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
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Radostina Pavlova
*

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
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Meagan Jemmett
*

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
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Grant Bishop
*

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
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Pedram Moussavi
*

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
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Adrienne Ho
*

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
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Rebecca Crangle & Kai Sheffield
*

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
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Heather Palin & Kai Sheffield
*

P.E.I. Music v. Gov't. P.E.I. & HRC, 2011 PECA 18

In P.E.I. Music v. Gov't. P.E.I. & HRC, 2011 PECA 18, the Prince Edward Island Court of Appeal considered whether the statutory one-year limitation period in section 22(2)(b) of the P.E.I. Human Rights Act begins to run on the date of the alleged act, or when the material facts upon which the complaint is based have been discovered or ought to have been discovered by a complainant with the exercise of reasonable diligence, as per the common law discoverability rule. The Court found that the common law discoverability rule applies to the Act, so the respondents were not barred from bringing their suit by the statutory limitation period.

In 1991, the Liberal Government legalized video gambling, and through the Atlantic Lottery Corporation, licensed P.E.I. Music to supply and maintain video lottery terminals (VLTs) in bars and stores. In 2002, the Conservative Government took over the VLT business from P.E.I. Music and cancelled their license by legislation. P.E.I. Music was not compensated, although other retailers whose licenses were canceled were. In April 2007, P.E.I. Music, whose owners were well known Liberal Party supporters, made a complaint to the Human Rights Commission that the Government had discriminated against them in a matter of employment on the basis of political belief. The Commission dismissed the complaint on the basis of the s. 22(2)(a) statutory limitation period, and P.E.I. Music's application for judicial review was then granted by the applications judge. The Government appealed to the P.E.I. Court of Appeal.

Applying a purposive approach to the question of statutory interpretation, the Court noted that human rights legislation has a special status above other laws of the province. The Court reasoned that, given that human rights legislation should be interpreted in a “liberal and purposive manner” and such legislation’s quasi-constitutional nature, it would be “unjust to a claimant to terminate the cause of action before the claimant becomes aware of it”. Since the complainant bears the onus of proving discrimination, and this can only be done with knowledge of the impugned act, if follows that the common law discoverability rule must apply to s. 22(2)(b).

November 24, 2011
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Catherine Marchant & Alexa Mingo
*

R. v. Nguyen, 2011 BCCA 471

In this case, the British Columbia Court of Appeal considered what form an order of forfeiture should take in the forfeiture provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended. The court held that an order of forfeiture should take the form of “property” rather than a “financial interest” in property, and accordingly allowed the appeal in part.

Both respondents were convicted of charges relating to marijuana offences. At the sentencing hearings, the trial judges ordered a forfeiture of a financial interest in their residential properties. The Court of Appeal set aside the form of the trial judges’ forfeiture orders, although the court affirmed the scope of the orders. The court relied on contrasting terminology in ss.19 and 19.1 and s.20: the former two employ “property” whereas s.20 refers to an “interest.” Additionally, orders in the form of financial interests would tend to blur the distinction between the sentencing process and the forfeiture process, a distinction that the Supreme Court stated  was necessary to maintain in R. v. Craig, 2009 SCC 23. Finally, the court rejected the financial interest form because this process would unduly prolong the criminal process.

November 24, 2011
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Fidelia Ho
*

Canada (National Revenue) v. Canada, 2011 FCA 314

In this case the Federal Court of Appeal considered whether an entitlement to remuneration based on a per diem rate established in advance is a “fixed or ascertainable stipend or remuneration” within the context of the Canada Pension Plan, when it is not possible to determine in advance how many days of service will be required. The Court held that such remuneration meets that definition.

By the combined operation of ss. 2 (definition of “office”) and 6 of the Canada Pension Plan and s. 24 of the Canada Pension Plan Regulations a member of the Ontario Judicial Appointments Committee is engaged in pensionable employment if that position carries the entitlement to a “fixed or ascertainable stipend or remuneration.” Having acknowledged that there is inconsistent case law on the subject, Sharlow J.A. determined that there is “nothing in the language of the definition of “office" read in its statutory context, that justifie[d] the Court in interpreting the phrase “fixed or ascertainable” to require an advance determination of the total remuneration for a particular year.” Sharlow J.A. thus concluded that “a legal entitlement to a per diem rate of remuneration established in advance is sufficiently “fixed or ascertainable” to meet the statutory test.”

November 16, 2011
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Rebecca Crangle & Alexa Mingo
*

Howalta Electrical Services Inc. v. CDI Career Development Institutes Ltd., 2011 ABCA 234

In this case, the Alberta Court of Appeal considers whether a defendant in a tort suit may seek contribution from an alleged co-defendant under the Alberta Tort-Feasors Act, when the original plaintiff is barred from bringing suit against this co-defendant for reasons which do not negate fault. The issue arises from a fire that destroyed a building occupied by the tenant. The insurance company paid out the owner of the building and brought a subrogated suit against contractors who were working in the building (defendant) and the tenant of the building (co-defendant). The contractors allegedly caused the fire through negligence, while the tenants allegedly failed to notify the landlord when the smoke/fire was discovered, in violation of the lease. The subrogated suit against the tenant was discontinued upon discovery that the tenant contributed to payment of the insurance in accordance with the lease and so the suit was barred. The contractors issued notices seeking contribution and indemnity from the tenant under the Tort-Feasors Act.

The section of the Tort-Feasors Act at issue in this appeal is s. 3(1)(c), which allows a tort-feasor to “recover contribution from any other tort-feasor who is or would, if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise…” The majority opinion of the court, delivered by Côté J., interpreted the pre-condition to recovery as requiring that the co- defendant (or “other tort-feasor”) be liable to the original plaintiff. This interpretation was based on an understanding of the world “liable” as including an element of enforceability and requirement of performance. Côté J. also looked to case law, and instances where procedural bars to bringing suit against the tort- feasor directly barred indemnity claims. Finally, Côté J. noted that “this bar to indemnity claims makes the law consistent. Someone not directly liable to the plaintiff should not be liable in a suit brought by the plaintiff, and so indirectly have to pay the plaintiff on the forbidden claim. The plaintiff and the defendant claiming contribution cannot do indirectly what is forbidden directly.” The court thus allowed the appeal, dismissing the claim for contribution.

O’Ferrall J. provided separate reasons, concurring in the result. O'Ferrall J. first noted that the Act at issue was enacted for the purpose of removing the common law 'rule' preventing tort-feasors from seeking contribution from other tort-feasors. As such, interpreting the legislation so that it likewise prevents proper sharing of liability is contrary to legislative intent. Additionally, O’Ferrall J. pointed to the words “whether as a joint tort-feasor or otherwise” in the section, and concluded that the “otherwise” refers to situations when the party from whom contribution is sought is not a joint tort-feasor, but nevertheless may be liable for all or part of the same damage/ harm. Consequently, O’Ferrall J. interpreted s. 3(1)(c) as permitting contribution from the co-defendant tort-feasor provided that the co- defendant is liable to either the plaintiff or to the defendant seeking contribution, so long as harm to the plaintiff is the same. The claim for contribution was dismissed because there was no pleadings or evidence suggesting that the tenant would have been liable to the contractors.

November 15, 2011
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Rebecca Crangle
*

Imperial Tobacco Canada Limited v. Canada, 2011 FCA 308

In this case, the Federal Court of Appeal held that payments made by a company to its own employees for surrendering options to acquire the appellant’s shares in the context of a capital reorganization were payments "on account of capital" and therefore could not be treated as employee compensation for income tax purposes and deducted pursuant to the federal Income Tax Act.

The payments were made to employees who held rights under an employee stock option plan in order to facilitate a “going private transaction” under which an acquirer would acquire all of the appellant’s shares held by public shareholders. Justice Sharlow found that terminating the appellant’s obligations under the stock option plan facilitated the proposed capital organization, and this constituted a payment on account of capital, being a “once and for all payment” that resulted in a benefit “of an enduring nature.” Accordingly, Justice Sharlow upheld the decision of the Tax Court that the payments were on account of capital, finding no palpable and overriding error in the Tax Court’s conclusions on such a question of mixed law and fact.

