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Tuesday, February 07, 2017 @ 10:28 AM

AUTOMOBILE INSURANCE - Uninsured or underinsured motorist coverage

Appeal by Sabean from a judgment of the Nova Scotia Court of Appeal setting aside a trial judge decision holding that future Canada Pension Plan (CPP) disability benefits were not to be deducted from the amount payable under Sabean’s excess insurance policy. Sabean was injured in a motor vehicle accident in 2004. In May 2013, a jury awarded Sabean damages for his injuries in the amount of $465,400. The amount he received from the tortfeasor’s insurer was about $382,000, leaving a shortfall of more than $83,000, which Sabean claimed under the excess coverage provisions of his SEF 44 Endorsement with Portage La Prairie Mutual Insurance Company (Portage). Clause 4(b)(vii) of the Endorsement stipulated that amounts recoverable under "any policy of insurance providing disability benefits or loss of income benefits or medical expense or rehabilitation benefits" were to be deducted from the shortfall of the damages awarded in determining the amount payable by the insurer to the eligible claimant. Sabean was entitled to receive future CPP disability benefits. Portage claimed that those amounts were to be deducted as recoverable benefits from a "policy of insurance" under clause 4(b)(vii) in determining the amount payable by Portage. Sabean disagreed. The trial judge in this case found that CPP benefits were not benefits from a "policy of insurance" under the Endorsement and thus would not be deducted from the amount payable by the insurer. The Nova Scotia Court of Appeal disagreed, concluding that the CPP was a "policy of insurance" under the Endorsement. The issue in this appeal was whether the CPP was a "policy of insurance providing disability benefits" within the meaning of clause 4(b)(vii) of the SEF 44 Endorsement. ... [read more]

Tuesday, February 07, 2017 @ 10:21 AM

HEALTH CARE PROFESSIONALS - Liability (malpractice) - Negligence - Causation - Failure to diagnose - Standard of care - Particular professions - Doctors - Practice and procedure - Evidence

Appeal by the plaintiff, Timlick, and cross-appeal by the defendant, Dr. Heywood, from a judgment in a negligence action alleging medical malpractice. In 1983, the defendant was the physician who delivered the plaintiff and acted as his family doctor for the first two years of his life thereafter. The plaintiff appeared healthy, notwithstanding being born with a large head. However, as the plaintiff grew up, he struggled with psychological, cognitive, executive functioning and neurological problems. In 2007, the plaintiff's symptoms caused him to undergo a brain MRI. The procedure revealed severe obstructive hydrocephalus, most likely caused by a benign tumor present at birth. The plaintiff underwent a surgery that resulted in a significant improvement in his symptoms. The plaintiff subsequently sued the defendant alleging a negligent failure to diagnose the hydrocephalus while under his care. The trial judge concluded the defendant failed to meet the standard of care of a general practitioner between 1983 and 1985. The breach arose from the defendant's failure to appreciate the significance of the head circumference measurements of the ... [read more]

Tuesday, February 07, 2017 @ 10:16 AM

LIQUOR CONTROL - Liquor control and licensing boards - Powers - Procedure - Appeals and judicial review

Appeal by Scholten’s Hanwell Ltd. (Sholten’s) from the dismissal of its application for judicial review of a 2014 policy of the N.B. Liquor Corporation (Corporation), permitting agency stores to be set up in some small communities where the Corporation would not otherwise establish liquor stores. In 2014, Scholten’s, the unsuccessful bidder in a request for proposals from the Corporation, successfully obtained judicial review of the Corporation’s decision to appoint Power Plus Technology Inc. an agent for a liquor store location in Hanwell. Prior to seeking judicial review, Scholten’s had communicated with the Ombudsman requesting a review of the Request for Proposals process, and had received confirmation from the Minister of Finance that he intended to request that the Ombudsman independently review the Corporation’s process for assessing proposals. Following the court ruling, the Corporation reviewed its process and agency store policy. Scholten’s filed the current application in August 2014, seeking an order that the Corporation wait for recommendations from the Ombudsman before adopting a new agency store policy. Days later, the Corporation adopted a new policy and, pursuant to that policy, issued a Request for Proposals for the appointment of an agent in Hanwell. Scholten’s argued that the new policy was ultra vires the Corporation because it provided for no limitations on the Corporation’s exercise of discretion to approve agency locations. ... [read more]

