Bahcheli v. Yorkton Securities Inc., 2012 ABCA 166

In Bahcheli v. Yorkton Securities Inc., the Alberta Court of Appeal considered the appropriate standard of review for an appeal from a Master. The subrule, 6.14(3), regarding appeals from Master’s judgments, was amended in July 2011. Previous case law has indicated that the appropriate standard of review is deferential, barring questions of law alone. The Court discusses issues surrounding a deferential standard of review, and holds that the appropriate standard of review on appeal from a Master to a judge, on all issues, is correctness.

The previous subrule allowed for new evidence to be admitted if it is “significant enough that it could have affected the master’s decision”. The new subrule allows for evidence to be admitted if it is “relevant and material” in the opinion of the judge hearing the appeal. The Court of Appeal indicates that this rule is “probably wider” than the last. The Court confirms that the standard of review is correctness. The appellant filed his statement of claim years ago, and the Master dismissed the suit under the old five-year “drop-dead” Rule, R 244.1, and the chambers judge applied transitional R 15.4(1) in dismissing the appeal. The substantive issue in the case is about dismissing a suit for non-prosecution under the new two-year “drop dead” Rule, R 4.33(1), amended in July 2011 from the old R 244.1. The appellant claims he laboured in the fields of regulatory and administrative law, which has advanced this suit considerably and the “drop dead” rule should not have been applied. The Court of Appeal indicates that these steps before various administrative bodies did not add any new evidence that would materially advance his case. Thus, the Court of Appeal finds it is irrelevant how the judge-made tests under the Rules are or were framed because the appellant does not satisfy any test in the Rules or in any case law. The Court confirms that the Master and the judge were right to dismiss the suit under the “drop dead” Rules, and the appeal is therefore dismissed. 

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Teresa MacLean

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Dhingra v. Dhingra, 2012 ONCA 261

In Dhingra v. Dhingra, the Ontario Court of Appeal considers whether section 17 of the Civil Remedies Act varies the rule of public policy that a person cannot profit from his wrongdoing where the accused has been found not criminally responsible on the basis of mental disorder (NCR-MD). The court held that the common law rule and the remedy under the Act do not conflict. The court allowed the appeal.

The rule of public policy states that a person cannot profit from their wrongdoing, but a person found NCR-MD is neither morally nor legally considered responsible for the death. The rule does not forbid a person found NCR-MD for the murder of another from sharing in a deceased’s estate or taking in the proceeds under an insurance policy. Using the Civil Remedies Act, the Attorney General can make an application for the forfeiture of proceeds of unlawful activity to the Crown. Under section 17, proof that a person was found NCR-MD for an offence is proof of the offence. However, this remedy is only available on application by the Attorney General and the court should only grant the order if it would be in the interests of justice to do so (s 3). The Court found that the common law rule and the remedy under the Civil Remedies Act do not conflict, as the former only deprives the wrongdoer of his or her share and allows the funds to go to other beneficiaries. However, an order under the Civil Remedies Act would deprive all beneficiaries of the proceeds. In these cases, the Attorney General may make an application for the forfeiture of the proceeds, but collection of the proceeds by the person found NCR-MD would not be barred by public policy. The court would be required to consider whether such forfeiture would be in the interests of justice. 

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Mary Phan

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R v. Pelech, 2012 ABCA 134

In this case, the Alberta Court of Appeal considers whether a trial judge must have within his or her contemplation the rule from Hodges when considering evidence of impaired driving. The rule in Hodges requires that a trial judge consider whether impairment by alcohol is the only rational inference that can be drawn from the evidence. The court, in a unanimous decision, held that a trial judge is not required to have the rule from Hodges in his or her contemplation when evaluating evidence of impaired driving.

The accused was charged with impaired driving after an officer observed the accused driving with his vehicle lights out after leaving a drinking establishment. The accused drove through three stop signs without attempting to brake and was subsequently pulled over. While the rule remains a valid means for ensuring the doctrine of proof beyond a reasonable doubt is properly applied to the facts, it is not the only device for doing so. The only true requirement is that the trial judge is satisfied beyond a reasonable doubt that the accused is guilty of impaired driving. In reaching its decision, the Court refers to R v. Griffin, 2009 SCC 28, wherein the Supreme Court of Canada affirmed its departure from any legal requirement of a “special instruction” with respect to circumstantial evidence. The Supreme Court further stated that the only requirement is that the trier of fact be satisfied, beyond a reasonable doubt, that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty (see Griffin, para 33). 

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Brandon Walker

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Bowes v. Goss Power Products Ltd., 2012 ONCA 425

In Bowes v. Goss Power Products Ltd. the Ontario Court of Appeal considered whether an employee, who is terminated without cause, is required to mitigate his or her loss when entitled to a fixed term of notice or pay in lieu, and the contract of employment is silent with respect to mitigation. The Court of Appeal held that the clause should be treated as fixing liquidated damages and there is no obligation on the part of the employee to mitigate. Accordingly, theappellant was entitled to the full amount of salary in lieu of notice as specified in the Employment Agreement, notwithstanding any salary earned from his new employer, and reversed the costs of the application in favour of the appellant. 