November 10, 2011
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Grant Bishop
*

Gill v. Hurst, 2011 NSCA 100

In this case, the Nova Scotia Court of Appeal resolved a conflict between the Land Registration Act ("LRA") and the Matrimonial Property Act ("MPA") regarding the division of the matrimonial home between a law firm holding a charge against one divorced party's interest in the home, and that party's ex-spouse who was owed an equalization payment as a result of the divorce. The Court held that the law firm's charge took priority because the judgment creating the charge was entered prior to the judgment creating the equalization payment, and the trial judge could not displace the firm's charge or impair its priority through the exercise of its equitable discretion.

The dispute arose when the respondent's wife initiated divorce proceedings against him. The respondent retained Wickwire Holm, a law firm, to represent him in the proceedings, but later fired the firm. On July 27, 2009, Wickwire Holm had a judgment of $67,405.23 for unpaid legal fees entered against the respondent. On August 5, Wickwire Holm entered the judgment under the Land Registration Act, which gave the firm a charge over Mr. Gill's interest in the matrimonial home, held in joint tenancy with his wife. On October 10, 2010, the trial judge resolved the divorce proceedings, granting the respondent's wife a share of the respondent's joint tenant interest as part of an equalization payment.

Bryson, J.A. rejected the trial judge's determination that the respondent's ex-wife's claim to the respondent's joint tenant interest took priority over the Wickwire Holm judgment. The trial judge reasoned that the ex-wife's claim had priority because she had an equitable claim to the respondent's share, and she put Wickwire Holm on notice that she would be pursuing this claim. Noting that the ex-wife's proprietary interest in the respondent's joint tenant interest arose well after the Wickwire Holm judgment, Bryson, J.A. stated that the trial judge improperly exercised its discretion to rearrange existing property rights. The trial judge exercised equitable jurisdiction, but Bryson, J.A. held it did so improperly because equitable discretion requires that the court recognize a pre-existing property right. In divorce actions under the MPA, no such rights are created until the court makes an order creating the rights. Otherwise, there is a statutory presumption of equal ownership under the MPA.

In light of this determination, Bryson, J.A. held that the issue of whether notice was given to the ex-wife by Wickwire Holm was irrelevant.

Bryson, J.A. pointed out that the decision has the effect of allowing the respondent to grant his lawyer a mortgage over his interest in the matrimonial home indirectly, even though a direct granting of this interest is prohibited under the MPA. However, he reasoned that this prohibition under the MPA does not extend to blocking the statutory remedy granted under the LRA.

In dissent, Fichaud, J.A. characterized the respondent's actions in accruing debt to Wickwire Holm and allowing the law firm to register a charge against his interest in the matrimonial home as the creation of an "encumbrance" on the matrimonial home. Since the MPA, section 10(1)(d), grants the court discretion to set aside any such encumbrance, Fichaud, J.A. reasoned that the trial court was within its jurisdiction to set aside Wickwire Holm's claim in favour of the claim of the ex-wife. He would have dismissed Wickwire Holm's appeal.

 November 1, 2011
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Kai Sheffield & Katerina Svozilkova
*

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 425

In Ahousaht Indian Band and Nation v. Canada, the British Columbia Court of Appeal considered whether an award of special costs to the respondent First Nations groups was justified in a case concerning the adjudication of their Aboriginal rights over commercial fisheries. Reasoning that the case did not raise sufficiently exceptional matters of public importance and that the litigation was, at least indirectly, in the respondents' economic interest to pursue, the Court held that special costs were not justified.

The underlying case concerned the aboriginal rights of the respondent First Nations groups to commercially fish for any species of fish within certain territories. At trial, the respondents won a declaratory judgment as to the existence of those rights. They were awarded costs, and also special costs because of the public significance of the constitutional litigation they had undertaken. Canada appealed the award of special costs.

The framework for the awarding of special costs in Victoria (City) v. Adams, 2009 BCCA 563, was the focus of the Court's analysis. Noting that it was not disputed by the parties that at least two of the four Adams factors (appellant's superior capacity to bear the costs, and the absence of abusive, vexatious or frivolous conduct) weighed in favour of special costs, the Court proceeded to analyze the remaining two factors: whether "The case involves matters of public importance that transcend the immediate interests of the named parties, and which have not been previously resolved," and whether "The successful party has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically."

 In regards to the "public importance" factor, the Court held that an award of special costs requires exceptional circumstances beyond merely being "difficult cases" that are of "general interest". The Court reasoned that such cases can already give rise to elevated costs under the British Columbia Rules of Court s.2(3), and that an award of special costs must therefore require something more. In this case, while the proper resolution of aboriginal fishing claims was "significant," it was "questionable" whether the litigation established principles that may well be applicable to other aboriginal rights cases because the case did not "break novel ground in establishing legal principles". The Court reached this conclusion despite noting that the trial judge developed certain points of aboriginal law, including modifying the test for the existence of an aboriginal right from R. v. Van der Peet, [1996] 2 SCR 507, and reconciling into a single analysis the test for infringement of an aboriginal right from R. v. Sparrow, [1990] 1 SCR 107, and R. v. Gladstone, [1996] 2 SCR 723. Contrasting this case to an earlier case on Aboriginal fishing rights, Lax Kw'alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593, the Court argued that the different outcome in this case was largely fact-driven, and that it did not rise to the exceptional level of public importance required for an award of special costs.

 In regards to the "pecuniary interest" factor, the Court held that any pecuniary interest, whether direct or indirect, weighed against the awarding of special costs. Reasoning that the "pecuniary interest" factor derives from a concern that, in the absence of funding, an issue of public interest will not be considered judicially, the Court held that the respondents in this case had an indirect but "significant" interest in seeking a right to fish commercially. In the Court's view, it was relevant, but not determinitive, that the matter had gone to trial in the absence of pro bono representation. The Court also noted that both the claim for aboriginal rights and the evidence concerning infringement concerned economic interests.

 In concluding that special costs were not justified in this case, overturning the decision of the trial judge, the Court noted that there was "some force" to the notion "that an award of special costs in this case would open the door to such an award in all aboriginal rights cases."

October 31, 2011
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Mary Phan & Kai Sheffield
*

Moldovan v. Republic Western Insurance Company, 2011 BCCA 418

In Moldovan v. Republic Western Insurance Company, the British Columbia Court of Appeal considered whether s.103 of Part 7 of the Insurance (Vehicle) Regulation, B.C. Regulation 447/83, is inapplicable to a foreign insurer. The court held that the provision applies to anyone who commences an action for Part 7 benefits, whether the insurer is out-of-province or not.

The provision in question provides that “No person shall commence an action in respect of benefits” under Part 7 unless the action is commenced within two years after the date of the accident for which the benefits are claimed or, where benefits have been paid, the date of the last such payment. The plaintiff, due to inadvertence on the part of his solicitors, failed to bring the claim within the two year period. The insurer refused benefits, relying on s.103, and the plaintiff sought to have the insurer added as a defendant in the action pursuant to R. 15(5)(a) of the Supreme Court Rules, which permits the court to add a person as a party when it would be “just and convenient.” The master of the Supreme Court rejected the plaintiff’s application because he failed to bring the action within the limitation provided by s.103. The chambers judge held that s.103 didn’t apply and ordered the insurer to be added as a defendant.

The Court of Appeal upheld the decision, although on different grounds. Newbury, J.A. rejected the plaintiff's argument that foreign insurers' reliance on the "Power of Attorney and Undertaking System," an interprovincial system of contracts between insurers that allows insurers to respond to claims in respect of extra-territorial accidents, operated outside of British Columbia's statutory vehicle insurance regime. Noting that s.103 is not phrased as an obligation of the insurer, nor as a contractual term that must be incorporated by agreement before it will operate, but rather as a regulation applying to "any person who commences an action," Newbury, J.A. reasoned that the provision's application was universal. While s.103 would therefore be available to the insurer in defence of the plaintiff’s claim, the court held that s.4(1)(d) of the Limitation Act effectively removes the limitation defence where the rule is invoked, and dismissed the appeal.

