Digests

Monday, June 26, 2017 @ 11:52 AM

Appeal by the Financial and Consumer Services Commission from a decision by the Financial and Consumer Services Tribunal staying proceedings involving the respondents, Emond and Drapeau. In June 2010, the Commission alleged the respondents promoted or participated in the sale of illegal investments contrary to the Securities Act. In December 2010, the Commission issued a notice of hearing for April 2011. However, six years elapsed between the date on which the allegations were filed and the scheduled date of the hearing before the Tribunal in May 2016. Following submissions on the preliminary issue of delay, the Tribunal ordered a stay of proceedings. The Tribunal ruled that it had lost jurisdiction by reason of delay. The Commission appealed. ... [read more]

Monday, June 26, 2017 @ 11:49 AM

Appeal by the offender, Buyck, from a sentence for sexual assault. The offender sexually assaulted his girlfriend's daughter by sexually touching her while she was unconscious from intoxication. The underlying proceedings involved 31 court appearances over two years. Prior to sentencing, the offender was assisted by three lawyers and amicus curiae. The offender initially sought a jury trial after waiving a preliminary inquiry. Approximately eight months later, the offender re-elected trial by judge alone and entered a guilty plea. An adjournment was granted to prepare pre-sentence and Gladue reports. Hours later, the offender advised his lawyer that he wanted the fact that he was in a relationship with the complainant to be added to the agreed statement of facts. A series of adjournments ensued, following which counsel withdrew and indicated the offender sought to strike his guilty plea. Five months later, the offender abandoned the plea application. The court was advised that the disagreement over the facts did not involve essential elements of the offence. Upon continuation six months later, the offender indicated he did not admit any of the facts in support of his plea. The offender advised he sought to withdraw his plea due to the belief he would be sentenced by way of a sentencing circle. The judge denied the application to strike the plea, appointed amicus curiae, and imposed an 18-month custodial sentence plus probation. The offender appealed. ... [read more]

Friday, June 23, 2017 @ 02:58 PM

Appeal by Douez from a judgment of the British Columbia Court of Appeal. Douez was a resident of British Columbia and a member of Facebook.com, one of the world’s leading social networks. The respondent, Facebook Inc. (Facebook), was an American corporation headquartered in California which operated Facebook.com and generated most of its revenues from advertising. Douez claimed that Facebook infringed her privacy rights by using her name and profile without her consent in one of its “Sponsored Stories”, a product it had developed to advertise companies and products to other members on the site and externally. In her action, Douez alleged that Facebook contravened s. 3(2) of the British Columbia Privacy Act (PA) by using her name and likeness without her consent. Douez also sought certification of her action as a class proceeding under the British Columbia Class Proceedings Act. The proposed class included all British Columbia residents who had their name or picture used in Sponsored Stories. The estimated size of the class was 1.8 million people. Facebook sought to have the action stayed on the basis of the forum selection clause contained in its terms of use, which every user was required to click to accept upon registering as a member of the site. This clause indicated that any disputes were to be resolved in California according to California law. The chambers judge refused to stay the action, concluding that s. 4 of the PA, which provided that actions under the PA must be heard in the Supreme Court of British Columbia, overrode the forum selection clause, and that the PA provided strong reasons not to enforce it. The Court of Appeal reversed that decision, concluding instead that the clause was enforceable and that Douez had failed to show strong cause not to enforce it. On appeal, the respondent did not dispute that British Columbia courts had territorial jurisdiction. The main issue was whether Douez’s action should be stayed on the basis of the forum selection clause contained in Facebook’s terms of use. The parties also disagreed on whether the analysis of forum selection clauses should be subsumed under s. 11 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), or whether they were distinct concepts. ... [read more]