Tuesday, February 07, 2017 @ 10:10 AM

ELECTIONS - Electoral districts or ridings - Boundaries - Revision of boundaries - Constitutional issues - Canadian Charter of Rights and Freedoms

Reference regarding the abolition of three provincial ridings. Nova Scotia’s House of Assembly Act, s. 5, required that every 10 years, an independent Electoral Boundaries Commission was to conduct hearings and prepare a report recommending electoral boundaries. In 1992 and 2002, the Electoral Boundaries Commissions recommended three ridings which were significantly Acadian constituencies. These ridings would have notably less than the average population ratio for Nova Scotia’s ridings generally, in order to encourage participation in the Legislature by individuals belonging to the Acadian minority. The recommendations were approved by the Legislature. However, in 2012, the terms of reference of the Commission excluded the option of maintaining the protected ridings. All ridings in Nova Scotia were to satisfy the maximum variance of population ratio. Nonetheless, the Commission recommended the continuation of the three ridings. The Attorney General took the view that the Commission had violated the Terms of Reference and it directed the Commission to prepare a new report. As a result, the Commission revised its report and ... [read more]

Tuesday, February 07, 2017 @ 10:06 AM

CUSTODY AND ACCESS - Considerations - Best interests of child - Custody - Primary residence - Practice and procedure - Orders - Variation or amendment of orders - Changed circumstances

Appeal by the paternal grandparents from an order varying the child’s primary residence. The parents lived in a common law relationship for approximately 18 months. They had one child, age seven. Shortly after the child was born, he suffered head trauma and underwent surgery. Both parents denied responsibility for harming the child. The mother was charged with assault, but the charges were later withdrawn. After the parties separated, Child and Family Services (CFS) intervened. They placed the child in foster care and then in the care of his paternal grandparents. After a period of supervision, the father assumed primary residential parenting. The mother continually took steps to resume parenting. In January 2016, the father was charged with assaulting the child. The mother then applied to vary the parenting order so she could have primary residential parenting of the child. The paternal grandparents opposed her application and sought guardianship of the child in order to continue day-to-day parenting of the child along with the father. The trial judge found that there had been a change of circumstances as the child was older, the father had been convicted of assaulting the child and the mother was in a stable marriage. She found that while both the mother and the paternal grandparents were able to provide a stable, responsible, caring home for the child, it was in his best interest to reside with the mother. As a result, the judge ordered that the child’s primary residence was to be changed from the home of the father and grandparents to that of the mother. The grandparents appealed, arguing that the trial judge erred by using the fitness test rather than the best interests test and by failing to take material evidence into account. They further argued that the trial judge erred by recognizing the mother as a guardian without first reviewing whether she was a guardian after the parenting order which gave the father full decision-making rights. ... [read more]

Tuesday, February 07, 2017 @ 10:02 AM

SENTENCING - First degree murder - Particular sanctions - Young persons - Adult sentences - Test - Custody and supervision order - Sentencing considerations - Rehabilitation - Pre-sentence report - Previous record

Appeal by two young persons, TF and MW, from adult sentences imposed for first degree murder. In 2010, SB shot and killed the victim. TF and another individual were present when the shooting occurred. MW arrived at the scene shortly thereafter. All involved were 16 years of age. SB, TF and MW were each convicted of first degree murder. TF and MW were found to have participated in developing and implementing the plan to kill the victim. On sentencing, defence counsel argued in favour of a ten-year sentence within the Intensive Rehabilitative Custody Supervision ("IRCS") program. The Crown obtained an order to have the appellants sentenced as adults. They each received adult sentences of life imprisonment without eligibility for parole for ten years. The appellants appealed their convictions and sentences. The Court directed the combined sentence appeal to proceed in advance of the conviction appeal. ... [read more]

Tuesday, February 07, 2017 @ 9:58 AM

PROCEDURE - Trial judge's duties - Assessing credibility of witnesses - Charge or directions - Defences - Evidence of witnesses

Appeal by the accused, Berry, from a conviction and sentence for second degree murder. The accused shot and killed the victim in the doorway of the victim's apartment after using another individual, Jovanovski, as a decoy to lure the victim from the apartment. Six shots were fired at close range. Four shots struck the victim in the head. One shot struck his neck and the other struck his chest. The accused fled the scene. He was arrested approximately 18 months later on an unrelated matter. Once identified, the accused was charged with first degree murder. Jovanovski pled guilty to manslaughter for his role in the incident. The evidence indicated the accused and victim were associates in the drug trade who had a falling out prior to the shooting. The accused testified that he shot the victim in self-defence due to a prior incident in which the victim held a gun to his neck. Alternatively, he advanced a defence of provocation. The accused was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 17 years. The accused appealed the conviction and sentence. ... [read more]

