Monday, October 29, 2012

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193


This case deals with an action brought by the Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation and his attempt to have the action certified as a class action with the class defined as “all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago.” The issue in this appeal is whether the certified description for the plaintiff class is statutorily permissible. The British Columbia Court of Appeal holds that not only is the class not properly defined, but that there is no acceptable definition which the Court could substitute for the one used by the chambers judge.
The reasons the court gives for holding that the class definition does not meet the legislative criteria are to do with lack of legal capacity of the group as defined and lack of known objective criteria by which a collective could identify its membership in the class. In terms of legal capacity, the Court points out that an unincorporated association does not have to capacity to sue or be sued, unless legislation specifies otherwise. The Class Proceedings Act (“CPA”) does not create a substantive right to litigate and so a collective that cannot act as an independent plaintiff cannot be made a capable plaintiff through identification and inclusion in a class proceeding. The court confirms that a Band registered under the Indian Act does have legal capacity, but is not necessarily the proper entity to assert an Aboriginal right. The Court declines to decide in general whether an Aboriginal collective has legal capacity, but does hold that in this case, the “aboriginal collectives” designated as class members do not have legal capacity.
With respect to the objectivity criteria, the Court points out that in an Aboriginal rights claim the identity of the rights holder is integral to the analysis. In this case, this identity is also integral to part of the class definition. The chambers judge identified several Bands to be included in the class based on ethnographic material and the Court points out that performing this sort of in-depth analysis to identify class members conflicts with the CPA goals of judicial economy and access to justice. This Court cites the chambers judge's analysis and reasons as proof that the class definition does not provide clear and objective criteria. Furthermore, the circularity in defining members of the class as those who have the right to fish in an action which will partly determine the question of their right to fish would further complicate the matter.

Kiran Arora
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Monday, October 22, 2012

Temoin v Martin, 2012 BCCA 250

In this case, the British Columbia Court of Appeal considered the issue of whether the Supreme Court of British Columbia has the power to order a psychiatric examination of a person who appears to be incapable of managing his or her own affairs when the person in question will not voluntarily undergo examination. The Court of Appeal agreed with the Supreme Court judgment that the court does in fact have the power to order an assessment under its “parens patriae jurisdiction”, which gives the court control over vulnerable persons incapable of protecting themselves. However, the court stressed that the presumption of mental fitness under the Patients Property Act remains intact and the court must only order medical assessments in exceptional circumstances. 
The plaintiff, Lynne Temoin, had concerns that her father, Llewellyn Martin, was unfit to manage his finances or create a will due to dementia and sought an order declaring that he was incapable of managing his own affairs. A psychiatric examination of Mr. Martin confirmed that he did not have the capacity to make a will but did not assess his ability to manage his own affairs. As Mr. Martin refused to undergo such an assessment, the court was unable to make a declaration of incapacity under the Patients Property Act, which presumes a patient fit to manage his affairs unless two medical examinations provide evidence to the contrary. Justice Neilsen held that the Act contains a legislative gap regarding the court’s ability to order a patient to undergo psychiatric examination and thus looked to the legislature’s intent to determine the proper course of action. He reasoned that the purpose of the Act is to protect the autonomy of capable individuals by ensuring a rigorous protocol for declaring a patient unfit to manage his or her own affairs. However, he maintained that the Act does not adequately protect those mentally incapable individuals who refuse to undergo examination or do not have access to a physician. In these circumstances, the Act fails to protect the autonomy and wellbeing of these patients and thus falls out of line with its legislative objectives. The court held that in these exceptional circumstances, a party may request a court-ordered psychiatric examination of the individual in question. However, the moving party must meet a high evidentiary threshold to rebut the Patients Property Act presumption of fitness. Furthermore, the court stressed that its parens patriae power must be exercised very cautiously in order to maintain the Act’s objective of protecting free choice. Ultimately, the court concluded that Ms. Temoin had not discharged this burden of proof and declined to order Mr. Martin to undergo a medical examination.
Maeve Clougherty
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R v Nickel, 2012 ABCA 158


This was a successful Crown appeal of the sentence given to an offender convicted of 
aggravated assault and failure to provide necessaries of life.  The charges stemmed 
from an incident where the defendant placed the feet of his nine-month-old 
daughter in recently boiled water and caused third degree burns. The sentencing 
judge, following R v Evans (1996 182 AR 21), categorized the defendant as an
unskilled parent who failed to appreciate the potential consequences and sentenced
 him accordingly. The ABCA finds that the sentencing judge erred and substitutes its own assessment of a fit sentence. Rejecting the Evans framework, the court outlines a process of analysis of moral culpability as relevant to sentencing.

