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Thursday, September 08, 2016 @ 8:00 PM

Transportation Law - Motor vehicles and highway traffic - Vehicle licensing - Registrar of vehicles - Conditions - Number plates

Appeal by the Registrar of Motor Vehicles from a determination that the Registrar acted unreasonably in revoking personalized licence plates issued to Maxwell, a criminal lawyer. Maxwell specialized in defending clients charged with impaired driving offences. In 2008, he was issued plates reading “DUI DR”. The plates were renewed each year without question, until 2015. The Registrar received a written complaint regarding the plates in November 2014, and two further separate complaints from MADD Canada and MADD Greater Fredericton, prior to making the decision to revoke the plates. The Registrar wrote to Maxwell to inform him the plates were erroneously issued in 2008 and to request the return of the plates within 14 days. Maxwell did not return the plates and the Registrar issued an order authorizing their seizure. The Registrar mailed new plates to Maxwell, which Maxwell returned. Both DUI DR plates were seized by June 2015. Maxwell sought judicial review of the Registrar’s decision to revoke the plates. The judge found that there had been a breach of procedural fairness and that the Registrar’s decision was unreasonable, as there was no evidence providing a basis for the decision. The judge ordered the Registrar to return the DUI DR plates and to pay $5,000 to Maxwell in costs. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Workplace Health, Safety & Compensation Law - Workers’ compensation - Compensability of injuries - Psychological injuries - Stress

Appeal by the Attorney General from a decision by the Appeals Tribunal allowing Mullin’s appeal. Mullin was employed by the Correctional Service of Canada at a maximum security penitentiary. In 2012, Mullin requested stress leave. While on leave, a psychologist with the Workplace Health, Safety and Compensation Commission’s (Commission) medical advisor evaluated Mullin’s file and concluded that the evidence did not demonstrate emotionally overwhelming stress. In March 2013, the Commission informed Mullin that his claim had been disallowed on the basis that he had not satisfied the requirement that the claim had arisen out of or in the court of his employment. The Appeals Tribunal concluded Mullin’s claim for mental stress should have been accepted and allowed his appeal. The Attorney General submitted that the Appeals Tribunal committed a reversible error in its interpretation and application of the proper test for gradual onset mental stress claims, and in its determination that Mullin met the test for a compensable mental stress claim as a federal government employee in New Brunswick. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Insurance Law - Automobile insurance - Accident benefits

Application by Saskatchewan Government Insurance (SGI) for an order quashing Bourelle’s appeal. Bourelle was involved in motor vehicle accidents in 1996 and 1998 and began receiving benefits pursuant to The Automobile Accident Insurance Act (AAIA). SGI ultimately terminated those benefits. In 2002, Bourelle appealed SGI’s decision. In 2016, Bourelle was ordered to attend on a physician for the purpose of undergoing an independent medical examination. Bourelle filed a notice of appeal asking that the decision be set aside. SGI submitted Bourelle’s appeal should be quashed because it was initiated without her having first obtained leave to appeal as required by s. 8 of The Court of Appeal Act. Bourelle conceded that the decision was interlocutory, but submitted that leave to appeal was not required because the AAIA gave her a right of appeal and the order concerned an injunction and thus fell within the scope of s. 8(2)(a)(iii) of the AAIA. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Municipal boards and tribunals - Jurisdiction - Finances - Tax assessment - Practice and procedure

Application by Aquila Holdings and 101211085 Saskatchewan for leave to appeal a decision by the Assessment Appeals Committee of the Saskatchewan Municipal Board. The applicants claimed legal interests in a parcel of land that had been the subject of a reduced tax agreement with the Rural Municipality of Edenwold. The Municipality stopped honouring the tax exemption agreement on the basis of a change of ownership. The Board of Revision refused to hear the applicants’ appeal due to a late filing. On further appeal, the Committee held that the appeal to the Board was brought within time, but that there was no authority to consider the validity and legality of the agreement in question, or the validity and legality of the Municipality’s cancelation decision. The Committee further found there was no authority to require the Municipality to provide an agreement that was entirely within its Council’s discretion. The applicants sought leave to appeal on the basis the Committee’s findings resulted from errors in law and jurisdiction. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Civil Litigation - Civil procedure - Discovery - Production and inspection of documents - Privileged documents - Crown privilege or public interest - Documents prepared in contemplation of litigation

