banking and blending, in the total amount of $4,916.00. MacVicar testified this invoice had not been paid, nor included in the calculation of the credits against the payments made to Roper Ltd., but he was unable to provide any reason as to why this invoice should not be incorporated in the offsetting credits. As suggested by counsel for Roper Ltd., in the absence of any explanation as to why this invoice was not included as part of the services performed by Roper Ltd. and for which it was entitled to credit, the reduction in the overpayment will be increased by the amount of this invoice. (h) Overtime Charge [80] Included among the invoices issued by Roper Ltd. was an invoice dated December 17, 1985, in the amount of $14,826.00 purporting to be for overtime charges. There was no credible evidence in support of this invoice. Therefore it is not allowed and is not to be included as part of the offset to the amounts paid to Roper Ltd. in calculating the overpayment. (i) Radial Bin Stacker [81] One of the services to be performed by Roper Ltd., pursuant to the contract, was the banking of domestic screened coal produced by the wash plant. In order to bank this product Roper Ltd. was required to purchase radial bin stacker. Roper Ltd. had used it for some time, when Devco decided it no longer wished to continue marketing this product. In the fall of 1985 Devco entered into an arrangement with Pioneer in respect to the domestic screening operation. At the time Devco advised Roper Ltd. the radial bin stacker would no longer be necessary. Roper responded that in the circumstances Roper Ltd. was entitled to compensation since the radial bin stacker had been acquired for purposes of the contract with Devco and continued to incur financing and other charges in respect to its acquisition. [82] Roper Ltd., beginning in October, to and including early November 1985, used the radial bin stacker on behalf of Pioneer and for this charged an hourly rate. In early November, the stacker was removed from this operation and Roper, by correspondence of January 27, 1986 to Martin, again raised the issue of compensation with respect to having acquired the stacker for purposes of the contract with Devco. He requested fee of $1,500.00 per month for the months of December 1985 to an including March 1986. [83] Counsel for Devco, in response, notes that following the meeting in November between representatives of Devco and Roper Ltd., at which time the issue of compensation for the stacker was raised by Roper, an invoice was presented to Devco, dated December 9, 1985, in the amount of $24,181.36. MacVicar testified to having some recollection this represented settlement of the issue of the stacker and MacLellan testified to similar effect. Although both MacVicar and MacLellan testified to some understanding the invoice represented settlement, their evidence was far from clear and there was no indication they had any direct involvement, from the perspective of Devco, in settling the claim by Roper Ltd. for compensation for Devco’s decision to discontinue the marketing of domestic screened product and thereby the need for the use of radial bin stacker. Roper Ltd. denied this was settlement, indicating the invoice represented the hourly rate for the use of the stacker by Pioneer following October 1, 1985. Roper said he was advised the charge for the use of the stacker was to be made to Devco and therefore, although the services were performed for Pioneer, the invoice was issued to Devco for these services. The invoice, he stated, did not represent settlement of the claim for compensation from Devco. [84] The evidence this invoice constituted settlement is unsatisfactory and in the circumstances, am not prepared to recognize it as such. accept the evidence of Roper it reflected charges for the use of the stacker by Pioneer and as such, Roper Ltd. is entitled to some form of compensation for the discontinued need for the use of the stacker, as result of the decision by Devco to withdraw from the marketing of domestic screened product. On the evidence, the stacker was not used during the months of December 1985, nor January, February and March of 1986 and the standby rental of $1,500.00 per month is allowed and is to be included as part of the offsetting credit against the amounts paid by Devco to Roper Ltd.. (2) OVERALL CONTRACT PERFORMANCE (a) By Roper Ltd. [85] As part of their duties both Devco’s shift managers and Roper Ltd.’s shift managers prepared shift reports that summarily reviewed the activities of the shift, including the work carried on during the shift and the status of the equipment, including occasions when equipment was supplied by third party contractors, particularly Burns. During the period Roper Ltd. performed under the contract, namely from the end of July 1985, until terminated by Devco on March 11, 1986, the shift reports record an increasing series of minor and major breakdowns of Roper Ltd.’s equipment. Roper Ltd. only being modestly successful in obtaining substitute or third party rental equipment, it was necessary for Devco, largely from Burns, to bring additional equipment on site to have the work carried out and completed. [86] Ted Sobek, (herein “Sobek”), Senior Mining Engineer, employed by John T. Boyd Company testified, on behalf of Devco, in respect to an assessment and review rendered on Roper Ltd.’s performance. In the report, (herein the “Boyd Report”), and repeated during his evidence, he reviewed the equipment provided by Roper Ltd. and concluded the equipment selected could have performed within the parameters as defined by the Tender, provided the equipment was in good condition and operated within industry standards.” [87] The Boyd Report provides summary of the apparent availability of the major pieces of equipment used by Roper Ltd. in the performance of the contract. Equipment Availability Period: August 3, 1985 through March 8, 1986 Availability (%) Units Weekly RangeWeekly Average Front-end Loaders 39 to 10066 Dozers 24 to 10081 Coal Haulers to 10065 Graders 91 to 10096 [88] Sobek testified the shift reports’ documentation of equipment breakdowns and failures were the basis for his calculations. He assumed if there was no reference to equipment failure or breakdown, the equipment would then have been in use. Therefore, he suggests, the figures may be weighed in favour Roper Ltd. since they assume the equipment was operational and working unless noted otherwise. The Boyd Report, in respect to equipment availability, then concludes: Conclusion Acceptable industry standards for range of mechanical availability would be 80 to 90 percent. Many manufacturers warrant (when utilizing their maintenance services) in excess of 90 percent. We consider availabilities less than 80 percent below industry standard and less than 70 percent as unacceptable. Typically, less than 70 percent over long durations indicate fundamental flaws in the equipment and/or maintenance practices. [89] Harry W. Rider, P. Eng., (herein “Rider”), Senior Consultant with Acres International, testified to report he prepared on behalf of Roper Ltd., in which he reviewed, among other things, his opinion as to the capability of the equipment provided by Roper Ltd. to perform the contract. Rider had occasion to review the discovery evidence of Gordon Keddy, heavy equipment mechanic, now deceased, who at the relevant time was employed by Atlas Equipment and had occasion to work on the equipment purchased by Roper Ltd.. In respect to Mr. Keddy, Rider noted having known him for twenty years, describing him as one of the most capable heavy equipment mechanics in this area, very knowledgeable around most types of construction and forestry equipment.” Rider, referring to Mr. Keddy, then continues: In his opinion, when this equipment arrived at the Victoria Junction Plant in 1985 it was very reasonable equipment, capable of carrying out the job intended. He does mention that as time went on the condition of the equipment did deteriorate. [90] In his discovery, Mr. Keddy, on being examined by the then counsel for Devco, testified Roper Ltd. had his own mechanic, Digou, and that he was called out when there were major problems or too much work for the on site mechanic to complete. During the course of his examination, he testified: Q. Do you remember from your recollection of the equipment out there, are you able to say whether some of the equipment out there was in better shape than others? A. It was basically all the same, think. don’t know if one is any better than the other in the beginning. Q. You say in the beginning? Did that change over period of time? A. Drastically. It seemed like now, like say, when he started the job, all the equipment landed there, basically all the same. One didn’t seem much better than the other. But then they started breaking down all over the place, but mean, guess the ones that were used the most would probably be the one that was broke the most, you know. The same with anything else. If anything is used more, that’s bound to break. [91] Later, on being asked to compare the work he carried out on Burns’ older equipment, after Burns returned to the site following the termination of Roper Ltd., with Roper Ltd.’s equipment, he testified: Q. Are you able to compare his older equipment with Mr. Roper’s older equipment? A. There wasn’t whole lot in the difference. They were all used and whatever, you know. Q. Was it any better? A. wouldn’t say in the beginning, no. It was no better. Q. As time went on? A. As time went on, Roper’s equipment seemed to fall apart awful quick. Whether that was through maintenance or don’t know. [92] The record of breakdowns by Roper Ltd.’s equipment is apparent on reviewing the shift manager’s reports. Although noted in more detail in the Devco shift manager’s reports, the reports prepared by the shift managers for Roper Ltd. also list series of breakdowns in equipment resulting in the need to bring substitute equipment on site to carry out the work of banking, blending and lifting coal at the LBC. Commenting on report prepared by Grant Thornton LLP, Sobek, in respect to the condition and breakdowns of equipment, noted: It is our opinion that excessive wear and tear and breakdowns are the result of purchasing used equipment which we consider to be beyond their normal (industry standard) useful and productive lives. [93] The inability of the equipment to perform as required is evident from the tabulation of breakdowns noted in the various shift reports. As noted by counsel for Devco in his pre-hearing submission, the breakdowns began in early August and although relatively minor at this point, increased in frequency and severity until the contract was terminated in March 1986. [94] Clearly Roper Ltd. was unable to perform its obligations under and pursuant to the contract. [95] In addition to raising issues concerning the nature and scope of maintenance of the banks required to be performed by Roper Ltd. pursuant to the terms of the contract, the area designated by Devco for Roper Ltd. to carry out maintenance on his equipment, the suggestion that somehow, in comparison to Burns, Roper Ltd. was poorly treated by Devco, and issues of bad faith, unfair treatment, and misrepresentation by Devco, counsel also raises breach of contract and/or negligent misrepresentation on the part of Devco. The suggested breach of contract arises from the stated banking, blending and lifting requirements set out in the original invitation for tenders and repeated in the purchase order, with the one modification noted earlier, as compared to the actual tonnages. Roper Ltd. says the represented tonnages amount to negligent misrepresentation and/or breach of contract on the part of Devco. [96] During the period Roper Ltd. performed under the contract, there was undeniably very substantial shortfall in the tonnages generated by Devco as compared to the tonnages set out in the purchase order. In his submission, counsel for Roper Ltd. suggests that during the intended life of the contract, namely, June 1985 to March 31, 1988, the volume of product handled by Roper Ltd. and its replacement, Burns, only reached 70% of the numbers provided for in the invitation for tenders and that during the time Roper Ltd. was on site, the tonnages handled only approximated 60% of the tonnages to be expected, if the total forecasted tonnages were averaged over the period Roper Ltd. performed. Roper testified that in composing his rate calculations, he assumed the represented approximate tonnages were relatively accurate, having incorporated an allowance of 10% to 15% in finalizing his calculations. On the other hand, Devco says the estimates were approximate only and refers to clause 10 of the General Conditions and Specifications. [97] The source of the estimates used in calculating the amounts shown in the invitation for tenders and purchase order could not be identified by any of the witnesses. MacVicar, who did the calculations that were eventually used, testified they were based on information he received from the production and marketing, as well as the wash plant, divisions of Devco and he simply took their figures and calculated the amounts shown in the contract as well as the invitation for tenders. He testified, despite efforts to obtain the documents on which he relied, they have not been located and he was unable to provide the written material, if there was any, on which he relied in preparing his figures. [98] The issue of tonnages was raised by Roper shortly after commencing work and appears to have continued to be an issue up to the time of termination of the contract. The notes of meeting held on September 6, 1985, between representatives of Devco and Roper Ltd., including Roper, record his accountant, Mr. Schibler, stating “banking is far below estimate” and “causing cash flow problems”. He apparently suggested “a draw system be set up to be adjusted every six months”. [99] It appears the shortfall in tonnages may have formed some of the justification for Devco agreeing to the draw in the fall of 1985. Certainly Roper and his accountant were concerned with the lower tonnages and their effect on Roper Ltd.’s cash flow during the period. [100] Counsel also suggests the statement in the contract that the tonnages of coal represented the “latest information available” was untrue and amounted to negligent misrepresentation. [101] Counsel for Roper Ltd., in cross examining Devco witnesses, introduced the Devco Annual Corporate Plan in which there were estimated volumes, somewhat less than those used by MacVicar in his calculations. Counsel in his post hearing submission suggests the numbers appearing in the corporate plan were therefore more realistic and would have been the “latest information available as to the anticipated production and marketing by Devco for the intended life of the contract.” As noted, there is no supporting documents or other evidence as to the source of the numbers used by MacVicar other than his testimony they were compiled from information provided by unidentified others at Devco. Nevertheless, there is no basis for counsel’s suggestion that because the figures in the corporate plan may have turned out to be more accurate in relation to the actual tonnage handled during the intended life of the contract, that they were, therefore, the “latest information available”. It has not been established that the representation in the invitation that the amounts were the “latest information available”, was untrue. D. CONTRACT TERMINATION [102] On March 11, 1986, Roper was asked to attend at the offices of Devco where he was presented with letter advising his services were immediately terminated and Roper Ltd. was to have its equipment removed from the site. Clause 14 of the specifications stipulated the contract “may be cancelled by either party following written notice thirty (30) days in advance of such intention or by mutual agreement by both parties.” Devco says the 30 days notice was not required because of Roper Ltd.’s breach of the contract, which breach was reflected in its failure to perform in accordance with the contract terms, and in particular, “failing to have sufficient operable equipment”. Counsel refers to Fridman, The Law of Contract, supra, at p. 597, in support of the proposition that “breach of condition discharges the innocent party from further performance, essentially terminating the contract while leaving alive matters of liability and exclusion clauses”. Since the contract was terminated because of Roper Ltd.’s breach there was no requirement to provide the 30 days notice. [103] Roper Ltd., on the other hand, says the termination was without justification and amounts to breach by Devco of its obligations under the contract. [104] As to whether there is any obligation on party terminating contract for breach to give any kind of warning to the other party, Jewers, J., in Montgomery Kone Elevators Co. v. Great West Life Assurance Co. (1992), Carswell Man. 297 at para. 25, cites from Waddams, The Law of Contract (2nd ed) 448: Another question is whether the party not in breach is required to warn the other before terminating. As general rule performance is due without request. The debtor must seek out his creditor. Consequently, if performance is substantially defective, the other party may terminate, even if ignorant of the deficiency at the time of termination. It may, however, be harsh result for party in breach to lose the whole benefit of his contract, and in some cases duty to warn has evolved. buyer of goods is obliged, if no delivery date is fixed, to take delivery within reasonable time, but seller is not allowed quietly to let reasonable time elapse and then terminate without warning. The seller must give notice requiring the buyer to take delivery before he can terminate. Where, under land sale agreement, no closing date is fixed, or the original date waived, the party waiving it may resume his strict rights, but only on reasonable notice. Similarly, where an employee might not realize that his work is seriously deficient, an employer must give warning before summary dismissal. These cases appear to be instances of limited right to ‘cure’ defective performance, right more widely recognized in American jurisdictions. [105] One of the issues considered by Jewers, J., was the fact there was no prior intimation that matters had reached the state where the defendant was even contemplating taking the drastic step of cancelling the contract with the plaintiff. He was satisfied the cancellation came as complete shock to the plaintiff’s manager. Nevertheless, he found for the defendant and upheld the termination. [106] Devco says if it was not entitled to immediate termination, pursuant to clause 14 it was entitled, on its own, to terminate the contract on 30 days written notice. It suggests, therefore, its only failure would have been the omission to give the 30 days notice, rather than the fact of termination itself. Counsel cites from the decision of the British Columbia Court of Appeal in Reeves v. Dawson Creek (City), [1988] B.C.J. No. 2256, upholding decision of Justice MacKinnon at [1987] B.C.J. No. 2665. At trial, Justice MacKinnon found binding contract for five-year term which included provision for termination on 30 days notice. He awarded the plaintiff damages for 30 days loss of income because of the failure of the City to provide any notice. [107] Counsel for Roper Ltd. says Devco not having invoked the 30-day contract cancellation provision, clause 14 cannot apply to limit the damages payable. Counsel’s written post-trial submission continues: The current situation involves commercial contract between two parties which is not akin to an employment contract, and to which precedent cases involving employment contracts should not be seen to apply. In wrongful termination of an employment contract, principles of law surrounding payment in lieu of notice are crucial. In this case, damages payable for wrongful termination of commercial contract are measured by determining what benefits the wronged party would have received had the contract been completed as per its terms, and are not limited by any notation of reasonable notice. To allow Devco to now rely on the Contract Cancellation clause as essentially reasonable notice, would be to import principles of law relating to employment contracts into commercial contract context, and would be inappropriate. [108] In support of its position for Roper Ltd., counsel refers to the decision of the British Columbia Supreme Court in Northland Kaska Corp. v. Yukon Territory 2001 Carswell BC 1477, 2001 BCSC 929 (CanLII), where the plaintiff had failed to comply with the notice requirements in the contract and its action was dismissed. The contract apparently was for the construction of highway and contained clause whereby the plaintiff was to give “within ten days of the date the actual soil conditions described were encountered the Engineer written notice of his intention to claim for that extra expense or that loss or damage”. Justice Bennett, in dismissing the claim at para. 109, stated: conclude that the defendant had neither actual or constructive notice pursuant to the provisions of the contract. This finding is sufficient to dispose of the case, as this conclusion results in the dismissal of the plaintiff’s claim. [109] Counsel for Roper Ltd., in his submission, says the Notice clause is clear and unambiguous and by not providing the notice required under the clause, Devco cannot now invoke the notice provision. With counsel’s submission cannot agree. The issue here, in view of the termination by Devco, is whether any claim for damages is limited by clause 14 of the contract. Clause 14 provided both parties with the right to terminate the contract on 30 days written notice. As suggested by counsel for Roper Ltd., the clause is clear and unambiguous. In Northland Kaska Corp., supra, the issue involved the “right” to make claim when the time period for making the claim had expired. The issue here is not the termination, but whether the damages, as the result of termination not given in accordance with the contract terms, may be limited by other provisions in the contract. In this regard, the decision and reasons of the trial judge, upheld by the British Columbia Court of Appeal, in Reeves v. Dawson Creek (City), supra, are more relevant to the present circumstance and consequently more persuasive. [110] If Devco was not entitled to terminate the contract, without any prior advice or warning, then, in view of clause 14, any damages arising from the improper termination are limited to 30 days. E. LAW AND ARGUMENT (1) Negligent Misrepresentation [111] Roper Ltd. says the statements by Devco, as to the approximate tonnages, amount, in the circumstances, to negligent misrepresentation. Counsel for Roper Ltd., refers to the five required elements for successful Hedley Byrne claim as outlined by Justice Iacobucci in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] S.C.R. 87 at pp. 110: (1) there must be duty of care based on special relationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said representations; (4) the representee must have relied, in reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. [112] The five issues, therefore, are whether the relationship created between the parties, by virtue of the invitation for tenders and the subsequent contract, was such special relationship as to meet the initial element of the tort of negligent misrepresentation, whether the representations of anticipated tonnages or in asserting they were “the latest information available”, were untrue, inaccurate or misleading, whether in making the representations Devco was negligent, whether Roper Ltd. relied on the representation in preparing the calculations of the rates it submitted in its response to the invitation for tenders, and whether Roper Ltd. suffered damage in the sense it may have submitted higher rates had it known the representations, even approximately, would not be borne out during the term of the contract. [113] On the question of whether there was special relationship, Justice Iacobucci in Queen v. Cognos Inc., supra, at p. 116, made the following comment: There is some debate in academic circles, fuelled by various judicial pronouncements, about the proper test that should be applied to determine when “special relationship” exists between representor and representee which will give rise to duty of care. Some have suggested that “foreseeable and reasonable reliance” on the representations is the key element to the analysis, while others speak of “voluntary assumption of responsibility” on the part of the representor. Recently, in Caparo Industries plc v. Dickman, [1990] All E.R. 568 (H.L.), case unlike the present one in that there the whole issue revolved around the existence of duty of care, the House of Lords suggested that three criteria determine the imposition of duty of care: foreseeability of damage, proximity of relationship, and the reasonableness or otherwise of imposing duty. For my part, find it unnecessary and unwise in view of the respondent’s concession to take part in this debate. Regardless of the test applied, the result which the circumstances of this case dictate would be the same. [114] As was noted by Justice Iacobucci, and in the present circumstance, am satisfied whatever approach is adopted, clearly the relationship between Devco and Roper Ltd. was such special relationship. [115] At pp. 124-125, Justice Iacobucci, in reviewing the nature of the duty of care, stated: However, the duty of care owed by representor to representee, when there exists “special relationship” within the meaning of Hedley Byrne, supra, is distinct in nature and scope from duty to be honest and truthful. As was stated in Hedley Byrne by Lord Morris (at pp. 502-3): Independently of contract, there may be circumstances where information is given or where advice is given which establishes relationship which creates duty not only to be honest but also to be careful. In these circumstances, think some duty towards the unnamed person, whoever it was, was owed by the bank. There was duty of honesty. The great question, however, is whether there was duty of care. and by Lord Pearce (at p. 539): There is also, in my opinion, duty of care created by special relationships which, though not fiduciary, give rise to an assumption that care as well as honesty is demanded. See also Hayward v. Mellick (1984), 1984 CanLII 1975 (ON CA), 45 O.R. (2d) 110 (C.A.), and Carman Construction, supra, at p. 973. duty of care with respect to representations made during pre-contractual negotiations is over and above duty to be honest in making those representations. It requires not just that the representor be truthful and honest in his or her representations. It also requires that the representor exercise such reasonable care as the circumstances require to ensure that the representations made are accurate and not misleading. [116] As noted by Justice Iacobucci, it is not sufficient that the representor has subjective belief in the accuracy of the representation, he also must have exercised reasonable care in the circumstances as to ensure the accuracy of the representation. [117] For reasons already noted, the element of reliance is supported by the evidence of Roper, that in preparing the response to the invitation for tenders he relied on the figures contained in the invitation. With respect to damages, it is reasonable to assume if the figures used by Devco had been more accurate as estimates of future coal handling requirements, Roper Ltd. would either not have submitted response to the invitation for tenders or in preparing its response would have included higher rates that may, or may not, have resulted in Roper Ltd. being awarded the contract. For reasons arising out of the element of negligence, it is unnecessary to decide how damages for negligent misrepresentation would be calculated in the present circumstances. [118] The remaining two elements are that the representation must be untrue, inaccurate or misleading, and the representor must have acted negligently in making the representation. [119] In respect to the second element, namely, that the representation must be untrue, inaccurate or misleading, there is apparently some judicial debate as to whether the statement in question must be of an existing fact or past event rather than statement of an intention or expectation of something in the future. Justice Chipman, in Arrow Construction Projects v. Nova Scotia (Attorney General) (1996), 1996 CanLII 5552 (NS CA), 150 N.S.R. (2d) 241 at p. 252, distinguishes between representation, being statement of some existing fact or past event, and promise, being statement of an intention to do something in the future: My view of the addendum in the context of all the evidence is not that D.S.S. made any representation of fact, but rather statement that it would give consideration to the alternatives and the bid price adjustments. The Hedley Byrne Principle deals with representations, not promises. It is important to distinguish between representation and promise. representation is statement relating to some existing fact or past event. promise is statement of intention to do something in the future. The distinction was referred to by this court in Electrical Distributors Ltd. v. WCI Canada Inc. (1992), 1992 CanLII 2634 (NS CA), 112 N.S.R. (2d) 300; 307 A.P.R. 300 (C.A.), at pp. 307 to 309. In Queen v. Cognos Inc., supra, Iacobucci, J., at p. 657 referred to number of authorities that supported the view that only representations of existing facts and not those relating to future occurrences can give rise to actionable negligence. Assuming without deciding that this view of the law was correct, Iacobucci, J., considered the representations in the case before him as not relating to future matters, but matter of existing fact. See also BC Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC), [1993] S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, per Iacobucci, J., (dissenting in part) at pp. 46, 73 and 81 [S.C.R.]. [120] In respect to the representations as to tonnages, they were clearly as to the future anticipated requirements of Devco for banking, blending and lifting of coal at the LBC, and not, in any way, statements as to past tonnages. In this respect, the issue is whether negligent misrepresentation may be founded on representations of future expectations as opposed to statements of existing fact. [121] In Electrical Distributors Ltd. v. WCI Canada Inc. (1992), 1992 CanLII 2634 (NS CA), 112 N.S.R. (2d) 300; 2007 A.P.R. 300 (C.A.), at pp. 308-309, in respect to representations relied on to found liability based on negligence, as opposed to breach of contract, Justice Chipman stated: The Hedley Byrne principle so-called is based on advice or information given by one who knows actually or inferentially that the receiver thereof will rely upon it, which advice or information is inaccurate at the time it was made. [122] On the other hand, Lord Denning, M.R., in Esso Petroleum Co. Ltd. v. Mardon, [1976] Q.B. 801, upheld claim for negligent misrepresentation where the plaintiff oil company had represented to the defendant the likely volume of sales to be achieved at the service station outlet being leased. The defendant went into arrears when the actual volumes fell far short and the plaintiff cut off his supplies and issued claim for possession of the premises and monies owed. The defendant counter-claimed for both breach of warranty as to the represented volume of sales and alternatively on the basis of negligent misrepresentation, by virtue of which he had been induced to enter into the contract. Lord Denning held the statement of anticipated volumes to be contractual warranty and as result held the oil company liable. In the alternative, he found the statement was negligent misrepresentation by party holding itself out as having special expertise in the circumstances, which gave rise to duty to take reasonable care to see that the representation was correct, and the pre-contractual representation surviving the contract, the plaintiffs were liable in damages on the basis of the tort of negligence. Lord Denning, applying the doctrine of Hedley Byrne Co. Ltd. v. Heller Partners Ltd., supra, found the plaintiff liable for the misrepresentation as to the forecasted volume for the service station in question. [123] In Rainbow Industrial Caterers Ltd. et al. V. Canadian National Railway Co. et al (1988), 1988 CanLII 178 (BC CA), 54 D.L.R. (4th) 43, on the appeal the defendant did not dispute the finding of negligence in respect to an overestimate it made as to the number of meals it required the plaintiff to supply. At issue, were the proper measure of damage and the finding of fraudulent non-disclosure. Justice Craig, dissenting, would have upheld the trial judge’s finding the plaintiff was entitled to relief based on fraud and negligent misrepresentation, where the defendant, having become aware of the errors in the forecast, then remained silent. The majority decision, in the British Columbia Court of Appeal, was rendered by Justice Esson in allowing the appeal in part. He noted the trial judge “based his conclusion solely on the negligent underestimate and what he found to be the fraudulent failure to disclose”. In his reasons, he found the evidence did not show the defendant was personally responsible for the error nor had he deceived the plaintiff’s on any matter of fact of which he had knowledge. He held damages should be restricted to the loss occasioned by the erroneous estimate, since, if the error had not occurred, the plaintiff’s, he found, would still have entered into the contract, though at higher price. Justice Esson, at pp. 61-62, continues by referencing Lord Denning in Esso Petroleum, supra: It seems to me that Hedley Byrne, [1963] All E.R. 575, [1964] A.C. 465, properly understood, covers this particular proposition: if man, who has or professes to have special knowledge or skill, makes representation by virtue thereof to another be it advice, information or opinion with the intention of inducing him to enter into contract with him, he is under duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable. If he negligently gives unsound advice or misleading information of expresses an erroneous opinion, and thereby induces the other side into contract with him, he is liable in damages. [124] Justice Esson then continues: In applying that basis of liability to the facts of this case, the trial judge said: On the evidence, this case falls squarely with Lord Denning’s previously quoted statement in Esso Petroleum Co. v. Mardon, and indeed it is close to being counterpart of that case. As between C.N. and the plaintiff, C.N. had the special knowledge or skill required to calculate the work gang meal requirements; it made its calculations intending to induce interested parties, including the plaintiff, to contract on the basis of its forecast of requirements; it was under duty to use reasonable care to see that the estimates were reliable; and it negligently gave incorrect information which induced the plaintiff to contract with it in reliance upon that information. [125] He then notes: C.N. takes no issue with that conclusion. [126] The decision of the British Columbia Court of Appeal was appealed to the Supreme Court of Canada on the issue of the assessment of damages, but not on the finding of negligent misrepresentation. [127] In Northern Petroleum v. Sydney Steel Corp., [2000] N.S.J. No. 287, the Court of Appeal considered an appeal involving the tort of negligent misrepresentation. The Appellant had claimed that under the terms of the contract entered into with the respondent, the latter had agreed to purchase minimum quantity of oil per year over the five-year term of the contract. The quantity of oil purchased being considerably less, it claimed in contract and in tort. Flinn, J.A., in the reasons for the court, at para. dismissed the claim for negligent misrepresentation on the basis there was no evidence before the trial judge of negligence on the part of the respondent, in respect of any representations which the respondent made prior to the date of the contract. Therefore, there can be no claim against the respondent for negligent misrepresentation.” [128] The court, however, did not comment on whether the tort of negligent misrepresentation required that the misrepresentation, must, at least in part, refer to statement of present fact or past event as opposed to only future expectations or intentions. [129] In his post oral written submission, counsel for Roper Ltd., unlike counsel for Devco, appears to agree with Justice Chipman’s analysis as to the legal requirements for representation, namely, it must be of past fact or present event, in order to satisfy the second element of the tort. Counsel’s brief continues: With respect to the issue of misrepresentation, Roper is not in disagreement with Justice Chipman’s analysis. The point to be made is this: regardless of what tonnages Devco would be able to provide in the future to Roper (i.e., once the contract began to be performed), the “representation of fact” by Devco in May of 1985 is that the tonnages it did place in the tender document were based on the “latest information available” to Devco. [130] Counsel for Roper Ltd. in his final written submission, says the negligent representation, relates, not to the statement as to expected tonnages, but to the statement they were the “latest information available”. Counsel’s brief continues: Devco states in the tender document that the tonnages are based on the “latest information available”, it is providing the would-be bidder with some level of assurance that Devco has prepared the documents in careful and reasonable manner and with the knowledge that bidders would be preparing their bids having regard to what Devco reasonably understood (at the point in time the tender document was let) to be the anticipated production during the term of the contract. Obviously any bidder would take into consideration the “latest information available” being provided by Devco in the preparation of its bid. Moreover, if the “latest information available” suggested that the tonnages would be significantly lower than that contained in the May 2, 1985, tender, it is reasonable to conclude that it would affect the amount being bid per tonne or may result in the would-be bidder not tendering at all. Clearly, it is foreseeable that this is the type of information bidder relies on in deciding whether or not to bid on such contract. would refer Your Lordship to the Post-Trial Submissions on behalf of the Defendant/Plaintiff by Counterclaim at page 66 wherein Justice Feehan of the Alberta Queens Bench in Opron Construction Co. v. Alberta (1994), 1994 CarswellAlta 470 at pp 700 is quoting from the Cardinal Construction case: The tender documents must be prepared having in mind the average tenderer, not one who is usually cautious, conservative or has special knowledge or experience: Cardinal Construction, supra: bidder is entitled and expected to rely on the tender document as conveying the best information the owner can give. It is not good enough to provide information that is misleading, incomplete or inaccurate with the intention that the more experienced or knowledge bidders will ferret out the problems from clues: Cardinal Construction, supra. While the contract documents clearly state the quantities are based on the latest information available, Devco has offered little evidence that this is in fact so. In fact, MacVicar and Martin, who were responsible for drawing up the tender document, were vague as to what information they received, from whom and how, if indeed, they performed calculations. [131] On the issue of whether the burden is on Devco to establish they used the “latest information available” or on Roper Ltd. to show they did not, counsel’s final brief continues: Your Lordship has questioned upon whom the burden lies to prove misrepresentation on the part of Devco; reference is made to Brown v. Cockburn (1876), 37 U.C.Q.B. 592 wherein Harrison, CJ. stated: It is general rule of evidence that in every case the onus probandi lies on the person who wishes to support his case by particular fact, and of which he is supposed to be cognizant….If negative averment be made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the negative… [with emphasis] It is Roper’s position, then, that the burden of proof lies upon Devco, being the party having knowledge of the calculation of tender figures, to prove that the tonnage figures contained in the tender document were based on the latest information available. It is Roper’s position that Devco has not satisfied this burden as it has not discounted evidence tendered by Roper that the estimates were not based on the latest information available and have offered no proof that the estimates were, in fact, based on the latest information available. [132] It is Roper Ltd. that is alleging negligence on the part of Devco, and if necessary to decide, would find it is on Roper Ltd. the burden lies to establish the elements of the tort, not on Devco to disprove the existence of one of more of the elements. As noted earlier, it has not been established the representation in the invitation that the amounts were the “latest information available”, was untrue. [133] It is, however, unnecessary, in view of my finding on the third element of the tort to resolve the question whether, in Nova Scotia, the tort of negligent misrepresentation must relate to statement of present fact or past event as opposed to future intentions or expectations or whether on the basis of Brown v. Cockburn, supra, the onus is on Devco to establish the figures used were indeed the “latest information available”, rather than on Roper Ltd. to show the statement was untrue, inaccurate or misleading. [134] The third element or requirement is that the representor must have acted negligently in making the representation. Here there is no evidence as to the specific source of the information used by MacVicar in preparing the tonnage calculations that were incorporated into both the invitation for tenders and subsequently the purchase order. As to the applicable standard of care, Justice Iacobucci, in Queen v. Cognos Inc., (supra), at p. 121, noted this determination required the application of well-established principles of the law of negligence. At p. 121, he continued: The applicable standard of care should be the one used in every negligence case, namely the universally accepted, albeit hypothetical, “reasonable person”. The standard of care required by person making representations is an objective one. It is duty to exercise such reasonable care as the circumstances require to ensure that representations made are accurate and not misleading:... [135] Here, the reality is the tonnages eventually handled during the term of the intended life of the contract were substantially less than the volumes inserted in both the invitation for tenders and the purchase order. There is, however, virtually no evidence as to the source of the figures used, how they were prepared, what information was gathered in arriving at the numbers, what expectations may have reasonably been relied upon that over the period of the contract turned out to be untrue, or any of the other sources of information that may have been available to those who provided to MacVicar the information from which he calculated the volumes he inserted in the invitation for tenders and which later, with one amendment, were incorporated in the purchase order itself. [136] The mere fact statement of future expectations turns out to be inaccurate, even materially inaccurate, does not mean the statement was negligently made, nor does it necessarily raise any presumption of negligence on the part of either the person making the statement or the person who prepared the calculations from which the statement was made. MacVicar testified he used the latest figures he received from the production and marketing divisions. In the recorded notes from the meeting of October 1, 1985, Martin also says as much in responding to Roper that the forecast was “based on projections from mining and processing people.” There is no evidence, apart from any inference to be drawn from the extent of the discrepancy in the volumes, of any negligence in the preparation or calculation of the estimates. [137] As noted earlier, Justice Flinn, in Northern Petroleum v. Sydney Steel Corp., supra, held that in the absence of evidence of negligence on the part of the representor, there can be no claim for negligent misrepresentation. Similarly, in the present circumstances, there is no evidence of negligence on the part of the representor, Devco, and therefore, the element of negligence necessary for the tort has not been established. (2) Breach of Contract [138] Roper Ltd. submits by failing to provide “approximately” the tonnages set out in the invitation for tenders and purchase order, Devco has breached the contract. In respect to the exclusion of liability contained in clause 10, counsel’s submission continues: ...it is respectfully submitted that the misrepresentations made by Devco were such blatant error or “fatal error”, they constitute fundamental breach of contract by Devco. Case law has held that in circumstances where an essential basic element of contract has not been satisfied and the required standard of care and diligence in so doing is not met, there has been fundamental breach of the contract and the breaching party cannot rely on an exemption clause. (Rose v. Barisco Brothers Limited (1983) 1983 CanLII 3108 (ON CA), 147 D.L.R. (3rd) 191). In Cathcart Inspection Services Limited v. Purolator Courier Limited (1982) 1982 CanLII 2056 (ON CA), 139 D.L.R. (3rd) 371, the Ontario Court of Appeal stated that the question of whether an exclusion clause covered particular element of the contract depends on the “true construction of the contract” and “the proper test” is whether it was fair and reasonable to attribute to the parties the intention that the exclusionary clause should survive and cover the breach of fundamental term. Courts have refused to enforce even the clearest of exemption clauses if the affect thereof would be entirely unreasonable (see Gillespie Brothers v. Roy Bowles Transport Limited (1973), al et. R.P. (C.P.A.)). In the case at bar, it is Roper’s position that quantities to be moved were an essential basic element of the contract and were essential to Roper’s determination of Contract price. It is only by relying on the tonnages put forth by Devco in its request for proposals that Roper was able to arrive at Contract Price. Furthermore, in reliance on those tonnages, Roper incurred significant expenses, including significant capital costs in purchasing the necessary equipment. It is therefore entirely unreasonable to attribute an intention to the parties that Devco was exempt from any obligation to deliver to Roper quantities at least within reasonable range of those set out in the Purchase Order. [139] Devco, in response, acknowledges the concept of fundamental breach arose as means by which to avoid the consequences of an exclusion or limitation clause. Counsel cites from Fridman, The Law of Contract, supra, at pp. 601-602, as to the nature of fundamental breach: It has been referred to as breach in consequence of which the performance of the contract becomes something totally different from that which the contract contemplates. It has been called “breach which goes to the root of the contract.” It has been said to involve “such congeries of defects as to destroy the workable character of the machine”(that is, the machine which was the subject-matter of the contract). fundamental breach has been defined as one which destroys “the whole contractual substratum” as undermining the whole contract as involving an event which deprives the innocent party of substantially the whole benefit which that party was to obtain under the contract. It has been described as breach which entitles the innocent party to treat the contract as repudiated or which would make it unacceptable to hold the innocent party to the agreement. [140] Counsel then notes, where at p. 603, the author says fundamental breach is question of fact that turns on the “terms of the contract, the intended benefits, the purposes of the contract and material consequences of the breach,” and continues: There was debate as to whether fundamental breach was rule of law or simply rule of construction. In Hunter Engineering Co. v. Syncrude Can. Ltd., supra, Wilson, J. and Dickson C.J.C. both adopted the construction approach. Wilson, J. considered whether it was “fair and reasonable” to enforce the clause in favour of the party who had commented the breach (at pages 375-381). Dickson, C.J.C. was of the view that the parties should be bound by the terms of their agreement, including exclusion clauses, “provided the agreement is not unconscionable” (at page 337). More recently, the Supreme Court in Guarantee Company of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423, in its review of the decision in Hunter Engineering stated at page 477: “The [construction approach] addressed the consequences of fundamental breach as matter of construction of the terms of the contract rather than categorical rule of law. Courts are required to determine whether the contract, properly interpreted, provides that exclusion clauses shall be enforceable in the event of fundamental breach. If, as matter of contractual interpretation, the parties clearly intended an exclusion clause to continue to apply in the event of fundamental breach, courts were required to enforce the bargain agreed to by the parties, rather than apply rule of law to rewrite the terms of the contract.” In order to show that fundamental breach occurred Roper must prove that there was totally different performance from that contemplated by the parties. Even if there is fundamental breach, that does not end the matter. Your Lordship must then consider if on proper interpretation of the contract the parties intended the exclusion to be enforceable. [141] Counsel for Roper Ltd. cites the review by Chief Justice MacKeigan, in Canso Chemicals Ltd. v. Canadian Westinghouse Co. Ltd. (1974), 1974 CanLII 1336 (NS CA), 10 N.S.R. (2d) 306, at pp. 344-345, of number of definitions or descriptions that have been attached to the phrase “fundamental breach” where it has been used in the context of whether or not to apply an “exclusion” clause, whether it be an exclusion of liability or an exclusion limiting damages. Chief Justice MacKeigan, then continues by referencing number of authorities where the failure was held to be fundamental breach and on the other hand, authorities where the deficiency was not so found. [142] Devco says there was no fundamental breach since the contract called for the banking, blending and lifting of coal at the LBC and this is the work Roper Ltd. performed and for which it received compensation for each tonne of coal handled. Counsel refers to the decision of the Alberta Court of Appeal in Catre Industries Ltd. v. Alberta (1989), D.L.R. (4th), at p. 94, involving an appeal on unit price contract where the plaintiff had claimed conditions were fundamentally different from those shown in the document on which it had tendered, including in respect to the nature of the materials and the haulage distances. The Province of Alberta had apparently relied on number of disclaimers that suggested the quantities were “estimates” and to be considered “as approximate only” and that “no responsibility will be assumed by the Department for the correctness or completeness of the data shown and should any such data be found incorrect or incomplete, the contractor shall have no claim on that account”. In performing the contract the contractor was unable to complete on time and brought action alleging the results of soil tests made by the government before the contract were misleading and the contract could not reasonably have been completed in the time agreed. In holding there was no fundamental breach, Justice Stratton, in the reasons of the court, at pp. 94 95, made the following comments: With respect to the conditions existing at or about the time of tendering it is clear that Cartre was anxious to enter into the road-building market in Alberta and had available to it resources which it undoubtedly considered fully able to compete successfully for this particular job and complete it. As company it was experienced with dealing with invitations to tender and contract documents. It is not reasonable to conclude that its people did not fully comprehend and accept the stringent terms of the contract including the shortness of the time given to respond to the invitation. If this court should interfere in the circumstances of this case and find the said exculpatory clauses to be unenforceable and thus restructure the contract, the resulting impact on contract law would, in my view, be chaotic and in any event, not justified in law. It is clear from the Syncrude decision that, even in the face of fundamental breach, the courts should not rule that exclusion clauses, by reason of that breach, automatically lose their validity. This applies with even more force in situations of lesser breaches. [143] Counsel for Devco notes that when Roper Ltd. became aware the tonnages were not being made available as originally anticipated, it took no steps to repudiate the contract and in fact, sought and obtained concessions from Devco in the form of the weekly draw. In respect to the obligation on the innocent party, Lord Upjohn in Suisse Atlantique Societe D’Armement Martime S.A. v. N.V. Rotterdamsche Kolen Centrale, [1967] A.C. 361, at pp. 421-2, made the following observations: believe that all of your Lordships are agreed, and, indeed, it has not seriously been disputed before us that there is no magic in the word “fundamental breach”; this expression is no more than convenient shorthand expression for saying that particular breach or breaches of contract by one party is or are such as to go to the root of the contract which entitles the other party to treat such breach or breaches as repudiation of the whole contract.. Whether such breach or breaches do constitute fundamental breach depends on the construction of the contract and on all the facts and circumstances of the case. The innocent party may accept that breach or those breaches as repudiation and treat the whole contract at an end and sue for damages generally or he may at his option prefer to affirm the contract and treat is as continuing on foot in which case he can sue only for damages for breach or breaches of the particular stipulation or stipulations in the contract which has or have been broken. [144] Clearly, Roper Ltd. did not seek to repudiate the contract on the basis of fundamental breach, although there was evidence that early in the fall of 1985, during meeting held with MacLellan and Martin, together with other representatives of Devco, Roper did threaten to terminate the contract. The notes of the meeting record the following: Bill Reid Opened meeting. Don Roper had contacted P. Richardson stating that he has major problem with banking lifting contract (can’t continue). Don Roper Wants to get out of contract, but his major problem is what to do with equipment. He is losing money. Equipment operators are not getting full weeks. Shift supervisors will not sign for down time. Bill MacLellan Work load this year doesn’t seem to be any different this year than last year. We don’t want to see Roper leave but if he must leave, we need to know what to do in the interim. Don Roper Want’s [sic] to sell his equipment. Feels the production is not there too variable. [145] However, Roper Ltd. took no steps to effect termination or repudiation and instead continued to perform under the contract, later seeking and obtaining concessions in respect to obtaining payment by way of weekly draw with proviso for an adjustment to be made at subsequent date. [146] number of problems that ensued during the course of performance of the work are suggested by counsel for Roper Ltd. as constituting such congeries of defects” as to destroy the workable nature of the contract. Counsel notes the additional work required on the banks, the fact Roper Ltd. was not paid for all the work it suggests were additional to the contract, or were paid to other contractors, the need for extensive work in maintaining and cleaning up “C” track and “H” track and the requirement to disburse equipment to the different tracks as opposed to operating centrally at the LBC following depletion of these other tracks. Counsel suggests Devco knew or ought to have known the conditions in respect to the loading of C.N. cars would be impossible to meet. He does not answer the response that Burns was able, with apparently substantially less need for adjustments, to accomplish the same task. He also says the fact of excessive down time was factor to be taken into account in determining whether there was fundamental breach. None of these, singularly or together, constitute fundamental breach even on the most favourable reading of any of the pronouncements relating to what is required for fundamental breach of contract, and even to the extent the problems were caused or contributed to by failures on the part of Devco. [147] The submission of fundamental breach rests on whether the substantial discrepancy between the estimates of the anticipated tonnages as compared to the actual tonnages made available to Roper Ltd., during the period he operated under the contract, were such as to make “performance of the contract something totally different from that which the parties contemplated”. The situation must be fundamentally different from anything which the parties, as reasonable parties, could have contemplated. [148] Devco must have known that in inviting tenders and in putting forward estimates, albeit as “approximations” of the quantities of coal to be handled, these figures would be used by any prospective tenderer in calculating the rates they would be prepared to charge in performing the requested work. The whole rate structure of the contract was to large extent dependent on the volumes to be handled over its life. The use of the modifier “approximate” put the prospective tenderer on notice the figures were not warranted, nor guaranteed, but certainly could not put the tenderer on notice that in setting its rates the volumes could vary by as much as 30-40%; if otherwise, then what difference if the variance was 50 or 60%. Yet, could the parties reasonably contemplate that party’s commitment to rates it calculated on the basis of certain tonnages, would still be applicable when the actual tonnages bore no resemblance to the relied upon estimates. The mere fact Roper Ltd. was still “banking, blending and lifting coal” at the LBC is not the only substratum of the contract. In this circumstance, the anticipated tonnage directly impacted on both the rate to be charged per tonne and on the amount of equipment the tenderer was required to have on site to service the anticipated tonnage. There was fundamental breach and the fundamental breach was the failure to provide tonnages “approximating” the estimates contained in the invitation for tenders and purchase order. [149] Counsel for Devco says, in the alternative, notwithstanding determination there was fundamental breach, it is necessary for the court to then decide whether the exclusion clause should apply to the particular breach. He notes Roper would have been aware tonnages were not guaranteed and that he took into account the possibility of lower tonnages when he calculated his tender prices. Roper would also have known or ought to have known that coal production was subject to number of vagaries, including operational difficulties at the mines and that sales could be affected by market conditions. Counsel’s submission then continues: If Devco could not be certain about the quantity of coal available for handling, it was reasonable for Devco to exclude liability. Devco advised bidders so that bidders could take that into account when determining their prices. It is really matter of risk and who bears that risk under the terms of this contract. Devco says that the contract places the risk on the contractor. Further, the risk is properly on the contractor because the contractor knows its costs and is the one that sets its prices. Under the circumstances, Devco should be able to rely on the exclusion in the event of fundamental breach. [150] Counsel for Roper Ltd. refers to number of authorities where negligence by the party responsible for drawing the contract precluded the application of the exception or exclusion clause so as to avoid responsibility. It is noted in these reasons have not found negligent misrepresentation and therefore to the extent the authorities cited by counsel reflect an exemption from the application of “exemption” or “exclusionary” clauses in the circumstance of finding of negligence, they have no application here. [151] Clause 10, in stating the indicated tonnages were approximate, as well as based on the latest available information, specifically provided Devco assumed no responsibility for quantities above or below the estimated tonnages. Clearly, had the estimations been “approximately” accurate, there would be no liability. However, to the extent the variation took them out of the “approximate” range they could no longer be said to be “approximate” and, in view of the role of unit rate or price as an essential element or substratum of the contract, this purported exclusion of liability could not reasonably have been within the anticipation of the parties. This contract anticipated the use of the information provided by Devco and this information was known to be virtually unavailable to any of the prospective tenderers, perhaps only with the exception of the prior contractor. It also contemplated major investment in equipment and resources by the successful party who would necessarily be setting their rates based on the information provided by Devco. To permit Devco to avoid responsibility, absent clear statement that regardless of the tonnages realized the contractor would be required to provide services at the rate tendered, would be unconscionable. Of assistance in interpreting the terms of the contract in this circumstance, are the comments by Chief Justice Dickson, in Hunter Engineering Co. v. Syncrude Canada Ltd.(1989), 1989 CanLII 129 (SCC), 57 D.L.R. (4th) 321, where at pp. 341-342, he stated: It is preferable to interpret the terms of the contract, in an attempt to determine exactly what the parties agreed. If on its true construction the contract excludes liability for the kind of breach that occurred, the party in breach will generally be saved from liability. Only where the contract is unconscionable, as might arise from situations of unequal bargaining power between the parties, should the courts interfere with agreements the parties have freely concluded. The courts do not blindly enforce harsh or unconscionable bargains and, as Professor Waddams has argued, the doctrine of “fundamental breach” may be understood as but one manifestation of general underlying principle which explains judicial intervention in variety of contractual settings. Explicitly addressing concerns of unconscionably and inequality of bargaining power allows the courts to focus expressly on the real grounds for refusing to give force to contractual term said to have been agreed to by the parties. wish to add that, in my view, directly considering the issues of contract construction and unconscionably will often lead to the same result as would have been reached using the doctrine of fundamental breach, but with the advantage of clearly addressing the real issues at stake. In rejecting the doctrine of fundamental breach and adopting an approach that binds the parties to the bargains they make, subject to unconscionably, do not wish to be taken as expressing an opinion on the substantial failure of the contract performance, sometimes described as fundamental breach, that will relieve party from future obligations under the contract. [152] The Chief Justice went on to note the distinction in the two uses of the term “fundamental breach”, namely where it relates to performance totally different from that which the contract had contemplated and secondly, when there is breach of contract which is more serious than one which would entitle the other party merely to damages and would entitle the innocent party to refuse performance or further performance. [153] In the present instance, the question is the interpretation of the “exclusion clause” in the context of the “fundamental breach” and whether the exclusion clause would be anticipated by the parties to have applied to the circumstances that ensued in the present instance, namely, the failure of Devco to have provided anywhere near “approximating” the tonnages that were represented in both the tender documents and the eventual contract. The concept of fundamental breach is only relevant, in the present case, as descriptive phrase for the nature of the failing by Devco, and it is in the construction of the exclusion clause that have denied Devco exemption or exclusion from the breach. (3) Contra Proferentum Rule [154] Absent ambiguity in language, courts have held there are no grounds to invoke the Contra Proferentum Rule. The doctrine, as recently affirmed by the Supreme Court of Canada in Eli Lilly Co. v. Novapharm ,1998 CanLII 791 (SCC), [1998] S.C.R. 129, operates to prevent party who has drafted confusing or “deviously ambiguous” language in contract, from benefiting from the ambiguity, by interpreting any ambiguity in the language against the drafting party. [155] Counsel for Roper Ltd. suggests any ambiguity in the contract, and particularly clause 14, should be resolved in favour of Roper Ltd.. Counsel refers to Hillis Oil and Sales Limited v. Wynns Canada Limited (1986)1986 CanLII 44 (SCC), CarswellNS 145, [1986] S.C.R. 57, where it had been found there was ambiguity in respect to how distributor’s agreement could be terminated. Justice Ladane said the rule applies where there is ambiguity in the meaning of contract of which one of the parties is the author and where the other party has no opportunity to modify the wording. He then cites from Anson’s Law of Contract (25th ED. 1979), at p. 151, to the effect that words in written document are construed more forcibly against the party using them. He then references the reasons of Justice Estey in McClelland and Stewart Ltd. v. Mutual Life Assurance Co. of Canada, 1981 CanLII 53 (SCC), [1981] S.C.R. at p. 15: That principle of interpretation applies to contracts and other documents on the simple theory that any ambiguity in term of contract must be resolved against the author if the choice is between him and the other party to the contract who did not participate in its drafting. [156] The requirement for an initial ambiguity was noted by the Court of Appeal in Arthur Anderson Incorporated v. Toronto Dominion Bank (1994), Carswell Ont 233, where at para. 17, Grange and McKinlay, J.A., for the majority, said: ...one must find an ambiguity in the contract before applying the rule, rather than after, as done by the trial judge; [157] As counsel for Roper Ltd. suggests in his post-trial submission, and with which agree, clause 14 is clear and unambiguous. It provides that either party may terminate the contract upon giving to the other 30 days written notice. There is no ambiguity and no need to interpret the provision having regard to any application of the Contra Proferentum Rule of construction. (1) Damages for Breach of Contract [158] Justice Robert Sharpe, in his paper, “Commercial Law Damages: Market Efficiency on Regulation of Behaviour” (Atlantic Education Seminar, November 7, 2001), states: The first principle of the law of contract damages insists that the innocent party be put in the position he or she would have been in but for the breach: [159] He then cites Wertheim v. Chicoutimi Pulp Company, [1911] A.C. 301(J.C.P.C.), at p. 307: [I]t is the general intention of the law that, in giving damages for breach of contract, the party complaining should, so far as can be done by money, be placed in the same position as he would have been in if the contract had been performed. [160] Justice Sharpe citing Waddams, The Law of Damages, (3rd ed; Canada Law Book, 1997) at 5.10-5.140, continues: The innocent party’s loss is measured by what is usually called the ‘expectation interest’, that is, the economic value to the innocent party of the promised performance. [161] Later, Justice Sharpe comments: The price of breach is to pay the plaintiff the value of the plaintiff’s expectation loss. If the defaulting party is willing to pay the plaintiff the value of the lost bargain, the law effectively allows the breach and facilitates the defaulting party’s avoidance of loss or pursuit of more profitable opportunity. [162] Counsel for Roper Ltd., in suggesting “lack of cooperation” by Devco, referred to D’Arcy v. Canada (Minister of Supply Services) 1992 CarswellNat 1166, as supporting “an implied obligation to act in good faith in matters related to contract.” He also cites AlliedSignal Canada Inc. v. Atlantic Electronics Ltd. 1998 CarswellNS 413, on the need, in looking for bad faith, to examine, not the effect of the plaintiff’s actions but rather the plaintiff’s motives. [163] Clearly, claims founded in breach of contract, can now result in damage awards for losses historically and traditionally more commonly associated with actions advanced in tort. In noting current trend, or at least instances in commercial law settings, of damages for breach of fiduciary duty, (Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] S.C.R. 574 and Canson Enterprises Ltd. v. Boughton [1991] 35 S.C.R. 534), for morally reprehensible conduct, (Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] S.C.R. 701), as restitutionary damages, (Attorney General v. Blake [2001], A.C. 268) as punitive damages, (Whiten v. Pilot Insurance Co., 1999 CanLII 3051 (ON CA), 1999, 42 O.R. (3d) 641 (C.A.), (now under appeal to the Supreme Court of Canada) and Royal Bank of Canada v. W. Got Associates Electric Ltd., (1999), 35 C.R. 408), and even for class actions with the goal of behaviour modification,( Western Canada Shopping Centres Inc. v. Bennett Jones Verchere, (2000), 2001 SCC 46 (CanLII), 201 D.L.R. (4th) 385 (S.C.C.), Justice Sharpe suggests this is evidence of departure from the traditional or classical model to achieve justice. However, none of these “current trends” are here applicable. [164] In considering the issue of damages, both as claimed by Devco and by Roper Ltd., recognize that in many instances there is little specific evidence quantifying the alleged loss. This lack of evidence arises either or both because of the long delay in bringing this matter to trial and, in some cases, the nature of the damages being claimed. In this regard, have considered the reasons and decision of Justice Spence, for the Court, in Penvidic Contracting Co. v. International Nickel Co. of Canada, Ltd., 1975 CanLII (SCC), 1975 CarswellOnt 299, [1976] S.C.R. 267, where in agreeing with the comment by Wilson, J., at trial, that, the evidence was not as helpful as one would have expected and more records giving more particulars of when and where different types of work were being done would have been very useful.”, at paras. 21-23, he observes: Viscount Haldane L.C., in British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company of London, Limited, said at pp. 688-9. The quantum of damage is question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases. The judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different kinds of claim, the expression of the general principles which apply to them, and this is apt to give rise to an appearance of ambiguity. Subject to these observations, think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved breach of bargain to supply what he contracted to get is to be placed, as far as money can do, in as good situation as if the contract had been performed. The difficulty in fixing an amount of damages was dealt with in the well known English case of Chaplin v. Hicks, which had been adopted in the Appellate Division of the Supreme Court of Ontario in Wood v. Grand Valley Railway Company, where at pp. 49-50, Meredith C.J.O. said: There are, no doubt, cases in which it is impossible to say that there is any loss assessable as damages resulting from the breach of contract, but the Courts have gone long way in holding that difficulty in ascertaining the amount of the loss is no reason for not giving substantial damages, and perhaps the furthest they have gone in that direction is Chaplain v. Hicks, [1911] K.B. 786. In that case the plaintiff, owing, as was found by the jury, to breach by the defendant of his contract, had lost the chance of being selected by him out of fifty young ladies as one of twelve to whom, if selected, he had promised to give engagements as actresses for stated period and at stated wages, and the action was brought to recover damages for the breach of the contract, and the damages were assessed by the jury at Ł100. The defendant contended that the damages were too remote and that they were unassessable. The first contention was rejected by the Court as not arguable, and with regard to the second it was held that “where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case”: per Fletcher Moulton, L.J. at p. 795. When Wood v. Grand Valley Railway Company, supra, reached the Supreme Court of Canada, judgment was given by Davies, J. and was reported in 1915 CanLII 574 (SCC), 51 S.C.R. 283, where the learned justice said at p. 289: It was clearly impossible under the facts of that case to estimate with anything approaching to mathematical accuracy the damages sustained by the plaintiffs, but it seems to me to be clearly laid down there by the learned judges that such an impossibility cannot “relieve the wrongdoer of the necessity of paying damages for his breach of contract” and that on the other hand the tribunal to estimate them whether jury or judge must under such circumstances do “the best it can” and its conclusion will not be set aside even if the amount of the verdict is matter of guess work. [165] Clearly, where there are no losses sustained, there is no entitlement to damages. The issue addressed by Justice Spence, particularly in the excerpts noted, is in assessing damages where there are losses but they are difficult if not impossible to quantify “with anything approaching to mathematical accuracy”. In respect to those claims where I have been satisfied the evidence demonstrates some loss, I have considered and quantified the loss, even in circumstances where the evidence has been less than “satisfactory” as to the quantification of the loss and even where it could be said “the amount . . . is a matter of guess work”. have not quantified, nor awarded damages, where, on the evidence am not satisfied the claimant has suffered “some form of loss.” (a) Devco Damage Claim [166] Devco claims, as damages, the cost incurred to rent equipment, primarily from Burns, for the purpose of performing work under the contract, the additional costs previously reviewed and reimbursement for the overpayment as represented by the difference between the total amount of the weekly draws paid to Roper Ltd. and the work and services provided by Roper Ltd. to Devco during the same period. (b) Roper Ltd. Damage Claim [167] Roper Ltd. claims the following damages: (i) Lost Profits for Failure to Complete Contract [168] John E. Carruthers, C.A., CBB, (herein “Carruthers”), partner with Grant Thornton, LLP, in his report filed on behalf of Roper Ltd., adopted, as did W. Grant Thompson, FCA, (herein “Thompson”), of Revenue Management Limited, on behalf of Devco, the approach of estimating services that would have been performed by Roper Ltd., if not for the termination, by adopting the services performed by Burns, during the period up to and including the date the original contract with Roper Ltd. was scheduled to expire. In doing so, the two reports reach radically contradictory conclusions. Carruthers created four scenarios, all of which would indicate foregone profit to Roper Ltd. by his not being permitted to complete the contract. On the other hand, Thompson says there would have been no profits, and that on all the scenarios advanced by Carruthers, Roper Ltd. would have lost money. [169] In his post-hearing submission, counsel for Devco suggested number of flaws in Carruthers’ calculations, including using Burns’ unit prices, ignoring Roper Ltd.’s actual productivity per man hour, assuming Roper Ltd. would receive the tonnages set out in estimates, notwithstanding even Roper Ltd. included 10% to15% allowance in preparing his calculations, ignoring Roper Ltd.’s actual labour costs, failing to include Roper Ltd.’s costs for rental of equipment as part of Roper Ltd.’s costs, including as extras work Roper Ltd. had not performed as extras under its contract but which would have been extras under Burns’ contract. The submission adds that Carruthers assumed Roper Ltd. had contractual right to extras and would have received the identical extras that Burns received, notwithstanding Roper Ltd. and Burns were operating under different contracts. [170] In respect to the reference to Carruthers using Burns’ rates in calculating Roper Ltd.’s loss, counsel’s comments are with merit. There was no basis, whatsoever, for calculating any loss by the use of unit prices other than those contained in the contract between Devco and Roper Ltd.. As noted earlier, the rights and obligations of the parties, including any loss or damage, are to be determined having regard to the contract between the parties and not with reference to any contract between Devco and any other person, including Burns. [171] Thompson, in using the actual productivity and labour costs incurred by Roper Ltd. up to the date of termination, suggests Roper Ltd. would have incurred loss rather than profit had it continued to the date set for the original expiration of the contract. Adding in the costs of equipment rented to assist Roper Ltd. in performing its contract, and for the productivity of which it received compensation in accordance with the rates provided for in the contract, cost apparently not even included by Thompson, the extent of the loss is increased and the possibility of profit over the original term of the contract made even less likely. [172] Roper Ltd.’s financial statements for the 10 month period ending May 31, 1986, shows an operating loss and there is nothing in the evidence to indicate, had it completed the contract, it would have turned the loss into profit. There is, in addition, in respect to the equipment used in the operation, the likelihood of continued deterioration. Ryder referred to discovery evidence of the late Mr. Keddy, stating the “condition of the equipment did deteriorate”. There is nothing to suggest this deterioration would not have continued. As such, there was the very considerable likelihood of increased maintenance and repair expenses, or the need to replace equipment before expiration of the contract term. However calculated, there is nothing in the evidence to suggest Roper Ltd. would have ever achieved profit, even if the tonnages suggested in the purchase order had been provided. Thompson in his analysis of the scenarios created by Carruthers, using the tonnages provided for in the purchase order, demonstrated that even then, having regard to Roper Ltd.’s rates, it would have incurred loss over the term of the contract. The expenses were outstripping income, including any income it would have generated had it received the tonnages forecasted by MacVicar. (ii) Forced Liquidation of Capital Assets [173] In his report, confirmed in his testimony, Sobek concludes: It is BOYD’s opinion that the value reportedly paid for capital assets purchased by Roper to fulfill Tender requirements was substantially in excess of market value. Our independent review indicates that Roper’s reported purchase prices are to times higher than published market prices on those units for which valid serial numbers were provided. We realize Roper may have incurred additional costs for shipping and transportation, but not to the magnitude of the prices reportedly paid. [174] Ryder suggests, having reviewed “1984/85 Equipment Auction Sales” and from speaking with representative from an appraisal service, the prices paid did not appear to be out of line when compared to auction prices in late 1984. Notwithstanding the evidence and report of Ryder, it is clear the prices paid by Roper Ltd. for the equipment were, if not excessive, at least at the top of any range for the purchase of equipment of this vintage. Having regard to its rapid deterioration when on site, including, performance by the loaders and coal haulers to less than industry standards, the prices paid, in hindsight, were undoubtedly excessive for equipment that was approaching the end of their “useful operable life”. Perhaps most dramatic in substantiating the likelihood Roper Ltd. paid excessive amounts for the equipment it purchased is the evidence that one of the loaders purchased, for which it apparently paid $90,000 Canadian, was sold one year previously for $18,000 U.S.. As advanced by counsel, even taking into account customs and transportation, the apparent fair market value of this loader one year prior to its purchase by Roper Ltd., was well below what it paid. It was suggested that perhaps the loader may have, in the meantime, been refurbished. However, no evidence was introduced to substantiate any substantial work having been carried out on this loader and even if work had been performed, there is nothing to suggest it would justify the marked increase in the price paid by Roper Ltd. over that paid the year previously. The evidence the loaders were frequently broken down, with at times none of the loaders available for work at the VJCPP, would appear to indicate any refurbishment would have been minimal, at best. [175] In respect to the claim for loss occasioned by “forced liquidation”, there was evidence the actual liquidation of the equipment occurred some period of time following termination of the contract. There was insufficient evidence as to any earlier efforts that were made to realize on this equipment, or that the method chosen with respect to each piece of equipment was inappropriate or that the amounts achieved were anything but the result of the state of the equipment at the time. [176] On the evidence, it appears Roper Ltd. paid at least “premium” prices for this equipment; it was old at the time it was first placed on the site and it suffered series of repeated breakdowns. It is therefore not surprising the amounts realized were substantially less than the apparent amounts paid by Roper Ltd. for the equipment, particularly the amounts as summarized in the Ryder report. Thompson, in his report, notes if the equipment had been depreciated over the term of the contract, the additional depreciation would have eliminated the suggested loss on disposal. [177] There was no satisfactory evidence the liquidation of the equipment purchased by Roper Ltd., as result of the termination of the contract, resulted in any loss that is otherwise claimable against Devco. In the circumstance, am satisfied there was no loss from any forced liquidation arising from the termination of the contract. (iii) Specific Cost Recoveries [178] Counsel for Roper Ltd. suggests the particulars of this claim are contained in the report prepared by Carruthers, and include the cost of restoring “H” track in the amount of $29,338.00, banking and blending at “C” and “H” tracks in the amount of $46,80.00 and investment income in the amount of $15,000.00 lost to Roper as result of Roper’s bank having cashed in Government of Canada Bonds personally owned by him. Having regard to the evidence, none of these items are recoverable, even in the circumstances of breach of contract by Devco. [179] The evidence with respect to the restoration of “H” track is confusing, at best. There is evidence the invoice charged to Roper Ltd. for this work referred to services performed in late October and early November 1985. Roper also acknowledged and introduced records showing lifting continued on “H” track until 1986. On the other hand, the minutes of meeting held on December 5, 1985 and attended by Roper, Martin, MacVicar and Gouthro record: B. Martin stated operations on Track progressing very well and that grader could grade the floor to complete the recovery. [180] If, in fact, the invoice paid by Roper Ltd. reflected services in depleting or recovering “H” track, this was work for which it was paid at unit rate and for which it therefore received remuneration as the coal was lifted from the banks. There is nothing to suggest the restoration of “H” track involved anything but the depletion of the coal there banked. Admittedly, the fact it continued to lift from “H” track could reflect additional banking at “H” track during or following the depletion or recovery. Nevertheless, the invoice was for the restoration of “H” track, which apparently involved nothing more than the depletion of the track and therefore was part of the contractual obligation of Roper Ltd.. [181] With respect to the additional invoice for banking and blending at “C” and “H” tracks, as noted earlier, Roper Ltd. was paid for the coal banked and blended on “C’ and “H” tracks, as well as at the LBC. The only issue is whether the continued activities at these tracks during and/or following the apparent depletion, would entitle it to some reimbursement for any additional cost or expenses incurred by the continued use of these tracks contrary to the original understanding at the time the contract was entered into. [182] The third item, involving “lost income”, is claim by Roper personally and therefore not part of this claim. In any event, there is nothing in the circumstances of this case that would entitle Roper, even had he been plaintiff, to claim this amount and no authority was cited in support of such claim. (iv) Lost Opportunity [183] The basis for the claim for lost opportunity appears to be that had Devco not breached the contract, Roper Ltd. would likely have had an opportunity to continue as the LBC contractor and the fact Burns received contract in the amount of $14,500,000. Unclear is how this translates into lost opportunity claim on behalf of Roper Ltd.. [184] On the other hand, in Appendix “A” to the report of Grant Thornton LLP, calculation is made of opportunity costs based on percentage, per annum, of the various loss calculations made by Carruthers. Counsel for Devco interprets the “lost opportunity” claim as, in effect, claim in lieu of interest. [185] Devco, as Crown corporation, was not required to pay pre-judgment interest prior to an amendment to the Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50. The Act was amended, effective as of February 1, 1992 to permit interest to be awarded against Crown corporations. Counsel for Devco refers to the decision of the Nova Scotia Court of Appeal in D.J. Lowe v. Foundation Maritime et al (1982), 54 N.S.R. (2d) 135, where at pp. 148-149, Hart, J.A. said: The basic premise is that interest may not be allowed against the crown unless there is statute or contract providing for it. See The King v. Carroll, 1948 CanLII 29 (SCC), [1948] S.C.R. 126 The Queen simply functions through the agency of Crown corporation and she may sue or be sued in the name of that company in any court having jurisdiction over corporations that are not Crown corporations in relation to obligations incurred by the corporation. If the contract had been entered into by the Queen or by the Minister interest would not have been recoverable had either of them been sued, and, in my opinion, the convenience of handling these affairs through Crown corporation has not changed that situation. [186] To the extent the claim for “lost opportunity” is, in reality, claim based on the fact interest could not, prior to February 1, 1992, be awarded against Crown corporation, then similarly, it cannot be awarded under the guise of “lost opportunity”. In the circumstances there is no “lost opportunity claim”. As suggested by counsel for Devco, “Roper cannot re-characterize prejudgment interest simply by calling it “lost opportunity costs”“. (v) Exemplary Damages [187] The only basis for exemplary damages advanced by counsel for Roper Ltd., is the suggestion of “bad faith” and “misconduct” arising out of the manner in which Roper Ltd. was treated by Devco. [188] The Supreme Court of Canada in Royal Bank of Canada v. W. Got Associates Electric Ltd., supra, confirms, in appropriate circumstances, exemplary damages are available for breach of contract. Although an extraordinary remedy in commercial disputes, the court in upholding the award of exemplary damages for breach of contract found it to be appropriate. In the present circumstances, even if the various allegations suggested by Roper Ltd., of “bad faith” and “misconduct” by Devco, were established in the evidence, which clearly is not the case, they would not constitute “circumstances sufficient to justify such an extraordinary remedy” for the breach of contract. (vi) Loss of Profit [189] Counsel for Roper Ltd., in his post-hearing submission, references the decision of Justice Roenigsberg, of the British Columbia Supreme Court in Seaboard Life Insurance Co. v. Bank of Montreal (1999) CarswellBC 1551, at paras. 208 and 209 as follows: One of the leading cases on damages for breach of contract is Baud Corp., N.V. v. Brook (1978), 1978 CanLII 16 (SCC), [1979] S.C.R. 633 (S.C.C.). At page 645 Estey cited the leading case of Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., [1949] K.B. 528 (Eng. C.A.): (1) It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights have been observed: (Sally Wertheim v. Chicoutimi Pulp Company). This purpose, if relentlessly pursued, would provide him with complete indemnity for all loss de facto resulting from particular breach, however improbable, however unpredictable. This in contract at least is recognized as too harsh rule. (2) In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach. (3) What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach. Recovery for loss of profit or loss of opportunity to earn profit was contemplated Baud Corp., however more relevant authority on those principles is the decision of McLachlin J.A. (as she then was) in Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 27 B.C.L.R. (2d) (B.C.C.A.), at page 8: In my view, the law may be summarized as follows. The basic rule is that damages for lost profits, like all damages for breach of contract, must be proven on balance of probabilities. Where it is shown with some degree of certainty that specific contract was lost as result of the breach, with consequent loss of profit, some should be awarded. However, damages may also be awarded for loss of more conjectural profits, where the evidence demonstrates the possibility that contracts have been lost because of the breach, and also establishes that it is probable that some of these possible contracts would have materialized, had the breach not occurred. In such case, the court should make moderate award, recognizing that some of the contracts may not have materialized had there been no breach. The matter may be put another way. Even though the plaintiff may not be able to prove with certainty that it would have obtained specific contracts but for the breach, it may be able to establish that the defendant’s breach of contract deprived it of the opportunity to obtain such business. The plaintiff is entitled to compensation for the loss of that opportunity. But it would be wrong to assess the damages for that lost opportunity as though it were certainty. [190] Although cited by counsel in the context of Roper Ltd.’s claim for damages, including lost opportunity, the authority clearly states damages require loss and in the circumstances of this case there is no evidence, with the few exceptions noted, that Roper Ltd. suffered any loss of profit or any loss of opportunity to earn profit. The reality is Roper Ltd. was losing money under the contract and on the balance of probabilities there was every prospect it would continue to lose money had it continued with the contract. There was no loss of profit, nor any loss of the opportunity to earn profit. [191] The contract between the parties was breached, and fundamentally breached, by both Roper Ltd. and Devco. Roper Ltd. breached the contract by failing to perform, evidenced by the increasing number and severity of breakdowns of its equipment. Devco breached the contract by failing to provide anywhere “approximating” the tonnages it represented in the invitation for tenders and incorporated in the contract. [192] On the evidence, Roper Ltd. operated at loss during the period preceding the termination and it was entirely likely and, certainly beyond the balance of probability, it would have continued to operate at loss until the conclusion of the contract. There was therefore no loss of profit arising as result of the termination by Devco. In the event there was any loss, clause 14 of the contract permitted Devco to terminate the contract on 30 days written notice. In the circumstances, any loss occasioned to Roper Ltd. would have to be calculated, recognizing both parties could terminate on 30 days written notice to the other. As such, any calculation of loss, if there had been loss, would be limited to this period of 30 days. [193] Devco is entitled to claim reimbursement for the overpayment arising from the weekly draws, as well as certain of the equipment rentals and extra costs it incurred. In respect to the rental claim by Devco against Roper Ltd., it is recognized that some of the rental charges were for services performed on “C” and “H” tracks, other than in respect to depletion of these tracks, and therefore are not properly the subject of the contract between the parties. Roper Ltd. is entitled to claim damages for the premature termination of the use of the radial bin stacker. Additionally, Roper Ltd. received compensation for coal banked on “C” and “H” tracks and as well as for coal lifted on “C” and “H” tracks over and above the coal that existed at the time of commencement of the contract. In the absence of evidence as to the actual extra costs incurred, and recognizing the virtual impossibility, in the circumstances, to establish such costs, Roper Ltd. is entitled to “fair and reasonable” compensation. In the circumstances, a fair and reasonable compensation for such additional effort, costs and expenses would be the sum of $10,000.00 which is hereby allowed to Roper Ltd.. DEVCO DAMAGES Rental of Equipment Less allowance for non-Roper Services Net Rental of Equipment Claim 130,179.00 Improper Loading of CN Cars no claim made Restoring Conditions of Bank after termination Less allowance Net claim for restoring condition of banks 46,582.00 Additional Crew Costs to Adjust CN Cars Dead Freight CN Cars Damage to Devco Railcars 735.00 Damage to Steel Cable Sling 697.00 Overpayment Amount Advanced by Devco to Roper 1,047,730.73 Banking, blending and lifting services 601,110.82 Banking Pioneer Fines 23,406.44 Trucking to Pioneer 63,826.32 Lifting to Brookfield 2,016.13 Hourly Rentals 35,413.00 Lifting to Sysco Trucks (not previously included) 1,383.88 Fuel Tax Increase (Invoices 156 334) 6,402.16 Snow Removal (P.O. 44952) 15,750.00 Carbogel (P.O. 44681) 3,505.93 Invoice 023 4,916.00 Radial Bin Stackers Stand-By Fee 6,000.00 Amount Owing by Roper 92,114.05 TOTAL DEVCO DAMAGES 270,307.05 Roper Limited’s DAMAGES Misrepresentation by Devco Bad Faith by Devco Permitted Use of Back End Trucks Use of Truck Dozers Emptying Silos Continued Loading, Banking Blending at “C” and “H” Tracks 10,000.00 Loss of Profit Loss on Forced Liquidation Cost of Restoring “C” and “H” Tracks Lost Opportunity Exemplary Damages Loss of Opportunity for Profit on Future Contract

The defendant obtained a tender to bank, blend and load coal at the plaintiff's coal preparation plant. In performing the contract, the defendant experienced equipment problems resulting in the plaintiff having to rent equipment from the defendant's predecessor. The plaintiff terminated the contract without any prior warning or notice to the defendant and brought an action for reimbursement of monies advanced under the contract and expenses incurred for the equipment rentals. The defendant counter-claimed for damages arising out of the termination of the contract, for services performed under the contract and for extras which had not been paid. Plaintiff entitled to reimbursement for overpayments and equipment rentals; defendant entitled to fair and reasonable compensation for extras for which court awarded the sum of $10,000. Both parties were in breach of the contract, the plaintiff's breach occurring because the volumes of coal supplied did not approximate the tonnages represented in the contractual documents. The clause excluding liability for errors in the forecast did not excuse the plaintiff because the actual volumes were not even approximate to the forecasted tonnages and the rates bid by the defendant were directly related to the anticipated tonnages. Absent evidence as to how the plaintiff arrived at the information used in the calculation of the forecasted tonnages, no negligent misrepresentation could be found, as there was no evidence that the information was negligently obtained. In respect to claims where on the evidence there was a loss, but it was difficult, if not impossible to quantify, damages were awarded even where it could be said the amount is a matter of guesswork.