Friday, June 23, 2017 @ 08:48 AM

Appeal by Justice Newbould from the dismissal of his motion to stay a decision of the Judicial Conduct Review Panel, constituting an Inquiry Committee to inquire into his conduct. In 2014, the Canadian Judicial Council (CJC) received complaints about Newbould’s involvement in a public controversy about an aboriginal land claim in the vicinity of a cottage property. The chairperson of the CJC’s Judicial Conduct Committee reviewed the complaints and closed the file. One of the complainants, the Indigenous Bar Association, requested a reconsideration of the chair’s decision. Upon reconsideration, the matter was forwarded to a Review Panel to determine whether an Inquiry Committee should be constituted. Newbould provided submissions to the Review Panel. Before the Review Panel advised him of its decision, Newbould wrote to the Minister of Justice resigning from his office as judge effective June 1, 2017. The Review Panel’s decision, issued in February 2017, recognized the CJC’s jurisdiction to reopen the complaint, and constituted an Inquiry Committee. Newbould applied for judicial review, seeking a declaration that the CJC lacked jurisdiction to reconsider the initial decision, and an order prohibiting the CJC from taking further steps concerning the complaints. He moved to stay the Review Panel’s decision pending the outcome of his judicial review application. The Federal Court held there were no extraordinary circumstances to justify interfering with the ongoing administrative proceedings until they were completed. The Court considered Newbould’s motion premature, given that the Crown was not seeking to strike out Newbould’s judicial review application. Alternatively, the Court found that, while Newbould’s application raised a serious issue, he failed to provide clear and compelling evidence that he would sustain irreparable reputational harm if the Review Panel’s decision was not stayed. ... [read more]

Friday, June 23, 2017 @ 08:45 AM

Appeal by the Crown from Bird’s acquittal on a charge of violating a term of his long-term supervision. In May 2005, Bird was declared a long-term offender and ordered to serve a prison term followed by a period of long-term supervision. Bird was granted statutory release three times, and re-incarcerated for violating his release terms, before completing his prison term. When Bird left prison, the Parole Board placed a condition on the long-term supervision requiring Bird to reside at a community correctional centre, community residential facility or other residential facility approved by the Correctional Service of Canada (CSC) for a period of 180 days. The Parole Board had accepted the CSC’s conclusion that Bird’s plan to return to the Ahtahkakoop First Nation to reside with his brother was not sufficient to manage his risk in the community. Bird took up residence at Oskana Centre, a community correctional centre, in January 2015, but left before the end of the month and did not return. He was charged with breaching his long-term supervision order upon his apprehension in April 2015. He defended the charge by arguing that the residency requirement was unlawful. The trial judge agreed, finding the requirement to be a violation of s. 7 of the Canadian Charter of Rights and Freedoms (Charter) on the basis that it obliged Bird to live in a penal institution even though his prison term was complete. The judge found no statutory or regulatory authority for incarcerating Bird as part of his long-term supervision. ... [read more]