In rejecting the framework provided in Evans, the court refrains from articulating another fixed framework for
sentencing in “child abuse” cases. Instead, they outline a process of analysis
 beginning with an assessment of the risk and materialization of harm to the child,
 and the level of the offender’s culpability. Evans suggested differentiation between 
intended and foreseeable harm and this judgment echoes that, but as a starting 
place for consideration rather than a rigid divide. Other considerations including 
the offender’s personal circumstances should be relevant, but this analysis removes
 Evans’ heavy emphasis on the offender.



Justices Martin and O’Brien dissented on the sentence imposed in this particular
case, but not on the rejection of Evans and the proposed new set of principles.

Link to Decision


Sarah Rankin

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Bank of Montreal v. Peri Formwork Systems Inc., 2012 BCCA 252


In Bank of Montreal v. Peri Formwork Systems Inc., the British Columbia Court of Appeal was required to rule on two issues raised in an application brought by the appellants, Peri Formwork Systems Inc.: 1) settling the terms of a court order and 2) special costs in cases of a complicated appeal. The BCCA ordered that the appellant builder’s lien claim be restored to priority over the Bank of Montreal Receiver’s Borrowing Charge and over all security to which the Receiver’s Borrowing Charge has priority. Secondly, the Court ruled that it has the authority to award increased costs in accordance with Rule 60 of the Court of Appeal Rules when there is a significant discrepancy between the legal fees incurred as a result of a long and complicated legal process and the amount recoverable through an award of ordinary costs. Although the normal rule for awarding increased costs requires proof of not merely a significant discrepancy between costs incurred and ordinary costs but also an additional factor such as party conduct, the Court ruled that departure from the normal rule was merited in the interests of justice. 

Peri Formwork Systems Inc., a builder company, obtained a lien against title to Coastal Village’s property and was granted priority on this lien over all others, including a Bank of Montreal Receiver’s Borrowing Charge. As a result of an error in statutory interpretation by Rice, J. (Supreme Court of British Columbia), the parties were required to seek further appeals to determine who was entitled to lien priority. The lengthy and complicated appeals process resulted in Peri Formwork Systems incurring substantial costs to settle the terms of the court order. The BCCA determined that Rule 60 of the Court of Appeal Rules, a rule allowing the Court to order increased costs to avoid creating an “unjust result”, applies in the case of Peri Form. The Court ruled that Peri Form faced many challenges in bringing its case and application, including the application to settle the terms of the order, and that a failure to order increased costs would not be in the interests of justice. A refusal to order additional costs in complicated cases would act to prevent the hearing of important legal issues. The Court ordered increased costs for the appeal process and costs at Scale C in the court below payable by the Bank of Montreal to the appellants; the Court also ruled that the appellants were only entitled to one set of costs and therefore could not collect costs from the Receiver (Brown Group Inc.). 


Elizabeth Severinovskaya 
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Stanway v. Wyeth Canada Inc., 2012 BCCA 260


The British Columbia Court of Appeal considered whether an omission can constitute a deceptive act or practice under the Business Practices and Consumer Protection Act (BPCPA). Justice Kirkpatrick established that a failure to disclose could qualify as a deceptive act or practice even in the absence of any particular communicated misrepresentation. The appeal was dismissed.