8_2001nssc179.txt

1998 Date:20010309 COURT FILE NO: BW 4294 IN THE SUPREME COURT OF NOVA SCOTIA CLAUSSEN WALTERS ASSOCIATES LIMITED and DAVID A. MURPHY and SONIA MURPHY DECISION [Cite as:Claussen Walters Associates v. Murphy, 2001 NSSC 105] HEARD BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER DATES HEARD: JANUARY 29, 30, 31, FEBRUARY 2, 2001 PLACE HEARD: BRIDGEWATER, N.S. DATE WRITTEN DECISION FILED: MARCH 9, 2001 COUNSEL: RUBIN DEXTER, for the Plaintiff ALAN J. STERN, Q.C., for the Defendants FACTS: Oral contract for development and sale of land 1. Was there an oral agreement for payment of fixed commission between the parties? 2. If there was an oral agreement, what were the terms? 3. If there was an oral agreement, is such an agreement enforceable by the Plaintiff? 4. In the absence of an enforceable agreement between the parties, is the Plaintiff entitled to recover from the Defendants based upon quantum meruit or unjust enrichment? 5. If the answer to No. above is yes, what is the appropriate amount? FINDING: There was an oral agreement for the payment of a fixed commission, there were definite terms, that the oral agreement was enforceable but in the alternative an award of unjust enrichment was made to compensate for work done. [1] This is an action by the Plaintiff, Ciaussen Walters and Associates Limited against David A. Murphy and Sonia Murphy for damages for breach of contract or in the alternative claim for unjust enrichment and/or quantum meruit. [2] At the end of the trial, the Plaintiff asked to withdraw his claim against the Defendant Sonia Murphy. Same was granted. As to costs which were sought by defence counsel, reserved upon that issue until later date. 1. Was there an oral agreement for payment of fixed commission between the parties? 2. If there was an oral agreement, what were the terms? 3. If there was an oral agreement, is such an agreement enforceable by the Plaintiff? 4. In the absence of an enforceable agreement between the parties, is the Plaintiff entitled to recover from the Defendants based upon quantum meruit or unjust enrichment? 5. If the answer to No. above is yes, what is the appropriate amount? [3] The Plaintiff carries on business as licensed real estate brokerage firm with an office in Lunenburg. Tony Walters is the President of the Company. He is licensed real estate broker. His company began to build marketing reputation of innovative ideas. [4] The Defendant is retired heart surgeon and resides with his wife, Sonia, at Halifax. [5] The Defendant began to reside at Kingsburg, Lunenburg County as seasonal resident in 1973. 0ver the years he acquired many parcels of land until he eventually owned approximately 100 acres in an area known as "Hell Point" or the "Hell". This land was close to the village of Kingsburg. The transactions were negotiated privately between Mr. Murphy and the various owners of the lots. Title to all parcels of land vested in Mr. Murphy. [6] The intention of David Murphy with respect to the lands he acquired was to develop retirement farm. For period of time the Defendants had substantial number of sheep on the land; however, by 1990 there was serious problem with coyotes. Up until that time David Murphy had fertilized, ploughed, mowed and grazed portions of the land and had fencing erected. [7] By 1995 the Defendants entered into discussions withNature Conservancy of Canada and the Province of Nova Scotia and explored the possibilities of donating the land. [8] During the course of dealings with the Province of Nova Scotia, appraisals were carried out by two appraisers, one of which was Hardy Appraisals who did subsequent appraisal for the Plaintiff after this action was started. [9] Mr. Murphy did not donate the land as desired because of possible tax implications. [10] 0n the recommendation of Peter McCurdy, who is neighbour and friend of Mr. Murphy, Mr. Murphy telephoned Mr. Walters on November 26, 1996 and indicated he was interested in selling the land in question. Mr. Walters was familiar with this land. [11] The first meeting between Tony Walters and Mr. Murphy took place on December 2, 1996. Mr. Walters says this meeting took place at the Murphy home at Kingsburg whereas Mr. Murphy said this meeting took place at Mr. Walters' office at Lunenburg. Mr. Walters said when he met with them at Kingsburg, Mr. Murphy's daughter Deirdre was present for part of the meeting. Deirdre and Mr. Murphy say this was not possible as December is Deirdre's birthday which was celebrated at her parents home at Halifax. Also in her evidence, Deirdre said she first met Mr. Walters at her parents home in April 1997. She also told the Court on that day she was in the Court of Appeal. [12] There is another problem as Mr. Walters says he made an arrangement for Mr. Murphy to see David MacDonald. All seem to agree that meeting was at PM well after the 11 AM meeting between he and Mr. Murphy. The office of Mr. MacDonald was nearby. [13] Having heard the evidence, am satisfied someone is honestly in error. find the meeting of December 2, 1996 took place in Lunenburg at the office of Mr. Walters. [14] At that meeting Mr. Murphy brought with him aerial photographs, deeds and old documents. Mr. Murphy discussed selling it as single lot whereas the suggestion of Mr. Walters was to develop it. Development of the land caused Mr. Murphy real problems as he wanted to keep the land in tact and certainly did not want any development as he had seen in other areas. It was at this meeting Mr. Murphy said he was busy, that he was not developer, nor did he have the expertise, to which Mr. Walters replied he could do the development for him. Mr. Walters told him they would need surveyor to see what could be done as any proposed sub‑division had to pass the Planning Board. Two surveyors were discussed with Mr. Murphy deciding that Mr. Becker would do the survey work. [15] At this meeting commission fees were discussed. Mr. Walters told Mr. Murphy if there was direct or bulk sale his commission was 6% but if he got involved in the sub‑division his fee would be 10% of the total sales when the sales took place. Mr. Murphy disputes that this conversation took place. [16] At the December 2, 1996 meeting there was discussion about needing lawyer to help with the legal issues of the project. Mr. Walters suggested Mr. Murphy should go and see David MacDonald as he had done lot of work for him and he did good work. Mr. Murphy did go to see Mr. MacDonald later that afternoon. [17] Discussion also included the need for Mr. Murphy to talk to his accountant re the HST and any income tax implications. [18] 0n December 9, 1996 Mr. Murphy, Mr. Walters and Mr. Becker met at the office of the Plaintiff at Lunenburg. The purpose of this meeting was to acquaint the surveyor with the proposed sub‑division and see if it would meet planning approval. Mr. Becker was of the opinion it could be done but they would have to go through some hoops to get there. [19] Very little was done through the winter of 1996 with the exception of Mr. Walters walking the land. [20] Mr. Murphy and Mr. Walters met on the property in April 1997. At this meeting, Mr. Murphy queried Mr. Walters about the cost to which Mr. Walters replied his cost was 10%. Mr. Murphy said Mr. Walters told him for the 10% he could help get bids, help to get the road in, lay out the lines and work with the surveyor. Mr. Murphy said he told Mr. Walters it sounds good but wanted to talk to his family. Mr. Murphy testified he thought the commission was bit pricy. He also testified at that time he hadn't clue about value but he did have ball park figure in mind. During these or prior discussions, Mr. Walters told Mr. Murphy to shop around with other real estate brokers to see if they would do it for less. [21] After this meeting on the property, Mr. Walters and Mr. Murphy met at Mr. Murphy's house where much of what was said on the hill was repeated by Mr. Walters. Both Deirdre and her husband, Robert, were at the Murphy home. Deirdre was present for part of the meeting. She was not present when the commission was discussed. There was discussion as to how Mr. Walters would market the land and that it would be sold in large lots with proper set backs. There was also discussion about the value of Mr. Walters company in selling this property. Mr. Murphy testified it was an amicable meeting. He noted his wife had queried Mr. Walters about the 10% to which Mr. Walters replied rather abruptly 10% is my commission. Mr. Murphy told the Court he did not object to the 10% at that meeting nor did he query it. At this time Mr. Murphy told the Court it was up to him after the meeting to get in touch with Mr. Walters. Mr. Murphy did call Mr. Walters within the week at which time he told him they were going ahead. Once Mr. Murphy told Mr. Walters they were going ahead, Mr. Walters said "I'll call Mr. Becker and we will go out and lay out the lots." [22] new road had to be constructed. Getting bids for the road was left to Mr. Walters. After obtaining bids, Mr. Mailman's quote was recommended by Mr. Walters to Mr. Murphy. Exhibit Tab sets out the tender and its acceptance by Mr. Murphy. It reads as follows: “BERNARD L. MAILMAN PR0JECTS LTD. R.R.2, BRIDGEWATER, N.S. B4V 2W1 (902) 543‑3936 Walters P.0. Box 428 Lunenburg B0J 2C0 ATT: Tony Walters RE: Dr. Murphy Job Quote for road as discussed $14,946.44 HST 2,241.97 $17,188.41 We have priced job for 6‑12" culverts. Additional 12" culvert would cost $159.24 plus h.s.t. EACH. If job does not require culverts we would give credit of $159.24 plus h.s.t. per culvert. Aug 4/97 accept his bid, providing 1. As per our review with David Silver will try to maintain limbing and cleaning to 12 foot. 2. Let Tony Walters know when dozer and backhoe are ready to start can contact at 634‑4040 office; 527‑8440 cellular with message. 3. Avoid driving on grass of protected beach road 4. Add gravel as necessary to make repairs to present road D.A. Murphy" [23] 0verseeing of the road construction was left under the direction of Mr. Walters. When it was completed, everyone was happy with its construction, including Deirdre and her husband. [24] Mr. Walters went upon the land and with flagging tape laid out the lots and tied them into the new road. With the assistance of Mr. Murphy, set backs were also developed for each lot. With the assistance of Mr. Becker, Exhibit Number Tab 32 was developed as preliminary plan. This plan resulted from the work of Mr. Walters and to some extent that of Mr. Murphy. This plan was prepared showing the position of the new road tying in the lots. It is to be noted Mr. Becker testified "where the lots were laid out took my instructions from Mr. Walters". It is to be noted how closely Exhibit Number Tab 32 comes to the final approval of the plan as contained in Exhibit Number Tab 36 or appears in Exhibit Number 4. [25] As to the strategy regarding boundaries, Paragraph of Exhibit Number Tab 7, which is contained in letter from Mr. Murphy to Mr. Walters, the following appears: "A few questions as to lot strategy regarding boundaries leave this up to your wisdom. Bob has the questions." [26] In August 1997 Mr. Murphy went to his neighbours to alert them he was selling his property and there would be some noise and dirt. He went to the home of Dwoone Massie, wife of Mr. Dexter, counsel for the Plaintiff and told her about selling his property. She testified as follows: "He said Tony would be supervising construction of the road and he said Tony will be selling the properties. He said he hired Tony. told him didn't know Tony would do that. He told me if there was problem with anything, should phone Tony not the Murphys." [27] In his evidence, Mr. Murphy told the Court this conversation in part resulted from telephone call from Mr. Dexter complaining about the noise. [28] Up to the 5th of November, 1997, the parties worked amicably together. Everything seemed to be going well. 0n November 5, 1997 Mr. Walters took David MacDonald, his wife, Barbara Claussen to the home of Mr. Murphy. Together they all went to the lot at "Hell Point". There was conversation with Mr. MacDonald by Mr. Walters and Mr. Murphy about covenants that would appear in any deeds for property sold. It was left with Mr. MacDonald to review set of covenants supplied or to be sent by Mr. Murphy and to draft suggestions. Mr. Murphy said at this meeting he was becoming uneasy with the presence of Barbara Claussen, another real estate agent and Mr. MacDonald. He told the Court he was also concerned he had not received any agreement in writing from Mr. Walters and about the settlement of the commission. [29] Mr. Walters testified from his point of view his work was completed on constructing the road and laying out the lots for Mr. Becker to survey and present to the Planning Board unless Mr. Becker came back and said they couldn't do as configured. accept this evidence of Mr. Walters that his work in this area was completed save problems Mr. Becker may need resolved. [30] Shortly after this meeting of November 5, 1997, Mr. Murphy phoned Mr. Walters to advise him there was to be meeting in Halifax at the office of his daughter, Deirdre on November 13, 1997. He told Mr. Walters the purpose of the meeting was to generate some comment about contract for the sale of the land. Present at that meeting were Mr. Walters, Deirdre and her husband, Robert. Mr. Murphy was not present. Mr. Murphy's absence at such critical time gives the Court some real cause of concern particularly where he was so closely connected to the transaction and had dealt with Mr. Walters almost exclusively on all issues. really didn't accept his excuse of being busy. got the reading the meeting was planned to be that way as where he set up the meeting with Mr. Walters he could have picked non‑scheduled day to permit his presence. [31] All agree the meeting was professional, appropriate and cordial until near the end when the 10% was discussed and what costs was to be included in this amount. Mr. Walters told them he had certain responsibilities and that at that time they were all done. He told them they were only that far from going to the market and depended upon Mr. Becker getting approval. At this time no one told Mr. Walters the approval could not be obtained or that there was problem. [32] On November 13th, Deirdre Murphy told Mr. Walters she had no intention of re‑negotiating the 10% but it was concern upon which Mr. Walters replied he had deal with her dad for 10% and that was his commission. Deirdre told him he should not take position of 10% or there may be no need of going further. She conveyed to Mr. Walters if he didn't back off the 10% it might be no need to go further. The question was raised as to whether he would get the listing. Dierdre Murphy said there was no discussion of any break‑down of the 10%. There does appear at Exhibit Number Tab 15 Page 35 which are Robert's notes which reads as follows: "Rational basis for 10%. 6% for nothing but MLS and no other input." [33] At the time of the November 13, 1997 meeting Deirdre knew the road had been completed but was not familiar with any of the other work Mr. Walters had completed. [34] As an outcome of this meeting, Mr. Walters was to prepare and forward to them an overview of the marketing services provided by the Plaintiff Company. This Mr. Walters did by letter to Mr. David Murphy dated November 17, 1997 found at Exhibit Number Tab 16. Three paragraphs of that letter are important. They are found at page 41 and 45 respectively and appears as follows: "The issue of AA Walters' commission came up in the discussions with Deirdre and Robert. 0ur agreement was 10% commission, inclusive of the project management, with the provision that if at any time you were not satisfied with our firm you could notify me and if we could not remedy the situation to your satisfaction then we would withdraw from the project. 0ur time and fees are purely on contingency basis. If you are satisfied with our work, wonder why we are asked to negotiate the commission again after so much of the project has been completed and the properties are essentially ready to market. The commission not only compensates us for our know‑ledge and expertise but, importantly, allows us to provide high level of marketing services. As you and your family discuss the value of our recommendations and services please consider the following discussion and the import­ance, in your opinion, of the role of AA Walters Limited in creation of value and the future marketing of the Hell Point properties. Listing Agreement AA Walters Limited commission is 10%, inclusive of the project management. The commission is subject to HST. All cooperating brokers are compensated from this commission." [35] On November 24, 1997 Mr. Murphy wrote Mr. Walters stating: "Dear Tony want to thank you for taking the time to meet with Deirdre and Robert the other day. They enjoyed meeting with you and went away with better under‑standing of your perspective on this project. This is just note to say that we received your delivered docu­ment concerning your proposed marketing plan for Hells Point. It was much appreciated and well con­sidered. We are still in the process of mulling over the options and we will let you know as soon as possible. We look forward to talking to you then." [36] By letter dated November 24, 1997 Mr. Murphy wrote the following letter to Fran Shea, another real estate broker: "Dear Ms. Shea, As you probably know, we are planning to sell portions of our property on Hells Point in Lower Kingsburg. new road has been installed and the survey work is almost complete. As yet we have made no formal contractual commitments to list our real estate. We would appreciate your opinion as to how your firm might market this land and what sort of contractual arrangements including sales commission, terms of listing agreement, and marketing plan you might propose. As courtesy, we would kindly ask that our request be kept in confidence until such time as the matter is formalized. Thank you for looking at our proposal and we look forward to hearing from you." [37] It is to be noted Fran Shea previously had been real estate agent for AA Walters, the Plaintiff former Company. The word confidence was underlined when she received it. Mr. Murphy told the Court he had written to Fran Shea as Mr. Walters had previously suggested he do if not satisfied with Mr. Walters. In his evidence, he told the Court he did not want Mr. Walters to know he had written to Ms. Shea. He said at this time he wanted Mr. Walters to come down on the 10%. He felt it was negotiable. He also said the first time Mr. Walters knew it was problem was when he met with his daughter and husband in Halifax. [38] In response to Mr. Murphy, Fran Shea wrote Mr. Murphy on November 27, 1997. It appears as follows: "Dear David, Thank you for your letter of November 24, 1997. am pleased to inform you that Tradewinds will be operating from our Lunenburg office as of December 5th. As you know am very familiar with the land in Lower Kingsburg area and have been involved with almost all of the twenty plus transactions that have taken place there in the last four or five years. This year my listings on the Beach Hill have sold and have sold the Lorraine Mossman house on the beach. When Jon Allen and joined Tradewinds all of our Kingsburg vendors kept their properties listed with us. Re: The marketing of the lots on Hells Point. would be more than pleased to meet with you at your convenience and discuss marketing plan (I've been thinking about it for the last year). There is too much information to cover in letter and of course there is material that you should see‑‑our catalogue, new listing brochures, internet site, ad placements, etc. The commission structure is also negotiable. As there are several lots to be sold, Tradewinds would be prepared to charge only six percent commission, with side agreement at reduced rate for any clients that you personally introduce to the property. This is also open for discussion. may be reached at the Lunenburg office after the 5th of December. 0f course you are welcome to call my cell (902‑527‑6643) or my home (902‑688‑3172) at any time. look forward to hearing from you." [39] On January 8, 1998 Ms. Shea wrote to Mr. Murphy by e‑mail. Both her letter and Mr. Murphy's reply appear as Exhibit Number 5. They are as follows: "Dear David, Thought that would touch base and inquire whether you have made decision re: the marketing of your land on Hells Point. My office number is 902‑634‑1250. Fran Shea Tradewinds Realty Inc Chester, Nova Scotia Home 902‑688‑3172 Fax 902‑275‑2215 Thanks for the follow up no we haven't made decision on the marketing of the point yet although we were very favorably impressed with the tentative figures you men­tioned in the letter. What is the hold up is the step wise red tape involved in converting so many little and big pieces of land with seven deeds into something that is acceptable to planning and also the bottom line health. Bob Becker and are making pretty good progress and should have some hint of finality by late February. We will certainly be in touch. was in Toronto yesterday talking to Dr. Chris Feindel and your name came up..it sounds like he also will be giving you call. Yours sincerely David murphy... Love this e‑mail‑‑I don't need to worry about capitals and punctuation." [40] 0n December 3, 1997 Mr. Walters wrote to David Murphy. This letter appears at Exhibit Number Tab 23: "Dear Dave: Our catalogue was sent to the printers while we were still of the understanding that AA Walters was the listing broker for your Hell Point properties, therefore, the lands have been included. How should we respond to inquiries? Advertising, production of brochures, placement in the Who's Who web site etc. are on hold until we hear from you. assume this is your wish. Please let me know how you want to proceed. If you are in Kingsburg this weekend please stop by our open air Nikolaus Celebration in Lunenburg. AA Walters is sponsoring the event for local children and in support of Christmas Daddies. It's for children of all ages! With kindest regards, Tony Walters." [41] 0n December 11, 1997 Mr. Walters wrote to Mr. Murphy. It appears as Court Exhibit Number Tab 24. It reads as follows: "11 December 1997 Dear Dave and Sonia: There have been number of distressing events over the past several weeks, some of which referred to in previous correspondence. 0n 13 November met with Deirdre and Robert at which time they both advanced the position that AA Walters commission of 10% was the subject of further negotiation and that even our role as exclusive listing broker was in question. was quite surprised because Deirdre was present at our first meeting at your house in Kingsburg at which time we all discussed the 10% commission which would be inclusive of project management and payable upon the sale of the lots. 0n that day no decision was made about AA Walters Limited managing the development and the sale of your property. Sonia was not there and you said that you would have family meeting and then let me know your decision. Some time later received telephone call from you confirming that the family had decided to proceed and AA Walters was hired. The 10% commission was confirmed by you at that time. We proceeded in good faith. 0ur agreement was as follows: AA Walters Limited and Tony Walters would be responsible for management and development, and the exclusive listing and sale of your lands at Hell's Point. We agreed that AA Walters Limited would be compensated for its service both in the develop­ment of the lands in question and the sale of the lots on the basis of commission of 10% of the selling price of the lots payable upon the completion of each sale. We further agreed that if at any time you were not satisfied with our work you could notify me and if we could not remedy the situation then AA Walters would withdraw from the project. 0ur agreement was straightforward and clear. At no time subsequent to that did have any indication that you were not satisfied with our work. In fact, on numerous occasions when we were on the property together and on the telephone you expressed your delight with the way things were proceeding. Deirdre said to me during one of our meetings in Kingsburg that she and Robert had walked the new road and how pleased every‑one was with its design and construction and the overall development concept. Never, never was there single complaint. So, perhaps you can understand my surprise when the subject of our commission, and even our firm's continued involvement with the project, came up at my meeting with Robert and Deirdre. became more concerned when received your fax dated 24 November in which you said: "We are still in the process of mulling over the options and we will let you know as soon as possible." Then after my ‑3 December letter to you, received your telephone call stating the subdivision of the lots had encountered difficulty and everything was on hold. Given the statements made by Deirdre, as your daughter, and Robert acting on our behalf and speaking for you as your solicitor, and your statements to me, can only conclude that you are telling me that you do not intend to be bound by the terms of our agreement. Please provide me with written confirmation of your intentions within seven days. If you do intend to abide by the terms of our agreement please forward to me all documentation with respect to the subdivision application and the problems which you referred to in our telephone conversation and will meet with Robert Becker and the planning office to see how the issues can be resolved. With kindest regards, Tony Walters" [42] Mr. Murphy was very concerned Mr. Walters had put time stipulation on this matter. No request was ever made by Mr. Murphy to Mr. Walters to assist in the solving of any problems concerning the sub‑division as Mr. Walters had noted in the last paragraph of this letter. [43] On December 19, 1997 Mr. Murphy wrote to Mr. Walters. It appears in Exhibit Number Tab 25: "Dear Tony: RE: Hell's Point Property, Nova Scotia Thank you for your letter dated December 11, 1997 which received on Monday. As courtesy am responding within your stated time limit of one week. am sorry if caused you any distress in our negotiations. am also sorry if you believe that have mislead you into thinking, mistakenly, that we had agreed that you would be the exclusive developer and agent for our property. You must realize that am not business man and that depend on the advice of numerous professional advisors such as accountants and lawyers, prior to making significant commitments such as the sale our property at Hells Point. In our discussions you said that you were more comfortable with verbal agreement but that on occasion you would proceed with written agreement. expressed that wanted to arrange "meeting of the minds" on paper, such that numerous key terms could be negotiated and committed to on paper. wanted input from lawyers, accountants, and other agents prior to signing the proposed written agreement. In gathering information from these profess­ional sources, learned that there were numerous fundamental terms and issues which we had not even discussed. That is when arranged for you to meet with Robert Kapanen and my daughter, Deirdre, and that why's am seeking input from various other professionals including those who deal with real estate sales. Your letter imposes deadline of one week for me to respond to your proposal of 10% commission on sales. This rate has always been matter for discussion, and had wanted to clarify other terms prior to committing to written agreement. At the present time the sale of the lands is on hold until we complete our deliberations and obtain more information, at which time we would like to continue talking with you if you so wish. Yours very truly, David Murphy" [44] Both Mr. Murphy and Mr. Becker did meet with the Planning Authority. In order to reach approval, it was necessary to re‑configure the lots in three different phases but as Mr. Becker said when approval came the plan as shown in Exhibit Number Tab 32, resulting from the work of Mr. Walters, was strikingly similar to Exhibit Number the final plan approved by the Planning Board. [45] After the sub‑division was approved, the property was listed for sale with Mr. Ducicworth. Four of the lots have been sold for total of $875,000.00. There are three lots yet to be sold set at prices of $300,000.00, $350,000.00 and $500,000.00 respectively. [46] Before the land was sub‑divided, Ms. Girvan, another realtor, had hinted the property was worth $850,000.00 in bulk sale. [47] With the letter of December 19, 1997, all contact between Mr. Murphy and Mr. Walters re Hell Point came to an end. [48] Was there an oral agreement for payment of fixed commission between the parties? find there was. find there was an oral agreement between the Plaintiff and the Defendant for the payment of fixed commission of 10%. find at the first meeting on December 2, 1996 the parties discussed the sale of the property as bulk sale for which commission of 6% was to be charged. find they discussed the sub‑division of Hell Point and what Mr. Walters' duties would be. If he were to lay out the sub‑division and prepare it for Mr. Becker to get planning approval and sell the property, he was to be paid 10%. find Mr. Walters was not to lay out and prepare this sub‑division in anticipation of getting the property to sell. At that time, both parties knew what Mr. Walters' role was going to be and the difference between the 6% for sale of bulk land and the 10% was to cover the development work by Mr. Walters to lay it out for sub‑division approval with the thought always in mind of keeping that property as prestigious and undisturbed area. To lay this area out to comply with the desire of Mr. Murphy and to meet Planning Board approval was no small matter and required someone with appropriate expertise and concern for the eventual development. 1) find the terms of this agreement were discussed between Mr. Walters and Mr. Murphy on December 2nd, 1996 at Mr. Walters' office at Lunenburg on December 9th, 1996, at the same office with Mr. Murphy, Mr. Walters and Mr. Becker present; out on "Hell Point" between Mr. Walters and Mr. Murphy in April, 1997 and at the home of Mr. Murphy in April, 1997. [49] At that meeting in April, 1997, the 10% and the work Mr. Walters was to perform were all on the table. Mrs.. Murphy raised the amount of 10% and Mr. Walters responded. Mr. Murphy did not comment at this time about the amount of commission. That meeting was an amicable one. The meeting ended with Mr. Murphy wanting to discuss it further with the family after which he was to get back to Mr. Walters. Later that week, Mr. Murphy called Mr. Walters and told him they were going ahead. In my notes, the following comment appears "once told him we were going ahead, he said I'll call Becker and we will go out and lay out lots". [50] At that point, the oral contract was consummated and the work that eventually led to sub‑division approval was commenced. fmd the parties worked closely and amicably together. This continued right up to November 5, 1997. [51] Up to November 5, 1997 Mr. Murphy and his family were pleased with the road and the work Mr. Walters had done. [52] further find Mr. Murphy breached the oral agreement by his letter of December 19, 1997 and by his actions both before and after that date. [53] If there was an oral agreement, what were its terms? find the following were its terms. (a) to develop concept and strategy for the develop- ment, sub‑division and marketing of the land at "Hell Point". (b) to manage and be responsible for the laying out of the sub‑division of the land to bring it within the approval of the Planning Board. (c) to manage and be responsible for the laying out and construction of road running over the land to accommodate the lots in the sub‑division. (d) to meet with the Defendant, his surveyor, accountants and solicitor. (e) to market the land for sale on an exclusive basis. (f) for this work the Plaintiff was to be paid commiss­ion of 10% which work included the preparatory work to allow the surveyor to present it to the Planning Board for approval and the actual sale of the property. Mr. Walters was to be paid upon sale of the land. [55] If there was an oral agreement is such an agreement enforceable by the Plaintiff? [56] In this case, find the Real Estate Brokers Licensing Act has no application because the agreement was made in April, 1997 after this Act was repealed on January 21, 1997. [57] find the Real Estate Trading Act, Chapter 28, 1999 R.S.N.S. applies to this agreement. Section 31 of the Real Estate Trading Act reads: Requirements respecting agreements 31(1) Every agreement entered into by licensed person for the purchase or sale of real estate shall (a) contain an expiry date; and (b) be executed by all parties to the agreement, and the licensed person shall, upon execution, provide true copy of the agreement to each party to the agreement. (2) An agreement is not invalid by reason only that it does not comply with subsection (1) but, where licensed person, acting in bad faith, does not comply, the licensed person may not recover any commission under the agreement with respect to the trade. [58] Section 31(2) provides an agreement is not invalid by reason it does not comply with s. 31(1). It goes on to say "but, where licensed person, acting in bad faith does not comply, the licensed person may not recover any commission under the agreement with respect to the trade". In the converse it is saying if you have an agreement such as here the licensed agent may recover the commission under the agreement, if that person is acting in good faith. find Mr. Walters was licensed agent, was acting in completely good faith and he is entitled to his commission. [59] The next question is does this agreement fall within the terms of the Statute of Frauds, Chapter 442 R.S.N.S. Section reads: 7(a) No action shall be brought (e) upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise, agreement or contract upon which the action is brought, or some memorandum or note thereof, is in writing, signed by the person sought to be charged therewith or by some other person thereunto by him lawfully authorized. R.S., c. 290,s.6." [60] As to the duration of the agreement, the evidence sets forth Mr. Walters said: "I looked at it as long term project. said we shouldn't push it. There was time frame of years. said you need to talk to your accountant. 0ne was sales tax and also his personal tax. told him lets do good job". Mr. Murphy seemed to go along with these comments. [61] As to agreements that falls within and without the Statute of Frauds supra Fridman on The Law of Contract 3rd edition at page 214 say: (iii) Contracts not to be performed within year This is strange category. It might be thought that contracts which bound one person to guarantee another's debt and contracts relating to land were clear instances of the need to establish liability by some form of writing. To extend the Statute to all contracts, whatever their subject‑matter, if they involve longer period than year for their completion, seems an unnecessary extravagance. Perhaps the situation at common law, long since changed, by which the parties to contract (although potentially the best witnesses) were excluded from giving testimony, may explain this inclusion within the Statute of Frauds. Furthermore, the chances of false or perjured evidence, or merely mistaken evidence, when the contract had been made some years before the litigation to which it gave rise, were high (although if the contract were within the Statute it did not matter that the action arose the day after the contract was made, and, if such thing were possible, the case was heard the very next day, that is, while recollection was still fresh and clear). It suffices to say that, perhaps because of the strangeness of the statutory provision, and the dislike of the courts of the technical defence of the statute succeeding where it lacked merit, the decisions reveal peculiar inter­pretation of the phrase "not be be performed within year". To begin with there are clear instances where con‑tract is for more, or, as the case may be, less than year. Thus the contract, from its terms may be incapable of being performed by either party within the year from its making. This is exempli­fied by the old English case of Boydell v. Drummond, which concerned subscription to forthcoming edition of Shakespeare that would have taken longer than 12 months to appear. Or the contract cannot be performed by one of the parties within the year and it does not manifest any intention that the other party should fully perform his side of the bargain within the year. Thus contract for two‑year period under which one party agrees to take orders for, and sell to customers the maximum volume possible of the other party's product was within the Statute. So was contract under which the plaintiff was to pursue training as nurse in the defendant's hospital for two years. So, too, was contract of employment under which the employee's salary was to rise from $700 per annum to $1,000 per annum by annual increases. Another example is provided by contract for perpetual term under which one party was to pay the other $10,000 per year for ten years. 0n the other hand the contract may be intended to be performed and may actually be performed by one party within the year. Thus in Spencer v. Spencer, in which there was promise to convey land in return for promise to support for life, it was held that the contract was one to be performed with‑in the year, as the conveyance would clearly occur within the requisite period; so, too, where the contract is one of service for one year commencing the day after that on which the contract is made. In contradistinction, however, are cases where it is not clear whether the contract is to be performed within or beyond the statutory period. If the contract is for an indefinite period which (according to circumstances that may or may not occur) may or may not be coterminous with the statutory year, then the contract is not within the Statute of Frauds. 0n the other hand, if the contract is so worded as to show distinctly that the parties contemplated the duration of the contract for definite period of more than one year, although it contains an express or implied term by which it may be terminated within the year, then the contract is within the Statute. As Lord Alverstone said in the leading case of Hanau v. Ehrlich, which has been approved and followed in Canada. ...if there is no mention of time, and the time is uncertain, the agreement is not within the Statute... if the time mentioned is more than one year, but there is power to determine, the agreement is within the Statute. In the words of Kerwin J. of the Supreme Court of Canada, the Statute does not apply if it is possible that the provisions can be performed or are not incapable of being performed within year. Thus, where there was contract of employment to last the life of the employee, though the employee could terminate at any time if not satisfied with the salary or bonuses, it was held that the contract, was not within the Statute because it might be wholly performed within year, since the employee might terminate it, or might die (a lugubrious thought which was instrumental in another case involving contract for the support of child who, it was said, might not live for more than one year). As Mackay J.A. said, ... {t}he statute has no reference to cases in which the whole contract may be performed within one year, but there is no definite provision as to its duration, even though it may appear as fact that the performance has extended beyond that time;...where the contract is such that the whole may possibly be performed within year and there is no express stipulation to the contrary, the statute does not apply.. So, too, an agreement to pay stated price for milk from herd of Guernsey cows, in consideration of the owner of the herd taking stock in dairy company, was not within the Statute, despite the vagueness of the period, since the owner might sell the herd within the year, have no milk to deliver, or could die before the year was out. Where one contracting party obliged himself not to do certain thing, no time limit being mentioned, and where one party made promise to many, without mentioning when the marriage was to take place, the Canadian court accepted the principles laid down in Hanau v. Ehrlich, which involved an employ­ment contract for two years that could have been terminated at any time. Similarly, in Boutilier v. Everett, contract of loan was an agreement capable of being performed within year from its making because the borrower was at liberty to pay off the loan at any time; therefore, he could have paid it within year. The Statute did not apply. It would seem, therefore, that, in the absence of some definite stipulation as to time, which undoubtedly decides the issue, and leaves no room for judicial manoeuvres, there is considerable scope for interpretation of contractual terms as to duration or the time of performance, in such way as to provide maximum flexibility and allow the courts to prevent the abuse of the Statute." [62] In Boutilier v. Everett, 1979 40 N.S.R. 2nd 527 (N.S.T.D.) C.J. Cowan said this: "At the commencement of the hearing, the defendant applied for leave to amend the statement of defence, by pleading that the transactions with regard to the three amounts in question came within the terms of s. 6(e) of the Statute of Frauds, R.S.N.S. 1967 c. 290, which provides as follows: No action shall be brought: (e) upon any agreement that it is not to be per‑formed within the space of one year from the making thereof; unless the promise, agreement, or contract upon which the action is brought or some memorandum or note thereof is in writing signed by the person sought to be charged there‑with or by some other person thereunto by him lawfully authorized. Counsel for the plaintiff objected that the application was made too late and that such an application should not be granted at the present time. am of the opinion that the amendment should not be permitted at this late date, but also express the opinion that, even if it were pleaded, the agreements in question were not such as come within the provisions of the statute. As understand the arrangement, it was that loans of cash were made by the plaintiff to the defendant and the defendant agreed to make certain payments. The initial arrangement was that he would pay $300.00 per month and the additional advances were merely added on to the amount originally advanced. The authorities indicate that the statute does not render unenforceable agreements which are capable of being performed within the space of one year from the making. In this case, it appears to me that the agreement between the plaintiff and the defendant was one that was capable of being performed within the year. The defendant was at liberty to pay off the loans at any time. also find that if, as happened, the defendant did not make the monthly payments which he promised to make, the plaintiff was entitled to require payment of the full amount of the advances, less payments on account of principal to date. The loan can, therefore, be called in before one year in the case of default and there was default within the year. therefore find that the section of the Statute of Frauds referred to does not apply in the present case and that, if the amendment were allowed, it would not render unenforceable the agreements in question. [63] In this agreement, it was contemplated for tax reasons suggested by Mr. Walters this agreement could go as long as 5 years but there was nothing preventing it being performed completely within one year. The contract came into being in April, 1997. By November 5, 1997 the road was in and all of Mr. Walters' work was performed save what Mr. Murray and Mr. Becker needed. It remained for Mr. Becker to obtain sub‑division approval which even though took some time could have been done sooner if preference had been given to the project. It is noted the lots already sold had sold very quickly with little or not advertisement. It is noted by Mr. Walters' letter of December 3, 1997 he had already included the advertisement of the land in his catalogue. [64] It is also noted in Mr. Murphy's letter of January 8, 1998 to Ms. Shea he stated they should have some hint of finality by late February. The only reason this agreement could have taken over the year was really for tax purposes which did not seem to overly concern Mr. Murphy at this time. [65] find this oral agreement did not offend the Statutes of Frauds as it was capable of being performed in one year. [66] I therefore find the oral agreement entered into between the Plaintiff and the Defendant was not only valid but enforceable insofar as the commission for 4% of the lands sold by Mr. Duckworth. The 4% represented the development work done by Mr. Walters. [67] Four lots have been sold for total of $875,000.00. The Plaintiff is awarded 4% of $875.000.00 for a sum of $35,000.00. [68] ISSUE #4 Should I have erred in my fmding in the alternative, the Plaintiff is entitled to an award either in a claim for unjust enrichment and/or quantum meruit. [69] In Sorochan v. Sorochan (1986) 29 D.L.R. (4th) the Supreme Court of Canada articulated the three requirements which must be satisfied in order to found an action for unjust enrichment: (1) an enrichment (2) corresponding deprivation and (3) the absence of any juristic reason for the enrichment [70] The Defence concedes the services provided to Mr. Murphy by the Plaintiff were of benefit to him. It is also noted the services done by the Plaintiff were satisfactory to Mr. Murphy. [71] find there was an enrichment to the Plaintiff and corresponding deprivation to the Defendant. The Defendant as agreed obtained benefit from the services of the Plaintiff while the Plaintiff lost all of his effort to build the road and lay out the lots to comply with the Planning Board and yet keep their presence as desired by Mr. Murphy. [72] As to the third condition in Campbell et al vs. Campbell, Borins J.A. for the 0ntario Court of Appeal set forth what was required to satisfy such requirement. At Page 794 he stated: "Thus, what is at the heart of the third requirement is the reasonable expectation of the parties, and whether it would be just and fair to the parties considering all of the relevant circumstances, to permit the recipient of the benefit to retain it without compensation to those who provided it." [73] The benefit conferred by the Plaintiff to the Defendant falls within the third requirement. The Plaintiffs services were both requested and encouraged by the Defendant. It would be unfair and unjust to permit the Defendant to retain this benefit without compensation to the Plaintiff. Issue #5 The only question is the quantum of damages. The Defendant is of the opinion this award should not be great. The Plaintiff counsel argues that the Plaintiff is entitled to the 4% agreed to in the oral contract. [75] The Plaintiffs services not only benefited the Defendant for the land already sold but the three lots still unsold on which the Defendant has set price of $1,500,000.00. He may not obtain that price but it does give value the Defendant believes is the worth of the remaining land. These values are in line with the land already sold. [76] The services of the Plaintiff greatly enriched the value of the Defendant's property. Here the task of Mr. Walters was not only to lay out this land to get sub‑division approval, but to keep the property prestigious and as an undisturbed area. As said earlier, to lay this area out to comply with the desire of Mr. Murphy and to meet Planning Board approval was no small matter and required someone with appropriate expertise and concern for the eventual development. You cannot just count hours. You also have to consider the expertise of Mr. Walters. [77] This expertise was sought after when Mr. Murphy first approached Mr. Walters. Mr. Walters did his work and never was there any complaint except over the question of the commission and that did not come from Mr. Murphy personally to Mr. Walters before November 13, 1997. All the Plaintiffs work has been completed on the development. It is not usual to set a commission fee in an unjust enrichment case but here the 4% was an amount both parties agreed for the development work. In my opinion, it is better to place figure based on what the parties thought the work was worth rather than place figure at random when the Court has no real amount upon which to set value. It is hard to quantify Mr. Walters' expertise in this area considering the work he had to do of taking all the lots and configuring them to meet Planning Board approval. [78] All of the land has not been sold but the Plaintiff's services have enriched same as well as it enriched the land already sold. [79] When one considers the Defendant purchased this land for somewhat over $200,000.00 for which he has already received $875,000.00 with three valuable lots remaining, it can be seen the Plaintiff's work greatly enriched its value. [80] When consider under the contract the Plaintiff is entitled to 4% of the land already sold and the fact there are remaining three lots which the Defendant considers are worth over one million dollars, am of the opinion to award less than the $35,000.00 for unjust enrichment would be inappropriate and unjust. [81] On the claim for unjust enrichment, set the amount at $35,000.00. [82] set the rate for pre judgment interest at 4.4% per annum. [83] Any determination on costs will be reserved as indicated would hear the parties at later date re the dismissal of the claim against Mrs. Murphy. encourage the parties to settle the issue of costs, otherwise ask they each submit short briefs after which will make determination. DATED this 9th day of March, 2001.

The plaintiff and defendant entered into an oral contract for the development and sale of land. The plaintiff brought an action to recover its commission on the contract. Plaintiff awarded commission of 4% as agreed to by the terms of the oral contract; in the alternative, the plaintiff is entitled to an award for unjust enrichment to compensate for the work done. Although the agreement could have went on longer, there was nothing preventing it from being performed completely within one year and thus the oral agreement was not only valid, but also enforceable. An award for unjust enrichment would be calculated using the commission rate agreed to by the parties.

6_2001nssc105.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 313 Date: 2009 07 24 Docket: Q.B.C. No. 71 of 2009 Judicial Centre: Prince Albert BETWEEN: LARRY MARKWART and CITY OF PRINCE ALBERT Counsel: L. Markwart representing himself N. Fisher for the respondent DECISION ROTHERY J. July 24, 2009 [1] This appeal is brought by the registered owner of the property, Larry Markwart (“Markwart”), pursuant to s. 329(4) of The Cities Act, S.S. 2002, c.C-11.1, as a result of the preliminary decision of the quasi-judicial board rendered July 9, 2007, and the final decision of the quasi-judicial board rendered December 15, 2008, confirming the demolition order made by the City of Prince Albert (the “City”), with certain conditions. Although the demolition order is dated November 18, 2004, legal proceedings have extended the life of the building called the Minto Apartments, situated at 51 9th Street East, Prince Albert. Following the decision of Klebuc J. (as he then was) on March 23, 2005 and cited at 2005 SKQB 143 (CanLII), Markwart appealed to the Saskatchewan Court of Appeal. In decision cited at 2006 SKCA 122 (CanLII), the Saskatchewan Court of Appeal remitted the matter back to the City for new appeal under s. 329(1) of The Cities Act. The Saskatchewan Court of Appeal found that the City was unreasonable when it refused to grant Markwart an adjournment to prepare his appeal which had been permitted under s. 329(1) of the Cities Act. The Saskatchewan Court of Appeal also found that Markwart did not receive complete disclosure of the case he had to meet. At para. 34 of that decision, Lane J.A. stated: Further, although there may be little doubt the appellants were aware of the issues and the many complaints given the prior extensive meetings, it does not follow they knew the case they had to meet as the earlier complaints had not led to demolition order. They ought to have received copy of the report on which the Council decision was based. They did not know what the inspector was going to report to Council. They did not know how the case was going to be presented to Council. The report may or may not have fairly represented the discussions in the prior meetings. The Chambers judge failed to consider the importance of the failure of the City to supply copy of the report to the applicants prior to the appeal to Council. The appellants could not properly respond without knowing how the case was to be presented to Council. [2] In accordance with s. 329(1)(a) of The Cities Act, the quasi-judicial board (the “board”) was established, consisting of five members of city council who were not on city council as of November 29, 2004, being the date of the original appeal of the November 18, 2004 demolition order. The board heard submissions on behalf of Markwart’s legal counsel and on behalf of the City with respect to preliminary matters. At p. of its preliminary decision, the board stated the following on the question of bias: In regards to the bias question, Mr. Loewen [Markwart’s legal counsel] acknowledges that these five (5) persons who were also expected to sit on the Appeal proper, at this juncture, did not raise any concerns of bias for Mr. Markwart, either actual or perceived. [3] The board ruled that both Markwart and the City were entitled, in advance, to evidence that both parties considered relevant at the appeal to the board. The board stated at p. of its preliminary decision: The Board understands that it must re-hear Mr. Markwart’s appeal for relief against Mr. Halayka’s Order of November 18, 2004 afresh. In other words the Board is being asked to review the fairness and reasonableness of Mr. Halayka’s Order in relation to the relative evidence that was presented or may have been relied upon or presented at the time. Having regard to comments from the Court of Appeal that Mr. Markwart should have been given the opportunity to put his best case forward, there would appear to be clear inference that all evidence and information which may have been or could have been presented to City Council originally would need to be considered as relevant to this Hearing. It is therefore the opinion of the Board that it would be unfair to restrict either Mr. Markwart or the City from presenting evidence on this question in the context of the timeframe leading up to the date of the original Appeal. This in our view does not necessarily end the questions which this Board may be asked to consider. After answering the primary question, if the Board were to be persuaded that the Nuisance Abatement Order was not justified, there are consequential implications which the Board may need to address. By the same token if the Board determines that the Order was justified at the time, the inherent question remains whether the Order continues to be justified. In either case the Board is of the view that it would be appropriate to afford both parties the opportunity to advance whatever evidence they consider relevant to these secondary questions including any relevant evidence which may be post original appeal. Therefore the Board does not intend to restrict either party in putting forward evidence which they consider relevant on these questions. [4] Further, the board ruled that if legal counsel sought disclosure of police files, court application was required, as the board had no authority to compel production of documents. The board stated at p. of its preliminary decision: Mr. Loewen stated to the Board that if such Police information was to be considered by the Board, he would then be asking that the Board order the Police Service to disclose any confidential files relating to the criminal investigation of the Minto Apartments. The Board appreciates the interest of Mr. Markwart to scrutinize those calls which prompted the Police attendances, however it is unable to compel the production of the Police files in question. The reason for this is that The Cities Act under which the Board is empowered, does not provide specific powers of compelling documentation in the same way as the Police Commission has powers to compel production of documents as spelled out in The Police Act. Without the power to compel, the Board does not believe it is in position to decide on the disclosure of the police files. It would therefore be incumbent on the Markwarts to pursue such other avenues including application to the Court for subpoena or such other Order directing production of documents. Presumably the Court would entertain such an application in order to accommodate the needs of procedural fairness and due process based on the merits, recognizing that if the police file information is ordered to be produced, this Board will ultimately have the responsibility of deciding what weight is to be given to such evidence, if any. [5] The appeal to the board was heard on November 17 and 18, 2008. At that hearing, Markwart represented himself. The board made certain findings about the demolition order of November 18, 2004 against the Minto Apartments, and confirmed the demolition order. It also suspended implementation of the demolition order to allow Markwart to remedy the problems. The reasons of the board are as follows: The Board finds that the Building/Fire Inspector at the time of issuing the Order properly determined there to be nuisance relating to the use and activities surrounding the building known as the Minto Apartments, which adversely affected the amenities of the neighbourhood including the safety, health and welfare of the people both resident and non-resident. The Board finds that the history of non-compliance, the intolerable sub-standard living conditions endured by the tenants, and the absence of pro-active approach by Larry Markwart to responsibly manage the safety and security of tenants and visitors, have all lent themselves to the nuisance complained of. The Board finds that the issuance of the Order to Vacate and Demolish the building by the Building/Fire Inspector has had the effect of abating the nuisance complained of. The Board has determined the Order to Vacate and to Demolish at the time of issuance was appropriate and continues to be appropriate. Therefore, the Order to Vacate and Demolish dated November 18th, 2004 is hereby confirmed and shall remain in place subject to the following provisions, specifically, the Board has decided in the present circumstances to suspend the enforcement of the Order for period of time to allow the following: a) Larry Markwart will be given the opportunity for period of six (6) months from the date of this decision, to bring forward written proposal to the Board committing to the operation of the building under qualified professional property management firm with proven record and acting at arm’s length to Mr. Markwart. This written proposal must be supported by detailed plan prepared by the professional property management firm for the operation and management of the building which provides for, but is not limited to monitoring the building, on site security and controlled access and egress systems. This proposal must also be accompanied by structural assessment report, current to the present date and signed by professional engineer licensed to consult on structural engineering in Saskatchewan, that: i) verifies the structural integrity of the building; ii) provides recommendations to address any Building Code and Public Health deficiencies required to bring the building up to standard and iii) presents timetable for completion of these deficiencies; it being understood that such written proposal shall be presented to the Board, within the time prescribed, to consider acceptance and approval which approval, if given, shall be subject to Larry Markwart entering into form of an agreement with The City of Prince Albert which provides for the adherence to and compliance with the laws, regulations and codes applicable to the use and operation of the building (the “Compliance Agreement”), and which specifically includes: i) covenants of Larry Markwart which require him to acknowledge and agree that the ownership, operation or management of the property shall be undertaken in manner strictly compliant with the applicable Federal and Provincial laws, regulations and codes, as well as the applicable City of Prince Albert bylaws specifically including any bylaws which relate to the amenities of the neighborhood and vicinity, the health, safety and welfare of the people living in the neighborhood and within the building, and the applicable housing, zoning and maintenance standards for the building; ii) covenant given by Larry Markwart that he will require the property management firm, as condition of any management contract, to undertake and agree to manage the property in manner strictly compliant with the aforementioned legislation; and iii) default provision allowing the City, anytime during the first five (5) year period from the date of signing the Compliance Agreement to immediately terminate the agreement upon breach of any of these covenants. If termination is invoked by the City, the Order to vacate and Demolish the building shall become immediately enforceable. If after five (5) years the Compliance Agreement continues to be in good standing, the Order to Vacate and Demolish dated November 18th, 2004, shall be repealed and set aside; b) Larry Markwart will also be given the opportunity for period of twelve (12) months from the date of this decision to sell the property to an arm’s length third party by which time Mr. Markwart will be required to notify the Board with appropriate particulars of the sale for the Board’s approval to be accompanied by copy of the sale agreement which discloses the provisions of this decision relative to the use of the property. In the event the Board approves sale to an arms length third party purchaser, the Order to Vacate and Demolish dated November 18th, 2004, shall be repealed and set aside; If Larry Markwart elects not to pursue either opportunity as outlined above or fails to secure the Board’s acceptance and approval within the timeframes prescribed, and subject to any other Order this Board may be asked to make, the Order to Vacate and Demolish shall be confirmed and become immediately enforceable. The Nuisance Abatement Order dated November 18, 2004, is hereby modified in the manner described above. [6] As result of the board’s decision to confirm the demolition order, Markwart retained Peter V. Abrametz to launch an appeal to the Court of Queen’s Bench in accordance with s.329(4) and (5) of The Cities Act, which states: (4) decision of the local appeal board or council on an appeal pursuant to subsection (1) may be appealed to the court on question of law or jurisdiction only within 30 days after the date the decision is made. (5) On an appeal pursuant to subsection (4), the court may: (a) confirm, modify or repeal the order or decision appealed from; or (b) order the matter to be returned to the local appeal board or council to be dealt with in light of the court’s decision on the question of law or jurisdiction. [7] Mr. Abrametz filed brief of law prior to this appeal being heard on May 26, 2009. At the commencement of the proceedings, Mr. Abrametz sought leave of the court to withdraw as Markwart’s counsel because Markwart wanted to present oral argument himself. Markwart confirmed this was his position and stated that he was ready to proceed with the appeal to the Court of Queen’s Bench without any adjournment. [8] As stated by s. 329(4) of The Cities Act, the board’s decision may only be appealed on question of law or jurisdiction. This court’s role under The Cities Act is analogous to that under The Residential Tenancies Act, 2006. This court’s role is supervisory one with respect to the law and the board’s jurisdiction. Deference must be shown to the board. See: Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask. R. 114 (C.A.), and particularly, paragraphs 18 and 20. [9] The issues on appeal gleaned from Mr. Abrametz’ brief of law are:1. Whether the board erred in law by considering material which had not been before city council in the first appeal set for November 29, 2004;2. Whether the board committed a jurisdictional error by failing to disclose evidence to Markwart prior to its considering the appeal;3. Whether the board was biased against the less fortunate citizens of Prince Albert; 4. Whether the board lacked jurisdiction by both confirming the demolition order and modifying the demolition order. [10] From Markwart’s oral argument, and distilling his own view of the facts, the issues seem to be: 1. Whether the board was biased against Markwart; 2. Whether the board erred in not concluding that the police allowed the nuisance from criminal activity to escalate so that the City would have reason to demolish the building. [11] The first ground of appeal is the question of the evidence before the board. The book of documents presented to the board consisted of the demolition order, and number of documents including the affidavit by Peter Halayka, the building inspector, sworn January 14, 2005, the affidavit of Staff Sergeant John Verge of the Prince Albert Police Services, sworn January 14, 2005 and the affidavit of Deputy Police Chief, Troy Cooper, sworn January 14, 2005. The affidavits address the issue of the original demolition order. The only relevant material filed subsequent to the original appeal to the City Council in November, 2004, is letter from the bylaw manager of the Prince Albert Police Service to Markwart, dated February 22, 2007, enclosing reports pertaining to February 9, 2007 inspection of the Minto Apartments and certain continuing building deficiencies. The board has complied with the direction of the Saskatchewan Court of Appeal to ensure all disclosure has been made to Markwart of relevant evidence that would be considered by the board. In this way, the board has ensured that Markwart knew the case he had to meet. No error of law has been committed. [12] The second issue pertains to Markwart’s allegation that evidence considered by the board was not disclosed to Markwart prior to the hearing before the board. Markwart filed an affidavit in this appeal, sworn March 20, 2009, swearing that the memorandum from Police Chief Dale McFee to the Board of Police Commissioners dated November 28, 2003 was never sent to him. He alleges that he could not deal with the issues raised in that memorandum. This memorandum outlined the unusually high number of police responses to complaints from the Minto Apartments. [13] The evidence before the board includes the same memorandum attached as Exhibit “C” to the affidavit of Troy Cooper, sworn January 14, 2005. Deputy Chief Cooper stated in this affidavit that the concerns addressed in the Memorandum to the Board of Police Commissioners were relayed to Markwart in meetings with Markwart on March 11, 2004 and April 6, 2004, several months prior to the demolition order of November 18, 2004. Thus, there is no merit to this ground of appeal. [14] Markwart alleges other police information was not disclosed to him prior to the appeal before the board. The board’s preliminary decision directed Markwart to apply to the court if he considered certain police files relevant to the hearing before the board. Markwart did not do so. It is too late to raise such allegation now. There is no denial of natural justice with respect to police information. [15] The third issue is whether the board was biased against the less fortunate citizens of Prince Albert. By way of background, the tenants of the Minto Apartments were people, in Markwart’s description, who were terminally addicted to drugs or alcohol, mentally challenged, or suffered from emotional or mental disorders. They were vulnerable people. Markwart argues that because the board confirmed the demolition of this apartment block, it was bias against these people. There is no evidence to support such an allegation. Oppositely, the evidence supports the board’s conclusion that the situation in the Minto Apartments constituted a nuisance relating to the use and activities surrounding the building, including the safety, health and welfare of the residents and surrounding neighbours. This is nuisance as defined by The Nuisance Abatement Bylaw, as previously decided by this court in the reasons of Klebuc J. (as he then was), at para. 26 of the decision cited at 2005 SKQB 143 (CanLII). [16] Markwart alleges that the board was biased against him. Markwart (through his then legal counsel) previously stated that the choice of five city councillors who had not been city councillors in 2004 caused no bias, either actual or perceived. Markwart has led no evidence to allege bias since that admission made to the board prior to its preliminary decision. [17] Markwart alleges that the police allowed criminal activity to escalate so that the City would have reason to grant the demolition order. There is no evidence to support such an allegation. This ground of appeal is dismissed. [18] Markwart’s intentions may well have been good when he decided to rent his apartment block to disadvantaged persons and those with addictions. But, to operate the apartment block in normal manner with so many people with so many needs and afflictions resulted in failed experiment. It led to situation that could not be controlled, not even by Markwart himself. The evidence is that he had sufficient notice to rectify the situation. He did not do so. The board’s finding that the demolition order was appropriate is reasonable finding for the board to have made. [19] The final ground of appeal advanced by Mr. Abrametz is that the board lacked jurisdiction when it both confirmed and modified the demolition order. In the board’s decision (quoted at para. herein), it confirmed the demolition order. At the end of its decision, the board stated the “nuisance abatement order dated November 18, 2004, is hereby modified in the manner described above.” It is submitted that the board cannot both confirm and modify the order appealed from; it must do one or the other. [20] reading of the decision shows that the board confirmed the demolition order, but it suspended enforcement of the order for six months to allow Markwart to remedy the underlying problems. Section 329(3) of The Cities Act may be interpreted to allow for what the board did. Furthermore, it gave Markwart an opportunity to remedy the problem. There is no merit to the contention that the board lacked jurisdiction to decide as it did. [21] Markwart complains that to bring the Minto Apartments to standard that complies with all regulatory authorities would now be too expensive. However, even disadvantaged persons are entitled to live in rental units that comply with all safety standards. [22] In summary, this appeal must be dismissed on all grounds. The board’s order is hereby confirmed. Counsel for the City advised that it would be appropriate to extend the suspension of enforcement of the demolition order to period of six months from the date of this court’s decision. Therefore Markwart is granted a period of six months from July 24, 2009 to bring forth his written proposal as outlined in the board’s decision. J. A. R. ROTHERY

The appellant appeals a demolition order pursuant to s. 329(4) of The Cities Act issued against his property. Issues on appeal was whether the board erred by considering material which had not been before city council, whether the board committed a jurisdictional error by failing to disclose evidence to the appellant prior to considering the appeal, and whether the board was biased against the appellant. HELD: The appeal is dismissed on all grounds. The board's order is confirmed. Counsel for the City advised that it would be appropriate to extend the suspension of enforcement of the demolition order to a period of 6 months from the date of this court order. The applicant is granted a 6 month period to remedy the problems identified. 1) The board complied with the directions of the Saskatchewan Court of Appeal to ensure all disclosure had been made to the appellant of relevant evidence that would be considered by the board. The board has ensured that the appellant knew the case he had to meet. No error of law has been committed. 2) The appellant had all the information considered by the board disclosed to him. 3) There is no evidence of bias. Oppositely, the evidence supports the board's conclusion that the situation in the building constituted a nuisance related to the activities around the building, including the safety of the residents and surrounding neighbours. There is no evidence of bias against the appellant personally.

9_2009skqb313.txt

M. Gordon QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 216 Date: 2016 06 21 Docket: DIV 757 of 2015 Judicial Centre: Saskatoon BETWEEN: ALISON STEPHANIE HERCHAK McCORRISTON and JAMES ROBERT McCORRISTON Counsel: James M. Streeton for the petitioner wife Alan W. Rankine for the respondent husband FIAT GOEBEL J. June 21, 2016 Introduction [1] The wife applies for interim spousal support and an order providing her with an interim distribution of property in the amount of $25,000. [2] The parties were involved in spousal relationship for almost 10 years. They had no children together although the husband has children from prior relationship for whom he pays support. During the relationship the wife suffered from health problems which resulted in her becoming disabled and unable to continue her employment. During this same time period the husband secured full-time employment with CN. [3] The parties separated in July 2015. The wife currently supports herself from two sources of disability benefits for total income in the range of $20,000 per year. She has lived frugally and has kept her expenses at minimum. Since separation she has resided with extended family members, most recently her mother, with the result that she has no costs for housing. Although she deposes that this is not sustainable long-term, she has not provided any evidence respecting her future plans or whether she has applied for subsidized housing. [4] The husband’s total reported income in 2015 was $74,174. He has one minor child in his care and continues to pay $1,100 in child support each month to his former spouse. He claims that he has no monies remaining after his basic expenses are paid. Interim Spousal Support [5] The wife seeks an order in the amount of $2,000 per month to equalize the gross incomes of the parties. In so doing she suggests that the Spousal Support Advisory Guidelines: Carol Rogerson Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008), should not apply in these circumstances. Further, in proposing this sum she makes no adjustment for the husband’s child support obligations nor the fact that he is supporting minor child in his care. [6] The husband does not take issue with the wife’s entitlement to interim support but states that she has failed to demonstrate need for support at this time. Specifically, he points out that her sworn financial statement shows modest surplus, which is enhanced given additional evidence that 94% of the cost of her medical expenses is covered. The husband also argues that he is not able to afford support payment at this time. It is noted that his calculations of affordability rely solely on net income figures making no allowance for the fact that spousal support is deductible payment. [7] In Hein Hein, 2004 SKQB 277 (CanLII) [Hein], Sandomirsky J. addressed the issue of interim spousal support claims by saying, at para. 32: 32 At an interim stage it is often quoted that the paramount consideration at an early stage of the breakdown is “need and ability to pay.” The statutes do not prescribe separate considerations, factors or objectives for interim spousal support as opposed to final determination of spousal support. The paramountcy of need and ability is reflection that an interim order is made before family property division is completed and also anticipates that the attainment of economic self‑sufficiency and overcoming the economic hardship of the marriage breakdown are yet to be achieved. The primary purpose of interim spousal support is to allocate family income in fair and equitable manner during this transition period. [8] In Antonishyn Boucher, 2011 SKQB 147 (CanLII), 373 Sask 154, he expanded on his comments in Hein and provided comprehensive overview of the principles to be considered on an interim application for spousal support as follows: 38 Case law has established that at an interim stage, what may be “reasonable” may differ from what may be “reasonable” at the final or variation stage. The case law emphasizes that need and means take on greater significance because: (i) the interim order usually precedes the division of family property; (ii) one of the spouses may be in control of the income generating family assets and have access thereto, whereas the other spouse may not have equivalent or any such access; (iii) section 5(1) of The Family Maintenance Act expressly emphasizes, “need and capability to pay”; (iv) section of The Family Maintenance Act expressly mandates that, “the court shall take into account the needs, means and economic circumstances of the parties”; (v) similarly, s. 15.2(4) of the Divorce Act mandates that the court shall take into account “the conditions, means, needs and other circumstances of each spouse”; (vi) spouse is not required to consume one’s capital, savings or other family property when there is ability to reallocate family income to overcome disparities in the incomes of the spouses; (vii) attainment of economic self sufficiency [sic] and overcoming economic hardship of the marriage breakdown are yet to be achieved. See: Frass v. Frass 2006 SKQB 189 (CanLII); [2006] S.J. No. 287 (QL) at para. 12 (Sask. Q.B.) Sandomirsky J. states: [12] At this interim stage, rely upon need and ability to pay, largely circumscribed by the difference in the party’s respective incomes, $73,000.00 versus $29,000.00, rounded. also rely upon the principles of spousal support enunciated so carefully in the Supreme Court of Canada’s decision of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813, wherein Madam Justice L’Heureux-Dubé focussed upon the economic consequences of the marriage and marriage breakdown as they impact upon each spouse. Where there is a significant disparity in the incomes of each of the former spouses in the immediate post‑separation period, and such economic disparity defines a corresponding disparity in the affordability of lifestyles of the former spouses, spousal support is the appropriate mechanism to diminish those disparities. The amount of spousal support should provide both of the former spouses with an interim standard of living which more closely relates to that of each other and to the standard of living experienced by both before their separation. This principle does not, however, demand equal household incomes as is so often misunderstood. See: Hein v. Hein, 2004 SKQB 277 (CanLII); [2004] S.J. No. 458 (QL) (Sask. Q.B.) at para. 32; See: Marcotte v. Marcotte 2008 SKQB 223 (CanLII); (2008), 315 Sask. R. 280 (Sask. Q.B.); See: Skomorowski v. Bernier, 2009 SKQB 55 (CanLII); [2009] S.J. No. 125 (QL) (Sask. Q.B.); See: Cey v. Cey, 2004 SKQB 493 (CanLII); [2004] S.J. No. 767 (QL) (Sask. Q.B.); See: Messer v. Messer (1997), 1997 CanLII 9794 (SK CA), 33 R.F.L. (4th) 426; (1997), 163 Sask. R. 101 (Sask. C.A.); (viii) at this interim stage, spousal support application does not involve property analysis per se, but does constitute an income analysis: See: Van De Sype v. Riviere, 2009 SKQB 269 (CanLII); (2009), 336 Sask. R. 284 (Sask. Q.B.); (ix) equalization of income is not the goal, but adjusting disparity between incomes, and therefore lifestyles, is to be considered: Moge v. Moge, supra. See: Frass v. Frass, supra; (x) remember Moge v. Moge, supra, wherein L’Heureux Dubé [sic] J. states that the new Divorce Act, (1985) is move away from strict needs/means analysis to broader based analysis of factors (s. 15.2(4) and objectives (s. 15.2(6) of spousal support. Further, in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420 McLachlin J., as she was, concedes at para. 43 that, “need alone may be enough”. 39 Only when entitlement is established does the court proceed to the second step of the analysis being quantum and duration. An interim spousal support order is normally not compensatory and addresses imminent economic hardship in the immediate post‑separation period. [Emphasis in the original] [9] In this instance, there is no dispute that the wife is entitled to interim support. In addition, there is no dispute that there is a significant disparity in incomes and lifestyles between the spouses. Interim spousal support is an appropriate mechanism to diminish those disparities. In addition, the husband can arrange for an immediate tax adjustment from his employer which will increase his net monthly income and allow him to absorb spousal support obligation into his monthly cash flow. [10] On the other hand, the analysis must reflect an adjustment for the after tax cost of his child support payment as well as his obligation to support the minor child in his care. Child support obligations take precedence over spousal support. [11] Having considered all of these matters, I direct that the husband pay to the wife the sum of $500 per month in interim spousal support commencing on June 1, 2016 and continuing on the first of each month until further agreement or court order. This amount shall be tax deductible to the husband and taxable to the wife. Interim Distribution of Property [12] The wife asks for an interim distribution in the sum of $25,000 and, recognizing that there is no liquid funds available, proposes that the husband be ordered to take out loan to facilitate the payment. The husband opposes the application and asks that it be dismissed. [13] The court has authority to order an interim distribution pursuant to s. 26(2) of The Family Property Act, SS 1997, F-6.3. [14] Conley Conley (1985), 1985 CanLII 2599 (SK QB), 44 Sask 76, (QB) [Conley], is the leading case in Saskatchewan on such an application. The Conley factors were succinctly summarized by Ryan-Froslie J. (as she was then) in Geransky Geransky, 2012 SKQB 218 (CanLII), and have been repeatedly cited and applied, as follows: (i) Were the assets for distribution acquired during the marriage? (ii) Do the net assets for distribution far exceed the amount of the interim distribution requested? (iii) Will there be some considerable period of time before the matter can be brought to trial? (iv) Who has possession and control of the assets? (v) Can funds be made available for the purpose of an interim distribution either from cash on hand or by way of loans? (vi) Can the distribution be made without prejudicial tax implications? (vii) Can the distribution be made without serious prejudicial effect to the family assets? (viii) Does the applicant need the distribution to meet capital demands? [15] These factors do not constitute an exhaustive list with the most important consideration being whether the net assets for distribution “far exceed” the amount of the interim distribution being sought: Waldherr Waldherr (1992), 1992 CanLII 8120 (SK QB), 106 Sask 140 (QB). See also: Savoy Savoy, 2014 SKQB 293 (CanLII), 456 Sask 16; Schaffel Schaffel, 2008 SKQB 91 (CanLII), 313 Sask 203; Gray Breeze, 2011 SKQB 193 (CanLII); Shurvell Shurvell, 2012 SKQB 380 (CanLII), 406 Sask 86. [16] In this instance there is some dispute between the parties as to whether they have any beneficial interest in the house they were residing in at the date of separation (which appears to be legally owned by third party). They concede that this issue cannot be resolved on an interim motion. [17] The other assets listed in their property statements are mainly household goods and locked-in retirement funds, portion of which are subject to an exemption claim. Even if they could be accessed on an interim basis, and there is no evidence that this is the case, doing so would attract significant tax consequences. [18] This is not a situation where the net assets far exceed the amount of the distribution claimed. In addition, ultimately the distribution may have to be by way of spousal rollover from the locked-in retirement funds as there appear to be no liquid assets available to the husband. [19] For these and other reasons, an order requiring the husband to take out loan to pay an interim distribution is not justified on the evidence. The wife’s application for an interim distribution is dismissed. [20] Given the mixed success, there shall be no order as to costs. J. G.V. GOEBEL

HELD: The application for interim spousal support was granted and the respondent ordered to pay $500 per month. The order was made to diminish the disparity between the income and lifestyles of the parties. The application for interim distribution of property was dismissed. The court found that this was not a situation where the net assets exceeded the amount of the distribution claimed. As the respondent had no liquid assets, the distribution of family property might eventually involve a spousal rollover from the pension funds to the petitioner.

