We use cookies on this site to enable your digital experience. By continuing to use this site, you are agreeing to our cookie policy. close
Focus On
NEW In-House Counsel | Insurance | Intellectual Property | Immigration | Natural Resources | Real Estate | Tax



Thursday, March 16, 2017 @ 8:41 AM

BARRISTERS AND SOLICITORS - Negligence - In conduct of action - Consequences of negligence

Appeal by the defendant, McLean, from a judgment in a solicitor's negligence action. Cross-appeal by the plaintiffs, the Jarbeaus, from the judgment and costs award. The plaintiffs purchased a new home from a developer that leaked due to a failure to meet building code standards. The plaintiffs retained the defendant solicitor to sue those responsible for building and selling them a defective home. The defendant sued the developer, the City and the warranty corporation, but failed to sue the engineer within the limitation period. The defendant negligently advised the plaintiffs they did not have a cause of action against the engineer on the basis they did not have a contract with him. The engineer subsequently acknowledged he was negligent in certifying the design and construction of the home. The plaintiffs settled the first action and sued the defendant seeking damages for solicitor's negligence. On the eve of trial, the defendant admitted liability. The trial proceeded on the issues of causation and damages. A trial within the trial examined the plaintiffs' potential action against the engineer. The jury found in the plaintiffs' favour. The jury assessed the costs of repair at $433,000, and the diminution in value due to the defects at $265,000. Deduction of the $75,000 settlement of the first action resulted in a net award of $190,000. The trial judge declared the jury's cost of repair finding as perverse, but granted judgment for $190,000 as the lesser of the cost to repair and diminution of value. The trial judge reduced the costs payable to the plaintiffs despite bettering a settlement offer on the basis the jury's diminution of value finding was also perverse. The defendant appealed and the plaintiffs cross-appealed. ... [read more]

Thursday, March 16, 2017 @ 8:40 AM

BARRISTERS AND SOLICITORS - Disqualification or removal

Appeal by Sikes and two companies from a Federal Court decision affirming a Prothonotary's refusal to have Smart & Biggar removed as solicitors of record for the respondents, Encana, Cenovus and FCCL. In 2008, Sikes communicated with eight different law firms, including Smart & Biggar, seeking legal representation to enforce the appellants' rights associated with a pending patent. Smart & Biggar declined to represent the appellants, citing a conflict of interest. In 2014, Smith & Biggar was appointed as the respondents' solicitor. In 2015, the appellants filed a motion for removal of Smith & Biggar on the basis of the 2008 interaction with Sikes. The appellants submitted confidential information was imparted by Sikes and that legal advice was provided. The prothonotary, acting as the case management judge, dismissed the motion on the basis of the unchallenged evidence that the information communicated by Sikes was non-confidential and that no legal advice was provided. The Federal Court dismissed the appeal, finding no basis for interference with the prothonotary's conclusion that no solicitor and client relationship materialized. The appellants appealed to the Court of Appeal. ... [read more]

Wednesday, March 15, 2017 @ 9:02 AM

PATENTS - Procedure - Costs - Assessment or fixing of costs

Appeal by Nova Chemicals Corporation (Nova) from a costs award in favour of the Dow Chemical companies (Dow). Dow successfully sued Nova for patent infringement and successfully defended the judgment on appeal. The Federal Court awarded Dow lump-sum costs of $2.9 million for legal fees, plus disbursements of $3.6 million. The Court found that allowable legal fees under Column V of Tariff B would have awarded 11 per cent of Dow's incurred costs, resulting in an inadequate award. The Court characterized the 33 days of discovery and 32 days of trial as an extremely complex patent case involving extensive expert testimony, thereby justifying an increased costs award. The Court awarded lump-sum costs to avoid additional delay and expense associated with an assessment of costs. The Court concluded that an award of approximately three times what was available under the Tariff was reasonable. The Court found that Dow's bill of costs and the attached schedules permitted determination of the reasonableness of the award and related disbursements. Nova appealed. ... [read more]

Wednesday, March 15, 2017 @ 9:01 AM

TRADE-MARKS - Infringement - Confusion and deception - Remedies - Damages - Procedure - Costs - Assessment or fixing of costs - On appeal