The issue arose in an appeal from a class action certification order. The appellant, Wyeth, manufactured hormone therapy products containing hormones which were associated with an increased risk of breast cancer according to a 2002 Women's Health Institute study. The respondent class consisted of women who were diagnosed with breast cancer after having taken one of the hormone therapy drugs prescribed in Canada during the 27 year class period. The respondent alleged that Wyeth had conducted "deceptive acts or practices" under s.4(1) and s.4(3)(b)(vi) of the BPCPA by failing to "accurately disclose the risks of the hormone therapy" on their product monographs and labels. In doing so, they were alleged to have engaged in a "systemic course of deceptive conduct." The defendant interpreted Chalmers (Litigation Guardian of) v. AMO Canada LTD., [2010] BCCA 560 as allowing for a failure to disclose tied to specific representations. However, the defendant contended that "any claim under the BPCPA must rest on a representation" and that an omission in itself failed to meet this requirement.

The British Columbia Court of Appeal rejected this interpretation as well as the emphasis in Blackman v. Fedex Trade Networks Transport & Brokerage, [2009] BCSC 2001 on the BPCPA's lack of terms such as "failure to disclose" which had been included in its precursor, the Trade Practice Act. Justice Kirkpatrick highlighted the overall purpose of the Act and noted that since the BPCPA was "all about consumer protection...its terms should be interpreted generously in favour of consumers." This view was also held to be consistent with s.8 of the Interpretation Act. Finally, the court interpreted the wording of a "representation...that fails to state a material fact" in s.4(3)(b)(vi) in conjunction with the expansive language of s.4(1) which allows for "an oral, written, visual, descriptive or other representation" as "anticipat[ing] that an omission can constitute a deceptive practice."


Sara Elcombe
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Darcis et al. v. Manitoba et al., 2012 MBCA 49


In this case, the Manitoba Court of Appeal clarified a stated question of law from a Northern Flood Agreement (NFA) arbitrator regarding what constitutes a South Indian Lake claim (or “SIL claim”). The central issue in the appeal was a claim by an individual who had left the community, where the damage or loss had not occurred within "the SIL Trapline Zone". Having ruled against the claimant, the arbitrator raised the case to the Court of Appeal. Hamilton J.A. determined that, because the NFA is essentially the arbitrator’s home statute, the standard of review would be reasonableness, and that the geographic restriction on SIL claims created by the decision was unreasonable. The appeal was allowed.

In 1977, the NFA was entered into between several parties, including the Manitoba Hydro Electric Board and the Nisichawayasihk Cree Nation (NCN), allowing the SIL community to bring claims for damage caused by hydro-electric development. A newer agreement was created in 1996, including an exception governing SIL claims. The NFA claims at issue in Darcis v Manitoba were first made in 1992 by people who had been displaced as a result of adverse effects of the project. When their collective claim was denied, the appellants made the claims in issue individually. However, the NFA arbitrator determined that when an ordinary resident defined under subsection (b) of the 1996 agreement leaves the SIL community, he or she cannot make a claim because damages did not arise in the SIL trapline zone under subsection (a).  The appellants' position is that the decision in this case has the effect of punishing them for having left South Indian Lake to mitigate their damages. 

After reviewing the arbitrator’s decision and the NFA, Hamilton J.A. determined that, because the words “regardless of where the damage or loss arose” are included in the introductory paragraph of the 1996 agreement governing SIL claims, the arbitrator’s conclusion unreasonably limited what constitutes an SIL claim. As long as a member of the NCN was ordinarily resident at or near the community of SIL at one of the dates specified in subsection (b) (at the date of the 1996 agreement or at the date the damage arose) the fact that they then left and the damage caused by hydro development did not occur in the trapline zone does not limit their claim. As a result, the appeal was allowed.


Rebecca Vasluianu
Tony Drake
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Fairhurst v. De Beers Canada Inc., 2012 BCCA 257


The British Columbia Court of Appeal considered whether harm caused by conspiracy fits under the mandatory presumption categories under s. 10 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) that determine a real and substantial connection to the jurisdiction of British Columbia. Justice Newbury held that a conspiracy causing harm in British Columbia is sufficient to establish the real and substantial connection necessary to prove jurisdiction under these provisions. Jurisdiction had been established and the appeal dismissed. 

