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Digests

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Thursday, January 19, 2017 @ 7:00 PM

Municipal Law - Planning and development - Development permits - Zoning regulations - Land use - Types - Agricultural

Application by the Brancos for permission to appeal from a decision of the Wetaskiwin Subdivision and Development Appeal Board. The Brancos owned a parcel of land in the county, zoned as Agricultural. There was an existing motocross track on their property which was intended for recreational riding of motorcycles by the Brancos and their friends. The County determined there was no development permit for the track. The Brancos unsuccessfully applied to change the zoning of the track to Recreational. They then applied for a development permit for the track. The permit was refused, and an appeal to the Board was unsuccessful. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Real Property Law - REGISTRATION OF DOCUMENTS - Lis pendens or certificates of pending litigation - Vacating of

Appeal by the defendant, Houk, from denial of a request to vacate certificates of pending litigation (CPLs) filed by the plaintiff, Daniels Investments. The defendant was a former office administrator for the plaintiff. In 2008, the plaintiff commenced litigation alleging the defendant misappropriated funds. The plaintiff registered CPLs against two properties in which the defendant had an interest. The defendant owned one home jointly with her husband, and a separate revenue property with a group of investors. The plaintiff alleged the misappropriated funds were used to acquire and/or improve the properties. A pre-trial conference was held in 2012. In 2013, the defendant was charged with criminal offences related to the alleged misappropriation. In 2015, the defendant applied to strike the plaintiff’s statement of claim for want of prosecution with an order vacating the CPLs. The chambers judge dismissed the defendant’s application, finding sufficient facts pled to sustain the CPLs. The defendant appealed the aspect of the decision related to the CPLs. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Insurance Law - FIRE INSURANCE - Loss

Appeal by the owner’s insurer, Zurich, from a declaration that it was required to pay the owner’s losses. The respondent 2224981 (Eco-Lux) conducted its manufacturing operations at premises leased from the respondent landlord, 2047193 (the “owner”), pursuant to a month-to-month lease. A fire largely destroyed the premises in February 2012 and, as a result, Eco-Lux ceased production and stopped paying rent. The premises were repaired some eight months later. However, by that time, Eco-Lux had gone out of business. Eco-Lux’s insurer, Intact, provided coverage to Eco-Lux for lost profits pursuant to the property and business interruption policy, based on an estimate of Eco-Lux’s gross profits less expenses, including rent. The owner sought coverage for its business losses pursuant to its policy with Zurich. Zurich denied coverage on the basis that Eco-Lux was obligated to continue to pay rent during that period, despite the fire. In order to resolve the issue of who was responsible for compensating the owner for lost rent, the parties stated a question to the Court. The motion judge found that the lease between Eco-Lux and the owner was frustrated by the fire and Eco-Lux’s obligation to pay rent ceased as a result, and that the owner suffered business losses covered by its insurance policy. He declared that Zurich was required to pay the owner’s losses. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Professional Responsibility - SELF-GOVERNING PROFESSIONS - Duties - Duty of care - Negligence - Professions - Public accountants - Chartered accountants and auditors

Appeal by the plaintiff lenders from an order granting partial summary judgment dismissing a portion of their claims against the defendant auditors. In 1998, an accounting fraud was discovered at Philip, a publicly traded company. The fraud required a material restatement of Philip’s financial statements and led to the company’s financial collapse and default on its credit facilities. The appellants were Phillip’s lenders. They sued Philip’s auditors, the respondents. The respondents denied negligence in the conduct of the audits and denied the appellants relied on the financial statements and audit opinions at issue in making lending decisions. A motion judge granted partial summary judgment dismissing the appellants’ claims of negligence and negligent misrepresentation. The judge found no risk of duplicative or inconsistent findings arising from partial summary judgment, and concluded it was not inadvisable in the context of the litigation as a whole. A trial was scheduled for 2017 to consider the appellants’ remaining claim of reckless misrepresentation, along with other claims by Philip and the respondents’ third party claims against Philip’s directors and officers for contribution and indemnity. The lenders appealed. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Employment Law - EMPLOYMENT STANDARDS LEGISLATION - Constitutional issues - Federal v. provincial jurisdiction - Offences and enforcement - Complaints

Appeal by ICN Consulting (ICN), an employment agency, and its director from the dismissal of their petition for judicial review of a decision of the Employment Standards Tribunal refusing to reconsider a decision that the appellants breached the Employment Standards Act. The respondents Tagirova and Baranova, Russian nationals, filed complaints in 2008 that fees they were required to pay to the appellant for obtaining a work contract and work permit to work in Canada as live-in caregivers were contrary to s. 10 of the Employment Standards Act. Before the complaints were determined, the appellants commenced Small Claims actions against the respondents for payment of monies owing under their contracts. The appellants were successful against Tagirova. The Director of Employment Standards (Director) intervened in the Baranova action, submittingthat the matter should not proceed because the issue concerned the application of the Employment Standards Act, which, on the authority of prior jurisprudence, precluded the Provincial Court from exercising jurisdiction over the claim. The Provincial Court then adjourned the trial concerning the claim against Baranova. The Director’s delegate subsequently determined that the appellants contravened the Act by operating an employment agency without a valid employment agency licence and by charging unlawful fees. The appellants argued that the application judge erred in law in failing to determine whether there was a reasonable apprehension of bias in the delegate’s determination that the appellant had contravened the Employment Standards Act and in failing to give preclusive effect to the Provincial Court order requiring Tagirova to pay monies to the appellants under her contract. In the alternative, the appellants submitted that the application judge erred in failing to accord paramountcy to the federal immigration arrangements over the provincial statute. The appellants argued the federal provisions gave rights to authorized consultants like the appellants to provide services related to obtaining employment, and granted rights to foreign nationals to have such immigration consultants charge them fees for obtaining employment. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Criminal Law - EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Voluntariness

