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
Link to Decision
Kaitlind de Jong & Steve Holinski
*
Wednesday, September 21, 2011
Monday, September 19, 2011
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
Link to Decision
Leo Elias & Sam Golder
*
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
Link to Decision
Leo Elias & Sam Golder
*
Wednesday, September 14, 2011
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
Link to Decision
Liam Oster
*
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
Link to Decision
Liam Oster
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Tuesday, September 13, 2011
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
Link to Decision
Sierra Robart & Kai Sheffield
*
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
Link to Decision
Sierra Robart & Kai Sheffield
*
Thursday, September 8, 2011
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
Link to Decision
Steve Holinski & Kelly Ng
*
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
Link to Decision
Steve Holinski & Kelly Ng
*
Wednesday, September 7, 2011
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
Link to Decision
Fidelia Ho & Steve Holinski
*
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
Link to Decision
Fidelia Ho & Steve Holinski
*
Tuesday, August 23, 2011
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
Link to Decision
Rebecca Crangle
*
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
Link to Decision
Rebecca Crangle
*
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