Appeals by the federal and provincial Crown defendants from a documentary production ruling involving determination of the scope of litigation privilege. The plaintiff’s daughter and another individual were shot and killed in their home. The Crown believed the murder arose from the daughter’s involvement in a marijuana grow operation. A neighbour reported the gunshots to police. RCMP attended the neighbourhood but did not speak to the neighbour and left the scene after failing to detect evidence of a shooting. The plaintiff’s daughter was paralyzed in the shooting and unable to call for assistance. She was found by a neighbour four days later and died en route to hospital. Four individuals were charged in connection with the shootings. Three individuals pled guilty and the alleged mastermind behind the shootings awaited trial. In 2011, the plaintiff filed a notice of civil claim on behalf of her daughter’s estate seeking damages based on inadequate investigation of the shooting by the police. The plaintiff received disclosure comprised of the RCMP investigative file, police disciplinary files, and documentation of internal and external reviews of the incident. The plaintiff applied for production of documents contained in two RCMP investigative briefs prepared for the criminal prosecution of those responsible for the murders. The Crown defendants took the position that the documents were subject to litigation privilege, as the briefs contained information that would corroborate evidence of key witnesses, including the plaintiff. In ordering partial disclosure, the chambers judge found that the asserted litigation privilege did not apply to the plaintiff as a non-party to the criminal proceeding. Public interest immunity could be overcome with appropriate redactions and restrictions on use of the documents. The Crown defendants appealed. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Administrative Law - Judicial review and statutory appeal - Practice and procedure - Limitation periods

Appeal by the Province of New Brunswick (Province) from a decision on a preliminary issue in an application for judicial review. In his 2015 budget speech delivered on March 31, 2015, New Brunswick’s Minister of Finance announced the closure of courthouses in certain areas of the province. The announcement was repeated in a news release issued that same day. Neither the Minister’s statement nor the news release identified a specific date upon which the facilities would be closed. More than six months later, on October 7, 2015, virtually on the eve of the closures, the Charlotte County Barristers’ Society (Society) commenced an application to the Court of Queen’s Bench for judicial review of the Province’s decision. A judge of the Court of Queen’s Bench held that, for judicial review purposes, the decision crystalized on the date the public was made aware of the specific date the facilities would close (October 26, 2015) and it was only then that the limitation period began to run. The Province submitted that the judge erred in determining that a date nineteen days subsequent to the filing of the Society’s application for judicial review was the date of the decision for judicial review purposes. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Limitation of actions - Extension, interruption, suspension and inapplicability - Expiry of limitation periods

Appeal by the plaintiff, Trombley, from a summary trial judgment dismissing his claim against the defendants, the Pannus, as statue-barred. In July 2012, the plaintiff tripped and fell on stairs in front of a premises owned by the defendants. The plaintiff was seriously injured in the fall. In April 2013, he retained counsel. In August 2013, counsel notified the defendants of the plaintiff’s intent to pursue a claim for damages. In September 2013, the defendants’ insurance adjuster wrote to plaintiff’s counsel advising the incident was under investigation and requesting a written account from the plaintiff. In November 2013, the plaintiff provided the requested information and hospital records. In January 2014, the adjuster sent 40 questions related to the issues of liability and damages. In February 2014, counsel provided the plaintiff’s answers. In April 2014, the adjuster sent a without prejudice letter that requested any settlement demands. No settlement proposal was provided and the plaintiff’s notice of civil claim was filed in August 2014, three weeks after expiration of the two-year limitation period. The summary trial judge rejected the plaintiff’s contention that the April 2014 without prejudice request for settlement proposals acknowledged liability in a manner that extended the limitation period. The action was dismissed. The plaintiff appealed. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Contracts - Terms - Express terms - Exclusion clauses - Term and termination

