The Ontario Court of Appeal held in R. v. Russel that judges have the jurisdiction to set the rates of compensation for assigned amicus curiae. This case involved the appeal of four criminal proceedings, in which, for various reasons, the trial judges assigned an amicus curiae and set their rates of compensation. The Attorney General argued that while a judge is able to appoint an amicus, they do not have the power to set rates of compensation.
The Attorney General argued that the courts do not have the power to set rates of compensation for amicus curiae because they have no jurisdiction to allocate public funds. The power to allocate public funds and order payment from the Consolidated Revenue Fund rests only with Parliament or the Legislature (Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.)). The principle is recognized in Ontario through s. 11.1 of the Financial Administration Act, which states that money cannot be paid from the Consolidated Revenue Fund unless the payment is authorized by an Act of the Legislature. The Court held that the power of the court to set rates of compensation for amicus and order the payment does not contravene this principle. It is recognized by both parties that the court may appoint an amicus where it is necessary to avoid an injustice, and the power to set rates of compensation is held to be corollary. Moreover, the Court found the power to order payment of amicus from public funds is authorized in the meaning of s. 11.1 of the Financial Administration Act by both the Proceedings Against the Crown Act (s. 22) and the Financial Administration Act (s. 13), both of which state that where a court properly orders payment, it may be paid from the Consolidated Revenue Fund. A court therefore has the power to set amicus and their rate of compensation and order payment from the Crown.
April 19, 2011
Link to Decision
Mary Phan
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Tuesday, April 19, 2011
Friday, April 8, 2011
Wellington v. Ontario, 2011 ONCA 274
In Wellington v. Ontario, the Ontario Court of Appeal explored the issue of whether the families of victims of crime committed by police officers have the right to sue the Special Investigation Unit ("SIU") for negligent investigation. The court held that there is no private law duty of care owed by the SIU to the family of the victim and that any duty owed by the SIU was owed to the public as a whole, and that nothing in the relevant legislation or the relationship between the parties was sufficient to establish a private law duty of care.
The victim was a 15-year-old boy named Duane who was allegedly pursued by two police officers without legal justification. When Duane attempted to drive away, one of the officers, allegedly without legal justification, began shooting at Duane and fatally wounded him. Duane’s mother and sister sued the SIU for negligent investigation and sought general and punitive damages, claiming that the SIU did not conduct a competent investigation by failing to properly interview the officers, allowing the officers to keep their firearms, and closing the investigation before receiving the pathologist’s report.
In this case, the court held, relying on the Cooper-Anns Test, that it was plain and obvious that there was no prima facie duty of care. The court relied on precedent in concluding that a duty of care is excluded in claims of negligence against public authorities where there is no possibility of a duty of care outlined in the statute governing that public authority. Also, the case law does not support a duty of care by a police chief or SIU to the families of victims. Since the Police Services Act sets out the duty of the SIU as only a public duty, there is no possibility for the SIU to have a private law duty and be liable to the victim’s family in negligence.
April 8, 2011
Link to Decision
Pedram Moussavi
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The victim was a 15-year-old boy named Duane who was allegedly pursued by two police officers without legal justification. When Duane attempted to drive away, one of the officers, allegedly without legal justification, began shooting at Duane and fatally wounded him. Duane’s mother and sister sued the SIU for negligent investigation and sought general and punitive damages, claiming that the SIU did not conduct a competent investigation by failing to properly interview the officers, allowing the officers to keep their firearms, and closing the investigation before receiving the pathologist’s report.
In this case, the court held, relying on the Cooper-Anns Test, that it was plain and obvious that there was no prima facie duty of care. The court relied on precedent in concluding that a duty of care is excluded in claims of negligence against public authorities where there is no possibility of a duty of care outlined in the statute governing that public authority. Also, the case law does not support a duty of care by a police chief or SIU to the families of victims. Since the Police Services Act sets out the duty of the SIU as only a public duty, there is no possibility for the SIU to have a private law duty and be liable to the victim’s family in negligence.
April 8, 2011
Link to Decision
Pedram Moussavi
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R v. Parchment, 2011 BCCA 174
In R v. Parchment, the BC Court of Appeals considered the question of whether the Court can exercise section 684 of the Criminal Code, RSC 1985, c C-46, to appoint counsel to assist a self-represented, incarcerated offender prepare an appeal where the offender’s ability to do so is constrained by practical and security institutions in which the offender is housed.