Thursday, June 22, 2017 @ 02:51 PM

Appeal by Teal Cedar Products Ltd. (Teal) from a judgment of the British Columbia Court of Appeal confirming a judgment setting aside the decision of the British Columbia Supreme Court which partially upheld an arbitrator’s decision. The province of British Columbia and Teal were unable to settle how much compensation the province owed to Teal for reducing the latter’s access to certain improvements on Crown land which it used to harvest timber. Consequently, their dispute was submitted to arbitration as required by the Forestry Revitalization Act (Act). In order to determine the proper valuation method for Improvements Compensation, the arbitrator chose the Depreciation Replacement Cost Method because it was the only valuation methodology that determined Improvements Compensation separately from harvesting rights compensation, in keeping with their separate treatment in the act. The arbitrator held that Teal was entitled to interest on the Improvements Compensation, despite the No Interest Clause contained in the Settlement Framework Agreement, in light of the factual matrix of the parties’ failed settlement negotiations. The British Columbia Supreme Court essentially confirmed the arbitrator’s decision, only remitting the issue of Improvements Compensation for one of Teal’s timber supply areas, that of Lillooet. The British Columbia Court of Appeal ruled that the arbitrator’s award was, in this respect, both incorrect and unreasonable because it provided a “substantial publicly financed windfall” divorced from Teal’s actual financial loss. On the Interest Issue, the Court of Appeal opined that the arbitrator had made a legal error that gave the courts jurisdiction because he let the factual matrix overwhelm the Settlement Framework Agreement, despite the latter’s clear wording. The decision of the Court of Appeal on remand was silent in respect of the Lillooet Issue. The appeal involved two key interpretation issues, namely whether the arbitrator erred in law by: (1) interpreting the Depreciation Replacement Cost Method as being consistent with the act (the Valuation Issue); and (2) interpreting the Amended Settlement Framework Agreement as including interest in the province’s Improvements Compensation payment to Teal (the Interest Issue). This appeal also involved a statutory application issue, namely whether the arbitrator erred in law by denying Improvements Compensation to Teal when he applied his chosen methodology to the Lillooet Licence (the Lillooet Issue). ... [read more]

Thursday, June 22, 2017 @ 08:34 AM

Application by the Union to lift the stay of execution of an order pursuant to Rule 15 of the Court of Appeal Rules, or in the alternative, for an order declaring that the judgment was not stayed except to the extent of the appeal taken by the Union. The Union represented Type 1 Wildland firefighters working for the province. Since 1999, the firefighters had been required to pass a fitness test. The Union and the province had agreed by a Letter of Understanding (LOU) that employees hired prior to April 1, 1999 would be “grandfathered” and not have to successfully complete the fitness test, known as the “arduous test”. In 2012, the province replaced the arduous test with a new fitness test, the “WFX-Fit Test”. The new test was implemented unilaterally and firefighters hired prior to April 1, 1999 were not exempted. The Union filed two policy grievances and argued that the new test was discriminatory against certain employees and that its implementation violated the terms of the LOU. The arbitrator found that the test was discriminatory against older male and female employees and that its implementation breached the LOU by failing to exempt grandfathered firefighters. On judicial review, the Chambers judge quashed the arbitrator’s decision in part, finding that the WFX-Fit Test was not discriminatory with respect to gender and age. The Union appealed the order setting aside the arbitrator’s finding that the new test was discriminatory. It applied to lift the stay imposed on the implementation of the portion of the arbitrator’s decision that was not quashed, specifically, the finding that the implementation of the new test breached the LOU. The Union pointed out that of 47 formerly exempt employees, only 20 of those employees passed the new test and that several lost work or feared losing work in the future if they had to complete the WFX-Fit Test. ... [read more]

Thursday, June 22, 2017 @ 08:32 AM

Appeal by the law firm from a decision finding that the retainer agreement between it and the respondent First Nation was neither fair nor reasonable. The judge who assessed the retainer agreement under The Legal Profession Act determined the appropriate remuneration on a quantum meruit basis, which amount did not include a bonus. The respondent had entered into a retainer agreement with the appellant in 2003 in connection with a treaty land entitlement claim. The 2003 agreement provided for remuneration on an hourly fee-for-service basis. The services that were to be provided by the appellant related to outstanding Treaty Land Entitlement under Treaty 9 and any other matter that the respondent might instruct the law firm to act on. In 2006, the respondent retained the appellant to represent it in negotiations regarding a flood claim. The appellant then tried to negotiate a new retainer agreement with the respondent that included a three per cent bonus. While the respondent resisted initially, the appellant indicated incorrectly that counsel from another firm representing First Nations with respect to flood claims was receiving a 10 per cent bonus and that bonusing counsel was a regular practice. Unaware that the 2003 agreement also governed the flood claim, the respondent then agreed to a new retainer agreement in 2009 that included a bonus. The appellant then increased the hourly rate for lawyers within the firm without notice, contrary to the retainer agreement. ... [read more]