October 27, 2011
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Fidelia Ho
*

Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc., 2011 SKCA 120

In Mosaic Potash Esterhazy Limited Partnership v. Potash Corporation of Saskatchewan Inc., Richards, J.A. clarified the law regarding the granting of interlocutory injunctions. He held that the proper approach to interlocutory injunction is flexible, and that the ultimate focus of the court must always be on the justice and equity of the situation at issue.

Potash Corporation of Saskatchewan ("PCS") was granted an interlocutory injunction against Mosaic Potash Esterhazy Limited ("Mosaic") that prevented Mosaic from discontinuing potash shipments to PCS. Mosaic contested the injunction claiming that the trial judge used an improper approach. Richards, J.A. reviewed Metropolitan Stores Ltd. v. Manitoba (Attorney General), the governing 1987 Supreme Court of Canada case on this point, in order to determine how the three tests or considerations identified in that case - strength of the case, the possibility of irreparable harm and the balance of convenience - operate in relation to one another. Richards, J.A. clarified that these three considerations are "not usefully seen as an inflexible straightjacket", but rather as providing a framework of interconnected tests in which justice and equity remain the Court's "ultimate focus".

Richards, J.A. proceeded to elaborate upon the proper approach to be taken in such cases. "Strength of the case" is a threshold issue in which the plaintiff must generally demonstrate that there is a serious issue to be tried. This general rule includes applications for mandatory relief. "Irreparable harm" is best seen as an aspect of the "balance of convenience." The standard of proof for irreparable harm is "meaningful doubt" as to the adequacy of damages. The "balance of convenience" consideration is usually at the core of the analysis and includes a range of equitable and other considerations. Richards, J.A. stressed that each aspect of this test is flexible and that the "overall equities and justice of the situation at hand" are the ultimate focus of the analysis.

October 24, 2011
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Kaitlind de Jong & Kai Sheffield
*

Red Seal Vacations Inc. v. Alves, 2011 SKCA 117

In Red Seal Vacations Inc. v. Alves, the Saskatchewan Court of Appeal held that it is not necessary for the representative plaintiff to have a cause of action against each defendant in order to certify a class action proceeding. Justice Caldwell held that a defendant in a multi-defendant class action cannot have the claim struck under Rule 173(a) of The Queen’s Bench Rules simply because there is no named party plaintiff with a claim against the defendant.

Red Seal, the defendant, contended that Ontario’s position on this issue should be followed. They submit that Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 51 O.R. (3d) 603 (Ont. Sup. Ct.) stands for the authority that for every named defendant in a proposed class action, there must be a party plaintiff with a cause of action against the defendant. However, the Saskatchewan Court of Appeal supported the position taken by the British Columbia Court of Appeal. According to Justice Caldwell, it is not “plain and obvious” that the claim against Red Seal cannot be certified because the statement of claim does not include a named plaintiff with a cause of action against Red Seal. An issue like this does not start as an “ordinary” action, but has special character from the beginning. Thus, it is not a pre-condition of certification that the representative plaintiff has a reasonable cause of action against each defendant. The Court of Appeal also rejected the policy argument that this will open the door for abuse by noting that class proceedings advanced on behalf of a class that does not exist will be prevented from being certified. Further, the costs that are awarded when a party engages in vexatious and frivolous lawsuits by unjustifiably naming defendants will serve as a deterrent against such behaviour.

October 18, 2011
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Kelly Ng
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Canada (Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286

In Canada (Public Safety and Emergency Preparedness) v. Shpati, the Federal Court of Appeal considered the question of whether removal from Canada should be deferred for a refugee claimant who has a pending judicial review of a negative pre-removal risk assessment ("PRRA"). The claimant submitted that if they were removed, their right to have a negative PRRA judicially reviewed would be rendered moot.

The Federal Court of Appeal found that, should removal be deferred for these reasons, it would amount to an automatic stay where a refugee claimant applies for a judicial review of a negative PRRA. Since the Immigration and Refugee Protection Act, S.C. 2001, c. 27 already prescribes a number of circumstances where an automatic stay would be applied, interpreting otherwise would be contrary to the statutory scheme. Furthermore, the potential mootness of the judicial review does not necessarily constitute irreparable harm under the tripartite test described by El Ouardi v. Canada (Solicitor General), 2005 FCA 42 and Palka v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165. Since the mootness of the action does not constitute irreparable harm, there is no reason why enforcement officers should be legally obligated to consider it when determining a request for deferral of removal.

October 18, 2011
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Mary Phan
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Smith v. Inco Limited, 2011 ONCA 628

In Smith v. INCO Limited, the Ontario Court of Appeal held that nickel particles released by Inco's operations and deposited in the plaintiffs' lands that raised unproven concerns about potential health risks did not constitute actionable private nuisance, despite the potential for diminuation of property values. The Court, writing per curiam, also clarified the operation of Rylands v. Fletcher in Ontario, finding that there is no independent common law rule of strict liability for extra-hazardous activities, and holding that, for the purposes of the Rylands tort, a nickel refinery is not a "non-natural use of land." Lastly, the Court clarified, in dicta, the other elements of the Rylands tort.

This class action was originally brought under Pearson v. Inco. The trial judge found that nickel emissions from the Inco plant had contaminated the plaintiffs' private properties, adversely affecting their value. Furthermore, Inco was held liable under private nuisance and also under the Rylands v. Fletcher strict liability rule.

The Court of Appeal reversed the trial courts ruling on both nuisance and Rylands v. Fletcher liability. To establish nuisance, the claimants had to show physical damage to their land caused by the nickel deposits. The Court held that without evidence the deposits had some detrimental effect on the land itself, rights associated with the use of the land, or the health and well-being of the occupants, the change in the chemical composition of the soil did not constitute physical damage. Public concerns about the nickel deposits that may have affected the plaintiffs' property values did not by themselves amount to actual, substantial, physical damage.

In regards to liability under Rylands v. Fletcher, the Court first clarified the juridical basis for the Rylands rule, holding that it does not arise from any broader rule of strict liability for those whose activities are extra hazardous. The Court then found that there was no liability under Rylands because the claim did not meet the "non-natural use" element of the tort; a nickel refinery that uses nickel brought in from off-site was not a "non-natural use," the Court reasoned, because it was an "ordinary or usual" use for land in a heavily industrialized part of the city. The Court stated that this was consistent with the "user appropriate" approach outlined in Tock v. St. John’s Metropolitan Area Board, a 1989 Supreme Court of Canada case.

In dicta, the Court clarified the other elements of the Rylands tort, suggesting that foreseeability by the tortfeasor of the kind of damages suffered may be an element of the tort, and also that, while the tort applies to the repeated and cumulative effects of multiple "escapes," it may not apply to "escapes" that are the intended result of the activity undertaken by the defendant.

October 7, 2011
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Diego Beltran, George Pakozdi & Kai Sheffield
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Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624

This case explicitly addresses question of the jurisdiction of appeals regarding orders granting or denying access to exhibits after the criminal matters in which the exhibits were filed were completed. In it, the Ontario Court of Appeal held that the characterization of the proceedings are civil in nature and not criminal. Therefore, appeals of this type may go through the intermediate court of appeal rather than directly to the Supreme Court of Canada as per s. 40(1) of the Supreme Court Act.

Doherty, J.A. reasoned that because the criminal proceedings were fully and finally disposed of, there was no reason to characterize an application to obtain access to exhibits submitted in the criminal proceedings as a criminal matter. The proceedings were therefore civil in nature.

Furthermore, Doherty, J.A. reasoned that characterization of the proceedings as civil had a functional benefit by providing the right to appeal to an intermediate court of appeal, as opposed to the requirment of seeking leave to appeal to the Supreme Court of Canada that exists for criminal proceedings. Justice Doherty also noted that intermediate courts of appeal play a meaningful role in the resolution of individual cases and the development of a coherent and effective jurisprudence. Therefore, characterizing the proceeding as civil also enhances the effectiveness of the administration of justice.

October 5, 2011
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David Hoang
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Town of Gander v. Gander International, 2011 NLCA 65

The Supreme Court of Newfoundland and Labrador Court of Appeal held that s.17 of the Assessment Act, RSNL 1990, c. C-44 [the “Act”], required the municipal assessor to take into account the special lease restrictions imposed on the Gander International Airport Authority [the “Authority”] when assessing the Gander International Airport [the “Airport”] for taxation purposes. Section 17(1) of the Act mandates an assessor to assess property at its fair market value.