The accused did not receive Legal Aid on the basis that his appeal had little merit and applied under section 684 for an appointment of counsel. At the Supreme Court, Madam Justice Huddart denied the application, regarding the accused as being able to represent himself. The accused reopened his application on the basis that he was constrained in his ability to prepare for his appeal by the limitation on computer time, inability to print material and the limited access to the law library at his place of incarceration and reopened the application for a defence counsel to assist specifically with preparing for the appeal. A Justice in Chambers does not have the authority to entertain a fresh application for the appointment of counsel without a change in circumstances. While Chiasson J.A. was not convinced there was a change of circumstances in this case, he held that he had authority to consider the application as the accused had changed relief requested from the appointment of counsel to represent him to the appointment of counsel to assist him in preparing for the hearing.
While Chiasson J.A. found that he had the authority to appoint counsel under section 684 to assist an incarcerated offender with preparing for appeal, he did not exercise that authority in this case, finding the resources afforded to the accused sufficient.
April 8, 2011
Link to Decision
Mary Phan
*
The accused did not receive Legal Aid on the basis that his appeal had little merit and applied under section 684 for an appointment of counsel. At the Supreme Court, Madam Justice Huddart denied the application, regarding the accused as being able to represent himself. The accused reopened his application on the basis that he was constrained in his ability to prepare for his appeal by the limitation on computer time, inability to print material and the limited access to the law library at his place of incarceration and reopened the application for a defence counsel to assist specifically with preparing for the appeal. A Justice in Chambers does not have the authority to entertain a fresh application for the appointment of counsel without a change in circumstances. While Chiasson J.A. was not convinced there was a change of circumstances in this case, he held that he had authority to consider the application as the accused had changed relief requested from the appointment of counsel to represent him to the appointment of counsel to assist him in preparing for the hearing.
While Chiasson J.A. found that he had the authority to appoint counsel under section 684 to assist an incarcerated offender with preparing for appeal, he did not exercise that authority in this case, finding the resources afforded to the accused sufficient.
April 8, 2011
Link to Decision
Mary Phan
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Thursday, April 7, 2011
Wormell v. Insurance Corp. of British Columbia, 2011 BCCA 166
In Wormell v. Insurance Corp. of British Columbia, the British Columbia Court of Appeal considered the meaning of the words “at a site” for the purposes of s. 72 of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (the "Act"). The court determined that the words “at a site” means a site, “such as a construction site, a building site, or some other ‘work site’.”
Brent Wormell was injured by a sawmill attached to a crane hook mounted in the centre line of Bradley Hagen’s flatbed truck. The truck had stopped at a government weigh station where the attendant advised Hagen that the truck was overweight. Hagen moved the truck to an isolated area and prepared to move the sawmill off the truck with the crane in order to reduce the truck’s weight. The trial judge determined that Hagen’s negligence in continuing to operate the crane when there was no slack on the chain connecting to the sawmill was the cause of Wormell’s injuries. Wormell sought to obtain payment under s. 76(2) of the Act, which allows claimants to recover from the vehicle owner’s insurer.
S. 72(2) of the Act states that insured shall not be indemnified for “injury, death, loss or damage arising... out of the operation of attached equipment at a site where the attached equipment is being operated” unless the equipment is included in a list of exceptions. Cranes are not included in that list. The purpose of the provision is to exclude losses arising from business operations from qualifying under the insurance policy. The Insurance Corporation of British Columbia ("ICBC") argued that the accident occurred “at a site where the attached equipment is being operated”, and that it was therefore not liable for the damages.
Finch, J.A. reasoned that, applying the principles of interpretation regarding insurance policies set out in Progressive Homes Ltd v. Lombard General Insurance Co of Canada, a 2010 Supreme Court of Canada case; Dreidger‘s approach to statutory interpretation; and the presumption against tautology, the words “at a site” mean a work site or similar. This interpretation allows Wormell to recover from ICBC. According to the Court, allowing the phrase “at a site” to include anywhere the crane is being operated, as urged by ICBC, would effectively strike out the words “where the attached equipment is being operated” because the crane would then be “at a site” whenever and wherever it was being operated. This is contrary to the presumption against tautology: all words in a provision are assumed to have meaning. This is also contrary to the intention of the drafters, as the crane was not being used for business operations.
