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Digests

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Thursday, February 23, 2017 @ 7:00 PM

Commercial Law - Consumer agreements - Interpretation - Time share agreements

Appeal by the plaintiff, JEKE Enterprises, from dismissal of its breach of contract claim against the defendant, Northmont Resort Properties. The plaintiff was the lessee of two time share units in a hot spring resort. The defendant acquired the ownership interests of the resort’s developer in 2010 following foreclosure proceedings. Time share interests were governed by Vacation Interval Agreements (VIAs), which assigned responsibility for all costs incurred in the operation, continuing maintenance and repair of the resort to unit owners and lessees. In 2012, the defendant determined that significant funds were required for extensive renovations, repairs, and to resolve financial deficits. The defendant levied a Renovation Project Fee (RPF) upon owners and lessees. Some responded by paying the fee or surrendering their interests to the defendant. The plaintiff was among a group of approximately 25 per cent of lessees or owners who took no action. The plaintiff refused to pay annual maintenance fees. It commenced litigation alleging the defendant breached the VIAs by requiring payment of the RPF or cancellation fee. The plaintiff sought a declaration that the defendant’s fundamental breaches of the VIAs constituted a repudiation that relieved it from any further obligations thereunder. The trial judge dismissed the claim. The trial judge found that the RPF was within the scope of costs encompassed by the VIAs, and that the defendant’s conduct in assessing and calculating the RPF did not constitute a fundamental breach of the VIAs. The plaintiff appealed. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Natural Resources Law - OIL AND GAS - Conservation and licensing - Provincial regulation - Alberta - Pipelines - Intra-provincial

Application by landowners for permission to appeal a decision by the Alberta Energy Regulator granting approvals in favour of Pembina Pipeline Corporation. Pembina applied for permits to construct two pipelines. The applicants were landowners along the proposed right-of-way. Collectively, they owned approximately one-third of the land traversed by the proposed pipelines. During the public hearing process, the applicants raised several site-specific concerns related to routing, depth, width, and monitoring. Pembina provided a spreadsheet that listed each landowner, a legal description of their land, that landowner’s particular concerns, and the company’s response to those concerns with related information. Pembina made representatives available for cross-examination on the information provided. Following the evidentiary portion of the process, Pembina updated the spreadsheet to list commitments it was prepared to take with respect to some of the site-specific concerns. Further cross-examination on the added commitments was refused. The Regulator approved the pipelines, subject to certain conditions. The Regulator stated that the conditions reflected some of the commitments made by Pembina, and noted the ability of individual landowners to negotiate directly with Pembina where appropriate. The applicants sought permission to appeal to the Court of Appeal. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Labour Law - Labour relations boards - Appeals and judicial review

Application by Hannam, WHD Acoustics, and two numbered companies, for judicial review of a decision by the Labour Relations Board in favour of the International Union of Painters and Allied Trades, Local 1891. In 2012, the Union applied for certification as bargaining agent for WHD employees. The application was granted without WHD’s participation. WHD sought reconsideration on the basis it was a one-man operation that had never worked at the jobsite listed. The request was denied as out of time. In 2015, the Union sought adjudication of a grievance filed against WHD alleging use of non-unionized workers contrary to the collective agreement. WHD did not defend the grievance. The Board found that the applicants were associated and related businesses that constituted a single employer. The Board refused to reconsider its earlier certification decision. The applicants were accordingly bound by a collective agreement with the Union and were jointly and severally liable for the damages awarded to the Union for its successful grievance. The applicants sought judicial review. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Information Technology - PERSONAL INFORMATION AND PRIVACY - Access to information - Data - Disclosure - Consent - Protection of privacy - Privacy legislation