Justice Welsh first dealt with a gap in s.44(2) of the Act, holding that a review of the assessment review commission’s decision should “proceed by way of inquiry into the matter anew,” rather than by way of judicial review of the commission’s decision [9]. The Authority leased the Airport from the federal government in 2001. The lease contains severe lease restrictions, requiring the Authority to operate an airport that, in 2001, “was not financially or economically viable”. Where the Crown leases property to a tenant, s.13 of the Act requires the property to be assessed as if the tenant were the owner. This, according to the majority, meant that the lease restrictions must be accounted for when determining “fair market value” under s.17.  The court went on to hold that the proper approach to determining fair market value is to first identify the market, even if it is a hypothetical one, and then to consider the proper method of valuation. In identifying the market for a public amenity under strict restrictions, the court held that in addition to the lease restrictions, the fact that public utilities are often exempt from taxation, due to their social utility and limited revenue generating abilities, should be taken into consideration. Ultimately, the court held that where no alternate use is possible, a willing buyer in an open market would not offer more than a nominal amount.

Dissenting, Justice Barry cautions that the majority decision “risks creating doubt regarding the established approach to valuation for assessment purposes, which recognizes that a tenant’s interest must be valued as though the tenant were the owner.” Accordingly, the land in this case should have been valued, “not as a mere interest under a restrictive ground lease but as an interest in fee simple”. The government is entitled to take possession of the property in the event that the Authority defaults. In this situation, the property would have value to a subsequent entity mandated to operate a major international airport at Gander. Therefore, the hypothetical market, though limited, exists. Furthermore, Justice Barry felt that the obligation to continue the operation of an airport distinguished this case from the public amenity cases.

October 4, 2011
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Steve Holinski & Katerina Svozilkova
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Re Jennifer Hart, 2011 NLCA 64

In Re Jennifer Hart, the Newfoundland and Labrador Court of Appeal held that a defendant is not entitled to continuously postpone an appeal process for the substitution of counsel when there is nothing to suggest that their counsel did not act professionally. Nor does the possibility that the appellant may not be mentally fit to conduct his appeal mandate that the appeal come to a halt.

 In the case, the court examined whether the appellant’s wife could be appointed his guardian ad litem during his appeal of murder conviction. Although he was represented by counsel at his trial and at earlier stages of the appeal process, he dismissed his counsel who was appointed under s. 684 of the Criminal Code and has not sought to appoint other counsel or to request the Court’s further assistance in appointing counsel. Justice Green decided that the application to appoint Mrs. Hart as guardian as litem should be dismissed.

Justice Green assumed, but did not decide, that the Court had jurisdiction to appoint a guardian ad litem in these circumstances, but he concluded that the interests of the public and Mr. Hart in having the appeal decided in a timely manner outweighed the interests of Mr. Hart in having oral advocacy on this appeal. In light of the fact that four and a half years had passed since a notice of appeal was filed on behalf of Mr. Hart, Justice Green held that the appointment of a guardian ad litem or an order to assess Mr. Hart’s mental condition would only delay the appeal even further. Moreover, the amicus curiae, who was appointed by the Court on Mr. Hart’s behalf, had filed an extensive brief of legal argument pertaining to Mr. Hart’s appeal and Ms. Rosellan Sullivan, who was selected by Mr. Hart to be his legal counsel, filed a comprehensive factum in support of Mr. Hart’s appeal before he dismissed her as his counsel. Justice Green further noted that much of the delay in processing the appeal had resulted from Mr. Hart’s lack of cooperation in identifying counsel to act for him and his unwillingness to participate in the proceedings or make his wishes known to the Court.

October 4, 2011
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Michael Murphy
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Cassidy v. Canada, 2011 FCA 271

The Federal Court of Appeal clarified that the application of the formula set out in s.40(2)(b) of the Income Tax Act requires an annual determination, rather than a single determination at the time of disposition of the taxpayer’s “principle residence.” The formula set out in s.40(2)(b) is used to determine the capital gain tax payable on this disposition.

The Income Tax Act [the “Act”] allows an exemption on capital gains that are realized from the disposition of a principal residence. This exemption, per s.54(e) of the Act, is limited to 0.5 hectares unless the taxpayer can show that any additional land claimed was necessary for the use and enjoyment of the property. It is undisputed that Cassidy’s property was a principal residence, and at the time the property was purchased, zoning by-laws prohibited the land from being smaller than 2.43 hectares. Accordingly, more than 0.5 hectares was necessary for the use and enjoyment of the property.  In 2003, the year the taxpayer disposed of the property, zoning by-laws changed and Cassidy could have divided the land prior to disposition. The Crown argued that s.40(2)(b) called for a single determination of capital gain at the time of disposition. Since the land had been re-zoned at this time, only half a hectare of land was necessary for the use and enjoyment of the property, and accordingly only this amount should receive favourable tax status. Sharlow JA rejected this approach, holding that s.40(2)(b), interpreted according to the language and purpose of the Act, required an annual determination. According to Sharlow JA, the purpose of s.40(2)(b) is to relieve taxpayers from capital gain taxes where the gain is realized on the sale of their principle residence. Annual determination ensures that this benefit is partially available in the case of properties that do not meet the definition of “principle residence” for the entire period of ownership.

September 30, 2011
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Kaitlind de Jong & Steve Holinski
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CIBC World Markets Inc. v. Canada, 2011 FCA 270

In CIBC World Markets Inc. v. Canada, the Federal Court of Appeal held that the Excise Tax Act allows a goods and services tax (GST) registrant to make a second claim for input tax credits using a different method than that used for a prior claim concerning the same taxation year. Stratus J.A., writing for the court, found that while there are no words in the GST provisions of the Act that expressly allow a GST registrant to make such a claim, the general scheme and purpose of the GST provisions and the lack of statutory wording to the contrary support the possibility.

Justice Stratus noted that not only are there no words in the Act which prohibit more than one claim for input tax credits concerning the same taxation year, but that s. 225(3) specifically contemplates such a possibility. He held that while the objective of “fiscal certainty” would favour only allowing for one claim, this objective is not one that suffuses the entire Act. In fact, many sections work against such finality or “fiscal certainty.”

Finally, Justice Stratus decided that using a revised method is not contrary to s. 141.01(5) because the subsection merely requires consistency throughout the entire year once a method is chosen. It prevents using one method at one part of the year and another method at another part of the year. He concluded that this interpretation was consistent with the plain meaning of the Act.

September 30, 2011
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Mark Carter, Leo Elias & Marc Gibson
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Wallace v. Canadian Pacific Railway, 2011 SKCA 108

The Court in Wallace v. Canadian Pacific Railway clarified the duty of loyalty that lawyers owe to their clients in situations where there are conflicting interests. It was also found that the remedy of disqualification should not be used for punishment but to protect the public’s confidence in the legal profession and the administration of justice.

In this case, the respondent had its former counsel, the appellant, disqualified from acting as counsel for the representative plaintiff of an upcoming class action that the appellant had begun acting for while still working on unrelated matters for the respondent. In adjudicating the case, the Court applied the test from R. v. Neil concerning the "Professional Litigant Exception" and the "bright line" rule disallowing a lawyer simultaneously representing two clients whose interests are adverse. The Court held that the "Professional Litigant Exception" does not only apply to minor or non-contentious unrelated matters, and advocated a more flexible approach to the Neil test looking at all the circumstances.

Relevant factors for this analysis included: the size and sophistication of the former client; dependency on the solicitor; the type of cases worked on by the solicitor; the danger of confidential information being abused; vulnerability of the former client; and whether or not the solicitor’s actions would diminish the public’s confidence in the profession. In looking for a suitable remedy, it was found that even though the appellant had breached its duty of candour, disqualification would not be appropriate. Instead, the Court held that where there is no further relationship between the solicitor and former client to protect; where there is no risk of prejudicial use of confidential information; where disqualification would be unnecessarily costly to the parties; and where other remedies are available to the former client disqualification should not be used.