9_2016skqb216.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 156 Date: 20081203 Between: Docket: 1445 Her Majesty the Queen and Christopher Vern Jobb Coram: Richards, Smith and Hunter JJ.A. Counsel: W. Dean Sinclair for the Crown Brenda R. Freriks for the Respondent Appeal: From: 2007 SKPC 129 (CanLII) Heard: October 20, 2008 Disposition: Appeal allowed Written Reasons: December 3, 2008 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Hunter Smith J.A. [1] This is an appeal by the Crown from an order of a Provincial Court Judge declaring that the respondent is unfit to stand trial. The Crown submits that the trial judge misapprehended the evidence, misstated the evidence, applied the wrong legal test for fitness, applied the wrong burden of proof and made finding that was unreasonable and not supported by the evidence. [2] The respondent was charged with total of 29 offences committed between March 25, 2006 and August 26, 2007. Most of these were summary conviction offences, in general arising out of multiple failures to comply with various bail conditions including: breach of curfew (five charges), failing to attend school (two charges), failing to reside in designated residence, failing to not possess, keep or consume alcohol (four charges) and failing to keep the peace and be of good behaviour (four charges). He was also charged by information with various offences in relation to drinking, driving, leaving the scene of an accident and possession of stolen vehicle and two charges of obstruction of peace officer by providing false name. The Crown is appealing the finding of unfitness to stand trial on the summary conviction offences to the Court of Queen’s Bench. That appeal has not yet been heard. [3] In addition, the respondent was charged with two indictable offences: two thefts of property of value not exceeding $5,000 arising out of two separate incidents in March and September, 2006. The appeal to this Court relates to the finding that the respondent is unfit to stand trial in relation to these offences. [4] The respondent is 22 years old. He suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse/dependence disorder. He has been diagnosed as mildly mentally retarded. One assessment puts him at grade seven level for reading single words and spelling (a level above the level predicted by his overall IQ) and at grade three to four level in arithmetic. He has deficits in both visual and verbal memory that are greater than one would predict on the basis of his IQ alone. He is easily led. He is considered incapable of handling the responsibilities that would enable him to live independently and it is considered he will always need protected living environment and sheltered employment. [5] Mr. Jobb spent most of his childhood in foster care, as his mother suffered from substance abuse. At the age of 16 he began residing in the foster home of Fran Werezak of Saskatoon, who has provided significant support for him. Unfortunately, as he has grown up, Mr. Jobb has consistently run away from the protected environments sought for him and has begun to abuse alcohol and drugs. [6] He was charged with some property offences in 2002 and, at that time, was found unfit to stand trial. As result, he was, at the time of the current charges, still under the supervision of the Provincial Review Board. [7] The parties filed an agreed statement of facts which summarized the facts of all the offences. The account that follows is intended as summary of these allegations, as set out in the various informations. Mr. Jobb has not, of course, been convicted in relation to any of these allegations, and this summary is not intended to displace the presumption of innocence to which he remains entitled. It does, however, represent the information before the Court in relation to the relevant allegations. [8] The first theft is alleged to have taken place when Mr. Jobb was helping woman move her personal belongings. He picked up the woman’s purse, went into the bathroom and removed $21 in cash and cell phone, and then left the house with the stolen items. He was arrested approximately three weeks later. He falsely identified himself to Saskatoon Police officer before he was arrested. At this time, the respondent was remanded to the Saskatchewan Hospital for an assessment. [9] At the request of the Review Board, Dr. O. Obikoya, psychiatrist prepared report, dated, June 26, 2006 for the Court. Dr. Obikoya concluded that Mr. Jobb was fit to stand trial. He diagnosed him as suffering from dependence disorder in relation to marihuana use and mild mental retardation (marked “query” in this report), and noted that he had no delusions and no perceptual disturbances, was cognitively fully alert and conscious and his attention, concentration, short term and long term memory were all normal. He described Mr. Jobb as answering questions relevantly and spontaneously, albeit hesitantly and said that his speech was slow and low tone, but normal in volume. He concluded that Mr. Jobb was fit to stand trial because Mr. Jobb was able to tell him the nature and circumstances of the charges against him (then, theft and obstruction), and expressed regret. He was able to describe the functions of the court and its key players and, in Dr. Obikoya’s opinion, could instruct his lawyer and defend himself. [10] Mr. Jobb was then released on bail. He repeatedly violated the bail order. He was arrested for shoplifting merchandise from Safeway store and failed to appear in court in September, 2006. He was then arrested on September 26, 2006, in relation to complaint about person who appeared to be stealing items from cars. He admitted stealing CD case and key chain from car. He was under the influence of alcohol. He was charged with three counts of breaching bail conditions and one count of theft. [11] He was again released from custody. In November, 2006, he violated bail by running away from school and failing to abide by curfew. He was arrested on December 15, at which time he was carrying an open bottle of beer. He gave false name and date of birth to the police officer. [12] After release, in January, 2007, he was found by the police in an intoxicated condition. He was charged with violating bail condition and released again. In February he was arrested, and then released, for violating his curfew. In April, he violated condition requiring him to live in designated residence, but was again released. [13] At this time, the Court ordered new psychiatric assessment, by Dr. Robin Menzies, psychiatrist. Dr. Menzies’ report was dated July 25, 2007. He was of the opinion that Mr. Jobb was not fit to stand trial. As the opinion of Dr. Menzies is central to the judgment from which the appeal is taken, will return to it in more detail below. [14] In July and early August Mr. Jobb again violated curfew and was found by the police in highly intoxicated condition, resulting in two new charges of violation of bail conditions. He was released from custody. [15] On August 26, 2007, he drove stolen automobile while impaired. He hit two other vehicles and then abandoned the stolen vehicle and fled the scene on foot. When he was arrested, his blood alcohol level was measured to be 110 and 100 mgs. per cent. He remained in custody until the fitness hearing on November 1, 2007. [16] At the fitness hearing, the reports of both Dr. Obikoya and Dr. Menzies were filed as exhibits. Counsel for Mr. Jobb called Dr. Menzies as witness. The Crown did not call Dr. Obikoya to testify. The hearing judge relied primarily on the report and testimony of Dr. Menzies, noting that the report of Dr. Obikoya had been prepared year earlier and that there were aspects of it that might have been clarified had he testified. In particular, she noted that, while Dr. Menzies advised that Mr. Jobb had been diagnosed with fetal alcohol spectrum disorder and attention deficit disorder, Dr. Obikoya had not mentioned either disorder in his report. Additionally, Dr. Obikoya’s report of Mr. Jobb’s understanding of the charges against him was prepared when there were only two charges of relatively recent vintage. Dr. Obikoya’s description of Mr. Jobb’s understanding of the trial process and relevant participants revealed confusion of names, on the part of Mr. Jobb, between his previous lawyer and previous judge, raising the question of whether he confused only the names of these individuals or their roles in the trial process. Finally, Dr. Obikoya referred to some other psychiatric evaluations without providing any elaboration. [17] In the result, the hearing judge accepted the opinion of Dr. Menzies. It is, in large part, her interpretation and reliance on this report that is at issue before us. The applicable law [18] These provisions of the Criminal Code are governing: s. 2… “unfit to stand trial” means unable on account of mental disorder to conduct defence at any stage of the proceedings before verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings (b) understand the possible consequences of the proceedings, or (c) communicate with counsel; 672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial. 672.23 (1) Where the court has reasonable grounds, at any state of the proceedings before verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on the application of the accused or the prosecutor, that the issue of fitness of the accused be tried. (2) An accused or prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial. [19] These provisions make it clear that fitness to stand trial is presumed and that in this case the burden was on the accused to prove, on the balance of probabilities, that he was unfit to stand trial. [20] The policy reasons behind this presumption are described by the Alberta Court of Appeal in R. v. C. (L.S.), 2003 ABCA 105 (CanLII); 13 C.R. (6th) 390 as follows: There are strong interests, both public and personal, in an accused being fit to proceed to trial. The public interest is in ensuring that persons who are accused of committing crimes are brought to justice. The personal interests of the accused are twofold. First, person accused of crime has right to his “day in court” and to make full answer and defence to the charge. Second, person who is declared unfit to stand trial risks being hospitalized indefinitely until considered “fit”. Depending upon the extent of the person’s condition, such incarceration could theoretically be longer than any sentence the accused might have received if tried and convicted. (At para. 12.) [21] In keeping with this policy, the courts have applied test of “limited cognitive capacity” for determining fitness. This test was first set out by the Ontario Court of Appeal in R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 and was adopted by the Supreme Court of Canada in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.R. 914. The Court in Taylor made it clear that the limited cognitive capacity test as it pertains to the requirement of an ability to communicate with counsel requires only that an accused be capable of recounting the facts of the alleged crimes. Limited cognitive capacity does not require analytic ability or, indeed, the need for the accused to appreciate his own best interest. In short, these authorities establish very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code, and, in particular, with the right of the accused to make full answer and defence to the allegations with which he is charged. [22] In R. v. Taylor, while psychiatric examination found that the appellant, former lawyer, was “technically fit” to stand trial in the sense that he was cognizantly aware of the charges against him, the officers of the court, the possible pleas available to him and that he was articulate and aware of the possible consequences of his trial, the nature of oath and the meaning of perjury, he was diagnosed as suffering from paranoid schizophrenia and thus unable to distinguish reality from fantasy. The psychiatrist concluded that he would therefore be unable to instruct counsel in manner that would be in his best interests and that he would, in fact, resist the assistance of counsel altogether. [23] It was conceded by the Crown that the appellant met the first two criteria found in subsections (a) and (b) of the definition in that he fully understood the nature of the proceedings and its possible consequences. Thus, the only question was the test to be applied in determining the accused’s ability to communicate with counsel. It was argued that the appellant could not instruct counsel because of his inability to reason on higher cognitive levels, because of his lack of abstraction, and because of being “locked in his delusional system.” [24] Relying on R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129 (Ont. C.A.) and R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202 (Ont. C.A.), the Court held that the trial judge had erred in adopting test that required the accused to be capable of making rational decisions beneficial to him in his relationship with counsel. These passages from the judgment of the Court by Lacourciere J.A. are instructive: 48 In R. v. Trecroce, supra, during an appeal against conviction for second degree murder, the accused discharged his counsel and the question arose whether the appellant was competent to do so and to appoint other counsel. Martin J.A., delivering the judgment of the court, stated at p. 216: On the resumption of the hearing both Dr. Fleming and Dr. Coulthard gave evidence on the issue of the appellant's fitness to instruct counsel. They were in general agreement that the appellant suffers from mental disorder. They were of the opinion, however, that he understood the nature of the proceedings and the functions of the persons involved in them. He knew what the issues were and the possible outcome of the proceedings. The appellant, in their opinion, was able to follow the evidence generally, although he might misinterpret it. They were of the opinion that the appellant was capable of instructing counsel although he might disagree with counsel as to how the case should be conducted, and might not act with good judgment. The appellant did not want to be seen as mentally ill, and was opposed to the issue of insanity being considered by the Court. We concluded on the basis of the evidence of Dr. Fleming and Dr. Coulthard that the appellant was competent to instruct counsel: see Reference Re R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129, 14 O.R. (2d) 212. 49 The respondent concedes that the "limited cognitive capacity" test is correct in Canadian criminal law. However, the respondent submits that the law should make allowances for cases such as the present where the accused's mental disorder is so potent and extensive that it cannot be said that the person is capable of following the evidence, communicating rationally with counsel, or giving evidence which is responsive to the case for the Crown. Therefore, the respondent submits that the trial judge was correct in distinguishing R. v. Trecroce, supra, on the basis that the accused in the case at bar suffered from delusions so pervasive and irrational that he was "unable to perceive his own best interests and how those interests should be addressed in the course of trial". 50 To determine whether the test should be modified as suggested by the respondent, one must remain cognizant of the rationale for the fitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in meaningful way. At the same time, one must consider that principles of fundamental justice require that trial come to final determination without undue delay. The adoption of too high threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion. 51 In addition, adopting high threshold of fitness, including "best interests" component, derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses. In R. v. Swain, supra at p. 970 S.C.R., p. 504 C.C.C., Lamer C.J.C., for the majority, stressed the importance of the accused's s. right to liberty which allows him to control his own defence. An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved. 52 The "limited cognitive capacity" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have trial within reasonable time. 53 In asking the court to require that the accused be able to act in his own best interests, the respondent is asking this court to adopt the higher threshold "analytic capacity" test for determining the accused's fitness to stand trial. This test has clearly been rejected by the courts. 54 Having rejected higher threshold for determining the accused's ability to instruct counsel, the real question to be determined in this case is whether the learned trial judge erred in holding that, although the appellant can communicate with counsel to the extent that he can speak to counsel, and do so in an articulate manner, however ... his delusions are so pervasive and irrational that he is ... not merely capable of disagreeing with counsel with whom he might instruct as to how the case should be conducted, but unable to perceive his own best interests and how those interests should be addressed in the conduct of trial. 55 In my opinion, the learned trial judge erred in adopting the "analytic capacity" test which establishes too high threshold for finding the accused fit to stand trial by requiring that the accused be capable of making rational decisions beneficial to him. (pp. 566-67) [25] R. v. Whittle concerned the admissibility of statements to the police by an accused person who was alleged to suffer from mental incapacity, and whether he had sufficient mental capacity to effectively waive his right to counsel. Sopinka J. derived the applicable test from the test for fitness to stand trial, adopting the interpretation of that test in Taylor. Particularly relevant to the issues before us are these passages, in which Sopinka J. pointed out that the threshold for fitness to stand trial is lower than that for criminal responsibility: The significance of this issue is placed in context by considering the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence. [Italics added.] The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of mental disorder and focuses on the ability to instruct counsel and conduct defence. That test which was developed under the common law is now codified in s. of the Code …It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551, the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At page 567, Lacourcière J.A., on behalf of the court, stated: The "limited cognitive capacity" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have trial within reasonable time. Accordingly, provided the accused possesses this limited capacity, it is not prerequisite that he or she be capable of exercising analytical reasoning in making choice to accept the advice of counsel or in coming to decision that best serves her interests. (at pp. 932-34) [26] The limited cognitive capacity test for fitness to stand trial was also confirmed in this Court in R. v. Peepeetch, 2003 SKCA 76 (CanLII); (2004), 177 C.C.C. (3d) 37. The evidence of Dr. Menzies [27] In his written report Dr. Menzies reported that Mr. Jobb was able to tell him that the charges he faced were “breaches and thefts.” He said that the theft charges involved taking satellite radio from resident at care home, cell phone, CD case and something from Safeway. He said he was drunk on each of these occasions. When asked about the obstruction charge he replied that he was probably drunk at the time. He appreciated that he faced charges and could face penalty if convicted. He explained that guilty plea meant that “you did it, you know you did it” and not guilty plea meant “you didn’t do it.” He said that the judge “decides what to do to you” and that his lawyer “defends” him. When asked to elaborate he replied “She plans out my work.” He said of the prosecutor, “They are the worst people to have…they try to keep you in there [jail].” He said he planned to plead guilty to the theft charges and would discuss the others with his lawyer, whom he properly named. [28] The written report concluded: Jobb’s intellectual and cognitive deficiencies, inter alia, impact on his fitness to stand trial. While he seems to appreciate the meaning of plea and possesses rudimentary knowledge of the role of the officers of the court, probably thanks to repeated coaching by Fran Werzak, his ability to follow the proceedings is less clear. The fact that he maintains he can follow and understand the proceedings may speak more for his wish to be regarded as normal than it does for his ability to concentrate and comprehend the process. cannot be satisfied that he can follow the proceedings and accordingly consider that he is unfit to stand trial. [29] Dr. Menzies’ testimony at trial elaborated on this opinion. It was clear that, in his opinion, the principal problem posed by Mr. Jobb’s cognitive limitations, insofar as his fitness to stand trial was concerned, was related to his attention deficit disorder—his inability to concentrate and his extreme distractibility. It was on this basis that Dr. Menzies concluded that he was uncertain that Mr. Jobb would be able to “follow the proceedings” sufficiently to instruct counsel. [30] Dr. Menzies frankly and fairly conceded that he was not sure of the legal test for ability to instruct counsel. (Transcript, p. 18, ll. 21-25) These passages from his testimony fairly represent his opinion on this important point. The one of the areas that that find is more difficult to reach the determination on is there is the individual’s ability to instruct counsel, because I’m not sure what the official definition is, but suspect it’s it’s not it dynamic process that the individual’s in court listening to what’s being said. During break or during the proceedings the individual may want to talk to counsel and say add some comments or whatever. And think in that area is where he likely is compromised because of his mental disorders. That it’s not clear how much of what’s going on he’s taking in, and therefore how much part of the process he is. Most of us have the choice whether we want to tune in or tune out, but think someone like Christopher, mean, he still has that choice, but even if he chooses to tune in his capabilities are limited and what he gets out of tuning in is probably well, is obviously lot less than the next person. So that’s where see the the big problem lying. [Transcript p. 16, l. 21 p. 17, l. 15] Dr. Menzies, is it your are you of the opinion that Christopher would be able to communicate with his lawyer, his counsel and adequately instruct them? think it’s question of degree. mean, there’s there’s no doubt he can communicate, he can think his his recollection of things isn’t terribly strong, so depending when when it is or what event he’s talking about, when it happened, whether it was last week or year ago, so think basically he can communicate, but it’s question of what quality of instruction. Because if he’s not fully there for reasons that aren’t his fault, during the process think that’s the the area where he he falls down and where it’s he’s not, in my opinion, fit to stand trial. [Transcript p. 19, l. 23 p. 20, l. 11] Thank you, Dr. Menzies. Another area I’d like you to comment upon is your opinion as to Christopher’s ability to give assistance to his counsel, in in legal proceedings. For example, if if trial were to happen and the normal trial process then ensues, what would Christopher’s ability be to assist counsel in that process? Well, don’t think he would have absolutely no ability. think he would certainly have some ability, but it would be not the degree of ability that somebody who had an IQ of hundred, say, was able to provide. think he has for instance if talked about the charges he faced, he was very vague and, you know, talked about the numbers, he said well, too many. And put it all down to being intoxicated on either drugs or alcohol. Sort of vague stuff, but mean, think as say, with you put the police report in front of him and say, well, does this sound like what happened and and this sort of thing? It would just be longer process and don’t think you can take for granted that just because he said, yeah, know that, that that necessarily is the case. [p. 23, l. 24 p. 24, l. 17] Thank you. Getting back to some direct questions in terms of Christopher’s ability to deal with the court process is that would you be able to offer an opinion as to Christopher’s ability to be examined by prosecutor or myself or by myself, cross-examination and those sorts of things? Well, he could certainly be examined. And as say, think if his deficiencies, if you like, are taken into consideration in terms of the sort of questions or the time he’s given to to respond or whether he understands what he you know, what the question is, then certainly he can he can do those things to to some degree. guess the issue is the degree of these things, you know. He’s obviously not he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s just he’s got problems which make all those areas more difficult for him to to deal with. [Transcript p. 28, l. 11 p. 29, l. 3] Right. Well, in terms of conceptualizing these these concepts, Dr. Menzies, would it be fair to say that Christopher would be viewing the truth and lies, good and bad, black and white, much more specifically than somebody without his particular deficits? Well, think someone like Christopher, there may be sort of less less grey area there. But he he knows the difference between telling lie and telling the truth and what’s right and what’s wrong. But it may be more of black and white thing for him than it would be the various nuances of that may may escape him. [Transcript p. 32, l. 20 p. 33, l. 5] Okay. So specifically as to your concern as to instructing counsel, do you think there’s some component analysis that Mr. Jobb is not able to do then in that situation? think his his analytical abilities are compromised. You see, in way it may be presumptuous of me to bring into question his ability to instruct counsel because counsel could say, well, I’ve talked with him and can. So, you know and would say, that that’s fine, you know, it’s just that I’m putting things into context here and saying that, you know, if if counsel agrees, and say, you know, can’t it’s not working, we’re not understanding each other properly, then I’ve given the possible explanation for that. But wouldn’t be saying just because think it might be problem if counsel says, well, actually we we got on pretty well, we you know, feel quite comfortable. think, well, that’s fine, because this isn’t a, you know, black and white thing. It’s obviously grey area. [Transcript p. 56, l. 12 p. 57, l. 6] abilities. But he can as give you the examples as to the dates of some of those offences, he can certainly recount some element of the facts? Certainly. And would you say that had he been pressed for details he might have in fact, been able to provide greater details? Yeah. That wasn’t the focus of your interview of him? No, it was more the kind of process, you know, because think lot of individuals don’t know the details of what they’re charged with, especially if it was year ago and two years ago. And think you made comment that his and it’s in the report, that his response to your question about the charges was too much or too many? Yeah. It seemed bit of an odd response? Yeah. Well, bit unusual. If told you there was 27 offences before the Court, would that would that response seem actually appropriate? Well, it was accurate, guess. Yeah. So, again, that might be—even lay person might refer to that type of query Yeah. [Transcript p. 58, l. 15 p. 59, l. 16] [31] When asked about the conclusion expressed in his written report, on cross-examination, Dr. Menzies said this: Well, think think couldn’t think what probably couldn’t satisfy myself that he was, you know, able to handle the proceedings and and the ramifications. It wasn’t to say that, hey, he he definitely can’t or he definitely can, it was, you know, I’m just can’t satisfy myself that he that he can necessarily. And having got to that stage and the it seemed the next logical thing was to say based on that can’t see him as being fit to stand trial. [Transcript p. 66, ll. 9-17] The judgment below [32] It is clear that both Dr. Menzies and the trial judge were satisfied, at the end of the day, that Mr. Jobb met the first two criteria for fitness to stand trial in that he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between guilty and not guilty plea. The focus of the decision was, therefore, on the question of whether and to what extent Mr. Jobb had the capacity to communicate with counsel. [33] In her decision, the trial judge noted, accurately, that Dr. Menzies felt that “while Mr. Jobb’s responses indicated basic knowledge of number of the issues addressed in fitness, he expressed concern about the degree to which Mr. Jobb could take-in the information conveyed in court and provide counsel with instruction in response” (para. 16). She added, When asked if Mr. Jobb could adequately instruct counsel during trial or make informed or prudent choices between guilty plea or trial, Dr. Menzies replied that it’s question of degree and his ability to instruct counsel depends on the event about which Mr. Jobb is speaking and the circumstances in which he is being asked to provide instruction. [34] The trial judge correctly instructed herself on the applicable provisions of the Criminal Code, including those setting out the presumption of fitness and that the burden of proof is on the party who asserts that the accused is unfit to stand trial to establish unfitness on the balance of probabilities. She also referred to number of cases including both Whittle and Taylor, citing part of the passages quoted above, and acknowledged that the test is limited cognitive capacity. [35] She concluded as follows: 40 In conclusion, accept the opinion evidence of Dr. Menzies. Mr. Jobb is unable to comprehend the course of the proceedings so as to assist his counsel in making proper defence. Specifically, he is not able to communicate with his counsel regarding the facts of his charges in such way that counsel may prepare defence, nor can he participate in meaningful way or assist his counsel during the course of trial or other proceedings so that his counsel may pursue defence on his behalf. He does not have the ability to testify as to the facts of the charges against him given the challenges he faces with recollection, comprehension, and attentiveness. The applicant, Mr. Jobb, bears the burden of proving on balance of probabilities that he is unfit to stand trial. find that he has discharged that burden. Accordingly, find Mr. Jobb to be unfit to stand trial on the charges before this Court. [36] The Crown argues that the learned trial judge came to number of findings that were unsupported in the evidence she relied upon, that she did not give effect to the legal presumption of fitness and burden of proof on the respondent, and that she imposed too stringent test in concluding that Mr. Jobb lacked the capacity to instruct counsel. [37] I am in respectful agreement that, on the whole of the judgment, it is apparent that the trial judge applied too stringent a test in concluding that Mr. Jobb was unfit to stand trial, and that, when the proper test is applied, it is apparent that Mr. Jobb had the capacity to instruct counsel within the meaning of the Code. [38] On the question of factual findings, the trial judge indicated that “he [Dr. Menzies] did not think that Mr. Jobb would be able to provide instruction during the trial process due in part to his being very distractable,” (para. 17) and that he was “firmly of the view” that Mr. Jobb could not follow court proceedings sufficiently to instruct counsel (para. 37). With respect, these findings do not accord with the evidence. In fact, Dr. Menzies’ consistent testimony was that he was did not know whether or to what extent Mr. Jobb could “follow” the trial, due to Mr. Jobb’s distractibility and natural tendency he might have to claim to understand even if he did not. Dr. Menzies also made it clear that he believed this to be question of degree, and that he did not know what the legal test for ability to instruct counsel was. Clearly, the focus of his concern, and the focus of concern for the trial judge, was the extent to which Mr. Jobb’s cognitive disability might limit his ability to give on-going instructions to counsel in relation to and in response to the trial proceedings, during what the trial judge described as “the dynamic process of court proceedings” (para. 37). [39] With respect, this concern does not accord with the limited cognitive capacity test. According to that test, the court’s assessment of an accused’s ability to conduct defence and to communicate with and instruct counsel is limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such way that counsel can then properly present defence. The trial judge quoted passages from Taylor and Peepeetch that enunciated this test, and from remark by Sopinka J. in Whittle to the effect that it was not necessary that the accused possess “analytic ability” to meet this test. Nonetheless, she did not, in my respectful view, base her decision on an application of this test. Rather, her focus was on the question of whether “the accused can participate in the proceedings or assist counsel in his/her defence” (at para. 39 of the judgment). She quoted and relied upon discussion in R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) which required that the accused be able to “communicate with counsel, converse with counsel rationally or make critical decisions on counsel’s advice.” [40] The approach of the trial judge is reflected in these paragraphs from her judgment: 37 Dr. Menzies discussed Christopher Jobb's ability to adequately communicate with his counsel about the facts of his charges, and specifically questioned his ability to recall events. He was also firmly of the view that Mr. Jobb would not be able to follow court proceedings sufficiently so as to be able to provide instructions to counsel. This difficulty lies not only in limits upon comprehension but also in his distractability. The doctor suggested that the only way to be sure that he was taking in the information conveyed in courtroom, would be to take frequent breaks to check for comprehension. did not understand him to be suggesting that this be done, so much as to express the extent of the challenges that Mr. Jobb faces and perhaps the shortness of his attention span. He repeatedly cautioned against assuming understanding, based on superficial statements or assurances from Mr. Jobb. He could not envisage Mr. Jobb, except perhaps in very controlled setting, being able to converse with counsel about the proceedings and not at all during the dynamic process of court proceedings. 38 Crown counsel was concerned that Dr. Menzies might have been setting the standard for fitness too high, by expecting that, in communicating with counsel, Mr. Jobb required analytical reasoning ability. did not understand his evidence in this way. As reviewed the authorities discussed above, was satisfied that Dr. Menzies' evidence goes to the very heart of what it means to communicate with counsel. He was of the view that Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system. His impairments are such that he has difficulty recalling events, experiences difficulty comprehending what is being said, and is not sufficiently attentive to take in much of what he comprehends. These impairments impact upon his ability to converse with his counsel about the facts, so as to adequately prepare defence, and during the course of proceedings. This does not involve analytic reasoning. [41] Some remark must be made about the description of the evidence of Dr. Menzies in these paragraphs. While Dr. Menzies did, at one point in his testimony, comment that “his recollection of things isn’t terribly strong” (transcript, p. 19, l. 23- p. 20, l. 11), in general, he indicated only that it was difficult to know to what extent Mr. Jobb remembered details (partially because Dr. Menzies had not questioned him about the details of his charges) and that it was, as for anyone, question of degree and how long ago events had occurred. See: transcript p. 14, l. 20-p. 15, l. 10; p. 28, l. 17-p. 29 l. (“he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s…got problems which make all those areas more difficult for him to…deal with”); p. 44, l. 17-p. 46, l. (his interview, in the summer of 2007, reflected “fair recall” for events of March September of 2006); and p. 58, l. 15-p. 59, l. 11 (“he can certainly recount some element of the facts.”) [42] There was, with respect, no evidence that Mr. Jobb could not comprehend what was said, and the testimony of Dr. Menzies was overwhelmingly to the contrary. He did not express the view that “Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system” although he did express his suspicion that Mr. Jobb’s understanding had, perhaps, been enhanced by “coaching” from his foster mother and his own previous experiences with the justice system. [43] In her concluding paragraph the trial judge found that Mr. Jobb is unable to recount the facts of his offences “in such way that counsel may prepare defence”. There was, with respect, no evidence to support this conclusion and the evidence was to the contrary—that Mr. Jobb was able to recount the facts of his offences. This was evidence in Dr. Obikoya’s report as well as in the passages from Dr. Menzies’ testimony referred to above. That Mr. Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of trial” is not, with respect, an accurate application of the limited cognitive capacity test, which requires only that he be able to recount the facts of the offences with which he is charged to his counsel. The conclusion, in any case, that Mr. Jobb did not have the ability to testify as to the facts of the charges against him is contrary to the evidence of Dr. Menzies. See, again, transcript p. 28, l. 11 and following. [44] It is my conclusion that the appeal must be allowed, the verdict of unfitness to stand trial set aside and that there be a new trial on the offences which are the subject of this appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of December, A.D. 2008. “Smith J.A.” concur. “Richards J.A.” RICHARDS J.A. concur. “Smith J.A.” for HUNTER J.A.

The Crown appeals an order from Provincial Court declaring that the accused is unfit to stand trial. The accused was charged with 29 offences arising out of failures to comply with multiple bail conditions. He was also charged with two indictable thefts. He is 22 years old and suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse. He was diagnosed as mildly mentally retarded and is considered incapable of handling the responsibilities that would enable him to live independently and will always need a protected living environment and sheltered employment. He was found unfit to stand trial on some previous property offences and is still under the supervision of the Provincial Review Board. The trial judge was satisfied that the accused met the first two criteria for fitness to stand trial û he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between a guilty and not guilty plea. The focus of the decision was whether the accused had the capacity to communicate with counsel. The judge found that the accused would not be able to provide instruction to counsel during the trial process due in part to the fact that he is very distractable and could not sufficiently follow court proceedings to instruct counsel. HELD: Appeal allowed. The verdict of unfit to stand trial is set aside and a new trial ordered. The trial judge applied too stringent a test on concluding that the accused was unfit to stand trial and when the proper test is applied, it is apparent that the accused has the capacity to instruct counsel within the meaning of the Code. The trial judge's concern about the accused's distractable nature does not accord with the limited cognitive capacity test. The Courts have applied a test of 'limited cognitive capacity' for determining fitness. This test requires that, with respect to communicating to counsel, the accused is only required to be capable of recounting the fact of the alleged crimes. Limited cognitive capacity does not require analytic ability or the need for the accused to appreciate his own best interests. The authorities establish a very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code and the right of the accused to make full answer and defence.

6_2008skca156.txt

J. Q.B. A.D. 1994 No. 1531 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GARY SEMENCHUCK and CHRISTIAN RUHR and SASKATCHEWAN GOVERNMENT INSURANCE DEFENDANTS Michael T. Megaw for the plaintiff Michele T. Klebuc-Simes for the defendants JUDGMENT DAWSON J. August 9, 1996 This is a claim for damages to the plaintiff's leasedautomobile arising out of an accident on May 11, 1993. The action has been abandoned as against the defendant Ruhr, and is continued by the plaintiff against the insurer, Saskatchewan Government Insurance. FACTS On May 11, 1993, vehicle (hereinafter referred to as the BMW) leased to Gary Semenchuck (the "plaintiff"), was struck from behind by vehicle owned and operated by the defendant, Christian Ruhr. Mr. Ruhr was solely liable for the accident. The BMW was damaged as result of the automobile accident. The BMW was leased to the plaintiff from Crestview Chrysler Dodge Ltd. ("Crestview") pursuant to standard lease agreement. Pursuant to the terms of the lease agreement, the vehicle was to be registered in the name of Crestview. The certificate of registration for the BMW was issued to Crestview. The plaintiff was listed as the "secondary name" on the registration. After the accident, the plaintiff took the BMW to Saskatchewan Government Insurance ("SGI") Claims Centre and an SGI adjuster appraised the damage to the BMW. The plaintiff then took the vehicle to Woodcrest Motors Inc. ("Woodcrest") for repairs. Woodcrest is the BMW dealership affiliated with Crestview. The vehicle was ultimately repaired by the Crestview automobile repair shop, with the parts being purchased from Woodcrest. During the course of repairing the vehicle, Crestview discovered damage to the BMW's exhaust system which had not been assessed by SGI. Crestview contacted SGI and roving SGI appraiser attended to the autobody shop and reappraised the BMW. The appraiser determined that the entire exhaust system required replacement. SGI reassessed the claim to include damages for the replacement of the exhaust system. The actual replacement cost of the exhaust system was $2,518.66. However, SGI deducted from the replacement cost, 20% for depreciation or "betterment". The 20% deduction for depreciation amounted to $503.73. After the damage to the vehicle was reassessed, the Crestview repair shop completed the repairs to the exhaust system. Neither SGI, Woodcrest nor Crestview advised the plaintiff before the repairs were undertaken that 20% was being deducted for depreciation. The plaintiff was not aware of the 20% deduction for depreciation until he attended to Woodcrest to pick up the vehicle. The repairs were complete at that time. The manager of the Crestview repair shop signed the "certification of repairs", authorizing SGI to pay the cost of repairs to the repairer. This document is normally signed by the registered owner (or owner's agent) of the vehicle. SGI paid the Crestview repair shop $2,014.93 for the repairs. This left the $503.73 (the amount deducted for depreciation) owing to the Crestview repair shop for the repairs. Crestview billed the plaintiff for this amount and the plaintiff paid the $503.73 to Crestview. The plaintiff brings this actionfor reimbursement of the $503.73 deducted for depreciation. The plaintiff argues that SGI elected to repair or replace theexhaust system under statutory condition 8(4) of s. 39 of TheAutomobile Accident Insurance Act, R.S.S. 1978, c. A-35, asam. (the "Act"). The plaintiff argues that SGI, having elected to repair, is responsible for the entire repair and is not entitled to deduction for depreciation. SGI takes the position that as Crestview was the registered owner of the vehicle the plaintiff is not entitled to bring this action as he is not the "insured" within the meaning of the Act. Further, SGI takes the position that Crestview authorized the repairs and acknowledged the 20% depreciation deduction, and that it did so as the registered owner. SGI denies that it elected to repair or replace the exhaust system within the meaning of statutory condition 8(4). SGI states that if the plaintiff paid the $503.73 to Crestview for the depreciation, he did so under his private lease contract with Crestview, for which SGI cannot be held responsible. In addition, SGI argues that it is entitled to deduct for depreciation in any event. 1. Did SGI elect to repair or replace the BMW under statutory condition 8(4) of s. 39 of the Act? 2. Is SGI estopped from claiming that the plaintiff is responsible for the depreciation? 3. Is depreciation to be deducted under Part III of the 4. Does the plaintiff, Gary Semenchuck, as the lessee of vehicle registered to Crestview have cause of action against SGI under the terms of Part III of the Act? STATUTE The relevant portions of the Act are: In this Act: (f) "comprehensive insurance" means the obligation of the insurer pursuant to Part III to pay insurance money to an insured in the event of loss of or damage to vehicle; (p) "insured" includes: (ii) person to whom insurance money is payable pursuant to Part III (q) "insurer" means Saskatchewan Government Insurance 37 In this Part "insured" means person to whom insurance money is payable in the event of loss of or damage to vehicle resulting from one of the perils mentioned in section 38. 38(1) Subject to this Act, an owner's certificate shall further insure the person named therein in the amounts hereinafter specified against direct and accidental loss of or damage to the vehicle designated therein, including its equipment, occurring in Canada, or in the United States of America, or upon vessel plying between ports thereof, from any peril. 39 Comprehensive insurance in respect of any vehicle shall be subject to the following statutory conditions: 8(1) The insurer is not liable beyond the lesser of: (a) the actual cash value of the vehicle or any part or item of equipment of the vehicle, as the case may be, at the time of the loss or damage, with proper deduction for depreciation; and (b) the maximum value of the vehicle or any part or item of equipment of the vehicle, as the case may be, fixed by the regulations. (2) The actual cash value shall in no event exceed what it would cost to repair or replace the vehicle or any part or item of equipment of the vehicle, as the case may be, with material of like kind and quality. (4) Instead of making payment in accordance with subsection (1), the insurer may, within reasonable time after receipt of the proofs of loss, elect to: (a) repair or rebuild; or (b) replace with other property of like kind and quality; the property damaged or lost. (5) Subsection (4) of this statutory condition does not apply where there has been an appraisal in accordance with statutory condition 9. 10 Neither the insurer nor the insured shall be deemed to have waived any term or condition of this Part by any act relating to the appraisal or to the delivery and completion of proofs of loss, or to the investigation or adjustment of the 77 No term or condition of this Act shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by an officer of the insurer. 1. Did SGI elect to repair or replace the BMW under statutory condition 8(4) of s. 39 of the Act? Statutory condition 8(1) of s. 39 of the Act outlines the extent of SGI's liability. Statutory condition 8(1) provides that SGI is not liable beyond the lesser of the actual cash value of the exhaust system before the accident (with proper deduction for depreciation) and the maximum value of the exhaust system as fixed by regulations. By statutory condition 8(2), the actual cash value of the exhaust system is not to exceed the cost to repair or replace the exhaust system. To this point, the statutory scheme is quite clear. MacLeod J., in Niefer v. Saskatchewan Government Insurance and Magnuson (1983), 1983 CanLII 2032 (SK QB), 22 Sask. R. 246 (Q.B.), concluded at p. 249 that statutory condition 8(1): [I]dentifies the limit of the insurer's liability for the damage. It is measurement of the plaintiff's benefit and the defendant's obligation. However, the clarity of this scheme is clouded by statutory condition 8(4) which adds an additional element to the statutory limits placed on the liability of the insurer. Statutory condition 8(4) states that SGI, instead of making payment under 8(1), (that is payment for the cash value of the exhaust system) may elect to repair or replace the vehicle with property of like kind and quality. The plaintiff herein argues that an election under statutory condition 8(4) amounts to an irrevocable decision to repair the vehicle, regardless of the cost of repairs. The plaintiff further argues that SGI has elected to repair the BMW, and is therefore liable for the entire cost of the repair, even if it exceeds the limit under statutory condition A. Election in General An examination of the definition of "election" indicates that an election is, at minimum, unfettered choosing between two or more alternative and mutually exclusive things or courses of action. For instance, Canadian Law Dictionary (Toronto: Barron's, 1983) defines election at p. 73, in part, as follows: Election The exercise of choice by an unrestrained will to take or do one thing or another. The obligation conferred upon person to choose between two inconsistent or alternative rights or claims. Cooper v. Canadian Northern Ontario Ry. Co. (1924), 55 O.L.R. 256 (S.C.). In case law, the legal definition or explanation of an election often relates to specific topic such as an accused's right to elect the mode of trial or plaintiff's right to elect remedy. For example, Lord Blackburn in Scarf v. Jardine (1882), App. Cas. 345 (H.L.) explained the principle of election with regard to remedies as follows at pp. 360 and 361: The principle, take it, running through all the cases as to what is an election is this, that where party in his own mind has thought that he would choose one of two remedies, even though he has written it down on memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election. [Emphasis added] Lord Blackburn's words were adopted by Martin L.J. Adm. in the Canadian case Dagsland v. SS. "Catala", 1927 CanLII 377 (FC), [1927] D.L.R. 426 at 430 (Ex. Ct.). Also see North West Electric Company Limited and Rosen v. Switzerland General Insurance Company, Saskatchewan Mutual Insurance Company and Zurich Insurance Company, 1976 CanLII 927 (SK QB), [1976] W.W.R. 446 at 454 (Sask. Q.B.). In insurance law, the definition of an "election" has received its own treatment. B. Election under Insurance Law i. Election to Reinstate In the instant case, the plaintiff argues that the insurer has elected to repair the damaged motor vehicle pursuant to statutory condition 8(4) of s. 39 of the Act. In the language of insurance law, the plaintiff is arguing that the insurer has "elected to reinstate". E.R.H. Ivamy in General Principles of Insurance Law, 4th ed. (London: Butterworths, 1979), comments as follows on reinstatement under an insurance contract at pp. 486 and 487: The policy, however, usually contains in the appropriate branches of insurance, e.g. fire, burglary, plate glass, steam boilers and motor vehicle insurance, "reinstatement clause", which confers upon the insurers the option of making good the loss by reinstatement. The contract contained in the policy, nevertheless, remains contract [sic] pay sum of money, subject to the right of the insurers, if they think fit, to substitute different mode of discharging their liability. The clause is intended to benefit the insurers and to protect them from liability to pay the full pecuniary value of the loss, if the loss can be more cheaply made good otherwise. Hence, the assured cannot take advantage of the clause and insist upon reinstatement if the insurers do not elect to reinstate; nor on the other hand, can he prevent them from reinstating if they have elected to do so. [Emphasis added; footnotes omitted] Reinstatement clauses are included in insurance contracts for the benefit of the insurer. The benefit to the insurer is that reinstatement clause provides the insurer with an option to choose the least expensive means of complying with the insurance policy. The insurer's decision to either pay the insured or reinstate is the "election". Once the election is made, the insurer is bound by its election to either pay or reinstate. Indeed, Cannon J., for the majority in Maher v. Lumbermen's Mutual Casualty Company et al., 1932 CanLII 349 (SCC), [1932] D.L.R. 593 (S.C.C.), describes the effect of an election to reinstate as follows at pp. 600 and 601: The parties agreed that the insured would be indemnified, either in money or by reinstatement of the car. Respondents duly made the option to repair and the question is whether or not they have carried out this undertaking. Their sole liability would be for damages resulting from the breach of the second contract which superseded the policy. In Brown v. Royal Ins. Co., El. El. 853, 120 E.R. 1131, Lord Campbell, C.J., said (pp. 858-9):- "The case stands as if the policy had been simply to reinstate the premises in case of fire; because, where contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he has elected to do." The exercise of this option to repair the automobile, which the appellant was bound to accept, converted the original contract into new one on the part of the insurer to repair the car and restore it to its former condition. The contract to pay the loss was thus superseded by the contract to repair. The insured no longer had right of action under the policy; his sole remedy is upon the new or substituted contract. The court in North West Electric Company Limited came to the same conclusion wherein Disbery J. said at p. 456: The obligation of insurers to repair is not merely to lay out the insurance money in reinstatement as far as it will go, but to reinstate completely: MacGillivray, s. 1814. Thus if the gamble fails and the cost of reinstatement turns out to be greater than the actual cash value of the damage and loss, the insurers must pay the full cost without any contribution from the insured because by their election the insurance contract no longer remained contract to pay sum of money but became contract to reinstate the property insured: Ivamy, p. 407. Accordingly, the defendants having elected to repair the fire damage to the building and its contents, the monetary limitations of liability set forth in the policy for such losses, the actual cash value of the property damaged and destroyed, the co-insurance provisions and the amounts spent by the insurers have no relevance whatsoever with respect to such losses. The policy having in effect become contract to repair the defendants are liable to the plaintiff in damages for breach of contract for items of repair that have not been done or done negligently: Ivamy, p. 409; MacGillivray, ss. 1818-1820; Laverty, p. 314. Thus, the insurer's election to reinstate unilaterally creates new contract between the insurer and the insured. Once created, the insurer may not unilaterally revoke the new contract to reinstate. The issue next to be examined is how an insurer makes its election. E.R.H. Ivamy in General Principles of Insurance Law, discusses the method of election, at p. 488): The insurers may expressly notify the assured that they intend to exercise their option to reinstate the property insured, in which case no difficulty arises. At the same time, an express election is not necessary. There may be binding election by conduct, where the insurers have so conducted themselves as to mislead the assured into thinking that they intend to reinstate. Since, however, it would be unreasonable to expect that the insurers would elect to reinstate unless and until they had all the materials before them requisite for their guidence [sic] in deciding which of the two courses open to them would be more advantageous, no act by them for the purpose of ascertaining the extent of the loss or damage, or the cost of reinstatement, can fairly be considered an election under which they are bound to reinstate. It may, indeed, be made an express term of the policy that the insurers are not called upon to elect, unless and until they have obtained all such information, and all such plans and estimates as may be deemed necessary or expedient for the purpose. [Emphasis added; footnotes omitted] Similarly, MacGillivray Parkington on Insurance Law, 6th ed. (London: Sweet Maxwell, 1975), state as follows 1920. Notice of election. If the insurer wishes to reinstate he must give the assured unequivocal notice that he intends to exercise his option. If the policy does not stipulate period within which the notice must be given, it must be given within reasonable time to the assured or his agent having authority to receive such notice on his behalf. It is sometimes provided in the policy that the option to reinstate is conditional on giving notice within certain time of completion of proofs; it has been held that such clause refers to the formal preliminary proof of loss and not proof of loss before court or arbitrator. [Emphasis added; footnotes omitted] If there is not an express election to reinstate, it is often difficult to determine whether any specific conduct of the insurer constitutes an election. In MacGillivray Parkington on Insurance Law two divergent cases were noted at 1921 where the Court of Session examined an insurer's conduct to determine if it had elected: In Sutherland v. Sun Fire Office [(1852) 14 D. 775] stationer's premises and stock were insured and damaged by fire. Before any formal claim was made the defendant insurance company sent an expert to examine the premises and report on the damage. After formal claim was made the company made an offer of cash payment which was refused and subsequently an offer to refer the amount of damage to arbitration which was also declined by the assured. The company then said it would exercise its option to reinstate but the assured brought an action for money indemnity. It was held by the Court of Session that it was still open to the office to elect to reinstate. The Court of Session arrived at different conclusion, however, in Scottish Amicable Heritable Securities Association v. Northern Assurance Co. [(1883) 11 R. 287], where different incumbrancers (mortgagees) were insured with different insurance companies. After fire had occurred on August 1, 1881, there were prolonged negotiations for settlement. The prior incumbrancers claimed certain sum or reinstatement. The insurers took no notice of the alternative claim for reinstatement, but disputed the amount claimed, and they prepared minute of reference to arbitration on the question of damage; this minute was not, however, signed as the insurers insisted upon all the other insurers being made parties to the reference. On February 5, 1883, the assured raised their action for payment and for the first time the insurers offered to reinstate in their defence. It was held that the offer was too late since it was clear from the terms of the correspondence that the insurers had elected to settle in money for the loss covered by the policy and that the only difference between the parties was the amount payable which would be fixed by arbitration. [footnotes omitted] MacGillivray Parkington on Insurance Law go on to state 1922. In the light of these authorities it is not easy to lay down any general principles as to what conduct constitutes an election, since in each case it is question of fact. But court would be reluctant to hold that an insurer had exercised an election by conduct unless it was satisfied that the insurer had all the available information before him on which to decide which of the two courses was more advantageous to him. In particular, mere offer to settle by payment of certain sum of money will probably not of itself be an election to pay if that offer is refused; insurers would however be wise to state that any such offer was made without prejudice to their right to reinstate. [Footnotes omitted] Hutcheon J. in Lepin v. Unigard Mutual Insurance Company, [1976-1978] I.L.R. 265 (B.C.S.C.) also addressed the issue of whether an insurer's conduct constituted to an election to reinstate. In that case, building owned by the insured suffered fire and water damage. In order to prevent further damage from the elements, the insurer approved the construction of "temporary permanent roof". Hutcheon J. examined the facts to determine whether the insurer's conduct constituted an election to reinstate and stated at p. 269: The conclusion have reached on the evidence is that Lepin [the insured] was misled by the conduct of Unigard [the insurer] through its agents into thinking that Unigard intended to reinstate. However, earlier in the judgment, Hutcheon J. placed significant emphasis on the fact that "the work was carried out on the instructions of Unigard." In Lepin, the basis for finding an election to repair was the insurer's conduct as manifested by the insurer's control over the repairs and repairers. The conduct of an insurer may bind the insurer to specific course of action. In other words, where an insurer has conducted itself so as to mislead the insured to believe that the insurer intends to reinstate, the insurer is deemed to have elected to reinstate. In each case, whether or not the insured has elected is question of fact. However, two qualifications are placed on when an insurer's conduct will constitute an election to reinstate. First, reasonable insurer would not elect to reinstate unless it had all the information and materials necessary to choose the most advantageous course of action. Therefore, an insurer is not deemed to have elected until it has the necessary materials to make an informed decision. Second, where an insurer acts for the purpose of ascertaining the extent of loss or damage, or the cost of reinstatement, such acts are not considered an election under which the insurer is bound to reinstate. Herein, an election under statutory condition 8(4) of the Act amounts to an irrevocable decision to repair the vehicle, regardless of the cost of repairs. The effect of such provision is the same as reinstatement clause. C. Brown and J. Menezes, Insurance Law in Canada (Toronto: Carswell, 1982), support this contention wherein they state at 13:2:22. For automobile insurance, the Uniform Act provides in its statutory conditions that the insurer shall not be liable for more than "the actual cash value" at the time of loss. Further, proper deduction is to be made for depreciation. If the actual cash value exceeds the amount it would cost to repair or replace the automobile, then whichever of these latter amounts is appropriate in the circumstances is payable. Except where an appraisal has been made, the insurer may opt to repair, rebuild or replace the property damaged or lost although there is requirement that written notice of this intention be given within seven days of receipt of the proof of loss. This is only rarely done because of practical difficulties in satisfying the insured as to the quality of the replacement. When the insurer does elect to replace, new contract is established and the policy limits do not apply, making the insurer liable for the increased costs involved. [Footnotes omitted] Therefore, if SGI elected to repair the vehicle, it will be liable for the entire cost of the repair, whether it exceeds the limits in statutory condition 8(1) or 8(2). As stated, reinstatement clause is for the benefit of the insurer and if SGI wished to take advantage of the reinstatement it must give the insured unequivocal notice that it intended to exercise its option. On the evidence before me it cannot be said that SGI has expressly elected to reinstate. SGI did not expressly notify the plaintiff, nor Crestview that they intend to exercise their option to reinstate the BMW. However as stated earlier, an express election is not necessary. An insurer by its conduct may be deemed to have made an election to reinstate. The test, as used in Lepin, concentrates on whether or not the insurer's conduct "misled" the insured into thinking that the insurer would reinstate. Consequently, if SGI's actions in this matter can be said to have misled the plaintiff to believe that SGI had elected to repair the exhaust system, then SGI is deemed to have elected as such. The plaintiff says that SGI elected to repair when it issued the second appraisal and authorized Crestview to replace the exhaust system without the knowledge or involvement of the plaintiff. SGI on the other hand states it did not authorize Crestview to replace the exhaust system, but simply paid out to the repair shop cash payment under statutory condition 8(1). SGI did send out roving appraiser to determine the damage to the exhaust system, upon being notified by Crestview that there was damage which was not previously ascertained. Those acts are the acts which the plaintiff relies upon to substantiate the claim that SGI has elected to reinstate. Those acts, however, relate to ascertaining the extent of loss or damage to the vehicle. They do not constitute an election under which the insurer is bound to reinstate. As noted, where an insurer acts for the purpose of ascertaining the extent of loss or damage, or the cost of reinstatement, such acts are not considered an election. Further, the plaintiff suggests that SGI authorized Crestview to repair the exhaust system. However, there was no evidence of such authorization. It cannot be said that the work was carried out on the instructions of SGI. Crestview appears to have proceeded with the repairs on their own. In the Lepin case, one of the basis for finding an election to repair was the insurer's conduct as manifested by the insurer's control over the repairs and repairers. Again, here there is no evidence that SGI exercised any control over the repairs or the repairer. The roving appraiser appraisedthe damage, provided an appraisal which included the deductionfor depreciation and advised Crestview. Thereafter, Crestview repaired the vehicle without advising the plaintiff. Consequently, on the facts of this case, the insurer has neither expressly elected to reinstate, nor elected to reinstate by its conduct. 2. Is SGI estopped from claiming that the plaintiff is responsible for the depreciation? The plaintiff claims that SGI is estopped from claiming the depreciation, or has waived its right to claim that the plaintiff is responsible for the depreciation. The plaintiff argues that SGI, by it's conduct, has waived its right to limit its liability under statutory condition 8(1). i. Waiver and Estoppel Waiver and estoppel usually arise in insurance law in the context of disputes over coverage. That is, the insured alleges that the insurer has waived any deficiencies in the insured's claim or that the insurer is estopped from denying coverage to the insured. Although the case here does not involve total denial of liability, the reasoning remains applicable since an election under statutory condition 8(4) effectively increases the liability of SGI beyond the liability limits found in statutory condition 8(1). Therefore, the same principles that apply where an insurer seeks to avoid liability would apply where an insurer seeks to avoid additional liability. So, if the plaintiff can establish that SGI waived its right to limit its liability or estopped from doing so, SGI may be responsible for the total cost of replacement of the exhaust system. There is some confusion in insurance law as to whether "waiver" and "estoppel" are synonymous terms. C. Brown and J. Menezes in their treatise Insurance Law in Canada explain the confusion surrounding "waiver" and "estoppel" in insurance law as follows at pp. 282 and 283: 14:1:2. Several essentially different concepts have been indiscriminately referred to under the rubric "waiver and estoppel". There is in fact distinct lack of consensus in the courts and among the writers as to whether waiver and estoppel are merely different aspects of single concept, or whether they relate to completely separate theories. The term "estoppel" is used rather freely and not always accurately in many areas of the law but particularly in insurance law. It is, however, relatively uncomplicated matter to establish the principles that make up the various estoppel doctrines. The same is not true for waiver. The identification of substantive doctrine of waiver in relation to insurance contracts is illusive. The wide use of the term makes sense only if "waiver" is considered to merely describe an effect that the operation of some clearly identifiable principle may have. Thus to say: "the insurer has waived his right to terminate the policy" means simply that circumstances have arisen whereby the insurer is prevented from denying claim by the insured notwithstanding some term in the policy appearing to give it that right. Clearly, to establish whether such proposition is supportable, it is necessary to determine whether the circumstances alleged fit some theory that the law clearly recognizes as having such an effect. In the result, it is essential to abandon the use of the term "waiver" as referring to some substantive doctrine. [Footnotes omitted] As stated in MacGillivray Parkington on Insurance Law at 911. The classic doctrine of estoppel requires (i) an unequivocal representation by word or conduct of present fact, which is (ii) made to someone expected to rely on it, who (iii) does rely upon it to his detriment. It is clear that in many cases where plea of waiver has succeeded, the court has not applied these strict conditions, and it is submitted that the doctrine of waiver of breach is really an application of the doctrine of election, namely that, once party has manifested his intention to forgo contractual right, either by express statement or by inference from conduct inconsistent with exercise of that right, he may not revoke that election later. [Footnotes omitted] The doctrine of waiver on the other hand is really the application of the doctrine of election. waiver of right or benefit is the opposite of an election of right or benefit. waiver is choice to relinquish whereas an election is choice to retain. Therefore, whether party has waived right or elected another right is matter of characterization. Usually the term "waiver" is used to refer to the insurer's waiver of an insured's default. But clearly, the concept of "waiver" in insurance law encompasses an election to pay or to reinstate. Hyndman J. for the court in Crump et al. v. McNeill et al., 1918 CanLII 696 (AB CA), [1919] W.W.R. 52 (Alta. S.C.), pronounced this definition of waiver at p. 57: Waiver is defined as the act of waiving, or not insisting on some right, claim or privilege; foregoing or giving up of some advantage, which but for such waiver, the party would have enjoyed; an election to dispense with something of value, the giving up, relinquishing, or surrendering some known right; an intentional relinquishment of known right, or such conduct as warrants an inference of the relinquishment or waiver of such right; waiver involves both knowledge and intention. It is distinguishable from estoppel inasmuch as estoppel may arise where there is no intent to mislead; it depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do; waiver involves the act and conduct of only one of the parties; estoppel involves the conduct of both. waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. [Emphasis added] Lamont J.A. in Western Canada Investment Company, Limited v. McDiarmid, 1922 CanLII 171 (SK CA), [1922] W.W.R. 257 (Sask. C.A.), defined "waiver" in comparable terms at p. 261: Waiver implies the abandonment of some right that can be exercised, or renouncement of some benefit or advantage which, but for such waiver, the party relinquishing would have enjoyed. To constitute waiver, two essential prerequisites are in general necessary. There must be knowledge of the existence of the right or privilege relinquished and of the possessor's right to enjoy it, and there must be clear intention of foregoing the exercise of such right. Martin C.J.S. defined waiver in identical terms in Canadian Acceptance Corp. Ltd. v. Fisher (1957), 10 D.L.R. (2d) 247 at 254 (Sask. C.A.). To constitute waiver of the right to elect, there must be the abandonment of some right that can be exercised, and the insurer must know of the existence of its right to elect, and the insurer must give clear intention of foregoing the exercise of the right. As stated in MacGillivray Parkinson on Insurance Law at 912: 912. Confusion has arisen, however, through the application of species of estoppel to achieve the same effect as waiver in cases of breach of contract. In recent years doctrine of "estoppel by conduct" has been developed, whereby party who has so conducted himself as to convey the impression to another that given state of affairs exists, cannot change his stance later. As applied to breaches of contract, it means that when one party represents to another who has committed breach of contract that the breach will be overlooked, he cannot later rely on it where that would be unjust to the other party. This principle is premised upon the desirability of fostering fair and consistent dealings between parties in contractual relationship. It is obvious that it is distinct from the notion of waiver, since in an appropriate case it would be right to allow the representor to change his mind, perhaps after notice, whereas an election is not revocable in that way. Estoppel by conduct is in truth very much closer to the modern doctrine of "equitable estoppel," which in turn has much wider application than waiver of breaches of contract, and requires different facts to be established. It is submitted that the uncertainty attaching to the use of the word "waiver", in this context is the result of mistaken attempts to define it as species of estoppel, whereas it is in fact distinct doctrine. [Footnotes omitted] In treating estoppel and waiver as distinct doctrines, the first issue is whether SGI is estopped from claiming the depreciation. Here, the plaintiff argues that even though SGI made no representation to the plaintiff, it authorized the repairs without the plaintiff's consent and as such it is estopped from arguing the plaintiff is responsible for any portion of the repairs. However, it cannot be said herein that SGI authorized the repairs as the evidence does not support this assertion. Nor can it be said that SGI represented to the plaintiff by word or conduct that it did not intend to deduct depreciation. It cannot be said that SGI conducted itself so as to convey that it would not claim depreciation as it deducted for betterment as soon as the second appraisal was complete. Estoppel is not applicable. The issue is then has SGI waived their right to elect to pay the cash value of the exhaust system under statutory condition 8(1). That is, did it by its actions waive its right to elect to choose the less expensive means of fulfilling its obligation. In Saskatchewan, two provisions of the Act provide that SGI, in certain situations, is not deemed to have waived provisions of the Act. First, statutory condition 10 of s. 39 reads as follows: 10 Neither the insurer nor the insured shall be deemed to have waived any term or condition of this Part by any act relating to the appraisal or to the delivery and completion of proofs of loss, or to the investigation or adjustment of the claim. Second, s. 77 of the Act states: 77 No term or condition of this Act shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by an officer of the insurer. The term "waiver" in statutory condition 10 and s. 77 also applies to an election to reinstate. Under automobile insurance legislation, this conclusion is supported by the decision of the court in Roberts v. Insurance Corp. of British Columbia (1990), 45 C.C.L.I. 55 (B.C. Co. Ct.), wherein the court considered the effect the Insurance Act, R.S.B.C. 1979, c. 200, which contains provisions similar in effect to statutory condition 10 and section 77 of our Act. In 1990, s. 13 of the British Columbia Act read: 13.(1) No term or condition of contract shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by person authorized for that purpose by the insurer. (2) Neither the insurer nor the insured shall be deemed to have waived any term or condition of contract by any act relating to the appraisal of the amount of loss or to the delivery and completion of proofs or to the investigation or adjustment of any claim under the contract. In Roberts, the British Columbia state insurer had agreed to replace the plaintiff's motor vehicle following its theft. However, the plaintiff's vehicle was recovered by police one day before the plaintiff signed contract to purchase new replacement vehicle. The insurer withdrew its agreement to replace the vehicle and re-elected to repair the stolen vehicle. The court found that the insurer had made an election where Catliff J. stated at p. 57: Nevertheless, I.C.B.C. clearly elected to finance the purchase of new car for the plaintiff before it learned his stolen car had been found. At common law, once an election is made the insurer is bound by it: "where contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he elected to do." per Lord Campbell, C.J., Brown and others v. The Royal Insurance Company (1859), E.L. and E.L. per Lord Campbell, C.J., p. 859. `The defendants are bound by their election; and; if the performance has become impossible, or (which is all they have shewn) more expensive than they had anticipated, still they must either perform their contract or pay damages for not performing it.' per Crompton, J. at p. 860 op cit." The court noted the insurer's position that it was not bound by this election when it stated at p. 57: In spite of the election made, I.C.B.C. claims it should be deemed not to have waived its choice of paying the lesser cost of repairing or replacing the plaintiff's car. Catliff J. went on to state at p. 59: [T]he effect of s. 13(2) of the Insurance Act is that I.C.B.C.'s acts "relating to the adjustment of [the] claim" do not deprive it of its statutory option [to elect]. In my view, the offer of I.C.B.C. to pay for replacement car for the plaintiff was clearly an "act relating to the adjustment" of the claim. Clearly, the basis for Catliff J.'s decision is an unstated finding that the "statutory option", or election to pay or reinstate, fell under the definition of "waiver" as found in s. 13(2) (which is the equivalent of statutory condition 10 in Saskatchewan). As such, as the conditions of the "waiver" under s. 13(2) had not been met, the insurer was not bound by the waiver. similar situation arises herein. As stated, reinstatement clauses are included in insurance contracts for the sole benefit of the insurer. The inclusion of reinstatement clause in the Act provides the same benefit to SGI, i.e., the option to choose the least expensive means of complying with its obligation to the insured. Therefore, only SGI, as the insurer, has the option to choose or elect the least expensive means of repairing the vehicle. In other words, only SGI can waive its right under statutory condition 8(1) by opting to repair under statutory condition 8(4). The plaintiff argues that SGI has waived their right to elect to payout under statutory condition 8(1) by their actions. However as noted, waiver is not to be presumed from the mere fact that an insurer has taken steps in conjunction with the assured to ascertain the amount of the loss, since, until this has been done, they are not in position to decide whether to make good the loss by payment or reinstatement. Herein, after the initial appraisal, roving appraiser attended at the repair shop and reviewed the extended damage to the exhaust system. The roving appraiser reassessed the claim and included damages for the new exhaust system. Under statutory condition 10, these acts relate tothe appraisal of the claim and, therefore, cannot constitute awaiver of statutory condition 8(1), i.e., they do notconstitute an election under statutory condition 8(4). Thereafter, SGI took no steps to have the vehicle repaired. Crestview took the steps to repair the vehicle. Further and finally, s. 77 indicates that, unless and until the insurer has provided written and signed waiver to the insured, the insurer remains entitled to re-elect the manner in which it will fulfil its obligations and complete the insurance contract. Therefore, as the plaintiff did notreceive a written waiver of statutory condition 8(1), theinsurer cannot be deemed to have waived its option to enforcestatutory condition 8(1). 3. Is depreciation to be deducted under Part III of the Act? Depreciation is defined in Black's Law Dictionary, 5th ed. (St. Paul: West, 1979), as: Depreciation. fall in value; reduction in worth. The deterioration, or the loss or lessening in value, arising from age, use and improvements, due to better methods. decline in value of property caused by wear or obsolescence and is usually measured by set formula which reflects these elements over given period of useful life of property. Statutory condition 8(1) of the Act, provides that SGI is not liable beyond the lesser of the actual cash value of the exhaust system, with proper deduction for depreciation, and the maximum value of the exhaust system as prescribed by regulation. Pursuant to this statutory condition, SGI is entitled to make an allowance for reasonable depreciation, before it makes payment to an insured under the Act. If the repairs made result in an increase in the value of the property repaired, there may be deduction made to offset the increase. The roving appraiser herein arrived at the 20% deduction for depreciation on the BMW exhaust system. Unfortunately, there was no evidence led as to how the appraiser arrived at the 20% depreciation deduction. The question is whether the 20% deduction is appropriate. In the case of Lepin, the court referred to Ewer v. National Employers' Mutual General Insurance Association Ltd. (1937), All E.R. 193 wherein it confirmed that court will make an allowance in favour of an insurer for the increase in value of building before and after the repairs. In Lepin, the court made an allowance for the newness of the heating and cooling system installed in the building. The court also noted that there was no set standard by which it could determine the allowance to be made for the fact that the building now contained items which were new and were therefore of longer life than those destroyed. In Lepin the court chose to reduce the damages by 30%. In the circumstances of the case herein, the warranty on the BMW exhaust system was three years or 80,000 kms. At the time of the accident, the exhaust system on the BMW was three years old and had withstood 46,000 kms. of wear. The BMW exhaust system was replaced with new exhaust system. In light of those facts, it cannot be saidthat the 20% deduction for depreciation on the exhaust systemis inappropriate, and as such the 20% for depreciation isallowed. 4. Does the plaintiff as the lessee of vehicle registered to Crestview have cause of action against SGI under the terms of Part III of the Act? SGI has argued that the plaintiff does not have cause of action against SGI as he is not the "insured" as defined under the Act. In light of the previous findings, it is not necessary for me to determine this issue. CONCLUSION The plaintiff's claim against SGI is dismissed withcosts to be taxed.

A claim for damages to the plaintiff's leased automobile arising out an accident. The action against the defendant Ruhr had been discontinued. An SGI adjuster appraised the damage but during the course of repairing the vehicle further damage was found. A roving adjuster authorized the replacement of the exhaust system but deducted 20% for depreciation. The plaintiff brought an action for reimbursement of the $503.73 arguing that SGI elected to repair or replace the exhaust system under statutory condition 8(4) of s39 of the Automobile Accident Insurance Act. SGI took the position that as Crestview was the registered owner of the vehicle the plaintiff was not entitled to bring this action as he was not the insured within the meaning of the Act. SGI also argued that Crestview authorized the repairs and acknowledged the 20% deduction as registered owner and that if the plaintiff paid the $503.73 he did so under his private lease contract with Crestview. It also argued that it is entitled to deduct for depreciation in any event. HELD: The claim against SGI was dismissed with taxed costs. 1)An election under statutory condition 8(4) amounts to an irrevocable decision to repair regardless of costs of repairs. Once an election is made the insurer is bound to pay or reinstate. An insurer by its conduct may be deemed to make an election to reinstate. The insurer's election to reinstate unilaterally creates a new contract which the insurer may not unilaterally revoke. On the facts the insurer neither expressly nor by its conduct elected to reinstate. The roving appraiser provided an appraisal to Crestview which included the depreciation deduction. Crestview repaired the vehicle without advising the plaintiff. 2)The concept of waiver in insurance law encompasses an election to pay or to reinstate. Estoppel was not applicable. Two provisions of the Saskatchewan Act provide that SGI in certain situations is not deemed to have waived provisions of the Act. The roving appraiser reassessed the claim and included the newly found damages. These acts related to the appraisal of the claim and could not constitute a waiver of statutory condition 8(1). They did not constitute an election under statutory condition 8(4). Crestview, not SGI, took the steps to repair the vehicle. As the plaintiff did not receive a written waiver of statutory condition 8(1) pursuant to s77 the insurer could not be deemed to have waived its option to enforce statutory condition 8(1). 3)The exhaust system was three years old and had 46,000 km of wear. A 20% deduction for depreciation was appropriate and therefore allowed. 4)It was not necessary to determine whether the plaintiff was the 'insured' as defined by the Act.

b_1996canlii7148.txt

(Orally) Dated: 19971103 Docket: 2561 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Sherstobitoff Jackson JJ.A. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 2067, (I.B.E.W.) (Respondent/Applicant) APPELLANT and SASKATCHEWAN POWER CORPORATION (Applicant/Respondent) RESPONDENT and SASKATCHEWAN LABOUR RELATIONS BOARD COUNSEL: Mr. R.A. Engel for the appellant Mr. B.J. Kenny for the respondent DISPOSITION: On Appeal From: QB 967 of 1996, J.C. of Regina Appeal Heard: November 3, 1997 Appeal Dismissed: November 3, 1997 (orally) Written Reasons: November 18, 1997 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Vancise The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. (orally) [1] This appeal is from an order of Barclay J. which quashed an interim order of the Labour Relations Board pending the determination of a grievance by an arbitration board, even though no proceedings were pending before the Labour Relations Board, and even though it had no power to make any final order respecting the proceedings before the arbitration board. The issue is whether s. 5.3 of The Trade Union Act, R.S.S. 1978, c. T-17, authorizes the Board to make such an order. [2] The facts are set out in the judgment of Barclay J. [3] The relevant provisions of the Act are as follows: 5.3 With respect to an application or complaint made pursuant to any provision of this Act or the regulations, the board may, after giving each party to the matter an opportunity to be heard, make an interim order pending the making of final order or decision. 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. 42 The board shall exercise such powers and perform such duties as are conferred or imposed on it by this Act, or as may be incidental to the attainment of the objects of this Act including, without limiting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Act, with any regulations made under this Act or with any decision in respect of any matter before the board. [4] Section 5.3 both confers and limits the jurisdiction of the Board to make interim orders. The question decided by the Board, that it had power to make the order in question, was clearly jurisdictional question. The Board recognized it to be jurisdictional question and so treated it. Accordingly, the standard of review is whether the decision was correct, rather than whether it was patently unreasonable. [5] Whether one approaches the question from the point of view of the plain meaning of the words of s. 5.3, or from the point of view of the context of the entire statute, or from the point of view of a purposive approach, the result is the same. The chambers judge arrived at a correct conclusion. [6] The ordinary meaning of the words of s. 5.3 require two conditions for the exercise of the power to make interim orders: the existence of an application or complaint before the Labour Relations Board, and the existence of power in the Labour Relations Board to make final order in respect of the application. The appellant says that because the section contains no words directly limiting the terms "application or complaint" and "final order or decision" in s. 5.3, the conditions may be fulfilled by the existence of grievance before an arbitration board, and the existence of power in the arbitration board to make final order. Settlement of disputes respecting collective agreements by arbitration is now mandatory under s. 25(1) of the Act. It argues that, accordingly, grievance before an arbitration board is "an application under the Act" within the meaning of s. 5.3, and that the final order referred to therein may be an award of an arbitration board. [7] We cannot agree with the appellant's contention for number of reasons. [8] The Labour Relations Board receives applications and makes orders. Arbitration boards are usually said to hear grievances and make awards. If the legislators had intended the meaning contended for by the appellant, they would have used, in drafting s. 5.3, the terms usually used by those participating in the arbitration process, such as grievance in addition to application or complaint, and award, in addition to final order. [9] Section 5.3 refers to one body and one body only, "the board", which is defined by s. 2(c) to be the Labour Relations Board. Accordingly, when the section refers to applications and orders, it refers to applications to and orders of the Labour Relations Board. The operative part of the section, when it empowers the Labour Relations Board "to make an interim order pending the making of final order or decision" predicates the power of the Labour Relations Board to make an interim order upon the power of the same Board to make final order. The interim power is not only based on the final power but is also part of the final power, and both are part of the same process. [10] Furthermore, s. 25(1), when read with ss. (1.1) and (1.2), indicates an intention on the part of the legislators to grant exclusive jurisdiction to arbitration boards to deal with disputes arising out of the interpretation of collective agreements. (We recognize that violations of collective agreements may also, on occasion, constitute unfair labour practices over which the Labour Relations Board has jurisdiction, but that does not change the principle.) The power claimed for the Labour Relations Board to make interim orders in respect of proceedings before arbitration boards is inconsistent with that exclusivity even if used only to aid arbitration boards by supplying power that the arbitration board itself may not have. Nor is there anything in s. 25 or the other sections of the Act dealing with resolution of disputes by arbitration to indicate an intention to grant supervisory or other powers to the Labour Relations Board in respect of the arbitration process. [11] Nor does s. 42 aid the appellant. Whatever the scope of s. 42, it cannot be used to release the restrictions of statutory provision the very purpose of which is to define the jurisdiction of the Labour Relations Board to act in respect of such matters. [12] The appeal is dismissed with costs in the usual way.

