St. Mary’s Cement Inc (Canada) v Clarington (Municipality), 2012 ONCA 884

In this case, the Ontario Court of Appeal considered whether substituting alternative fuel for a traditional fuel source at a cement manufacturing plant would give rise to a new land use. St. Mary’s Cement Inc. (SMC) proposed to substitute alternative fuel recovered from post-recycling and post-composting materials, for the use of petcoke at its cement manufacturing plant in Clarington. The Municipality submitted that this would give rise to a new land use, that is, use of the site as a “waste disposal area” which is not permitted under the by-law. Winkler C.J.O held that the fuel substitution would not give rise to a new land use.

The Court concluded that the alternative fuel falls within the definition of “waste”, however the proposed plan does not constitute a “waste disposal area” within the meaning of the by-law. The by-law defines “waste disposal area” as “a place where garbage, refuse or domestic or industrial waste is dumped, destroyed, or stored in suitable containers.” The Court rejected the argument that the waste is “destroyed” when it is burned as fuel, stating, “SMC’s use of the alternative fuel would not be considered ‘destruction of waste’, just as the use of petcoke fuel would not be characterized as the destruction of petcoke. In both cases, fuel is being used productively as part of the permitted use – the manufacturing of cement.” The Court concluded that the by-law does not bar SMC’s alternative fuel use.

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Rebecca Crangle

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R v. Bogdan Dragos, 2012 ONCA 538

In The Queen v. Bogdan Dragos, the Ontario Court of Appeal upheld convictions for internet luring, sexual interference, invitation to sexual touching, and indecent exposure against a 24 year old man who had sexually explicit online exchanges with a thirteen year old girl (“E.B.”) who claimed to be fourteen.  While E.B. had attempted to act older than she was, the records of their online conversations included statements that could have led the accused to doubt her age.  After seeing his number repeatedly in her phone bills, E.B.’s mother once called the accused, told him her daughter was “way too young,” and warned that she would call the police if she saw his number again.  There was no evidence the accused had made any effort to confirm E.B. was fourteen after this conversation.  In spite of the mother’s warnings, the accused arranged a rendezvous with E.B. in a hotel room, where they engaged in sexual acts but did not have intercourse.  The central issue on appeal was whether the Crown had proved beyond a reasonable doubt that the appellant failed to take sufficient steps in all the circumstances to ascertain E.B.’s age.

The Court held that the “reasonable steps” requirement in Criminal Code provisions concerning sexual offices against children can give rise to positive obligations in some circumstances (Ewanchuk, R v. J.A.).

Broadly, the court holds that the “mistake in age” defense to internet luring in s. 172.1(4) requires the accused to have exercised the same degree of care that a reasonable person would in ascertaining the person’s age.  On the facts of this case, the court holds that the more stringent “due diligence” approach is appropriate.  The court draws a parallel between 172.1(4) and the requirement in 273(2)b that an accused take reasonable steps to ascertain a complainant’s consent before establishing a defense of mistaken belief to sexual assault charges.  The court reasons that the similar language in each provision justifies applying a “due diligence” formulation to both.

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Megan Andrews

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Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2012 BCCA 392

In Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, the British Columbia Court of Appeal (BCCA) held that a worker who fails to obtain workers' compensation benefits for a workplace injury is not entitled to sue his/her employer for a common law breach of duty. The judgment reinforces the historic trade-off in s. 10 of the B.C. Workers' Compensation Act (BCWCA), which bars an action for an injury arising out of and in the course of employment if the worker could bring a claim under s. 10 of the BCWCA. The BCCA found the trade-off was appropriate even if there may be a lacuna in the compensation scheme under the Act.

Chiasson J.A. indicated that the trial judge and the Workers' Compensation Tribunal (WCAT) misunderstood the purpose of the 'historic trade-off' embodied in s. 10 of the BCWCA. Rather than the trade-off merely being a quid pro quo in which workers exchange tort rights for compensation under the BCWCA, the trade-off involves workers relinquishing their right to sue their employers and co-workers, along with the benefits of potentially larger damages, in exchange for prompt and guaranteed no-fault compensation, in which employees may receive compensation for workplace injuries regardless of fault. He drew on the judgment by Sopinka J in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 to emphasize the complexity of the historic trade-off, but also on commentary by the Minister during the reading of the Bill which would become the BCWCA. Chiasson J.A. noted that the Minister's comments on the need for the compensation scheme to provide sustainable benefits reflect concerns at the core of the historic trade-off. In his view, it would be contrary to legislative intent if employees are permitted to bring tort claims “notwithstanding the action of the Legislature to curb such claims because they were having an adverse financial effect on employers”.