April 7, 2011
Link to Decision
Catherine Marchant & Alexa Mingo
*
Brent Wormell was injured by a sawmill attached to a crane hook mounted in the centre line of Bradley Hagen’s flatbed truck. The truck had stopped at a government weigh station where the attendant advised Hagen that the truck was overweight. Hagen moved the truck to an isolated area and prepared to move the sawmill off the truck with the crane in order to reduce the truck’s weight. The trial judge determined that Hagen’s negligence in continuing to operate the crane when there was no slack on the chain connecting to the sawmill was the cause of Wormell’s injuries. Wormell sought to obtain payment under s. 76(2) of the Act, which allows claimants to recover from the vehicle owner’s insurer.
S. 72(2) of the Act states that insured shall not be indemnified for “injury, death, loss or damage arising... out of the operation of attached equipment at a site where the attached equipment is being operated” unless the equipment is included in a list of exceptions. Cranes are not included in that list. The purpose of the provision is to exclude losses arising from business operations from qualifying under the insurance policy. The Insurance Corporation of British Columbia ("ICBC") argued that the accident occurred “at a site where the attached equipment is being operated”, and that it was therefore not liable for the damages.
Finch, J.A. reasoned that, applying the principles of interpretation regarding insurance policies set out in Progressive Homes Ltd v. Lombard General Insurance Co of Canada, a 2010 Supreme Court of Canada case; Dreidger‘s approach to statutory interpretation; and the presumption against tautology, the words “at a site” mean a work site or similar. This interpretation allows Wormell to recover from ICBC. According to the Court, allowing the phrase “at a site” to include anywhere the crane is being operated, as urged by ICBC, would effectively strike out the words “where the attached equipment is being operated” because the crane would then be “at a site” whenever and wherever it was being operated. This is contrary to the presumption against tautology: all words in a provision are assumed to have meaning. This is also contrary to the intention of the drafters, as the crane was not being used for business operations.
April 7, 2011
Link to Decision
Catherine Marchant & Alexa Mingo
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Charlie v. Canada Safeway Limited, 2011 BCCA 202
In Charlie v. Canada Safeway Ltd., the British Columbia Court of Appeal stated that there is a single standard of care for occupiers under the Occupiers’ Liability Act. This standard requires that the occupier [defendant] take reasonable care in all the circumstances that a person [the plaintiff] will be reasonably safe in using the premises.
In Charlie, the plaintiff was injured by slipping on exposed water while on the defendant’s premises, a supermarket. The court held that the type of hazard is a relevant factor in determining whether a defendant has exercised reasonable care, but it does not increase or lower the standard of care required of that defendant. Groberman J.A., writing for the court, rejected the argument that there are different standards of care in "due diligence" cases and "unsafe conditions" cases. He held that a water hazard, though difficult to prove, does not require the higher evidentiary standard of certainty, and that the evidence must only establish the presence or absence of water on the balance of probabilities.
The Court upheld the summary judgment dismissing the plaintiff’s claim.
April 7, 2011
Link to Decision
Liam Oster
*
In Charlie, the plaintiff was injured by slipping on exposed water while on the defendant’s premises, a supermarket. The court held that the type of hazard is a relevant factor in determining whether a defendant has exercised reasonable care, but it does not increase or lower the standard of care required of that defendant. Groberman J.A., writing for the court, rejected the argument that there are different standards of care in "due diligence" cases and "unsafe conditions" cases. He held that a water hazard, though difficult to prove, does not require the higher evidentiary standard of certainty, and that the evidence must only establish the presence or absence of water on the balance of probabilities.
The Court upheld the summary judgment dismissing the plaintiff’s claim.
April 7, 2011
Link to Decision
Liam Oster
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Wednesday, April 6, 2011
Johnson v. Johnson, 2011 BCCA 190
In Johnson v. Johnson, the British Columbia Court of Appeal held that a custodial parent’s failure to apply for the federal Child Tax Benefit was irrelevant for the purpose of calculating guideline support, and no set-off amount should be applied to her stated income.
In Johnson, both parents shared custody of the children of the marriage. The respondent, also a custodial parent, had successfully applied for the Child Tax Benefit, but the appellant had failed to apply for the benefit, despite her eligibility. Since the benefit would have been split between them if the appellant had been receiving the benefit, and since the parties were informally splitting the benefit between themselves, the Court held that the trial judge had erred by considering the mother’s failure to apply for the benefit.
Ultimately, the Court allowed the appeal largely on separate grounds.