Appeal by the plaintiffs, Chuang and his companies, from dismissal of an action against the defendant, Toyota Canada. The plaintiffs had a history of involvement in operating luxury car dealerships. The parties entered into an agreement for the construction and operation of a Lexus dealership in downtown Toronto. The defendant terminated the agreement due to the plaintiffs’ failure to meet the construction deadlines stated therein. The plaintiffs sued for specific performance of the agreement plus damages. By trial, the plaintiffs had opened a different dealership on the proposed site. They accordingly limited their claim to damages arising from the defendant’s wrongful termination of the agreement. The trial judge concluded that the defendant did not act reasonably in terminating the agreement. However, the agreement’s exclusion clause insulated the defendant from any damages or losses sustained by the plaintiffs as a result of the agreement’s termination. The action was dismissed with costs of $1.2 million awarded to the defendant. The plaintiffs appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Construction Law - Bidding process - Breach of tender

Appeal by the contractor from the award of damages for breach of contract and cross-appeal by the owner from the finding that it was in breach of the contract. The appellant was an unsuccessful bidder on a CCDC-2 Stipulated Price Construction Contract. The Instruction to Bidders and other related documents involved situation specific contract terms. The contract had standard clauses allowing the general contractor to make a claim for additional compensation from the owner due to reasonably unanticipated project conditions. After the project was awarded to another contractor, the appellant commenced a claim for breach of contract asserting that there was a departure from the essence of the bidding process and an improper and unequal treatment of the bids. At trial, the respondent sought to establish that the appellant’s profit margin should be discounted by negative contingencies. It led evidence from the successful bidder that they lost money on the project. The trial judge found that the respondent was in breach of the “Contract A” element of the bidding process by awarding the contract to the other contractor. He found that the appellant could have been awarded the contract had the respondent properly applied its criteria and that its losses were not too remote. He further found that the respondent had not met its onus in proving a discount for uncertainty or the appellant’s avoidance of its loss. However, he concluded that the appellant, like the contractor to whom the contract was awarded, would have suffered heavy financial losses in its performance of “Contract B” and he limited damages accordingly. The respondent claimed that it was entitled to judgment in the amount of its anticipated profit and that there was no reason for the trial judge to discount its lost profit effectively to zero. The respondent cross-appealed, arguing that the appellant should have lost by non-suit and that the expression “sole and unfettered discretion” in the Instruction to Bidders document conferred on it the right to use whatever methodology it saw fit to evaluate criteria after the bids were received. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Criminal Law - Defences - Entrapment

Application by the accused Nuttall and Korody for a stay of proceedings due to entrapment and abuse of process resulting from the conduct of the police in an undercover operation. Both accused were convicted of terrorist offences arising from the planting of explosive devices made from pressure cookers. The RCMP’s interest in Nuttall arose from a tip given to them by CSIS in 2013 that indicated he was attempting to purchase potassium nitrate at local pharmacies. The RCMP conducted an investigation through surveillance and an undercover operation into possible terrorist activities by Nuttall and his common law spouse, Korody. Police had very little evidence at the commencement of the undercover operation to support any reasonable suspicion that Nuttall was already engaged in criminal activity of any type. Tactics were used by the undercover officers to foster a belief that Officer A was a high-ranking member of a well-financed and well-resourced sophisticated terrorist organization. Nuttall indicated he had a plan and needed items to carry it out. A large part of the undercover investigation involved holding out the possibility of strategic assistance as a means of perpetuating contact between Officer A and the accused. Having failed to motivate the accused to either decide on a specific plan or articulate how they would accomplish a plan, the investigative team decided to focus them on making explosives out of pressure cooker devices. The investigative team then made a firm offer to provide the accused with C4 explosive specifically for the pressure cooker devices and actively encouraged this idea. Many of Nuttall’s statements to Officer A about his abilities and his past behaviour were false or exaggerated. The accused were easily manipulated by Officer A, who on many occasions orchestrated the desired outcomes as a result of the control and influence he exercised over them. ... [read more]