An appeal from an order which quashed an interim order of the Labour Relations Board (LRB) pending the determination of a grievance by an arbitration board, even though no proceedings were pending before the LRB and even though it had no power to make a final order respecting the proceedings before the arbitration board. At issue was whether s5.3 of the Trade Union Act authorized the Board to make such an order. HELD: The appeal was dismissed with costs. 1)The Board recognized the question to be a jurisdictional question. The standard of review is whether the decision was correct rather than patently unreasonable. 2)The chambers judge arrived at the correct conclusion whether from the point of view of the plain meaning of the words of s5.3 or the context of the entire statute or a purposive approach. 3)S5.3 refers to the 'board' which is defined by s2(c) to be the LRB and accordingly referred to applications and orders of the LRB. The interim power is not only based on the final power but is also part of the final power and both are part of the same process. 4)S25(1), when read with ss(1.1) and (1.2) indicates an intention on the part of the legislators to grant exclusive jurisdiction to arbitration boards to deal with disputes arising out of the interpretation of collective agreements. 5)Whatever the scope of s42, it cannot be used to release the restrictions of a statutory provision the very purpose of which is to define the jurisdiction of the LRB to act in respect of such matters.

c_1997canlii9802.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 244 Date: 2011 06 22 Docket: Q.B.C.A. No. 44/2010 Judicial Centre: Saskatoon BETWEEN: ROY JOHN RODGERS, and HER MAJESTY THE QUEEN, as represented by the Attorney General of Saskatchewan, Counsel: Ronald P. Piché for the appellant K. Scott Bartlett, Q.C. for the respondent Crown JUDGMENT GABRIELSON J. June 22, 2011 Introduction [1] This is a summary conviction appeal from a judgment dated September 17, 2010, wherein the learned Provincial Court judge convicted the appellant of impaired care and control of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code, fined him $1,000.00 and prohibited him from driving for one year. In the same judgment, the learned trial judge acquitted the appellant of a second charge of operating a motor vehicle while his blood alcohol content exceeded the legal limit of .08 contrary to s. 253(1)(b) of the Criminal Code. [2] The grounds of appeal as set out in the notice of appeal are: 1. The learned trial judge erred in considering evidence that was not admissible on the impaired count in convicting the appellant of operating motor vehicle while impaired; 2. The learned trial judge’s conviction on the count of operating motor vehicle while impaired constitutes an unsafe and/or dangerous verdict in law; 3. The learned trial judge erred in rejecting the evidence of the central Crown witness as this witness provided exculpatory evidence. The learned trial judge provided no basis for rejecting his evidence and relied on speculation rather than evidence in arriving at his conclusion. [3] The appellant is senior member of the Saskatoon Police Service. In the early morning hours of May 24, 2009, he was off duty and was observed by third party to be operating motor vehicle which had just jumped curb and was parked in lot at the corner of 22nd Street and Idylwyld Drive in Saskatoon. Two on‑duty Saskatoon Police Service officers, Cst. Bzdel and Cst. Noesgaard, were notified, and they attended at the scene. They spoke to the appellant, who was in care and control of the motor vehicle. As the appellant showed some signs of impairment, but was senior to the two officers, they requested more senior officer to attend at the scene in accordance with Saskatoon Police Service policy. The senior officer attended, heard the facts from the officers in question and instructed Cst. Bzdel to administer an ASD demand. When the appellant failed the ASD demand, demand for breath sample was made, and the appellant was taken to the police station. Following breathalyser reading which registered .13 at 4:02 a.m. and .12 at 4:22 a.m., the appellant was charged with both offences. [4] At trial, Cst. Noesgaard testified that he had observed signs of impairment of the appellant, which he described as bloodshot red eyes, flushed face, slurred speech, strong smell of alcohol on his breath, dry lips, mouth appeared to be dry, constantly licking his lips and constantly smacking his lips. Cst. Bzdel testified that the only symptom of impairment of any significance that he noted was that the appellant had alcohol on his breath. third officer, Cst. Flogan, the breathalyser operator, testified that he noted that the appellant appeared to have been drinking, that he had bloodshot eyes, that he smelled of alcohol and that, having worked with the appellant in the past, he formed the opinion that the appellant was drunk. [5] In his judgment, the learned trial judge concluded that, as result of delay of approximately 45 minutes between the first attendance upon the appellant by the two officers and the time of the demand for the breath sample, the accused had been arbitrarily detained and not advised of his right to counsel, which was in violation of his Charter rights. Accordingly, the learned trial judge ruled that the certificate of analyses was not admissible as evidence. The learned trial judge, therefore, found the appellant not guilty of Count No. of the information. However, the learned trial judge found that based upon the evidence of Cst. Noesgaard and Cst. Flogan, the Crown had proven that the appellant was impaired while in care and control of motor vehicle, so that he therefore convicted the appellant on the first count. Statement of Issues [6] There are three issues on this appeal which I will discuss in the order they were raised by counsel in argument: 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? 1. Did the trial judge err in law in his treatment of the evidence of Cst. Bzdel? [7] Counsel for the appellant submitted that the learned trial judge rejected or ignored the evidence of Cst. Bzdel. While acknowledging that judge can accept or reject any evidence, counsel submitted that as Cst. Bzdel was the senior officer on the scene and the main investigator, his evidence that the only symptoms of impairment that he noted on the appellant of any significance was that he could smell alcohol on the breath of the appellant should have carried considerable weight. Counsel pointed out that Cst. Bzdel also agreed with appellant’s counsel that the degree of impairment cannot be determined by the odour of alcohol. Counsel submitted that, in cross‑examination, Cst. Bzdel also confirmed that there was nothing in his report to indicate lack of motor skills (Transcript, p. 132), that the appellant’s speech was noted on the form as “good” and that the question on the form as to difficulty pronouncing words was noted as “no” (Transcript, p. 134). [8] Counsel for the appellant suggests that the learned trial judge speculated that Cst. Bzdel was deliberately concealing or fabricating his evidence to assist the appellant who was colleague on the police force. Counsel for the appellant refers to the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R.(2d) 235, at paragraph 26 for the proposition that trial judge should not rely on conjecture or speculation in order to determine whether an accused was guilty of impaired operation of motor vehicle pursuant to s. 253 of the Criminal Code. [9] Counsel for the respondent submitted that the learned trial judge clearly recognized contradiction between the evidence of Cst. Bzdel and that of Cst. Noesgaard and Cst. Flogan. However, rather than ignoring the evidence of Cst. Bzdel, the learned trial judge carefully compared the evidence of all three officers and made judicial decision supported by reasons based on the evidence that he would accept the evidence of Cst. Noesgaard and Cst. Flogan. Counsel for the respondent submitted that this was an appropriate exercise of judicial discretion. [10] In his analysis, the learned trial judge carefully compared the symptoms of impairment noted by both Cst. Noesgaard and Cst. Bzdel. With respect to Cst. Noesgaard, the learned trial judge found as follows: [15] First, he noted that the operator of the motor vehicle was the accused in this matter, and that he was an officer significantly senior to him, with the Saskatoon Police Service. He also noticed that certain signs of impairment were evident. He noted bloodshot red eyes on the face of Rodgers, that Rodgers had flushed face, that his speech was slurred, and that he could smell alcohol coming from his breath. [19] In this meeting with the accused he recalled the same symptoms of impairment that he had noted earlier, and added the following symptoms. The accused had dry lips, his mouth appeared to be dry, he was constantly licking his lips, and that he was as well smacking his lips. [11] The learned trial judge found as follows in respect to the symptoms of alcohol impairment observed by Cst. Bzdel: [22] He testified that the only symptom of impairment that he noted on Rodgers of any significance was that Rodgers had alcohol on his breath. [12] The learned trial judge recorded the observations of Cst. Flogan as follows: [25] The last officer to testify was Cst. Flogan the breath technician, to whom Rodgers was taken for breath samples. He indicated that he knew Cst. Rodgers well and had worked with him in the past. He indicated that he had asked Rodgers series of standard questions before the breathalyzer and noted that Rodgers appeared to have been drinking. He had bloodshot eyes, he smelled of alcohol from his breath and Cst. Flogan testified that in his opinion Rodgers was drunk. He also testified that he had, from previous work with Rodgers, seen him sober and compared the two situations in drawing his conclusion. [13] In comparing the observations as to alcohol impairment, the learned trial judge stated at paragraph 39: [39] Paragraph 2(a)(1) [of the Saskatoon Police Service policy concerning investigations involving police officers, which was marked as Exhibit D‑1 at the trial] refers to an officer acting “thoroughly and expeditiously”. In this case very clearly Cst. Bzdel did not deal with the matter thoroughly or expeditiously as evidenced by the lack of notes, the lack of detail provided with respect to the incident and more importantly the forty‑seven minute delay occasioned by him. [54] First with regard to Cst. Noesgaard in contradistinction to the observations of Cst. Bzdel, he took notes and did so as the investigation proceeded right from the very beginning. He recorded the times in his notes and took appropriate action throughout the evening. This is as it should be in all cases, and in particular where the investigation by police officer relates to the potentially criminal conduct of fellow officer. [14] The learned trial judge concluded his analysis at paragraph 58: [58] Based on my analysis of Cst. Bzdel’s handling of the case up to the point of the ASD demand being made have no hesitation in concluding that the evidence of Cst. Noesgaard, the evidence of Cst. Flogan, support the conclusion that the accused was impaired on this occasion. Their evidence on the issue of the symptoms of impairment that were displayed by the accused is preferred by me to the evidence of Cst. Bzdel. [15] As can be seen from the above, the learned trial judge did not ignore or reject the evidence of Cst. Bzdel. The learned trial judge provided extensive reasons why he accepted the evidence of Cst. Noesgaard and Cst. Flogan in preference to that of Cst. Bzdel. It must be remembered that the trial judge is in special position on matters of credibility by being able to observe the witness at the time of testimony and compare their observations to the testimony of other witnesses. Having reviewed the transcripts of their evidence, am satisfied that the findings of the learned trial judge in regard to the testimony of the three police officers in question accurately describes their evidence. [16] In my opinion, the learned trial judge did not resort to conjecture or speculation as suggested by counsel for the appellant. In the case of R. v. Hayes, 2007 NSSC 74 (CanLII), 253 N.S.R. (2d) 235, which was referred to by the appellant as authority for the proposition that the trial judge cannot rely on conjecture or speculation, the Crown appealed the summary conviction appeal court (“SCAC”) decision pursuant to s. 839 of the Criminal Code. The Nova Scotia Court of Appeal overturned the SCAC decision and restored the trial judge’s decision. The Court of Appeal held that the SCAC judge erred when he misunderstood the trial judge’s credibility finding and when he substituted his own view of the witness’s credibility for that of the trial judge. At paragraph 33 of their decision, found at R. v. Hayes, 2008 NSCA 23 (CanLII), 263 N.S.R. (2d) 314, the Court stated: [33] The trial judge presided over the trial and had the opportunity to see and hear Mr. Hayes testify. He was in better position to judge Mr. Hayes’ credibility on the issue of his intention than the SCAC judge or this court who must rely on the written record. The trial judge's conclusion on credibility is entitled to deference. [17] In the case of R. v. J.N.B., 1991 CanLII 111 (SCC), [1991] S.C.R. 66, the Supreme Court of Canada also commented on when an appellate court should interfere with trial judge’s findings of witness credibility. At paragraph 3, the Court stated: nan The trial judgment was based substantially on an express finding of credibility with respect to the evidence of the complainant. There is nothing in the record to indicate that there was any inherent improbability in her evidence or any other basis which would justify interference by an appellate court with the findings of the trial judge. Moreover there was some support for her testimony in other evidence which was accepted by the trial judge. [18] In this case, the learned trial judge made express findings of credibility concerning the evidence of Cst. Noesgaard and Cst. Flogan, preferring their evidence to that of Cst. Bzdel. Having reviewed their evidence, there is no inherent improbability which would justify interference by me with the learned trial judge’s findings concerning their evidence. I, therefore, do not accept this ground of appeal. 2. Did the trial judge err in considering the observations made by Cst. Noesgaard concerning the appellant’s slurred speech as evidence to be admitted on the impaired driving count? [19] The appellant’s position is that Cst. Noesgaard’s evidence of the appellant’s slurred speech should have been excluded for the same reasons that the learned trial judge excluded the actual statements by the accused as violation of the appellant’s Charter rights pursuant to s. 10(b). Counsel for the appellant submitted that the observation by Cst. Noesgaard concerning the appellant’s slurred speech was made before the appellant was provided with his s. 10(b) rights notice. Counsel for the appellant referred to the cases of R. v. Orbanski, 2005 SCC 37 (CanLII), [2005] S.C.R. 3; R. v. Hult, 2008 SKQB 52 (CanLII), 63 M.V.R. (5th) 287; R. v. Demers, 2006 SKPC 65 (CanLII), 282 Sask. R. 62, and R. v. Coles, 2005 ABPC 277 (CanLII), as authority for the proposition that observations of slurred speech while the appellant was detained and prior to being afforded the right to counsel is inadmissible. [20] Counsel for the respondent submitted that Cst. Noesgaard’s observations concerning slurred speech were not part of conscripted evidence which would place the administration of justice into disrepute in Charter analysis pursuant to s. 10(b) and s. 24(2). Counsel for the appellant referred to the cases of R. v. Orbanski, supra, and R. v. Sundquist, 2000 SKCA 50 (CanLII), 189 Sask. R. 273, as cases in which the Court held that it was only physical sobriety tests that were conscriptive. [21] In the recent case of R. v. Rivera, 2011 ONCA 225 (CanLII), 104 O.R. (3d) 561, the Ontario Court of Appeal analysed several recent appellate court decisions as to when the results of roadside sobriety tests can be used for the purpose of proof of an offence or for challenging the credibility of an accused. Beginning at paragraph 54, the Court stated: [54] ... the law now recognizes the constitutionality of traffic stops, like those in this case, to check drivers for sobriety, even where there are no objective grounds for the stop: see Elias [2005 SCC 37 (CanLII), [2005] S.C.R. 3], at paras. [55] The Supreme Court of Canada has recognized that these stops constitute reasonable limit on Charter rights because of the extreme danger represented by unlicensed or impaired drivers on the roads. In particular, Elias holds that this reasonable limit on the s. 10(b) right extends to questioning by police officer of detained driver about his or her alcohol consumption as part of the investigation into the sobriety of the driver. [56] At para. 58 in Elias, Charron J. held that the limitation meets the proportionality test because “evidence obtained as result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired.” Further, in that same paragraph and citing with approval this court’s decisions in Milne [(1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 353, [1996] S.C.R. xiii] and Coutts [(1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.)], she held that such evidence “cannot be used as direct evidence to incriminate the driver”. [57] In Milne, Moldaver J.A. held at p. 590 that the results of roadside sobriety tests performed by an accused at the direction of police officer prior to being informed of the right to counsel are not admissible at trial as evidence of impairment on the charge of impaired driving. Such evidence may be used to justify the officer’s demand for breath sample, but it would be unfair to allow the Crown to introduce such evidence at trial to prove impairment. This is because the accused had not been informed of the right to counsel when the tests were performed. [22] However, although the results of roadside sobriety tests are not admissible at trial as evidence of impairment unless an accused has been informed of right to counsel, appellate courts have also distinguished self‑incriminating statements from observations made by investigating officers. In the case of R. v. Orbanski, supra, at paragraph 58, the Court stated: 58 .. As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques “take but little time and cause only minor inconvenience to the motorist”. He stated, however, that “the same cannot be said about the ‘risk of incrimination’ component if, in fact, the motorist can be compelled to create self‑incriminating evidence that can later be used at trial” (p. 131). agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132: am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in driver, such as strong odour of alcohol, blood‑shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. [Emphasis added] [23] Several Saskatchewan cases have also referred to slurred speech as something that trial judge is justified in considering as proof of an indicator of impairment. See R. v. Yuzicapi, 2010 SKQB 137 (CanLII), 351 Sask. R. 227; R. v. Kirkness, 2008 SKQB 259 (CanLII), 318 Sask. R. 80, and R. v. MacDonald (1996), 1996 CanLII 7066 (SK QB), 146 Sask. R. 306 (Q.B.). [24] Slurred speech is known physical indicator of impairment absent some evidence of another cause. While statements made by the accused may not be introduced to prove impairment unless he has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced as evidence to prove impairment. Accordingly, do not accept this ground of appeal. 3. Does the conviction for impaired operation of a motor vehicle constitute an unsafe verdict? [25] The appellant’s position is that the evidence indicating the appellant was impaired, at best, consisted of bloodshot eyes, flushed face, slurred speech and the smell of alcohol. Counsel for the appellant submitted that Cst. Noesgaard agreed there could be other reasons for bloodshot eyes. Counsel further submitted that it is well known that alcohol is odourless and should not, in and of itself, be an indicator of impairment. Counsel submitted that slurred speech, even if admissible, was observed only for brief time and was lacking in any detail. Counsel submitted that flushed face and bloodshot eyes are ambivalent at best. Finally, counsel submitted that none of these observations are determinative of the effect of alcohol on the ability of the accused to drive. Counsel for the appellant refers to the cases of R. v. Flasch, 2004 SKQB 521 (CanLII), 12 M.V.R. (5th) 106; R. v. Holman (1998), 1998 CanLII 13860 (SK QB), 173 Sask. R. 214 (Q.B.), and R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B.). Finally, counsel for the appellant refers to the case of R. v. Andrews, 1996 ABCA 23 (CanLII), 178 A.R. 182, as authority for the proposition that slight impairment is not sufficient and the question is whether the individual’s functional ability to drive motor vehicle is impaired. [26] Counsel for the respondent submitted that there were sufficient indicia of impairment from the evidence of Cst. Noesgaard and Cst. Flogan to provide an evidentiary basis for the learned trial judge’s finding of impairment. Counsel referred to the cases of R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] S.C.R. 478, and R. v. Wilton, 2007 SKPC 141 (CanLII), 306 Sask. R. 117, aff’d 2009 SKQB 405 (CanLII), 345 Sask. R. 81. [27] In the case of R. v. Stellato, supra, the Ontario Court of Appeal summarized the duty of trial judge in cases of impaired driving as follows: 14 In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [28] The Stellato case has also been applied in Saskatchewan. In the case of R. v. Hall (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62 (C.A.), the Court stated at paragraph 8: .. The essence of Stellato ... is to avoid the application of some rigid standard which might deprive the trier of fact of determining on all the facts whether an accused was indeed impaired. The trier of fact no longer asks the question: does the accused’s behaviour or physical characteristics represent marked departure from the norm. trier of fact may be able to infer impairment from behaviour which is far outside the norm, but if such behaviour is not present, impairment may be inferred, in the appropriate case, from something less. The trier of fact must, of course, be satisfied beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired. ... [29] In the case of R. v. MacDonald, supra, Baynton J. also rejected the suggestion that there must be marked departure. At paragraph 10, he stated: [10] It is now common knowledge that person’s judgment, perception, and reaction time can be detrimentally affected by level of alcohol consumption that may not be manifested in observable conduct such as the manner of walking or talking. Such person may well be able to walk in straight line or speak without slur, but is danger behind the wheel of an automobile where judgment and reaction time is critical to the safety of others on the road. By the time person has had enough to drink that his or her observable conduct exhibits marked departure from the norm (such as staggering or slurred speech) that person’s judgment and reaction time (and thus the ability to drive motor vehicle) is substantially impaired. As matter of common sense, if the McKenzie threshold of evidence is still the law, then conviction for impaired driving could never be made unless the degree of impairment was great. This is clearly inconsistent with the decision and reasoning in Stellato. [30] In this case, the learned trial judge concluded that the Crown had proven beyond a reasonable doubt sufficient evidence of impairment to meet the standard as set out in the Stellato decision. The learned trial judge stated that he based his decision upon the evidence of Cst. Noesgaard and Cst. Flogan. This evidence was found at paragraphs 55‑57 of his judgment. [55] Cst. Noesgaard noticed immediately that the accused had bloodshot eyes, flushed face, slurred speech and smelled of alcohol. This was further corroborated by his second contact with the accused where approximately ten minutes later he noticed that the accused had dilated pupils, his lips were dry, he licked his lips, and he smacked his lips even when he was not talking. [56] In addition Cst. Flogan’s evidence was that the accused was drunk. That evidence as statement of fact is clearly not admissible to prove that he was in fact drunk as it was conclusary in nature. It is up to the Court to decide what the level of impairment of an accused person is and up to witnesses to say what symptoms of impairment that they witnessed. To that extent even Cst. Flogan could say with his limited exposure to the accused on that occasion was that he had alcohol on his breath, bloodshot eyes, and again his conclusion was that he was drunk. [57] That conclusion is obviously not supported by the symptoms he described but it is something that can consider without accepting the conclusion that he did. The fact of the matter is that he knew the accused and had worked with him on previous occasions and was comparing him, on this occasion, to when he’d been working with him when presumably he was not “drunk”. can’t simply ignore his evidence and it seems to be corroborative of other symptoms of impairment that both he and Cst. Noesgaard noticed. Very often the best comparison can come from somebody who knows an accused person when one is asked to compare him under the influence of alcohol versus sober and while don’t accept the conclusion by Cst. Flogan that the accused was drunk, can accept that in his opinion he certainly was displaying symptoms that he wouldn’t normally display. [31] In the case of R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99, the Saskatchewan Court of Appeal referred to the standard of review when s. 686(1)(a)(i) of the Criminal Code is invoked. At paragraph 74 of that case, the Court stated: [74] Subclause 686(1)(a)(i) of the Code may only be invoked where the appellate court has considered all of the evidence before the trier of fact and determined that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.” The standard of appellate review derived from this section is “whether the verdict is one that properly instructed jury acting judicially could reasonably have rendered.” See: R. v. Yebes [1987 CanLII 17 (SCC), [1987] S.C.R. 168]; and R. v. Biniaris [2000 SCC 15 (CanLII), [2000] S.C.R. 381]. Similarly, in Burns [1994 CanLII 127 (SCC), [1994] S.C.R. 656] the Supreme Court of Canada indicated that “[i]n proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re‑examining it and re‑weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it.” Courts of appeal often state the test in terms of whether there is evidence upon which the trier of fact properly instructed could reasonably reach the verdict. [32] am satisfied that the learned trial judge analysed all of the evidence before him as was appropriate, rather than using piecemeal approach, which was rejected in the case of R. v. Hall, supra. Having reviewed the transcript, am satisfied that there was ample evidence to justify the learned trial judge’s conclusion that the appellant’s ability to be in the care and control of motor vehicle was impaired by alcohol. The learned trial judge made no palpable or overriding error to justify overturning his decision: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, and R. v. Bigsky, supra Conclusion [33] The appeal against the conviction is dismissed. J. N.G. Gabrielson

The appellant was convicted of impaired care and control and acquitted of a charge of care and control with a blood alcohol level exceeding .08 because of Charter violations. The appellant was senior member of the Saskatoon Police Force who was charged by members of his police force. The trial judge based his conviction on the evidence of two officers who testified that they observed signs of impairment including bloodshot, red eyes, flushed face, slurred speech, strong smell of alcohol on his breath and dry lips and mouth. In convicting the accused, the trial judge rejected the evidence of third officer who testified that the only sign of impairment he noted on scene was that the appellant had alcohol on his breath. The issues on appeal were whether the trial judge erred in his treatment of the evidence of the third officer, whether the trial judge erred in considering the observations of the other two officers as evidence to be admitted on the impaired driving count and whether the conviction for impaired driving was an unsafe verdict. HELD: The appeal was dismissed. The trial judge did not ignore or reject the evidence of the third officer. He provided extensive reasons why he preferred the evidence of the other two officers to the evidence of the third officer. The trial judge is in special position to assess the credibility of witnesses by being able to observe the witnesses as they testify and compare their observations to the testimony of the other witnesses. The findings of fact in regard to the testimony of the three police officers are supported by the transcript of their evidence and do not amount to conjecture of speculation. The trial judge made express findings of credibility with respect to the two officers and preferred their evidence to that of the third officer. There is no inherent improbability that would justify interference with the trial judge's findings on credibility. The appellant argued that the officer's evidence that the appellant had slurred speech should have been excluded because the trial judge excluded the actual statements made by the accused as violation of the accused's Charter rights under s. 10(b). Slurred speech is known physical indicator of impairment absent evidence of another cause. While statements made by an accused may not be introduced to prove impairment unless the accused has been advised of his Charter rights, physical manifestation such as slurred speech may be introduced to prove evidence of impairment. The appellant's argument that the verdict is unsafe or unreasonable was also rejected. The trial judge concluded that the Crown had proven beyond a reasonable doubt that there was evidence of impairment sufficient to meet the standard in R. v. Stellato. There was no palpable or overriding error in the verdict.

e_2011skqb244.txt

LANE J.A. 2000 SKCA 99 Docket: C.A. 7335 THE COURT OF APPEAL FOR SASKATCHEWAN Cameron J.A. in Chambers. and HER MAJESTY THE QUEEN COUNSEL: Mr. B. Hrycan for the applicant Mr. W.D. Sinclair for the respondent DISPOSITION: Application for Release Heard: September 13, 2000 Application Dismissed: September 13, 2000 (oral) Application Dismissed By: The Honourable Mr. Justice Cameron CAMERON J.A. The applicant was convicted in July of 1997 of several offences, consisting in the main of sexual offences involving members of his family and others close to him. In consequence he was sentenced to five years in prison. He then appealed against his convictions, and the Crown appealed against his sentence. On September 16, 1998, this Court dismissed his appeal against conviction. At the same time it allowed the Crown's appeal, in effect increasing the sentence from five to ten years. Throughout, the applicant was represented by senior counsel, Mr. S. Halyk Q.C. The applicant decided not to seek leave to appeal to the Supreme of Canada on the advice of Mr. Halyk and then on the further advice of Dean MacKinnon. Some two years later he changed his mind and applied to the Supreme Court for an extension of time to apply for leave and for leave to appeal, raising some grounds of appeal for the first time. That application is now pending before the Supreme Court and is likely to be determined in the next three or four months. In the meantime the applicant wants to be released from custody. In the circumstances, and as a purely practical matter, I think the application for release is premature. say that because it is fraught with difficulty as it stands at the moment, because its complexion would change appreciably should the Supreme court extend the time and grant leave to appeal on one or two of the comparatively stronger grounds, and because the application pending before the Supreme Court will be determined shortly. Moreover, and more importantly, particularly as a matter of principle having regard for the requirements of section 679(3) (a) and (c), I am not satisfied that the prospective appeal as a whole is not frivolous and that the applicant\'s continued detention for the time being is not necessary in the public interest. The less say the better about the merit of the many grounds of appeal upon which the proceedings rest. Suffice it to say that in my judgment some are clearly destined for failure, as for example, is the ground the Court of Appeal erred in failing to give reasons for its judgment. Others are less so, perhaps—and here have in mind the two or three grounds upon which counsel for the applicant relied most heavily, including the issue concerning corroboration-but, even then, they do not cut to all of the convictions, but only some, nor to the entirety of the sentence. Furthermore, and to a significant extent, the new grounds of appeal are difficult to assess in their entirety, given the material before me. On the basis of that material, which is incomplete, I am not convinced the grounds relied upon have sufficient merit to satisfy the requirements of clause (a) of the section. Turning to the public interest, I think the present release of the applicant would be inimical to the public interest, having regard for the whole of the circumstances. To do so, in my judgment, would tend to undermine public confidence in the administration of justice, given the history of the past proceedings, the current state of the present proceedings, and unlikelihood, as Isee it, of the applicant succeeding either in having all of the convictions set aside or in having the sentence reduced to the time already served. For essentially these reasons—though I expanded upon them in argument, and in my oral disposition of the application—I decided to dismiss the application for release, without prejudice to further application should leave be granted to appeal to the Supreme Court of Canada on one or more of the grounds raised in the proceedings.

See also 150 SaskR 185.In 1998 the Court of Appeal dismissed the applicant's sentence appeal and appeal of his 1997 convictions which consisted primarily of sexual offences involving family members and others. The sentence of imprisonment was increased from 5 to 10 years. The applicant, on advice of two counsel, did not initially seek leave to appeal to the Supreme Court of Canada. He changed his mind 2 years later and sought an extension of time to apply for leave and for leave to appeal. The applicant brought an application for release from custody pending the SCC's decision. HELD: The application was dismissed without prejudice to reapply should leave to appeal be granted. 1)The application was premature. The application pending before the SCC was likely to be determined within 3 to 4 months. The Court of Appeal was not satisfied the appeal as a whole was not frivolous having regard for the requirements of s.679(3)(a) and (c). Some grounds for appeal would clearly fail such as the ground the Court of Appeal erred in failing to give reasons for its judgment. The new grounds of appeal were difficult to assess on the basis of the incomplete material before the court. 2)His continued detention was necessary in the public interest having regard for the whole of the circumstances. His release would undermine public confidence in the administration of justice.

2000skca99.txt

J. IN THE FAMILY COURT OF NOVA SCOTIA Citation: Family and Children’s Services of Yarmouth County v. T.S., V.M. R.S. and F.M., 2004 NSFC 13 Date: 20040915 Docket: 03Y027089 Registry: Yarmouth Between: Family and Children’s Services of Yarmouth County v. T.S., V.M., R.S. and F.M. Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on February 5, 2009. Publication restriction: Publishers of this case please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94 provides: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Judge: The Honourable Chief Judge John D. Comeau Heard: Wednesday, July 21, 2004,Yarmoututh, Nova Scotia Written Decision: Friday, September 24, 2004 Counsel: Martin J. Pink, Q.C., for the Applicant Timothy Landry, Esq., for the Respondent, T.S. V.M., not present and not represented Hugh Robichaud, Esq., for the Respondent, R.S. Patricia Reardon, Esq., for the Respondent, F.M. THE APPLICATION: [1] This is disposition hearing under s. 41(1) of the Children and Family Services Act respecting the child, D., born [in 2003]. THE ISSUES: Placement. Consideration of parenting plans of the paternal and maternal grandmothers as to placement under the Act for the long term best interests of the child. 2. Sibling contact and bonding reviewed. [4] The parties agree that the child is in need of protective services. Evidence used at the protection hearing is not disputed. This evidence is contained in the affidavit of Sarah Wallace, agent, Family and Children’s Services of Yarmouth County. [5] There are two children of the relationship between the parties; D., born [in 2003], and C., born [in 2002]. C. lives with the maternal grandmother in the Halifax area. [6] The father, V.M., is a convicted child abuser whose name appears on the Child Abuse Register, having been sentenced to thirty-nine (39) months in prison as a result of the conviction. His access to his son, C., is by court order, supervised only, but there was evidence he had the care of his son in an unsupervised situation. [7] Referrals were made with respect to D. from the Public Health nurse concerning parenting ability and missed medical appointments. V.M. also has unsupervised care of D. on occasion. [8] family support worker attempted to provide assistance to the parties but there was an indication baby food was being fed to the child when she was not quite four months old and not ready for it. [9] Concerns were also expressed by the local pediatrician, Dr. Dominique Couture. [10] Both parties were very uncooperative with the agency and it is clear neither party was willing to work with assistance towards learning sufficient parenting skills to take care of the child. PROFESSIONAL REPORTS: [11] I.W.K. Health Centre Assessment Summary: “Unfortunately, both parents do not have the ability to successfully parent D. without there being sufficient risks to D.’s healthy development. It is due to this that this report makes the sole recommendation that D. is child in need of protection who would ideally be placed for adoption.” [12] Dr. Michael S. Donaldson, Family Therapist/Custody Evaluator This report was commissioned by the court with the consent of the parties as follows: “Home Study Report to determine if grandparents (paternal or maternal) are able to look after the child.” [13] As result, Dr. Donaldson interviewed the paternal grandmother total of 3½ hours and the maternal grandmother total of 2½ hours. Collateral information was gained by reports or personal telephone interviews with Sarah Wallace, Child Protection Worker. [14] He recommends that D. be placed in the sole custody of the paternal grandmother. AGENCY PLAN: [15] The agency is requesting the following disposition: “The child, D., born [in 2003], shall be placed in the permanent care and custody of F.M., the paternal grandmother, and that the matter be dismissed pursuant to s. 42(1)(a) of the Children and Family Services Act.” [16] The paternal grandmother has made application for leave to apply for custody under the Maintenance and Custody Act. She has not filed formal plan of care. She relies on the agency plan. MATERNAL GRANDMOTHER’S PLAN OF CARE: [17] The maternal grandmother’s plan of care is as follows: “The child, D., shall be placed in the permanent care and custody of R.S., the maternal grandmother and that the matter be dismissed pursuant to s. 42(1)(a) of the Children and Family Services Act.” [18] She has not made application under the Maintenance and Custody Act but because the issues before the court are the parenting plans of both grandmothers, she will be joined as party to the proceeding started by the maternal grandmother under the Maintenance and Custody Act 03Y027089. [19] It should be noted that both grandmother’s indicate in their plans they would provide supervised access to both parents on frequent and regular basis. EVIDENCE IN SUPPORT OF THE RESPECTIVE PLANS: [20] The court heard evidence by the parties with respect to their plan of care. [21] The maternal grandmother, R.S., (45 years old), lives in two bedroom apartment in [the Halifax Regional Municipality], Nova Scotia, but would get larger one if she got custody. son, S., 18 years old lives there as well as D.’s brother, C. (28 months old) and they have very good relationship as he is with her all day every day. Her reasons for custody include the fact that she is her grandmother and he should be “raised” with her brother. The paternal grandmother was born [in 1938] and R.S., who is twenty years younger, has concerns about her age and what would happen to D. if she died. [22] There was some question about her (maternal grandmother) past and present use of alcohol or drugs but she says that is in the past and she only uses alcohol on occasion. The reason she has not visited with D. regularly is because of the distance she lives from the [area]. [23] D.’s mother supports the maternal grandmother in her quest to get custody and would move to the city if she gets custody. Another child of the maternal grandmother, R.S., also supports her having custody and expressed the good care C., D.’s brother, gets. [24] The paternal grandmother, F.M., was born in 1938. She lives with man the same age in [...], New Brunswick, and would take D. there and care for her. She had thirteen children and has thirty three (33) grandchildren and number of great grandchildren. [25] At the present time she resides in [...] because of the regular contact she has had with D. since apprehension. This she stresses, citing the maternal grandmother’s lack of contact. [26] She indicated that if there was problem with her caring for the child (age, health, death) she would go to T., the mother’s sister. [27] Although number of her children have been in regular conflict with the law, she says she has always exercised proper parenting skills. THE LAW: Section 42(1): Disposition Order 42(1) At the conclusion of the Disposition hearing, the court shall make one of the following orders, in the child’s best interests; (a) dismiss the matter; (b) the child shall remain in or be returned to the care and custody of parent or guardian, subject to the supervision of the agency, or specified period, in accordance with Section 43; (c) the child shall remain in or be returned to the care and custody of person other than parent or guardian, with the consent of that other person, subject to the supervision of the agency, for specified period, in accordance with Section 43; (d) the child shall be placed in the temporary care and custody of the agency for specified period, in accordance with Sections 44 and 45; (e) the child shall be placed in the temporary care and custody of the agency pursuant to clause (d) for specified period and then be returned to parent or guardian or other person pursuant to clauses (b) or (c) for specified period, in accordance with Section 43 to 45; (f) the child shall be placed in the permanent care and custody of the agency, in accordance with Section 47. Section 42(2): Restriction on Removal of Child 42(2) The court shall not make an order removing the child from the care of parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, (a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child, Section 41(5): Duty of court upon making order 41(5) Where the court makes disposition order, the court shall give (a) statement of the plan for the child’s care that the court is applying in its decision; and (b) the reasons for its decision, including; (i) statement of the evidence on which the court bases its decision, and (ii) where the disposition order has the effect of removing or keeping the child from the care or custody of the parent or guardian, statement of the reasons why the child cannot adequately protected while in the care or custody of the parent or guardian. PLACEMENT CONSIDERATIONS SIBLINGS: [29] Section 42(3) provides for consideration of placement with relative. The importance of keeping siblings together is recognized in s. 44(3) where an order for temporary care and custody is made. Section 44(3) Where the agency places child who is the subject of an order for temporary care and custody, the agency shall, where practicable, in order to ensure the best interests of the child are served, take into account; (a) the desirability of keeping brothers and sisters in the same family unit. [30] The court has duty to look at all plans from respective parties. This is statutory requirement and the burden of establishing an alternative to parental placement is squarely on the proponent. [31] Saunders, J.A., in Children’s Aid Society of Halifax v. T.B. [2001] N.S.J. No. 225 (N.S.C.A.) describes the burden or persuasion on the proponent of family (relative) placement at p. 10. “Quite apart from the statutory component, there are sound practical policy reasons for fixing the proponent of family placement with the burden of persuasion that have described. The things that motivate alternative proposals for family placement in child custody matters may be as varied as the factors that prompted the family crisis in the first place. In many cases, relative’s offer to provide shelter, love and support to another parent’s child will be driven by genuine affection and willingness to help. But in other cases, offers of assistance may be prompted by harsh, yet subtle catalysts, including threats or other forms of coercion by those whose power or control over the proposed custodian may go well beyond the current judicial proceeding. This reality may be quite difficult to discern; all the more reason to expect that the individual who volunteers to serve as an alternative family placement, be obliged to demonstrate that the proposed plan is workable, well motivated and worthy of serious consideration.” [32] The issue of separation of siblings is just one factor in considering an alternative (relative) placement. In considering this issue the court has reviewed the following decisions: [33] Mitchell v. Mitchell, 2002 BCSC 31 (CanLII), 2002 Carswell B.C. 37, 2002 B.C.S.C. 31 (S.C.) Johnson v. Johnson 2002 Carswell B.C. 311 and Boomhour v. Boomhour (2002) Carswell Ont. 2626, 31 R.F.L. (5th) 48 (S.C.J.) This is serious consideration. CONCLUSIONS/DECISION: [34] The agency, in its plan of care, supports alternative placement with the paternal grandmother. They believe she is more connected to the child and has taken more interest in the long term care than has the maternal grandmother who is asking for care and control of the child. [35] The report and assessment of the I.W.K. does not support the agency plan. They recommend the child be placed for adoption. It should, however, be noted that the I.W.K. assessors were only considering the parents’ ability to provide long term care. [36] Both grandparents who are putting forth plan are somewhat critical of the other’s ability to parent. In order to determine which is the workable plan in the best interests of the child, there are number of factors to be looked at with respect to the benefits or weaknesses of both parties. [37] Paternal Grandmother [38] She is 66 years old and lives with man about that age, in other words, both are senior citizens and reside in [...] New Brunswick. The evidence discloses that number of her children have, because of their actions (trouble with the law over the years) brought her parenting into question. She does have stable home and the child would live alone with her and common law husband. It is clear that she has visited with the child while in care and taken what is considered great interest. [39] There are three negatives that should be considered; the senior age of the proposed custodian, her past parenting ability and the fact no other children or siblings reside in her home. The Maternal Grandmother [40] She is 45 years old and lives in [the Halifax Regional Municipality] and lives with her son who is 18 years of age. The child (D.’s brother) lives there as she has custody of him. He is 28 months old and she spends all day, every day, with him. She believes siblings should be together and her daughter (D.’s mother) supports her. In fact, the mother would move at or near [the area] so she could see her child on occasion, if the maternal grandmother gets custody. [41] The negative aspect raised in the evidence is that there was some question about her past and present use of alcohol and drugs. She says this is in the past and there is no evidence before the court that this is not so. [42] There is some testimony from another family member that the maternal grandmother has and is providing good and adequate care for D.’s brother. [43] Mr. Donaldson, in his report, expresses some concern over the maternal grandmother’s parenting plan; “...it is my opinion that F.M. (the paternal grandmother) is able to provide for the needs of child whereas R.S. (the maternal grandmother) is not in position to do so at this time. Were D. to be raised in the care of R.S. (maternal grandmother) she would be raised in an environment that could only be described as impoverished and unstable. Given the concerns raised in this assessment regarding inadequacies in R.S.’s parenting capacity, it would seem an unnecessary risk to D. to not place her with F.M.. Risks, such as her inability to adequately nurture D., to provide for her materially, to not place her in an environment of risk, etcetera, are evident.” [44] Mr. Donaldson does not see any problem with the paternal grandmother’s age. [45] The issue of separation of siblings has been addressed by the courts in numerous custody cases. In Zinck v. Zinck (1973), 1973 CanLII 1247 (NS CA), N.S.R. (2d) 622, the Nova Scotia Appeal Division discussed the use of this factor. “The appellant contended that the learned trial judge had disregarded rule that children should not be separated from each other unless “absolutely necessary” (a phrase used in Bromley on Family Law, 3rd ed., p. 310). do not think that this proposition should be elevated to principle or rule of law. It is undoubtedly desirable, if it can be accomplished, to keep children of family together, so that they may share the affection and support of each other and grow up with sense of family solidarity. This, however, is only one factor of the many that must be balanced and considered in determining what is in the best interest of the individual children respectively.” [46] These are very young children and there is no evidence of bond between them. This does not, however, preclude consideration of future bonding if there is enough contact. [47] Considering all the evidence before the court, including the two plans of care, there is a bond between the paternal grandmother and the child. She would facilitate access and protect the child from her own son whose access must always be supervised. She is better set up in her home to receive the child. She is more financially stable. The maternal grandmother indicated she would have to move to larger residence and would do that if she got custody. [48] It is in the best interest of the child, D., that this matter be dismissed and by separate order, the court will grant leave to the paternal grandmother to apply for custody. An order will issue under that Act (Maintenance and Custody Act) granting custody to the paternal grandmother who will be required to facilitate access amongst the various parties, some of which will be supervised within her discretion. John D. Comeau Chief Judge of the Family Court for the Province of Nova Scotia

The mother was unable to care for the child and the father, who had been convicted of sexual assault, was only entitled to supervised access. Both the paternal and maternal grandmothers presented plans of care to the court, with the paternal grandmother seeking custody and the maternal grandmother seeking care and control of the child. The child had a younger sibling who was in the maternal grandmother's custody and her daughter, the mother of the child, supported the plan of the maternal grandmother. The Agency supported the paternal grandmother. Custody granted to the paternal grandmother with reasonable access to the maternal grandmother and supervised access to the parents. The paternal grandmother was better able to care for the child financially and her circumstances were such that it was in the child's best interests to grant her custody. The issue of separation of siblings was only one factor in considering an alternative (relative) placement; the children were very young and there was no evidence of a bond between them.

d_2004nsfc13.txt

2000 S.H. No. 165509 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Delta Sydney and Canadian Auto Workers Canada, Local 4624 Sydney, 2001 NSSC 18] IN THE MATTER OF: THE ARBITRATION ACT, R.S.N.S., 1989, c. 19 -and- IN THE MATTER OF: AN ARBITRATION PURSUANT TO COLLECTIVE AGREEMENT and IN THE MATTER OF: AN APPLICATION BETWEEN: DELTA SYDNEY and CANADIAN AUTO WORKERS CANADA, LOCAL 4624 SYDNEY DECISION HEARD BEFORE: The Honourable Justice Robert W. Wright, in Chambers on December 11, 2000 at Sydney, Nova Scotia WRITTEN RELEASE OF DECISION: February 2, 2001 COUNSEL: Counsel for the Applicant Nancy F. Barteaux Counsel for the Respondent Blaise MacDonald WRIGHT J. INTRODUCTION [1] This is an application for judicial review of the decision of a labour arbitrator released on July 21, 2000 in respect of a grievance arbitration heard in Sydney, Nova Scotia on May 10, 2000. The arbitration involved the interpretation of certain seniority provisions of collective agreement between the parties which was effective on October 1, 1999 and expires on September 30, 2002. [2] The grievor was Ms. Kathy Fraser. She was member of the respondent union and had been employed at the Delta Sydney hotel since 1989 in various capacities. At the time of the grievance, she was employed in the front desk department of the hotel. [3] The essential facts surrounding this matter are not in dispute. After working full-time in various capacities in the hotel for some ten years, Ms. Fraser, through successful grievance, acquired part-time position in the front desk department on or about May 31, 1999. [4] Upon taking up her new position in the front desk department, Ms. Fraser was placed at the bottom of the departmental seniority list behind Kim MacMaster, Judy McPhee and Lisa Clamp. She recognized this when she took the job. Her hotel seniority, of course, remained unchanged which was greater than that of each of the three above named employees. [5] It was only about two months later that Ms. MacMaster (who had the most front desk departmental seniority) went on maternity leave. Her departure, along with another at about the same time, enabled Ms. Fraser to work more hours and by the time the seniority lists were circulated around February 1, 2000 she had become full-time employee in that department. [6] On February 8, 2000 Ms. MacMaster returned to work from her maternity leave maintaining, of course, her top spot on the departmental seniority list. This resulted in a reduction of the hours of work allotted to Ms. Fraser by the hotel, based on its application of the departmental seniority list under Article 14:05. That is to say, Ms. Fraser was the first to experience reduction of work hours in the front desk department where she placed fourth on the departmental seniority list behind Ms. MacMaster, Ms. McPhee and Ms. Clamp. [7] Ms. Fraser considered that any reduction in work hours should instead have been predicated on hotel seniority which she held over all three of these employees in her department. She therefore filed a grievance on February 17, 2000 which reads as follows:I was given less hours than Lisa, Judy and Kim who all have less hotel seniority than me. Therefore, the person with the less hotel seniority was the one who should have their hours reduced, not me. [8] Ms. Fraser alleged that the reduction of her work hours based on departmental seniority constituted a violation of Article 9 of the collective agreement. Through her grievance, she sought allotment of work hours based on her hotel seniority and recovery of her loss of wages attributable to the reduction in her hours since Ms. MacMaster’s return from maternity leave. [9] At the outset of the Decision segment of her award, the arbitrator stated that she was left with the task of trying to balance for the parties the interests of departmental seniority and hotel seniority. In doing so, she referred to the three key Articles in the collective agreement which are at play here. They are as follows: Article Seniority 9:01 The purpose of seniority is to afford preference to senior employees in recognition of length of service. Hotel seniority shall mean the total length of service with the hotel, from the most recent date of hire. When an employee is faced with lay-off (as defined in article 11:01), that employee may bump another employee, with less hotel seniority (as defined in article 11:02), from their position provided the employee has the ability to perform the work involved in that position. In the event of an indefinite reduction of hours within department, the person with the least hotel seniority within that department will be reduced. When an employee exercises this bumping right, his or her hotel seniority will determine their departmental seniority. 9:02 Departmental seniority shall mean the length of service with hotel department, from the most recent date of assignment to department. The departments within the hotel shall be as follows: 1. Front Desk ... Departmental seniority determines maximizing of hours, promotions, overtime assignments, and vacation allocation within that department. The fitness center will be excluded in “overtime assignments”. Article 14 HOURS OF WORK AND BREAKS 14:05 All employees shall be allotted and will have preference of hours up to forty (40) hours per week on the basis of their departmental seniority standing. [10] The arbitrator also referred to Article 11:01 which defines lay-off as an indefinite discontinuation of employment and to Article 11:08 which provides an employee with the opportunity to displace less senior employee within their departmental group in the period of October 15 to April 15 of the following year (the hotel’s slow season) for the purpose of restoring or maximizing hours, precluding overtime. [11] The latter provision is really of no consequence here because there was never an attempt by Ms. Fraser to invoke it. The arbitrator did make the finding, however, that this was not lay-off situation. She therefore turned to the question of whether or not this was situation where there had been “an indefinite reduction of hours within department” which would trigger the application of hotel seniority under Article 9:01. [12] In addressing that question, the arbitrator found that the return to work by Ms. MacMaster from maternity leave did result in reduction of available hours of work for employees with less departmental seniority and that Ms. Fraser was the first to thereby experience reduction in her work hours. She further found that the return to work by Ms. MacMaster did not result in reduction of total hours available for work assignments within the department. She then nebulously stated her belief that the wording of Article 9:01 is wide enough to encompass this situation, thereby effectively finding that the hotel had breached Article 9:01 by reducing hours of work for employees on the basis of the departmental seniority list rather than the hotel seniority list. [13] The core of the arbitrator’s decision is reproduced as follows: Is the return of Ms. MacMaster to her employment an “indefinite reduction of hours within department”? Her return had not resulted in reduction of the total hours available to be assigned for work within the department, and that cannot be disputed. Her return has resulted in the reduction of available hours for work for employees who have less departmental seniority than she. believe the wording of the clause is wide enough to encompass this situation. Further because the reduction has been caused by personnel change, it is “indefinite”. It is as indefinite as if there was the elimination of position in department. This interpretation also adheres to the long held principle that “the purpose of seniority is to afford preference to senior employees in recognition of length of service”, and also preserves the purpose of departmental seniority. [14] The hotel has now applied for judicial review of the arbitrator’s decision, seeking to have it set aside under s.15(2) of the Arbitration Act R.S.N.S. 1989, Ch. 19. STANDARD OF REVIEW AND POSITIONS OF THE PARTIES [15] It is now well established and accepted that where labour relations tribunals or arbitrators are called upon to interpret or apply collective agreement under the umbrella of privative clause, reviewing court can only intervene in the case of patently unreasonable error (see, for example, Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 1998 CanLII 780 (SCC), [1998] S.C.R. 1079 and the authorities therein cited). Both counsel acknowledged that this was the standard of review to be applied in the present case. [16] Counsel for the hotel argues, however, that the arbitrator has committed patently unreasonable error by interpreting Article 9:01 in manner which its language cannot reasonable bear. It is argued that by interpreting the words “indefinite reduction of hours within department” as being wide enough to encompass the situation where the grievor’s work hours were reduced because of the return to work from maternity leave of another employee with greater departmental seniority, the arbitrator has, in effect, amended or added to the language of Article 9:01. It is contended that this was beyond the jurisdiction of the arbitrator. [17] Counsel for the hotel further submits that the clear language of Article 9:01 confines its application to the situation where there has been an indefinite reduction of hours overall within department which was not the situation here at all. It is argued that there is no evidentiary foundation for the interpretation of Article 9:01 adopted by the arbitrator and that it renders nugatory the language of Article 14:05 which provides that hours of work are to be allotted in accordance with departmental seniority. [18] It was also pointed out by counsel for the hotel that the interpretation of Article 9:01 adopted by the arbitrator was not even argued before her. Rather, the Union argued at the arbitration hearing (at which stage it was unrepresented by legal counsel) that Article 9:01 applied because “an indefinite reduction of hours within department” had occurred, not by reason of Ms. MacMaster’s return from maternity leave, but rather by scheduling surrounding the hotel’s slow season. [19] With this application for judicial review having been made, the Union retained legal counsel who essentially argued that there were two linguistically possible interpretations between which the arbitrator could choose in interpreting Article 9:01. More specifically, it was submitted that the arbitrator had to decide whether “hours” within Article 9:01 referenced hours of individual employees within the department or the total overall hours assigned by the employer to the employees collectively within that department. It was submitted that the arbitrator’s interpretation that the clause refers to reduction of work hours of an individual employee within the department, and not the total overall hours within the department, is not only permissible interpretation but the correct one. It was urged upon the court that even if the wrong interpretation was chosen by the arbitrator, her interpretation could not be said to be patently unreasonable and hence the court ought not interfere with her decision. Counsel also points to the deemed privative clause provisions under s. 42(2) of the Trade Union Act and to s. 5(h) of the Arbitration Act. WAS THE ARBITRATOR’S AWARD PATENTLY UNREASONABLE? [20] The Supreme Court of Canada has on number of recent occasions endorsed policy of judicial restraint with respect to the review of decisions of consensual arbitrators. It is recognized that courts should not interfere with an arbitrator’s decision where it involves an interpretation of collective agreement (and they should be even more hesitant to do so where the arbitration is consensual), unless the interpretation given is patently unreasonable so as to demand intervention by the court. As reiterated in Safeway, this is very high standard which will not easily be met. [21] The Supreme Court of Canada has also endeavoured in number of recent cases to redefine what is meant by reasonableness, notably in Canada (Attorney General) v. P.S.A.C. 1993 CanLII 125 (SCC), [1993] S.C.R. 941 and again in Toronto (City) Board of Education v. O.S.S.T.F., District 15 et al. 1997 CanLII 378 (SCC), [1997] S.C.R. 487. In the latter case (at p. 508), Cory J. reiterated what constitutes patently unreasonable decision as follows: In PSAC No. 2, supra, it was put in this way at pp. 963-64: It is said that it is difficult to know what “patently unreasonable” means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets high standard of review. In the Shorter Oxford English Dictionary “patently”, an adverb, is defined as “openly, evidently, clearly”. “Unreasonable” is defined as “not having the faculty of reason, irrational, not acting in accordance with reason or good sense”. Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was loss of jurisdiction. This is clearly very strict test. Yet courts also have duty to protect parties from decision which is patently unreasonable. [22] This excerpt was again quoted by Cory and McLachlin JJ. in the Safeway case, supra, (at para. 61) who then went on to say: In order to justify judicial intervention, the arbitrator’s decision must be more than simply unreasonable. In Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] S.C.R. 748, at para. 57, Iacobucci J. described the difference between an unreasonable and patently unreasonable decision as follows: The difference. lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. reviewing court cannot intervene simply because it disagrees with the reasoning of the arbitration board or because it would have reached different conclusion. To do so would be to usurp the power of the administrative tribunal and to remove from it the ability to arrive at erroneous conclusions within its area of specialized expertise. [23] Reference is also made to the discussion of the patently unreasonable test in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. 1993 CanLII 88 (SCC), [1993] S.C.R. 316 at pp. 340-41. [24] It follows that the courts must be careful to focus their inquiry on the existence of rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result (see CAIMAW v. Paccar of Canada Ltd. 1989 CanLII 49 (SCC), [1989] S.C.R. 983 at p. 1003). [25] With that direction, have focused my inquiry on how the arbitrator arrived at the result she did. Her essential findings of fact can be summarized as follows: (a) This was not lay-off situation; (b) Ms. MacMaster’s return from maternity leave did result in reduction of available hours of work for employees in the front desk department with less departmental seniority and the grievor was the first to experience such reduction; (c) Ms. MacMaster’s return from maternity leave did not result in reduction of total hours available for work assignments overall within the department; (d) The reduction in the grievor’s work hours was “indefinite” because it resulted from personnel change. [26] She then concluded that the wording of Article 9:01 is wide enough to encompass this situation. [27] It is difficult to follow the arbitrator’s reasoning in reaching this conclusion. As referred to in the Brown Beatty text on Canadian Labour Arbitration (3rd. ed.) at section 4:2100, it has often been stated that the fundamental object in construing the terms of collective agreement is to discover the intention of the parties who agreed to it. The function of the trier of fact is to ascertain what the parties meant by the words they have used. [28] Article 9:01 (and the application of hotel seniority) can only be triggered where there is first finding that there has been an “indefinite reduction of hours within department”. In my view, the plain meaning of that threshold clause is that it refers to an indefinite reduction of hours overall within department. The object of the clause, grammatically speaking, is hours within department and it cannot be reasonably construed as being intended to apply to the situation where an individual employee’s work hours are reduced because another employee with greater departmental seniority returns from maternity leave. do not see any logical basis upon which words of that import can be read into the language of Article 9:01. [29] Nor can support for such an interpretation be otherwise found from the context in which the subject clause appears or from the language of the collective agreement as whole. The framework of the collective agreement contemplates that hotel seniority shall apply whenever there is lay-off or whenever there has been an “indefinite reduction of hours within department”. These two provisions are found one after the other under Article 9:01. They are to be contrasted with Articles 9:02 and 14:05 which contemplate that maximizing of hours and the allocation and preference of hours up to 40 hours per week will be based on departmental seniority standing. It would be an incongruous result if the allotment and maximizing of individual employee work hours within department were based on departmental seniority while reduction of an individual employee’s hours of work within department were based on hotel seniority, especially where precipitated by the expiry of another employee’s maternity leave. [30] Neither can support for the arbitrator’s interpretation be found in the evidence recited in her award. There were only two witnesses called at the arbitration hearing, namely, the grievor Kathy Fraser and the hotel’s front desk manager, Denise Duffy. Their evidence does clearly support the findings of fact made by the arbitrator which have summarized in paragraph 25 of this decision. With respect to the application of Articles 14:05 and 9:01, however, the grievor’s evidence is recited in the arbitrator’s award as follows (at p. 7): In relation to Article 14:05 she stated that departmental seniority applied and if an employee had more departmental seniority and if they applied under Article 14:05 they would be able to maximize their hours within the department. Further, they would be able to pick their vacations ahead of her and obtain promotions ahead of her. Article 9:01 however only speaks to overall hotel seniority in relation to bumping rights for an indefinite reduction of hours within department. She stated in her re-direct that scheduling and maximizing hours for overtime assignments and vacations were dealt with by way of departmental seniority and the reduction of overall hours within department was dealt with by way of hotel seniority. [31] The evidence of Ms. Duffy was that as front desk manager, it is her responsibility to do the scheduling. The relevant part of her evidence on this point was recited in the arbitrator’s award as follows (at p. 9): When asked what documents she referred to when she did her scheduling she advised she referred to Exhibit “3" [the seniority list for the year 2000] and the departmental seniority column. As to how she determined who got what hours the witness stated she would start at the top of the clerks’ seniority within the department and work her way down. She also stated that this was how it had been done in previous years and in other departments. [32] That evidence, limited as it may be, only serves to reinforce that in the administration of the collective agreement, it is departmental seniority standing that governs when it comes to allotment and scheduling of hours of work for individual employees whether they are being maximized or reduced. It lends no support to the arbitrator’s conclusion that hotel seniority standing should govern under Article 9:01 in the situation where an individual employee’s work hours are reduced because another employee with greater departmental seniority returns from maternity leave. [33] Another dimension to be considered in this analysis is the anomalous result which theoretically could have been produced by the arbitrator’s conclusion, namely, that someone like Ms. MacMaster (and the other employees with more departmental seniority than the grievor) might be detrimentally affected by the maternity leave while the grievor might benefit therefrom in terms of allotment of work hours. Ms. MacMaster was not actually at risk of that happening in this case because she was next highest in hotel seniority to the grievor as well as the most senior employee on the front desk departmental seniority list and there are always at least two persons required to staff the front desk. However, if similar case were to arise where the employee returning from maternity leave was farther down the seniority list, such an anomalous result could occur. This is inconsistent with the presumed intention of the parties. [34] The arbitrator briefly alluded to this at page 13-14 of her award when she posed the question: Further, if Ms. MacMaster was out on extended sick leave, and her date of return was not clearly anticipated, should the Grievor be in effect penalized upon her return? [35] With respect, the question to be posed in this analysis is not whether the grievor should in effect be penalized in this situation, she having had the benefit of working additional hours in the front desk department during Ms. MacMaster’s maternity leave. The question to be asked is whether Article 9:01 can reasonably be given an interpretation that has the potential to detrimentally affect employees returning from maternity leave, depending on their standing of seniority. In my view, it cannot. CONCLUSION [36] For all the above reasons, I find that the arbitrator’s conclusion that the wording of Article 9:01 is wide enough to encompass the situation at hand is patently unreasonable. Her conclusion ascribes meaning to that clause which its words cannot reasonably bear and which interpretation was apparently not even argued before her at the arbitration hearing. Although there is clear evidentiary support for her essential findings of fact, I am unable to determine the existence of any logical process by which the final conclusion drawn from the evidentiary foundation was made. This patent defect, and the arbitrator’s implicit finding that the hotel violated Article 9:01 of the collective agreement, is such that it warrants the intervention of the court on judicial review. [37] Accordingly, the application is granted and an Order will be issued setting aside the award of the arbitrator. The applicant hotel is also entitled to its costs of the application which are hereby fixed in the amount of $1500 plus taxable disbursements.

The grievor was employed in the front desk department of a hotel and her hours of work were reduced when another employee from the same department returned from maternity leave. The latter had greater departmental seniority than the grievor but less hotel seniority. The grievor filed a grievance claiming that under the collective agreement any such reduction of hours of individual employees should be based on hotel seniority, rather than departmental seniority. The arbitrator upheld the grievance and the hotel applied for judicial review. Application allowed; the arbitrator's interpretation of the collective agreement was patently unreasonable and her award should be set aside. The court's focus must be on the existence of a rational basis for the decision of the tribunal and not on whether it agrees with the decision. Although there was evidentiary support for the arbitrator's essential findings of fact, no logical process could be ascertained by which the final conclusion drawn from the evidentiary foundation was made.

d_2001nssc18.txt

Justice Q.B.G. A.D. 1998 No. 47 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LABOUR STANDARDS ACT, R.S.S. 1978, c. L-1 APPEAL BETWEEN: LILLIAN KOVACH RESPONDENT (COMPLAINANT) and CAJON INVESTMENTS INC. APPELLANT (RESPONDENT) M. Brass for the respondent M. Griffin for the appellant JUDGMENT KLEBUC J. March 23, 1998 [1] The appellant ("Cajon") seeks an order quashing thedecision of an adjudicator made following a hearing pursuantto s. 62.1 and 62.2 of The Labour Standards Act, R.S.S. 1978,c. L-1. The grounds relied on by Cajon give rise to thefollowing issues: (1) Did the adjudicator err in law byfinding that the respondent Kovach byher conduct had not frustrated orfundamentally breached her employmentcontract? (2) Whether the adjudicator exceeded hisjurisdiction by holding that Cajon,as Ms. Kovach\'s employer, had anobligation to attempt to resolveplace of work difficulties thatprohibited her from reporting towork? [2] The Director of Labour Standards ordered Cajon to pay its employee, Ms. Kovach, the sum of $1,500.00 in lieu of proper notice of termination. Cajon appealed the order whereupon hearing was conducted before an adjudicator pursuant to s. 62 of the Act. Dirk Silversides, the adjudicator appointed to hear the s. 62 appeal, upheld the director's order. Cajon then launched the appeal now before the Court. The record before the Court is limited to the adjudicator's decision and the exhibits filed. [3] Cajon operates three hairstyling salons in Regina, Saskatchewan under franchise agreement with Magicuts Inc. One of the salons is located in an area within the "Zellers Store at the Northgate Mall" which Magicuts Inc. leased from "Zellers" and sub-leased to Cajon. The only access to the salon by Cajon's employees and customers was through the Zellers Store. [4] Cajon had employed Ms. Kovach since March of 1990. During the last three years of her employment she worked at its Victoria Square Mall Salon. During her lunch break on January 8, 1997, Ms. Kovach entered the Zellers Store and picked up three pencils which she intended to purchase. Because of long line up at the checkout counter and the limited time available to her, she took the pencils to staff room provided by Zellers where the manager of the Zellers Store and security guard immediately accused her of shoplifting, detained her and called for police assistance. After Ms. Kovach was interviewed by police officer and charged with shoplifting, the store manager or the security guard ordered her out of the Zellers Store and informed her that she could not return. Two days after the event, Mr. Johns informed Ms. Kovach that she could not return to work at the Victoria Mall Salon nor work at another Cajon salon. She then sought and obtained record of employment from Cajon which stated: "Unable to come to work. Frustration of contract." The Crown withdrew the shoplifting charges on February 3, 1997. The Adjudicator's Decision [5] The adjudicator rejected Cajon's submission that Ms. Kovach had frustrated or breached her employment contract, thereby releasing Cajon from any obligation to pay wages in lieu of notice. In his decision he distinguished Thomas v. Lafleche Union Hospital, 1991 CanLII 8039 (SK CA), [1991] W.W.R. 209, 93 Sask. R. 150 (C.A.) and applied the test outlined in O'Connell v. Harkema Express Lines Ltd. (1982), 1982 CanLII 3198 (ON SC), 141 D.L.R. (3d) 291 (Ont. Co. Ct.). In O\'Connell, the trial judge at p. 303 set out six essentialelements for determining whether events had frustrated anemployment contract:. . . [It] is incumbent upon the[defendants] to prove that which isunderlined [italicized] below. . . .1. A critical rather than a trivialsupervening event. . .2. An event not of short duration butprotracted in time. . .3. An event not within the contemplationof the parties. . .4. An event coming about without fault oneither party. . .5. An event that rendered the partiesincapable of performing their contractualobligations. . .6. The performance of a contract thatwould radically alter the originalagreement into something other than thatintended. . . Mr. Silversides concluded that Cajon had failed to meet thethresholds stipulated in O\'Connell, particularly the fifthelement. His reasons are stated at p. of his decision: I do not believe there was sufficientevidence to show that the Respondent[Cajon] was incapable of performing itsobligations--i.e. permitting the employeeaccess and egress to the workplace. The Respondent's president, Mr. Johns, did not at any time examine his company's lease (which was, regrettably, not produced at the hearing) with the franchisor/Zellers in order to determine whether the rights of access and egress were guaranteed to the Respondent and its employees (which seems likely) and under which circumstances, if any, these rights could be suspended or terminated. Rather, Mr. Johns simply contacted the franchisor and was told that his employees should have followed the rules imposed upon Zellers employees. This does not seem reasonable on the part of the Respondent in the circumstances. It has seven-year employee who presumably had performed her work satisfactorily and the only efforts by the employer were to ask Zellers whether it was acting reasonably and to make the inquiry (just described) of the franchisor. An employer surely must be expected to make further inquiries and to engage in further efforts to ensure that it can comply with its obligations under the employment contract (i.e. to permit its employees access to the workplace) before it can claim that it is incapable of performing its contractual obligations- -whether that involves, firstly, ensuring that Zellers had the right to bar employees of the Respondent pursuant to the lease or, secondly, if Zellers did have this right, to at least attempt to work out solution to this problem (e.g. permit the Complainant [Kovach] to be escorted to and from her workplace across Zellers' premises). By not engaging in these further inquiries and efforts outlined above the Respondent has not satisfied me that it was incapable of carrying out its obligations, and therefore conclude that the doctrine of frustration cannot be applied to the circumstances of this case. [6] The right of appeal by an employer arises under s. 62.3(1) which reads: 62.3(1) An employer may, by notice of motion, appeal decision of the adjudicator on question of law or of jurisdiction to judge of the Court of Queen's Bench within 21 days after the date of the decision. The nature and extent of such right are canvassed in Baird v. Lawson (1996), 1996 CanLII 6673 (SK QB), 22 C.C.E.L. (2d) 101 (Sask. Q.B.) and Sikorski v. Tri-Hospital Patient Transport and Courier Ltd. (1995), 1995 CanLII 6130 (SK QB), 136 Sask. R. 61 (Q.B.). In Baird, Baynton J. at p. 108 defined the right of appeal in the following terms: The appellants' right of appeal is limited by s. 62.3(1) to question of law or jurisdiction. It is not valid ground of appeal that the adjudicator's findings of facts are incorrect. Even where appeals can be made on grounds of mixed fact and law (such as under The Small Claims Act), the appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact. It can only intervene if the findings of fact are not reasonably supported by the evidence (often termed "palpable and overriding error"). Wedge J. in Sikorski, supra, at pp. 64-5, after considering several authorities, concludes that curial deference should be extended to the findings of fact made by an adjudicator even though the court is considering an appeal and not judicial review. Accordingly, the court should be even less inclined to interfere with the findings of fact by an adjudicator than in the case where an appeal can be brought on ground of mixed law and fact. Only if finding of fact is patently unreasonable does it constitute an error of law that justifies the intervention of the appeal court. As pointed out by Wedge J. in Sikorski at p. 64, without the benefit of transcript, an appeal court is unable to make determination as to whether findings of fact can be reasonably supported by the evidence (the standard of review applicable on appeals allowed on grounds of mixed law and fact). This leaves the court with standard of review limited to instances in which the adjudicator exceeds or fails to exercise jurisdiction or is incorrect in law. The latter ground includes factual decision that is patently unreasonable. [7] While agree with his statement of the general principles, it is important to note that the phrases "patently unreasonable" and "degree of deference" in s. 63(1) appeal may have meanings materially different from those attributed to them in judicial review. Since, the precise definition of neither term is material to the matter before me and counsel have not addressed the same, will leave their definition for consideration in future [8] The hearing process before the adjudicator is not highly specialized one. Consequently, the correctness test applicable to general questions of law apply. [9] In my view, the adjudicator applied theappropriate principles of law to the facts, as hefound them. In addition, his findings of fact cannot be said to be "patently unreasonable" because there was some evidence before him on which he could arrive at the same. Therefore, the appeal based on the submission that the adjudicator erred in law by ruling that the employment contract was not frustrated by Ms. Kovach's conduct is dismissed. [10] The second ground of appeal based on the adjudicator exceeding his jurisdiction also fails. In my view, the adjudicator acted well within hisjurisdiction when determining what the terms of Ms.Kovach\'s employment contract were and that Cajon hadnot fulfilled obligations thereunder. Although not all of the facts presented to him are known to this Court, his decision outlines some evidence upon which he could have arrived at his conclusions. [11] The appeal is dismissed with costs.

The appellant sought an order quashing a decision of an adjudicator following a hearing pursuant to s. 62 of the Labour Standards Act. The Director of Labour Standards ordered the employer to pay $1,500 in lieu of a proper notice of termination. The grounds raised were that the adjudicator erred in law in finding the respondent had not frustrated or fundamently breached her employment contract; the adjudicator exceeded his jurisdiction by holding the employer had an obligation to attempt to resolve the workplace difficulties that prohibited the respondent from reporting to work. The employee had been charged with stealing three pencils on her way through a store to the salon where she worked. The Crown subsequently withdrew the shoplifting charges. She was prohibited from returning that the store and as there was no alternate entrance to the salon the employer treated the contract as frustrated or breached, therefore releasing him of any obligation to pay wages in lieu of notice. HELD: The appeal was dismissed with costs. 1)The adjudicator concluded the employer failed to meet the thresholds stipulated in O'Connell which set out the six essential elements for determining whether events had frustrated an employment contract: a critical rather than a trivial supervening event; an event protracted in time; not within the contemplation of the parties; coming about without fault on either party; an event that rendered the parties incapable of performing their contractual obligations; the performance of a contract would radically alter the original agreement into something other than that intended. The employer did not establish he was incapable of performing his obligations by permitting the employee access to the workplace. 2)The phrases 'patently unreasonable' and 'degree of deference' in a s63(1) appeal may have meanings materially different from those in a judicial review. 3)The hearing process before the adjudicator is not a highly specialized one. The correctness test was applicable to general questions of law. The adjudicator applied the appropriate principles of law to the facts as he found them. 4)The adjudicator acted within his jurisdiction when determining the terms of the employment contract and that the employer had not fulfilled his obligations.

