Friday, December 30, 2011

Bartram v. Glaxosmithkline Inc., 2011 BCCA 539

In Bartram v. Glaxosmithkline Inc., the Court of Appeal for British Columbia ruled that the plaintiffs in a potential class action suit against pharmaceutical giant Glaxosmithkline Inc did not have to produce medical and pharmaceutical records at the pre-certification stage.

The child of the plaintiff Mrs. Bartram was born with birth defects. She applied for certification of a class action suit to represent mothers who took the drug Paxil during pregnancy and their children. The heart of the claim was an alleged failure on the part of Glaxosmithkline Inc., manufacturer and marketer of the drug, to warn against the risk of birth defects resulting from pregnant women taking the drug. A chambers judge had dismissed Glaxosmithkline Inc.’s application for production of the medical and pharmaceutical records prior to the certification decision being made, leading the company to file for leave to appeal the decision.

Prowse J. upheld the chambers judge’s finding that there were no exceptional circumstances that would justify ordering production of medical evidence at such an early stage in the class proceedings. Ruling otherwise would, in her words, “transform what is a recognized exception to the practice into the norm.” Such a development would have allowed potential defendants in personal injury class action suits – a rapidly expanding area of Canadian jurisprudence – to try sway the courts against certifying by commanding evidence related to the strength of the plaintiff’s substantive claim rather than the rationale for certification.

December 30, 2011
Link to Decision

Radostina Pavlova
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Thursday, December 22, 2011

R. v. D.J.W., 2011 BCCA 522

In this case, the British Columbia Court of Appeal held that the religious freedom protections in the Charter of Rights and Freedoms do not protect a parent from criminal prosecution, in a case in which a father circumcised his son himself for religious reasons, and in defiance of doctors' advice, harming the child.

The accused became convinced that his son must be circumcised “to make things right with God”, but doctors refused to perform the procedure for medical reasons. The accused attempted to circumcise his four-year- old son in the kitchen of his home. The attempt injured the boy and he had to undergo an operation to prevent disfigurement and functional impairment. The accused was convicted of criminal negligence causing bodily harm, contrary to s.221 of the Criminal Code. He was acquitted of aggravated assault (s.268(2)) and assault using a weapon (s. 267(a)). The Crown appealed the acquittals and the accused appealed the conviction.

The accused argued on appeal that “freedom of religion” was a defence to the charges against him. The Court of Appeal held that the Criminal Code provisions did not infringe the accused’s religious freedom because his religion did not demand that the circumcision be performed by the accused, nor did it demand that the circumcision be performed immediately so that the accused had no alternative than to do it on his own. The accused also argued that since a parent may consent to a circumcision, performed by a person who is not a doctor, on behalf of their child, they may also perform a circumcision on their child personally. The Court of Appeal held that a parent may only consent to have force applied to their child where the force is reasonable in the circumstances and in the child’s best interests. Performing this operation in such a dangerous manner as the accused employed here was unreasonable. It was not in the child’s best interests.

 December 22, 2011
Link to Decision

Meagan Jemmett
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Wednesday, December 14, 2011

Ewachniuk Estate v. Ewachniuk, 2011 BCCA 510

In this case, the B.C. Court of Appeal considered the appropriate limitation period under the Limitation Act, RSBC 1996, c 266, for bringing an action to enforce payment on a “delayed demand” promissory note. The promissory note stated that a specified sum was “payable one year after demand” and the note had been created 28 years prior to the issuance of a demand for payment. The defendant had failed to make payment within a year of the demand and contended that the note was unenforceable under section 3(5) of the Limitation Act, which provided that an action could not be brought following “6 years after the date on which the right to do so arose.”