Application by AT for damages for breach of his privacy by Radulescu and Globe24h.com, and for an order requiring them to change their practices to comply with the Personal Information and Protection of Electronic Documents Act (Act). AT was a resident of Calgary, originally from Romania. Some of AT’s family continued to live in Romania. Radulescu operated Globe24h.com, a Romanian-based website that re-published public documents from several countries, Canada in particular. Prior to April 2016, CanLII, a Canadian publisher of court decisions, had received over 150 complaints from individuals who claimed that Globe24h.com had published decisions containing their personal information, and that such content appeared prominently in search results when their names were entered in common search engines. The complainants acknowledged that court decisions were public, but did not understand why the decisions would appear as a result of casual searches on a search engine such as Google. They objected to the fact that Globe24h.com was seeking payment for the removal of personal information from its website. AT had been a party to labour relations proceedings with his former employer. He discovered through a June 2014 Google search that an Alberta Labour Board decision concerning his case had been republished through Globe24h.com. He was concerned that the publication would impact future employment prospects. He contacted Globe24h.com and was informed he would have to pay to have his personal information removed. AT complained to the Privacy Commissioner, who conducted an investigation and concluded that the complaint was well-founded. AT also complained to Romanian authorities, which fined Globe24h.com for contravening Romanian data protection laws. In the present application, AT provided evidence that he and his family had received verbal threats for pursuing the complaint. The Commissioner had concluded that Globe24h.com’s activities did not serve a journalistic purpose, but were intended to generate income by incentivizing individuals to pay to have their personal information removed. The activities did not fall under the publicly available information exception to the Act because the website’s purpose in allowing decisions to be indexed by popular search engines was not directly related to the purpose for which personal information appeared in the record or document. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Evidence - Methods of proof - Identification

Appeal by the accused, Campbell, from a conviction for break, enter and robbery. Two people wearing hats and masked with bandanas entered a residence and robbed one of the occupants, Brydges, of money he had received earlier that day. One perpetrator, identified as Landry, did all of the talking while brandishing a knife. The second perpetrator, alleged to be the accused, stood silently behind Landry with a gun under his arm. Brydges gave the perpetrators $2,000 and they fled. Landry was arrested shortly thereafter. He pled guilty and implicated the accused. The sole issue at trial was identification. Brydges and another occupant testified that they recognized the accused as an individual they had previous social dealings with known as Mack Truck. They identified the accused and Landry from Facebook photos. Landry testified at the accused’s trial and admitted his involvement but stated he was unable to remember the identity of the second perpetrator. The accused testified and acknowledged his nickname and prior dealings with the victims. He denied his involvement in the robbery. The trial judge rejected the accused’s evidence and disbelieved Landry’s inability to remember the robbery. The trial judge accepted the victims’ identification evidence, concluding the accused was the second perpetrator. The accused appealed. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

Criminal Law - CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault - Consent - Honest but mistaken belief

Appeal by the accused, Beck-Wentzell, from a conviction for sexual assault. The victim was the accused’s common-law spouse. The victim testified that the accused arrived home from work while she was asleep with their child. She testified that the accused entered the bedroom and began removing her sleepwear, indicating a desire for sexual intercourse. The victim testified that she told the accused she was not interested. She stated that the accused performed sexual intercourse while she repeated “no” throughout their interaction. The accused testified and denied sexually assaulting the complainant. The trial judge rejected the accused’s evidence and entered a conviction. On appeal, the accused claimed the trial judge misconstrued his evidence as a denial intercourse occurred. Instead, the accused maintained that his evidence was he ceased intercourse as soon as the victim voiced her non-consent. The accused relied on text messages with the victim in support of his position. The accused submitted the trial judge failed to consider his defence of honest but mistaken belief in consent. ... [read more]

Thursday, February 23, 2017 @ 7:00 PM

SENTENCING - Trafficking - Possession for the purpose of trafficking - Particular sanctions - Imprisonment - Sentencing considerations - Deterrence - Denunciation - Protection of the public - Totality principle

Sentencing of the offender, McCormick, for offences related to the possession and trafficking of fentanyl and other drugs. In February 2016, the offender was arrested for trafficking 3,000 fentanyl pills to undercover police in two separate transactions. A subsequent search of the offender’s vehicle, residence and storage locker resulted in seizure of an additional 27,000 fentanyl pills, four kilograms of cocaine, one kilogram of methamphetamine, 375 grams of MDMA, five grams of heroin, 22.5 kilograms of marijuana, three kilograms of hashish, approximately 600,000 other pills, $172,000 in cash, two firearms, and various agents used to filter and cut drugs. The drugs had a wholesale value of $625,000 and a street value of $2 million. In May 2016, while on bail, the offender was arrested and police seized 1,000 fentanyl pills, two kilograms of cocaine, 18 kilograms of marijuana, 4,285 alprazolam pills, and $4,736 in cash, leading to an additional charge of possession for the purpose of trafficking. The offender, age 53, pled guilty. He had a longstanding related criminal record dating back to 2000. The Crown sought an 18-year sentence, reflecting the recent epidemic of fentanyl overdose deaths. Defence counsel sought a sentence of eight to nine years. ... [read more]