4_1998canlii13643.txt

S.C.C. 02386 S.C.C. 02387 S.C.C. 02388 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Chipman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, JAMES ARTHUR GOODWIN, Respondents Mr. K.W.F. Fiske and Ms. D.C. Smith, for the appellant Mr. R.J. MacDonald, for the respondents Appeal Heard: May 28, 1991 Judgment Delivered: May 28, 1991 BY THE COURT: Appeals allowed, acquittals set aside and convictions restored for violations of s. 172 (now s. 192) of the Motor Vehicle Act, per oral reasons for judgment of Clarke, C.J.N.S., Hallett and Chipman, JJ.A. concurring. The reasons for judgment of the court were delivered orally by CLARKE, C.J.N.S.: The respondents, Messrs. Boyd, Goodwin and Adshade were convicted, after their trials, and fined for operating overweight vehicles on the Bedford Highway in the County of Halifax. The offence with which each was charged was a violation of the Motor Vehicle Act, then s. 172 of R.S.N.S. 1967, c. 191, and now s. 192 of R.S.N.S. 1989, c. 293, and the Regulations made pursuant to the Act. Relevant to the offence are the following sub‑sections of s. 172 (now s. 192): 192 (I) Any peace officer having reason to believe that the weight of vehicle and load is in excess of the maximum permitted by any regulations made under this Act, the Public Highways Act or any Act or regulation is authorized to weigh the vehicle either by means of portable or stationary scales, and may require that the vehicle be driven to the nearest scales, in the event such scales are within distance of kilometres. (3) In lieu of proceeding to such scales, the weight of the load may be determined by portable weighing device provided by the peace officer and it shall be the duty of the driver of the vehicle to facilitate the weighing of the vehicle and the load by any such device. Also relevant to the issues at trial and on appeal is s. 174 (now s. 193) which provides: 193 In prosecution proof of the reading of any scale or weighing device is prima facie evidence of the accuracy of the scale or weighing device and of the reading. At the trial of each respondent, Judge Curran of the Provincial Court, heard the evidence adduced by the Crown. None was given by or on behalf of each of the defendants (now respondents). The evidence before the trial judge was that the truck of each defendant was weighed by peace officer, who first had reason to believe each vehicle was overweight. Mobile scales authorized by the Department of Transportation of the Province of Nova Scotia were used to weigh each vehicle in the manner provided by the Regulations. In each case each vehicle was substantially overweight. Each weighed considerably in excess of the allowable tolerance of 500 kilograms. Counsel for each defendant (now respondent) argued at trial that s. 174 (now s. 193) by providing that in his prosecution proof of the reading of any weighing device is prima facie evidence of the accuracy of the weighing device and of the reading, is contrary to s. II (d) of the Canadian Charter of Rights and Freedoms and is not saved by s. I. Counsel argued the Crown must be required to prove the accuracy of the weighing device: otherwise defendant is by s. II (d) not presumed innocent until proven guilty according to law. Judge Curran considered, but rejected, the Charter arguments. He found on the evidence that the Crown had proved each case by showing that each vehicle was substantially overweight and that the scales were generally accurate. Inspector Sadler testified that the scales were tested on monthly basis by Howe Richardson, an outside firm, described by him as "a national scale company that services and maintains the scales for the Department of Transportation". As to the weights, Mr. Boyd's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 25,600 kilograms. On his first charge, Mr. Adshade's vehicle was allowed 17,500 kilograms including the tolerance. His vehicle weighed in at 23,600 kilograms. On his second charge, the vehicle weighed in at 26,500 kilograms. Mr. Goodwin's vehicle was allowed 18,000 kilograms. It weighed in at 27,900 kilograms. Judge Curran said that in the case of Mr. Boyd, on the evidence that was before me, can see no reason whatever to doubt the general accuracy of the scales that were used in this case. In the case of Mr. Goodwin, in the face of similar evidence from the Inspector, the trial judge said, am satisfied the particulars are made out here and don't think there is any need to go into them at any length. In the case of the first charge again Mr. Adshade, similar evidence having been given by Inspector Richard, the trial judge said, am satisfied, on the strength of the evidence, that it has been shown beyond reasonable doubt that Mr. Adshade, in fact, was operating his vehicle well above the permitted weight and tolerances, at the time in question, on highway. In the case of the second charge against Mr. Adshade, the trial judge said, "I am satisfied that the Crown has proved its case against Mr. Adshade." On appeal to the summary conviction appeal court, Judge Bateman allowed the appeals of the respondents, set aside their convictions and thereby acquitted them. While she concluded that the enabling legislation and the Regulations made pursuant thereto were intra vires, she found that s. 174 (now s. 193) was in violation of the Charter because "it completely relieves the Crown of any requirement whatsoever to prove accuracy" of the scales. Thus, she said, it "goes too far in impairing the presumption of innocence". She further decided that s. 174 (now s. 193), "Is not saved by s. (I) of the Charter insofar as it does not conform with the second criteria set out in Oakes", meaning the Supreme Court of Canada decision in R. v. Oakes (1986), 1986 CanLII 46 (SCC), 24 C.C.C. (3d) 321. The Crown now appeals, alleging that on both of these principal issues the summary conviction appeal court judge erred in law. We have studied the record in detail. We have reweighed and re‑examined the evidence and as well we have considered all of the written and oral arguments advanced by counsel. We have concluded that based on the evidence before the trial judge, there are no Charter issues in these appeals and that the summary conviction appeal court judge, with respect, erred in law in concluding that there were. There was evidence before Judge Curran of the weights of the vehicles, how they were weighed and the procedures followed by the Department of Transportation in determining and maintaining the accuracy of the mobile scales. The Crown witnesses were carefully cross‑examined by counsel of the respondents. Judge Curran made specific findings of fact on both of these issues against the respondents. Although the legal effect of s. 174 (now s. 193) was argued before Judge Curran, it was not necessary for him to either invoke or rely upon s. 174 nor did he in finding each of the respondents guilty of the offence with which each was charged. There may be cases where the defendants are able to advance evidence that causes a trial judge to rely on the prima facie effect of the Crown\'s evidence as stated in s. 174 (now s. 193). These three respondents do not fall in this category. It follows that here consideration of the application of the provisions of the Charter by the summary conviction appeal court judge was unnecessary. Thus there was error in law in allowing the appeals on the basis of Charter violations. Accordingly, we grant leave to appeal and we find, for the reasons that we have given, that the appeals succeed. We order that the acquittal of each respondent be set aside and the conviction of each respondent and the fine imposed upon him by the trial judge be restored. There will be no costs. C.J.N.S. Concurred in: Hallett, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69586 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES ARTHUR GOODWIN HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert MacCarroll, Esq., for the Crown/Respondent Ronald MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H.70076 C.H.69585 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and DOUGLAS CHARLES ADSHADE HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. MacCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Applicant CASE ON APPEAL CANADA PROVINCE OF NOVA SCOTIA 1990 C.H. 69587 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN and JAMES GELDERT BOYD Appellant HEARD BEFORE: The Honourable Judge N. Bateman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 24, 1990 COUNSEL: Robert P. McCarroll, Esq., for the Crown/Respondent Ronald J. MacDonald, Esq., for the Appellant CASE ON APPEAL S.C.C. 02386/87/88 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN, and DOUGLAS CHARLES ADSHADE, JAMES GELDERT BOYD, and JAMES ARTHUR GOODWIN, Respondents REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.

The Crown appealed a decision which overturned the respondent's convictions on charges of operating overweight vehicles contrary to s.172 of the Motor Vehicle Act. The Court had overturned the convictions on the ground that the reverse onus provision of s.172, respecting the accuracy of the scale, violated s. 11(d) of the Charter. Allowing the appeal and restoring the convictions, that the trial judge did not rely on the prima facie effect of the Crown's evidence, but rather had ample evidence concerning the accuracy of the scales upon which to rely.

1991canlii2608.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 265 Date: 20050608 Docket: U.F.C. No. 173/1991 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KELLIE ANNE HUBBARD (Formerly Gore-Hickman) and PATRICK O’BRIEN GORE-HICKMAN Counsel: L. G. Greenhorn for the petitioner K. J. Ford, Q.C. for the respondent FIAT RYAN-FROSLIE J. June 8, 2005 [1] Mr. Gore-Hickman applies to vary his February 28, 1992 divorce judgment to fix support for his oldest son, Brett, who resides with him, retroactive to August 1, 2004 and to terminate the payment to his former spouse for Brett, also effective August 1, 2004. [2] On March 30, 2005, this Court made an order fixing the parties’ incomes and providing for ongoing support for Brett of $129 per month. It also terminated Mr. Gore-Hickman’s payments for Brett as of that date. The issue of whether these orders should be made retroactive was reserved and that is the sole issue now before the Court. [3] The parties were married on May 23, 1980 and separated in December, 1990. They have two sons, namely: Brett O’Brien Gore-Hickman, born February 20, 1987 (age 18) and Kurt O’Brien Gore-Hickman, born May 12, 1989 (age 15). On February 28, 1992, Justice M. Y. Carter granted judgment for divorce after trial in which the parties were given joint custody of their two sons with primary residence to be with their father. Ms. Hubbard was to have the children with her every weekend from Friday at 9:00 a.m. to Monday at 8:00 p.m. and every Wednesday from 8/9:00 a.m. to 8:00 p.m. Holiday time was to be shared equally and Ms. Hubbard was to be the babysitter of first resort should Mr. Gore-Hickman go away on holiday without the boys. Mr. Gore-Hickman was ordered to pay $670 per month per child to Ms. Hubbard as child support. This was done even though Mr. Gore-Hickman had primary residence of the children. In her written decision, Justice Carter indicated child support was warranted given the amount of time the children would be spending with their mother and the disparity in the parties’ incomes. The judgment was pre-Guideline decision and the payments were tax deductible to Mr. Gore-Hickman and taxable in the hands of Ms. Hubbard. [4] In January, 1999, both parties applied to vary the judgment. Ms. Hubbard sought to bring the payments under the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] which came into effect May 1, 1997 and Mr. Gore-Hickman sought to eliminate the payments. On July 12, 1999, Justice Laing dismissed both applications. He held that the circumstances leading to the child support award had not changed. The parties’ incomes were similar to what had existed in February of 1992 and the children continued to spend substantial portion of their time (38.6%) with their mother. Justice Laing viewed the support granted by Justice Carter as “special provision” within the meaning of s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). [5] Commencing with the summer of 2002, the oldest child, Brett, began to spend less and less time with his mother. On February 25, 2004, legal counsel for Mr. Gore-Hickman wrote to Ms. Hubbard requesting that the support payment for Brett terminate (See Exhibit “C” to the affidavit of Mr. Gore-Hickman sworn February 22, 2005). This was followed by further letter dated June 22, 2004. [6] On June 28/29, 2004, the parties’ youngest child, Kurt, went to live with his mother and in July, 2004, Ms. Hubbard began an application to vary claiming child support for Kurt in accordance with the Guidelines. On February 3, 2005, following hearing, Justice Koch varied Justice Carter’s 1992 judgment to provide Kurt’s primary residence would be with his mother. He found Mr. Gore-Hickman’s income for child support purposes to be $524,418 per year and Ms. Hubbard’s income to be $17,265 per year. He ordered Mr. Gore-Hickman to pay $3,550 per month as support for Kurt commencing August 1, 2004, being the first day of the month immediately following Mr. Gore-Hickman’s receipt of notice of the application to vary. While Mr. Gore-Hickman requested Justice Koch to deal with support for Brett, the judge declined to do so, indicating there was no formal application before him. At para. 16 of his judgment he stated: It may be that this variation with respect to support for Kurt will give rise to the need to have the Court consider variation of the existing support order with respect to Brett.... [7] Following Justice Koch’s decision, Mr. Gore-Hickman immediately commenced this application for variation which was filed with the Court on February 25, 2005. Both parties agreed Justice Koch’s findings with regard to the parties’ incomes should be applied in this application. [8] Ms. Hubbard and Mr. Gore-Hickman have both remarried and they continue to live in close proximity to each other. Preliminary Matter [9] As preliminary matter, counsel for Ms. Hubbard argued that because the issue of support for Brett was raised before Justice Koch, it is now “res judicata”. cannot accept that argument. For matter to be res judicata, the cause or issue must have been decided or dealt with in previous proceeding involving the same parties. While Justice Koch may have been able to deal with the issue of Brett’s support pursuant to Rule 591 of the Queen’s Bench Rules of Court, he declined to do so. It is clear from Justice Koch’s written decision that he did not deal with the issue and, in fact, contemplated that the issue would be dealt with by further application. The father’s position [10] Counsel for Mr. Gore-Hickman argues that the order providing for ongoing support for Brett, as well as the termination of his obligation to make payments to Ms. Hubbard for Brett, should both be made retroactive to August 1, 2004. This would be consistent with the order made by Justice Koch with regard to Kurt. Moreover, it is argued Ms. Hubbard had notice of Mr. Gore-Hickman’s position both with regard to terminating the support for Brett and requesting support from Ms. Hubbard by that date. They argue there is presumption in favour of retroactive order and rely on the Alberta Court of Appeal decision in D.B.S. v. S.R.G., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 373 (Alta. C.A.). The mother’s position [11] Counsel for the mother argues the circumstances of this case militate against retroactive order. With reference to the termination of Mr. Gore-Hickman’s payment, they argue that even though Brett’s time with his mother has diminished there was still need on her part to maintain an adequate residence for him and corresponding ability on the part of Mr. Gore-Hickman’s to pay. They also raise the great disparity in income between the parties and argue there was an unreasonable delay in Mr. Gore-Hickman bringing this application. They also argue Ms. Hubbard has spent the funds paid to her by Mr. Gore-Hickman and, as such, they can no longer be returned to him. Ms. Hubbard also points out that the payments made to her were taxable in her hands. With reference to the ongoing payment, she pleads need and inability to pay and again raises the issue of delay. She relies on the British Columbia Court of Appeal decision in L.S. v. E.P., 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C. C.A.) and the Ontario Court of Appeal decision in Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 46 R.F.L. (5th) 455 (Ont. C.A.). Legislation [12] The application before me is pursuant to s. 17 of the Divorce Act. The relevant portions of that Act read as follows: 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses. (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. The Case Law [13] Section 17(1)(a) of the Divorce Act gives this Court jurisdiction to vary support orders retroactively. The issue here is when and from what date retroactive order is appropriate. [14] Judicial authority is divided on this issue. Two lines of authority have developed since the coming into force of the Guidelines. The first line of authority is that of the British Columbia Court of Appeal as set out in the case of L.S. v. E.P., supra. In that case, the British Columbia Court of Appeal held that the granting of retroactive child support lies within the discretion of the Court. There are no provisions that indicate how that discretion is to be exercised. The British Columbia Court of Appeal identified non-exhaustive list of factors which may mitigate for or against retroactive support. These factors are set out at paras. 66 and 67 of the decision as follows: review of the case law reveals that there are number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. [15] The British Columbia Court of Appeal held that Court has jurisdiction to make child support order effective prior to the commencement of the proceeding but that it is the “norm” to limit the retroactive award to the date when notice was given. In L.S. v. E.P., the British Columbia Court of Appeal was dealing with provincial legislation. They indicated in their reasons, however, that the same analysis would apply to retroactive orders pursuant to the Divorce Act. The approach taken in L.S. v. E.P. was reconfirmed by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600 (CanLII), (2003), 44 R.F.L. (5th) 204 (B.C. C.A.) and more recently in Macdonald v. Macdonald, 2005 BCCA 23 (CanLII), [2005] B.C.J. No. 38 (B.C. C.A.) (QL). This approach has also been endorsed by the Ontario Court of Appeal in Horner v. Horner, (2004), 2004 CanLII 34381 (ON CA), R.F.L. (6th) 140 (Ont. C.A.), Walsh v. Walsh, supra and Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.) (QL). The Ontario Court of Appeal held that nothing in the Divorce Act or the Guidelines gives court jurisdiction to re-calculate child support retroactively because of an increase in the payor’s income nor does failure to disclose an increase in income have that effect as there is no duty on payor to disclose absent contractual duty, court-ordered obligation or request from the payee for financial information pursuant to s. 25.1 of the Guidelines. The Ontario Court of Appeal held, however, that Courts have broad power to order retroactive support. The Ontario Court of Appeal applied the factors set out by the British Columbia Court of Appeal in L.S. v. E.P. and held that the real question in each case is whether the circumstances justify the making of retroactive order. They also pointed out that court must be careful on an interim application, the purpose of which is to grant temporary relief pending trial, not to render final determination on issues such as retroactive child support where full disclosure and an opportunity to hear all the relevant evidence is seldom available. [16] The second line of authority is from the Alberta Court of Appeal which dealt with the issue of retroactive child support in “trilogy” of cases: D.B.S. v. S.R.G., supra, L.J.W. v. T.A.R., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 232 (Alta. C.A.) and Henry v. Henry, 2005 ABCA (CanLII), (2005), R.F.L. (6th) 275 (Alta. C.A.). Leave to appeal these decisions to the Supreme Court of Canada has been granted. The Alberta Court of Appeal held there is presumption in favour of retroactive child support to the date the obligation arose and that there is positive duty on payors to adjust their support payments when there is change to their income. The onus is on payor to rebut this presumption. The Alberta Court of Appeal recognized there may be some exceptions to the application of the presumption such as where parents share custody of their children. They also held that the presumption applies regardless of the nature of the application, that is, whether it is an interim or final one. [17] Both lines of authority recognize that certain principles have developed with regard to retroactive child support including recognition that parents have joint financial obligation to support their children, that that obligation arises from the time of the child’s birth, that the right to support belongs to the child and as such cannot be bartered away by the parent and finally that the court is always free to intervene and determine the appropriate level of support for children. [18] Both lines of authority also recognize that there is jurisdiction under the Divorce Act to make retroactive orders for child support and that those orders may cover periods that pre-date the commencement of the proceedings themselves. They also held that child’s right to support should not be function of the marital status of his or her parents and that there is strong policy interest in ensuring the same principles and factors apply to judge’s discretion in awarding retroactive support regardless of whether federal or provincial legislation applies. While both lines of authority recognize retroactive support falls within the Court’s discretion, they vary on how that discretion is to be exercised and the factors to be taken into consideration. The British Columbia Court of Appeal has held that “...the discretion to make such an order is not to be exercised as matter of course” (See para. 41 of L.S. v. E.P.). The Alberta Court of Appeal has held that subject to certain specified exceptions “...it is reasonable and consistent with the obligations of child support that payor be required to pay the support retroactive to the date the obligation arose...” (See para. 136 of D.B.S. v. D.R.G.). [19] Prior to the Alberta Court of Appeal trilogy, the “norm” in awarding retroactive child support was restricted to the date of the application for the order except in special circumstances (See: Headrick v. Headrick (1969), 1969 CanLII 249 (ON CA), D.L.R. (3d) 519 (Ont. C.A.); Pritchett v. Pritchett, [1996] B.C.J. No. 2704 (B.C. S.C.) (QL)). [20] While both lines of authority were heard post-Guidelines, the British Columbia Court of Appeal does not directly refer to the impact of the Guidelines on retroactive child support. The Alberta Court of Appeal examines that issue in great detail and concludes: 1. That the exercise of judicial discretion with regard to retroactive child support orders must be shaped by the goals and objectives of the Guidelines (See: para. 153 of D.B.S. v. D.R.G.). 2. child is entitled to child support and therefore need is presumed (See: para. 153 of D.B.S. v. D.R.G.). 3. The Guidelines presume an ability to pay in accordance with the payor’s income (See: para. 153 of D.B.S. v. D.R.G.). 4. That as part of the financial obligation to provide support, parents have duty to disclose changes in their income situation. (See: paras. 131 and 133 of D.B.S. v. D.R.G.). 5. That there is presumption in favour of retroactive support to the date the obligation arose or the payor’s income changed unless the payor has satisfied the court his financial obligation was met in some other manner, that he has taken all reasonable steps to fulfill the obligation, that previous arrangements for child support that contemplate the provisions of the Guidelines were made or that the payee has failed to act diligently and without reasonable cause. (See: para. 153 of D.B.S. v. D.R.G.). [21] This Court agrees with the Alberta Court of Appeal that the Guidelines apply to applications for retroactive support pursuant to the Divorce Act. This is evident from the wording of s. 17(6.1) of the Act. This Court also agrees that in exercising its discretion the Court must do so keeping in mind the objectives set out in s. of the Guidelines, that is, to establish fair standard of support for children that ensures they continue to benefit from the financial means of both parents, to reduce conflict and tension by making the calculation of child support orders more objective, to improve the efficiency of the legal process by giving guidance in setting the level of child support and encouraging settlement and finally, to ensure consistent treatment of spouses and children who are in similar circumstances. [22] It is noted, however, that none of the objectives are given precedence over the others. All of them must be weighed by judge in reaching their decision. Adequate and consistent support must be weighed against the requirement for fairness. [23] This Court, however, does not agree that there is presumption in favour of retroactive support. It prefers the approach taken by the British Columbia and Ontario Courts of Appeal over that of the Alberta Court of Appeal for the following reasons: 1. Neither the Divorce Act nor the Guidelines set out any principles to be applied by the Court in exercising its discretion with regard to retroactive orders. adopt the reasoning of Justice J.A. Hunt in his dissent in Henry v. Henry, supra at paras. 43 to 52. There is no presumption for or against retroactive child support orders. Parliament has left this for judicial determination. (See also: Walsh v. Walsh at paras. 20 to 23 and Homer v. Homer at para. 78). 2. Neither the Divorce Act nor the Guidelines mandate an automatic increase in support payments when payor’s income increases. As pointed out by Justice Laskin of the Ontario Court of Appeal in Walsh v. Walsh at para. 25: “Parliament could have made the policy choice to require parties to exchange financial information annually or at some other regular interval and to vary child support in accordance with the Guidelines. ... But Parliament has not made this policy choice.” 3. Section 25.1 of the Divorce Act contemplates agreements between the federal government and the provinces to establish agencies to recalculate child support orders at regular intervals on the basis of updated income information. The fact these agreements have not been put in place does not impose on those that pay support mandatory obligation to do the recalculation themselves. 4. Different considerations apply to different situations. As such, presumption in favour of retroactive support is not fair or equitable approach to the issue. It is difficult to provide comprehensive list of factors that may affect the granting of retroactive support simply because the situations that come before the Court are as diverse as the spectrum of families that exist in this country. The British Columbia Court of Appeal in L.S. v. E.P. set out non-exhaustive list of some factors that may militate for or against retroactive support. The Alberta Court of Appeal disagreed with many of these factors. This is not surprising given its “presumptive approach”. Parents of children cannot be compared to debtors and creditors. Their relationships are far more complex and personally intertwined. What affects the parent affects the children. No two sets of parents are alike nor are their situations identical. Some are single parents others become parts of blended families. Some parents are financially secure others struggle for every penny. Some parents are very involved with their children others have no involvement at all. Some parents live close at hand others live thousands of miles apart. Some parents assume other obligations for aging parents, new spouses, step-children or for other children of their own. Some remain unencumbered by family relationships. One fact is very clear. The financial impact of separations on families is devastating. When families break up, often there is not sufficient income to support two homes. Tradeoffs are made. One parent may be allowed to live in the family home with the children and retain all of the household goods while the other parent attempts to start over, the consideration being that no child support would be paid for period of time. One parent may assume all of the debts which allows the other parent to retain vehicles, household goods or recreational assets which benefit the children. Sometimes the mother of child wants nothing to do with the father and the father respects that wish. If court acts blindly without consideration for the circumstances, it does disservice to the families involved, especially the children. 5. While child support is the right of the child and cannot be waived, it falls to the custodial or primary parent to enforce that right. In doing so, they must act in the best interests of the child. They cannot “hoard” the support and enforce it at later date when the need may have passed or been met by other sources. They cannot squander it. It is incumbent on them to take action when warranted. They cannot merely sit back and say it is owed. Custodial or primary parents owe duty to the child to enforce child support rights. If they choose not to do so and assume the obligation themselves, they run risk that the Court, in weighing all of the circumstances, may not provide retroactive support. 6. It is important to remember that individuals who care for children or provide support are not always the biological parents. They may be step-parents, extended family members or “others”. Parents, or those who stand in their place, have duty to enforce child support rights. Sometimes they choose not to do so because they are frightened or intimidated by the payor, because they cannot afford to do so or because they feel overwhelmed by the legal system. Sometimes they choose not to do so because it suits their own purposes. Perhaps they want to limit the child’s contact or involvement with the payor or because they wish new partner to be the sole parental influence in their child’s life. Sometimes they choose not to because they recognize the other parent is struggling financially to hold on to family farm or family business or to help an ailing parent or spouse. The primary parent may have moved away from the payor and recognizes that the cost of access bears on the other parent’s ability to have relationship with the children even though the costs associated with that access may not be sufficient to meet the test of undue hardship pursuant to the Guidelines. They may assume greater share of the financial obligation for the children because their situation allows for the needs of the children to be met from other sources, be they extended family, new spouses, trust funds or social programs such as the child tax credit, supplements and social assistance payments. 7. Retroactive support is not the same as ongoing support in that the period of time to which it applies has passed and the resources needed for its payment may no longer be available. The problem with retroactive orders is that very often the income stream that would normally fund the payment has been used up. payor who has no notice of the claim cannot arrange their financial situation to accommodate the order. Retroactive orders often create debt that may not only affect the payor’s ability to meet his ongoing obligations to the children covered by the order but may also adversely affect their ability to provide for other children in their care. Courts must be careful not to penalize these children or place them in situations of poverty in order to provide retroactive support. For payors on fixed incomes, such debts can be crippling. It does the judicial system no good to make orders which cannot in reality be enforced. Such orders bring the judicial system into disrepute and do nothing to quell conflict between the parents. 8. Requests for retroactive support arise in number of different contexts and the context does have an impact on how the Court deals with the request. Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Requests for retroactive orders are more properly dealt with at trial or after hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence. 9. Applications for retroactive support can include periods that are post-Guideline, pre-Guideline, or combination of the two. The importance of these periods is not only the grounds which may lead to change of circumstances but the fact that orders or agreements made prior to May 1, 1997 had tax component to them. Child support was taxable in the hands of the recipient and deductible in the hands of the payor. Orders that apply the Guidelines retroactive must consider these tax implications. As well, other sources of income may be affected by retroactive orders such as child tax credits, supplements and social assistance benefits. Courts should not mechanically make retroactive orders without considering the ultimate effect of such orders on both the payor and the payee. For example, to give mother who is on social assistance retroactive support order may not improve the situation for the children at all and may trigger overpayment from the safety net programs. 10. Parties should be entitled to rely on agreements or court orders that are in effect and should be provided with notice of intent to change them. While there is merit to the argument that parent is presumed to know they have an obligation to support their child and that one parent should not be unfairly burdened with this obligation, there is also merit to the encouragement of parents to settle matters amicably between themselves. In family relationships, this is extremely important. When agreements and court orders are made, the parties know it is likely that changes will occur in their financial situations in the future. If no provision is made for the exchange of information or recalculation, then the parties must rely on the request for information provisions set out in s. 25.1 of the Guidelines. To hold otherwise is to incorporate into those orders, agreements, and indeed the Guidelines themselves provision for automatic recalculation which simply does not exist. 11. Finally, it is questionable whether every change in income necessarily triggers change as contemplated by s. 14 of the Guidelines. How large of change is necessary, and for what time period? Often people go through temporary deviations in income due to sickness, unemployment, layoffs, unexpected overtime or the assumption of temporary duties. Over the course of tax year, their income may remain fairly constant in spite of these changes. No one can argue that for the month or two when the circumstances existed there was change of income but is this sufficient under s. 14? Many child support orders are based on income tax information which traditionally reflects income earned in the past and expected to be earned in the future. What is the date for an income change? Is it the date of the new tax return or the date the change actually occurred? [24] There is no doubt that mechanical, presumptive application of the Guidelines to request for retroactive support would provide greater certainty but it would do little else to achieve the objective of the Guidelines. [25] In summary, this Court favours the approach taken by the British Columbia and Ontario Courts of Appeal, that is, that the awarding of retroactive child support lies within the discretion of the judge. In exercising that discretion the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. There are many factors that may apply to the analysis and the decision of courts of various levels, including the British Columbia Court of Appeal in L.S. v. E.P., have set out number of such factors. An exhaustive list, however, is not possible. number of principles should apply to retroactive child support. Firstly, the Court must keep in mind the nature of the application and whether it is an interim one as opposed to final application. Secondly, the Court must keep in mind the objectives of the Guidelines. Thirdly, the same principles and factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation. Finally, the Court must consider the individual facts of each case to ensure result which balances the requirement that parents be jointly responsible for the support of their children with the principles of fairness and equity. If the Court decides to order retroactive support, then, pursuant to s. 17(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. Application of the law to the facts [26] In this case, Mr. Gore-Hickman requests that his obligation to pay support for Brett should terminate and Ms. Hubbard’s obligation to provide support for Brett should commence, both retroactive to August 1, 2004. Ms. Hubbard’s obligation to provide support for Brett probably arose after the summer of 2002 when the time Brett spent with his mother decreased dramatically. Since that time, it is uncontroverted that Brett has spent little time with his mother. It is clear from Justice Carter’s written decision that two factors prompted the awarding of support to Ms. Hubbard for Brett. First was the amount of time the child was to spend with his mother, and secondly, was the disparity in the parties’ incomes. While the disparity in income remains, it is clear that Brett, who has now reached the age of majority, is spending virtually no time with his mother. As such, the basis for the special provision no longer exists. It probably ceased to exist sometime in 2002/2003. By February, 2004, Mr. Gore-Hickman had written to Ms. Hubbard, putting her on notice that he wanted the payment to terminate. Ms. Hubbard, whose order was registered with the Maintenance Enforcement Office, refused the request to vary even though she acknowledges Brett had very little contact with her. There was no justification for the payment for Brett to continue. Justice Koch of this Court ordered Mr. Gore-Hickman to pay support for Kurt effective August 1, 2004. He declined to deal with the issue of Brett’s support but it is clear that Ms. Hubbard had notice of Mr. Gore-Hickman’s intent to request such support. It is also clear that she was aware of her obligation to provide such support. It is difficult to understand Ms. Hubbard’s failure to provide support for Brett while at the same time she insisted on the continuation of Mr. Gore-Hickman’s payment for Brett, who was spending virtually no time with her. This is particularly true when at the same time she was claiming full Table support for Kurt. It is difficult to justify situation that would provide support for one child but not the other. While there is considerable disparity in the parties incomes, there is no evidence retroactive award would negatively impact Ms. Hubbard’s ability to pay ongoing support for Brett or to provide proper level of support for Kurt. Parents have financial obligation to their children, even when their income is substantially less than that of the other parent. This is not situation where long time has passed. There has been no unreasonable or unexpected delay and Mr. Gore-Hickman should not be penalized because he attempted to negotiate the matter before proceeding with his Court application, nor should he be penalized because the judge who heard Ms. Hubbard’s application refused to deal with the matter. The fact Ms. Hubbard may have paid tax on the $670 per month paid to her from August 1, 2004 to December 31, 2004 is easily remedied by her filing an amended return. This would result in decrease in her income and may actually provide benefit to her in the form of reducing her tax. [27] Taking into account all of the circumstances, it would be fair and equitable to terminate Mr. Gore-Hickman’s obligation to pay the $670 per month to Ms. Hubbard for Brett, effective August 1, 2004 and to make Ms. Hubbard’s support payments for Brett likewise retroactive to that date. 1. There shall be an order that Mr. Gore-Hickman’s payment of $670 per month to Ms. Hubbard for the support of Brett terminate effective August 1, 2004. 2. There shall be an order that Ms. Hubbard’s child support obligation to Brett which was fixed by the fiat of March 30, 2005 at $129 per month shall be retroactive to August 1, 2004. 3. Any monies owing by Ms. Hubbard to Mr. Gore-Hickman as result of this order shall be paid to Mr. Gore-Hickman at the rate of $500 per month, which amount shall be offset against Mr. Gore-Hickman’s child support for Kurt. [28] At the request of counsel, there shall be no order as to costs with regard to this application at this time. Within 30 days, either party may apply to the local registrar to have date set before me to argue the issue of costs. J. J. A. Ryan-Froslie J.

The respondent applies to vary his 1992 divorce judgment to fix support for his oldest son, who resides with him, retroactive to August 2004 and to terminate the payment to his former spouse for him. In March 2005, this Court made an order fixing the parties incomes and providing for ongoing support for this son of $129 per month. The sole issue is whether these orders should be made retroactive. HELD: It is fair and equitable to terminate the respondent's obligation to pay $670 per month for the oldest son effective August 2004 and to make the petitioner's support payments for him retroactive to that date. 1) This Court favours an approach to retroactive child support that leaves the decision to the discretion of the Court. In exercising that discretion, the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. 2) The Court must consider whether the application is interim or final, the objectives of the Guidelines, the same factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation, and the individual facts of each case must be considered to ensure that parents are jointly responsible for the support of their children and the principles of fairness and equity are met. If the Court decides to order retroactive support then, pursuant to s. 15(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. 3) By February 2004, the respondent had written to the petitioner, putting her on notice that he wanted the payment to terminate because the oldest son was residing with him. The petitioner refused even though the son had very little contact with her. There was no justification for the payment to continue. It is difficult to understand her failure to provide support for this son while at the same time insisting on the continuation of the respondent's payment for that same son, who was spending no time with her.

4_2005skqb265.txt

1994 No. 94-I05822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and- Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur AND: 1995 S.H. No. 115I85 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur DECISION Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Halifax, Nova Scotia Dates Heard: June 2, 3, 4, 5, 6, 9,10,11, 1997 Counsel: Robert L. Barnes, Q.C., and Kandace Terris, Solicitors for the Plaintiff, Wanda MacPhail Daniel M. Campbell, Q.C., and Colin J. Clarke, Esq., Solicitors for the Defendants, Dr. Jacques Desrosiers, Janet Chernin and Jean Palmer Ronald Pizzo, Esq., and Ned Kelleher, Esq., Solicitors for the Plaintiffs, Carol M. Newbury and William Edward Newbury Ross Haynes, Esq., and Suzanne Fougere, Solicitors for the Defendant, Wanda MacPhail MacLellan, J. This action by the plaintiff Wanda MacPhail against the defendants arises as result of motor vehicle accident on March 24th, 1993. The accident occurred when Mrs. MacPhail's vehicle crossed the center line of the highway and was struck by vehicle driven by Susan Arsenault. As result of that accident, Carol and William Newbury started separate action against Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur. The parties consented to an Order dated April 30th, 1997, which provided that the two actions would be heard together because of the common issues involved, but that the assessment of damages, if any, for Carol Newbury and William Edward Newbury would be held at later date. It was agreed that one defendant Louise Brodeur does not exist and was simply listed as defendant by mistake. would therefore direct that any Order of Judgment herein not mention Louise Brodeur as party. The parties hereto have also agreed to certain facts which were admitted to be correct as follows: "1. Definitions: (a) "Arsenault Vehicle" means the Ford Bronco motor vehicle operated by Susan Arsenault on March 24, 1993. (b) "MacPhail Vehicle" means the white Toyota Tercel owned by the defendants, Wanda MacPhail and Craig MacPhail and operated by Wanda MacPhail on March 24, 1993. (c) "Motor Vehicle Collision" means the collision that occurred between the "MacPhail Vehicle" and the "Arsenault Vehicle, on Highway #103, west of exit 4, on March 24, 1993, between the hours of 1:00 to 2:00 p.m. 2. The Defendant Susan Arsenault, operated the "Arsenault Vehicle, in an Easterly direction on Highway #103, (in the direction of Halifax) towards exit 4. At all material times, Susan Arsenault operated the "Arsenault Vehicle" in careful and prudent manner. Furthermore, Susan Arsenault did not cause or contribute, in any way, to the loss, injury and damage sustained by Carol Newbury in the "Motor Vehicle Collision". 3. At all material times to this action, the Plaintiff, Carol Newbury was passenger in the "Arsenault Vehicle." Mrs. Newbury was wearing her seat belt at the time of the "Motor Vehicle Collision". 4. The Defendant Wanda MacPhail operated the “MacPhail Vehicle” in an Westerly direction on Highway #103 near exit number (in the direction of Bridgewater). 5. The "Motor Vehicle Collision" occurred when the "MacPhail Vehicle", without warning, crossed the centerline into the path of the "Arsenault Vehicle", of Highway #103 and collided head-on with the Arsenault vehicle." The issues before the Court in this trial are as follows: 1. Are the defendants or any of them in action 94-105822, liable to the plaintiff because of negligence on their part? 2. If the defendants, or any of them are liable, what are the plaintiffs damages? 3. Are the defendants, or any of them in action No.115185, liable to the plaintiffs in that action? Throughout this decision when refer to the plaintiff and defendants, mean the parties to the first action, otherwise, will indicate am referring to the second plaintiffs and defendants. Plaintiff's evidence on liability issue: The plaintiff testified that she is now 37 years old. She has four children ranging in age from five to twelve. She is nurse by profession, graduating from the V.G. Hospital School of Nursing in 1980. Her last job prior to her accident was as nurse at the V.G. Hospital in the Intensive Care Unit. In early March, 1993, she found out that she was pregnant. She was upset by this because she and her husband, Craig, had decided not to have any more children. Her husband had vasectomy in February of that year and according to her he was devastated by the fact that she was pregnant. They discussed the issue of the pregnancy and had some discussion about the possibility of an abortion. She didn't talk to anyone else because she felt it was private family matter. Following the discussion with her husband, she called the Morgantaler Abortion Clinic in Halifax and talked to lady on the phone. She was asked to confirm the pregnancy which she later did and the abortion was scheduled for March 24th, 1993 at 9:30 a.m. When she made the appointment she was asked if she would be accompanied when she came to the clinic, and she indicated that her husband Craig would be with her. During that phone conversation she asked the lady on the line whether she would be able to take the baby home for burial. She was told she could not do that. On the night before the scheduled abortion, the plaintiff discovered that she did not have babysitter for the next day and it was decided that her husband would stay at home with the children and that she would go alone. She arrived at the Morgentaler Clinic around a.m. and she met the defendant Janet Chernin, the receptionist at the clinic. She paid Ms. Chernin the required fee for the abortion and confirmed with her the lab results confirming that she was pregnant. She was asked by Mr. Chernin if she was accompanied and she told her why she was alone by explaining about the babysitter problem. She testified that this information did not seem to be big problem for Ms. Chernin. The plaintiff then met the defendant Jean Palmer. She had known Mrs. Palmer from working under her supervision at the V.G. Hospital. She said she didn't expect to run into Mrs. Palmer and was somewhat uncomfortable about having to deal with her. She said she was not proud about being at the clinic and found the meeting disturbing because of her previous relationship with Mrs. Palmer. During the course of the counselling session with Mrs. Palmer the plaintiff was offered sedative (Ativan), but initially she refused it saying that she was driving and that she shouldn't take anything. She said that Mrs. Palmer little later offered it to her again, and again she refused. However, when offered it third time, some minutes later, she agreed to take it. She said that Mrs. Palmer said that it wouldn't hurt her anyway. She said that when she took the sedative Mrs. Palmer did not discuss the issue of her driving home. The plaintiff was asked by counsel how she felt at that point. She said she was not easy with her decision to have an abortion and that spiritually and morally she was upset. She said she was like robot and tried not to think about what had to be done. Following her session with Mrs. Palmer, the plaintiff went upstairs in the clinic to see the defendant Dr. Desrosiers. She said that it was brief meeting in which he discussed follow-up appointment scheduled after the abortion. She said he explained the abortion procedure to her and what she could expect would happen. He discussed with her her request noted on the chart to see the product of conception. The plaintiff then went to the room where the abortion was to take place. She met nurse, Deidrea Calder who took her blood pressure and explained to her the procedure. She said the procedure took 15 to 20 minutes and that she was given local anesthetic in her cervix. After the abortion was over, she said she was physically okay but emotionally very shaky. She said she was holding the nurse's hand. She said she was uncomfortable in her pelvic area similar to menstrual cramps. She was then taken to the recovery room where she met the recovery room nurse Lynn Broderick. She was offered tea and biscuit. She said she knew Lynn Broderick because she was married to man from St. Margaret's Bay where she also lived. She said she was in the recovery room 30 to 45 minutes sitting in chair. The plaintiff said she had conversation with Lynn Broderick about driving back and forth from St. Margaret's Bay, but no discussion about the fact that she was going to be driving home that day. She said she was told that when she was okay she could leave. She said she was having difficulty comprehending the information from the nurse because she was in what she described as robot like state. She said that after the abortion she did not see Dr. Desrosiers and no one did pelvic exam on her while she was in the recovery room. The last medical procedure was the taking of her blood pressure while in the recovery room. She said she then went downstairs and saw Janet Chernin again before she left the clinic. When she went to her car, she noticed some pro­life people in the area of the clinic. She got in her car and drove off butdecided that before going home she would go the Burger King for something to eat. She said she wanted to get collected before going home. She knew that her husband was due to go to work at p.m. and that she should be home before he left. At the Burger King she had chicken sandwich and fries. While she was there she said she started getting tearful. She said she was feeling sad about the situation. She left the restaurant and started out Joseph Howe Avenue to Bayer's Road and took the Peggy's Cover turnoff heading home. She said that at the C.J.C.H. building she noted on her car radio clock that it was 1:20 p.m. Knowing that she had to be home by o'clock she felt she had plenty of time. She said at that point she was tearful and wiping away her tears as she drove. She says she remembers passing Exit No. on the highway. The next thing she remembers is seeing blue truck in her windshield directly in front of her. She said to herself, "Oh, my God, I'm on the other side of the highway". She next remembers waking up in the hospital. She said she thought that she had blacked out just prior to the collision. She didn't remember getting sleepy. She said she has no history of fainting. The plaintiff said she has travelled that particular stretch of highway many times, particularly, while she worked at the V.G. She said the speed limit there is 100 kilometers per hour and that she would normally travel at that speed. Dr. Julius Piver testified as an expert. He works in Bethesda, Maryland and has performed between 600 to 700 abortions all of which were done in hospital setting on Outpatient basis as opposed to clinic similar to the Morgentaler Clinic. He said his patients normally are given general anesthetic and they are asleep while the abortion is done. He said he was familiar with the clinic setup for abortions where local anesthetic is used. Dr. Piver said that his rule of practice was that patient would not be allowed to drive after having an abortion whether it was done under general or local anesthetic. He said that if he was aware that patient intended to drive, he would not do the procedure because he felt that it would put the patient's life in jeopardy. He said that most women who have abortions are unhappy having the procedure. He said this is particularly true of women who have had child or other children. He said the procedure is already emotionally charged and that the decision to drive or not to drive should not be left with the patient. Dr. Piver was asked about the plaintiff's situation and indicated that he would be concerned when it was noted that she wanted to see the product of conception. He said he has never had patient request that of him. He was asked about the effects of Ativan on patient. He said it would produce drowsiness. In his report filed with the Court Dr. Piver states: “It is breach of the standard of care to allow patient to drive who has had any anesthetic agent, local or general, so soon thereafter. When it was known that she had no one to drive her home the procedure should have been postponed to another date. Patients have been known to have delayed reaction to surgery causing them to faint,due to the stress of the procedure. It is prudent to advise patients not to drive for minimum of 24 hours following sedating medication.” Dr. Reginald Yabsley testified on behalf of the plaintiff. He is an Orthopaedic Surgeon and saw the plaintiff in reference to her injuries sustained in the accident. He also testified about driving after surgery based on the fact that many of the orthopaedic procedures he does are done on an Outpatient basis. Generally, he said, patient who has any type of invasive procedure done on an Outpatient basis should not drive afterwards. In reference to the plaintiff specifically, and the abortion procedure, he stated in his report as follows: "I would have felt that it was not advisable for patient to drive home on their own, not only after such procedure but especially after such procedure and having taken Ativan. For information, am enclosing copy of pre­-operative and post-operative form which used for day-patient surgery. You will see that in each instance it is emphasized, for general reasons, that patient not drive following surgery. There are general reasons as well as specific ones for not doing so. Surgery of any type is stressful and traumatic event, both psychologically and physically, and combined with the fact that sedation and anesthesia in various forms may often be used, such use cannot be predicted in advance, nor can their effects following their deployment be always clearly defined." On cross-examination Dr. Yabsley conceded that he has experience only in his specialized field and that he was not qualified in the field of gynecology. Gregory Johnstone testified about the effects of the drug Ativan. He has Masters degree in Pharmacology and gave expert evidence on the effects of drugs on person. In his report filed with the Court, Mr. Johnstone indicated that given the plaintiff took one milligram dose of Ativan at II a.m., she would still have 87.5% of the dose present in her body at the time of the accident which was estimated to be between 1:30 and p.m. He indicated that therefore there would be large portion of the pharmacological effects normally associated with that drug still in her body. He indicated that the effects would be as follows: THE NATURE AND EXTENT OF THE EFFECTS OF ATIVAN (LORAZEPAM) The effects of all benzodiazepines (including Ativan) would be described generally as falling into the descriptions below (all are considered central nervous system depressant actions): 1. Anti-anxiety Their primary role for these drugs in our society is to relieve anxiety, and related symptoms, by blunting the brain's response to stimuli and sensory imput(sic) to the brain. In panic attacks and acute overwhelming emotional states, these drugs have demonstrated effectiveness in blunting such intense symptoms. 2. Sedation Sleep induction These drugs are very effective at relaxing person to such level that falling asleep is much easier. Some benzodiazepines actually cause one to fall asleep. Use in treating insomnia is large part of their application. 3. Muscle Relaxation/Anti-convulsant These drugs are very effective muscle relaxants. Relaxing muscles which are tense and overstimulated due to emotional or psychological responses is an important part of the anti-anxiety treatment. 4. Memory-Amnesia On of the common "side" effects of acute (one time) and chronic high dose use of these drugs is the anterograde amnesia (memory of events occurring for some time after administration of the drug are lost.) This effect is considered to be desirable effect in persons undergoing medical procedures they may fear." He also testified about the issue of operating motor vehicle while on the this type of medication. In his report he stated: “It is precisely because of the nature and persistence of these Ativan effects that the drug manufacturers include cautions about operating motor vehicles or regrading occupation hazards, following administration of the drug. Research shows that in addition to the general effects listed above, that an extension of those actions accounts for the range of common adverse effects, or unwanted effects experienced by patients taking these drugs. For example the following are the most commonly recorded adverse effects. -drowsiness lethargy -amnesia disorientation -dizziness mental confusion Mr. Johnstone said that one milligram dose of Ativan would not produce obvious effects because it was low dose, however, it could produce subtle effects not obvious to the person. Therefore, he suggested that the person may feel fine, but is unconsciously being affected by the drug in her motor abilities. He said that the more complex the task being performed the more obvious the effects of the drug. He indicated that the manufacturer of the drug Ativan advises against driving after taking the drug. Dr. David P. Petrie treated the plaintiff. He is an Orthopaedic Surgeon practicing in Halifax and his report in regard to his treatment of the plaintiff was introduced into evidence by consent without his attendance in Court. Also, transcript of his Discovery Evidence was introduced into evidence as Exhibit 17. In letter dated January 24th, 1994, Dr. Petrie commented on the issue of whether the plaintiff should have been allowed to drive. He said: “I am concerned about the fact that this lady was permitted to drive home distance of approximately 20 miles after therapeutic abortion. shall enclose some information given to my patients as well as the discharge protocol used at CFB Stadacona where also work on consultant basis. think it states quite clearly that the patient, in spite of having only local anesthetic or very brief general anesthetic, should not be permitted to drive home. Indeed, have cancelled number of patients in the past ten years when they arrived at the Victoria General Hospital without driver or attendant. It is well recognized that patients will have delayed or secondary reaction to their surgery causing them to faint. This is often referred to as vagovagal response, but in many cases we are just not sure as to the exact pathophysiology. It is not necessarily related to an excessive amount of bleeding which may or may not have occurred in Mrs. MacPhail's situation.” On Discovery Dr. Petrie was asked about his policy and the reasons for his rule about not driving. He said: (Exhibit 17 page 17) "Because think it's impossible for me to predict the patient's response to surgery. There is wide gamut in human emotions. There is wide gamut in physiological response to surgery. Most people who see are have some degree of concern, anguish, worry when they are having any invasive surgical procedure done. And that's normal. mean, that's normal physiological human being. mean, we were taught, as medical students, the fight and flight response to the adrenergic stimulation of the sympathetic nervous system. And that's what happens. And the adrenaline pumps out of your adrenal glands, you know, your hair stands on end, your heart speeds up, you get peripheral clamping down of your circulation so your hands feel cold and clammy. And that's what happens when you surgically incise people, or do outpatient surgery to them. They can't predict ­they can't help it. mean, that's natural physiological response. And on top of that, of course, is the emotional response which, once again, as suggested in my reference to the football player who collapsed with needle stick, is totally unpredictable too, because of the vasovagal attack. We know that people's heart rate slows down significantly through vagal nerve, and these people just don't get enough blood into their brain, so they pass out and fall to the ground or fall on top of you or whatever." Later he continued: (p. 27) "No. think most vasovagal attacks occur within reasonable period of time of the inciting event. But am not saying that two hours later this is not vasovagal attack, because let's appreciate the fact that there has been surgical procedure here, very emotionally charged situation, there has been small amount of benzodiazepine used, there has been an anesthetic applied to the cervix. The combination of those four events could certainly culminate in passing out, fainting, loss of control of the vehicle and the subsequent motor vehicle accident." Q. Okay. But am trying to separate them. And let's consider them one by one. was asking you about delayed vasovagal reaction which is delayed some period of time after the stimulus, the surgery. Q. Is that recognized risk? A. think it's combination of factors. You know, don't think you can say you know, is it normal to have sudden slowing of your pulse two hours after you have had surgical procedure in normal patient sitting quietly in room? That is uncommon. If he or she is driving her car, home, has lot of emotional concerns about what she has just gone through, has had some Ativan to which she has had an inappropriate but normal pharmacological response of drowsiness, then the vasovagal attack at that time is not out of the question, not at all" Defendants' evidence on liability: Janet Chernin is one of the defendants and testified that she worked as receptionist at the Morgentaler Clinic in Halifax. She took the telephone call from the plaintiff requesting an appointment and filled out the forms documenting her case. She completed the appointment sheet (Tab 26 Exhibit Book) for the plaintiff and noted that the plaintiff expected to be accompanied by her husband Craig. She also noted on that form that the plaintiff "wanted to take the baby home to bury". She said she told the plaintiff that this was not possible. On March 24th, 1993, the plaintiff arrived at the clinic and was met by Ms. Chernin. She received from the plaintiff the fee for the abortion and arranged for her to see Mrs. Palmer for counselling session. She was aware that the plaintiff was not accompanied, as originally intended, and that she wanted to drive home alone. She said the general policy at the Halifax Clinic and also at the Morgentaler Clinic in Toronto, where she had previously worked, was that patients should not drive after an abortion. Ms. Chernin said that she overheard conversation between nurses Calder and Broderick in which they were discussing the fact that the plaintiff intended to drive home. She said she understood from that conversation that Lynn Broderick had offered to give the plaintiff drive home, but that she had refused. She said that her normal practice was to advise patients that they shouldn't drive but that she couldn't say whether she said that to the plaintiff or not. She said the reason for this rule is the fact that normally woman takes medication during the abortion and also because of the stress of the procedure itself. Ms. Chemin said that she felt it was the responsibility of the doctor and nurses to deal with the issue of whether the plaintiff drove or not. She said she was only aware of one other case at the clinic where patient drove after an abortion. In that case, the plaintiff was accompanied by her mother and Ms. Chernin assumed the mother would be driving home. However, when they left the clinic, she saw the patient get in the car and drive away. She said she was concerned about that at the time. Ms. Chemin said it was common to see women tearful and emotional after an abortion. She also said that some seem faint and weak. She said that one young patient came downstairs to leave, but because of her emotional condition was told to go back upstairs to the recovery room for some more time before leaving. She said the average stay in the recovery room would be 30 to 45 minutes, but that some woman stay there for an hour. Sandra Lanz was the head nurse at the clinic on March 24th, 1993. She was responsible to supervise all nursing functions of the clinic. She spoke with the plaintiff shortly after she came to the clinic and said that they had discussed the issue of whether the plaintiff would be driving home. She said that she didn't tell her not to drive, but said to her that it was not good idea to do so. She said the plaintiff at that time appeared steady and not emotional. She said she later saw the plaintiff in the recovery room after the abortion and that once again she appeared fine and alert. Jean Palmer was the counselling nurse at the clinic. She saw the plaintiff on the morning of March 24th, 1993. Her job was to provide counselling on the emotional issues involved with an abortion and to assess the patient's emotional and mental state. She was familiar with the plaintiff because she had worked with her as nurse at the V.G. Hospital but they were not close friends. In the discussions between the plaintiff and Mrs. Palmer they discussed medication during the procedure. From that she understood that the plaintiff would be driving home after the abortion. She said she couldn't remember anyone ever coming to the clinic for an abortion and driving home alone. She filled out the counselling assessment (Tab 24 Exhibit Book) and noted in capital letters that the plaintiff "wants to drive home alone today". She said she did that to alert the other health care professionals of this fact. She said she felt she didn't have the final say in whether that should happen or not. Towards the end of the counselling session Mrs. Palmer discussed the issue of taking the sedative Ativan. She said she encouraged her to take it which she eventually did. Mrs. Palmer said on cross-examination that she would not advise anyone to drive after an abortion. She said here she made an exception because the plaintiff was nurse and that she felt that nurses drive home many times after having emotional shifts at hospitals. She said that in two years of counselling patients at the clinic, she only heard of one patient who drove home after an abortion. She agreed that she didn't discourage the plaintiff from driving home and said that was because the plaintiff had made up her mind to do that. She said she encouraged the plaintiff to take the Ativan because it would relax her and that was important in the procedure itself. Dr. Jacques Desrosiers testified that he was the doctor who performed the abortion on the plaintiff. He said he met the plaintiff at the clinic on March 24th. He said at that time he was working there one day per week doing abortions. When he met her she had finished the counselling session with Jane Palmer and he had copy of the counselling assessment (Tab 24 Exhibit Book) and was therefore aware that she would be driving home. He said he was aware that the driving issue became important normally where person is given narcotic for pain rather than when patient took sedative like Ativan. With narcotic, the patient would normally be told not to drive, but with the sedative the decision would be made after the procedure and if there were no complications the patient would simply stay longer at the clinic and then be allowed to leave. In other words, it was judgment call on the part of the nursing staff to determine if the the patient was well enough to leave on her own. If there were obvious symptoms that the sedative was effecting the patient, or she was suffering excessive pain, then she would be told to stay around until the symptoms passed. He said he understood the general policy of the clinic was for women not to come for an abortion unaccompanied. He said that patients rarely came without someone with them. He said that most patients have little difficulty with the abortion procedure but that if there were complications they were dealt with at that time. He said the risk of fainting is normally just after the abortion and not delayed reaction taking place at later time. He said he has never heard of patient faint two or three hours after an abortion. He said that from his personal experience in dealing with many patients who come back for follow-up checkup that he has never had patient report that she fainted some hours after an abortion. Dr. Desrosiers said the risk of hemorrhaging from an abortion is usually during the procedure itself and not later, but that it could occur from infection. He felt if that happened it would normally be about 24 hours after the procedure, not shortly thereafter. He indicated that he discussed with the plaintiff the decision to have an abortion because of her request to take the baby home to bury. He said he was satisfied with her response. He said the procedure had no complications and was routine from his point of view. After the abortion he went to the recovery room and observed the plaintiff. She was showing no signs of distress and he then left her with Lynn Broderick the recovery room nurse. He did not see her again before she left the clinic. Dr. Desrosiers said the policy of the clinic changed in 1995 and that it now requires that all patients be accompanied when having abortions, not because of the risk, but because of this particular law suit against the clinic members. On cross-examination Dr. Desrosiers said that he made no attempt to dissuade the plaintiff from driving when he first saw her because at that point he didn't feel she was at risk. He said if there had been complications during the procedure he would have discussed the issue with her again. Since there were no complications he did not do so. He did not know if any staff discouraged her from driving. He felt that the sedative Ativan would reach its peak effect within one hour and that he was aware that common symptom of taking Ativan is drowsiness. He said that he left the final, decision of whether the plaintiff should drive or not to the recovery room staff. He said he didn't know how long she remained in the recovery room or what her condition was when she left. Dr. Desrosiers agreed with plaintiffs counsel that the plaintiffs request to take the baby home to bury would probably indicate moral dilemma on her part and that most patients do not want to see the product of conception. He also agreed that an abortion is an emotionally charged procedure for woman. Lynn Broderick was the recovery room nurse at the Morgentaler Clinic. She saw the plaintiff after the abortion had been performed. She noted from the chart that the plaintiff was from St. Margaret's Bay, the same place where she lived. She said the plaintiff sat in chair and she gave her hot drink. She offered her Tylenol, but she refused because the plaintiff said she was driving and didn't want any more medication. Ms. Broderick also noted that the plaintiff’s husband was supposed to accompany her. She asked the plaintiff about that. She said the plaintiff explained to her about the babysitting problem. Because of that, Ms. Broderick suggested to the plaintiff that she could ride with her and that she would be finishing early that day. She said that the plaintiff said she would be fine to drive herself. Ms. Broderick said that she understood the policy of the clinic to be that patients be told they should be driven home and should be discouraged from driving themselves. She said she had never been involved with patient who was driving alone but that she had heard that it had happened in the past. She said the plaintiff was talkative and that she appeared alert when she saw her. She was steady on her feet and said that she felt fine. She said the plaintiff stayed in the recovery room for an hour or an hour and half. She remembered that because she was the last patient to leave and there had been other patients there at one point. She said she has never seen patient faint in the recovery room. When the plaintiff left Ms. Broderick said she had no concerns about her condition. She acknowledged on cross-examination that she had not warned the plaintiff not to drive because she felt the driving issues had already been addressed by other staff. She also indicated that in fact she had seen one patient faint in the recovery room and that she saw others who appeared faint. Deidrea Calder saw the plaintiff at the Morgentaler Clinic. She was working as nurse who was in the operating room called the head of the bed nurse being that she was beside the patient while the abortion was being done. She said she discussed with the plaintiff whether she wanted Nitrous oxide which would put her to sleep. She said that the plaintiff refused because she was driving home that day. She said the abortion took about 10 minutes and that the plaintiff was in the O.R. for about 20 minutes. She escorted the plaintiff to the recovery room where she met Lynn Broderick. Later she said she saw the plaintiff when she was leaving the clinic. She asked her if she was okay to drive and that the plaintiff said she was. She saw her go out the door. She said she understood the policy of the clinic was for patient not to drive home alone. She said that if person showed up alone that decision would be made after the procedure to see if the patient was able to drive alone. She said she never saw patient faint after 30 minutes in the recovery room. She agreed on cross-examination that an abortion is emotionally charged and that some woman show more emotions than others. She said the plaintiff was not tearful during the procedure. She said that the assessment on the ability to drive is based on the responses by patient and how well they perform in going to the washroom and getting their street clothes out of the locker. She said that normally person would only stay 30 minutes in the recovery room. Dr. Edward Sellers testified on behalf of the defendants. He is Pharmacologist involved in research and clinic work with drugs similar in type to Ativan. He said that one milligram dose of Ativan was on the lower end of the usual dose and would be administered to deal with anxiety in patient. He said the higher the dose the more likely the patient would have symptoms of drowsiness. He said that typically the effect of Ativan would be obvious within one hour after taking it, thereafter, the effect would remain the same. In his report filed with the Court, Dr. Sellers said: "The best indicator of whether lorazepam has had an effect such as sedation or impairment of motor performance is obtainable from observing the patient after administration of the drug and by asking the patient about the drug effects." Dr. Harry Hugh Allen is an Obstetrician and Gynecologist and professor at the University of Western Ontario. He also practices in London, Ontario. He, at one time, performed about 300 abortions per year. In recent years that has decreased to 25 to 30 per year. He said that 90% of these were done under local or no anesthetic in clinic setting. He said his practice was to allow patients to drive after an abortion if that patient has not received an intravenous sedative like Valium. If the patient has only received local anesthetic or drug like Ativan, they are permitted to drive alone. He said that it was not appropriate to compare other Outpatient type procedures to an abortion because of the pain factor in the other procedures because procedure involving an incision might cause pain based on the patient's movement. That is not the case with an abortion. He said he would only refuse to allow patient to drive home if there was solid medical reason to do so. Dr. Allen then described the process involved when person faints. The medical term for fainting is syncope and involves loss of blood to the brain and pooling of the blood in the lower extremities of the body. Because of that people fall over and this causes the blood to flow back to the brain. He described the vasovagal syncope in his report filed with the Court (Tab Defendant's Expert Report). He stated: "The physiology of Vasovagal syncopy is not completely understood. The vagal nerve response in pelvic surgery occurs at the time or very near the procedure from stimulation of the parasympathetic nerves to the pelvis. These impulses travel cenral(sic) to the vasomotor centre in the medulla. This stimulation causes reflex decrease in heart rate via the vagal nerve to the heart. There is slight decrease in cardiac contractility also. The muscle vasdilator(sic) system becomes activated at the same time further causing decrease in blood pressure resulting in syncopy." He was of the opinion that any such vasovagal syncope would occur either during the abortion or immediately following, that is, within 10 or 15 minutes following the abortion. He did not feel that it could happen two hours after the procedure. Dr. Allen indicated on cross-examination that when he worked in an abortion clinic they asked patients to have drive home because the patient might be taking narcotic for pain or sedative like Valium intravenously. He agreed with plaintiff's counsel that strong emotional reaction can cause person to faint. However, he stated that the faint would normally occur at the time of the troubling event, not some hours later. Dr. Robert Fraser is the head of the the Department of Gynecologist at the V.G. Hospital in Halifax. He worked at the abortion clinic at the hospital for number of years. He said that since the early 1990's the vast majority of abortions are done there under local anesthetic. He said the policy at his clinic was to generally encourage patient to have someone with them when undergoing an abortion. He said that any vasovagal reaction would occur either during or shortly after the abortion procedure. He said it would appear appropriate that patient be permitted to drive after an abortion provided the patient was not exhibiting symptoms which would cause the nursing staff to have concern about the woman's ability to drive. During the course of the trial, number of witnesses were asked about text book called "Abortions and Contraception", by Dr. Henry Morgentaler, specifically, the witnesses were referred to page 81 of that text wherein the author said: "A syncope can also take place after the operation. Some patients will experience severe cramps as result of the contractions of the uterine muscles. Mild cramps are normal and desirable response, because this is an indication of good contraction of the uterine muscle, the mechanism that halts the bleeding. However, when intense, some women might overreact to the cramps to the point of syncope. Anxiety over imagined complications may trigger fainting spell, especially if the woman interprets any symptom as an indication of imminent disaster. Paradoxically, the release of tension after becoming aware that the much-dreaded abortion is over may have the same effect." (Emphasis Added) The Law The law on this case is clear. The defendants as health care professionals were obligated to treat the plaintiff in manner consistent with generally accepted medical practice. The standard of care required of them is set out in number of cases including Crits and Crits v. Sylvester, et al., [1956] D.L.R. (2nd), 508 where Schroeder, J.A. speaking for the Ontario Court of Appeal said: “Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise that degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than one who does not profess to be qualified by special training and ability.” This definition of the standard of care has been applied in number of cases in this province including: Anderson v. Grace Maternity Hospital et al, (1989), 93 N. S. R. (2d) 141 (T. D.); Robichaud v. Bruce and Sayat (1988), 86 N. S. R. (2d) 421 (T.D.); Goguen v. Crowe (1987), 80 N.S.R. (2d) 36 (T.D.); Young et al v. St. Rita Hospital and Critchley (1986), 75 N.S.R. (2d) 239 (T.D.); Nancy E. Locke v. Dr. Robert H. Lea et al, (S.H. No. 93-5171)(April 23rd, 1997). In Crits, supra, the Court also dealt with arguments made by the defendants that they were complying with the standard practice within the medical community at the time. Schroeder, J.A. said: "Even if it had been established that what was done by the anaesthetist was in accordance with "standard practice", such evidence is not necessarily to be taken as conclusive on an issue of negligence, particularly where the so-called standard practice related to something which was not essentially conduct requiring special medical skill and training either for its performance or proper understanding of it. This was the view of the Court of Appeal of Manitoba in Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, and reference may also be made on this point in its broader and more general aspects to Bank of Montreal v. Dom. Gresham Guar. Cas. Co., 1930 CanLII 318 (UK JCPC), [1930], D. L. R. 689, A.C. 659, 50 Quc. K.B. 57, and Lloyds Bank v. E.B. Savory Co., [1933] A.C. 201 at p. 232. If it was standard practice, it was not safe practice and should not have been followed." In Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71, the Manitoba Court of Appeal dealt with the issue of whether Judge is bound by expert evidence in regard to the standard practice of doctor. MacPherson, C.J.M. said: (p. 73) "The question left for consideration is: Was the doctor negligent in the care of the child after the operation had been completed? It was submitted that the expert testimony given, clearly relieved him of all negligence and that the expert testimony had to be accepted on that point. cannot agree with that argument. Where there is other evidence in contradiction of the opinion of the expert testimony, which can be understood by layman, those facts can be taken into consideration. In 48 Corp. Jur., p. 1151, it is stated: "Expert evidence is not required, however, where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves." On Appeal to the Supreme Court of Canada this statement of the law was approved. ([1950) 1950 CanLII 336 (SCC), D.L.R. 223). In ter Neuzen v. Kom (1995) 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577, the Supreme Court of Canada dealt with the issue of whether Judge could instruct jury to find that despite conformity with standard practice doctor could be found negligent because the standard of practice itself was found to be negligent. Sopinka, J. speaking for the Court said: (p. 590) "It is generally accepted that when doctor acts in accordance with recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In sense, the medical profession as whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent." He did however recognize that there can be cases where standard practice will not protect professional. After quoting from Professor John G. Flemmings The Law of Torts, Justice Sopinka continued: (p. 591) "It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. In Roberge v. Bolduc (1991), 1991 CanLII 83 (SCC), 78 D.L.R. (4th) 666, [1991] S.C.R. 374, 39 Q.A.C. 81, this court had the opportunity to address this issue in the context of the civil responsibility of notary under the Quebec Civil Code. In that case, it was recognized that where custom of profession ignores the elementary dictates of caution, it is open to court to find the professional person negligent. Thus, even if doctor practices in accordance with common professional practice, he will be liable if that practice is wanting. As L'Heureux-Dube J. stated at pp 710-II:" "This brief overview of both doctrine and jurisprudence indicates that courts have discretion to assess liability despite uncontradicted evidence of common professional practice at the relevant time. The standard, in regard to the particular facts of each case, must still be that of reasonable professional in such circumstances. It may very well be that professional practice reflects prudent and diligent conduct. One would hope that if certain practice has developed amongst professionals in regard to particular professional act, such practice is in accordance with prudent course of action. The fact that professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. If the practice is not in accordance with the general standards of liability, i.e., that one must act in reasonable manner, then the professional who adheres to such practice can be found liable, depending on the facts of each case." (Emphasis in original). The foregoing principles were also endorsed by this court in Waldick v. Malcolm (1991), 1991 CanLII 71 (SCC), 83 D.L.R. (4th) 114, [1991] S. C. R. 456, C. C. L.T. (2d) I. Thus, it is apparent that conformity with standard practice in profession does not necessarily insulate doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger; judge or jury may find that the practice is itself negligent." He also reviewed the Court's decision in Anderson v. Chasney, supra, and quoted with approval from the Manitoba Court of Appeal decision in that case. (p. 594) "Coyne J.A. then adds the following at pp. 85-6: "Whether or not it is negligence to omit to use sponges with ties or to have count kept is not matter which requires an expert to decide; it is not special surgical skill that is in question. Such skill is not necessary to answer the question. The point involved is negligence or no negligence. It is not matter here which requires an expert to decide. General practice of the defendant and some others does not constitute complete defence. It is some evidence to be taken into consideration on the question of negligence but it is not conclusive on Court or jury. If it were defence conclusive on jury or Court, group of operators by adopting some practice could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice, even though simple precaution, plainly capable of obviating danger which sometimes might result in death, was well known If practitioner refuses to take an obvious precaution, he cannot exonerate himself by showing that others also neglect to take it. (Emphasis added.) "As well, Coyne J.A. emphasized that the case involved no difficult or uncertain questions of medical or surgical treatment nor any matters of scientific or highly technical character. It was simply matter of whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken. Coyne J.A. remarked (at pp 86-7):" "Ordinary common sense dictates that when simple methods to avoid danger have been devised, are known, and are available, non-use, with fatal results, cannot be justified by saying that others also have been following the same old, less-careful practice; and that when such methods are readily comprehensible by the ordinary person, by whom, also, the need to use them or not is easily apprehended, it is quite within the competence of Court or jury, quite as much as of experts to deal with the issues; and that the existence of practice which neglects them, even if the practice were general, cannot protect the defendant surgeon." Justice Sopinka then concluded: (p. 595) "I conclude from the foregoing that, as general rule, where procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury, it will not be open to find standard medical practice negligent. On the other hand, as an exception to the general rule, if standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for practitioner to claim that he or she was merely conforming to such negligent common practice." Cause of the accident I. find here that there is no obvious reason why the plaintiff's vehicle crossed the center line of the highway and struck the vehicle being driven by Susan Arsenault. It is clear that this happened and therefore must look for probable causes. It has been argued by the plaintiff that she fainted briefly and strayed across the center line. Counsel for the plaintiff suggests that the faint was caused by the emotional reaction to the abortion or was vasovagal attack brought on either by emotional stress or pain from the abortion procedure. In the alternative, it is suggested that the patient got drowsy as result of the effects of the sedative Ativan and briefly nodded off causing her vehicle to cross the center line. The defendants suggest that there is no evidence that the Ativan would have such significant affect on the plaintiff as to cause her to nod off especially some hours after taking it. They also suggested vasovagal attack normally is triggered by sudden pain and there would be no reason for that pain some two hours after the abortion. find that the plaintiff was normally very competent driver and used to the highway where the accident occurred. She drove this highway many times after working long shifts at the hospital. The accident occurred in the middle of the afternoon and the weather and road conditions were good. find it unreasonable to conclude that the accident happened because of inattention on her part. believe, therefore, that she was temporarily affected in such way as to cause her to let her vehicle cross the center line of the highway. Of the three scenarios suggested by the plaintiff, believe the most likely are either simple fainting spell or vasovagal attack. find that am not convinced that the sedative Ativan caused her to lose control of her vehicle. The evidence before me from all of the medical professionals is that fainting, and the causes thereof, are not clearly understood. However, they all agree that fainting can be caused by emotional stress. That is true also for vasovagal faint. The plaintiff in this case had severe emotional reaction to the fact of the abortion. Consistent with the medical evidence, find that she was more affected by the procedure because she had number of children at home. believe she agreed to have the abortion only because she felt forced into it because of her family situation. She did not discuss the matter with anyone except her husband. He was obviously upset with the pregnancy, and believe his reaction was significant to the choice she made. Her evidence is that she had severe moral and ethical concerns about terminating her pregnancy. That was exhibited when she asked to take the baby home to bury. Obviously, by that comment, she felt she was aborting baby and not "product of conception". believe she put on brave face while at the clinic particularly because she knew some of the personnel there. also believe that the fact that she ran into people she knew affected her even more. Now people with whom she had worked with were aware of her personal situation. believe that after leaving the clinic and having something to eat the reality of what had happened hit her. She was going home to face her children and husband and as she got closer to home the reality of facing them became more intense. She first started to cry at the Burger King. Later as she drove home, believe the intense emotional turmoil of aborting, what she described as baby, caused her to faint. This resulted in her losing control of her vehicle and letting it cross the center line of the highway and being struck by the other vehicle. Standard of Care There is no issue here but that the abortion was performed in manner that met the standard of care for that procedure. The central issue is whether the health care professionals should have been aware that the plaintiff could be affected in her ability to drive motor vehicle by either the sedative given to her prior to the abortion, the local anesthetic administered during the procedure, or by the possibility that she would faint after leaving the client as result of the emotional impact of having had an abortion. In order to impose liability on the defendants, must find that the defendants should have been aware of these dangers to the plaintiff and that they did not act to ensure that she was not at risk. must also find that the negligence on the part of the defendants was the determining cause of her accident which resulted in her injuries. Dealing with the standard of care upon which should judge the defendants care of the plaintiff, find that the evidence before me does not establish clear standard of care on the issue of driving vehicle after an abortion. have conflicting evidence from respected experts on both sides of the issue. Dr. Piver, Dr. Petrie and Dr. Yabsley took clear cut position and advised that there should be no driving after any significant surgical procedure. Their position is basically that doctor cannot predict what will happen to patient after such procedure and the simple and safe course is simply to prohibit driving to protect against all causes of delayed reaction. On the other hand, Dr. Desrosiers, Dr. Allen, and Dr. Fraser suggested that driving after procedure is permitted provided the patient has not experienced problems during the procedure requiring pain medication, has not been given general anesthetic, and the patient is given an opportunity to remain in the recovery area for sufficient time for staff to assess the patient's ability to drive. Because of the conflicting evidence, am not able to say that there is in fact clear cut standard being applied in the medical community in Halifax. However, that does not mean that this would absolve the defendants because must go on to determine despite the lack of generally accepted practice on this issue, whether in this case, the defendants met the standard which should be imposed. In ter Neuzen, supra, the Supreme Court of Canada held that if the evidence does not establish standard practice the trier of fact is entitled to fix the standard if that can be done without expert evidence. In this case, find that have enough undisputed medical evidence to fix standard of care in regard to driving after an abortion and propose to do so. find that it is not disputed that fainting is often caused by emotional stress and that an abortion always causes emotional stress, therefore, find it is reasonable to expect that woman might faint after undergoing an abortion. further believe that faint might occur up to 12 hours after an abortion, and therefore, woman should not drive during that time period. believe that the staff at the Morgentaler Clinic should have been aware of the possibility of faint especially in the case of the plaintiff in light of the fact that she had children and her comments about taking the baby home to bury. believe that her particular situation should have raised more red flags to stop her from driving. Instead, believe that Jean Palmer deferred to the plaintiff because she was nurse. She let her decide herself if she was okay to drive. believe that Jean Palmer would have told non­-nurse acquaintance that she should not drive. believe the clinic staff did not specifically address their minds to the issue of fainting because if woman was not driving as mandated by the clinic policy faint would not be significant event. also find that the duty of care could easily have been discharged by having any staff member advise the plaintiff against driving. That simple precaution would, find, have averted this terrible accident with such severe consequences. further find that the plaintiff would not have driven if she had been told not to do so. believe her intention to drive was based solely on the fact that she was not taking medications which would normally affect her ability to drive. She refused the Ativan twice because she was concerned about its effect on her driving. She consented to take it only because she was assured by Nurse Palmer that she should do so. Despite the fact that she was told to be accompanied, find no fault on the part of the plaintiff as she made it very clear to all clinic staff that she intended to drive and was not once dissuaded from doing so. believe it was reasonable for her to assume that she was not putting herself in any danger by driving. The plaintiff was obviously not aware that strong emotional reaction could cause fainting. believe the strong emotional reaction by the plaintiff was not to the medical procedure itself which was relatively uneventful, but to the fact that she had just had an abortion and was now going home to her family. Once that reality set in, her body reacted as was so ironically forecasted by Dr. Morgentaler in his text book. believe the clinic staff were negligent in not recognizing that an emotional reaction can be delayed and cause fainting some hours after an abortion. The fact that the doctors testifying before me were not aware of woman fainting some hours after an abortion does not convince me that fainting spells have not occurred. If woman feels faint while sitting in car, or at home, the consequences are minor that the episode might not even be reported to doctor on follow-up visit. Unless there are consequences to fainting spell normally it is not significant and might simply be attributed to the medical procedure itself instead of the emotional reaction of having had an abortion. find no fault in how Janet Chernin handled the plaintiff at the clinic. Her job was to arrange appointments and advise patients that they should be accompanied. She did that and also ensured that Jean Palmer was aware of the fact that the plaintiff was not accompanied on March 24th, 1993 when she attended for the abortion. do not find that it would be appropriate for Janet Chernin to stop the plaintiff from proceeding with the abortion without seeing the medical staff. find it reasonable that she would expect that they would deal with the driving issue. Therefore, dismiss the action against her. find that Dr. Desrosiers and Jean Palmer breached their duty of care to the plaintiff by not ensuring that they, or some staff member, advised her not to drive. believe that Dr. Desrosiers really saw nothing wrong in letting her drive assuming that the abortion was without complications. When there were no complications, he saw no reason to discuss with her the issue of her driving. He relied on the recovery room nurse to ensure that she was not exhibiting symptoms which would cause concern. find that the recovery room staff did not observe obvious symptoms of drowsiness or excessive pain and therefore let the plaintiff drive. That was consistent with Dr. Desrosiers' evidence as to what he would have looked for before letting her leave the clinic. Once again, the recovery room staff appeared to act contrary to the clinic policy that patients having an abortion should not drive after the procedure. Based on the lengthy evidence of possible complications from surgery, such as an abortion, and considering its knowledged emotional impact on all women, I find that to permit a patient to drive after an abortion was a breach of the standard of care I would expect from health care professionals providing that medical service. The argument that imposing strict standard of no driving after an abortion is somehow unfair to woman having no one to drive pales in significant to the possible repercussions of delayed reaction resulting in fainting spell. suggest that the inconvenience of insisting on patient having driver and having strict rule about that is simple solution to the problem. find that doctors and other health care professionals owe duty to patients and to the driving public generally not to permit patient who has had an abortion to go on high speed highway driving vehicle. do not believe that doctor or nurse can predict how particular woman will react emotionally to an abortion. Dr. Petrie's Discovery evidence about how young healthy football players faint when given simple injection is telling. People react differently to medical procedures. The doctors and nurses dealing with them do not know what emotional baggage patient is carrying. Outward appearance does not tell what is happening inside and therefore relying on outward appearance can be misleading and doctors and nurses should know that. believe the plaintiff here appeared recovered from the physical aspects of the abortion. The staff all agreed she looked capable of driving. believe she felt herself that she was able to drive, however, it is obvious that this was not the case and the defendants did not see what was going on within her emotionally. agree with the submission of the defendants that simply an error in judgment should not be the basis of successful negligence claim. (See Quintal v. Datta (1988), W.W.R. 461 (Sask. C.A.) and Wilson v. Swanson (1956) 1956 CanLII (SCC), S.C.R. p. 804. reject the arguments of the defendants that the opinion of Dr. Yabsley and Dr. Petrie should carry little weight because they were not qualified as experts in gynecology. believe that the procedures done by these orthopaedic surgeons on an Outpatient basis would many times mirror the issues present with woman having an abortion. That is, they would be doing medical procedure on patients having local anesthetic and possibly sedatives. believe an abortion would obviously be much more emotionally charged than an orthopaedic procedure, and therefore, would expect more concern by the gynecologist for the emotional well-being of the woman patient. do recognize, however, that orthopaedic practice, many times, would involve procedures more painful than what is present for an abortion. Based on the breach of the standard of care, find the defendants Dr. Desrosiers and Jean Palmer liable in negligence to the plaintiff and also to the plaintiffs in the second action Carol Newbury and William Edward Newbury. find no contributory negligence on the part of the plaintiff Wanda MacPhail. Damages As result of the accident on March 24th, 1993, the plaintiff suffered serious injuries. In his report filed with the Court Dr. David Petrie who treated the plaintiff outlined her injuries: "She received number of injuries, the most major being compound fracture of her right patella and proximal right tibia, right pneumothorax, number of rib fractures, significant head injury with laceration to her forehead along with fracture of the right fourth metacarpal. After initial resuscitation in the Emergency Department, she was taken to the Surgical Intensive Care Unit for monitoring and to the operating room where patellectomy was performed because of the extensive comminution of her knee cap. The extensor mechanism was repaired. The other injuries were attended to as indicated in the discharge summary. She also had plastic surgery by Doctor W. Caines to her face and right fourth metacarpal. She has been seen and followed through the clinic, and is managing reasonably well considering the nature of her trauma. She has an extremely stiff knee unfortunately, and did manipulate it under anesthesia in an attempt to regain better range of activity. She was seen June 9, 1993 and her manipulation was carried out few days later." She spent 10 days in the hospital and then returned home where family members tended to her nursing needs. In May, 1993, she started an extensive physiotherapy program along with an exercise program at home. The plaintiff described to the Court some serious difficulty she has had since the accident in regard to her memory. She said that she misses appointments, makes mistakes in dealing with everyday activities such as when to pick up her children or where to drop them off if taking them somewhere. She said her children have learned to deal with her memory problems and she has learned to frequently make notes to herself of things she must do. This has only happened since the accident. The plaintiff also described the constant pain she has had in her right knee. She said that she is always in pain and that the more activity she does the more pain she gets. In June, 1993, she tried to go back to work. She got part-time job with Home Care Company which involved taking telephone calls. At the time she was still on crutches. She said she really was not able to do this job because of her physical limitations and her memory problems. The job also involved more after hours calls which she did not expect. She did that kind of work for about year and was then offered supervisory position with the company. She decided not to take that position because she felt she couldn't handle it because of her memory problems. In June, 1994, she decided that she couldn't meet the physical and mental requirements for the job and stopped working. She has not worked since then and indicates that she continues to have pain in her knee. She indicates that she is aware that the medical personnel indicate that eventually she will require knee replacement, but the recommendation is that this should not take place until she is at least 50 to 55 years old. Her marriage has also broken up and she now lives alone with her four children. When Dr. Petrie reviewed her situation with her in May of 1995, he wrote to her solicitor. "She sustained number of injuries including major right frontal laceration with an underlying skull fracture, fracture of her right 4th finger which was splinted by Doctor Caines, number of rib fractures on the right side with pneumothorax necessitating drainage, an L-shaped laceration over the left calf and then very severe compound fracture dislocation of her knee which necessitated patellectomy as well as open reduction internal fixation of her femur and proximal tibia. The hardware was subsequently removed from the knee area in September, 1994. She used crutches until June after the accident and at that time manipulation of her knee to 90 degrees was performed because of the amount of stiffness and scar tissue around the joint. She then used continuous passive motion machine as well as vigorous home therapy program, worked hard at her exercises and has been able to maintain almost 90 degrees of bend in her knee. She has been wearing right knee brace and carrying cane now for almost year. The brace does provide some stability and she has less of feeling that she is going to fall or slip. Around the house she tries to take the brace off so that she can keep her muscles moving and exercise with them. She does drive car, but has had the vehicle adjusted so it is primarily her left foot that uses the accelerator, brake, etc. Major difficulties getting up and down stairs, particularly going to the basement where her washer and dryer are located is described. She grades her activities and plans to spread out her day's work over longer period of time so she can have rest intervals in between." Dr. Petrie then summarized his assessment of the plaintiff as of that date: "In summary, do feel that this woman is not capable of going back to work as nurse at this point in time. concur that she is disabled to the point that she cannot "engage in any occupation or employment for which she is reasonably suited by education, training, or experience". also think there is an element of depression affecting her present status as she is very frustrated with the whole medical/legal progress, and the way it is dragging on, etc. think there is strong likelihood that this woman is going to end up with knee arthroplasty or artificial knee joint in the future. She is certainly far too young to consider for this procedure right now, in my estimation. Indeed, if surgery was absolutely required for pain control, would recommend fusion or knee arthrodesis. She is very reluctant to consider this as therapeutic option at this point in time and concur entirely with her in this regard. Perhaps at later date her knee function will improve to the point she could assume sedentary job although this is unlikely in my estimation. do feel she has had significant closed cerebral injury and does have significant intellectual defect primarily in the area of short term memory. would advise that she have some psychological testing in this area to establish what her intellectual cognitive disability might be at this time." He added P.S.: “Review of xrays taken May 3, 1995 of this woman's right knee confirms the presence of severe degenerative arthritis involving the femoral condyles particularly with the absence of her patella.” Dr. Reginald Yabsley examined the plaintiff in June, 1995. He saw her only once and also did report. “I have reviewed the report of Dr. Petrie of May 4, 1994, reviewing this lady's accident, her injuries and her subsequent treatment and difficulties. am in agreement with his opinion that Mrs. MacPhail is not capable of returning to work and that she remains with permanent disability in relation to that which would seem to be possible by virtue of her training and experience. do agree that there is no further treatment indicated for her knee problem at this time, but do agree that should significant degenerative change develop or take place in her knee and depending upon her pain and her requirements that an operative procedure may well be indicated. As Dr. Petrie has pointed out, because of the difficulties with this lady's knee, knee fusion may be the treatment of choice, although that decision will have to be made if and when that time ever comes and could conceivably take the form of knee arthroplasty. In the event of the former, Mrs. MacPhail would be left with stiff, immobile knee joint which would represent considerably increased degree of disability for her. Should she undergo knee replacement, that, of course, would not provide normal knee, and its longevity would be time-related. Dr. Ross Leighton saw the plaintiff in October, 1996. He is an Orthopaedic Surgeon with special training in the area of treatment of acute trauma as well as total joint arthroplasty. In his report Dr. Leighton indicates: “IMPRESSION: feel that this patient suffered severe crush fracture injury involving her right leg, along with her other associated injuries. The other injuries have settled down in large part and she is left with chronic pain syndrome with marked weakness involving the right knee. TREATMENT: The treatment for her remains that of physiotherapy to try and gradually get her knee so it will flex further without the use of the brace in locked-stop position. think she will always need the brace on daily basis but that, hopefully, she will be able to flex it more without the continued problem of giving way, if her physio can achieve this. However, with the chronic pain type of syndrome, she may or may not be able to achieve this in the future and it would just be goal that we would try to reach. PROGNOSIS: The prognosis for her in the future is dismal. don't think she will be able to obtain an employment state. Whether she would be pain-free on day-to-day activity, of course, remains to be seen. do feel that as her knee continues to get worse the chance of requiring posterior stabilized total knee may be indicated in the future. If this happened, it would require total knee replacement with, of course, the added problems of recovery which takes about six months and the possibility that this joint could wear out. She is only 36-years of age. The other option in her situation, if she didn't last long enough to fall into the total knee category, meaning in the 50+ age group would be that of knee fusion which would make the knee stiff, but relatively painless. At this point in time she doesn't fall into this category either but it would really depend on how quickly and how severely her knee degenerated in the future. Both of these procedures would keep her out of the work force and take about six months of recovery post-op. This, of course, does not mean that this patient requires any or all of the procedures noted above, but just stipulates as to what may take place in the future if further degeneration continues.” Dr. David B. King is Neurologist and did an assessment of the plaintiff in September of 1995. He was apparently asked to investigate her to determine whether her problems with memory were as result of her head injury in the accident. In his report filed with the Court Dr. King concluded as follows: “Summary: This 35 year old woman was involved in motor vehicle accident on the 24th of March, 1993, at approximately 1340 hours. This occurred after surgical procedure at 1100, prior to which she had been give Img of Ativan. The indications are that she lost control of her vehicle but there was no evidence that she fell asleep at the wheel as she remembers seeing the other vehicle prior to the collision. It will probably always remain unknown as to why she lost control of her vehicle. She sustained number of orthopaedic injuries which have been detailed. She was confused and amnesic immediately after the accident, but within less than two hours was fully oriented and remained so throughout her stay in the VGH with no evidence of significant post-traumatic amnesia. Some time later when her orthopaedic pain had settled to some extent, she began to notice memory problems in the work place and concerns were raised about the possibility of brain injury, given her facial fractures. Interpretation of her memory difficulties was complicated by on-going orthopaedic pain, the use of medication and marital difficulties at home which had pre-dated the accident. There is no indication on mental status examination or the details surrounding her head injury of any serious brain trauma. It is my clinical impression that the difficulties that she has with her memory are largely related to her ongoing orthopaedic pain, medication usage and preoccupation with finances and marital difficulties at home.” Dr. William Stanish assessed the plaintiff at the request of the defendants' counsel. He saw her on July 31st, 1995. His report indicates: "Based on my evaluation of July 31, 1995 of Wanda MacPhail, there is little question that this patient has had most significant injury to her right knee which has resulted in post traumatic osteoarthritis. This osteoarthritis may progress to the point that the patient feels compelled to undergo further surgery, which in the short term could include arthroscopic debridement or knee fusion. In the long term, she may require total knee arthroplasty. At this point it is my considered opinion that she is employable. Obviously the workplace (and work challenges) must be tailored to protect her right knee. Mrs. MacPhail appeared to me to be very well motivated and most eager to job retrain. She is not doing herself any personal injury by considering such venture.” Dr. Thomas Loane is specialist in Physical Medicine and Rehabilitation. He was asked to give an opinion based on medical materials provided to him including all the reports mentioned above. He did not actually interview the plaintiff. His report dated July 22nd, 1996 indicates: "Given this level of impairment, mild restrictions in range, mild reductions in stability but ongoing muscle weakness that should respond to strengthening and alteration in bracing, continue to feel that Ms. MacPhail would not be restricted from performing work that was of sedentary, semi-sedentary or light level of effort, particularly restricting climbing, standing, prolonged walking or any activities that stress the knee. Sedentary, semi-sedentary or light work does not usually exceed the physical demands of normal activities of daily living and even more severe knee joint dysfunction can be accommodated through rigid bracing, the use of assistive devices or mobility aids. Therefore, although agree that she does have residual knee joint impairment and does have some mobility related disability, do not believe that the degree of impairment demonstrated is incompatible with employment of restricted nature. As Dr. Leighton points out, there is risk of further deterioration in the knee joint with time. However, there is also the possibility of improvement with strengthening and reducing bracing restrictions. Even with further deterioration of the knee joint to the point where rigid bracing would be required or assistive devices needed for normal mobility, continue to feel that this would not restrict her from sedentary, semi-sedentary or light work." Findings Based on the evidence before me, find that the plaintiff has suffered some very serious injuries as result of the accident on March 24th, 1993. believe she has recovered substantially from most of the injuries except the memory problem and the injury to her knee. Clearly, she has considerable pain, and as indicated in the medical reports submitted by both parties, she will not be able to return to her work as hospital nurse. also find that it is reasonable to expect that in the future she will require knee replacement which will not take place for some time until she is over the age of 50. find that the plaintiffs mobility is severely restricted and that she continues to require the assistance of cane. also believe that the pain she experiences is as she has described and find no evidence that she is embellishing her medical problems. The plaintiff requests general damages for pain and suffering, loss of past wages and loss of future income. General Damages It is submitted on behalf of the plaintiff that based on the injuries she sustained in the accident that she should be awarded general damages for pain and suffering in the amount of $100,000.00. The defendants suggest that the range be between $25-$35,000.00. have been referred to number of cases dealing with situations similar to that of the plaintiff and while it is never easy to find case on all fours with the case before me, believe the proper award for pain and suffering considering the plaintiffs circumstances is the sum of $75,000.00. do this being aware that the plaintiffs pain is continuing and that she will have to undergo knee surgery in the future. would award pre-judgment interest of 2.5%. In making that assessment would note that have been specifically directed by counsel to the following cases: Courtney v. Neville and Losier (1995), 1995 CanLII 4486 (NS SC), 141 N.S.R. (2d) 241 (S.C.); Grant v. McSween (1990), 1990 CanLII 4212 (NS SC), 96 N.S.R. (2d) 260 (S.C.); Dauphinee v. Canada Life Assurance Company et al (1988), 86 N.S.R. (2d) 101 (S.C.); Mahon v. Nova Scotia (A.G.) et al (1986), 73 N.S.R. (2d) 137 (S.C.). Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N. S. R. (2d) 102(C.A.); Woods v. Hubley (1995), 1995 CanLII 4280 (NS CA), 146 N.S.R.(2d) 97 (C.A.). Loss Wages At the time of the accident the plaintiff was working part-time at the V.G. Hospital in the Intensive Care Unit. She was earning $415.29 per week or $21,595.08 per year. The actuarial evidence presented on behalf of the plaintiff from Mr. Brian L. Burnell indicates that based on that income her loss of income to June 2nd, 1997 including interest thereon at rates as set out in Exhibit 15, Schedule I, would amount to $101,014.49. The actuarial evidence presented on behalf of the defendants by John Tarrel values this past loss of earnings at $100,445.00. Therefore, there is obviously no disagreement about the value of this item. Mr. Tarrel, however, factored into his calculation set-off for Section disability benefits received by the plaintiff during that period of time. These benefits were paid to the plaintiff at the rate of $140.00 per week from the date of the accident up until August 31st, 1996, at which time she accepted lump sum settlement of $30,000.00 in respect of future Section disability income benefits. That was paid to her on September 9th, 1996. Mr. Tarrel allocated from the lump sum settlement 39 weeks of benefits at $140.00 per week for the period September 1, 1996 to June I, 1997, making the total Section disability benefits attributable to the past loss period $29,241.00. He then added interest to that amount bringing it to $33,072.00 which he then subtracted from $100,445.00 leaving the sum of $67,373.00 as past loss of earnings. accept Mr. Tarrel's approach to this issue and would therefore find that the plaintiff's past loss of earnings is $67,373.00. However, would also subtract the actual earnings of the plaintiff which Mr. Burnell valued at $2,750.00 thereby leaving past loss of earnings of $64,623.00. The defendants have also advanced the argument that it was not appropriate for the plaintiff to settle her Section disability income benefit in September of 1996 at the sum of $30,000.00. The Tarrel actuarial report pointed out that $30,000.00 payment received in September of 1996, would considering the interest factor, represent five years of weekly payment. He also points out that if it was assumed she would be totally disabled until the age 65, her settlement in September 1996, should have had capitalized value of $84,700.00. The defendants therefore suggest that by accepting the lower figure they have been prejudiced and that the higher figure should be ascribed to any settlement for loss of future earnings. Support for this approach is found in the case of Dillon v. Kelly (1996), 1996 CanLII 5605 (NS CA), 150 N.S.R. (2d) 102 (C.A.). In that case, the Court of Appeal found that the plaintiff had accepted lump sum settlement which was considerably lower than the true capitalized value of the plaintiff's future Section benefits. Because of that, the trial judge accepted the capitalized value as the proper amount to be subtracted from the final settlement. This was approved on appeal. Schedule to Part VI of the Insurance Act provides as follows: “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 his 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 payments 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.” interpret this section to mean that after the initial 104 week period, the claimant must establish that she is now in fact totally disabled whereas for the first 104 week period she must only prove substantial inability to perform the essential duties of her occupation or employment. Given the position of the defendants that the plaintiff is not totally disabled, have difficulty with the argument that she should not have settled for $30,000.00 in September, 1996. Also, in light of my finding herein that she is not totally disabled and has some ability to earn income, reject the submission of the defendants and find that the settlement arrived at with the Section Insurance Company was reasonable in her particular circumstances. In Dillon v. Kelly, supra, the Court found that the plaintiff there clearly had right to the Section benefits until her date of retirement and in effect had used bad judgment by accepting the low lump sum amount. In this case, the plaintiff was clearly beyond the 104 week initial period and would have to show that she qualified for the Section benefits. She was not questioned on cross-examination about why she did so, and am not prepared to second guess her decision to accept lump sum amount. (See Corkum v. Sawatsky, et al, (1994), 1993 CanLII 3135 (NS CA), 126 N.S.R. (2d) 317.) Loss of Future Earning The parties are far apart on what is an appropriate amount for loss of future earnings. The defendants acknowledge that the plaintiff cannot return to her former occupation, however, they maintain that she will be able to return to some type of work for which she will have income. On the general issue of whether she would in the future be able to earn some income, believe that she will in fact be able to generate some income for employment. believe that she wants to work, if she is able, and will probably find employment, especially when her family are little older. Her original plan was to return to full-time employment when her youngest child went to school. The child is now five years of age. Mr. Burnell used the year 2000 as the date she would be normally working full-time. believe her prospects for employment are very limited considering her physical disability and her memory problems. believe based on her good record of employment in the past, that the plaintiff would have found full-time employment on her original target date. make that finding because believe she is the type of person that would be valuable employee because of her willingness to adapt to changing working circumstances. therefore accept Mr. Burnell's approach that any calculation of her loss of future income should assume that she would return to full-time employment in the year 2000. also accept his assumption that she would not retire until she is 65 years of age. Mr. Tarrel suggests that her retirement date should be 60. While accept the fact that some people do retire before the normal retirement age of 65, see nothing in this case to make me find that the plaintiff would retire before the normal retirement age. person's decision to retire is affected by many factors and is constantly changing depending on person's personal situation. believe it is reasonable to accept normal retirement age unless there is some evidence which would indicate that particular plaintiff would not work until that age. Plaintiff's counsel has suggested that approach the question of residual future earning capacity by applying percentage reduction to earning capacity. accept that approach in this case and find that her residual future earning capacity should be set at 25% and that her future income will be reduced by 75%. Mr. Burnell in Exhibit 15, Schedule 2, valued the present value of the plaintiff’s future loss of income at $722,352.82 from which would deduct 25% whereby establishing her loss at $541,764.66. would subtract from that amount the remaining portion of the Section benefits received by the plaintiff and which were not ascribed to her past loss. The Tarrel report valued these Section benefits at $25,467.00 thereby leaving present value of future earnings at ($541,764.66 $25,467.00) $516,297.66. The plaintiff claims for future loss of pension. Her actuary values this at $104,376.00 from which is subtracted her past contribution savings of $5,455.00 and future contribution savings of $40,294.00 leaving total of $58,627.00. accept this approach as being the appropriate way to deal with her future loss of pension benefits and therefore set the loss at $58,627.00 for future loss of pension. The plaintiff through the actuarial report claims net investment and administration fee of $65,855.00. Considering the amounts of money involved in this case, would find that there should be some investment administration fee, but not at that rate. would set the investment administration fee at $10,000.00. I would therefore summarize my award as follows:1. General Damages - Pain and Suffering $75,000.002. Past loss of income - $64,623.003. Future loss of income $516,297.664. Future loss of pension $ 58,627.005. Net investment administration $ 10,000.00Total loss $724,547.66 award costs to the plaintiff and disbursements to be taxed. In light of my finding of liability against the defendants to the plaintiff, also find that the second action commenced by Carol M. Newbury and William Edward Newbury succeeds against the defendants Dr. Desrosiers and Jean Palmer, but not against Wanda MacPhail, Craig MacPhail, Susan Arsenault, or Janet Chernin. It was agreed by counsel that would determine only the liability issue in regard to the second action. J. 1994 No. 94-105822 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Wanda MacPhail -and­ Dr. Jacques Desrosiers, Janet .Chernin, Jean Palmer AND: 1995 S.H. No. 115185 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Carol M. Newbury and William Edward Newbury -and-­ Wanda MacPhail, Craig MacPhail, Susan Arsenault, Oscar Arsenault, Dr. Jacques Desrosiers, Janet Chernin, Jean Palmer and Louise Brodeur Defendants C.A. No. 144661 NOVA SCOTIA COURT OF APPEAL BETWEEN: DR. JACQUES Desrosiers and JEAN PALMER and WANDA MacPHAIL, CAROL M. NEWBURY, WILLIAM EDWARD NEWBURY, CRAIG MacPHAIL, SUSAN ARSENAULT and OSCAR ARSENAULT Respondents REASONS FOR JUDGMENTS BY: HALLETT, J.A.