Appeal by the accused from a conviction and sentence for possession of child pornography. The accused worked as a security guard. The guards often watched movies on laptop computers to pass the time. One colleague expressed boredom, so the accused gave him a flash drive that he stated contained some new movies. The colleague plugged the flash drive into a computer and found that it contained several child pornography files. The guard reported the matter to police and turned over the flash drive. Police executed a search warrant at the accused’s residence and matched the files from the flash drive to his home computer. The accused was convicted and sentenced to ten months’ imprisonment. He appealed his conviction on the basis the trial judge erred in ruling that an inculpatory statement to police was voluntary and admissible. He appealed his sentence on the basis the sentencing judge attributed insufficient weight to the rigidity of his bail conditions pending trial. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Government Law - CROWN - Actions by and against Crown - Practice and procedure - Discovery

Appeal by the plaintiff from a decision dismissing her application to examine a person other than the Crown defendant’s designated representative for discovery. The appellant sued for injuries suffered in a motor vehicle accident in a national park. She argued Parks Canada was negligent in failing to ensure the highway was reasonably safe. The Crown designated DeMone, the Associate Director for Parks Canada’s Highway Service Centre at the time of the accident, as its representative for examination for discovery. The appellant wanted to examine one of Parks Canada’s two snow plough operators on duty at the material time. The chambers judge found that DeMone was not incapable of being informed of the necessary facts and that she should thus not exercise her discretion under s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations to designate another Crown representative. The appellant argued the judge relied on an erroneous interpretation of s. 7. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Civil Litigation - Civil procedure - Pleadings - Amendment of - Striking out pleadings or allegations - Grounds - Failure to disclose a cause of action or defence

Appeal by the plaintiffs, Mitchell and his companies, from an order striking portions of their statement of claim in their action against the defendants, Global Learning Group and related entities and individuals. The plaintiffs alleged the defendants breached their payment obligations under a consulting agreement. The plaintiffs further alleged that the individual defendants guaranteed the company’s payment obligations, and that the company agreed to hold monies owed in trust for the plaintiffs, with three properties held in trust as security for the funds. The plaintiffs alleged that the individual defendants fraudulently converted the funds at issue for their own use. The plaintiffs sought damages for breach of contract, breach of trust, breach of fiduciary duty, fraud, fraudulent misrepresentation, conversion, conspiracy and unjust enrichment. The motion judge struck all but the claims for breach of contract and, in part, for breach of trust, and refused leave to amend the pleadings. The plaintiffs appealed. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Human Rights Law - ENFORCEMENT AND PROCEDURE - Commissions - Investigation - Investigators - Report - Decision

Appeal by Miakanda-Batsika from the dismissal of her application for judicial review of a Canadian Human Rights Tribunal decision. The Commission found that further inquiry into Miakanda-Batsika’s complaint against Bell Canada, her employer, was not warranted, because the evidence before the Commission did not support her claim of harassment and discrimination. Miakanda-Batsika complained that three of her supervisors had treated her in a discriminatory manner based on her race, ethnic origin and colour in the course of her employment, and that Bell had, because of her supervisors’ conduct, failed to provide her with a harassment-free workplace. In dismissing her judicial review application, the judge, after considering the investigator’s report and the Commission’s decision, found that Miakanda-Batsika was not denied procedural fairness in the investigation. He noted that she was permitted to provide comments about the investigator’s report, and found that two witnesses she identified that were not contacted by the investigator had no relevant information to add. The judge found the Commission’s decision reasonable in light of the evidence the investigator had gathered. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Health Law - HEALTH CARE PROFESSIONALS - Treatment, authorization for - Consent

Appeal by the patient, Coburn, from dismissal of her appeal from a ruling by the Consent and Capacity Board. The respondent, Doctor Wilkie, was a psychiatrist who proposed to treat the appellant’s bipolar schizoaffective disorder with anti-psychotic and mood stabilizing medications. The proposal accorded with the view of the appellant’s treating psychiatrist, Doctor Cyr. The appellant objected to the treatment due to the side effects. She claimed that any manifest symptoms were a result of fibromyalgia and sleep apnea rather than a mental health condition. In 2015, the Board ruled that the appellant was unable to appreciate the consequences of her decision to reject the proposed treatment. The appellant’s appeal of the Board’s decision was dismissed. The Court upheld the Board’s decision. The patient appealed to the Court of Appeal. ... [read more]