Thursday, February 23, 2017 @ 10:55 AM

TRADE-MARKS - Passing off and unfair competition - Confusion as to wares and services - Business trade name - Procedure - Appeals

Appeal by the plaintiff, Vancouver Community College, from dismissal of its passing off and official mark infringement action against the defendant, Vancouver Career College. The plaintiff was a public post-secondary education and the defendant was a private vocational institution. Their educational programs overlapped. The plaintiff's claim sought damages with declaratory and injunctive relief arising from alleged actions by the defendant to direct online search traffic to its website. In 2009, the defendant adopted VCCollege as a new trade-mark and launched a new website at VCCollege.ca. The plaintiff contended that the phrases "VCC" and "Vancouver Community College" were long associated with it as a public post-secondary institution. The plaintiff alleged the defendant's online presence and bidding on search engine keywords that included its name was a form of internet poaching that constituted passing off and trade-mark infringement. The trial judge dismissed the action. The plaintiff appealed. ... [read more]

Thursday, February 23, 2017 @ 10:53 AM

PERSONAL INFORMATION AND PRIVACY - Access to information - Data - Disclosure - Consent - Protection of privacy - Privacy legislation

Application by AT for damages for breach of his privacy by Radulescu and Globe24h.com, and for an order requiring them to change their practices to comply with the Personal Information and Protection of Electronic Documents Act (Act). AT was a resident of Calgary, originally from Romania. Some of AT’s family continued to live in Romania. Radulescu operated Globe24h.com, a Romanian-based website that re-published public documents from several countries, Canada in particular. Prior to April 2016, CanLII, a Canadian publisher of court decisions, had received over 150 complaints from individuals who claimed that Globe24h.com had published decisions containing their personal information, and that such content appeared prominently in search results when their names were entered in common search engines. The complainants acknowledged that court decisions were public, but did not understand why the decisions would appear as a result of casual searches on a search engine such as Google. They objected to the fact that Globe24h.com was seeking payment for the removal of personal information from its website. AT had been a party to labour relations proceedings with his former employer. He discovered through a June 2014 Google search that an Alberta Labour Board decision concerning his case had been republished through Globe24h.com. He was concerned that the publication would impact future employment prospects. He contacted Globe24h.com and was informed he would have to pay to have his personal information removed. AT complained to the Privacy Commissioner, who conducted an investigation and concluded that the complaint was well-founded. AT also complained to Romanian authorities, which fined Globe24h.com for contravening Romanian data protection laws. In the present application, AT provided evidence that he and his family had received verbal threats for pursuing the complaint. The Commissioner had concluded that Globe24h.com’s activities did not serve a journalistic purpose, but were intended to generate income by incentivizing individuals to pay to have their personal information removed. The activities did not fall under the publicly available information exception to the Act because the website’s purpose in allowing decisions to be indexed by popular search engines was not directly related to the purpose for which personal information appeared in the record or document. ... [read more]

Thursday, February 23, 2017 @ 10:52 AM

GOVERNMENT ASSISTANCE PROGRAMS - Social services and programs - Entitlement - Disabled persons - Services and programs - Housing - Subsidized housing - Rent subsidies

Appeal by SA from a judgment in favour of the Metro Vancouver Housing Corporation (MVHC). The appellant was a person with disabilities. MVHC was a non-profit public housing body that provided subsidized rental units to eligible tenants. MVHC required prospective tenants to provide evidence of their income and assets to determine eligibility. An asset ceiling policy of $25,000 existed to ensure those with the greatest need benefited from rental assistance. The appellant lived at the complex from 1992 onward pursuant to annual tenancy agreements with MVHC, each of which required her to verify her assets and income. In 2012, litigation involving the estate of the appellant's late father resulted in the appellant becoming a beneficiary under a discretionary trust. The order creating the trust did not disclose the contents of the trust or its value. The appellant refused to disclose the information to MVHC beyond stating she had not received any trust payments to date. MVHC took the position the appellant was required to disclose any assets in which she had a beneficial interest, including the discretionary trust, in order to determine her eligibility for additional rent assistance. The appellant filed a petition seeking a declaration the discretionary trust was not an asset for the purpose of her tenancy agreement with MVHC with related relief. MVHC sought an order requiring disclosure of the value of the trust with supporting documentation. The chambers judge decided in favour of MVHC. SA appealed. ... [read more]