The plaintiff had an abortion at a Halifax clinic. The plaintiff was in the recovery room for 30 to 45 minutes after the procedure, and then left. On the drive home, she was injured in a motor vehicle accident when she fainted and her car crossed the centre line of the highway and struck another vehicle. She sued three members of the clinic staff, including the doctor who performed the abortion, alleging negligence in letting her drive after the abortion. Awarding the plaintiff $724,000 for past and future loss of income, future loss of pension, and general damages, that based on the evidence of the possible complications from surgery such as an abortion, and considering the emotional impact of an abortion on all women, the defendants breached their standard of care as health care professionals in permitting the plaintiff to drive after the abortion.

5_1997canlii866.txt

nan Date:19990705 Docket: CA 153204 NOVA SCOTIA COURT OF APPEAL Freeman, Hart, Bateman, JJ.A. BETWEEN: KATHRYN BUREAU Bernadette Maxwell Michael J. O'Hara for the appellant and KPMG QUALITY REGISTRAR and BARRY TRAVERS Karin McCaskill for the respondent Respondent Appeal Heard: June 16, 1999 nan Judgment Delivered: July 5, 1999 nan THE COURT: Appeal and cross-appeal dismissed as per reasons for judgment of Bateman,J.A., Hart and Freeman, JJ.A., concurring BATEMAN,J.A.: [1] Kathryn Bureau appeals from an Order of Justice K. Peter Richard of the Supreme Court fixing damages in an action for wrongful dismissal. The trial decision is reported at (1998), 1998 CanLII 3563 (NS SC), 171 N.S.R. (2d) 360. BACKGROUND: [2] Ms. Bureau is 40-year-old quality assurance consultant specializing in the ISO quality registration system. Before joining KPMG Quality Registrar Inc. in January of 1996 she was self-employed operating her one-person consulting business under the corporate name, K. Dresser Enterprises Ltd. In the first full year of operation, 1995, her net income from that business was approximately $113,000 on gross billings of $195,000. [3] KPMG decided to establish quality assurance practice in Halifax. In the fall of 1995 that company recruited Ms. Bureau to join the firm as an associate. Her principal contact in that regard was Barry Travers who is partner with KPMG and was at that time charged with the responsibility of starting the quality assurance practice. [4] In series of meetings Ms. Bureau and Mr. Travers discussed her possible employment with KPMG. Their discussions culminated in written offer of employment dated November 14, 1995. She commenced working with the company on January 2, 1996. KPMG terminated her contract of employment March 3, 1997 with one month’s pay in lieu of notice. The relevant circumstances are recited in considerable detail in the trial judge’s decision. [5] Ms. Bureau sued for damages naming KPMG and Barry Travers defendants. Her claim alleged both wrongful dismissal and negligent misrepresentation. [6] The trial judge found no negligent misrepresentation but awarded damages equivalent to five months notice for wrongful dismissal. Ms. Bureau appeals the dismissal of her claim for negligent misrepresentation and also the notice period for the wrongful dismissal. The respondent cross-appeals, claiming that the five-month notice period should be reduced due to Ms. Bureau’s failure to mitigate. [7] The appellant identifies the following issues: (i) Did the trial judge err in failing to properly apply the principles of negligent misrepresentation as set out by the Supreme Court of Canada in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993]1 S.C.R. 87? (ii) Did the trial judge err in failing to award more than five months pay in lieu of notice under all the circumstances of the case? (iii) If the answer to either or both of these questions is yes, how are damages to be calculated? [8] On the cross-appeal the respondent asks: (i) Did the trial judge err in law by not reducing the notice period for five months to account for the appellant’s failure to mitigate her loss? STANDARD OF REVIEW: [9] In Toneguzzo- Norvell (Guardian as litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] S.C.R. 114, McLachlin said at 121: It is by now well established that Court of Appeal must not interfere with trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, Court of Appeal will only intervene if the judge has made manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] S.C.R. 141, at pp. 188‑89 (per L'Heureux‑Dubé J.), and all cases cited therein, as well as Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] S.C.R. 353, at pp. 388‑89 (per Wilson J.), and Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at pp. 806‑8 (per Ritchie J.). Court of Appeal is clearly not entitled to interfere merely because it takes different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. (Emphasis added) ANALYSIS: (a) Appeal: (i) Did the trial judge err in failing to properly apply the principles of negligent misrepresentation as set out by the Supreme Court of Canada in Queen v. Cognos, 1993 CanLII 146 (SCC), [1993]1 S.C.R. 87? [10] It is the appellant’s submission that in the pre-contractual meetings KPMG, through Barry Travers, materially misrepresented the terms of employment. The appellant says that Travers failed to advise her that KPMG was hiring her for one-year trial period only. Additionally, she says that she was misled by Travers in that he represented that KPMG was making three year commitment to the quality assurance practice when in fact their commitment to that practice was for one year only. [11] At p.364 of his decision the trial judge describes the finalization of Ms. Bureau’s terms of employment with KPMG: Travers and Bureau met again on 24 November at the KPMG office in Halifax at which time Travers presented written "Offer of Employment". The salary was shown as $75,000 which was quickly negotiated up to $85,000 which was the upper limit agreed to by Joe McMullen. Travers said that they decided on the higher salary level because they felt that Bureau had the expertise and ability to "kick start" the ISO program in the Halifax office. The offer contained provision for bonus based on performance, social membership fees, parking, secretarial support, computer equipment, private office and full range of support services. Bureau said that she felt the "practice was mine to develop". The offer also provided for Bureau being able to service some of her present clients until the retainer had been completed and to retain all revenues from that as well as from her teaching assignments at TUNS and other institutions. It was agreed that her outside work would not consume more than one week per month until completed. [12] Although Ms Bureau did not sign the written offer, the trial judge found that it was the contract of employment, both parties having viewed it as such and having conducted themselves in manner consistent with its terms. This finding is not in dispute on the appeal. [13] There was extensive evidence about the working relationship between Ms. Bureau and KPMG. Ms. Bureau’s testified that she did not receive the expected support from the company necessary to get the quality assurance practice going. She felt this particularly in relation to promotional and secretarial assistance. In her view, KPMG was not forthcoming in their expectations of the practice, and left her too much on her own. KPMG, on the other hand, felt that she did not display the requisite leadership and focus and that she alienated staff. While Barry Travers provided positive performance review in August of 1996, after another partner, Brian Rogers, took over responsibility for the practice in the fall of that year, it became clear that her performance was an issue. Nevertheless, testified Ms. Bureau, her dismissal came as shock. [14] Relevant to the issue of what tenure of employment, if any, was promised or implied by KPMG are clauses 13 and 14 of the contract which provide: 13. KPMG has the right to terminate your employment one year after your commencement date, by paying one month’s salary. 14. You have the right to terminate your employment upon giving one month's notice. [15] Ms. Bureau and Mr. Travers, discussed these provisions. Their evidence is in substantial conflict on this important area. Ms. Bureau testified that upon reviewing this aspect of the letter offering employment Mr. Travers assured her that clauses 13 and 14 were there for her protection, to enable her to leave if she was unhappy at KPMG. She acknowledged on cross-examination, however, that Mr. Travers had explained to her that clause 13 was inserted to demonstrate KPMG’s commitment to getting the practice started. She acknowledged, as well, that he did not tell her that KPMG would never invoke the clause. Ms. Bureau knew that her continuation with KPMG would be contingent upon good performance. [16] It was Mr. Travers’ evidence that he explained at their meeting that KPMG was enthusiastic about the ISO practice but that clauses 13 and 14 were included for mutual benefit as neither knew how the business would develop. He explained that KPMG was prepared to guarantee that “regardless of how it goes we would stick with it through the year”. [17] Ms. Bureau testified, as well, that she understood that she might have an opportunity for partnership in KPMG within two or three years. From this she assumed that she had some assurance of long term relationship with the company. Mr. Travers, however, recalled that when she inquired about partnership he had advised her that it was possibility but cautioned that it had taken him 11 years to become partner. He also explained that several senior managers at KPMG did not have partnership status. [18] It is the appellant’s submission that Mr. Travers should have advised her in the pre-contractual negotiations “that KPMG had decided to hire her for one-year trial period only, and that if she did not fit into the corporate culture within that time she would be dismissed without cause on one month’s notice”. The failure to do so was, she says, material lack of disclosure amounting to negligent misrepresentation. The respondent says that the evidence does not support the appellant’s submission that Ms. Bureau was hired on one year trial period. would agree. Brian Rogers, who assumed responsibility for the ISO practice in November of 1996, testified in response to questioning by the appellant’s counsel that he assumed from reading of the offer of employment that Ms. Bureau was hired on one year trial period. That is the extent of the evidence on this point. Clearly the trial judge did not accept that such was the nature of the hiring arrangement. [19] The appellant relies upon Queen v. Cognos, supra. In her submission, the facts of this case are “remarkably similar” to those in Cognos. do not agree. Cognos, an Ottawa‑based computer software company, advertised for an accountant to help with the development of new accounting software product. Mr. Queen, chartered accountant who lived in Calgary applied for the job. During the interview the manager told the appellant that the project in question was major one which would be developed over period of two years with enhancements and maintenance thereafter, and that the position for which he was interviewed would be needed throughout this period. They did not tell Mr. Queen that funding for the project was not guaranteed nor that the position for which he was interviewed was subject to budgetary approval. He accepted the job of manager, financial standards. He signed written employment contract which permitted Cognos to terminate his employment at any time "without cause" upon one month's notice, or payment of one month's salary in lieu of notice, and to reassign him to another position within the company without reduction in salary, upon one month's notice. He commenced employment in April 1983. In September Cognos advised him that there would be reassignment of personnel involved with the project owing to diminished research and development funding. The first notice of termination of employment he received was rescinded, but in July 1984 he received second notice effective October 25, 1984. He worked until that day and was paid until November 15. The trial judge upheld the appellant's action against Cognos and awarded him damages for negligent misrepresentation. The Court of Appeal reversed the judgment and dismissed the action on the basis that the misrepresentation was not “negligent” and, in any event, the term in the contract providing for dismissal on notice was an effective disclaimer precluding any separate action in tort. On further appeal the Supreme Court of Canada confirmed the trial judge’s finding that there were misrepresentations by the employer and that they were negligently made. In reinstating the trial judgment, the Court held that the misrepresentation related to the very existence of the job offered, not as to its length and, therefore, the contractual provision for notice did not bar an action in tort. Iacobucci, J., said at p.114: Had the appellant's action been based on pre‑contractual representations concerning the length of his involvement on the Multiview project or his "job security", as characterized by the Court of Appeal, the concurrency question might be resolved differently in light of the termination and reassignment provisions of the contract. However, it is clear that the appellant's claim was not that Mr. Johnston negligently misrepresented the amount of time he would be working on Multiview or the conditions under which his employment could be terminated. In other words, he did not argue that the respondent, through its representative, breached common law duty of care by negligently misrepresenting his security of employment with Cognos. Rather, the appellant argued that Mr. Johnston negligently misrepresented the nature and existence of the employment opportunity being offered. It is the existence, or reality, of the job being interviewed for, not the extent of the appellant's involvement therein, which is at the heart of this tort action. close reading of the employment agreement reveals that it contains no express provisions dealing with the respondent's obligations with respect to the nature and existence of the Multiview project. Accordingly, the ratio decidendi of my reasons in BG Checo is inapplicable to the present appeal. While both cases involve pre-contractual negligent misrepresentations, only BG Checo involved an impermissible concurrent liability in tort and contract (Emphasis added) [20] In BG Checo International Ltd. v. British Columbia, 1993 CanLII 145 (SCC), [1993] S.C.R. 12, (S.C.C), companion case to Cognos, Iacobucci, J., dissenting in part, had differed with Justices McLachlin and LaForest for the majority on whether pre-contractual representation which becomes contractual term can found liability in negligent misrepresentation. Iacobucci, J., joined by the late Sopinka, J., was of the view that, generally speaking, duty of care in tort could not be concurrent with duty defined by an express term of the contract. It was the majority position that the mere fact that the parties had dealt with matter in the contract did not inevitably mean that they intended to exclude the right to sue in tort. It depends upon the circumstances of the case and the wording of the contractual terms. Where the tort duty is not contradicted by the contract, it may be sued upon. [21] All judges agreed in Cognos, however, that the question of concurrency did not arise. In other words, that none of the contractual terms addressed the subject matter of the misrepresentation. In addition they accepted the trial judge’s factual finding that the defendant company had negligently misrepresented the nature and existence of the employment opportunity. [22] Iacobucci said at p.129: the representations most relevant to the appellant's action are not those relating to his future involvement and responsibilities with Cognos, but those relating to the very existence of the job for which he had applied. That is matter of existing fact. It was implicitly represented that the job applied for did in fact, at the time of the interview, exist in the manner described by Mr. Johnston. As found by the trial judge, however, such was not the case. The employment opportunity described to the appellant was not, at the time of the interview, fait accompli for the respondent. [23] McLachlin, J., in concurring judgment, agreed with this characterization of the misrepresentation. At p.142: .Rather, by implying that the Multiview project was reality, that it had the financial support of Cognos, and that it had passed through the feasibility and costing stage, Johnston on behalf of Cognos caused the plaintiff to be misled as to the level of the risk to the plaintiff that Cognos might at some point choose to exercise its termination power under the employment contract. The plaintiff, believing Johnston, concluded that the risk of being transferred or terminated was low. [24] Here, at p.368, Justice Richard made crucial findings of fact: Bureau, in her Statement of Claim says she was induced to enter the employ of KPMG QR by the negligent misrepresentations of both defendants. These misrepresentations include but are not limited to firm commitment for funding to promote and develop the ISO practice in Halifax, sufficient funding for administrative support, the likelihood of partnership in KPMG and security of employment. She felt that the possibility of her dismissal within 15 months was essentially non‑existent. To be actionable, negligent misrepresentation must be more than misunderstanding. The fact that the reality of employment with KPMG did not meet with the sanguine expectations of Bureau does not, of itself, constitute negligence. The following factors militate against finding of negligent misrepresentation. 1. Funding for the project was alluded to in the Offer of Employment and was further defined in the "Client service and marketing costs" section of Profit Plan which was discussed at the 24 November 1995 meeting. The salary projection would suggest that Bureau would be provided with secretarial and other assistance but not dedicated full time staff. The fact that Bureau expected better office accommodations and full time secretary is not the result of any misrepresentations on the part of the defendants. 2. am satisfied that Travers told Bureau that partnership was "distinct possibility". It is reasonable to assume that such possibility would be contingent upon performance and the attainment of revenue objectives. Bureau was mistaken if she honestly believed that partnership would come, as matter of course, after two or three years employment. There is nothing in the evidence to support such belief. 3. Paragraph 13 of the Offer of Employment clearly set out that KPMG could terminate employment after year. Travers explained that this clause gave her the assurance of at least one year employment. Bureau acknowledged that she was aware of this clause. (Emphasis added) [25] Unlike the circumstances in Checo, supra, concurrency was not an issue before Justice Richard. It was the respondent’s position, not that clause 13 precluded the action in tort, but that there had been no misrepresentation. After reciting relevant passage from Cognos, supra Justice Richard said: On the whole of the evidence before me cannot conclude that Travers was negligent in any of the representations made to Bureau during pre‑contractual negotiations. In response to questions he said that there was "distinct possibility" of partnership Ms. Bureau put her own "spin" on this and assumed that such would materialize in two or three years. The offer of employment promised "secretarial support" which Bureau interpreted to mean full time secretary. These and other statements made to Bureau or included in the offer of employment were neither inaccurate or untrue. If they were misleading it was only because of the interpretation which Bureau placed upon them. (Emphasis added) [26] The trial judge thus found that the pre-contractual representations made by Mr. Travers (and KPMG) were truthful, accurate and not misleading. The decision of the judge in this regard reveals no palpable and overriding error, indeed, the evidence supports his findings. Justice Richard did not accept the appellant’s submissions that the respondents misrepresented the nature of the employment opportunity. This is fundamental and material distinction from Cognos, where the trial judge found that there had been such misrepresentation. It is unnecessary in these factual circumstances to consider, had misrepresentation been negligently made, whether clause 13 would bar recovery in tort. [27] The appellant says that the trial judge erred in failing to specifically address the arguments that Ms. Bureau should have been told that she was hired for only one year trial period; that KPMG should have told her that they had made just one year commitment to the quality assurance practice; and that Travers led her to believe that she would have three years to develop the practice. That these representations or omissions on the part of KPMG occurred is simply not supported on review of the transcript, it is therefore unsurprising that the trial judge did not address each in detail. The judge’s comments, above quoted, are adequate in the circumstances. His failure to more specifically refer to these points does not, in my view, speak of misapprehension of the evidence or arguments. [28] In my view this ground of appeal cannot succeed. (ii) Did the trial judge err in failing to award more than five months pay in lieu of notice under all the circumstances of the case? [29] Justice Richard held that KPMG, having extended Ms. Bureau’s contract for three months beyond the one year period waived its right to terminate the contract on one month’s notice as provided in clause 13. That finding is not on appeal. He fixed notice period of five months. [30] The appellant says that Ms. Bureau is entitled to augmented damages because she was induced to leave her company and join KPMG and that she is also so entitled because the dismissal was in bad faith and the manner of the dismissal itself callous, citing Wallace v. United Grain Growers Ltd. (1997), 1997 CanLII 332 (SCC), 152, D.L.R. (4th) (S.C.C.) and Robertson v. Weavexx Corp. (1997), 1997 CanLII 4097 (BC CA), 25 C.C.E.L. (2d) 264 (B.C.C.A.). In Wallace, supra, Jack Wallace, salesperson, was hired away from competitor company by Public Press (a wholly owned subsidiary of UGG). Forty five years old, and having worked for his former employer for 25 years, Wallace sought and received assurances that if he performed as expected he could work for the company until retirement. He commenced employment with Public Press in 1972 and was top salesperson at the company each year thereafter. He was summarily dismissed in 1986 at 59 years of age. At trial he was awarded 24 months salary in lieu of notice and $15,000 in aggravated damages for mental distress. On appeal the notice period was reduced to 15 months and the aggravated damages eliminated. Wallace appealed to the Supreme Court of Canada. Iacobucci, J., writing for the majority, confirmed the long standing legal right of employers and employees to terminate an employment contract at any time provided there was no express provision to the contrary. If an employer dismisses an employee without good cause, he must give the employee reasonable notice or compensation in lieu thereof. In this regard he said at p.28: requirement of "good faith" reasons for dismissal would, in effect, contravene these principles and deprive employers of the ability to determine the composition of their workforce. In the context of the accepted theories on the employment relationship, such law would, in my opinion, be overly intrusive and inconsistent with established principles of employment law, and more appropriately, should be left to legislative enactment rather than judicial pronouncement. [31] Iacobucci, J. approved the principles articulated by McRuer, C.J.H.C. in Bardal v. Globe Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) as those relevant to determining reasonable notice. McRuer, C.J.H.C. said in Bardal at p.145: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [32] Commenting that Bardal does not purport to list all of the relevant factors, Iacobucci, J. noted that appropriate considerations will depend upon the circumstances of the case. “One such factor that has been considered is whether the dismissed employee had been induced to leave previous secure employment (at p.30). As to an assurance of job security falling short of contractual term he continued (at p.30 Wallace): In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of notice. there is need to safeguard the employee's reliance and expectation interests in inducement situations. note, however, that not all inducements will carry equal weight when determining the appropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any, on the notice period is matter best left to the discretion of the trial judge. (Emphasis added) [33] The trial judge in Wallace found that “UGG went to great lengths to relieve Wallace’s fears about jeopardizing his existing secure employment and to entice him into joining their company”. Iacobucci, J. was satisfied that the promise of job security and the assurance that he could work for the company until retirement, as well as the assurances of fair treatment, were inducements “which supported the trial judge’s decision to award damages at the high end of the scale” (at p.31). Summarizing, he said at p.33: The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. In Machtinger, supra, it was noted that the manner in which employment can be terminated is equally important to an individual's identity as the work itself (at p.1002). By way of expanding upon this statement, note that the loss of one's job is always traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating. In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period. And at p. 34: The obligation of good faith and fair dealing is incapable of precise definition. However, at minimum, believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive. [34] He went on to cite examples of “bad faith” discharges: an employer who made wrongful accusation of theft which the employer communicated to other potential employers; an employee who was told that his position would be terminated but another found for him within the company which would require transfer when, in fact, the company was contemplating his dismissal they did not tell him of the decision to dismiss him for over month although the employers knew that he was in the process of selling his house in anticipation of the transfer; an employer decided to fire an employee when he was on disability leave suffering from major depression. These examples illustrate the dramatic departure from good faith standard which would underpin an award of augmented damages. [35] Iacobucci continued at p. 35: It has long been accepted that dismissed employee is not entitled to compensation for injuries flowing from the fact of the dismissal itself: see e.g. Addis, supra. Thus, although the loss of job is very often the cause of injured feelings and emotional upset, the law does not recognize these as compensable losses. However, where an employee can establish that an employer engaged in bad faith conduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment and damage to one's sense of self‑worth and self‑esteem might all be worthy of compensation depending upon the circumstances of the case. In these situations, compensation does not flow from the fact of dismissal itself, but rather from the manner in which the dismissal was effected by the employer. [36] The appellant submits that the contract contained the following implied terms: 1. Her employment status was that of permanent employee on the partnership track; 2. KPMG QR would not dismiss her without just cause; 3. KPMG QR would not dismiss her in bad faith. [37] In the appellant’s view, the fact of her dismissal without cause constituted breach of such terms and thereby entitles her to enhanced damages. It is apparent from Justice Richard’s analysis of the evidence, reproduced above, that he did not find such terms to be implied. As McLauchlin, J. said in Toneguzzo, supra, “the drawing of evidentiary conclusions from the facts is the province of the trial judge.” In fixing the period of notice he said at p.371: There is no question that KPMG "courted" Bureau as the person to head up the fledgling ISO program at the Halifax office. The invitation to attend the Toronto meeting in November 1995, the several meetings with Travers and the "upbeat" nature of these meetings all combined to give Bureau the feeling that she was really wanted. In addition, Bureau must have been impressed by the fact that KPMG raised the starting salary from $65,000 to 85,000. She saw KPMG as an international professional organization in which partnership was "distinct" possibility. She envisaged less stressful work environment in which she could spend more time with her family and maintain her ISO training contracts. On the other hand, KPMG felt that they were gaining very successful and experienced professional who could "jump start" the ISO program. They knew that Bureau had clients in the training aspects of ISO and these could become clients of KPMG QR. There was no one in the Halifax office with the knowledge and expertise to get the ISO program up and running. For both parties, the reality did not measure up to expectations. Bureau was disappointed with her conditions of employment. KPMG did not get the "kick start" for the ISO program that they anticipated. It is unfortunate that Bureau's marital problems distracted her during this formative stage of her employment. Bureau's dissatisfaction manifested itself in the fall of 1996 when she aggressively attempted to renew her relationship with KPMG's principal competitor QMI. Although Travers gave Bureau "passing grades" on the 31 August Performance Assessment, KPMG through Brian Rogers later expressed dissatisfaction with Bureau's performance. He told her that the Managing Partner wanted her fired but Rogers opted to extend her contract for further three months. [38] He made no finding that the respondents engaged in bad faith conduct nor unfair dealings, nor that the manner of dismissal warranted compensation. The evidence does not support the appellant’s allegation of bad faith dismissal. In these circumstances the fact that KPMG had recruited Ms. Bureau to join the firm does not, absent other blameworthy conduct by the respondents, entitle her to an enhanced notice period. Justice Richard was satisfied that Ms. Bureau’s optimistic expectations of her future were not attributable to pre-contractual assurances of tenure from Barry Travers. The facts of this case are not comparable to those in Wallace. [39] Nor is the appellant assisted by comparison with the judgment in Weavexx. There, Mr. Taylor, the head of Weavexx business unit, recruited Peter Robertson, salesperson employed by small competitor of Weavexx. Mr. Robertson was known to change employers as better opportunities arose. Weavexx, in making an offer to Robertson, sought and received commitment that this job would be his last in the industry. In other words, that he would stay with Weavexx for the balance of his working life. There was no written contract of employment. Robertson commenced work with Weavexx on February 22, 1993 but due to corporate reorganization was discharged on August 11, 1993. In fixing the notice period at 12 months, Goldie, J.A. said at p.270: The principal distinguishing feature of the present case is the active recruitment of the respondent. In this respect the offer of permanent employment with the significant prospect of higher earnings and the promise of Mr. Taylor to do his best to obtain recognition of past service for pension purposes were material inducements. Even so the commitment elicited from Mr. Robertson as it conveyed the sense that Weavexx was intended to be "peak of career" opportunity. Inducements are of variable significance. nan And at p.272: Also part of the inducement to the respondent in making the move he did was, no doubt, the discussions as to long term employment resulting from the appellant insisting on an undertaking that the respondent would not move to another competitor. As have concluded, those discussions lacked contractual force in terms of the respondent's assertion of fixed term contract but nevertheless, they were and are, in my opinion, significant on the issue of reasonable notice. [40] As these cases reveal, it is not every inducement that results in augmented damages on dismissal. As stated above, while accepting that KPMG “courted” Ms. Bureau, Justice Richard was not satisfied that Mr. Travers gave Ms. Bureau assurances of tenure. He found her expectations of the employment opportunity to have been overly optimistic: statements made to Bureau or included in the offer of employment were neither inaccurate or untrue. If they were misleading it was only because of the interpretation which Bureau placed on them. [41] The appellant says, as well, that the manner of the dismissal was deserving of extra compensation in terms of longer notice period. At meeting in Brian Rogers’ office Ms. Bureau was told that her contract would not be renewed. She was understandably upset. At trial she said of her reaction “I was being difficult and belligerent. said “I am not leaving until have reason, valid reason, as to why you’re doing this.” Brian Rogers suggested that she should leave the building and collect her personal belongings at later date. He walked her to her office to retrieve her coat, asked if she wanted to make telephone call, which she did, and escorted her from the building. Ms. Bureau testified that she felt like criminal. The experience was humiliating. Justice Richard was aware of this evidence. He said: “The final termination notice and dismissal came very swiftly and in somewhat peremptory fashion.” He obviously did not accept that the manner of dismissal in these circumstances entitled her to longer notice period. would agree. As Iacobucci, J. recognized in Wallace, supra, “the loss of one’s job is always traumatic event”. It is not humiliation, embarrassment and damage to one's sense of self‑worth and self‑esteem alone which entitle the employee to augmented damages. There must be an accompanying act of bad faith or unfair dealings on the part of the employer. [42] This ground of appeal must fail. (b) Cross-Appeal: (i) Did the trial judge err in law by not reducing the notice period for five months to account for the appellant’s failure to mitigate her loss? [43] QMI (Quality Management Institute) had been significant client of Ms. Bureau’s company, K. Dresser Enterprises Ltd. Dresser was under contract with QMI to work approximately three or four days per week for fixed fee of $1000 weekly. That contractual relationship ended when Ms. Bureau accepted employment with KPMG. In October of 1996, while still employed with KPMG, Ms. Bureau explored with QMI the possibility of resuming contractual relationship should she leave KPMG. They were unable to agree on an amount of weekly remuneration. QMI was prepared to pay at the same rate as it had previously, while Ms. Bureau wanted substantially more. [44] When she left KPMG Ms. Bureau did not attempt to arrange another contract with QMI. At trial, Arnold Vaz, principal with that company testified that, had she done so, it was likely that she would have been able to arrange work at about $60,000 annually for three to four-day week. [45] In his provisional comments on damages for negligent misrepresentation Justice Richard said (at p.370): nan It seems to me that more reasonable measure of damages would be the amount necessary to restore the plaintiff to an income equivalent to that which she would have enjoyed had her employment not been terminated. It is clear from the evidence of Vaz that the QMI contract would probably have been renewed at about $60,000 per year. Bureau said she was embarrassed to approach QMI. She did contact most, if not all of her other previous clients. Failure to follow up on QMI could be construed as failure to mitigate her losses. These two factors alone would bear very heavily on any calculation of Bureau's damages. (Emphasis added) [46] The respondent argues that in fixing damages for the unjust dismissal Justice Richard should have made allowance for this failure to mitigate. On the damages for wrongful dismissal he said (at p.372): The final termination notice and dismissal came very swiftly and in somewhat peremptory fashion. Although the notice provided for two months' salary, only one month was actually paid. Considering all the factors enumerated in Bardal v. Globe Mail Ltd. quoted in Wallace, supra and also that Bureau's only recourse was to rebuild her consulting practice fix the period of notice at five months. One month was paid on termination leaving balance of four months outstanding. (Emphasis added) [47] Justice Richard’s earlier remarks on damages reveal that he was alive to the question of mitigation. do not, however, take him to be making definitive finding of failure to mitigate by Ms. Bureau. Nor, in my view would the evidence support such an inference. The obligation was upon Ms. Bureau to take all reasonable steps to mitigate. She gave sound reasons, in the circumstances, for her reticence to contact QMI. Keeping in mind that the onus is upon the employer on issues of mitigation, would not disturb the notice period. DISPOSITION: [48] I would dismiss the appeal and cross-appeal with costs on the appeal to therespondent fixed at 40% of those at trial plus disbursements. There shall be no costs on the cross-appeal. Bateman, J.A. Concurred in: Hart, J.A. Freeman, J.A.

The respondent was recruited by the respondents. Her job was to start quality assurance practice. She accepted an offer of employment, giving up her own company to do so. After 15 months she was dismissed. The trial judge in her action for wrongful dismissal and negligent misrepresentation did not find any negligent misrepresentation but awarded damages equivalent to five months notice for wrongful dismissal. The appellant appealed the dismissal of her claim for negligent misrepresentation and the notice period for her wrongful dismissal. The respondent cross-appealed the damage award, claiming the trial judge failed to take into account the appellant's failure to mitigate. Appeal and cross-appeal, that the evidence supports the trial judge's findings, and he did not make any errors in law.

e_1999canlii1479.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 269 Date: 2016 08 19 Docket: NJ 33 of 2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and VITERRA INC. Counsel: Douglas G. Curliss, Q.C. and Rochelle C. Wempe for the Crown Peter T. Bergbusch and Kevin T. Miller for Viterra Inc. DECISION CURRIE J. August 19, 2016 [1] On September 8, 2011 Paul Cruse was employed at grain terminal near Rosetown, Saskatchewan that was owned and operated by the accused, Viterra Inc. On that day Mr. Cruse entered grain receiving pit in the terminal, where he was engulfed in grain and consequently died of suffocation. [2] Viterra is charged under the Canada Labour Code, RSC 1985, L-2 in connection with this incident. The indictment sets out the following six counts: 1. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety directly resulting in Paul Cruse’s death contrary to s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 2. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that the health and safety at work of every person employed by it, namely Paul Cruse, was protected, by failing to instruct Paul Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety, contrary [sic] s. 124 of the Canada Labour Code and thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 3. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, which failure directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 4. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to provide proper training and supervision necessary to ensure that the health and safety of an employee, namely Paul Cruse, was protected, by failing to ensure that Paul Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside the receiving pit of grain elevator as required by paragraph 125(1)(q) of the Canada Labour Code and prescribed by subsection 19.6(2) of the Canada Occupational Health and Safety Regulations, thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. 5. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code which directly resulted in the death of employee Paul Cruse, thereby committing an offence contrary to subsection 148(2) of the Canada Labour Code. 6. THAT you, the said VITERRA INC. on or about the 8th day of September, A.D. 2011, at workplace at or near Rosetown, Saskatchewan, did fail to ensure that employee Paul Cruse was made aware of every known or foreseeable health or safety hazard, namely the hazard of being engulfed by free flowing granular material in particular the contents of receiving pit at grain elevator, as required by paragraph 125(1)(s) of the Canada Labour Code thereby committing an offence contrary to subsection 148(1) of the Canada Labour Code. A. Provisions of the Code and Regulations [3] As set out in the above counts, Viterra is charged with respect to ss. 124, 125(1)(q) and (s), 148(1) and (2) of the Code: 124 Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. 125(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in work place that is not controlled by the employer, to the extent that the employer controls the activity, ... (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work; ... (s) ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works; 148(1) Subject to this section, every person who contravenes provision of this Part is guilty of an offence ... (2) Every person who contravenes provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence ... [4] The counts against Viterra also refer to s. 19.6(2) of the Canada Occupational Health and Safety Regulations, SOR/86-304: 19.6(2) The employer shall provide education to an employee (a) whenever new hazard information in respect of hazard in the work place becomes available to the employer; and (b) shortly before the employee is assigned new activity or exposed to new hazard. [5] Of relevance in this matter is the defence of due diligence, referred to in s. 148(4) of the Code: 148(4) On prosecution of person for contravention of any provision of this Part, except paragraphs 125(1)(c), (z.10) and (z.11), it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention. B. Onus of proof [6] The Crown bears the onus of proving, beyond reasonable doubt, the actus reus of each count. If it does so the offence is proven unless Viterra proves, on balance of probabilities, that it exercised due care and diligence to avoid the contravention (due diligence): Saskatchewan Wheat Pool, 2000 SKCA 73 (CanLII) at para 6, 199 Sask 97 [Saskatchewan Wheat Pool CA]. [7] Relying on decision of this court in Saskatchewan Wheat Pool (1999), 1999 CanLII 12942 (SK QB), 185 Sask 114 (QB) [Saskatchewan Wheat Pool QB] at paras 13 and 27, the Crown says that proof of injury or death is prima facie proof of violation of occupational health and safety legislation. That is, says the Crown, once the Crown proves beyond reasonable doubt that worker was injured or killed, the actus reus is proven, and so the offence is proven unless the accused demonstrates that it exercised due diligence. [8] In Saskatchewan Wheat Pool QB, the charges arose out of an incident in which, in the course of repair to large fan, an employee was injured by the moving fan blade. Justice Krueger addressed two counts under the Code. Count alleged that the accused appellant failed to ensure that the safety and health of every employee was protected in that the appellant failed to ensure that the repair work on the fan was performed in proper manner. Count alleged that the appellant failed to provide to employees the training and supervision necessary to ensure their safety and health. [9] Dealing with count 1, Justice Krueger said at para. 13: 13 agree with the trial judge that actus reus in count #1 has been proven beyond reasonable doubt, although not for the reasons stated by the trial judge. The fact that Greer suffered serious injury at work is evidence that the appellant did not ensure his safety and health as required. ... (emphasis added) [10] As to the charge of failing to ensure the health and safety of worker, then, Justice Krueger ruled that proving an injury to the worker proves that the employer did not ensure his health and safety proves the actus reus. [11] Shortly after Justice Krueger released that decision, though, the Court of Appeal addressed proof of the actus reus in Saskatchewan Wheat Pool CA, dealing with different incident than that dealt with in Justice Krueger’s decision. At para. Justice Sherstobitoff described with approval the trial judge’s analysis on that point: The trial judge held that s. 124 creates strict liability offence, one that is proved upon establishing the actus reus beyond reasonable doubt, leaving defence of due diligence to be proved by the defendant on balance of probabilities. The trial judge rejected the idea that mere proof of an accident was sufficient to prove the actus reus before shifting the burden of proof of due diligence to the defendant. Rather, the trial judge said that the Crown must first prove beyond reasonable doubt an apparent or prima facie breach of the duty of care [under s. 124] to ensure the safety and health at work of the employee. Obviously this apparent or prima facie breach would be from an objective standpoint, the standpoint of the reasonable and well-informed onlooker. The statute imposes on the employer duty to take all reasonable steps to ensure employee health and safety. And the law is in my opinion that the Crown must prove beyond reasonable doubt in this case that prima facie breach of that duty of care has occurred. Once it does that, and only if it does that, will the onus shift to the accused to show on balance of probabilities that he showed due diligence or took reasonable care. [12] Given the Court of Appeal’s approval of these remarks, I do not accept the Crown’s position that proof of a worker injury or death necessarily proves the actus reus of failing to ensure the health and safety of an employee. [13] In any event, Viterra is not charged with only the general allegation that it failed to ensure the health and safety of Mr. Cruse. Rather, counts and allege the manner in which Viterra failed to ensure his health and safety. Viterra is charged that it failed to ensure his health and safety “by failing to instruct Mr. Cruse on how to unplug blockage inside receiving pit of grain elevator in manner that provided for his health and safety”. Mr. Cruse’s death does not necessarily establish that Viterra failed to adequately instruct him on how to unplug blockage inside receiving pit. Similarly, each of the counts 3, 4, and sets out particulars of how Viterra is alleged to have failed in its obligations. [14] The actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [15] As have noted, if the actus reus on any of these counts is proved, there remains the prospect of the defence of due diligence applying to them. C. Witnesses [16] Before set out the circumstances of the incident must address the evidence of some witnesses. This is because my findings as to the circumstances depend in part on the reliability or otherwise of the evidence of some witnesses. [17] Many witnesses testified at the trial, and received the videotaped and written evidence of one person, Bob Barrie, who died before trial. must discuss the evidence of three of these witnesses, being Bob Barrie, Clint Charlie and Art Garrett. [18] Bob Barrie was delivering grain to the terminal at the time of the incident. His truck was parked at the entrance to the terminal’s drive-in bay area, the location of the receiving pit that Mr. Cruse entered. [19] Mr. Barrie was interviewed by an RCMP officer on September 8, 2011, the day of the incident, and on that day he signed written statement. He was interviewed again on November 3, 2011, this time by federal Occupational Health and Safety officer, and on that day as well he signed written statement. Subsequently Mr. Barrie was diagnosed with cancer. He agreed to undergo videotaped interview by an RCMP officer, and that interview was conducted July 11, 2013. Mr. Barrie died December 24, 2013. [20] At the time of the incident Mr. Barrie was self-employed contract driver, having previously had career as an RCMP officer. In addressing his evidence consider that as former RCMP officer he had training and experience in observing events, sometimes under circumstances of duress. As well, from the testimony of those who interviewed him and from my observations of him in the videotaped interview conclude that on the three occasions of giving statement Mr. Barrie was equally cogent and able to remember and relate what he had seen on September 8, 2011. [21] Nonetheless, within and among his three statements there are some minor inconsistencies. If they were the only inconsistencies, they would not cause me to doubt the reliability of Mr. Barrie’s statements. When consider them along with other concerns, however, they become pertinent. [22] The minor inconsistencies are these: (a) On November 3, 2011 Mr. Barrie said that he was hauling peas on September 8, 2011, but on July 11, 2013 he said that he was hauling canola. (b) On July 11, 2013 Mr. Barrie emphasized that, on September 8, 2011, Mr. Charlie did not refer to Mr. Cruse as “young fella”, but later in that interview he agreed that Mr. Charlie did refer to Mr. Cruse as “young fella”. (c) On September 8, 2011 Mr. Barrie said that he knew Mr. Cruse “just from the elevator”, meaning the Viterra terminal, but on November 3, 2011 he said, in agreeing that he knew Mr. Cruse, “Yes. know the family. Casual.” On July 11, 2013 Mr. Barrie said that he had known Mr. Cruse for quite few years, and that they used to be neighbours at the lake. [23] note also that on July 11, 2013 Mr. Barrie provided details that he had not provided previously. This could be nothing more than result of having full-length videotaped interview, except that one of those details is significant part of the narration of what Mr. Barrie saw Mr. Cruse do detail that he reasonably would be expected to have included in giving his earlier statements. This detail is Mr. Barrie’s observation that Mr. Cruse, after opening the hatch to the receiving pit, and after tossing down tool, “kinda looked around” before starting to climb down the ladder into the pit. Mr. Barrie related this detail on July 11, 2013, but he had not related it on September 8, 2011 or November 3, 2011. [24] Most significant is an inconsistency in Mr. Barrie’s recollection as to the order in which certain events took place, some specifically relating to Mr. Cruse’s location. On September 8, 2011 Mr. Barrie said that he saw Mr. Cruse immediately upon pulling his truck up to the drive-in bay area of the terminal, while Mr. Barrie was still in his truck. On November 3, 2011, though, Mr. Barrie said that on arriving at the drive-in bay area he got out of his truck and went into the terminal office, and that it was there that he saw Mr. Cruse. On July 11, 2013 Mr. Barrie said that Mr. Cruse was in the terminal office when Mr. Barrie entered it, but later in that interview he said that Mr. Cruse walked into the office after Mr. Barrie had entered it. [25] Taken together, these inconsistencies leave me unsure about the accuracy and reliability of Mr. Barrie’s evidence. Having misremembered or inaccurately related these elements of his recollection, he well may have misremembered or inaccurately related other elements. [26] The details of what people did and said in the moments before Mr. Cruse’s death are important. cannot be confident in the accuracy of what Mr. Barrie said that he saw and heard regarding the incident. Not everything that he related can be accurate, and have no way knowing which parts are accurate and which parts are not. Consequently, cannot and do not rely on any of Mr. Barrie’s evidence. [27] Clint Charlie was assistant manager of the terminal at the time of the incident. He was present during the events, and he had interaction with both Mr. Cruse and Mr. Barrie. There were some inconsistencies in Mr. Charlie’s evidence. As well, recognize that, in testifying, he may have been subject to natural tendency to want to avoid appearing to have made any mistakes that contributed to the incident. Bearing these factors in mind, though, still found Mr. Charlie to have testified overall in frank and honest manner. concluded that his description of events was reliable and largely accurate. In particular, on the topic of his interactions with Mr. Cruse and with Mr. Barrie accept that Mr. Charlie has accurately related what occurred and was said. [28] Art Garrett was manager of the terminal at the time of the incident. He was not present at the time of the incident, being away at company meeting in another province. In the course of his direct and cross-examinations some deficiencies were revealed in the operation of the terminal that Mr. Garrett managed. Some of those deficiencies related to matters of employee safety, as will discuss. Nonetheless, overall found Mr. Garrett to be honest and credible in testifying. accept his evidence. D. Circumstances of the incident [29] Trucks making grain deliveries to the terminal enter large drive-in bay area. The terminal has two grain receiving pits that are located immediately below the floor of that bay area. grain truck enters one of the two doors to the drive-in bay area and dumps grain through grates in the floor, into the receiving pit below. In September 2011 each receiving pit funneled grain through screen that was located about 20 feet below the bay area floor. The grain passed through the screen to bucket elevators (called “legs”) that carried the grain to various bins. [30] Late in the morning of September 8, 2011, around the time that Mr. Barrie had driven up to the drive-in bay area at receiving pit 2, Mr. Charlie was in the terminal’s control room, which looked out onto the drive-in bay area. He noted that, according to the instruments in the control room, the grain in receiving pit was flowing very slowly. That instrument reading indicated to him either that the pit was empty or that there was blockage at the screen at the bottom of the pit, preventing grain from emptying into the legs. [31] About an hour earlier that morning, Mr. Charlie had made the same observation. On that occasion he asked Mr. Cruse “to look into the pit to see if there was any product in there or if it was blocked in any way.” Using flashlight, Mr. Cruse looked into the receiving pit through the grate from above the pit, and he reported that there was just some minor build-up, but virtually no grain in the pit. Mr. Charlie then decided to dump the next load of grain into the pit, to flush out the minor build-up. [32] About an hour later, when Mr. Barrie had arrived to make delivery, and when Mr. Charlie again saw that the grain was flowing very slowly, Mr. Charlie again told Mr. Cruse to look into the receiving pit. He told Mr. Cruse “to take the flashlight and look in the pit to see if there was grain or if it was empty.” Mr. Charlie then walked over to Mr. Barrie’s truck, where he stepped up onto the step at the driver’s door of the truck and asked Mr. Barrie not to pull into the drive-in bay area because they were checking whether the receiving pit was blocked. [33] Sixty to ninety seconds elapsed between the moment that Mr. Charlie told Mr. Cruse to look into the receiving pit and the moment that one of the terminal employees realized that Mr. Cruse was in the pit. The evidence does not establish all of what Mr. Cruse did in that period. It is clear, though, that at some point he went to hatch that was off to the side of the bay area the hatch that led down to the pit. He opened the hatch, he climbed down and he stepped onto the grain that had accumulated in the pit. When he stepped onto the grain he was immediately engulfed and he suffocated. E. Actus reus [34] As have set out above, the actus reus that the Crown must prove, beyond reasonable doubt, may be summarized as follows: (a) failing to instruct Mr. Cruse on how to unplug blockage in receiving pit (counts and 2); (b) failing to train and supervise Mr. Cruse so as to ensure his health and safety when responding to blockage in receiving pit (counts and 4); and (c) failing to ensure that Mr. Cruse was made aware of the hazard of being engulfed in grain in receiving pit (counts and 6). [35] The Crown asks me to find, as fact, that Mr. Charlie told Mr. Cruse to deal with the blocked receiving pit. In doing so, the Crown relies on Mr. Barrie’s recollection that Mr. Charlie had indicated to Mr. Barrie that if the pit were blocked Mr. Cruse would have to go down into the pit to clear the blockage. have explained that do not accept the accuracy of Mr. Barrie’s evidence. Therefore, on that basis alone do not accept that Mr. Charlie made this remark to Mr. Barrie. [36] Further, accept Mr. Charlie’s evidence. He said that he would not have told Mr. Cruse or anyone to go down into the pit to clear blockage, because it is not possible to clear such blockage from inside the pit. What he did tell Mr. Cruse is set out above. [37] Even if were giving some weight to Mr. Barrie’s evidence, with respect to this point would not accept his recollection that Mr. Charlie had made such remark. Because of my greater confidence in the accuracy of Mr. Charlie’s evidence, and because of his logical explanation as to why he would not have asked anyone to go into the pit, would prefer the evidence of Mr. Charlie as being more reliable and accurate as to what actually occurred. [38] The Crown argues, though, that in any event may infer, from Mr. Cruse’s having entered the receiving pit, that Viterra did not adequately instruct, train, supervise and inform him. Logic, says the Crown, tells us that if Mr. Cruse had been adequately instructed, trained, supervised and informed he would not have entered the receiving pit without following the safety procedures. [39] There is an attraction to the simple logic of this argument. am not sure that it is accurate or fair, though. It ignores the fact that sometimes people make mistakes, despite their training and education. 1. Training and education [40] Mr. Cruse began his employment at the Viterra terminal on May 24, 2011. Before he started actually working in the facility, he underwent some training and education. He took computer based training (CBT). This involved his working through series of training modules on computer. The modules related to various topics including safety, the dangers inherent in grain terminal, the dangers relating to entering confined space such as receiving pit, and the proper procedures to follow before and during entering confined space such as receiving pit. [41] Mr. Cruse completed twelve CBT modules at that time. Four of the CBTs referred to the dangers of engulfment. The CBTs dealing with confined space entry, safe work permits and lock-out/tag-out referred explicitly to the dangers of entering confined space. The confined space entry CBT itself focused on the dangers of entering confined space, and on the proper safety procedures to follow when doing so. [42] At the end of each module Mr. Cruse was tested, as part of the CBT, for his comprehension of the topic. An 80% score was required to pass. Mr. Cruse took and passed CBTs in the topics have described above, in addition to other topics. [43] The following month, in June 2011, Mr. Cruse took five hands-on training courses, including hands-on training relating to safe work permits. By the time of the incident on September 8, 2011 Mr. Cruse had not yet received hands-on training in confined space entry. [44] The training materials are replete with references and warnings about the hazards of entering confined space such as receiving pit. That very volume of material, though, is part of the reason that the Crown argues that the necessary information about the hazards would have been lost on Mr. Cruse because it would have been buried in the mass of material. The Crown characterizes the information about confined space entry as having been “buried in dozens of CBT’s in hundreds of power point slides”. It is true that there were many photos, drawings and words in the material. That does not necessarily mean that the information in the material was not understandable, however. It does not necessarily mean that the worker would not be able to learn and retain what he had learned. [45] I find, in fact, that the mass of material emphasized the dangers, and the importance of following the safety procedures, rather than burying them. The CBTs included several pages describing confined spaces and the dangers associated with them. The CBTs included several pages describing the procedures to be followed to enter confined space safely. refer, for example, to the confined space entry CBT. On the first page the introduction to the CBT emphasized that people lose lives in confined spaces. This statement was emphasized again on the fourth page, where there appeared drawing of chalkboard bearing large words proclaiming “Death lurks in confined spaces!” The fifth page included list of examples of confined spaces. The first entry on the list was “Pits”. [46] This information was not buried in mass of other information. [47] Too, note again that Mr. Cruse was not permitted to move on to the next stage in his training until he had taken and passed test to verify that he had learned the information. One purpose served by the testing at the end of each CBT module was to check the employee’s comprehension to ensure that the important information was not buried. The inference that draw from Mr. Cruse having passed these tests is that he likely learned about confined space entry and its dangers. [48] In his training and education from Viterra Mr. Cruse learned that: (a) receiving pit is confined space; (b) danger is inherent in entering confined space; (c) he was not to enter confined space until he had received the necessary training in the safety procedures for doing so; and (d) he was not to enter confined space without following the safety procedures for entering confined space. [49] Mr. Cruse knew, as well, that he had not yet received the necessary training in the safety procedures for entering confined space. He had completed the confined space entry CBT, but he had not yet completed the confined space entry hands-on training. At para. 27 of Saskatchewan Wheat Pool QB, Justice Krueger posed this question in determining whether the employer had met its obligation under the Code: “Was the information, training, instruction and supervision sufficient, if adhered to, to ensure the health and safety of the employees?” [51] When I ask the same question in relation to Viterra’s instruction, training, supervision and education of Mr. Cruse generally, I find that the answer is “yes”. That is not necessarily the end of the matter, however. The Crown argues that certain other factors should influence me to conclude that the answer becomes “no”, and in any event must examine the specific allegations set out in each count of the indictment. 2. Workplace culture [52] The Crown argues that, notwithstanding the training and education that Mr. Cruse received, the workplace culture was such that he would have been led to disregard that training and education. He would have learned that, in reality, things were done consistently without regard for dangers or for the safety rules. [53] In support of this argument the Crown says that Mr. Cruse would have been aware of other employees not following safety procedures, sometimes involving confined space entry. The suggestion is based on three items of evidence. The first two items of evidence were provided in the testimony of Sheldon Hannay, who at the time of the incident was, like Mr. Cruse, junior employee at the terminal. Mr. Hannay testified that he once made horizontal entry into large concrete bin, which is confined space, with harness and the assistance of another employee, to sweep it out. Such an entry did not conform to the safety requirements of confined space entry. [54] There is no indication in the evidence, however, that Mr. Cruse was aware of this event occurring. For this reason, the event cannot form basis for what conclude was Mr. Cruse’s perception of safety culture. [55] The second item of evidence relied on by the Crown is Mr. Hannay’s description of Mr. Cruse having entered an empty receiving pit, which is confined space, without any safety measures being taken. Mr. Hannay recalled that Mr. Cruse did so to clear grain that was blocking the screen. Mr. Hannay said that he stood above the pit and shone flashlight down so that Mr. Cruse could see what he was doing. He said that Mr. Cruse did not use any tool, but rather simply used his hands to clear the screen. [56] Mr. Hannay testified that this incident occurred during regular business hours, so that he believed without specifically remembering traffic into the drive-in bay area would have been stopped. He recalled that, if anyone had told him and Mr. Cruse to have performed this task, it would have been Mr. Charlie or Mr. Garrett who did so. [57] If no one told Mr. Hannay and Mr. Cruse to engage in this conduct, then this conduct by the two most junior employees cannot have constituted basis for causing Mr. Cruse to think that there was an established culture of paying lip service to safety in the terminal. If someone told Mr. Hannay and Mr. Cruse to engage in this conduct, then that person was Mr. Charlie or Mr. Garrett. [58] Each of Mr. Charlie and Mr. Garrett denied that he was aware of such an event, and each denied that he did or would have instructed Mr. Hannay and Mr. Cruse to have engaged in the activity that Mr. Hannay described. As have said, accept the evidence of Mr. Charlie and Mr. Garrett. cannot reconcile Mr. Hannay’s description of the event with the evidence of Mr. Charlie and Mr. Garrett. While recognize that, over years, some items were overlooked in relation to compliance with safety requirements at the terminal, do not accept that either Mr. Charlie or Mr. Garrett instructed an employee to make confined space entry in the absence of any safety procedures whatsoever. [59] conclude that it is more likely that Mr. Hannay’s recollection is faulty. It is more likely that Mr. Cruse’s confined space entry did not occur. [60] The third item of evidence relied on by the Crown is the imperfect compliance at the terminal with safety procedures. The evidence establishes that, over years, some employees became due for refresher courses in their safety training, but they did not undergo that retraining within the required period or, in some cases, at all. Some Viterra records were inaccurate as to the training and education status of some employees. Some confined space entries had been approved by Mr. Garrett with inadequate arrangements for example, without sufficient number of people participating, or without adequate provision for air venting and monitoring. [61] The Crown points to the numerous examples of such oversights in support of the conclusion that there had developed at the terminal culture of only paying lip service to safety. Rather, says the Crown, the focus at the terminal was simply on getting the job done. Sometimes the job got done even if that meant that doing so required skipping some safety steps or proceeding with fewer safety participants than were needed. [62] observe, however, that there is no evidence before me that Mr. Cruse was aware of any of these transgressions. There is no evidence that he was aware of other employees being past due for refresher training, or that confined space entries were being conducted without full compliance with safety procedures, or that the terminal manager had missed some items in approving proposed confined space entry, or that Viterra’s training records in some regards were inaccurate. [63] Further, as to the prospect that culture of paying lip service to safety would have percolated down to Mr. Cruse, in light of the evidence of Mr. Charlie and other employees who worked at the terminal at the time of the incident, find that despite those lapses overall there was culture of safety. This was small group of employees. They understood that the concern for safety was real, for themselves and for their fellow workers. They understood that the concern for safety was real, because the danger of injury or death was real. [64] do not find, therefore, that there was culture of paying lip service to safety that would have detracted from Mr. Cruse’s training and education in relation to safety. 3. Specific allegations in the indictment [65] As I have said, I find that Viterra’s training and education generally of Mr. Cruse was sufficient, if adhered to, to ensure the health and safety of Mr. Cruse. must address, though, the specifics of the charges against Viterra. [66] In counts and Viterra is alleged to have failed to ensure Mr. Cruse’s health and safety by failing to instruct him on how to unplug blockage in receiving pit. If Viterra had instructed Mr. Cruse to unplug blockage in receiving pit, Viterra would have had duty to instruct him on how to do so. As I have found, though, Viterra did not instruct him to unplug a blockage. Rather, Mr. Charlie told him as he had done an hour earlier only to look into the pit to see whether there was grain in it. Not having told Mr. Cruse to perform the task of unblocking the pit, Viterra was not obliged to instruct him on how to perform that task. [67] The situation is analogous to this example: If an employer tells an employee to operate forklift, that employer has an obligation to provide training and supervision to that employee in the operation of forklift. If an employer tells an employee to do certain other jobs, and does not tell the employee to operate forklift, then the employer has no obligation to train and supervise the employee in the operation of forklift. [68] As to counts 1 and 2, then, the actus reus is not established. [69] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse had the necessary training and supervision to ensure his health and safety when responding to blockage inside receiving pit. The direction that Mr. Charlie gave to Mr. Cruse was in the context of Viterra “responding to blockage inside receiving pit”. Again, though, Viterra did not have an obligation to train and supervise Mr. Cruse with respect to the actual unblocking of a receiving pit, because Viterra did not tell him to do that job. [70] To the extent that counts 3 and 4 allege that Viterra failed to adequately train and supervise Mr. Cruse, with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain, the Crown has not proven the actus reus. In light of the training and education that Mr. Cruse received from Viterra, and in light of the innocuous task that he had been given and that he had performed just an hour earlier task that did not require any particular supervision, since it involved only looking through grate from the safety of the floor do not find deficiency in either the training or supervision. Accordingly, the Crown has not proven the actus reus in relation to counts 3 and 4. [71] In counts and Viterra is alleged to have failed to ensure that Mr. Cruse was aware of the hazard of being engulfed by grain in receiving pit. As I have discussed, I find that Viterra did make Mr. Cruse aware of the hazard of being engulfed in grain in a receiving pit. It is unlikely that the information in that regard was simply buried in mass of other information, so that he did not really learn it. Rather, it is likely that Mr. Cruse became aware of the hazard and that he retained that knowledge. Accordingly, the Crown has not proven the actus reus in relation to counts 5 and 6. 4. Conclusion as to actus reus [72] The Crown has failed to prove, beyond reasonable doubt, the actus reus relating to any of the six counts. F. Due diligence [73] Section 148(4) provides that “... it is defence for the person to prove that the person exercised due care and diligence to avoid the contravention.” Exercising due diligence is matter of taking “all reasonable steps”, not matter of taking “all conceivable steps”: British Columbia Hydro and Power Authority, [1997] BCJ No 1744 (QL) (BCSC) at para 55. [74] If the actus reus were proven with respect to any of the six counts, I would conclude that Viterra had exercised due diligence. In so concluding, would consider the factors that have reviewed above. These include Mr. Cruse’s training and education, including Mr. Cruse having learned the dangers of entering confined space, and the need to follow safety procedures in doing so, and the fact that receiving pit is confined space. These factors include also the fact that Mr. Cruse was not told to do anything related to entering receiving pit, and the fact that Mr. Cruse was told to perform task that did not involve entering receiving pit. The factors include as well the fact that there was no reason for Mr. Charlie to think that Mr. Cruse would consider entering the receiving pit. [75] Accordingly, the defence of due diligence would apply with respect to each count if the actus reus had been established with respect to it. G. Conclusion [76] The Crown has not proven the actus reus with respect to counts 1, 2, 3, 4, 5 or 6, and in any event the defence of due diligence would apply to each of those counts. [77] Accordingly, I find Viterra not guilty on all six counts. J. G.M. CURRIE