The appellant was terminated without notice from his work at Goss Power Products Ltd. after forty-one months of employment. Under the terms of his employment agreement with the respondent, he was entitled to either 6 months notice or payment in lieu. Two weeks after he had been terminated, the appellant commenced employment with another company at the same salary he had been paid by the respondent. The respondent paid Bowes the statutory minimum under the Employment Standards Act, 2000, S.O. 2000, c. 41, of three weeks’ pay in lieu of notice, because the appellant mitigated his loss successfully. In holding that a duty to mitigate does not exist where damages are either liquidated or a contractual sum, the court overruled the decision in Graham v. Marleau, Lemire Securities Inc.(2000), 49 C.C.E.L. (2d) 289 (S.C.) which held that there exists a presumption of a duty to mitigate in employment contracts, regardless of whether the employment contract stipulates a contractually fixed term of notice or not, unless the contract of employment can be interpreted as exempting the employee (either expressly or by implication) from a duty to mitigate. 

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Elizabeth Severinovskaya 

Mary Phan

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Ontario Inc. V. 1 King West Inc., 2012 ONCA 249

In this case, the Court interpreted s. 23(1) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), which states that a condominium corporation may bring an action for damages in respect to common elements of that condominium. The significant issue on appeal turned on the use of the word “may;” whether it merely permitted the condominium corporation to bring an action or whether it bestows exclusive authority to the corporation to pursue such an action. Blair J.A. found that this provision of the Act does not take away a right or deny standing to individual unit owners. It grants a right that condominium corporations would not otherwise have (the standing but not the exclusive standing) to sue on behalf of unit owners in relation to the common elements of the condominium. 

The appellant purchased eight units from the respondent developer, and had four units customized as the appellant’s head office. Though the doors, walls, and windows were customized, they still formed a part of the common elements of the condominium corporation. The appellant’s complaint centred on the alleged inability of the building’s HVAC system to respond to the special heating and cooling demands of the new configurations in the four head office units. HVAC systems are also part of the common elements of the condominium. The condominium corporation, after the appellant’s individual action had been brought, also commenced an action on behalf of itself and individual owners for common element deficiencies. The appellant did not opt out of this suit. 

Blair J.A. held that s. 23(1) does not preclude the appellant from advancing its claim under the agreement of purchase of sale in relation to the common elements. He also found that s. 23(4) of the Act, which addresses damages to the corporation on its own behalf, contemplates a potential difference between “corporate” and “individual” damages. Therefore, the appellant, by bringing an individual action and being a part of the corporate action, could collect from both and not be duplicating the damages. If duplication were ever an issue, a remedy of a stay of proceedings could be invoked.

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Megan Strachan

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Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363

The Ontario Court of Appeal clarified the scope of section 2(d) of the Charter, freedom of association, in the context of workers’ collective bargaining rights, in considering the constitutionality of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“PSLRA”), and s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (“Regulations”). The Court held that s.96 did not violate the Charter rights of the RCMP members and allowed the Attorney General’s appeal. It also held that the exclusion of RCMP members from the PSLRA did not violate s. 2(d) of the Charter and dismissed the RCMP’s cross-appeal. 

Section 96 creates the Staff Relations Representative Program (“SRRP”) which represents the respondents’ members. Though the SRRP is a vehicle for RCMP members’ concerns, it does not engage in good faith negotiations on their behalf nor is it institutionally independent from management. The respondents argued that section 2(d) of the Charter guarantees their right to collective bargaining power and accordingly, the right to engage in negotiations with management independent of the SRRP. Justice Juriansz rejected the respondents’ argument and allowed the Attorney General’s appeal. According to Juriansz JA, Fraser stands for the proposition that a government employer has a positive obligation under 2(d) to engage in good faith negotiations with employees only when is it virtually impossible for workers to engage in collective action on their own behalf. Even in such circumstances, collective bargaining under 2(d) only encompasses the right to make collective representations and have them acknowledged in good faith. In no event does section 2(d) prescribe a particular mode of collective action preferred by federal employees. Because the respondents are able to form voluntary associations and further able to voice their workplace concerns through the SRRP, they fail the Fraser test - it is not “effectively impossible” for them to act collectively and thus the constitutional right to collective bargaining has not been triggered. 

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Maeve Clougherty 
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P.A.L. v. Alberta (Criminal Injuries Review Board), 2012 ABCA 177

In P.A.L. v. Alberta (Criminal Injuries Review Board), the Alberta Court of Appeal ruled on a reasonable approach for victim compensation awards in the context of multiple psychological injuries under the Victims of Crime Act, RSA 2000, c V-3 (VOCA). The purpose of the VOCA is to ensure that victims promptly receive financial benefits for injuries suffered rather than awards for overall functioning. Therefore victims can, and should be compensated for individual injuries. Appeal allowed. 

The two appellants were sexual assault victims, diagnosed with three different and distinct psychological disorders arising from the trauma. Each appellant’s psychologist assigned a Global Assessment of Functioning (GAF) Score of 50 or less to the appellants. A GAF score is a measure of a person’s ability to function in their day-to-day life, taking into account any mental health concerns that may hamper functioning; it is also a necessary part of the VOCA formula for determining victim compensation. Where there is more than one mental disorder present, a GAF score cannot be individually associated with any one disorder. Based on expert evidence surrounding the victims' GAF scores, the Board ruled that the victims were not eligible for three separate awards under the VOCA for the three different and distinct psychological injuries suffered.

The Court of Appeal stated that focussing primarily on the GAF score in determining the award is inconsistent with the social welfare purpose of the legislation. Where legislation has a social welfare purpose, it should be construed liberally to advance the benevolent purpose of the legislation. Where there are ambiguities, it should be resolved in favour of the claimant.  The purpose of the VOCAis to ensure that victims promptly receive financial benefits for injuries suffered rather than awards for overall functioning. Therefore, victims can, and should be compensated for individual injuries. 

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Elizabeth Severinovskaya
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