Appeal by the defendant, Lam, from an award of damages and costs in favour of the plaintiffs, the Chanel companies. The plaintiffs alleged the defendants sold counterfeit Chanel products. In 2015, the Federal Court found the defendants liable for infringement of the plaintiffs' trade-marks and selling goods in a manner likely to cause confusion. The plaintiffs were awarded compensatory damages of $64,000, punitive and exemplary damages of $250,000, and costs totaling $66,000. The defendants were liable for the award on a joint and several basis. In 2016, the Federal Court of Appeal remitted the matter to the trial judge for clarification of whether the defendant was responsible for three or four instances of dealing in counterfeit goods. Upon redetermination, the trial judge clarified that the defendant was liable for four instances of counterfeiting and reaffirmed the initial decision's damages and costs awards. The defendant appealed the damages and costs awards. The plaintiffs appealed the costs award on the basis it failed to sufficiently reflect their settlement offer made prior to the redetermination hearing. ... [read more]

Wednesday, March 15, 2017 @ 9:01 AM

WRONGFUL DISMISSAL DAMAGES - Occupation - Executive and management - Damages for mental distress - Wallace damages

Appeal by the defendant, Zochem, from a damages award in favour of the plaintiff, Doyle. The plaintiff worked for the defendant for nine years, most recently as supervisor of a zinc oxide production plant and health and safety coordinator. The plaintiff had 20 years' experience supervising employees. She was the only woman who worked at the plant. Her job required cooperation with Rogers, the plant maintenance manager, an employee the defendant regarded as irreplaceable. Rogers sexually harassed the plaintiff. He commented favourably on her breasts, made constant references to sexual activity, and continually objectified her. Rogers became aware of the plaintiff's forthcoming termination and demeaned her during a production meeting after she raised legitimate safety concerns. Unaware of her forthcoming termination, the plaintiff complained of the sexual harassment. The defendant conducted a cursory investigation without input from the plaintiff. The plaintiff was terminated without cause. She was 44 years of age at the time of her termination and 48 years of age at the time of trial. The plaintiff described the physical and psychological impact of the dismissal. The trial judge determined the plaintiff was terminated due to her gender and her sexual harassment complaint. The plaintiff was awarded ten months' pay in lieu of notice, $25,000 for sexual harassment under the Human Rights Code, plus $60,000 in moral damages for the defendant's breach of its implied contractual obligation of good faith in the manner of dismissal. The defendant appealed the moral damages award. ... [read more]

Wednesday, March 15, 2017 @ 9:00 AM


Appeal by the Students’ Association of Saskatchewan Polytechnic Regina from a decision granting a writ of possession in favour of Saskatchewan Polytechnic. In 2010, the school entered a master agreement with the student associations, including the appellant, at several of its locations. In 2012, a campus partnership agreement contemplated by the master agreement addressed matters specific to the appellant. Similar agreements were reached on other campuses. The campus agreement provided for allocation of space for the appellant's use in a school building, with the relationship being that of landlord and tenant, governed by the Landlord and Tenant Act. In 2015, the school issued a letter to the appellant and other associations advising of a need to negotiate new agreements to govern their relationship. The appellant regarded the letter as an invitation to negotiate revisions to the master agreement, whereas the school regarded the letter as termination of all existing agreements. The parties were unable to negotiate a revised agreement. The appellant refused to accept a short-term service agreement proposed by the school. The school made a formal demand for possession of the appellant's premises. The appellant refused. The school obtained a writ of possession pursuant to s. 50(1) of the Landlord and Tenant Act. The appellant appealed. ... [read more]

Tuesday, March 14, 2017 @ 8:58 AM

PRISON ADMINISTRATION - Security classifications - Maximum

Appeal by an inmate from the dismissal of his application for habeas corpus challenging his initial security classification. The appellant was convicted and sentenced to two years and six months incarceration for break and enter with intent to commit an indictable offence. His transfer to the federal prison system was delayed because he was facing outstanding charges. However, the intake assessment process was started while he was under provincial remand, and he was initially identified as being a medium security risk. However, after being advised of an incident in which the appellant shoved a correction officer, the appellant was classified as maximum security. Although the appellant denied assaulting a corrections officer, the information about the assault was never verified. As a result of the maximum security classification, the appellant was placed in solitary confinement and remained there until his transfer to a maximum security institution. The appellant asserted his classification decision was unlawful and caused a deprivation of his liberty. He claimed that Correctional Services relied on inaccurate information and he was denied procedural fairness. The application judge found that it was not open to the appellant to argue that there was a deprivation of residual liberty in the context of an initial security classification. He further found that only the Federal Court had the power to quash an initial security classification and grant a remedy. The appellant appealed. ... [read more]