The significant issue arose in the context of a cluster of inter-connected companies alleged to be conspiring to fix diamond prices worldwide. The plaintiff represented a class of consumers in British Columbia who bought the diamonds in the province at an increased price due to conspiracy. The defendants argued that they were not involved in selling gem-grade diamonds and, with the exception of De Beers Canada, did not perform any operations in Canada throughout the relevant period. Sections 10(g) and 10(f) of the CJPTA state that a real and substantial connection is presumed to exist where the facts allege restitutionary obligations that arose in British Columbia or where the facts allege a tort committed in British Columbia. Justice Newbury held that a conspiracy causing harm in British Columbia is sufficient to establish the real and substantial connection necessary to prove jurisdiction under these provisions. She noted a similar approach was taken in both Ontario (Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd. [2002] O.J. No. 298) and in Quebec (Option Consommateurs v. Infineon Technologies AG, 2011 QCCA 2116), where purely economic harm caused in the jurisdiction by conspiracies originating abroad is regarded as appropriate proof of a real and substantial connection to the jurisdiction. The Court of Appeal dismissed the defendants’ appeal and maintained that jurisdiction had been established.  


Rebecca Vasluianu
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Morrison v Van Den Tillaart, 2012 BCCA 185


In this case, the British Columbia Court of Appeal holds that time for appealing the allowance of a no-evidence motion pursuant to the Court of Appeal Act, R.S.B.C. 1996, c. 77, begins to run once the motion is ruled on and not once the trial has concluded. In other words, the allowance of a defendant’s no evidence motion at trial triggers a right of appeal for the plaintiff.
Section 14(1)(a) of the Court of Appeal Act imposes a 30-day time limit for filing an appeal. The plaintiff at trial appealed the allowance of the defendant’s no evidence motion after the trial against the other defendants had concluded – more than 30 days after the motion was allowed. The Court departs from the “order” approach taken in Glover v Magark ([1997] B.C.J. No. 766, 31 B.C.L.R. (3d) 9). In that case, a decision on a non-suit motion was deemed not appealable because it was not an interlocutory order or an order authorized by the rules of civil procedure. Rather, it was a ruling on evidence which formed part of the trial process. To support its conclusion, the Court cites the reasoning in Ceapro Inc. v Saskatchewan (2008 SKCA 64, [2008] S.J. No. 316):  A non-suit judgment is a final judgement which disposes of the issues between the parties; it is not subsumed in the final judgment to be delivered against the other defendants at the end of the trial; the appeal would not interrupt or delay the trial. The Court also cites Stanley v Godwin (2002 BCCA 166, [2002] B.C.J. No. 451) for its proposition that a non-interlocutory order may still trigger a right of appeal.


Dane Richard
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General Electric Canada Company v. Aviva Canada, Inc. and The Dominion of Canada General Insurance Company, 2012 ONCA 525


At issue in this case was whether an insurer who agrees to defend suits, under a general liability insurance policy, must pay the insured’s costs of voluntary compliance with a regulator’s requirements. The Court of Appeal for Ontario ruled in the negative, approving the lower court’s distinction between defence costs and compliance costs while rejecting the reasoning of some US courts.

The respondent insurers agreed, under a general liability policy, to defend suits on behalf of the insured General Electric (GE), and to investigate or pay the costs of investigating those claims. GE received a letter from the Ontario Minister of Environment (MOE) requiring that GE investigate and report on contamination of groundwater near land it had owned and occupied. GE voluntarily complied, and incurred significant costs in doing so. GE then sought a declaration that its insurers should bear those costs. The trial judge had held that by complying, GE did not defend; therefore, it could not claim the associated costs under the insurer’s duty to defend. The Court of Appeal for Ontario agreed. Armstrong JA declined to follow those US courts which had held that an adversarial process commenced upon receipt of a regulator’s letter, triggering an insurer’s duty to defend. Rather, he held that any potential liability which GE might face under the Environmental Protection Act, R.S.O. 1990 was at that stage only speculative, and therefore irrelevant to the characterization of the costs in question.


Aaron SanFilippo
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