Tuesday, February 07, 2017 @ 9:56 AM

CORPORATIONS - General principles - Distinct legal entity - Exceptions (piercing the corporate veil)

Motions by the Chevron defendants and by the plaintiffs for summary judgment in an action commenced to enforce an Ecuadorian judgment. The 47 plaintiffs represented 30,000 indigenous Ecuadorian villagers affected by environmental pollution resulting from oil exploitation and extraction activities in the Oriente region of Ecuador. After their action against Texaco in New York was dismissed with Texaco’s agreement to submit to the jurisdiction of the Ecuadorian courts, the plaintiffs commenced an action in Ecuador. They obtained a $9.5 million USD judgment against Texaco, which merged with Chevron prior to the commencement of the action in Ecuador. Chevron refused to acknowledge or pay the Ecuadorian judgment, and had no assets in the country. The plaintiffs commenced the present action in Ontario in 2012. They alleged no wrongdoing on the part of Chevron Canada, but took the position that Chevron Canada was an asset of Chevron that was exigible and available for execution and seizure to satisfy the Ecuadorian judgment against Chevron. Alternatively, the plaintiffs submitted that the Court should pierce Chevron Canada’s corporate veil to makes its shares and assets available to satisfy the judgment. Chevron Canada was a seventh-level indirect subsidiary of Chevron, with assets across Canada. It had never carried on business in Ecuador. Chevron was incorporated in Delaware and had no Canadian assets. As was the case with its many other subsidiaries, Chevron owned all of the shares of Chevron Canada and received dividends from its operations. ... [read more]

Tuesday, February 07, 2017 @ 9:51 AM

PROCEEDINGS - Practice and procedure - Costs

Appeal by the defendants, the PrimeWest companies and TAQA, from an order of full-indemnity costs payable to the plaintiff, Pillar Resource Services. The underlying litigation arose from the plaintiff's claim for unpaid amounts under a cost-plus construction agreement in respect of a complex project involving a sour gas processing plant. Following a lengthy trial, the trial judge awarded the plaintiff approximately $850,000 for breach of contract. In a separate decision, the plaintiff was awarded full indemnity costs due to misconduct by the defendants. The trial judge cited the cumulative effect of the defendants' misleading requests for further information during pre-litigation negotiations, the defendants' attempts to introduce additional evidence in their post-trial written argument, the additional trial time necessitated by the defendants' refusal to admit facts ultimately not in issue, and unproven allegations of fraud maintained until trial, but not addressed by the defendants at trial. The defendants appealed the costs award. ... [read more]

Tuesday, February 07, 2017 @ 9:40 AM

ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Historical grievances - Residential schools - Practice and procedure - Settlements

Appeal by the federal Crown and cross-appeal by MF from a judicial ruling with respect to the Indian Residential School Settlement Agreement (IRSSA). The IRSSA provided compensation to the victims of residential schools. A Common Experience Payment was immediately available to all eligible class members. An Independent Assessment Process (IAP) provided additional compensation to claimants who established serious physical or sexual abuse or psychological harm at a residential school. MF was a non-resident, non-student claimant who made a claim through the IAP. He alleged he was sexually abused by a priest while working as an altar boy at a residential school. The claim was rejected by an adjudicator, a review adjudicator and a re-review adjudicator. Each adjudicator concluded that MF was not an eligible claimant. MF brought a Request for Directions (RFD) pursuant to the IRSSA's Court Administration Protocol challenging the rejection of his claim. Prior to the hearing, the Crown discovered and disclosed two new documents that supported MF's position. MF refused to consent to an order that would remit his claim for reconsideration and the RFD proceeded. The administrative judge concluded that, apart from the newly discovered evidence, MF was entitled to compensation. The judge ruled he was entitled to quantify the award and determine the appropriate quantum of MF's IAP costs. The Crown appealed on the basis the judge erred in interfering with the factual findings of the IAP adjudicators, by quantifying MF's claim, and in assuming jurisdiction over the claim. MF cross-appealed, seeking a declaration the Crown breached its IAP document disclosure obligations. ... [read more]