HELD: The court did not accept the Crown’s position that proof of a worker injury or death necessarily proved the actus reus of failing to ensure the health and safety of an employee. The deceased witness’s evidence was not relied upon by the court due to inconsistencies. The assistant manager’s evidence also had some inconsistencies but overall his oral testifying was found to be in a frank and honest manner. The court accepted the assistant manager’s evidence that he would not have told the employee or anyone to go down into the pit to clear a blockage, because it is not possible to clear such a blockage from inside the pit. The Crown argued that, in any event, the court should infer that because the employee entered the pit, the respondent did not adequately instruct, train, supervise and inform him. The court found that the mass of training material emphasized the dangers and the importance of following the safety procedures. The information was not buried in a mass of other information as suggested by the Crown. The court found that the information, training, instruction and supervision was sufficient, if adhered to, to ensure the health and safety of the employee, generally. The Crown argued that a culture of paying lip service to safety had developed at the respondent’s place of business. The court held that, despite some lapses in safety, overall there was a culture of safety. The court also held that the respondent did not instruct the employee to unplug a blockage in the pit and, therefore, did not have an obligation to instruct him on how to perform that task. The respondent was not guilty of counts 1 and 2. The Crown also did not prove the actus reus of counts 3 and 4. The Crown failed to prove that the respondent did not adequately train and supervise the employee with respect to responding to a blockage by looking into the receiving pit to see if it was full of grain. The court also concluded that the respondent had made the employee aware of the hazard of being engulfed in grain in a receiving pit and, therefore, the actus reus of counts 5 and 6 were not proved. The court noted that if the actus reus had been proven with respect to any count, the court would have, nonetheless, concluded that the respondent exercised due diligence.

c_2016skqb269.txt

J. V.D.V. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: KHAMSENG DOLGOPOL and DARRIN DOLGOPOL No one appearing for either side. FIAT WIMMER J. February 15, 1995 Acting under the authority of The Victims of DomesticViolence Act, S.S. 1994, c. V-6.02 a justice of the peace madean order granting Khamseng Dolgopol exclusive occupation ofthe family residence and, as well, restraining Darrin Dolgopolfrom having contact with his wife or daughter during thecurrency of the order. Now to be decided is whether the order should be confirmed as an order of this court, or whether it should be terminated or varied in its terms. The Victims of Domestic Violence Act came into force on February 1, 1995. It is novel piece of legislation intended to protect domestic antagonists from violence one against the other and, in an emergency, to provide immediate relief from turbulent predicament. The Act provides for two types of orders. One is "a victim's assistance order" which may be obtained from the Court of Queen's Bench upon an application brought in the ordinary way by victim of domestic violence or by some person authorized to act on the victim's behalf. Section 2, clause (d) of the Act defines "domestic violence" as meaning: (i) any intentional or reckless act or omission that causes bodily harm or damage to property; (ii) any act or threatened act that causes reasonable fear of bodily harm or damage to property; (iii) forced confinement; or (iv) sexual abuse. victim's assistance order may include any number of remedies directed at securing the safety of the victim and the security of the victim's property. "An emergency intervention order" is the second type of available order, although curiously, it is the one that gets the legislation's first focus. 3(1) An emergency intervention order may be granted ex parte by designated justice of the peace where that designated justice of the peace determines that: (a) domestic violence has occurred; and (b) by reason of seriousness or urgency, the order should be made without waiting for the next available sitting of judge of the court in order to ensure the immediate protection of the victim. Not until s. does the procedure for obtaining victim's assistance order appear. The sequence of these provisions may tend to encourage victims of violence and their advisers to see an application for an emergency intervention order as the primary route to relief when, in fact, that order is available only in limited circumstances. An emergency intervention order is granted without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate need for prompt action to protect the victim. Absent such urgency, the application should be one for victim's assistance order brought to this court in accordance with The Queen's Bench Rules. It is upon this point that the order now under consideration founders. The evidence before the justice of the peace who made the order consisted of this statement taken from Mrs. Dolgopol at 10:35 a.m. on February 1. was in the bathroom getting ready to go out with my family to have breakfast at restaurant. told my husband he could go and warm up the car because would be ready in 10 or 15 minutes. Then what happened? went to my bedroom closet to get my blouse on. Then he walked in the bedroom and saw me wearing the blouse. He told me it looked dumb and stupid. Then he said my face is too red and he went on to criticize my makeup. He told me to wear something else because he doesn't like it. Then what happened? told him like the blouse and its the style. also told him to leave me alone. said don't tell you what to wear or criticize you. Then what happened? started to cry then he said go ahead and wear it if you like it that much. said, how am supposed to feel now that you've told me that you don't like it. Then he blew up. Then what happened? He went into the kitchen and smashed something glass on the floor. Then he picked up the recliner footstool and threw it across the living room. He then yelled that was the cause of him having to act this way. It was all my fault and then he called me "fucking bitch" times. After that was scared that he might hurt me so kept quiet for while. Then he tried to force me to go out to the restaurant. told him didn't want to go anymore. He said he'd wait 'till was ready replied that probably wouldn't feel like going out today at all. He then went berserk again and accused me of wrecking his fucking weekend every fucking weekend. Then what happened? Then he went into the bathroom and smashed the steel towel rod and broke it right off the wall. Then he tore down the shower curtain and the rod. Then got really scared and called for my daughter, year old Melissa who was very scared too. We tried to run to the front door. was 1/2 in and 1/2 out when he caught me. Melissa was still on the inside by the door. Darrin reached the door and started closing the door with me still in the way. managed to grab Melissa and run out the door. could hear Darrin swearing inside. Then he opened the door and came running outside and chased me to the car. He jumped in one door and me the other. saw that he was there so jumped out of the car and screamed twice for help. Then what happened? Then Darrin ran back into the house. jumped back in the car with Melissa, locked the doors and took off. was shaking badly and freezing because didn't have coat or any shoes on. drove down to the end of the street and there was police car parked on the side of the road. It was Constable B.D.Miller. He asked me what happened and told him. Cst. Miller asked me if Darrin had guns in the house and said, yes guns. Then later Constable Miller drove me and Melissa to Transition House where am still staying. This incident happened Saturday, January 28/95, approximately 11:00 am. The domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Mrs. Dolgopolwas at risk of immediate harm. There was by then no elementof urgency and the application for relief should have awaitedthe regular Queen\'s Bench Family Law Division chambersittings. In the ordinary course, an application under s. of the Act for victim's assistance order could have been brought on February and both sides given the opportunity to be heard. Section 5 of the Act requires that every emergencyintervention order be reviewed by a judge of this court whomay either confirm the order or "direct a rehearing of thematter". When the present order came before Madam JusticeDawson for review, she perceived a problem and directed arehearing. It is not easy to say from the language or scheme of the statute what the legislature intended by the phrase "a rehearing of the matter". Is there to be hearing de novo? Or is the rehearing to be seen as an appeal from the order of the justice of the peace; or is it matter of judicial review? Some definition of the process may be necessary to establish the parameters of the court's authority on rehearing. However, leave that for day when there is the benefit of argument from counsel. No one appeared on this rehearing and it is even unclear whether the parties were given notice. Nonetheless, am satisfied that the order should not stand. At the time of its making there was no urgency necessitating any extraordinary action. The order will terminate forthwith.

The Respondent and the Applicant had a violent argument after which the Applicant and the child left the matrimonial home and moved to Transition House. The Applicant sought and obtained an emergency intervention order under The Victims of Domestic Violence Act from a Justice of the Peace giving her exclusive occupation of the matrimonial home and restraining her husband from having any contact with her or their daughter during the currency of the order. This order was then brought before a Queen's Bench Judge as required by s.5 of the Act for review. The reviewing Judge refused to confirm the order and directed a rehearing as permitted by the section. The matter then came before this Judge for the rehearing ordered. HELD: Order vacated. 1)An emergency intervention order is granted by a Justice of the Peace under s.3 of the Act without notice to the person whose conduct it restrains and without any representations from that person or on that person's behalf. It is an extraordinary remedy to be granted only where serious and urgent circumstances indicate a need for prompt action to protect the victim. 2)Absent such urgency, the application should be one for a 'victim's assistance order' brought to a Queen's Bench Judge in Chambers under s.7 in accordance with The Queen's Bench Rules. 3)In this case the domestic violence complained of occurred on January 28. There was no evidence that on February 1, 1995, Dolgopol was at risk of immediate harm. There was by then no element of urgency and the application for relief should have awaited the regular Queen's Bench Family Law Division chamber sittings. 4)The Court commented that it was unclear whether this rehearing was to proceed de novo or as a review but determined that the order should not stand in any event and therefore terminated it forthwith.

8_1995canlii5717.txt

THE COURT OF APPEAL FOR SASKATCHEWAN TRACY LEE ANTHONY FICK APPELLANT (PETITIONER) and HARVEY LORNE FICK RESPONDENT (RESPONDENT) CORAM: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: Mr. G. Walen for the appellant Mr. C. McCannell for the respondent DISPOSITION: Application Heard: May 13, 1993 Application Dismissed: June 25, 1993 Reasons: June 25, 1993 On Appeal From: Q.B. No. 014242 of 1992, J.C. of Regina Appeal File: 1451 Quorum: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson THE COURT: Having regard for the governing standard of appellate review, found insuch cases as Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801 at 824 and Talbot v.Henry, 1990 CanLII 2648 (SK CA), [1990] 5 W.W.R. 251 (Sask. C.A.) at 264, we can find no tenablebasis for interfering with the trial judge\'s decision to grant custodyof James (b.d. June 4, 1984) to his father, Harvey Fick. In coming to this conclusion we note that the trial judge chose to accept the testimony of the father's witness who testified as to relationships within the family over that of Tracy Fick's expert witness who testified as to the effect of abuse on children. He also found the mother's interpretation of events not to be credible. While we might not have arrived at the result for the reasons given by the trial judge, the conclusions reached and the disposition are supported by the evidence. As for the award of maintenance, we do not find an award of $700.00 amonth for Tracy Fick to be unreasonable having regard for (i) the lengthof the relationship (approximately fifteen years), (ii) the husband\'swage (approximately $55,000.00 per year) and (iii) the fact that thewife had seldom worked outside the home. We delayed this judgment because of our concern that the child should be allowed to complete his year in school without having to transfer to different school in another city. Our overriding concern throughout has been to ensure that the interests of the child are protected as much as possible throughout the appeal process. Although the previous disruptions in the child's schooling were not caused by any action of the father, in our opinion further dislocation in the child's living arrangements and schooling would have been detrimental to the child. We also delayed our judgment to enable us to order and enforce liberal access between the day the appeal was heard and today's date as the father had not previously had regular access to the child. Accordingly, the appeal is dismissed. There will be no order for costs. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of June A.D. 1993. VANCISE J.A. LANE J.A. JACKSON J.A.

Appeal from [1993]TWL QB93106 QB93p55. HELD: There was no tenable basis for interfering with the trial judge's decision to award custody to the father. An award of $700.00 a month spousal support was not unreasonable having regard for (i) the length of the relationship (approximately fifteen years), (ii) the husband's wage (approximately $55,000.00 per year) and (iii) the fact that the wife had seldom worked outside the home.

4_1993canlii6771.txt

nan GAVELIN V. PATEMAN QB08179 Date of Judgment: April 30, 2008 Number of Pages: QUEEN'S BENCH FOR SASKATCHEWAN Date: 2008 04 30 Citation: 2008 SKQB 192 Docket: F.L.D. No. 330 of 2005 Judicial Centre: Saskatoon, Family Law Division BETWEEN: EVAN GAVELIN and NEVADA PATEMAN Counsel: N. Turcotte for the petitioner T. Hackl for the respondent FIAT DUFOUR J. April 30, 2008 1) The parties, who were never married, have two children: Kayden Marie Gavelin, born February 28, 2003 and Nolan Evan Gavelin, born December 28, 2004. The respondent is now married and the petitioner is engaged to be married on May 31, 2008. 2) The petitioner seeks an order that would enable him to exerciseincreased access to the two young children born of his relationship with therespondent. 3) This is the second time access issues have come before the Court. On February 1, 2007 Ryan-Froslie J. issued fiat that specified custody and access. At that time, the petitioner was employed by drilling company, working every day for two weeks followed by one week off. The respondent worked as hotel supervisor Tuesdays through Saturdays from 4:45 p.m. to 11:30 p.m. 4) The petitioner and respondent were awarded joint custody, with primary residence to be with the respondent. 5) Madam Justice Ryan-Froslie also detailed very specific accessprovisions, setting out the exact dates and times for the petitioner's access fromFebruary 2, 2007 to April 10, 2007. For the period subsequent to April 10, she ordered that the petitioner have access: (xiv) Commencing Saturday, April 28, 2007, every third Saturday from 10:00 a.m., overnight to Tuesday at 4:00 p.m.; (xv) During July and August, 2007, the petitioner shall be entitled to take the children for up to two non-consecutive periods consisting of no more than five overnights each; 6) The fiat did not address access for the Christmas, 2007 period or the 2008 summer holiday period. With good reason. The fiat was meant only to cover the gap between the application and pre-trial or trial, which certainly ought to have occurred before Christmas, 2007. Ryan-Froslie J. wrote: [6].. The purpose of interim orders is to establish temporary parenting arrangement pending trial or final resolution of the matter. In making such orders, Courts try to disrupt the lives of the children as little as possible and, for that purpose, often adopt the "status quo" subject always to that arrangement being in the best interests of the children. The status quo in this case is represented by the verbal agreement which the parties entered into following their separation, that is, that Mr. Gavelin would have the children during his week off from Saturday to Tuesday. Given the age and circumstances of the children, this appears reasonable on an interim basis. The verbal agreement, however, did not address the fact that Mr. Gavelin would be laid off for two months in the spring. It is reasonable that, during this period, his contact with the children should be increased. 7) Unfortunately, more than a year has passed and the matter has noteven been set down for pre-trial. This Application 8) The petitioner seeks the following: (a) Interim access every weekend from Friday at 4:00 p.m. to Sunday at 4:00 p.m. and every third weekend from Friday at 4:00 p.m. to Tuesday at 10:00 a.m.; (b) Access to the Children during the period of May 28, 2008 to June 4, 2008; (c) Access to the Children from 12:00 noon on July 11, 2008 to 12:00 noon on July 17, 2008; (d) Access to the Children from 12:00 noon on July 24, 2008 to 12:00 noon on July 31, 2008; (e) Access to the Children from 12:00 noon on August 2, 2008 to 12:00 noon on August 8, 2008; (f) Access to the Children during the period of August 15-20, 2008; (g) Access to the Children from 12:00 noon on August 21, 2008 to 12:00 noon on August 28, 2008; (h) Access to the Children from 12:00 noon on December 24, 2008 to 12:00 noon on December 27, 2008; (i) Such further access as this Honourable Court deems appropriate for extended parenting times during Spring (February) Break, Easter and the Summer Holidays. 9) There are two natures of relief sought. The first is in the nature of anapplication to vary the regular access from every third weekend to everyweekend. The second is more in the nature of an application, not to vary, but toaddress holiday periods not contemplated or addressed in the February 1, 2007fiat. Variation of regular access 10) The respondent resists any order that would increase or supplementthe petitioner's regular access. 11) Section 6(3) of The Children's Law Act, 1997, S.S. 1997, c. C-8.2 gives this Court authority to vary an order relating to access where there has been material change in circumstance since the date of the order. The order in issue here is an interim one. 12) I find no evidence of any material change in circumstances thatwould warrant a change in the petitioner's regular access schedule. 13) The petitioner's work schedule has not changed. He still works two weeks of 12 hour days (8:00 a.m. 8:00 p.m.) followed by week off. 14) Further, because the petitioner works 12-hour days, the increasedaccess he seeks during the weeks that he works are unlikely to result in anymeaningful time with the children either before he goes to work in the morning orafter his return from work in the evening. The children are five and four years old. Although there is no evidence of their bedtimes, it is most likely that the petitioner would be at work for virtually all of the children's waking hours. Contact with the father would be increased only marginally, if at all, during these periods and contact with the respondent would be significantly reduced. 15) True, the respondent's employment schedule has changed. She no longer works evenings Tuesdays through Saturdays. She works out of her home, five days week. This change does not mitigate in favour of varying the petitioner's regular access. 16) Under these circumstances, am unable to find that there has been material change in circumstances or that altering the existing regular access schedule would be in the best interests of the children. The regular accessschedule as detailed by Ryan-Froslie J. shall remain unchanged. Spring access 17) At the time the February 1, 2007 fiat was issued there was evidence that there would be road ban in effect during the spring thaw, making it likely that the petitioner would be temporarily laid off for the months of April and May, 2007. In paragraph [9](xvii), Ryan-Froslie J. ordered: Should Mr. Gavelin not work for the months of April and May, 2007, he shall have additional parenting time with the children every week (other than the weekend he exercises regular access), from Thursday at 4:00 p.m., overnight to Saturday at 10:00 a.m. 18) The petitioner's request that this access provision apply to this yearis not so much in the nature of a variation as an extrapolation of the previousorder. 19) The petitioner does not indicate that he will be laid off this spring, although, given that his employment has not changed, this will likely be the case. The respondent avers that the petitioner may be laid off for "3 to weeks in May 20) As April is now behind us, order that the access provisions in paragraph [9](xvii) of the February 1, 2007 fiat be followed in May, 2008, but only for the weeks that the petitioner is not working at all. Summer, 2008 21) The request to specify access this summer is also in the nature of an extrapolation of the previous order. 22) For the summer of 2007, the petitioner was granted access for up to two non-consecutive periods consisting of no more than five overnights each during July and August. He seeks to increase summer access to two non- consecutive seven-day access periods in each of July and August. 23) The children are now one year older and some increase in summer access is reasonable, but not to the extent requested by the petitioner. When coupled with his regular access, the increase the petitioner seeks would result in his having the children for 21 of 31 days in July and 27 of 31 days in August. 24) The respondent has booked holidays from July 25 to August 10, which complicates the scheduling of the petitioner's summer access. Making the best of difficult situation, order that the access the petitioner shall have with the children in July and August, 2008, shall be as follows: July July 11; July 18 July 23; August 11 August 17; and August 24 August 30. For clarity, the petitioner shall not have the regularly scheduled access with the children during July and August. The only access he shall have with the children in those two months is as set out immediately above. Access for the petitioner's wedding 25) The petitioner is to be married on May 31, 2008. He seeks access to the children for the period of May 28, 2008 to June 4, 2008. He, very understandably, wants his children in attendance at his wedding. The respondent's stepbrother is getting married that same day and she wants the children to attend. 26) There will be disappointment no matter how rule. Although the wedding of the respondent's stepbrother is no doubt significant event for the children, consider the petitioner's wedding to be of greater importance. Further, the petitioner and his fiancTe planned their wedding to coincide with one of the petitioner's scheduled access periods. 27) The petitioner shall have access with the children from May 28, 2008 to June 4, 2008. Request that access be enforced by peace officer 28) The petitioner requests an order that provides that access be enforced by the RCMP or other peace officer. He deposes that the respondent and her husband threaten to withhold the children from him and swear and yell at him when the children are picked up and dropped off. The respondent disputes this and says that she is fully aware of the orders that are in place. 29) will not grant the order that the petitioner requests. In the event there are problems with access, the petitioner is granted leave to bring the matter before the Court on three days' notice. Christmas 2008 and holiday periods beyond 30) will not specify access for the 2008 Christmas period or for any of the holiday periods subsequent to that, as requested by the petitioner. The affidavits filed show significant amount of animosity between the parties. It appears unlikely that they will be able to agree on much, if anything. Granting specific access for holiday periods in the distant future acts as disincentive for the parties to resolve matters within reasonable time period of time. 31) Applications to alter interim access orders are not the answer. Moving the matter quickly to pre-trial and/or trial is. 32) Costs of this application shall be in the cause. J. G. D. Dufour

FIAT: A previous interim order detailed specific access in the period leading up to pre-trial or trial, however more than a year has passed and the matter has not even been set down for pre-trial. The petitioner seeks to increase access to the two children of the relationship and an order to address holiday periods not covered in the previous order. HELD: There shall be no change in the previously ordered access schedule. The Court found no change in the material circumstances that would warrant a change in the petitioner's regular access schedule. Because of the petitioner's work schedule, the increased access is unlikely to result in any meaningful time with the children. The holiday access requested was in the nature of an extrapolation of the previous order and the Court ordered holiday access in such a fashion as to continue that order.

e_2008skqb192.txt

UFC A.D. 1993 No. 523 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: TWILLA YVONNE DANSEREAU and MICHAEL GERARD DANSEREAU RESPONDENT Twilla Yvonne Dansereau for herself Michael Gerard Dansereau for himself JUDGMENT KLEBUC J. January 20, 1999 [1] There are two applications before the Court under The Family Maintenance Act s.s. 10 ("The Act"): in the first, the respondent, Michael Gerard Dansereau (“Dansereau”), seeks an order providing for the following relief:1. Variation of the child maintenance payable pursuant to the order of F.W. Dickson J. dated July 16, 1993 (the “Order”) by reducing the maintenance payable thereunder from $250.00 per month for each of Braden Thomas Thiessen, and Dorian Brooks Thiessen, (the “Children”) to the amounts specified under the Federal Child Support Guidelines( “the Guidelines”), as adopted by The Act;2. Cancellation of the arrears of $13,273.39 in maintenance payments accrued under the Order;3. Variation of the access provisions of the Order with the view of providing him with greater access to the Children. [2] In the second, the petitioner, Twilla Yvonne Thiessen (“Thiessen”), seeks an order varying the order of D.H. Wright J. dated September 12, 1994 by striking out paragraph 2 thereof. Paragraph 2 provides that: “both parties are restrained from removing the children of the relationship from the Province of Saskatchewan without the written consent of the other party or an order of this Court.” Thiessen did not proceed by way of notice motion nor did she filed appropriate affidavit evidence in support of her application. In the circumstances I was not prepared to hear her application and advised her to apply by notice motion with appropriate supporting affidavits. [3] The material filed by Dansereau confirms that he earned the following gross annual income: 1993 $10,552. 00 1994 $11,685.00 1995 $18,397.00 1996 $33,494.00 1997 $30,548.00 1998 $22,993.00. [4] The Statement of Arrears provided by the Director of Maintenance Enforcement confirmed that the arrears under the Order as of July 8, 1998 were $13,472.39. Dansereau disagreed with the Statement of Arrears and filed with the Court copies of personal money orders payable to Saskatchewan Maintenance Enforcement, receipts allegedly signed by Thiessen and cheques payable to Thiessen that totalled $4,394.00. With respect to the money orders payable to Saskatchewan Maintenance Enforcement, am satisfied that they were credited on the arrears set forth in an aforementioned Statement of Arrears. am further satisfied that Thiessen received child maintenance of $1,584.00 directly from Dansereau which is not accounted for in the Statement of Arrears dated January 7, 1999. In the result the arrears are $11,838.39 and not $13, 472.39 to set out in the Statement of Arrears. [5] The principles of law governing child support for infant children are well-known and specifically provided in The Guidelines and The Act. The principles governing the extinguishment of arrears are canvassed in Currie v. Currie (1989), 1989 CanLII 4470 (SK CA), 74 Sask. R. 52; 18 RF L. (3d) 20 (Sask. C.A.); Merryweather v. Merryweather (1994), 1995 CanLII 10821 (SK QB), 130 Sask. R. (Q.B.). Bulych v. Bulych (1993), 1993 CanLII 8970 (SK QB), 117 Sask. R. 157 (Q.B.). will apply those principles to the matter before me. [6] There are three issues before me: the first is whether the Order should be varied by decreasing the amount payable thereunder; the second issue is whether all or any portion of the arrears under the Order should be extinguished because Dansereau's income was insufficient to discharge his obligations under the Order during specific period; the third is whether the terms of access should be varied. will deal with these issues individually. [7] With respect to the first issue, am satisfied that Dansereau had gross income of $22,993.00 in 1998 and $30,548.00 in 1997. Therefore, the appropriate current child maintenance payable by Dansereau under The Guidelines is $325.00 per month based on his 1998 income and would have been $437.00 per month for the year 1998. Since The Guidelines were not in force prior to 1997, they do not automatically apply to the variation of maintenance payable prior to 1997. [8] With respect to the second issue, am satisfied that Dansereau's annual income for the years 1996 to 1997 was sufficient to enable him to pay the child support under the Order. Consequently, am not prepared to the extinguished or reduce the arrears accrued during such period. With respect to the years 1993 to 1995, inclusive, I am satisfied that he was not in a position to pay the full monthly maintenance provided by the Order and therefore I am prepared to reduce the arrears by ordering that upon the payment of $5000.00 on account of the arrears accrued prior to December 31, 1998, the balance of the arrears accrued prior to such date shall be extinguished. [9] Regarding the issue of access, the parties agree that Dansereau should have access to the children not less than one full weekend per month between 6:00 p.m. on Friday to 6:00 p.m. on Sunday upon two weeks prior notice together plus other periods of time when he is available to attend at Saskatoon for the purpose of exercising access in a manner consistent with the best interest of the children including their need to be available for school. Thiessen assured the Court that she does not wish to restrict Dansereau's access to the children and that access has not been problem in the past. [10] In summary, order, direct and adjudge pursuant to The Act: 1. The order made by Mr. Justice F.W. Dickson of this Court on the 16 day of July, 1993 which provided for payment of maintenance as follows: That the Respondent MICHAEL GERARD DANSEREAU, shall pay to the Petitioner as and for maintenance for the children the sum of $250 per month per child to commence July 15, 1993 and continuing on the fifteenth day of each month thereafter. shall be varied in accordance with this Order. 2. That the Respondent Dansereau's gross annual income is $22,993.00. 3. That the respondent Dansereau of the City of Prince Albert in the Province of Saskatchewan shall pay to the petitioner Thiessen of the city of Saskatoon in the province of Saskatchewan the sum of $325.00 per month for the maintenance of the following children:Braden Thomas Thiessen, born April 27 1990Dorian Brooks Thiessen, born Dec. 19, 1992commencing on the first day of February, 1999 and payable on the first day of each and every month thereafter for so long as they remained children within the meaning of The Act. 4. Upon the respondent Dansereau paying the sum of $5000.00 on account of the arrears accrued under the Order as of December 31, 1998, the unpaid arrears accrued to such date shall be extinguished unless otherwise ordered. 5. That the Maintenance Enforcement Officer for the Province of Saskatchewan shall limit garnishment of the respondent’s wages to $175.00 per month on account of the arrears plus $325.00 per month on account of the current maintenance due. 6. That the respondent and Dansereau shall have access to the children on the terms heretofore stated. 7. No costs are awarded to either party.

In the first application under the Family Maintenance Act the father sought to reduce child maintenance of $250 per child per month to an amount in accordance with the Federal Child Support Guidelines; cancellation of arrears of $13,273.39; and increased access. In the second application the mother sought to have the paragraph in the 1994 order restraining the parents from removing the children from the province without the other's written consent or court order struck. HELD: 1)The mother was advised to apply by notice of motion with appropriate supporting affidavits. 2)The arrears were $11,838.39 as the father had paid money directly which was not accounted for in the Statement of Arrears. Since the Guidelines were not in force prior to 1997, they do not automatically apply to a support payable prior to 1997. The father's income was sufficient for him to pay child support for 1996 and 1997. Arrears for 1993 to 1995 inclusive were reduced as he was not able to pay according to the order at those times. Upon payment of $5,000 the balance of arrears accrued prior to December 31/98 would be extinguished. 3)The father was to pay child support of $325 per month for the two children. Garnishment of his wages by the Maintenance Enforcement Office were to be limited to $175 per month for arrears plus the current maintenance due. 4)The parties agreed the father should have access not less than one full weekend per month upon two weeks prior notice plus when he was available to attend at the city in a manner consistent with the children's best interests and their need to be available for school.

b_1999canlii12440.txt

SUPREME COURT OF NOVA SCOTIA Citation: Geophysical Service Inc. v. Sable Mary Seismic Inc., 2011 NSSC 71 Date: 20110216 Docket: Hfx No. 190408 Registry: Halifax Between: Geophysical Service Incorporated v. Sable Mary Seismic Incorporated and Matthew Kimball Defendants Judge: The Honourable Justice M. Heather Robertson Heard: February 9, 2011, in Halifax, Nova Scotia SUPPLEMENTARY WRITTEN DECISION: February 16, 2011 Counsel: Colin Piercey and Tricia Barry, for the plaintiff, respondent Stephen Kingston and Justin Kimball, for the defendants, moving parties Robertson, J.: [1] By a motion dated December 16, 2010, the defendants sought an order confirming their ability to pay certain amounts for billed and unbilled time of their respective legal counsel, as well as retainers with respect to ongoing litigation, without such payments violating the terms of two execution orders previously issued February 18, 2010, as Hfx No. 190408 against the defendant judgment debtors to the plaintiff herein, who were successful litigants in this action. My written decision in this matter (2011 NSSC 67 (CanLII), 2011NSSC67) was rendered on February 15, 2011. [2] This is supplemental decision issued following correspondence dated February 16, 2011 received from Mr. Stephen Kingston, solicitor for the defendants, moving parties. Mr. Kingston wished to correct “. aspects of the Decision where believe the Court had misapprehended my oral submissions made during the Motion hearing.” And further states, “It was not my intention in my submissions to expand on the evidence otherwise before the Court in Ms. Cochrane’s affidavit.” The Court gratefully receives this clarification. [3] Ms. Cochrane’s affidavit sworn December 16, 2010, identified in para. 41.a the loans proposed to be used to pay for billed and unbilled time of the respective legal counsel, as well as retainers with respect to ongoing litigation: am advised by Matthew Kimball and do verily believe that: a. With loan or loans from third party or third parties he believes he and SMSI will be able to pay the retainers and legal fees referred to above; [4] The Court can now only rely upon the affidavit evidence of Ms. Cochrane relating to the third party loans. The affidavit evidence does not reveal where the loans come from or if they will reduce the exigible assets of the defendants, available for execution. I am therefore unable to grant the proposed order which accompanied the notice in this matter. [5] will be happy to hear submissions in writing on the matter of costs, failing any agreement. Justice M. Heather Robertson

The judge declared the defendants could pay legal fees from third party loans without offending two prior execution orders that prevented them from disposing of any property. The declaration was explicitly made on the assumption that the loans would not be secured against the defendants' existing assets. Later, the defendants' counsel wrote to the court essentially indicating he could not confirm the loans would not be secured against any assets. The court issued this supplemental decision. In the absence of any evidence the loans will not be secured against assets already subject to the execution order, or will not otherwise reduce those assets, the order and declaration sought can no longer be granted.

4_2011nssc71.txt

1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED Applicant and ABN AMRO BANK CANADA Respondent HEARD BEFORE: The Honourable Mr. Justice Gordon A. Tidman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 28, 1992 DECISION DATE: September 28, 1992 (Orally) COUNSEL: Mr. Frederick Black, for the Applicant Mr. David Coles, for the Respondent 1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED and ABN AMRO BANK CANADA Respondent TIDMAN, J.: (Orally) This is an application by NsC Corporation Limited (NsC Corp) for an order prohibiting the law firms of Boyne, Clarke and Blake, Cassels & Graydon from acting as counsel for the Trustee of the estate of the bankrupt NsC Diesel Power Corporation (NsC Diesel). The application was heard as contested chambers application (application inter partes) on September 10th and 11th, 1992. The application was scheduled to also deal with an application by NsC Corp to annul the bankruptcy of NsC Diesel and failing that an order under Section 38 of the Bankruptcy Act authorizing the applicant as creditor of the bankrupt estate to carry an action for damages to which the creditor claims the bankrupt is entitled against ABN Amro Bank Canada (Bank) and others. By agreement of the parties the hearing was restricted to the issue of the law firms of Boyne, Clarke and Blake, Cassels Graydon continuing to act for the Trustee. The respondent Bank as creditor petitioned NsC Diesel Corp into bankruptcy. The law firm of Blake, Cassels Graydon, based in Toronto has acted for and continues to act for the Bank in its dealings with the bankrupt estate. Boyne, Clarke act as agent for Blake, Cassels in relation to the interests of the Bank in Nova Scotia. By motion carried unanimously at the first meeting of the Inspectors of the bankrupt estate, Boyne, Clarke and Blake, Cassels Graydon, counsel for the respondent Bank, were appointed solicitors also for the bankrupt estate. The Bank has guaranteed payment of the Trustee's fees and disbursements, including legal fees. The applicant, NsC Corp is the sole shareholder of the bankrupt and claims to be creditor of the bankrupt. The applicant complains that there are significant areas where the interests of the Bank conflict with the interests of the applicant and other creditors of the bankrupt and thus the Trustee, who must act in the best interests of all the creditors, should not be advised by counsel for the Bank. The respondent concedes that there are areas of potential conflict with the law firms acting for both the Bank and Trustee, but submits that if conflict arises the Trustee would seek independent counsel on the conflicting matter. The respondent argues that to order the Trustee to retain other counsel at this time would create great financial burden because of the time required by new counsel to acquaint itself with information already in the knowledge of present counsel. BACKGROUND The financial difficulties of the bankrupt company have been ongoing for some time during the course of which this court under the provisions of the Companies Creditors Arrangement Act appointed Ernst Young Inc., the present Trustee, as custodian of the property of NsC Diesel Corp, the present bankrupt. Failure of the company to have its creditors accept plan of arrangement under the Act resulted in Ernst Young, the custodian, being appointed, again by this court, receiver of the assets of the company. Failure of the receiver to effect sale of the company's plant and equipment resulted in the termination of the receivership under the Companies Creditors Arrangement Act. Under the terms of debenture issued by the Company to the Bank, the Bank subsequently foreclosed on the principal assets of the Company. It also petitioned the Company into bankruptcy. During the course of these various proceedings, there have been many related applications and actions by the Bank against the applicant and by the applicant against the Bank and the Trustee. Throughout all of these various proceedings the firms of Blake, Cassels Graydon and Boyne, Clarke have acted as counsel for both the Bank and the Trustee. Mr. Black, the president of NsC Corp, although not lawyer, has represented the applicant throughout these actions and applications. Although the Trustee is now represented by the Bank's solicitors, throughout the proceedings under the Companies Creditors Arrangement Act, Ernst Young as custodian and receiver was represented by another law firm. DISCUSSION It is immediately apparent that there are three areas where the interests of the bankrupt estate conflict with those of the Bank. First, there is the question of the validity of the Bank's charge against certain assets of the bankrupt. Secondly, whether the Trustee should commence an action against the Bank on behalf of the bankrupt. Thirdly, but perhaps more correctly as part of the second area of conflict, whether the applicant is, in fact, creditor of the bankrupt which it must be in order to avail itself to the provisions of Section 38 of the Bankruptcy Act. The Trustee recognizes those areas of conflicts as is evidenced by paras 8,9,10 of the affidavit of Ross D. Landers, vice‑president of the Trustee sworn on September 4, 1992 and used in support of its opposition to this application i.e. 8. THAT mindful that there may ultimately be conflict of interest as regards the bank's security, the inspectors at the first meeting unanimously carried motion authorizing the trustee to obtain independent legal advice on that issue at the appropriate time. 9. THAT the Trustee, Ernst Young Inc., has not sought the opinion of, nor relied in its conduct of the bankruptcy upon, Boyne Clarke or Blake Cassels vis‑a‑vis the claim of NSC Corporation Limited as against the ABN AMRO Bank, but rather when requested to join the action has sought particulars from Mr. Black which the latter has failed to provide. 10. THAT in accord with practice, professional ethics, and the responsibilities of the Trustee under the Bankruptcy Act, particulars substantiating any claim the bankrupt might have as against ABN AMRO Bank Canada would be tabled with the Inspectors including recommendation to obtain independent legal advice as to whether there was merit in proceeding, anticipated costs of such action, etc. Mr. Landers, who was cross‑examined on his affidavits filed on behalf of the respondent, says that it is in accord with general practice that counsel for the petitioning creditor (in this case the Bank) be nominated as solicitors for the bankrupt estate. He says that it is also general practice that if conflicting interests arise the Trustee would then seek independent legal advice on such matters. Although that may be the general practice of trustees in bankruptcy, it is practice fraught with difficulty. This, of course, is so because the Trustee represents the interests of all the creditors which from time to time will in all probability conflict with the interests of the petitioning creditor. In such situation the Trustee of the bankrupt estate for obvious reasons must not take legal counsel from solicitors acting for the petitioning creditor. The general practice which Mr. Landers describes seems to be accepted as being practical and expedient in the administration of bankrupt estates and as such the court would not go so far as to say that such practice is in and by itself improper. What the court must consider is whether under all of the circumstances of this case the bankrupt estate should not be represented by counsel for the petitioning creditor. must first of all consider whether the court has jurisdiction over either counsel or the Trustee enabling it to grant the order sought by the applicant. The decision to appoint Boyne, Clarke and Blake, Cassels Graydon was made not by the Trustee but by the Inspectors of the estate on the advice of the Trustee. Section 119(2) of the Bankruptcy Act gives the court specific power to review decisions of the Inspectors. It provides: 'The decisions and actions of the inspectors are subject to review by the court at the instance of the trustee or any interested person and the court may revoke or vary any act or decision of the inspectors and it may give such directions, permission or authority as it deems proper in substitution thereof or may refer any matter back to the inspectors for reconsideration. R.S., c.B‑3, s. 94." This application comes about at the insistence of NsC Corp. As sole shareholder of the bankrupt find that the applicant qualifies as an interested person. The court has inherent jurisdiction over counsel as officers of the court and having such has the power to order counsel not to act for party because of conflict of interest. In support of the application, the applicant asks the court to consider the Supreme Court of Canada decision in MacDonald Estate v. Martin Rossmere Holdings (1970) Ltd. (1990 CanLII 32 (SCC), 121 NR 1) (December 20, 1990). In that case, counsel was removed from the record on the grounds that lawyer in the firm which represented party was at one time an articling clerk and lawyer in the firm representing the opposing party. The application for removal was made by the opposing party who was successful in doing so. The circumstances in that case, however, are different from those now before the court. In this case counsel has the consent of the petitioning creditor to act for the bankrupt estate. While the MacDonald Estate case is helpful in examining the conflict issue, this is not case involving the classic conflict issue. The question to be determined here is whether the estate can be properly represented by counsel, who also act for the petitioning creditor and have the consent of that party to act. Indeed, in this case, it is the wish of the petitioning creditor that its counsel also act for the Trustee. In my view, this case may be resolved by dealing with the courts supervisory power over the Trustee and Inspectors given by the provisions of the Bankruptcy Act. Section 119(2) of the Act previously referred to makes it clear that the court may review decisions of the Inspectors. Since the Trustee was appointed by the court, the Trustee by virtue of that circumstance alone is subject to supervision by the court. The second and third areas of conflict in which the Trustee must decide whether the estate should sue the Bank is most troublesome. Section 38 (1) of the Bankruptcy Act provides: "Where creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of bankrupt and the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk, ..." NsC Corp has requested the Trustee to bring such an action against the Bank. The Trustee has not refused to do so, but has discussed the matter with its counsel who are also counsel for the Bank. The Trustee, first of all, is not satisfied that NsC Corp is creditor of the bankrupt, thus having the capacity to make the request of the Trustee, and secondly, states it has insufficient information in order to determine whether the estate should bring an action against the Bank. In response to the applicant's request, the Trustee by letter to the applicant dated June 12, 1992 stated: "Please be advised that the Trustee has insufficient information to consider your request. Accordingly, we would request that you provide us with full particulars of your claim including copies of relevant documents in order that we may assess the claim and present the issue to the estate inspectors for their consideration." The applicant says he refuses to provide that information to the Trustee because to do so would be to provide it to counsel for the opposing party which, for obvious reasons, he does not wish to do. Mr. Landers says that he would pass on any information received from the applicant to the Inspectors along with recommendation that they obtain independent legal advice as to the merits of proceeding against the Bank. Mr. Landers says he would not pass on any information to the estate's counsel which he believes they should not have. do not, at all, doubt the integrity of Mr. Landers, however, to do as he says would not only present to him the difficult decision of having to decide what of that received information he should provide to the estate's counsel, but more importantly he would be in possession of information necessary for the proper administration of the estate which he could not provide to his own counsel. This conflict of interest is so blatant that it demands the removal of present counsel for the bankrupt estate. Although Mr. Landers says that he would seek independent legal advice on this issue the Trustee should not be in position where it could even appear to be influenced by the Bank in making that decision. If counsel for the Bank continue to act for the estate there would be an appearance of influence. Mr. Coles for the respondent Bank submits that the mere existence of claim by shareholder of creditor as against the petitioning creditor cannot per se be grounds for removing counsel. To so decide, he argues, would mean that any shareholder of bankrupt need only commence spurious law suit in order to cause financial hardship to the petitioning creditor or generally to disrupt bankruptcy proceedings. The court does not suggest the mere existence of such claim is per se grounds for removing counsel. Before ordering the removal of counsel all relevant circumstances must be considered by the court and after doing so here it is obvious to me that because of the many conflicting interests present counsel should not continue to act for the estate. Mr. Coles further submits that removal of counsel for the estate would add additional expense in briefing new counsel which may result in the Bank refusing to fund the bankruptcy. He says that would be to the detriment of all creditors of the estate. Although it is true that to date there have been long and protracted insolvency proceedings, am not satisfied that it would be prohibitively expensive to brief new counsel on what has transpired up to now. For instance, Ernst Young as Custodian Receiver under the CCAA were represented by another law firm, who, no doubt, have extensive knowledge of what has transpired in the past. As well, legal advice required by the estate presumably would be no more expensive whether it is obtained from new or present counsel. As to whether the Bank may refuse to fund the bankruptcy, say this. Any petitioning creditor who agrees to guarantee payment of the Trustee's fees and disbursements must do so with the understanding that the Trustee will in most cases require legal advice and that such advice must be independent because it is for the benefit of all the creditors of the estate. Mr. Coles asks the court to consider the decision of Preston, J. in Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (4 CBR (3d) 16) (B.C. Supreme Court). In that case, trust company, after several years in the process of liquidation, was being wound up under the provisions of the British Columbia Winding Up Act. The majority shareholder of the trust company applied for removal of counsel for the sole remaining creditor of the trust company. The grounds were that law firm who merged with the firm representing the creditor had once acted for the former liquidators of the trust company. The application was dismissed. In dismissing the application, the court pointed out that the complaint was not from the former client of counsel as was the case in MacDonald Estate v. Martin (supra). At pg. 30 of the CDIC case Preston, J. states: “The strict nature of the rule enunciated by the Supreme Court of Canada in MacDonald Estate v. Martin has application only when client applies to ensure the sanctity of confidential information communicated to his or her solicitor within solicitor‑and‑client relationship. If were to extend this rule to circumstances in which the application is made by someone who was never the client of the law firm sought to be discharged, would have to ignore the historical foundation of the rule." agree with that statement urged upon me by Mr. Coles but the court must in this case, as have already stated, consider its supervisory responsibility in relation to the bankrupt estate. The court in the CDIC case, in fact, assumed supervisory jurisdiction over the winding up process as well as over the estate solicitors. The court, in that case found, however, that there were no grounds for dismissing counsel since any information counsel could have obtained was not confidential. In the case now before the court, the question is not whether counsel for the estate is in possession of confidential information, but rather whether counsel can serve two masters whose interests may be in conflict. As well, the Trustee owes duty of fairness not only to all the creditors but also to the bankrupt. Mr. Coles has also referred the court to Royal Bank of Canada v. Vista Homes Ltd. et al (54 C.B.R. 124) (Oct. 11, 1984) B.C.S.C. In that case, creditors of company in receivership applied to the court to restrict the receiver in disposing of assets secured by debenture. The receiver had been appointed by the debenture holder under the terms of the debenture. The creditors complained that the receiver felt greater or special duty to the debenture holder. The court refused to restrict the receiver. The receiver, until shortly before the application, had relied for legal advice upon counsel for the debenture holder, but had obtained other counsel by the time the court application proceeded. It should be noted that in the Royal Bank case, the receiver was not appointed by the court. MacDonald, J. pointed out the distinction between the obligations of receiver appointed by the court as opposed to receiver appointed under the terms of debenture. At page 125 MacDonald, J. states: "A clear distinction must be drawn between the duties and obligations of receiver‑manager appointed under the terms of debenture and one appointed by the court. In the latter case, the authority of the. receiver‑manager is derived from the court and not the instrument. He becomes an officer of the court and acts in fiduciary capacity to all parties involved in the litigation: Ostrander v. Niagara Helicopters Ltd. (1973), 1973 CanLII 467 (ON SC), O.R. (2d) 281." In addressing the complaint of the creditors that the Trustee felt greater or special duty to debenture holders, MacDonald, J. in the Royal Bank case felt that their concerns had been addressed by three events, the last and what he considered most important was that the receiver had retained independent counsel. At page 127 MacDonald, J. points out the advantages of independent counsel where creditors are of the view that the Trustee is favouring the debenture holder. "... can formulate no practical way of forcing the receiver‑manager to listen to the advice of the applicants, nor could they suggest practical solution to me. On this question as well, the retainer of an independent solicitor to represent the receiver‑manager will be an important development. That solicitor is not embroiled in the controversies between the parties to this action. In light of the fiduciary obligations of the receiver‑manager to all parties, and with the more complete information which should not be available to the applicants, lines of communication can be established through that solicitor. He will be more mindful of the duties and obligations of the receiver‑manager to all parties than were the solicitors for the plaintiff." The last paragraph applies precisely to the situation in the case at bar where relations are strained between the applicant and all other parties including counsel. Unlike the Royal Bank case where the receiver was appointed by the debenture holder here the Trustee was appointed by the court and is subject to the courts supervision. Under all of the circumstances to which I have referred I am of the view that the Trustee should not be represented by counsel for the Bank and I would so order. Costs shall be in the cause. J. Halifax, Nova Scotia 1991 S.H. 80055 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: NsC CORPORATION LIMITED and ABN AMRO BANK CANADA Respondent DECISION OF TIDMAN, J.: (Orally)

This was an application for an order prohibiting the law firm that represented the respondent bank from acting as counsel for the trustee of the bankrupt company's estate. The applicant argued that there were significant areas where the interests of the bank conflicted with interests of the creditors. The trustee, who must act in the best interest of all creditors, should not be advised by the bank's counsel. Granting the order. The court, applying its supervisory powers, found the trustee should not be represented by the bank's counsel. On Appeal.

c_1992canlii4474.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Walker and Walker, 2003 NSSF002 Date: 20021210 Docket: SH 1201-55269 SFHD-008382 Registry: Halifax Between: Virginia TheresaWalker and Russell Edward Walker Respondent Judge: The Honourable Gordon A. Tidman Heard: December 10, 2002, in Halifax, Nova Scotia Written Decision: January 16, 2003 Counsel: Virginia T. Walker (The Applicant, in Person) Judith Ann Schoen, for the Respondent [1] This is an application to determine whether this court has jurisdiction to vary consent order of the Ontario Court (General Division). Background: [2] On June 13, 1994 the Ontario Court (General Division) granted judgment by consent which incorporated by reference an agreement made between the separated married couple of Virginia and Russell Walker. Part one of the Order incorporates the following term which was agreed to by the parties: That the defendant, Russell Edward Walker, shall pay to the plaintiff, Virginia Theresa Walker, on or before April 9th, 1994 to (sic) [the] sum of THIRTY SEVEN THOUSAND DOLLARS ($37,000.00) in full and final satisfaction of all claims with respect to property, division of property and an equalization payment. [3] At the time of the granting of the Order, the Walkers resided in Ontario, thus the Ontario court had jurisdiction to grant the Order. Mrs. Walker now resides in Nova Scotia where she has commenced against Mr. Walker an action for divorce. In the action Mrs. Walker also seeks a division of assets under the Matrimonial Property Act. The asset she seeks to have divided is the interest of Mr. Walker in federal government pension. [4] Since the Ontario court order purported to finalize a property division between the parties, Mrs. Walker, who claims a portion of Mr. Walker’s pension entitlement, seeks to set aside the agreement she made with Mr. Walker, which was incorporated into the Ontario court order. She does so on the grounds that she was not aware of her entitlement to share in her husband’s pension benefits at the time she entered into the agreement. Her claim is based on the equitable grounds of fraud, duress and unconscionability. [5] The issue the parties present to the court is whether this court has jurisdiction to hear Mrs. Walker’s claim to set aside the agreement. The real question embodied in that issue is whether this court has jurisdiction to set aside or vary consent order of the Ontario court. Deliberations: [6] First of all, as agreed by the parties, there is no question that Mrs. Walker is entitled to commence the divorce action in Nova Scotia. She is also in the same action entitled to seek division of assets under the provisions of the Nova Scotia Matrimonial Property Act. [7] Section 22(1) of the Nova Scotia Matrimonial Property Act provides: Conflict of laws 22 (1) The division of matrimonial assets and the ownership of movable property as between spouses, wherever situated, are governed by the law of the place where both spouses had their last common habitual residence or, where there is no such residence, by the law of the Province. [8] Therefore, although the Nova Scotia court has jurisdiction to hear the property division application, the court in determining the division must in doing so, apply the law of the last common habitual residence of the parties. Since it would appear that Mr. And Mrs. Walker had their last common habitual residence in Ontario, the division of matrimonial assets would be governed by Ontario law. [9] Section 29 of the Nova Scotia Matrimonial Property Act provides: Harsh or fraudulent contract or agreement 29 Upon an application by party to marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. [10] Under the provisions of s.29 of the Act Mrs. Walker is also entitled to seek to vary the terms of the separation agreement entered into between her and her husband upon the equitable grounds as set out in the Act. But does the Nova Scotia court have jurisdiction to vary the terms of separation agreement embodied within the terms of consent order? [11] Ms. Schoen, on behalf of Mr. Walker, submits that the Matrimonial Property Act while, by s.29, providing the court with jurisdiction to vary marriage contract or separation agreement on grounds of fraud, harshness or unconscionability, does not provide the court with jurisdiction to vary court order. Ms. Schoen submits further that there have been findings by the Family Division of this court that it has no jurisdiction to vary an order incorporating such an agreement. Ms. Schoen provides no citations or case names for her submission. [12] The Nova Scotia Court of Appeal in Bank of N.S. v. Golden Forest Holdings (1990), 1990 CanLII 2489 (NS CA), 98 N.S.R.(2d) 429, dealt with consent orders and approved the following passage from Citel v. Rothbart (1987), 19 C.P.C. (2d) 48 (Ont. S.C.): consent order is contract and must be treated as such. Such an order can only be set aside or varied by subsequent consent, or upon grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate contract. [13] Based on that passage, it seems to me that the court has jurisdiction to vary the consent order upon the grounds as alleged by Mrs. Walker, notwithstanding that s.29 of the Matrimonial Property Act does not specifically provide the court with jurisdiction. [14] Additionally, as set out by Mrs. Walker in her brief, the English Court of Chancery in Wilding v. Sanderson, [1897] Ch.C.A., had previously determined that that court had jurisdiction to vary consent order. The court in that case stated: ..a consent order based on and intended to carry out an agreement come to between the parties, ought to be treated as an agreement which could be properly set aside on any ground on which an agreement in the terms of the order could be set aside. [15] Section 41(a) of the Judicature Act R.S.N.S. 1989 c.240 provides: If plaintiff claims to be entitled to any equitable...right, or to relief upon any equitable ground against any deed, instrument or contract...the court shall give to the plaintiff the same relief as would have been given by the court of the Equity Judge or the High Court of Chancery. [16] It follows then that Mrs. Walker by virtue of the Judicature Act is entitled to the same relief the English Court of Chancery accorded to the plaintiff in Welding v. Sanderson (supra). It then seems clear, and so find, that this court has jurisdiction to vary consent order. [17] The only question remaining is whether this court has jurisdiction to vary an order of the Ontario court. [18] There is no question that this court has jurisdiction to hear Mrs. Walker’s claim for divorce and her claim for division of property under the Matrimonial Property Act. precondition to hearing her claim for division of property requires finding as to the validity of the contract embodied in the consent order. [19] In my view it follows that the court must also have jurisdiction to deal with the precondition. In reaching that conclusion, have also considered that the Divorce Act has provided for jurisdictional difficulties arising because of the increased mobility of the population in Canada and no doubt it was with that same concern in mind that resident of the province may commence an action for divorce in this province and incorporate therein claim under the Matrimonial Property Act regardless of where the applicant’s spouse resides, where the married parties were residing at the time separation agreement was entered into or where the parties had their last common habitual residence. In the latter case, however, as provided by s.22(1) of the Nova Scotia Matrimonial Property Act the law of Ontario would govern the division of the parties’ assets. In this case the asset is personal; i.e., federal pension entitlement. Decision On Issue: [20] Under the circumstances as set out, find that the Nova Scotia court has jurisdiction to vary the Consent Order of the Ontario court. Forum Conveniens Issue: [21] Ms. Schoen argues that even if this court finds that it has jurisdiction to deal with the matter, the Ontario court would also have jurisdiction to vary the terms of its own order. would agree with that submission. Ms. Schoen submits that since both courts have jurisdiction, under the circumstances here, the Ontario court is the more convenient forum for hearing the matter. Mrs. Walker disagrees and submits that this court should be determined as being the forum conveniens. [22] The court declines to make finding on this issue on the basis that no factual body of evidence has been submitted with the application upon which the court could make such finding. No evidence relating to the issue was adduced at the hearing and no affidavits were filed by the parties setting out the facts relied upon for such finding. Tidman, J. Halifax, Nova Scotia

The applicant commenced a divorce action against her husband incorporating a claim for a division of assets under the Matrimonial Property Act. The Ontario Court had previously granted a consent order incorporating an agreement between the parties purporting to divide matrimonial assets. The applicant sought to set aside the agreement on the grounds of unconscionability, harshness or fraud. The court has jurisdiction to vary the agreement on the grounds alleged notwithstanding that the Act does not specifically provide the court with jurisdiction .