Tuesday, March 14, 2017 @ 8:55 AM

EVIDENCE - Opinion evidence - Expert evidence - Criteria for admissibility - What constitutes special knowledge and experience

Appeal by Bingley from a judgment of the Ontario Court of Appeal affirming a decision setting aside his acquittal and ordering a new trial for driving while impaired by a drug. After Bingley was observed driving erratically, the police were called. One of the officers, a certified drug recognition expert (DRE) under the Criminal Code, conducted a standard field sobriety test. Bingley failed the test and was arrested for driving while impaired by a drug. At trial, the Prosecution called the DRE to explain the results of his drug recognition evaluation as evidence of Bingley’s impairment. The Prosecution relied on s. 254(3.1) of the Criminal Code as establishing the admissibility of the DRE’s testimony and argued that no voir dire was required. The judge at the first trial allowed the DRE to testify as an expert regarding the results of the drug recognition evaluation without a voir dire, but acquitted Bingley. On appeal, the acquittal was overturned and a new trial was ordered. The second trial judge held that the DRE could not be qualified as an expert because he was not trained in the science underlying the drug recognition procedure. He also concluded that the evidence was not admissible lay opinion. He acquitted Bingley. The Prosecution successfully appealed the second acquittal. The summary conviction appeal judge held that s. 254(3.1) of the Criminal Code rendered a DRE’s opinion automatically admissible and that in any event, it would be admissible lay opinion. The Court of Appeal held that the DRE’s opinion evidence was admissible without a voir dire. Section 254(3.1) of the Criminal Code allowed a DRE “to determine” whether an individual was impaired due to a drug or a combination of drugs and alcohol. It was implicit that this determination was automatically admissible as opinion evidence, the Court opined. Bingley appealed. ... [read more]

Tuesday, March 14, 2017 @ 8:55 AM

EVIDENCE - Documentary evidence

Application by the Ombudsman of Nova Scotia to stay a production order pending his appeal. The Ombudsman received a complaint from two former employees of the Cumberland Regional Development Authority (CRDA) and commenced an investigation into the financial practices of the CRDA. He released a pubic report indicating that the complaint was substantiated. The province then engaged PWC to conduct a forensic audit of the CRDA. The audit resulted in a referral to the RCMP Commercial Crime Unit. The RCMP obtained a production order under s. 487 of the Criminal Code, requiring the Ombudsman to produce all documents and data relating to its August 2012 report. The Ombudsman applied to have the order varied or revoked, on the basis that compliance would result in the disclosure of privilege or protected information. The judge declined to revoke the production order, instead varying the order to require the Ombudsman to produce a summary of information that suggested knowledge the CRDA was submitting false or improper documentation. The Ombudsman was unsuccessful in seeking judicial review. The RCMP investigation had subsequently led to the laying of criminal charges. ... [read more]

Monday, March 13, 2017 @ 8:58 AM

CIVIL PROCEDURE - Parties - Intervenors - Requirement of interest

Application by the Attorney General of Newfoundland and Labrador for intervenor status in an appeal by Weir Construction (Weir) and its principals respecting the right of an injured worker, Warford, to maintain an action in tort in the Supreme Court against them. Warford was seriously injured while working as a mechanic repairing a large truck owned and used by Weir in its construction business. He was awarded benefits under the Workplace Health, Safety and Compensation Commission Act (Act), after which the Commission exercised its rights of subrogation and commenced the present action. When the Commission decided not to proceed with the action, it allowed Warford to continue it for his own benefit, on the condition that if he was successful he would repay the benefits he received under the legislation. After the issue of whether the action was prohibited because the accident involved the use of a motor vehicle in the course of Warford’s employment was considered by the Court multiple times, the Court ruled that the action could proceed, based on the delay in resolving the issue. Weir and its principals appealed. Over 20 years had passed since Warford suffered his injury and he was now deceased. His action was continued by his estate. The Attorney General sought intervenor status in the appeal because the outcome would impact three other pieces of litigation involving the application of sections 44 and 44.2 of the Act. Of the parties to the appeal, only Warford’s estate opposed the Attorney General’s application to intervene, noting that the Attorney General could have participated in earlier proceedings, and arguing that allowing the application had the potential to further delay the case because other interested parties, such as motor vehicle insurers, could seek to intervene as well. ... [read more]