After an extensive inquiry into the soundness of authorities relating to limitation periods for delayed-demand notes, Chief Justice Finch upheld the trial judge’s decision that enforcement of such a promissory note was not barred by the Limitation Act, holding that the date on which the right of action arose was one year after the demand for payment. Finch, J. upheld Zeitler v. The Estate of Alfons Zeitler, 2008 BCSC 775, which held that: 1) the demand in a delayed- demand promissory note may properly be characterized as a contingent future event and the end of the designated period following the demand marks the moment when the cause of action arises; and 2) there is no merit to the argument that the “demand” in a delayed-demand note may never be made and is not due at a “determinable future time” (as required by the Bills of Exchange Act, RSC 1985, c B-4, s 23(b)). Accordingly, the limitation period did not begin to run until the expiry of the one-year period following demand.

 Justice Ryan concurred in the result but stated that she would not have overruled earlier authorities regardless of whether these were wrongly decided, asserting that the maxim communis error facit jus (“common error makes law”) applied since this construction of the limitation period for delayed-demand notes had long been accepted in commercial practice.

December 14, 2011
Link to Decision

Grant Bishop
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Tuesday, December 13, 2011

Almrei v. Canada (Attorney General), 2011 ONCA 779

In Almrei v. Canada, the Court of Appeal of Ontario identified circumstances in which the decision to dismiss a motion brought under Rule 20 for summary judgment will constitute a final order of the court, and, as a result, the motion judge’s decision may be appealed. The Court established that in the case where the resolution of a particular issue in summary judgment gives rise to res judicata, the order to dismiss the motion for summary judgment is final and may be appealed.

The appellant was suing the state for damages alleging, among other things, negligent investigation, false imprisonment, and breaches of ss. 7, 9, and 12 of the Canadian Charter of Rights and Freedoms. These actions arose out of the Attorney General issuing a security certificate in 2008 under the Immigration and Refugee Protection Act and holding the appellant in custody for many years. The trial judge determined that the security certificate was unreasonable and quashed it. The appellant sought partial summary judgment in his action against the Attorney General on the basis of issue estoppel, arguing that the parties were bound by the decision made by the trial judge. The Attorney General moved to quash the appeal on the claims that the order to dismiss the appellant’s motion for summary judgment was not final.

Although an order dismissing a motion for summary judgment brought under Rule 20 is not necessarily a final order in that it determines only that there are genuine issues for trial, if the order is res judicata, then the order may be final. In this case, the appellant singled out for resolution the issue of issue estoppel, which was found by the motion judge to not be available. The issue of issue estoppel is res judicata, and, therefore, the appellant cannot raise it and the order dismissing the motion for summary judgment is a final order of the court. As a result, the appellant may appeal the motion judge’s decision to dismiss his motion for summary judgment.

December 13, 2011
Link to Decision

Pedram Moussavi
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Wednesday, December 7, 2011

Islam v. Sevgur, 2011 NSCA 114

In Islam v. Sevgur, the Nova Scotia Court of Appeal provided a non-exhaustive list of relevant factors for deciding if a Registrar's motion to dismiss an appeal should be granted. Saunders, J.A. held that the onus was on the appellant to introduce evidence that it would not be in the interests of justice to dismiss the appeal.

The issue arose when the appellant's interlocutory appeals during his divorce proceedings failed to meet procedural requirements, prompting the Registrar to move for their dismissal. Civil Procedure Rule 90.43 provides the judge with discretion to decide whether the Registrar's motion should be granted. In the absence of guidance in Rule 90.43, Justice Saunders introduced his own approach, stating that the appellant must satisfy the court, on a balance of probabilities, that the Registrar's motions should be denied. He held that the appellant had to convince the court that it would not be in the interests of justice to dismiss the appeal for non-compliance.

Saunders, J.A. stated eight factors for consideration but held that they were not a complete list:

(i) whether there is a good reason for the appellant's default,
sufficient to excuse the failure.
(ii) whether the grounds of appeal raise legitimate, arguable issues.
(iii) whether the appeal is taken in good faith and not to delay or
deny the respondent's success at trial.
(iv) whether the appellant has the willingness and ability to comply
with future deadlines and requirements under the Rules.
(v) prejudice to the appellant if the Registrar’s motion to dismiss
the appeal were granted.
(vi prejudice to the respondent if the Registrar’s motion to dismiss
were denied.
(vii) the Court's finite time and resources, coupled with the
deleterious impact of delay on the public purse, which require that
appeals be perfected and heard expeditiously.
(viii) whether there are any procedural or substantive impediments
that prevent the appellant from resuscitating his stalled appeal.