Wednesday, June 21, 2017 @ 08:48 AM

Appeal by the husband from an order setting aside the parties’ separation agreement, awarding the wife equalization, and ordering the husband to pay retroactive child support of $450,000. The parties met in 1991 when the wife worked as a lawyer and the husband and his businesses were clients of the firm where she worked. They moved in together in 1993 and the husband commenced divorce proceedings against his former wife. The wife started working exclusively for the husband and his companies in 1993. The parties’ three children were born in 1994, 1997 and 1999. The husband’s outstanding family law proceedings with his former wife were settled in 1999. The wife left the practice of law in 2001. The parties separated in 2008. The wife accepted the husband’s figures for the valuation of their family property and agreed that she owed him almost $1 million in equalization. In their 2008 separation agreement, the wife was released from her obligation to make a $954,150 equalization payment. No child support was to be paid because the children were to spend equal time with both parties. The issue of child support was to be reviewed yearly after 2010. After she signed the agreement, the wife became concerned that the husband had overvalued the corporate assets he brought into the relationship, resulting in her owing him an equalization payment. Documents that were filed in the husband’s first divorce proceedings established that he essentially brought no assets of value into his second marriage. The wife applied in 2009 to set aside the separation agreement based on the husband’s misrepresentations about his assets, but her claim was summarily dismissed because she had failed to conduct her own investigation into the values when she had the opportunity to do so. She succeeded on appeal. The appeal judge found that the wife bore no onus to inquire about the veracity of the husband’s figures in circumstances where he made deliberate material misrepresentations. A trial was ordered, at which the husband was found to have intentionally misrepresented the value of his corporate holdings at the date of the marriage at $6 million over their actual value. The trial judge gave no value to litigation assets the husband claimed he was entitled to at the date of the marriage, finding that the deluge of litigation in which the husband was then involved and the lack of credible evidence upon which to determine the likelihood of settlement about any of the litigation receivables claimed precluded a reasonable assessment of their value. Retroactive child support was ordered because the wife’s post-separation income was lower than anticipated, while the husband’s was higher than anticipated, and because the husband had engaged in blameworthy conduct in misrepresenting his assets. ... [read more]

Wednesday, June 21, 2017 @ 08:46 AM

Appeal by the accused from conviction for first degree murder. The victim’s nephew had orchestrated the murder. The appellant had acted as the middle man and hired a close friend to carry out the killing. The murder had generated a great deal of publicity before trial which raised a concern about the impartiality of prospective jurors. Both the Crown and the defence were permitted to challenge prospective jurors for cause based on pre-trial publicity. The trial judge told counsel he intended to use static triers. Defence counsel did not object to the use of static triers or raise the possibility of using rotating triers. The dialogue between the trial judge and counsel indicated that, because of the concern about pre-trial publicity, both the Crown and the defence wanted all the prospective jurors out of the courtroom during the challenges for cause. The trial judge explained that he would vet each proposed static trier and give defence counsel a chance to object to any person chosen. Defence counsel expressed satisfaction with the trial judge's proposed approach. The appellant did not make a formal application under s. 640(2.1) of the Criminal Code to exclude all jurors from the courtroom, and he did not specifically request static triers. On appeal, the appellant argued that the jury was thus improperly constituted because the trial judge used static triers to decide the challenges for cause. He also submitted that the trial judge erred by discharging without reasonable cause. The juror was discharged after the Crown’s opening address because the trial judge found the juror had serious problems which impacted on his ability to concentrate and understand the evidence. The juror had a broken back, was in a body brace, and was taking medication to control his pain. He was also using a walker and had a significant hearing impairment. Before the formal jury selection began, the trial judge learned that the juror was 70 years old, was a retired biology professor and walked with a walker because he had broken his back. The trial judge allowed him to remain in the jury pool. Both the Crown and the defence also deemed him acceptable and he became a member of the jury. ... [read more]