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Thursday, September 08, 2016 @ 8:00 PM

Tort Law - Abuse of legal procedure or process - False arrest or imprisonment - Defences - Lawful authority - Arrest by private citizen

Action by Mann for damages for false imprisonment and personal injuries in relation to an incident at a Canadian Tire store in Toronto. Mann claimed he was threatened with death by a staff member after a security alarm sounded as Mann exited the store. He started filming and claimed he was forced to remain in the store while the police were called. He claimed further threats were made because he refused to stop filming and refused to delete the video he had recorded. Mann called a friend during his detention in the store, who advised him to play “chicken” with the staff who were preventing his exit, by slowing walking toward the exit. Mann claimed one staff member sought to block his exit with his foot and arm, but that he was able to leave the store. As he walked away, Mann turned to see two men running from the direction of the store. In fear they were chasing him to carry out their threats, Mann accidentally hit his head on a set of pipes nearby and sustained long-lasting injuries, including impaired concentration, headaches, insomnia, shoulder and back pain, indigestion and stomach pain. The video Mann took did not reveal that any threats were made or any force was used to detain Mann in the store. The security video showed Mann being treated calmly and professionally by staff who detained him out of concern that he was filming in the store. Police were called by the staff to verify that the filming was not illegal, after which Mann was permitted to leave. Canadian Tire moved for summary judgment to dismiss the false imprisonment claim based on shopkeeper’s privilege, and to dismiss the damages claim as too remote. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Labour Law - Unions - Civil liability of unions - Duties - Representation of members - Duty of fair representation - Scope of duty

Appeal by the defendants, the Union and the trustees of the Union’s long-term disability (LTD) fund, from an order certifying a class action by the plaintiffs, Watt and Hensman. The plaintiffs were members of the defendant Union and recipients of benefits under employee-funded LTD plans established by the Union for the benefit of its members. The Union made amendments to the LTD plans and trusts to address funding deficits that resulted in a reduction of benefits paid to disabled members, such as the plaintiffs. The plaintiffs commenced a proposed class action that sought general, aggravated and punitive damages for negligence and breach of contract and/or fiduciary duty. The Union took the position that it was not a commercial provider of benefits and that its members were aware the LTD plans were employee-funded. The Union disputed the factual or legal existence of a contract with its members to pay or provide LTD benefits. The chambers judge found that the pleadings disclosed reasonable causes of action and that the criteria for certification were met. The defendants appealed. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Real Property Law - Interests in land - Easements - Creation - By implication - By implied grant - Right exercised by owner for benefit of property

Appeal by the petitioners from the dismissal of their petition for a declaration of an implied easement or an easement of apparent accommodation. At times, the appellants had used part of a shared driveway located on their neighbours’ property for vehicular access to their property. The driveway was built sometime prior to 1976. Between 1976 and 1981, a hedge between the two properties blocked vehicular access to the appellants’ property. The hedge was removed in 1981 and the appellants’ grandparents were granted vehicular access on a temporary basis. The appellants re-paved the driveway at their expense but were denied a registered easement over the driveway. When the respondents purchased the property in 2009, they were advised that the appellants’ use of the driveway was temporary only. After the respondents purchased the neighbouring property, they erected a fence that cut off the appellants’ use of the driveway. As a result, the only access to the appellant’s property was by way of 23 stairs from the roadway below. The trial judge dismissed the appellants’ petition for a declaration of an easement, finding that there was insufficient evidence to establish that: 1) the original grantor at the time of the original grant in 1934 intended to provide the grantee vehicular access via a shared driveway; and 2) subsequent purchasers of the grantor’s property after 1934 intended to grant the occupants of the appellants’ property an implied easement for the use of the respondents’ driveway; and 3) the shared use of the respondents’ driveway was necessary for the reasonable enjoyment of the property. The appellants appealed, arguing that the judge erred in finding they had failed to demonstrate an implied easement over the respondents’ driveway. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Government assistance programs - Social assistance - Entitlement - Disabled persons - Appeals and judicial review

Appeal by the petitioner from the dismissal of his petition for judicial review of the Chair’s decision declining to consider his appeal from the Ministry’s refusal of his request to reopen decisions made four years earlier. The appellant and his wife were in receipt of social assistance under various provincial statutory regimes from 1986 until November 10, 2010, when he turned 65 years of age. At that time, they began receiving federal income assistance. Beginning in September 2010, the appellant sought to have the Ministry designate him with the status of “a person who had persistent multiple barriers to employment” and to provide him with “medical services only” benefits. After the Ministry denied those applications, the appellant unsuccessfully sought reconsideration of them. The appellant appealed to the Tribunal, which denied the appeal finding that it did not have jurisdiction as the Employment and Assistance Act (Act) did not provide the appellant with a right to appeal. Before making her decision, the Chair, contrary to the Tribunal’s practices and procedures, did not notify the parties in writing that the matter appeared to be outside the jurisdiction of the Tribunal and did not invite the parties to make submissions on the issue of jurisdiction. The appellant then sought judicial review of the Chair’s decision. The chambers judge upheld the decision of the Tribunal and dismissed the application for judicial review. The appellant argued that the judge erred in upholding the Chair’s decision that the Tribunal did not have jurisdiction to hear the appeal and in concluding that the Tribunal’s failure to give notice of the jurisdictional question was not unfair. ... [read more]

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]