In this case, a worker claimed compensation for, inter alia, post traumatic stress disorder pursuant to s. 5.1 of the BCWCA, and also brought a tort claim against her employer and co-worker for mental stress. The BCCA held that while the worker was not entitled to benefits through the BCWCA because she did not fit the criteria required for compensation, the injury arose out of and in the course of employment. As such, the worker was not entitled to bring a tort claim against her employer or her co-worker for the workplace injury she suffered because of the “historic trade-off” principle.

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Carolyn Lambert

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Lewis and Lewis v. Central Credit Union Ltd., 2012 PECA 9

The disagreement between majority and dissent in Lewis v. Central Credit Union Ltd. refined the equitable doctrine of presumed undue influence. At issue was a surety's liability for her adult son's defaulted loan. The Prince Edward Island Court of Appeal dismissed the respondent’s cross-appeal from a ruling vitiating a guarantor’s consent to mortgage her life estate as surety for her son’s loan. The majority found the bases for presumed undue influence in the reasons of the applications judge despite that he had failed to name that doctrine as the basis for his ruling. McQuaid J.A.’s dissent proceeds from a conflicting apprehension of the doctrine.

The co-appellant Ella Lewis had signed a mortgage against her life estate as surety for her son’s loan, as required by the respondent Credit Union. She did not receive independent legal advice, though the Credit Union had insisted that she do so on similar transactions, previous and subsequent. When the Credit Union moved to enforce its surety, the applications judge cited Mrs. Lewis’ lack of independent legal advice along with other factors as justification for denying the respondent’s claim. On the cross-appeal, the majority found that those factors gave rise to a presumption of undue influence, despite the applications judge’s statement that he saw no evidence of actual undue influence. Thus the reasons of Jenkins C.J.P.E.I. invigorate the doctrine of presumed undue influence as distinct from actual undue influence, adopting Feldman J.A.’s recent statement of those doctrines in CIBC Mortgage Corp.v. Rowatt, [2002] O.J. No. 4109 (Ont. C.A.) with the following refinements:

a)     A proven “special relationship,” as one of trust and emotional interdependence, between two parties to a transaction, e.g. debtor and surety, is a sufficient basis to presume undue influence. If that relationship is non-commercial, then the transaction itself need not call for explanation, i.e. for conferring no financial benefit to one party.

b)     The inquiry concerning the commercial nature of the relationship pertains to the relationship between alleged influencer and the party allegedly unduly influenced.

c)      Equity does not impose a duty on a third party which has knowledge of such a “special relationship”; rather, it fixes that party with constructive notice that its claim will be subject to an equity unless it takes reasonable measures to ensure informed and independent consent.

d)     Proof that the potentially influenced party obtained independent legal advice will generally be sufficient, though not necessary, to rebut the presumption of undue influence.

The majority held that the facts as found by the applications judge revealed both a “special relationship” between surety and debtor, and a transaction of no financial benefit to Mrs. Lewis, giving rise to presumed undue influence which the respondent failed to rebut; therefore Mrs. Lewis was entitled to equitable relief from liability without proving actual undue influence.

McQuaid J.A., in dissent, thought that the applications judge’s finding of no actual undue influence precluded any presumption of undue influence, following Sopinka J’s solo concurring opinion in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353. Therefore he found that the applications judge erred by treating lack of independent legal advice as a stand-alone defence. Considering the commercial nature of the creditor-debtor relationship – instead of the non-commercial surety-debtor, mother-son relationship – McQuaid J.A. held that Mrs. Lewis could not raise a presumption of undue influence unless she was unduly disadvantaged or the Credit Union unduly benefited, neither being the case in his view.

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Aaron SanFilippo

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Mor-Town Developments Ltd. v. MacDonald, 2012 NSCA 35

The Nova Scotia Court of Appeal considered whether under the Legal Profession Act, a Small Claims adjudicator had jurisdiction to tax a solicitor’s account that has already been paid. In addition, the Court had to determine whether Mor-Town Developments Ltd ("Mor-Town") had the burden of proving the reasonableness of the legal account. The Court held that a Small Claims adjudicator had a right to tax paid legal accounts because it is consistent with the statutory objectives of the Act. In addition, the Court found that the onus of proving the reasonableness of an account should always rest with the lawyer and not the client.       

Mor-Town filed a Notice of Taxation with the Small Claims Court against David MacDonald to obtain reimbursement for unreasonable legal fees. The adjudicator ordered Mr. MacDonald to refund to Mor-Town the difference between the amount it paid and the reduced amount allowed on review. The trial judge set aside the decision, concluding that the adjudicator had lacked jurisdiction to tax paid accounts, and that Mor-Town had failed to prove that Mr. MacDonald's legal accounts were unreasonable.          