September 28, 2011
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Liam Oster
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R. v. R.D.R., 2011 NSCA 86

In R. v. R.D.R. the Nova Scotia Court of Appeal held that the replacement of the Youth Offenders Act (YOA) with the Youth Criminal Justice Act (YCJA) did not change existing jurisprudence nor did it result in a special constitutional guarantee for young persons.

Beveridge J.A., writing for the court, held that the YCJA did not alter the proper approach to evaluating whether a young person's Charter right to be tried within a reasonable period was violated and rejected the argument that young offenders should be treated differently from adults in that respect.

The appellant, convicted in Youth Court, challenged the decision by the trial judge that his right to be tried within a reasonable period of time had not been infringed, arguing that the YCJA granted young persons "special guarantees" to be tried without delay. The appellant also submitted that previous jurisprudence holding that the YOA did not grant a constitutional guarantee to trial without delay should be disregarded. Beveridge J.A. disagreed, stating the YCJA did not create new requirements. Rather, the court held that the term "promptness and speed" in s. 3 of the YCJA must be read in context, and procedural fairness to the state and the accused take precedence over speed. In the case at bar the appellant was partly responsible for the delay, and Justice Beveridge held that the long period until trial did not violate the appellant's Charter rights.

September 27, 2011
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Adrienne Ho
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R. v. Khan, 2011 BCCA 382

In R. v. Khan, the Court of Appeal for British Columbia commented on the obligations of counsel and trial judge in the context of a Vetrovec warning and on the evidentiary burden associated with a third-party suspect defence.

In R. v. Khela, the Supreme Court of Canada held that, in a case where the testimony of unsavoury witnesses necessitates a Vetrovec warning, Crown and defence counsel must provide the jury with examples of evidence which can, or cannot, be considered confirmatory of the tainted witness’s testimony. Justice Frankel added that counsel have a responsibility to be correct in these submissions. If evidence is mischaracterized by counsel, the trial judge has a responsibility to correct that error in his instruction to the jury. The Court further considered that, where an unsavoury witness reports to police that he has been asked to participate in a crime, and that crime later occurs, evidence that the crime did in fact occur is capable of bolstering the witness’s credibility.

The Court also held that, in raising a third-party suspect defence, the accused does not have to show evidence of the third party’s opportunity, motive, or propensity to commit the crime in order for the defence to raise a reasonable doubt in the mind of a properly instructed jury.

September 27, 2011
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Zarya Cynader & Mary Phan
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Bodnar v. The Cash Store Inc., 2011 BCCA 384

In this case, the British Columbia Court of Appeal decided that a court has jurisdiction to replace the administrator of a class action settlement where the court has lost confidence in the settlement administrator. Justice Neilson dismissed the appeal, holding that replacing the administrator did not amount to varying or rewriting the terms of the settlement, and thus did not exceed the court’s jurisdiction.

A class action brought against a number of payday loan companies was settled, and the appellants were appointed administrators of the settlement agreement. However, they used the wrong formula for determining the claims of members and failed to respond to over forty claims. After the appellants failed to meet deadlines to rectify the problem, counsel for the class members sought to have them replaced as settlement administrators. The appellants argued that this would effectively rewrite the settlement agreement, a remedy which was not within the court’s jurisdiction.

Justice Neilson agreed with the chambers judge that the appellants did not demonstrate any prejudice arising from their removal and replacement as settlement administrators. This was an administrative matter and immaterial to the substance of the settlement. Under s. 12 of the Class Proceedings Act, the court has the authority to make any appropriate order to ensure the fair and expeditious conduct of a class proceeding. An order to replace a settlement administrator in whom the court has lost confidence is within the scope of that statutory power. Justice Neilson therefore dismissed the appeal.

September 27, 2011
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Zarya Cynader & Sam Golder
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R. v. Woodward, 2011 ONCA 610

In R. v. Woodward, the defendant challenged both his conviction and length of sentence in relation to the offence of luring by means of a computer system under (as it was then) s.172.1(1) of the Criminal Code. Writing for the court, Moldaver J.A., dismissed the appeal on both grounds and provided guidance as to the meaning of “computer system” under s.342.1(2) of the Code and the sentencing of offenders who engaged in the luring of children over the internet.

The appellant argued that text messaging via cell phone did not fall within the actus reus required under s. 172.1(1). Under that section a person must communicate with another by means of a computer system within the meaning of s. 342.1(2) of the Code. The court rejected the appellant’s argument, holding that text messaging required a “logic” and “control” function preformed by telephone networks to deliver messages between phones. This process amounted to a computer system. Supporting this finding, the court pointed out that Parliament has made two attempts to change the highly technical definition of computer system in the Code.

 The court also rejected the appellant’s argument that his sentence was in excess of the usual range of those convicted of similar offences. Moldaver J.A., noted that the decision of Rosenburg J.A. in R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.) has been incorrectly interpreted as setting the range of sentencing of 12 months to 2 years for offenders who engage in online luring. Instead, the court determined that internet luring was a pervasive social problem warranting stiffer sentences in the range of 3 to 5 years in order to meet the goals of deterrence, denunciation and separation of society. Moldaver J.A. then held that when considering a sentence in this type of case, “ the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.”

September 26, 2011
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Heather Palin
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Daishowa Paper Manufacturing Ltd. v. Canada, 2011 FCA 267

In Daishowa Paper Manufacturing Ltd. v. Canada, the majority of the Federal Court of Appeal ("FCA") affirmed the characterization of reforestation liabilities as proceeds of disposition for the purposes of the Income Tax Act (“ITA”). Mainville J.A., in dissent, held that such liabilities should flow with the property.

The case arose when the appellant sold two of its subsidiary timber businesses. Both sales included the assumption by the purchasers of medium-term silviculture (reforestation) liabilities whose values were fixed by the terms of sale. These liabilities arise when a stand of trees is cut down, but are not satisfied until a sufficiently reforested tree crop surpasses a free-growing growth point, typically after eight to fourteen years. Since subpara. 39(1)(a)(iv) of the ITA excludes timber resource properties from capital gain treatment, the Minister of Revenue (“Minister”) viewed the amounts as proceeds of disposition within the meaning of s. 13(21) of the ITA, and accordingly included them in the appellant’s income for the relevant taxation years.

The Tax Court of Canada agreed that the amounts were proceeds of disposition, but discounted the long-term liability for tax purposes to recognize that the actual cost of the liability cannot be known until some years after the sale. The FCA held that it was not open to the court to discount the liabilities, but Justice Nadon (Layden-Stevenson J.A. concurring) agreed that the reforestation liabilities should be included in the appellant’s proceeds of sale. Justice Nadon noted that both contracts agreed to a specific valuation of the reforestation liabilities, and held that this must be the valuation used for income tax purposes. He emphasized that for the purposes of the ITA, the distinction between absolute and contingent liabilities is irrelevant; the key question is how the parties have chosen to value the iability in their contract of sale. Furthermore, the deduction in price that the appellant assumed based on the assumption of liability by the purchaser cannot lead to a reduction of the value for income tax purposes.

Justice Mainville, dissenting, would have found that, as reforestation liabilities form an integral part of the forestry business, and as the government will not allow the sale without the inclusion of the liabilities, the liabilities flow with the property. Consequently, they cannot be regarded separately from the rest of the sale and should not be added to the proceeds of disposition. Justice Mainville held that the majority's approach would create a system in which vendors who do not specifically value their liabilities would escape taxation.

September 23, 2011
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Zarya Cynader, Marc Gibson & Mary Phan
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Sutherland v. Hudson's Bay Company, 2011 ONCA 606

In Sutherland v. Hudson's Bay Company, the Ontario Court of Appeal addressed the ownership of surplus funds in a company pension plan, holding that such funds were subject to the same equitable principles governing the pension fund itself, even though provisions in the plan documentation provided that the surplus funds could revert to the company in certain cases.