April 6, 2011
Link to Decision
Liam Oster
*
In Johnson, both parents shared custody of the children of the marriage. The respondent, also a custodial parent, had successfully applied for the Child Tax Benefit, but the appellant had failed to apply for the benefit, despite her eligibility. Since the benefit would have been split between them if the appellant had been receiving the benefit, and since the parties were informally splitting the benefit between themselves, the Court held that the trial judge had erred by considering the mother’s failure to apply for the benefit.
Ultimately, the Court allowed the appeal largely on separate grounds.
April 6, 2011
Link to Decision
Liam Oster
*
Friday, April 1, 2011
Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32
In Brown v. Cape Breton, the Nova Scotia Court of Appeal considered the application of settlement privilege to a related action that raised the possibility of “double recovery”. Bryson J.A., writing for the court, held that settlement communications should be approached as a “class” privilege, noting that they attract policy considerations akin to those relevant to solicitor-client and litigation privileges. He disagreed with a series of Ontario cases that approached settlement privilege on a case-by-case basis, finding that settlement communications are prima facie privileged. He concluded that the exception for double recovery might apply if the communications were found relevant to the issue of damages, but that this question was to be remitted to the trial judge.
At trial, the plaintiff alleged that in 2002 she sustained a serious and permanent knee injury when she fell from bleachers at a municipal ball field in Cape Breton. She alleged that she suffered further injuries to the same knee, two years later, when, while riding her bike, she was hit by a car. Having brought actions in respect of both injuries, she settled the second claim following discoveries. Cape Breton then sought disclosure of the settlement agreement and related correspondence. Ms. Brown refused, and the municipality successfully brought a motion for disclosure. Ms. Brown sought leave to appeal the decision of the Chambers judge (unreported).
Bryson J.A. reasoned that case-by-case privilege does not do justice to the policy underlying settlement privilege. If settlement discussions and agreements are not prima facie privileged, then the hope that parties work towards informal resolution of disputes is at risk. Moreover, the “truth seeking” purpose of litigation is not seriously impaired by protecting settlement communications, which arise only with a view to resolving a dispute, and typically would not exist but for the privilege. So, as a matter of policy, the argument for non-disclosure is stronger; settlement communications must benefit from the greater certainty class privilege confers. Noting that disclosure is appropriate where relevance of the evidence is linked to necessity established on the basis of a compelling policy reason, Bryson J.A. recognized a widely acknowledged exception for “double recovery”. However, he held that the chambers judge made an error in law by ordering disclosure without properly analyzing the relevance of the communications to the issue of damages. Granting leave and allowing the appeal, he concluded: “[This exception] could form the basis of a disclosure order in this case, should the trial judge ultimately determine that the communications sought here were relevant and necessary to avoid double recovery.”
April 1, 2011
Link to Decision
Tony Drake, Leo Elias & Marc Gibson
*
At trial, the plaintiff alleged that in 2002 she sustained a serious and permanent knee injury when she fell from bleachers at a municipal ball field in Cape Breton. She alleged that she suffered further injuries to the same knee, two years later, when, while riding her bike, she was hit by a car. Having brought actions in respect of both injuries, she settled the second claim following discoveries. Cape Breton then sought disclosure of the settlement agreement and related correspondence. Ms. Brown refused, and the municipality successfully brought a motion for disclosure. Ms. Brown sought leave to appeal the decision of the Chambers judge (unreported).
Bryson J.A. reasoned that case-by-case privilege does not do justice to the policy underlying settlement privilege. If settlement discussions and agreements are not prima facie privileged, then the hope that parties work towards informal resolution of disputes is at risk. Moreover, the “truth seeking” purpose of litigation is not seriously impaired by protecting settlement communications, which arise only with a view to resolving a dispute, and typically would not exist but for the privilege. So, as a matter of policy, the argument for non-disclosure is stronger; settlement communications must benefit from the greater certainty class privilege confers. Noting that disclosure is appropriate where relevance of the evidence is linked to necessity established on the basis of a compelling policy reason, Bryson J.A. recognized a widely acknowledged exception for “double recovery”. However, he held that the chambers judge made an error in law by ordering disclosure without properly analyzing the relevance of the communications to the issue of damages. Granting leave and allowing the appeal, he concluded: “[This exception] could form the basis of a disclosure order in this case, should the trial judge ultimately determine that the communications sought here were relevant and necessary to avoid double recovery.”
April 1, 2011
Link to Decision
Tony Drake, Leo Elias & Marc Gibson
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