d_2003nssf2.txt

R.D. LAING QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 355 Date: 2007 10 03 Docket: Q.B. 577/2004 Judicial Centre: Regina BETWEEN: HUSKY OIL OPERATIONS LIMITED and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF FINANCE FOR SASKATCHEWAN and SANJEL CORPORATION, TRICAN WELL SERVICE LTD., BJ SERVICES COMPANY CANADA THIRD PARTIES Counsel: H. George McKenzie, Q.C. Kurt Wintermute for the plaintiff Linda A. Christensen for the defendant Laurie A. Goldbach for the third parties FIAT BALL J. October 3, 2007 [1] The plaintiff applies for orders requiring the defendant and third parties to answer questions and respond to undertakings arising from the examinations for discovery in this action. The plaintiffs also apply for orders requiring the third parties to provide further and better disclosure of documents in their power, possession or control, including documents over which a claim for privilege is asserted, and to identify the basis for such claim. [2] The plaintiff carries on the business of oil and gas exploration and development in Saskatchewan and elsewhere in Canada. In the course of its business the plaintiff engages contractors to drill oil and gas wells. The plaintiff also engages cementing services contractors, including the third party contractors (herein “Sanjel”, “Trican” and “BJ Services” respectively), to cement casing in the well bores. This is done by mixing dry cement with additives and water into slurry which is then injected around the casing in the well bore using high pressure pumps. [3] The plaintiff claims that between January 1, 1996 and February 28, 2001 the third party contractors collected and remitted provincial sales tax (PST) to the defendant in respect of cement supplied and used by the third parties in the performance of their well cementing services. The plaintiff says that pursuant to the governing legislation it was not liable to pay the PST because the cement was supplied, used and installed into the real property of the plaintiff. The plaintiff seeks judgment against the defendant for the amount paid. [4] During the period for which the claim is made the governing legislation was The Education and Health Tax Act, R.S.S. 1978, c. E-3, as replaced by The Provincial Sales Tax Act, S.S. 2000, c. P-34.1. Subsections 5(1), (2) and (6) of the former The Education and Health Tax Act were identical to ss. 5(1), (2) and (6) of The Provincial Sales Tax Act (the “Act”) which provide: 5(1) Subject to subsections (9), (18), (20) and (21), every consumer of tangible personal property, purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the consumption of the property and such tax shall be computed at the rate of 5% of the value of the property to be consumed. (2) Subject to subsections (9), (18), (20) and (21), every user of tangible personal property purchased at retail sale in Saskatchewan shall pay to Her Majesty the Queen for the raising of general revenue, at the time of making his purchase, tax in respect of the use of the property, and such tax shall be computed at the rate of 5% of the value of the property to be used. (6) Subject to the regulations, where contractor or manufacturer enters into contract for the supply and installation of tangible personal property and during the carrying out of the contract consumes or uses tangible personal property produced, fabricated, processed, printed or imprinted by him the contractor or manufacturer shall be deemed to be consumer or user of the tangible personal property and to have purchased the tangible personal property at retail sale in the province at the time of consumption or use at value that includes the total cost of the tangible personal property together with the total cost of its production, fabrication, processing, printing or imprinting to the time of such consumption or use. [5] It is common ground that the cement supplied by the third party contractors constituted “tangible personal property” (TPP) for the purposes of s. of the Act. The plaintiffs plead that the third party contractors are deemed to be the consumer or user of the cement and that there was no sale of TPP by the third parties to the plaintiff for the purposes of the Act. [6] An amended statement of defence filed by the defendant pleads in part: 6. In reply to paragraphs 16-20 of the Claim, the Government of Saskatchewan says that the contracts entered into between the Plaintiff and the Contractors provided for the distinct sale of both services, and tangible personal property as that term is defined in The Provincial Sales Tax Act, and that this was the intention of the Plaintiff and the Contractors in entering into the contracts. The Government of Saskatchewan specifically pleads that the contracts between the Plaintiff and the Contractors consist of more than the document referred to in the Plaintiff’s Reply to the Government of Saskatchewan’s Demand for Particulars. The Government of Saskatchewan specifically pleads that the contracts referred to in the Plaintiff’s Reply to the Demand for Particulars are ambiguous, and that the true and full intention of the Plaintiff and the Contractors is not contained exclusively in the terms and conditions of those contracts. The Defendant specifically pleads that other documents outside the contracts referred to in the Reply to the Demand for Particulars form part of those contracts and set out additional terms and/or set out the intentions of the Plaintiff and the Contractors in entering into the contracts. And as such, the Contractors properly levied and collected tax from the Plaintiff on the sale of the tangible personal property pursuant to section of The Provincial Sales Tax Act. [7] By notice of third party claim the defendant pleads that if it is liable to refund the PST to the plaintiff that was collected and levied in error by the third parties, then the defendant is entitled to payment of PST from the third parties on the cement consumed in the performance of their contracts with the plaintiff. [8] The third parties deny all allegations made by the plaintiff and the defendant as third party claimant and specifically deny that the plaintiff is entitled to judgment in any amount against the defendant. THE EXAMINATIONS FOR DISCOVERY [9] Examinations for Discovery have been held by all parties. The plaintiff has conducted examinations for discovery of Robert Dobson, the proper officer of the defendant (the “Dobson Examination”); of John Edward Wilson, the proper officer of BJ Services (the “Wilson Examination”); of Michael Grant Kelly, the proper officer of Trican (the “Kelly Examination”); and of Andreas Manfred Wienecke, the proper officer of Sanjel, (the “Wienecke Examination”). During the course of the examinations for discovery counsel for the plaintiff asked certain questions which the proper officers of the third parties refused to answer. The plaintiff applies for orders requiring the third parties to provide complete answers to those questions. It has been agreed that if such answers are ordered they will be provided in written form with leave to the plaintiff to reconvene examinations for discovery as may be necessary. [10] As well, during the examinations for discovery the defendant and third parties gave undertakings to respond to certain questions. Most of those undertakings have been satisfied; however, the plaintiff says that there have been no responses to some of the undertakings and that number of the responses to other undertakings have been evasive or incomplete. The defendant and third parties say they are not obligated to provide any responses, or any further responses, to certain undertakings at this time or at all. Accordingly, the plaintiff applies for orders requiring them to provide full and complete responses to undertakings as discussed below. THE QUEEN’S BENCH RULES OF COURT [11] The following Queen’s Bench Rules are relevant to the plaintiff’s application for further and better disclosure of documents: 212(1) Parties to an action shall, within ten days after statement of defence has been filed, and without notice, serve on each opposite party statement as to the documents which are or have been in his possession or power relating to any matter in question in the action. (2) The statement mentioned in subrule (1) shall be made in Form 15 and shall be signed by the solicitor of the party making discovery or by the party himself if he sues or defends in person and the statement shall clearly state: (a) the documents in the possession, custody or control of such party which he is ready and willing to produce but not including the pleadings and proceedings in the action; (b) the documents which have been, but are not, at the time of making the statement, in the possession, custody or control of such party, the nature of such documents, and when they were last in his possession, custody or control, and where they are likely to be found; (c) the documents which are in the possession, custody or control of such party and which he objects to produce, the general nature of such documents (which shall be identified with reasonable certainty) and the specific grounds upon which he objects to produce the same. (3) If any such party has no documents to disclose or which should be disclosed, the said statement shall so state. 215(1) If any party: (a) neglects, refuses or objects to make discovery of documents as required by Rule 212; or (c) has filed and served statement pursuant to Rule 212 which statement is not satisfactory to party entitled to be served with same; or (c) shall in such statement so filed and served have made claim to privilege in respect of documents referred to therein then the party so desiring production may apply to the court for an order requiring the other party to make production of documents or for further or better production or for inspection or determining whether documents in respect of which privilege is claimed are in fact privileged and upon such application the court may make an order for production or inspection in such manner as may be just. (2) If upon such application any privilege is claimed for any document the court may inspect such document for the purpose of deciding as to the validity of the claim for privilege and to consider all relevant evidence which may be adduced tending to establish or destroy such claim for privilege. [12] Rule 212 imposes upon each of the parties to an action duty to disclose all relevant documents in manner that identifies them sufficiently to enable the receiving party to understand what is being disclosed and to prepare for trial. See: Fishbach and Moore Canada Ltd. v. Noranda Mines Ltd., Potash Division (1973), 1973 CanLII 928 (SK QB), 73 Sask. R. 308 (Sask. Q.B.); Saskatchewan Trustco (Liquidation) v. Coopers and Lybrand 2001 SKQB (CanLII); (2001), 204 Sask. R. 29 (Sask. Q.B.). [13] While the Rules of Court do not mandate specific language for identifying documents, the disclosing party must use format that will enable other parties to understand what the documents listed are about and how to identify them in the future. Where party claims that documents need not be disclosed because they are privileged, they must provide description of those documents sufficient to enable the party receiving the statement to assess and challenge the claim of privilege. [14] The following Queen’s Bench Rules are relevant to the plaintiff’s application for orders requiring the defendant and third parties to answer questions put and respond to undertakings given at the examinations for discovery: 222 Subject to Part Forty-Eight, any party to an action or issue may, without order, be orally examined for discovery before the trial touching the matters in issue in the action by any party adverse in interest, and may be compelled to attend and testify in the same manner, upon the same terms with respect to conduct money and otherwise, and subject to the same rules of examination as witness except as hereinafter provided. 231 Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any party entitled to do so or his counsel or solicitor or having undertaken at the examination to answer at later date any lawful question put to him fails to do so within reasonable time after the examination shall be deemed guilty of contempt of court and proceedings may be taken forthwith to commit him for contempt. He shall be liable if plaintiff to have his action dismissed, and if defendant to have his defence, if any, struck out and to be placed in the same position as if he had not defended. If the party so neglecting or refusing is an officer or servant of corporation the corporation itself shall be liable if plaintiff to have its action dismissed, and if defendant to have its defence, if any, struck out and to be placed in the same position as if it had not defended; and in either case the party examining may apply to the court to that effect and an order may be made accordingly. 232(1) If any one under examination objects to any question or questions put to him the examiner shall take down the question or questions so put and the objection of the witness to the question or questions. (2) The examiner shall file the questions and objections mentioned in subrule (1) with the local registrar in whose office the proceedings are pending. (3) The court shall decide the validity of any objections. [15] The “broad relevance test” applies to both disclosure of documents and questions put at examinations for discovery. See: Cominco Ltd. v. Phillips Cables Ltd. et al. (1987), 1987 CanLII 200 (SK CA), 54 Sask. R. 134 (Sask. C.A.) and Steier v. University Hospital (1998) 1988 CanLII 215 (SK CA), 67 Sask. R. 81 (Sask. C.A.). In Cominco Ltd., supra, Cameron J.A. in describing the “broad relevance test” under Rule 222 stated at paras. 12-14, as follows: [12] As has been said time and again, the purpose of the rule is twofold: (i) to allow the parties to ascertain if the plaintiff has good cause of action, or the defendant such defence as would render further litigation useless: Carney v. Carney (1913), 1913 CanLII 137 (SK CA), W.W.R. 849 (Sask. S.C.); and (ii) to enable the parties to secure from one another such admissions as will advance one’s own cause or weaken that of one’s opponent: Collins v. Belgian Dry Cleaners, Dryers and Furriers Limited (1951), W.W.R. (N.S.) 341 (Sask. C.A.). In that way, neither will be taken by surprise at trial, or be required, beyond adducing the admissions, to prove undisputed facts. [13] It has also been said repeatedly that discovery has wide scope that while relevance imposes some broad limits, issues of admissibility and weight have little if anything to do with the matter: Mount Hope v. Findlay, 1919 CanLII 231 (SK QB), [1919] W.W.R. 397 (Sask. K.B.); R. and Minister of Highways v. W.C. Wells Construction Ltd. (1970), 1969 CanLII 578 (SK QB), 72 W.W.R. (N.S.) 121 (Sask. Q.B.), Tucker, J.); Massey Ferguson Industries Ltd. et al. v. Government of Saskatchewan et al. [1975-77] Sask. D. (Practice-Examination for Discovery) (Q.B.) (Walker, L.M.), affirmed [1975-77] Sask. D. (Practice Examination for Discovery) (Q.B.) (Sirois, J.) [14] As for the scope, generally, of discovery, reference may usefully be had to Czuy v. Mitchell, 1976 ALTASCAD 161 (CanLII), [1976] W.W.R. 676; A.R. 434 (Alta. C.A.). Haddad, J.A., after an extensive review of the authorities, including Mount Hope v. Findlay, supra, and Harvie v. C.P.R., 1927 CanLII 173 (SK CA), [1928] W.W.R. 187 (Sask. C.A.), said 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 that same case Prowse, J.A., at p. 679, noted that on applications respecting the propriety of questions on discovery the court “. will not conduct minute examination of each question to determine its relevancy. In my view, court, in ruling on such applications, should not unduly restrict an examination by excluding questions broadly related to the issues when it appears that their relevance may well be resolved by other evidence not before the court on the application.” [16] In Garrett et al. v. Cameco Corp. et al. (2000), 2000 SKQB 329 (CanLII), 197 Sask. R. 115 (Sask. Q.B.), Laing J. (as he then was) succinctly summarized the purposes of the “broad relevance test” at para. [6] The examination for discovery rules have number of purposes to serve in our adversarial litigation procedure. These include; the obtaining of admissions, obtaining facts that will lead to lines of inquiry, knowing the case to be met, avoiding being taken by surprise at trial, and defining the issues in the law suit. APPLICATION FOR ORDERS AGAINST THE DEFENDANT [17] During the Dobson Examination the plaintiff asked Mr. Dobson for statement of the defendant’s position with respect to three matters: when the alleged sale of TPP from the third parties to the plaintiff took place; when title to the TPP passed from the third parties to the plaintiff; and, when the incidence of PST arose on those transactions. The plaintiff says that Mr. Dobson gave variety of inconsistent answers which, considered as whole, were evasive and unresponsive. [18] Shortly before this motion was heard the defendant filed an affidavit sworn by Mr. Dobson in which he stated that the sale of TPP “would have taken place when the TPP was delivered to the well site” and further that title to the TPP “would have transferred at the well site prior to the TPP being mixed and installed into the well bore”. The plaintiff accepts those answers and seeks no further order with respect to this aspect of its application. [19] However, the plaintiff does seek orders requiring the defendant to fully respond to two undertakings given during the Dobson Examination. One was listed as undertaking #10; the other as undertaking #11. [20] Undertaking #10 and the defendant’s response stated: Undertakings #10 Provide specific references in the documents referred to in the contracts relied upon in support of the assertion that there is separate contract for the distinct sale of tangible personal property. Response: The Defendant was not party to the contracts between the Plaintiff and the Third Parties which are at issue in this Action. The Defendant has no direct or personal knowledge of those transactions. The Plaintiff in this undertaking is essentially calling for the Defendant’s legal arguments on the interpretation of the contacts. The Defendant has not yet finalized its legal arguments as to the way in which the contracts should be interpreted as the discovery process is not yet complete. The Defendant has specifically pled that the contracts provide for the sale of cementing materials, and the Defendant maintains this position. The Defendant will provide its legal arguments to the Plaintiff and the Third Parties on its interpretation of the contacts both at the pre-trial and the trial. [21] Undertaking #11 and the defendant’s response stated: Undertakings #11 Provide the references to the provisions in the contract that are considered to be ambiguous in terms of the question of whether or not there is sale of taxable personal property. Response: This undertaking is essentially calling for the Defendant’s legal argument on ambiguity in the contracts. The Defendant has not yet finalized its legal arguments on ambiguity as the discovery process is not yet complete. Ambiguity was specifically pled in the Amended Statement of Defence in response to the Plaintiff’s claim that the Defendant’s original Defence was not broad enough to allow discovery on the intention of the parties in entering into the contracts. The Defendant did not think the amendment was necessary but made the amendment anyway to make it abundantly clear that the intention of the parties in entering into the transactions was an issue open for exploration at discovery. The Defendant will provide its legal arguments on ambiguity to the Plaintiff and the Third Parties both at the pre-trial and trial. [22] During the Dobson Examination counsel for the defendant proposed to disclose the defendant’s positions with respect to undertakings #10 and #11 prior to the pre-trial conference. Although counsel for the plaintiff did not object to the proposal at that time, orders are requested requiring the defendant to respond to both undertakings now so that, if necessary, Mr. Dobson can be examined further on the responses. [23] The defendant replies that it is not obligated to provide responses to these undertakings prior to the completion of examinations for discovery of all parties; that it is premature to require responses to be provided at this time; and that counsel for the plaintiff agreed to accept replies after the examinations for discovery were concluded. The defendant proposes providing responses to the two undertakings “within 90 days of the conclusion of the discovery process”. [24] party to litigation cannot decline to answer questions on an examination for discovery that are intended to elicit the facts on which that party has based its pleading. party is required to divulge the facts that it has now or admit that it has none if such is the case. That principle is in keeping with the “broad relevance test” which requires party to answer all questions asked on discovery that are relevant to the matters in issue. [25] Both of the undertakings given by the defendant were directly related to positions taken in the statement of defence. The defendant is obligated to provide its responses to the undertakings before the examination for discovery of its proper officer is concluded so that, if necessary, he can be further examined on the responses. If the defendant revises the position set forth in its initial response based on after acquired information, it may supplement its initial response. [26] Accordingly, the defendant shall provide the plaintiff with responses to undertakings #10 and #11 within 30 days. If the position of the defendant as set forth in those responses changes as result of after acquired information, the defendant shall so inform the plaintiff by way of supplemental responses within 90 days following the completion of the defendant’s examinations for discovery of the third parties. If it is necessary for the plaintiff to further examine for discovery on the defendant’s responses or supplemental responses, the defendant’s proper officer shall attend such examination at the defendant’s cost on date and at place to be agreed upon by the parties or as determined by the court. There will be no further order as to costs. APPLICATION FOR ORDERS AGAINST THE THIRD PARTIES [27] Two matters apply to all of the third parties. One relates to the Petroleum Services Association of Canada (“PSAC”) which is an organization of contractors engaged in the service sector of the oil and gas industry. The other relates to third party application for Federal Manufacturing and Processing tax credits (“M&P tax credits”). [28] The third parties are members of PSAC and participate in its affairs. Discussions have taken place between and among PSAC and its members, including representatives of the third parties, with respect to the liability of cementing services contractors and their customers to pay PST to the defendant. [29] Discussions and correspondence have also taken place between PSAC and the defendant regarding the PST issue. Two letters written by PSAC to the defendant regarding the PST issue are of particular interest to the plaintiff. One was dated October 17, 2000; the other September 27, 2001. [30] In the letter dated October 17, 2000, PSAC enclosed Commentary in response to draft PST information bulletin prepared by the defendant. In that Commentary, PSAC questioned why cementing services contractors would not be exempt from paying PST on the cost of materials used in providing their services, stating in part: Why are contract services such as cementing not included in this list for exempt services? The services, including drilling and perforating, are real property contracts where the contractor uses or consumes materials in providing these services. [31] In the letter to the defendant dated September 27, 2001, PSAC stated: With regard to the issue of Saskatchewan PST on well cementing and servicing contracts, would like to reply to your request for comments on the commercial nature of these contracts, as referred to in your letter to the Petroleum Services Association of Canada (PSAC) of July 20, 2001. The well servicing industry typically characterizes these commercial relationships in manner consistent with that articulated in the following federal court cases: Halliburton Services Ltd. v. R., (1985) C.T.C. 52, 85 D.T.C., 5336 (Fed. T.D.) Nowsco Well Service Ltd. v. Canada (sub nom. R. v. Nowsco Well Service Ltd.) 90 D.T.C. 6312, (1990) C.T.C. 416 In this regard, our members have indicated that they will continue to bill these contracts as separate sale of materials and separate sale of labour services for the installation of the materials on real property. We will support any legislative framework, which clarifies these relationships for Saskatchewan PST in manner consistent with the findings of the above-mentioned court cases. [32] The third parties have disclosed PSAC documents in their possession relating to the Saskatchewan PST issue, but have not disclosed PSAC documents in their power or control. Although they have acknowledged that they intend to claim litigation privilege over certain PSAC documents, they have not identified the documents they object to disclose. Accordingly, the plaintiff applies for orders requiring each of the third parties to provide detailed list of documents in their control, including PSAC documents relating to the tax issue in this action, and to identify documents which they object to produce by reason of claim of privilege. [33] The plaintiff says that the third party contractors pay reduced rate of income tax on manufacturing and processing profits. The plaintiff refers to Canada Revenue Agency Interpretation Bulletin IT-145R, dated January 6, 2004 (“Canadian Manufacturing and Processing Profits Reduced Rate of Corporate Tax”) which states that the reduced rate of corporate income tax applies only to income from manufacturing or processing activities of goods for sale and not to income arising from the supply of goods through contracts for work and materials. [34] The plaintiff contends that the third parties claim M&P tax credits in respect of income earned on the processing of cement and materials at the well site. The plaintiffs submit that the third party claims to M&P tax credits are incompatible with their claim that cement is sold to the plaintiff upon its delivery to the well site and before any manufacturing or processing occurs. The plaintiff seeks additional information regarding third party claims to M&P tax credits, as more fully set out below. [35] The plaintiff applies for variety of other orders against the third parties. Some of the proposed orders would apply to all three of the third parties; others to one third party. The specific orders applied for in relation to each of the third parties will be addressed one at time. 1. Orders Applied For Against BJ Services: [36] The plaintiff applies for orders requiring BJ Services: a) To answer questions asked during the Wilson Examination about PSAC documentation related to the PST issue; and b) To provide detailed list of documents in its possession or power which it objects to produce including, in particular, documents “between or among” members of PSAC relating to the PST issue over which claim of privilege is asserted, and the basis for such privilege with respect to each document. [37] BJ Services acknowledges that it is member of PSAC; that its representatives have participated in PSAC affairs by way of membership on the PSAC board and committees; and that PSAC has engaged in correspondence and meetings with the defendant concerning the PST issue. [38] BJ Services acknowledged during the Wilson Examination that it is aware of documents in the possession of PSAC relating to the PST issue. Counsel for BJ Services was then asked to provide an undertaking “to, on the best efforts basis, obtain from PSAC copies of minutes of any meetings, correspondence, memoranda, e-mails, copies of e-mails and similar documentation which are in the possession of PSAC relating to the Saskatchewan sales tax issue”. BJ Services refused to give that undertaking. [39] The plaintiff submits that as PSAC member BJ Services will have control over copies of all PSAC documents relating to the PST issue and as such must disclose and produce those documents. The plaintiff says that the documents may disclose the reasons why the third parties have taken the positions they have regarding the nature of their cementing services contracts with the plaintiff and other customers. [40] Counsel for BJ Services responds that “PSAC is not party to the action”; that “PSAC does not make commitments on behalf of BJ Services”; that “PSAC is not mentioned in the pleadings”; and that the plaintiff “has not established how it is that any of PSAC’s documents are specifically related to the practices of [BJ Services] with regard to provincial sales tax in Saskatchewan or their business relationship with Husky”. [41] Rule 212(1) requires disclosure of documents in the “possession” or “power” of the litigant. Documents that are not in the possession of the litigant must be disclosed if they are or were within litigants power. If the litigant has sufficient control over the document to obtain it from the party who has possession, then the document is within the power of the litigant. [42] The material filed on this motion satisfies me that PSAC documents relating to the PST issue are at least broadly relevant to the issues and that BJ Services likely has the power to obtain and produce them. The fact that BJ Services may intend to claim a litigation privilege over the documents, or that PSAC may not produce them, does not relieve BJ Services of the obligation to disclose their existence. (See Spencer v. Canada (Attorney General) 2000 SKCA 96 (CanLII); [2001] W.W.R. 476 (Sask. C.A.) at paragraph 18; R. v. Popowich (1996), 1996 CanLII 5034 (SK CA), 144 Sask. R. 166 (Sask. C.A.) at paragraph 17). [43] Accordingly, BJ Services must exert its best efforts to disclose and produce all relevant PSAC documents. If BJ Services is unable to produce copies of relevant PSAC documents after exerting its best efforts to obtain them, it shall inform counsel for the plaintiff, who may then take alternate steps to access them. [44] If BJ Services objects to producing any relevant PSAC documents within its control, it must identify the general nature of such documents and the specific grounds of the objection in accordance with the requirements of Queen’s Bench Rule 212(2)(c). The identification of documents in this case must include, the name of the sender, the date, and the names of all recipients. The date of each document must be provided to permit an assessment of whether it was prepared in contemplation of litigation, while the names of recipients will be important in determining whether litigation privilege has been waived. [45] In summary, BJ Services shall answer the questions asked during the Wilson Examination about PSAC documentation related to the PST issues. BJ Services shall also provide further and better disclosure of documents within 30 days by providing a detailed list of documents referred to in the second part of the first schedule of its statement as to documents. The list shall include, in particular, list of documents in the possession of PSAC or its members that are in the control of BJ Services and relate to the PST issue. If a claim for privilege is asserted over such documents, BJ Services shall identify the basis of such claim, the date of the documents, the name of the sender and the names of the recipients. c) To answer questions asked during the Wilson Examination which dealt with M&P tax credits claimed by BJ Services; [46] Mr. Dobson stated during the Dobson Examination that representatives of the third parties informed him they had intentionally structured their transactions as separate sale of manufactured goods in order to obtain M&P tax credits. This means that they have likely reported income derived from the sale of cement as manufacturing and processing income. The plaintiff submits that third party contractor claims to the M&P tax credits were inconsistent with, and affect the credibility of, their claims in this litigation that sale of TPP to the plaintiff occurred at the well site separately from the provision of services. [47] have earlier referred to two letters written by PSAC to the defendant dated October 17, 2000 and September 27, 2001, respectively. In the letter dated September 27, 2001, reproduced at paragraph 31 above, PSAC stated that its members characterize their commercial relationships “in manner consistent with that articulated in Halliburton Services Ltd. v. R., (1985) C.T.C. 52, 85 D.T.C. 5336 (Fed. T.D.) and Nowsco Well Service Ltd. v. Canada (sum nom. R. v. Nowsco Well Service Ltd.) 90 D.T.C. 6312, (1990) C.T.C. 416". [48] In Halliburton, the Federal Court, Trial Division held that profits received by an oilfield contractor from the processing of specialized products could be treated as manufacturing and processing income entitled to M&P tax credits. In Nowsco the Federal Court of Appeal held that an oilfield contractor providing on-site cementing and well stimulation services did not enter into pure service contracts, but processed goods to the customer’s specification which were then utilized in performing specialized services for those customers. The court stated that the contractor was, therefore, processing goods for sale and that it was inappropriate to make distinction between contracts for the sale of goods and for the sale of services. As such, the contractor was entitled to claim M&P tax credits. [49] During the Wilson Examination, counsel for the plaintiff asked the following questions relating to the period 1996 to 2001, being the period for which the plaintiff claims entitlement to refund of PST: 1750 Q. MR. McKENZIE: So my first question is, does BJ claim the federal Manufacturing Processing Tax Credit in respect of its oil well or well cementing activities? 1751 Q. MR. McKENZIE: If it does claim that credit, is BJ’s claim based on the fact that the slurry, which it makes at the wellhead, is good which has been manufactured or processed in Canada for sale? 1752 Q. MR. McKENZIE: If that is not the basis upon which BJ is making its claim with respect to the Manufacturing Processing Tax Credit, what is the good in respect of which BJ is claiming the Manufacturing Processing Tax Credit? 1753 Q. MR. McKENZIE: Does BJ include in the numerator of the equation that’s provided for in calculating the entitlement to the Federal Manufacturing Processing Tax Credit, does BJ include the labour and equipment at the well site at the well head in the calculation of its manufacturing and processing labour and manufacturing and processing capital? 1754 Q. MR. McKENZIE: In claiming the Federal Manufacturing Processing Tax Credit, does BJ take the position that the materials delivered to the well site to enable it to perform the cementing of the well belong to BJ right up until the point they are installed in the well? [50] Counsel for BJ Services objected to each of the above questions and Mr. Wilson declined to answer them. In response to this motion, counsel for BJ Services argues that the M&P tax credit relates to tax on income, while PST is tax on property. Claims for M&P tax credits are “not material to the pleadings” and “not relevant to determining liability for PST”. [51] If the third parties have characterized what occurs under their contracts with the plaintiff in one manner for the purposes of claiming M&P tax credits and in different manner for the purpose of avoiding liability for PST, it may be broadly relevant to this litigation. Specifically, if the third parties claim and receive M&P tax credits on the basis that mixing, blending and pumping of the cement slurry at the well site constitutes manufacturing or processing of goods for sale in Canada, the plaintiff may argue that the position taken for M&P tax credit purposes is inconsistent with the contention that the cement (that is, the TPP for PST purposes) is sold separately to the plaintiff at the well site before the slurry is produced. Similarly, if the third parties have included the cost of the cement in their claims for the federal M&P tax credit, it may be broadly relevant to the interpretation of provisions in the cementing services contracts which the defendant and the third parties plead are ambiguous. [52] It will be for the trial judge to determine how, if at all, the evidence is significant. For these reasons BJ Services must answer the questions 1750 to 1754 inclusive asked during the Wilson Examination with respect to M&P tax credits. d) To provide response to undertaking #30 given during the Wilson Examination, which was to advise if BJ Services “takes any issue with” the statement in the second paragraph of the letter dated September 27, 2001 written by PSAC to the defendant. [53] Although BJ Services gave an undertaking during the Wilson Examination to provide the plaintiff with response to undertaking #30, the response provided was: Answer: BJ Services maintains its objection to any questions regarding the Federal Manufacturing and Processing credits as being irrelevant to this action. [54] have decided that the manner in which BJ Services characterized its cementing services contracts for the purpose of claiming M&P tax credits may be broadly relevant to its characterization of the contracts for the purpose of the plaintiff’s liability to pay PST. It follows that BJ Services must provide full and complete answer to undertaking #30 given during the Wilson Examination. e) To provide answers to questions asked during the Wilson Examination with respect to BJ Services’ general denial of the plaintiff’s entitlement to judgment against the defendant; and f) To provide response to undertaking #32 given during the Wilson Examination, which was to “provide summary statement of the basis of the defence”. [55] In its statement of defence to the third party claim, BJ Services generally denied that the plaintiff is entitled to judgment against the defendant. During the course of the Wilson Examination, BJ Services undertook to provide summary statement of the basis of that defence. However, the response to undertaking #32 stated only: Answer: BJ Services will defer to its legal counsel to provide response to this question in due course. [56] Counsel for BJ Services objects to providing response to the undertaking on the basis that it is legal rather than factual question. do not agree. The plaintiff is entitled to know the case it must meet from the third parties. party may raise any point of law in his or her pleading (Queen’s Bench Rule 141) and is required to plead any statute or regulation on which his or her case is founded (Queen’s Bench Rule 142). If the pleadings do not state the facts and legal principles being relied upon by the third parties, then the plaintiff may clarify this on examination for discovery. The fact that the plaintiff did not demand particulars of the third parties’ pleading does not preclude it from exploring the issues during the examinations for discovery. [57] BJ Services is required to answer the questions asked during the Wilson Examination with respect to the general denial of the plaintiff’s claim against the defendant, and to provide summary statement of the basis of the defence in response to undertaking #32. g) To provide answers to questions relating to documentation used by BJ Services in British Columbia. [58] During the course of the Wilson Examination counsel for the plaintiff asked the following questions: Q. 1779: So now let me ask you. Is the documentation used in respect of B.C. Cementing Services the same as the documentation that is used in Saskatchewan? Q. 1780: And am going to ask the next question does BJ charge its customers B.C. sales tax in respect of its B.C. cementing contracts? Q. 1781: If BJ does not charge B.C. sales tax, why not? Q. 1782: Did BJ ever charge B.C. sales tax to its customers in respect of its cementing business in British Columbia? [59] Mr. Wilson declined to answer the above questions on the basis that BJ Services’ practices in other jurisdictions are not broadly relevant to the question of its liability to pay PST in Saskatchewan. agree. Apart from the bare contention that the questions are broadly relevant and should be answered, the plaintiff does not explain how answers to these collateral questions might potentially assist in or relate to the determination of liability for payment of PST in this province. find that BJ Services is not obligated to answer the above questions. h) To provide full and complete replies to undertakings #8, #9, #25 and #26 given during the Wilson Examination. [60] Following the hearing of this motion, counsel for BJ Services informed the court that responses to undertakings #8, #9 and #25 have now been provided to the plaintiff. Accordingly, no further order will be required. [61] BJ Services has not yet responded to undertaking #26, which was: Undertaking #26 Advise if BJ agrees with the statement or takes issue with the statement and advise why: “It has become normal practise in the oil and gas industry for contractors providing reservoir stimulation and cementing services to itemize their charges to the customer and collect tax on the material portion of their service contracts”. “This appears to be [sic] with the other real property contracts where contractor supplies and installs materials for the improvement to real property. The cementing service and well stimulation service contractors are the user and consumer of the materials used or consumed in his performance of the real property contract. These contractors want to be treated the same as any other contractor.” This statement was extracted from the commentary enclosed in PSAC’s letter to the defendant dated October 17, 2001, which has been referred to at paragraph 30 above. BJ Services provided its unqualified undertaking to respond to this undertaking during the Wilson Examination held mid-March 2007, but it has not yet done so. It will be required to provide its written response to undertaking #26 within 30 days. i) Provide complete reply to the following undertaking #23 given during the Wilson Examination, including an income statement for BJ Services Company Canada with the numbers redacted; Undertaking #23 Produce copy of the chart of accounts with the numbers redacted; provide an income statement with the numbers redacted. BJ Services initial response stated: Answer: copy of the Chart of Accounts with the numbers redacted is attached. BJ Services is still considering its response with respect to the request for an income statement. supplementary response stated: Supplementary Answer: The first portion of this question was previously answered. The Chart of Accounts previously provided is the most detailed information available on BJ Services system. That is, BJ Services only reports its gross revenue. Unlike public company, it does not provide income statements Its accounting system can provide various reports based on the input parameters. The Chart of Accounts is, however, the most detailed of those inputs. Thus, all other reports would, necessarily, provide less detailed information. In any event, since Quantum is not an issue at this stage in the proceedings, an income statement is not relevant to the issues in dispute. [62] In its response to subsequent undertaking (#24), BJ Services informed the plaintiff that it in fact separates revenue derived from the sale of cement from revenue derived from the sale of services. Nevertheless, it objects to providing copy of an income statement with the numbers redacted, arguing that it is “unnecessary, inappropriate and redundant”. do not agree. The purpose of the plaintiff’s inquiry is to ascertain if the income statements are formatted in manner that supports the position taken by BJ Services. The plaintiff is not obliged to accept whatever it is told by an adverse party; it is entitled to be shown. [63] BJ Services will be required to fully comply with undertaking #23 by providing an income statement with the numbers redacted. If there is dispute as to the year or years for which the statement is to be provided, either party may apply for further directions. [64] The application for orders requiring BJ Services to answer questions relating to documentation used in British Columbia as set forth in paragraph 58 above is dismissed. All other orders applied for by the plaintiff in relation to BJ Services, including orders for further and better disclosure of documents, are granted on the terms set out above. In addition, to the extent BJ Services is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Wilson Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision the proper officer shall attend for examination at the expense of BJ Services at time and location to be agreed upon or determined by the court. 2. Orders Applied For Against Trican Well Service Ltd. [65] The plaintiff applies for orders requiring Trican: a) To disclose non-redacted version of two documents marked as Exhibits D-62 and D-73 respectively during the Kelly Examination. [66] portion of the document marked as Exhibit D-62 (Trican disclosure document number 17) is Trican cement project costing document dated 98/11/24 which relates to Trican’s bid for providing cementing services to the plaintiff. portion of the document marked as Exhibit D-73 (Trican disclosure document number 21) consists of letter to the plaintiff from Trican dated December 4, 1998, enclosing cost estimates for Trican’s “cement service charge”. Although Trican did not apply for an order authorizing disclosure of these bid documents in redacted form, they were disclosed to the plaintiff with the numbers redacted. [67] During the Kelly Examination counsel for the plaintiff inquired into whether the un-redacted documents contained numbers for “cost of sales” and “product”. He attempted to determine if Trican separated set-up costs and charges for cement from the overall cost of the job. He also asked how Trican went through the process of costing job and then making its bid, because the disclosed bid documents did not itemize the costs. [68] Subsequent to the Kelly Examination, counsel for the plaintiff asked for production of non-redacted copy of the documents. Trican’s counsel responded: “. in light of the confidential nature of this business information, the fact that actual dollar values are not in dispute at this stage in the law suit and the fact that you had full opportunity to explore the significance (if any) of this document with Mr. Kelly, we reject your request for the non-redacted version of the document”. [69] The plaintiff submits that non-redacted copies of the documents will enable it to demonstrate whether Trican included charge for services in the charge for materials. In particular, counsel submits that non-redacted copies will demonstrate that Trican included service charges in its charges to the plaintiff for cementing materials charge inconsistent with the defendants position that there is separate sale of materials and separate sale of services. [70] am persuaded that partially non-redacted copies of the documents would be both relevant to the issues raised by the litigation and relevant to understanding the facts. Trican offers no support for its assertion that providing non-redacted copies would disclose sensitive business information. The services were provided in 1998 and the costs are likely to have little relevance to what Trican now charges for cementing services. As well, Trican may disclose the relevant portions of the document (namely, those portions disclosing whether Trican included charge for services in its charges for materials) while leaving the remaining portions redacted. Again, the significance of the disclosed facts will be for the trial judge. [71] For these reasons, Trican shall, within 30 days, disclose to the plaintiff copies of Kelly Examination Exhibits D-62 (Trican disclosure document number 17) and D-73 (Trican disclosure document number 21) which include information relevant to the question of whether Trican included charge for services in its charges for materials levied in providing cementing services to Husky in 1998. If the parties cannot agree on the extent to which additional information must be disclosed, either may apply for further directions. b) To reply to undertaking #21 given during the Kelly Examination by advising the plaintiff of the basis on which Trican denies Husky’s entitlement to the refund of PST claimed in its statement of claim. [72] Having already determined that BJ Services is obligated to outline the basis of its general denial to the plaintiff’s claim, it follows that Trican has the same obligation. Trican shall provide summary of the basis for its general denial on the same terms as those applicable to BJ Services. c) To answer questions asked during the Kelly Examination relating to Trican’s claims for M&P tax credits. [73] During the Kelly Examination counsel for the plaintiff asked the following questions: Q. 548: So in fact Trican does claim the Manufacturing Processing Income Tax Credit in filing its income tax returns? Q. 549: Was it Trican’s position in filing its income tax returns that the mixing, blending, pressurizing and pumping of the cement and additives into slurry, which is installed in the well bore outside the casing to cement the casing, constituted the manufacturing and processing of goods for sale for the purposes of the Manufacturing Processing income tax credit? Q. 550: Did Trican include in the numerator of the equation used in the calculation of the manufacturing and processing revenue for income the labour and the cost of equipment employed at the well site in performing the well cementing services? [74] For the reasons set forth at paragraphs 46 to 51 above, Trican shall provide written answers to questions 548, 549, 550 and 551 asked during the Kelly Examination. d) To answer whether Trican agrees with the statement contained in the second paragraph of the PSAC letter to the defendant dated September 27, 2001. [75] The letter in question is set out in paragraph 31 above and for the reasons already provided in paragraphs 52 to 54, Trican shall provide written response to the question. [76] The orders applied for by the plaintiff in relation to Trican are granted on the terms set out above. In addition, to the extent Trican is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Kelly Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision, the proper officer shall attend for examination at the expense of Trican at time and location to be agreed upon or determined by the court. 3. Orders Applied For Against Sanjel Corporation [77] The plaintiff applies for orders requiring the third party, Sanjel: a) To answer questions asked during the Wienecke Examination related to claims made by Sanjel for federal M&P tax credits. [78] The following questions were asked with respect to M&P tax credits: Q. 636 Are you able to describe to me generally how it [federal manufacturing and processing tax credits] works? Q. 637 Would you agree with me that one of the key elements to entitlement to the Manufacturing and Processing Tax Credit is the manufacturing and processing of goods for sale, and that the Manufacturing and Processing of goods alone is not good enough? The goods must be for sale. Do you agree with that? Q. 638 In filing its Federal and Provincial Income Tax Returns for the period 1996 2001, did Sanjel take the position that the mixing, blending, pressurizing, and pumping of the cement and additives into slurry, which is installed in the well bore outside the casing to cement the casing in place, constituted the manufacturing and processing goods for sale for the purposes of the Manufacturing and Processing Income Tax Credit? Q. 639 Did Sanjel include in the numerator of the equation used in calculating the manufacturing and processing revenue for Federal and Provincial income tax purposes the labour and cost of equipment employed at the well site in performing the well cementing services? [79] For the reasons given with respect to BJ Services at paragraphs 46 to 51 above, Sanjel shall provide written answers to the above questions. b) To answer whether or not Sanjel Corporation agrees with the statements contained in the letter written by PSAC to Mr. Dobson dated September 27, 2001. [80] For the reasons given with respect to BJ Services at paragraphs 52 to 54 above, Sanjel shall provide written answer to the question. c) To provide response to the following undertaking #41 given during the Wienecke Examination: Undertaking #41 Advise if there are additional factors that are pleaded relative to the following question: “On what facts is Sanjel relying in asserting that Husky is not entitled to the refund of PST paid in respect of the materials used in cementing services”. [81] The essence of this question is to secure summary statement of Sanjel’s general denial of the plaintiff’s claim to refund of PST paid to the defendant. For the reasons already provided with respect to essentially the same undertakings given by both BJ Services and Trican, there will be an order requiring Sanjel to provide substantive response to this undertaking. [82] The orders applied for by the plaintiff in relation to Sanjel are granted. In addition, Sanjel is required to provide the plaintiff with complete answers to questions asked or complete responses to undertakings given during the Wienecke Examination, each answer and each response shall be in written form and provided to the plaintiff within 30 days. If further examination for discovery is necessary as result of compliance with this decision, the proper officer shall attend for examination at the expense of Sanjel at time and location to be agreed upon or determined by the court. [83] The costs of this application against the defendant will be in the cause. The plaintiff shall be entitled to receive one set of taxable costs only from the third parties, to be divided equally between the third parties and paid by them in any event of the cause.

FIAT: The plaintiff applies for orders requiring the defendant and third parties to answer questions and respond to undertakings arising from the examinations for discovery in this action pursuant to Rules 222, 231 and 232 of the Queen's Bench Rules and an order requiring the third parties to provide further and better disclosure of documents in their power pursuant to Rules 212 and 215. HELD: 1) A party to litigation cannot decline to answer questions on an examination for discovery that are intended to elicit the facts on which that party has based its pleading. A party is required to divulge the facts that it has now or admit that it has none if such is the case. The defendant is obligated to provide its responses to the undertakings before the examination for discovery of its proper officer is concluded so that he can be further examined on the responses. If the position of the defendant as set forth in those responses changes as a result of after acquired information, the defendant shall so inform the plaintiff by way of supplemental responses within 90 days following the completion of the defendant's examinations for discovery of the third parties. If it is necessary for the plaintiff to further examine for discovery on the defendant's responses or supplemental responses, the defendant's proper officer shall attend such examination for discovery. 2) The material filed satisfies the Court that PSAC documents relating to the PST issue are at least broadly relevant to the issues and that BJ Services likely has the power to obtain and produce them. The fact that BJ Services may intend to claim a litigation privilege over the documents, or that PSAC may not produce them, does not relieve BJ Services of the obligation to disclose their existence. BJ Services shall provide further and better disclosure of documents by providing a detailed list of documents referred to in the second part of the second schedule of its statement as to documents. If a claim for privilege is asserted over such documents, BJ Services shall identify the basis of such claim, the date of the documents, the name of the sender and the names of the recipients.

c_2007skqb355.txt

Court of Appeal for Saskatchewan Docket: CACR2965 Citation: Hayter, 2018 SKCA 65 Date: 2018-08-23 Between: Larry Hayter And Her Majesty the Queen Before: Caldwell, Whitmore and Schwann JJ.A. Disposition: Appeal allowed; new trial ordered Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Schwann On Appeal From: Crim 12 of 2016, Melfort Appeal Heard: June 12, 2018 Counsel: Jeremy A. Caissie for the Appellant Erin L. Bartsch for the Respondent Caldwell J.A. I. introduction [1] After trial, judge convicted Larry Hayter of one count of fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code. The judge found Mr. Hayter had defrauded the Saskatchewan Workers’ Compensation Board [WCB] of $137,377.76. But, in the course of the trial, Mr. Hayter’s counsel had justifiably withdrawn, leaving him to conduct his own defence. The issues in this appeal are whether the judge’s refusal to grant an adjournment was based on reasons that are not well-founded in law and whether the decision affected Mr. Hayter’s right to make full answer and defence or his right to fair trial. [2] In the circumstances of this case, I would allow the appeal and order a new trial. [3] Mr. Hayter also appeals against his sentence but, given my conclusion on the conviction appeal, have not addressed the sentence appeal in these reasons. [4] The facts are procedural and may be explained briefly. Mr. Hayter requested adjournments before, during and after his trial. At the commencement of trial, Mr. Hayter’s counsel requested an adjournment because Mr. Hayter’s wife had been hospitalised and could not attend court. His counsel said Mr. Hayter’s “mind is not here in the courtroom” and that it “is very stressful for him with his spouse being in the hospital.” Mr. Hayter was prepared to waive delay if the judge granted an adjournment. There was no mention of Mr. Hayter’s wife testifying or as being material witness. The Crown opposed this first adjournment request because the charge had been laid more than three years previous, the preliminary hearing had been rescheduled four times, and it had scheduled ten out-of-town witnesses to testify. [5] The judge stepped down for ten minutes to consider the request. When he returned, he advised that the next available trial date in the Melfort judicial centre was almost year away. Mr. Hayter’s counsel suggested another judicial centre and the judge checked to see if an earlier date could be secured elsewhere. No other judicial centre could offer an earlier trial date. While expressing sympathy for Mr. Hayter’s situation, the judge denied his adjournment request. [6] Following this, the trial proceeded for the morning session, with the Crown leading witness in examination-in-chief. After returning from the lunch break, Mr. Hayter’s counsel addressed the court and stated that, after speaking to Mr. Hayter, she was seeking leave to withdraw as his counsel. Over lunch, Mr. Hayter had expressed concerns, because his counsel was employed by Legal Aid Saskatchewan and because Mr. Hayter was alleged to have defrauded WCB, that as government employee his counsel had some stake in seeing him prosecuted successfully. His counsel advised the judge she felt, as an officer of the court, that she had an obligation to seek leave to withdraw. As for the reason, she said Mr. Hayter no longer had confidence in her ability to represent him. She also said she had advised Mr. Hayter that her withdrawal did not guarantee the court would grant an adjournment. [7] In response to defence counsel’s application, the judge informed Mr. Hayter that, in his opinion, Mr. Hayter’s counsel was “as good as they get,” and asked if Mr. Hayter needed few minutes to reconsider and apologise to her. Following which, this exchange took place: THE ACCUSED: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. THE COURT: Well, then maybe you should take the guidance from Ms. Bodnar [defence counsel]. THE ACCUSED: Pardon? THE COURT: Maybe you should take the guidance from your legal counsel you already have rather than trash it and really have some problems. ‘Cause if you think now you don’t know which way you’re going, just wait until you start acting for your own as your own lawyer. [8] The judge then adjourned the trial for five minutes so Mr. Hayter could speak with his counsel. This exchange then followed: THE COURT: Okay, what is your decision? You realize that we’re going ahead anyway? This isn’t going to get you an adjournment. THE ACCUSED: I’d like I’d like an adjournment for THE COURT: You’re not going to get one. THE ACCUSED: Can’t get one. THE COURT: You’re not going to get one. THE ACCUSED: (INDISCERNIBLE) just just can’t THE COURT: You don’t get to tell the Court what to do. You are going ahead on your own if you don’t have counsel. THE ACCUSED: Yeah and don’t know nothing, so THE COURT: So THE ACCUSED: So that’s the you’re going ahead without THE COURT: I’m going ahead whether you have lawyer or you don’t. THE ACCUSED: can’t fight it by myself, so I’ll have to guess I’ll have to ask her if she’d come back and work for me then. [9] The discussion between the judge and Mr. Hayter continued for some time until the judge again adjourned the trial for five minutes to allow Mr. Hayter to apologise to his counsel. The judge also instructed Mr. Hayter to determine whether his counsel would still represent him. When the matter reconvened, Mr. Hayter’s counsel informed the judge that she remained of the view she could no longer represent Mr. Hayter, reiterating that she did not believe he had confidence in her ability to represent him. The trial then resumed with Mr. Hayter representing himself. The Crown continued with the examination-in-chief of its first witness for the remainder of the afternoon session. The following morning, Mr. Hayter was called upon to cross-examine the Crown witness. [10] Later, following his conviction, Mr. Hayter again sought unsuccessfully an adjournment to obtain counsel for the sentencing hearing. Ultimately, the judge sentenced Mr. Hayter to two-and-a-half years in prison. [11] Mr. Hayter now challenges the judge’s decision not to grant any of the requested adjournments, but particularly the denial after his counsel had withdrawn mid-trial. He does so on the basis that the denials deprived him of his rights to make full answer and defence and to fair trial. He acknowledges the Charter does not afford him right to be represented by counsel at trial. III. standards of review [12] The right to make full answer and defence and the right to fair trial are encompassed within ss. and 11(d) of the Charter: Harrer, 1995 CanLII 70 (SCC), [1995] SCR 562 at para 13; Seaboyer; Gayme, 1991 CanLII 76 (SCC), [1991] SCR 577. An accused’s entitlement to make full answer and defence is also set out in s. 650(3) of the Criminal Code. [13] In Chu, 2016 SKCA 156 (CanLII), 344 CCC (3d) 51, Jackson J.A. observed that, where right is grounded in the Charter, request to adjourn trial on the basis of an infringement of that right is request for remedy under s. 24(1) of the Charter. In such circumstances, it follows that an order denying an adjournment is an order made under s. 24(1). The standard of appellate review of orders made under s. 24(1) is deferential: Bellusci, 2012 SCC 44 (CanLII) at para 17, [2012] [14] However, on the facts of this case, the identified Charter rights could not have been breached at the time the judge denied the adjournment request because the trial had just started. That is, Mr. Hayter’s request for an adjournment was not request for remedy under s. 24(1) of the Charter because there had been no infringement of his right to fair trial or to make full answer and defence to remedy. While his request in this Court for new trial may be seen as request for remedy under s. 24(1) of the Charter, the Charter was not invoked in the decision under appeal. [15] Nonetheless, decision to deny an adjournment request remains appealable to this Court outside of the Charter under and according to the requirements of s. 675(1)(a) of the Criminal Code. An appeal of this nature engages the Court’s powers under ss. 686(1)(a)(ii) or (iii): Chu at para 81; Moosomin, 2008 SKCA 168 (CanLII) at para 27, [2009] WWR 577. If approached as potential error of law under s. 686(1)(a)(ii), the appellate review is that of discretionary decision of trial judge (see Chu; Ironchild (1984), 1984 CanLII 2666 (SK CA), 30 Sask 269 (CA); Barrette The Queen, 1976 CanLII 180 (SCC), [1977] SCR 121). If approached as potential miscarriage of justice under s. 686(1)(a)(iii), the appeal court reviews what occurred in the trial to see whether there was in fact miscarriage of justice or the appearance of one (R Moosomin; Khan, 2001 SCC 86 (CanLII), [2001] [16] In Khan at para 63, Arbour J., who wrote for the majority, recognised there is sometimes “a fine line between what can constitute ‘a wrong decision on question of law’ and ‘miscarriage of justice’” and she declined to draw that line; nonetheless, she did characterise miscarriages of justice as being “akin to procedural irregularities” (at para 61). Whether error of law or miscarriage of justice, Arbour J. noted that both may be cured under s. 686(1)(b) of the Criminal Code, meaning “the circumstances must be considered to see if the error could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance, or was merely peripheral” (at para 66). [17] When approached under s. 686(1)(a)(ii), the standard of appellate review of decision to decline an adjournment is that set out in Barrette The Queen at 125, where the majority wrote: It is true that decision on an application for adjournment is in the judge’s discretion. It is, however, judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. At glance, have found in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given. (Frank v. Alpert; Basarsky v. Quinlan; Ladouceur v. Howarth; Whitco Chemical Co. v. Oakville; General Foods v. Struthers; Hamel v. Brunelle). This being so in civil proceedings, there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence. This principle is fully recognized in the English case law which was cited to us. [Footnotes omitted] [18] This Court applied the framework for review from Barrette The Queen in Ironchild, where the accused had argued the trial judge’s refusal to grant an adjournment deprived him of the rights to make full answer and defence under the Criminal Code, to fair hearing pursuant to s. 11(d) of the Charter, and to not be deprived of his liberty unless in accordance with the principles of fundamental justice under s. of the Charter. In that case, Tallis J.A. wrote: [13] It is clear from the majority judgment in Barrette v. The Queen (1976), 1976 CanLII 180 (SCC), 10 N.R. 321; 29 C.C.C.(2d) 189 (S.C.C.), that the exercise of the trial judge’s discretion in refusing an adjournment may be reviewed by an appellate court if it is based upon reasons that are not well founded in law and results in deprivation of the accused’s right to make full answer and defence. However, it is also clear that such right must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice. ... [Emphasis added] IV. analysis [19] As understand his arguments, Mr. Hayter has framed his claim for relief under error of law and miscarriage of justice. will address the matter first under s. 686(1)(a)(ii) as an error of law. [20] As Barrette The Queen, Ironchild and Chu indicate, an appeal court’s review of the judge’s decision to decline to grant an adjournment looks first to see whether the decision was based upon reasons that are not well-founded in law. If so, the appeal court’s focus shifts to determination of whether the error has resulted in deprivation of the accused’s right to make full answer and defence or to fair trial. [21] As the decision in this case was made in the course of the trial, there are no separate, written reasons for it. Rather, as is common, the judge was called upon to make his ruling during the to-and-fro of the trial. For this reason, his decision was understandably oral and brief, but it leaves little to which to refer in appellate review. In Barrette The Queen at 124, Pigeon J., who wrote for the majority, said this about the exercise of judicial discretion: There is nothing in the record which could legally support the presumption that counsel’s absence was premeditated scheme in complicity with the accused. It was the first time the case was being called and there was nothing to justify such inference rather than mere suspicion. The accused has the right “to make full ... defence personally or by counsel” (s. 577(3) Cr. C.). An adjournment necessary for the exercise of this right may be refused only for reason based on established facts. [Underlining in original, italics emphasis added] As such, where the decision itself leaves little to review, the appellate court must have resort to the whole of the record, examining it for evidence that might support as well as impugn the decision to deny the adjournment request. [22] Before turn to the record in this case with that view, would first set out, in non-exhaustive terms, what am looking for. That is, would first identify the factors that ground the proper exercise of judicial discretion to grant or deny an adjournment where counsel has withdrawn at or shortly before trial. In that regard, again turn to the decision in Barrette The Queen. [23] As well as setting out the standard of review, the decision in Barrette The Queen is instructive because, in that case, the trial judge had dismissed an accused’s request for an adjournment after his lawyer had failed to show up for court. The trial judge had reasoned that judges postpone too many cases in similar circumstances, there had already been delay of six months, and the case was simple. Justice Pigeon allowed the appeal, quashed the conviction, and ordered new trial, stating “I cannot find that the accused, who was sentenced to year in prison, had fair trial” (at 127). Of particular importance, given the circumstances of this matter, is the fact that the accused in Barrette The Queen was not at fault for his lawyer’s absence and there was no evidence to suggest it was deliberate plot to delay the trial. [24] In Rak (1999), 1999 CanLII 12229 (SK CA), 172 Sask 301 (CA), this Court approached similar matter from different angle and reached the opposite conclusion but, in doing so, the Court identified several factors for consideration: [7] We are all of the view there is no tenable basis for interfering with the trial judge’s discretion in refusing to grant the adjournment and the consequent verdict. The appellants had ample opportunity to obtain counsel and their refusal to cooperate with counsel led to refusal of Legal Aid. The failure to have counsel did not result in an unfair trial. Gregory Rak handled the defence rather adroitly on his own and his father’s behalf and was effective in his cross-examination. He demonstrated clear ability to understand the documentary evidence. As well the trial judge was extremely helpful to the appellants throughout the course of the trial. We are all of the view the appellants were not deprived of their right to fair trial or their right to make full answer in defence and there was no miscarriage of justice. [25] One important distinction to draw on the facts of Barrette The Queen and of Rak is that the accused in the latter case had had the time to obtain counsel before trial. Moreover, it was the accused’s own failure to co-operate with Legal Aid that had led to the absence of counsel at trial. In those circumstances, this Court nonetheless also examined the effect of counsel’s absence on the trial as it had been conducted by the self-represented accused and on its outcome, concluding the accused’s demonstrated ability and the assistance offered by the trial judge confirmed he had not been deprived of his right to fair trial or to make full answer and defence. As well, in Rak, the trial had been rescheduled twice prior to the trial in question. [26] In Ironchild, Tallis J.A. found the accused had deliberately dismissed his counsel as trial tactic so as to obtain an adjournment. He also observed there was nothing in the record to indicate the accused had lost confidence in his counsel. Justice Tallis stated that, while an accused has the right to dismiss counsel, the appellate court may take into account the circumstances of dismissal when considering an appeal of this nature. [27] Outside Saskatchewan, the Court in Beals, 1993 CanLII 5636 (NS CA), 1993 NSCA 215, 126 NSR (2d) 130, dealt with this issue and helpfully summarised the law as follows: [30] In summary the following propositions emerge from the cases to which have referred: 1. The decision whether to grant or refuse request for an adjournment because an accused is not represented by counsel in criminal trial is discretionary one but one that must be based on reasons well-founded in the law. (Barrette v. R., 1976 CanLII 180 (SCC), [1977] S.C.R. 121). 2. An accused has constitutional right to fair trial. Representation by counsel at trial is generally essential to fair trial if an accused is charged with serious offence and complex trial can be anticipated. (R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1). 3. The right to counsel at trial is not absolute. (R. v. Richard and Sassano (1992), 55 O.A.C. 43); there is no constitutional right to be represented by state funded counsel at trial. (R. v. Rowbotham, supra, and R. v. Prosper (1992), 1992 CanLII 2476 (NS CA), 113 N.S.R. (2d) 156 N.S.C.A.). 4. The right of an accused to retain counsel to represent the accused at trial must be exercised honestly and diligently so as not to delay scheduled trial. (R. v. Richard and Sassano, supra). 5. Each application for an adjournment on the ground that the accused will not have counsel at trial must be decided on its facts. Relevant facts to be taken into account by the trial judge are: (a) whether or not there have been prior adjournments due to the unavailability of counsel and the accused was warned well in advance of trial that the trial would be proceeding on the scheduled date with or without counsel. (R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334); (b) the accused’s criminal record which reflects on the accused’s degree of familiarity with the criminal justice system and legal aid programmes (R. v. Richard and Sassano, supra); (c) whether the charge against the accused is simple or complex which fact impacts on the critical question whether or not the accused can get fair trial without counsel (Barrette v. R., supra); (d) the public interest in the orderly and expeditious administration of justice (R. v. B. (J.E.) (1990), 1989 CanLII 1495 (NS CA), 52 C.C.C. (3d) 224 and R. v. Richard and Sassano, supra); (e) if the accused has been refused legal aid and when the refusal was communicated to the accused. 6. As general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial dates is not his fault but that of his counsel and he had no complicity in the matter (Barrette v. R., supra). 7. As general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings (Manhas v. R. (1980), 1980 CanLII 172 (SCC), 17 C.R. (3d) 331). 8. On an appeal from refusal it would appear that court of appeal will not find the learned trial judge erred notwithstanding his reasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was brought about by the accused for the purpose of delaying the proceedings (Barrette v. R., supra; Manhas v. R, supra; R. v. Richard and Sassano, supra). 9. The scope of review by an appeal court of refusal, notwithstanding it involves the review of the exercise of discretionary power, is wide as the consequences of refusal are to deprive an accused of his right to be represented by counsel. On appeal the appellant must show that in refusing the adjournment the trial judge deprived the appellant of his right to make full answer and defence and thus made an error in principle which constituted miscarriage of justice (Barrette v. R. and Manhas v. R., supra). [28] The appellate courts in White, 2010 ABCA 66 (CanLII), 252 CCC (3d) 248, Tortora, 2010 BCCA 547 (CanLII), 265 CCC (3d) 264, and Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, and this Court in Bitternose, 2009 SKCA 54 (CanLII), 244 CCC (3d) 218, have endorsed the foregoing list of propositions from Beals. Further, in White, citing G.(J.C.) (2004), 2004 CanLII 66281 (QC CA), 189 CCC (3d) (Que CA), the Court added the following factors for consideration by trial judge: [16] When asked for postponement, it is appropriate for trial judge to consider relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of postponement for the Crown and for the accused: J.C.G. at para. 12. The decision whether or not to grant an adjournment must be made in the light of the realities of each case consistent with the interests of justice: J.C.G. at para. 13. Whether it is just to deny trial adjournment to an unrepresented accused depends upon many different factors, including the personality and skills of the accused. [29] In Tortora, after citing the propositions from Beals, Bennett J.A. added the following qualification: [23] It is not necessary for these factors to be articulated verbatim by judge each time an unrepresented litigant applies for an adjournment. However, where the record shows that judge has refused an adjournment without properly weighing the factors or taking into consideration irrelevant factors, miscarriage of justice may result if the accused is deprived of his right to make full answer and defence. [30] To summarise and paraphrase all of this, when an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the trial judge will want to examine the evidence and the record and then turn his or her mind to at least four areas of inquiry: (a) Has the accused failed to exercise the right to counsel honestly and diligently? trial court may properly consider an accused who, having the means and opportunity to do so, fails to obtain counsel for trial to have chosen to defend himself or herself: Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1; 63 CR (3d) 113 (Ont CA). trial court should not be inclined to grant an adjournment where the accused has failed to act diligently or honestly in attempting to obtain counsel. This is particularly so where there is evidence the accused has not availed himself or herself of the opportunity to do so for the purpose of delaying the proceedings. In that regard, the following inquiries may help assess whether an accused has acted honestly and diligently: (i) Has the accused had an adequate opportunity to obtain counsel? (ii) Has the accused been warned that he or she will have to proceed with trial without counsel? Has the accused been made aware of the potential consequences of that? (iii) Has Legal Aid or private counsel withdrawn or refused to represent the accused? If so, when was the accused advised of this? Keeping in mind the principles discussed in Cunningham, 2010 SCC 10 (CanLII), [2010] SCR 331, does the record disclose why counsel withdrew? (iv) Has the accused acted or failed to act so as to thwart the appointment of counsel? Has the accused acted in any other way to delay the proceedings? (v) Is there evidence that the absence of counsel at trial is part of an orchestrated attempt by the accused to delay the proceedings? (b) Would granting an adjournment inordinately delay the trial? Keeping in mind the policy concerns underlying and reflected in Jordan, 2016 SCC 27 (CanLII), [2016] SCR 631, the object of this question is to determine whether an adjournment would negatively affect the public interest in the orderly and expeditious administration of justice. This will be particularly important where judge is sitting with jury, given the additional requirements in trials of that nature. Without attempting to restate the considerations set forth in Jordan, the following may assist in assessing the delay of the trial and its potential effect on the orderly and expeditious administration of justice: (i) How long has it been since the charges were laid? Is this the first scheduled date for trial? If not, how many times has the matter been postponed or adjourned since the charges were laid? Who was responsible for prior adjournments? Were any of the prior postponements due to unavailability of defence counsel? (ii) Is the accused in custody? If not, what are the terms of interim release? (iii) How serious is the offence with which the accused has been charged? (iv) How long of an adjournment is the accused requesting? Is it reasonable in the circumstances? Would shorter adjournment suffice? (v) When is the next available trial date? Would the accused and the Crown consent to change in venue if that would facilitate an earlier trial date? (vi) Does the accused agree that the delay brought about by the requested adjournment will not count against the s. 11(b) of the Charter right to be tried within reasonable time? (c) Would granting an adjournment potentially affect trial fairness from the Crown’s perspective? Where an accused seeks an adjournment at or shortly before trial for the purposes of obtaining legal counsel, the more serious the prejudice that will befall the Crown by reason of an adjournment, the more likely it is that the court will deny the accused’s request for an adjournment. trial judge will understand that the passage of time typically has some adverse effect on trial fairness through failure of witnesses’ memories, loss or destruction of physical evidence, etc. In that regard, the following inquiries may assist in assessing the effect an adjournment may have on trial fairness from the Crown’s perspective: (i) Are there co-accused? Are they being tried separately? If so, when are their trials scheduled? If not, what is the co-accuseds’ position on an adjournment? (ii) What is the expected duration of the trial? (iii) How many witnesses is the Crown expected to call? What are their characteristics? Are any of them children? Experts? Will any of them require translator? (iv) Was the Crown put to subpoenaing its witnesses? Is there real risk witness may fail or be unable, for any reason, to testify at an adjourned trial? Is there evidence that the accused may be seeking tactical adjournment to see if that risk materialises? (v) Where are the witnesses located? Will it be inordinately difficult for the Crown to arrange for witness attendance at later trial date? (vi) Is there real risk that physical evidence may be lost or destroyed before trial if the matter were adjourned? (vii) What, if anything, can be done to address or mitigate the consequences of an adjournment? (d) Is the accused reasonably capable of making full answer and defence to the charges without the assistance of legal counsel? Some of the inquiries under the previous question may be relevant here too, in the sense of ensuring the accused’s right to fair trial is not infringed. Under this question, the trial judge may more directly assess the personal characteristics of the accused, being alert to the nature of the Crown’s case, the relevant law and possible defences to the charges in question. The trial judge will have to ascertain whether, in the circumstances, the accused reasonably possesses the skills, capacity and experience necessary to proceed without legal counsel at trial with minimum level of competency having regard for the right to fair trial. In that respect, the following questions may assist: (i) What is the accused’s level of education and intellectual sophistication? Is the accused in good physical and mental health? What is the accused’s employment background? What level of family or other support is available to the accused? (ii) Is the accused’s criminal record such that it indicates the accused would be familiar with the criminal justice system and the criminal trial process? (iii) Was there preliminary hearing? If so, what does the transcript indicate about the issues that will arise (where trial is by judge and jury: Asapace, 2011 SKCA 139 (CanLII), 279 CCC (3d) 427)? (iv) Was the matter case managed such that the legal issues have been narrowed before trial? Is there an agreed statement of facts? (v) Will the trial be lengthy, complex or legally complicated? Is the matter likely to give rise to complex or unusual points of law or of evidence or complicated defence strategies? (vi) Is the accused facing multiple charges or charges with multiple lesser-included offences? (vii) Is the accused in jeopardy of serving significant incarceral term if convicted? [31] To be clear, there is no general duty on trial judge to probe each and every one of the itemized questions in ritualized fashion. The foregoing are merely non-exhaustive suggestions. Each request for an adjournment will give rise to its own set of relevant questions and considerations. The scope of the inquiry is best left to the insight and experience of the trial judge. Some of the considerations and questions itemized above may carry more weight than others based on the facts and circumstances in any given situation. Some considerations will overlap and necessarily compete against others. On one hand, the trial judge is bound to see that the accused receives fair and public hearing (Charter, s. 11(d)), which includes the right to fair trial, and that an accused is not deprived of his or her liberty except in accordance with the principles of fundamental justice (Charter, s. 7). On the other hand, the judge has duty to ensure the orderly and expeditious administration of justice and to prevent the abuse of court processes. In this context, the relative weight assigned to each consideration is for the trial judge to assess and to balance, with the balancing exercise largely matter of judicial discretion. At the end of the day, the trial judge must be satisfied, on his or her own inquiry, whether it is in the interests of justice to grant an adjournment. [32] In keeping with this general direction, the trial judge is not required to provide detailed reasons for refusing to grant an adjournment. Indeed, the reasons for the ruling may be obvious from the record itself. That said, in terms of the sufficiency of reasons, trial judges may be guided by the instruction in Barrette The Queen that the reason or reasons for denying an adjournment must be based on established fact and well-founded at law, and by the instructions in Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869, in terms of sufficiency in the expression of those reasons. [33] On that footing, would turn to examine the record in this appeal. To begin, find no reason to interfere with the trial judge’s refusal to adjourn the trial at its commencement. Even though the trial judge gave no reasons for his decision, the record strongly supports the conclusion that his decision was well-founded at law and based on established fact. On the evidence, the reasons for adjournment advanced by Mr. Hayter were not compelling and the Crown had cogently explained the prejudice that would befall it. I find there is no basis to conclude the judge erred in denying the first requested adjournment. [34] To clear the table for the analysis that follows, I also find that the third request for adjournment—coming as it did after the verdict had been rendered—could have had no bearing on trial fairness or the right to make full answer and defence with respect to the trial proper. It is relevant to trial fairness in the sentencing hearing, but would not interfere with the decision in the context of this conviction appeal. [35] However, find the evidence relevant to the exercise of judicial discretion in the matter of the second request for an adjournment—namely, when Mr. Hayter’s counsel had withdrawn mid-trial—pulled both in favour of granting and of denying the request for an adjournment. [36] Without canvassing the record in ritualized way, note first that this was the first return date for trial and, while there had been three adjournments of the preliminary inquiry, two of those had been at the request of the Crown. [37] Second, Mr. Hayter faced fraud charge, which often results in complex trial. This trial had been scheduled for week. The charge related to allegedly fraudulent activity that had occurred over number of years. There were 22 exhibits entered at trial (16 by the Crown and by Mr. Hayter). The trial involved factual and legal issues relating to Mr. Hayter’s ostensible employment relationship with several different corporations, his health status and the claims documentation he had filed with WCB. The Crown had subpoenaed ten witnesses to testify. During her application to withdraw, Mr. Hayter’s counsel stated, “I don’t want to leave Mr. Hayter in the lurch. mean, it is complicated matter”. All of which suggests Mr. Hayter was facing complex criminal trial. [38] Trial complexity cuts at least two ways in these cases. It speaks to the ability of self-represented accused to properly defend him or herself, but it also extends expectations about how quickly the matter ought to come to trial for the purposes of s. 11(b) of the Charter. For example, the majority of the Supreme Court of Canada had this to say on the issue of trial complexity in Jordan: [77] As indicated, exceptional circumstances also cover second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, large number of witnesses, significant requirements for expert evidence, and charges covering long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, large number of charges and pre-trial applications, novel or complicated legal issues, and large number of significant issues in dispute. Proceeding jointly against multiple co‑accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. In this case, trial complexity pushed more toward adjournment than not in my assessment. [39] Third, the judge in this case was aware of some of Mr. Hayter’s personal circumstances, which did not lend to an understanding that he could adequately defend himself. For example, before the request for adjournment, Mr. Hayter had stated: It’s just I’m so stressed out, Your Honour (sic), with my medical conditions and that, just don’t know what I’m doing. don’t even know what’s going on. There is no suggestion in the record that the judge disbelieved Mr. Hayter about this or that he understood Mr. Hayter to be exaggerating his state of mind. Mr. Hayter went on to state that he was stressed about his wife being in the hospital and that “I can’t do nothing by myself.” At one point, Mr. Hayter said his former counsel was “beautiful lady”, suggesting he did not understand appropriate courtroom conduct. [40] Further, an accused’s criminal record can show degree of familiarity with the criminal justice system. While Mr. Hayter does have criminal record, his convictions occurred 50 years prior to this trial. This suggests he was unlikely to have familiarity with the criminal justice system such that he could ably manage his own defence. All of this evidence indicates Mr. Hayter lacked the basic skills and disposition necessary to competently run his own defence in this trial. [41] Fourth, as noted, Mr. Hayter had been accused of defrauding WCB of substantial sum but in comparison to violent offences or offences where the public would be in immediate danger, his alleged crime was of less-serious nature. While not impossible, it is unlikely Mr. Hayter would have perpetrated new fraud upon WCB if an adjournment had been granted. That is, there was little risk to the public if the trial were adjourned. [42] Fifth, the factual matters at issue in the trial occurred between 2006 and 2011. At the time of trial in 2017, the witnesses, whether for the Crown or the defence, would have already lacked fresh memory of the events. While this circumstance does not reduce the prejudice to the Crown and to the defence if an adjournment were granted, it indicates state of affairs in which much of the prejudice of memory loss and loss or destruction of evidence might well have already occurred. Notably, the Crown had already sought and received the court’s permission to have two of its witnesses testify via video conference, limiting the prejudice to the Crown in respect of rescheduling these witnesses to give their evidence. [43] Finally, but importantly, Mr. Hayter’s counsel had withdrawn due to breakdown in the solicitor-client relationship. Given the recorded comments of his former counsel, it does not appear Mr. Hayter intentionally brought about a circumstance where his counsel felt—and I might say properly so—compelled to withdraw or that he had done that for the purpose of delaying trial. The transcript suggests Mr. Hayter’s issue with his counsel arose after she had raised the issue of him accepting plea bargain with the Crown, following the Crown’s opening statement, in the midst of the examination-in-chief of the Crown’s first witness. This apparently, but wrongly, caused Mr. Hayter to question his counsel’s loyalty to him. Nonetheless, regardless of its origin, this appears to be genuine breakdown of the solicitor-client relationship, not plan to delay the trial. Indeed, the judge permitted Mr. Hayter’s counsel to withdraw. As such, Mr. Hayter had what appears to be good reason to ask for an adjournment: he suddenly found himself without counsel in the midst of trial. In addition, when his counsel made the first request for an adjournment at the start of trial, she had said Mr. Hayter was willing to waive delay, indicating he was not attempting to delay matters with hopes of bringing successful application under s. 11(b) and Jordan. [44] That said, there were also number of factors that supported the judge’s refusal to grant the second adjournment. First, notwithstanding what have noted above, the potential consequences to the Crown of an adjournment could have been significant. If adjourned, the next available trial date in Melfort was nearly year away. During argument for the initial adjournment request, the prosecutor had made it clear that this would be significant inconvenience for the Crown’s witnesses. majority of the Crown’s witnesses were from places outside of Melfort and they had been required to travel to Melfort for the trial. While two of the Crown’s witnesses had been allowed to testify via video conference, eight others had taken time off work and travelled to testify. [45] Second, it is clear the judge was considering the public interest in the orderly and expeditious administration of justice. In the initial adjournment request, which had been made only hours before the adjournment request at issue here, the judge stated: Ms. Bodnar, have considered your request and sincerely sympathize with your client, but also know how much everything has been adjusted for this and if we adjourn it, the next possible date would be almost year away. ... Delay of year is relevant factor and cuts in favour of declining an adjournment request for the reasons identified in Jordan. [46] Third, the judge appears to have determined judicial assistance with the conduct of trial could ameliorate the consequences of lack of counsel. This is not evident on the record of the adjournment request, but the judge did give considerable assistance to Mr. Hayter during the trial. He explained the required elements of the offence, the definition of reasonable doubt, the presumption of innocence, and the fact that Mr. Hayter was not obligated to testify. In addition, the judge advised Mr. Hayter that he should study his files and materials for the purposes of conducting cross-examination of witnesses, after the Crown had finished its examination-in-chief, and he adjourned the trial for the remainder of the day to allow Mr. Hayter the time to do so. Mr. Hayter was not being held in remand, so he had the liberty to avail himself of this and other opportunities to prepare and respond to matters arising in his trial. [47] Finally, while his counsel may have withdrawn by reason of breakdown of the solicitor-client relationship, that breakdown had apparently resulted from Mr. Hayter’s own misperception of things and his misguided comments about her loyalty to him. Intentional or not, Mr. Hayter put his counsel in an untenable ethical position by questioning her ability to adhere to her duty of loyalty to him. His supposed reason for doing so is unfounded and shows an utter and complete lack of understanding of a lawyer’s ethical duties and professional responsibilities as well as of the paramountcy of a lawyer’s ethical obligations over employment and other obligations. For this reason, it is quite difficult to say with any degree of certainty that Mr. Hayter had sought to exercise his right to counsel in completely honest and diligent manner. The judge certainly felt it was open to him to conclude that Mr. Hayter may have connived to cause his counsel to withdraw mid-trial. Nonetheless, as Pigeon J. cautioned in Barrette The Queen at 124 (cited above), such conclusions must be based on established facts, not speculation. [48] The fact is that the judge did not record the reason or reasons he had for denying the mid-trial request for an adjournment. Where reasons are given, the mere fact there is evidence that weighs against the trial judge’s reasons is not determinative of the matter provided the trial judge took all relevant considerations into account in his or her decision-making. Similarly, where reasons are given, the fact the appellate court might have weighed some of the relevant considerations differently than the trial judge does not give rise to reversible error. That is, had the judge articulated the basis for his decision in this case, might have been hard-pressed to conclude it was not well-founded in law. [49] Where there are no reasons given for decision, the appellate right of review is especially wide because, as Pigeon J. observed in Barrette The Queen, the consequence of that exercise of judicial discretion is that an accused may have been deprived of the right to fair trial or to make full answer and defence. In making this remark, Pigeon J. noted he had found “in the last few years no less than half dozen judgments in civil proceedings where decision depriving litigant of an important right was reversed on account of insufficient reasons given” (emphasis added). He then said “there is all the more reason to so regard discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence” (at 125). [50] In the circumstances of this case, I am persuaded to conclude the judge erred in law by failing to provide sufficient reasons for denying Mr. Hayter’s mid-trial request for an adjournment, but that does not mean the conviction must be set aside. Rather, it leads to the second question under the framework in Barrette The Queen, which is whether that denial resulted in deprivation of Mr. Hayter’s right to make full answer and defence or to fair trial. Put in terms of the appellate power under s. 686(1)(b)(iii), having determined that the appeal might be decided in favour of Mr. Hayter under s. 686(1)(a)(ii), must now determine whether the error resulted in no substantial wrong or miscarriage of justice. [51] In that regard, I conclude Mr. Hayter’s poor conduct of his own defence favours intervention in this matter. Throughout the trial, it appears Mr. Hayter had difficult time hearing or understanding what was going on. He mentions this himself several times and is recorded as saying “pardon” many times. Whether an inability to hear or to understand, it speaks negatively to his ability to competently conduct his own defence. [52] The transcript bears out his incompetence. It contains examples of Mr. Hayter making mistakes in carriage of his defence. He did not cross-examine Crown witness after expressing an intention to do so, he believed erroneously that he would not have right of appeal if he did not testify, he attempted to tender exhibits himself instead of through the appropriate witness, and he struggled generally to ask relevant questions of witnesses or questions material to the issues at hand in his cross-examinations of witnesses. Unlike the accused in Rak, cannot safely characterise his self-advocacy as adroit or capable. cannot say he handled his cross-examinations effectively or that he showed clear ability to understand the documentary evidence. As such, conclude the denial of the mid-trial adjournment “could have played significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance” (R Khan at para 66). [53] Finally, although the evidence of Mr. Hayter’s guilt on the charge of fraud over $5,000 was considerable, am not prepared to find that Mr. Hayter was manifestly guilty on the basis of it or that the outcome of the trial would necessarily have been the same had the judge granted the adjournment and had Mr. Hayter been later represented by counsel at trial. V. conclusion [54] For the foregoing reasons, I find the verdict must be set aside and a new trial ordered. “Caldwell J.A.” Caldwell J.A. concur. “Whitmore J.A.” Whitmore J.A. concur. “Schwann J.A.” Schwann J.A.

HELD: The appeal was allowed and a new trial ordered. In this case, the court found that the judge had not erred in his decisions regarding the first and the third requests for adjournment but had in the second request by failing to provide sufficient reasons for his denial. Amongst many factors it considered, the court found that most importantly, the appellant had not caused his counsel to withdraw for the purpose of delaying trial. It concluded that the error resulted in a miscarriage of justice based upon the appellant’s poor conduct of his own defence and lack of understanding of trial process.

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