The respondents, former employees of Hudson's Bay Company ("HBC"), alleged that HBC had misappropriated surplus pension funds that were properly due to the employees as plan beneficiaries. HBC, relying on the result in Burke v. Hudson's Bay Company, argued that it was a beneficiary and entitled to the surplus under the plan's terms. Justice Gillese (MacFarland J.A. concurring) dismissed the appeal. Following the analysis set out in Schmidt v. Air Products of Canada Ltd., Gillese J.A. found that the pension fund in question was the subject of an irrevocable trust which explicitly extended to any surplus. Accordingly, as per Schmidt, equitable principles must prevail to the extent of any conflict with the plan documentation – including the provisions on which HBC purported to rely. Although it did not change the Schmidt framework, Burke was distinguished from the present case, as the plan at issue in Burke clearly limited the employees’ interest in their defined benefits only.

Justice Rouleau, dissenting, would have allowed the appeal. While agreeing that Schmidt remained authoritative and had not been altered in principle by Burke, he considered the former to be distinguishable. In the present case, as in Burke, he would have read the plan documentation in its entirety, so as to reduce or eliminate conflict, as a matter of contractual interpretation. Read in this way, he suggested, the documentation entitled HBC to the surplus.

September 22, 2011
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Zarya Cynader, Mary Phan & Kai Sheffield
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McLean v. City of Miramichi, 2011 NBCA 80

The Court in this case held that s. 17.91 of the New Brunswick Police Act, (the "Act") which states a police officer shall not be dismissed for “unsatisfactory work performance”, except in accordance with the provisions of the Act, should be broadly interpreted to include cases of involving the common law doctrine of frustration as well as “impossibility of performance.”

Justice Robertson found that the legislature made a conscious decision to alter the Act in 2005 in order to ensure that terminations for cause that do not relate to misconduct are dealt with by the legislation and not by common law. Justice Robertson therefore reasoned that the way in which complaints are originally characterized - whether or not they are stated as being related to misconduct - is not dispositive in determining whether it falls within the provision. Additionally, the powers of the arbitrator appointed under the Act are broad enough to deal with the issues of frustration of an employment contract.

September 22, 2011
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Sierra Robart
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McCaffrey v. Paleolog, 2011 BCCA 378

The British Columbia Court of Appeal held that a deliberate intent to evade child support obligations is not required in order to impute income to a spouse under s.19 of the Federal Child Support Guidelines [the “Guidelines”]. Further, the court clarified that childbirth does not automatically fall under  the “needs of the child” exception set out in s. 19(1)(a) of the Guidelines.  Finally, the court determined that it was inappropriate to fix a period of non-imputation based on the duration of maternity leave programs.

A mother, who had been ordered to make child support payments for children of a previous relationship, subsequently elected not to work. Instead, the mother chose to remain at home in order to care for a newborn child and her two-year old sibling. In determining whether to impute income to the mother under s.19(1)(a) of the Guidelines, the court rejected the Alberta jurisprudence requiring a finding of bad faith. The court also held that it was inappropriate to base the period of non-imputation on the duration of maternity leave programs: to do so would not take into account the positive obligation of a parent to support a child. While benefit schemes shift the burden of caring for children onto the employer or the public, child support payments shift the burden onto the payor parent. Further, not everyone is eligible for maternity leave programs, and neither can everyone afford the reduction in income that comes with such benefits. Finally, the court affirmed that a period of unemployment or underemployment is reasonable after childbirth. However, childbirth does not automatically exempt a parent from paying child support. The court affirmed that the circumstances of each situation must be evaluated on the criteria adopted in Watts v. Willie, and that any period of non-support must be reasonable.

September 22, 2011
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Fidelia Ho & Steve Holinski
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R. v. Deveau, 2011 NSCA 85

In R. v. Deveau, the Nova Scotia Court of Appeal held that there is no need for a respondent to file a pre-motion brief which commits the respondent to particular evidence for the motion. Fichaud J.A., writing for the court, held that the respondent is not estopped from calling evidence on the motion if no such brief had been filed in advance.

The accused brought a Charter motion at the outset of her trial and the Crown did not commit to calling any evidence until after it had heard the evidence for the motion from the applicant. The Provincial Court judge held that a respondent must file a pre-motion brief committing the respondent to particular evidence prior to hearing the applicant’s evidence or else the respondent is estopped from calling evidence. He therefore allowed the Charter motion and acquitted the accused. Fichaud J.A. noted that no authority for the estoppel had been cited and held that the trial judge's view was not a principle of law. He therefore ordered a new trial.

September 22, 2011
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Marc Gibson & Sierra Robart
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Carter Brothers Ltd. v. The Registrar of Motor Vehicles for the Province of New Brunswick, 2011 NBCA 81

In this case the New Brunswick Court of Appeal determined that "boom trucks" qualify as "special mobile equipment" under s. 1 of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 (MVA) and s. 7(6) of its General Regulation 83-42. Robertson J.A., writing for the court, noted an apparent discrepancy between the definitions in the statutory provision and the regulation and held that the statutory definition must therefore prevail. If any doubt remained as to how to resolve the apparent inconsistency, Justice Robertson was prepared to invoke the residual presumption in favour of the taxpayer.

After applying for and obtaining class "M" registration plates for its boom trucks for almost twenty years, the appellant was informed by the Registrar of Motor Vehicles that it must instead obtain more expensive class "L" plates. Justice Robertson held that the Registrar's legal interpretation of "special mobile equipment", as a question of law, was owed no deference by the court. Finding that there was "no obvious correlation" between the definition in the MVA and its regulations, he concluded that the simplest approach to resolving the inconsistency was to determine if boom trucks meet the criteria set out in the statutory definition. If so, nothing in the regulations should be able to undermine that conclusion. The MVA specifically refers to "concrete mixers" and "ditch digging apparatus" in its definition of special mobile equipment and Justice Robertson found that boom trucks fall in the same general class as those vehicles. His conclusion was aided by the residual presumption in favour of the taxpayer, which "should not be lost in future cases where the Attorney General is called upon to defend the government’s interpretation of fiscal legislation."

September 22, 2011
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Marc Gibson & Daniel Lo
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R. v. Kelsy, 2011 ONCA 605

In R. v. Kelsy, the Ontario Court of Appeal considered the the limits of permissible investigative procedures in the course of responding to a 911 call. Rosenberg J.A., writing for the court, held that the police have considerable latitude to secure the scene in such cases, but their actions are still subject to review under s. 8 of the Charter. Specifically, he held that seizure of property may be necessary to stabilize the scene of a 911 response, but any search of that property is still subject to the reasonable necessity requirements of the Waterfield doctrine.

In this case, a 911 call was made after the appellant's boyfriend had been attacked outside his apartment. The appellant and her two-year-old daughter, who had been in the apartment, stepped outside as police searched the premises. They ordered the appellant to drop a knapsack she was carrying while they secured the scene and escorted her and her daughter to safety. A subsequent search of the knapsack revealed a loaded prohibited firearm and a quantity of heroin.

The trial judge found that the search was reasonable by drawing on both doctrines of exigent circumstances and the Waterfield test. However, Justice Rosenberg held that while the two doctrines may be related or even overlap, it is preferable to keep them separate. Although he noted that investigations in response to 911 calls justify significant intrusions into privacy, he held that there was nothing in the circumstances that necessitated a search of the knapsack. The police had grounds to temporarily seize the appellant’s bags, but in this case searching them violated her s. 8 rights. In respect of the s. 24 analysis, Justice Rosenberg agreed with the trial judge’s findings that any breach of the appellant’s rights was not serious and that the police had acted in good faith. Given that “[t]his case is one of first impression and the limits of permissible investigative procedures in the course of responding to a 911 call were not entirely clear”, the police mistake was understandable and the evidence could be admitted.

September 22, 2011
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Tony Drake & Marc Gibson
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Yorke v. Yorke, 2011 NBCA 79

In Yorke v. Yorke, Larlee J. decided that, barring explicit legislation, RRSPs are family assets, with the presumption of equal division pursuant to the Marital Property Act.

Mrs. Yorke appealed the trial judge's holding that Mr. Yorke's RRSP was not a marital asset since, like an division-exempted pension, it was acquired before the marriage and not contributed to during the marriage. Distinguishing McQuade v. McQaude, an earlier New Brunswick Court of Appeal case in which RRSPs had been held not subject to equal division, on its facts, Larlee J. relied on a definition in the British Columbia Family Relations Act to find that RRSPs are a family asset. She then drew a further distinction between RRSPs to which there were no contributions were made during the marriage and those used to finance the household. Since Mr. York used the RRSP to finance their lifestyle, Larlee J. held it be a martial asset. He concludes the purpose for which the RRSP is used for is the determining factor.