On appeal, the Court held that the primary purpose of the Legal Profession Act was to protect the public. Therefore, narrowly reading the words "to be paid" under the Act to only mean unpaid accounts would lead to unjust results. The Court concluded that the onus on proving reasonableness of an account was on Mr. Macdonald, because he was in the best position to know what tasks were completed and what fees to charge. Therefore, it would be impractical for a client to prove the unreasonableness of work done by a lawyer. Lastly, the Court determined that Mor-Town had a right to appeal a decision rendered by the Nova Scotia Supreme Court concerning taxation of a lawyer's account, because it was in accordance with s. 9A of the Small Claims Court Act. Consequently, the Court reversed the trial judge's decision and reinstated the decision rendered by the Small Claims Court adjudicator.   

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Haran Viswanathan

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Small v. New Brunswick Liquor Corporation, 2012 NBCA 53

The New Brunswick Court of Appeal considered the distinction between the reasonableness standard and the correctness standard of review as applied to questions of pure statutory or contractual interpretation. The court identified an overlap between the two standards: while an administrative adjudicator’s interpretation may attract deference, an adjudicator is never entitled to deviate from accepted interpretive methodology. Consequently, the Court of Appeal upheld the lower court’s finding that an adjudicator’s interpretation of the By-laws of the New Brunswick Liquor Corporation (the Corporation) was unreasonable.

The respondent employer had dismissed the appellant employee, Anne Small, without cause, which the appellant grieved under the Public Service Labour Relations Act, RSNB 1973, c P-25. The adjudicator awarded her the retirement allowance sought, basing his decision on his interpretation of the Corporation’s bylaws under Article 22.04. Article 22.04 deems “dismissed” employees ineligible for any retirement allowance; the adjudicator found ambiguity in the term “dismissed” and read it down to mean only “dismissed with cause.” Article 22.01 deems “laid off” employees eligible for the retirement allowance; the adjudicator relied on his interpretation of the former provision to interpret “laid off” as including “dismissed without cause.” On appeal, the applications judge found the adjudicator’s interpretation of the By-law unreasonable and vacated the award.

The Court of Appeal held that it is unreasonable, and a fortiori incorrect, for an adjudicator to interpret statutory or contractual provisions except according to the textual, contextual, and purposive methodology which the law imposes. Where a provision is ambiguous, the adjudicator’s choice between two reasonable interpretations will generally prevail under the deferential standard of review; but the adjudicator must first have employed the correct interpretive methodology to determine whether the provision was truly ambiguous. The adjudicator erred  by interpreting Article 22.04 as a stand-alone provision, then relying on that interpretation to interpret Article 22.01(l). Moreover, the adjudicator interpreted “laid off” in Article 22.01(l) without reference to the definition of “layoff” in Article 2.01(k). Robertson JA found that under the requisite textual, contextual, and purposive interpretive methodology, the provisions admitted of no ambiguity; rather, they unambiguously excluded the appellant from eligibility for the retirement allowance under any reasonable interpretation.

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Aaron SanFilippo

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R v. W.C.K., 2012 ABCA 185

In this case, the Alberta Court of Appeal considers whether a young  accused, who is not aware of the charge being laid against him, can give a fully informed waiver of the right to consult with counsel and a parent, adult relative or other appropriate adult chosen by the accused. In addition, the court clarifies the relationship between section 146 of the Youth Criminal Justice Act (“YCJA”) and the Charter. The court unanimously held that a waiver under section 146 of the YCJA is not valid unless an accused understands the charges against him.

The accused had been arrested for a break and enter and breach of probation. The police obtained further information implicating the accused in the dangerous driving of stolen vehicles. A detective took the young accused through a form designed to explain his rights under section 146 of the YCJA; the accused signed the form thereby waiving his right to consult. After the form was signed, he was told that he was being charged with possession of stolen property and dangerous driving.

With respect to the relationship between section 146 of the YCJA and the Charter, the court held that the two analyses have much in common, but they are not the same. The trial judge must first determine whether the requirements of section 146 of the YCJA have been satisfied; the onus of establishing a valid waiver beyond a reasonable doubt rests with the Crown. If the requirements are satisfied, the trial judge must go on to consider whether there has been a section 10 Charter breach that should attract a section 24 remedy. The accused bears the burden of establishing a section 10 Charter violation.

In this case, the court was of the view that the accused “was taken through a very important part of the process without knowing the charges against him, and this… taints the entire process.” The court held that a young accused could not give a fully informed waiver under section 146 of the YCJA without knowing the charges against him. It also stated that the standard for a valid waiver of the right to counsel is very high. In the result, the Crown’s appeal was dismissed.

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Brandon Walker

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