In reviewing the evidence, Saunders, J.A. concluded that the Registrar's motions should be granted as there would be neither prejudice to the appellant, nor was he persuaded by the appellant's reasons for non-compliance. Furthermore, Saunders, J.A. found that the denial of these appeals would prejudice the respondent. Hence, all of the appeals were dismissed.

December 7, 2011
Link to Decision

Adrienne Ho
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Tuesday, December 6, 2011

Davis v. Guelph, 2011 ONCA 761

In Davis v. Guelph, the Ontario Court of Appeal clarified the definition of a “room or place actually being used as a dwelling” for the purposes of the Municipal Act and the Building Code Act. The Court held that the term means "a building, room or physical structure that is actually being occupied and used as a residence or live-in accommodation", and that a backyard swimming pool did not meet this definition. The Court also held that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order is a "loose" version of the reasonable apprehension of bias standard.

Under the Municipal Act and the Building Code Act, municipalities may pass by-laws permitting their officials to enter property for purposes of inspection without consent and without a warrant, excluding any “room or place actually being used as a dwelling.” Blair J. pointed out that there is no definition of "dwelling" in any Ontario legislation, but looked to legislation from other provinces and definitions of similar terms in Ontario legislation to conclude that the term refers to a room or place being used as living space. Stating that there is a distinction between a private dwelling and a person's backyard on the basis that there is a significantly reduced expectation of privacy in the latter, Blair J. reasoned that a backyard swimming pool does not fall within the definition of "room or place actually being used as a dwelling" under the relevant legislation.

Blair J.A. also noted that the appropriate test for bias in a situation where a municipal officer issues a repair order or bylaw compliance order had not yet been determined in previous caselaw. He reasoned that such decisions were closer to "enforcement" than to "adjudicative" decisions on the spectrum between the two categories. He nonetheless concluded that the reasonable apprehension of bias standard, rather than the "closed mind" test, should apply, but that the test should not to be applied in its strictest form.

December 6, 2011
Link to Decision

Rebecca Crangle & Kai Sheffield
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Friday, December 2, 2011

Burrell v. Metropolitan Entertainment Group, 2011 NSCA 108

In Burrell v. Metropolitan Entertainment Group, the Nova Scotia Court of Appeal considered whether casino operators and public regulators owed either a statutory of common law duty of care to a gambling addicts.

The appellant became addicted to gambling and from between 1995 and 2003 he lost approximately $500,000 at the respondent’s casino. In 2004, at the request of the appellant, the respondent served the appellant with notice to stay away from the casino pursuant to s. 3(1) (e) of the Protection of Property Act, R.S.N.S. 1989, c. 363. This section makes it an offence to enter the premises when prohibited by notice. The notice excluding the appellant was renewed every six months.

Seeking to recover his losses prior to the 2004 notice, the appellant argued that the respondents had a duty of care to not permit him to gamble, either statutorily or at common law.  He argued that provisions in the Gaming Control Act, as well as Casino Regulations section 20(1), since repealed, which required casino operators to "implement policies and procedures" to identify and exclude gambling addicts, gave rise to such a duty.

Fichaud JA., writing for the Court, held that a casino operator did not owe a general common law duty of care to gamblers. However, once the casino undertook to exclude the appellant or if there was individually targeted promotion it created exceptional circumstances that could give rise to a duty of care. On the facts of the case, the appellant did not have a valid claim in negligence; his losses had pre-dated his exclusion from the casino, thereby lacking sufficient proximity to the duty of care owed, and even if general casino advertising to the public gave rise to a prima facie duty of care to all gamblers, the decision to allow casino gambling was a governmental policy choice, not an operational choice, and therefore did not satisfy the second stage of Anns.

December 2, 2011
Link to Decision

Heather Palin & Kai Sheffield
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