Larlee J. then applied the three criteria outlined in s. 6 of the Marital Property Act to conclude equal division would not be inequitable, contrary to the lower court's ruling. She also highlighted that there was no agreement between the Yorkes exempting the RRSPs from division and that 16 years of cohabitation along with a 12-year marriage are sufficient to qualify as a long-term marriage. Finally, Mrs. Yorke was seen to have made a substantial contribution, contrary to the trial judge's ruling, despite the fact she did not raise any children, did not contribute financially, and stayed at home. Larlee J. held that the RRSPs should be divided equally.

Richard J., in dissent, argued that the matter of whether marital property should be divided equally should be left to the trial judge's discretion. He argued that as long as the trial judge has applied s. 6 of the Marital Property Act to the facts of the case, appellate courts should defer to the lower court's ruling.

September 22, 2011
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Leo Elias & Adrienne Ho
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DJO Canada Inc v. Schroeder, 2011 SKCA 106

The Saskatchewan Court of Appeal determined that the warranties described in s.48 of the Saskatchewan Consumer Protection Act (the “CPA”) can only be deemed to have been given by a manufacturer when a consumer product is “sold by a retail seller.” Section 50(2) of the CPA deems certain warranties described in s.48 to have been given by manufacturers. The court held that s.50(2) is not a freestanding provision and does not independently impose warranty obligations. Accordingly, the requirement in s.48 that a product be sold by a retail seller also applies to warranties deemed to be given by manufacturers under s.50(2).

Schroeder et al alleged that the manufacturers of pain pumps breached their statutory warranties under the CPA. The pain pumps were sold to the patients by a hospital. The court determined that in order to take advantage of the warranties described in s.48 the pain pumps had to have been sold by a retail seller. The wording of s.48 “clearly indicates that the warranties described therein are considered to be given by a retail seller only when a consumer product is ‘sold by a retail seller.’” Further, the court held that s.50(2), which deems certain of the s.48 warranties to have been given by manufacturers, is not a freestanding provision and cannot independently impose warranty obligations. It follows that there can be no manufacturer’s warranty if there is no retail seller’s warranty. As a retail seller is necessary for the existence of a retail seller’s warranty, Schroeder et al will have to show at trial that the hospital was a “retail seller.”

According to the court, the use of the term “consumer” in s.50(2), and the expansion of the definition of “retail seller” in s.50(1), confirms their interpretation of the CPA. This is because a “consumer” is defined in the CPA as someone who buys a consumer product “from a retail seller.” It is also because the expansion of the definition of “retail seller” per s.50(1) would not be necessary if s.50(2) was intended to independently impose warranty obligations on manufacturers.

Finally, the court determined that s. 64 of the CPA, which describes those who are entitled to recover damages for a breach of warranty, does not create warranties or warranty obligations. The section only specifies who can claim damages if there is a breach.

September 21, 2011
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Kaitlind de Jong & Steve Holinski
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The Sovereign General Insurance Company v. Walker, 2011 ONCA 597

In Sovereign, Justice Laskin of the Ontario Court of Appeal, writing for the majority, ruled that a third party with sufficient proximity to an insurance claim may give notice of that claim to trigger liability coverage.

Mrs. Walker slipped in a parking lot and sustained serious injuries. She sued both Emshih, the owner of the mall, and Sun Shelters, the maintenance company that was hired to remove the ice and snow from the parking lot, for damages. Emshih and Walker settled but Sun Shelters went bankrupt and did not defend the claim or notify Sovereign, its insurance company, of the claim. Counsel for Emshih, carrying out a cross-claim, forwarded all the pleadings to Sovereign upon hearing that Sun Shelters was insured. The Walkers received a judgment against Sun Shelters, upon which they then brought an action against Sovereign under s. 132(1) of the Insurance Act, which allows a third party to recover against an insurer where its insured has failed to satisfy a judgment for damages. Sovereign argued it was not obligated to indemnify Sun Shelters’ claim as it could only receive notice of the claim through its insured and Sun Shelters failed to notify them.

Justice Laskin noted that s. 3(a) of the insurance policy stated that notice can be given “by or for the insured”, which on plain reading allowed for notice from others than the insured. At a minimum, the meaning was ambiguous and according to the rules of statutory interpretation, it should be interpreted against Sovereign. Rejecting Sovereign’s “rigid” interpretation, Justice Laskin also found that the purpose of the provision was to make the insurer aware of the claim so that it had a timely opportunity to deal with it. Therefore, notice could clearly be given by a person with sufficient proximity to the claim.

September 19, 2011
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Leo Elias & Sam Golder
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Gosse v. Sorensen-Gosse, 2011 NLCA 58

In Gosse v. Sorensen-Gosse, the Newfoundland and Labrador Court of Appeal held that sections 14, 15, and 26 of the Family Law Act ("FLA") must be exercised in a manner consistent with each spouse’s equal interest in the matrimonial home. The Court also held that corporate income could be attributed to a sole shareholder where that shareholder had complete discretionary control of the corporation’s income.

In the case, the Court held that, where an occupying spouse was given the opportunity to buy out a non-occupying spouse’s interest in the matrimonial home, the payment to the non-occupying spouse should reflect as equal an increase in the value of the matrimonial home as circumstances allow. Consequently, the Unified Family Court’s Judge’s ruling, which accounted for increases only until the date of trial and not until the date of the buying out of the non-occupying spouse’s interest, was quashed.

In dividing the monthly rental value of the matrimonial home, Wells, J.A. warned that the discretion to award occupational rent or a comparable offsetting payment is more narrow than suggested in Harvey v. Harvey, and some compensation to the non-occupying spouse will usually be required to conform with the objectives of FLA section 5(b). Since expert evidence concerning the value of monthly rental of the matrimonial home was in conflict, the Court awarded the median of the conflicting amounts.

Wells, J.A. finally analyzed sections 17 and 18 of the Child Support Guidelines (which allow a corporation’s income to be imputed to a shareholder in determining what funds that shareholder has available for the purposes of child support payments). In determining what funds the Respondent had available for the purpose of paying child support obligations, Wells, J.A. noted that the Respondent was the sole shareholder of the Corporation, the Respondent had discretionary control over 100% of the Corporation’s income, and the Corporation had paid 75% of the Respondent’s legal fees in previous proceedings. As such, the Court attributed 85% of the Corporation’s pre-tax income to the Respondent.

September 14, 2011
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Liam Oster
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Davies v. Collins, 2011 NSCA 79

In this case, the Nova Scotia Court of Appeal held that recognition of a Trinidadian marriage in extremis as a valid marriage under the Nova Scotia Wills Act did not require the Court to also apply, under the principle of comity, the entire Trinidadian law governing such marriages. Therefore, the Court held that such marriages can revoke a prior will, in accordance with the Wills Act, even though Trinidadian law would produce the opposite outcome.

In 1989, the appellant's ex-husband, Dr. Davies, executed a will naming her the principle beneficiary and executrix. Following their divorce, Dr. Davies began a relationship with the respondent, and the two entered into a marriage in extremis in Trinidad and Tobago in July 2007. The trial judge found that the marriage between Dr. Davies and Ms. Collins in Trinidad, although its form was not recognized in Nova Scotia, constituted a marriage within the meaning laid out in s. 17 of the Wills Act. Then, the trial judge applied Nova Scotia law to determine that the marriage revoked the original will.

The appellant argued that Trinidadian law should have been applied to the case as a whole. Noting that comity is not a term of art in the conflict of laws, but rather a principle of international law requiring that states respect one another's legal actions, the Court rejected the appellant's argument. Recognizing the marriage in extremis as a valid marriage under Nova Scotia law did not necessitate applying provisions of Trinidadian law that contradicted Nova Scotia law. The Court also noted that Mr. Davies' presumed intention in drafting the will was that it be governed by Nova Scotia law.

September 13, 2011
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Sierra Robart & Kai Sheffield
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Ladner v. Wolfson, 2011 BCCA 370

The British Columbia Court of Appeal held that the test for the imposition of a good conscience trust, as articulated in Soulos v. Korkontzilas, requires a direct proprietary nexus between the contributions said to give rise to the trust and the property over which the trust is claimed. Madam Justice Garson held that while Soulos may be authority for the imposition of a good conscience trust irrespective of a finding of unjust enrichment, this does not mean that the imposition of a good conscience trust no longer requires a proprietary connection.

The respondent wished to claim a constructive trust over life insurance proceeds payable to her deceased husband’s estate. The Court of Appeal found that the conditions required for the imposition of the good conscience trust, as articulated in Soulos, had not been met. According to Justice Garson, Soulos is authority for the proposition that a finding of unjust enrichment is not essential for the imposition of a constructive trust. However, a connection between the defendant’s duty-breaching activities and the property to which a trust is claimed is required. The trial judge found that the life insurance policies that the respondent claimed a constructive trust over were not the ones contemplated by the separation agreement. Accordingly, the necessary proprietary connection between the wrongful act and the insurance policies was not present.

Finally, Roberts v. Martindale was considered as allowing for a possible relaxation of the Soulos conditions. The court chose to distinguish Roberts on the basis that unlike in Roberts, Mr. Ladner’s estate was not receiving property to which it was not entitled, and accordingly was not being unjustly enriched. Further, Roberts is a case where a clear proprietary nexus was present.

September 8, 2011
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Steve Holinski & Kelly Ng
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Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367

In Petrelli v. Lindell Beach Holiday Resort Ltd., the court held that pleadings from another, similar, action are not properly the subject of “judicial notice” as the concept is strictly understood. While a judge may be entitled to take notice of records not directly before her, and may be entitled to use them as evidence, she should not normally do so without advising the parties, thus giving them an opportunity to address the issue raised.

The Petrellis had brought an action for the rescission of their contract with the appellant trail park operator. Previously, the Petrellis' friends, the Bahrys, were successful in a claim for the rescission of their contract with the appellant. The Bahrys had brought their claim under highly similar circumstances and on the same grounds as the Petrellis were now claiming. Accordingly, the Petrellis argued that their contract had already been interpreted by the court and that it was an abuse of process to defend the current action. The appellant owners argued that there was no basis for a finding that their defence had already been raised, argued, and determined in the Bahry case. Accordingly, the appellants asked the Court to take judicial notice of the Bahry pleadings. Justice Groberman found that the Bahry pleadings had not become evidence in the court below: neither party had drawn the judge’s attention to them, nor did the judge indicate an intention to examine them. Since no formal or informal step had been taken to include the Bahry pleadings in evidence, the court could not now take “judicial notice” of them. According to Justice Groberman, judicial notice covers matters of general knowledge, or matters that are easily ascertainable by anyone through widely available, accurate, sources. When judicial notice is taken of such facts no one is taken by surprise. Further, such facts cannot be practically challenged. Justice Groberman went on to hold that the contents of court records are not matters of general knowledge and there are limits on the court taking “judicial notice” of its records. A judge may consult court records that are not directly before her and rely on them as evidence. However, she should not normally do so without first advising the parties and giving them a chance to address the issue raised.

While the court refused to take judicial notice of the Bahry pleadings, they were nonetheless allowed to be adduced as fresh evidence on appeal. The court went on to hold that the appellants’ raising of the non-conforming use defence did not constitute an abuse of process. According to Justice Groberman, the focus of the doctrine of abuse of process is on the integrity of the adjudicative functions of the court. The re-litigation of issues is an inefficient use of judicial resources, and the possibility of inconsistent judgements diminishes the credibility of court judgements. According to the Court, both cause of action estoppel and issue estoppel, the two branches of res judicata, are concerned with preventing abuse of process. While cause of action estoppel is focussed primarily on fairness to litigants, issue estoppel is primarily concerned with the integrity of the judicial system. However, the court held that there may be some overlap between the two concerns.

September 7, 2011
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Fidelia Ho & Steve Holinski
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Northwest Atlantic Fisheries Organization v. Amaratunga 2011 NSCA 73

In this case, the Nova Scotia Court of Appeal considered the extent to which an international organization has immunity within Canada.

Justice MacDonald determined that immunity is accorded in “any domestic suit that stands to interfere with [the international organization’s] autonomy in performing its functions. Therefore, simple interference suffices, and a greater level of interference, such as “significant”, “excessive” or “impermissible” interference, need not be found.

The case arose when a wrongful dismissal suit was brought against the Northwest Atlantic Fisheries Organization ("NAFO"), an international body headquartered in Nova Scotia. NAFO challenged the jurisdiction of the Supreme Court of Nova Scotia to adjudicate the matter, citing international law and the NAFO Immunity Order. Canada had issued an immunity order to NAFO pursuant to the Privileges and Immunities (International Organizations) Act (succeeded by the Foreign Missions and International Organizations Act). The NAFO Immunity Order provides that NAFO should have certain privileges and immunities “to the extent as may be required for the performance of its functions.” The court is tasked with interpreting the phrase “required for the performance of its function.”

MacDonald, C.J.N.S. reasoned that the immunity of an international organization is rooted in the necessity to preserve the organization’s autonomy to carry out its functions. Thus, immunity is accorded in “any domestic suit that stands to interfere with NAFO’s autonomy in performing its functions.” In coming to this conclusion, the court explicitly rejected both a broader view that immunity should be granted to every action simply related to performance of NAFO’s functions and a more restricted view that immunity would only be available if the proposed lawsuit would threaten the NAFO’s operations. Applying this reasoning, the court determined that by subjecting NAFO’s core operations to judicial scrutiny, and the consequent possibility of the court condemning NAFO’s management structure, assuming jurisdiction in this case would interfere with NAFO’s autonomy. The court thus held that the Supreme Court of Nova Scotia did not have jurisdiction to adjudicate this matter. MacDonald, C.J.N.S. noted that his interpretation leaves the plaintiff in this case without an enforceable legal remedy, but speculated that NAFO might nevertheless voluntarily extend some sort of remedy to the plaintiff; “After all, if such international organizations are to attract domestic employees, they must earn a reputation of treating their employees fairly. NAFO would be no exception.”

August 23, 2011
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Rebecca Crangle
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Christensen v. Calgary (City), 2011 ABCA 244

In Christensen v. Calgary (City), the Alberta Court of Appeal considered the standard of care under the Occupiers’ Liability Act, R.S.A. 2000, c. O-4 for public in-line skating paths. Berger J.A., writing for the majority, noted that there were no established standards for constructing in-line skating paths and instead stated that the question was whether the plaintiffs had established on a balance of probabilities that, but for the wrongful actions of the appellant, the respondents’ injuries would not have occurred. McDonald J.A., writing in dissent, held that the trial judge failed to articulate a standard of care and that Berger J.A. made the same error as the trial judge and effectively reversed the onus of proof.

At trial, the City of Calgary was found liable when two in-line skaters injured themselves while using a city maintained pathway on public land. The City appealed, arguing that the plaintiffs failed to lead evidence on the standard of care to which the city should be held, and that the standard of care was not articulated by the trial judge as would have been required by Fullowka v. Royal Oak Ventures Inc., a 2010 case. However, Berger J.A. distinguished Fullowka on the basis that the trial judge did not impose an absolute duty upon the city, and instead outlined steps which the city failed to take to ensure that the pathway was safe. These included consulting with the in-line skating community, reasonably considering the needs of in-line skaters, researching relevant guidelines or formulating new ones if none exist, and placing adequate signage to inform users of risks. Justice Berger deferred to the trial judge’s findings of fact that the city failed to maintain the pathway in a reasonable and safe condition for in-line skaters.

In Justice McDonald's dissenting opinion, the majority approach established a reverse onus, requiring the defendant to prove that it was not liable. In addition, he agreed with the appellants' assertion that the trial judge failed to describe a standard to which the city should be held in constructing the path. McDonald J.A held that the steps described by the trial judge amounted to "little more than a wish list and do not constitute a properly articulated standard of care." He found that the absence of established standards should not prevent the trial judge from articulating a standard of care.

August 19, 2011
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Marc Gibson, Heather Palin & Dominik Swierad
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