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Thursday, January 19, 2017 @ 7:00 PM

Family Law - Custody and access - Considerations - Best interests of child - Access - Contest between parents and non-parents – Rights of non-parents - Grandparents

Appeal by the mother from an order awarding access to the child’s paternal grandparents. In 2015, the child’s father passed away from cancer. Prior to his passing, the paternal grandparents visited the child regularly. The parties disagreed over the frequency of the visits. Following the father’s passing, the mother and the child moved in with her parents. The paternal grandparents did not visit the child for several months due to strained relations with the mother. The mother maintained that she had not denied access, but merely required an apology for past ill treatment. The grandparents commenced court proceedings and obtained interim access. The application judge found that the child’s best interests were consistent with fostering and nurturing a relationship with his grandparents. The judge ordered access gradually increasing over a four-month period to a day-long visit every second weekend. The mother appealed. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

MARITAL PROPERTY - Practice and procedure - Pleadings - Orders - Enforcement of orders - Appeals and judicial review

Appeal by the husband from an order striking his pleadings for non-compliance with court orders. The parties separated in 2013 following a ten-year marriage. They embarked upon high conflict matrimonial litigation, resulting in a multiplicity of court attendances and orders. Three orders in 2013, 2014 and 2015 required the husband to deposit rental income collected from jointly owned property into a jointly owned account. The husband breached those orders. In 2013, a consent order outlined agreed-upon disclosure. The wife requested 375 items from the husband. The husband responded with an affidavit with documents that he claimed provided sufficient disclosure. A judge reviewed the materials and made detailed orders for document production by the parties. The husband provided an affidavit with documents in response. The wife submitted the husband’s materials failed to fulfill the order and moved to strike his pleadings. She also sought to amend her pleading to add a claim for constructive trust in respect of the matrimonial home. The motion judge allowed the amendment and struck the husband’s pleadings. The husband appealed. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Legal Profession - Judges - Independence of judiciary - Powers and duties

Application by the Crown to dismiss an appeal by a Provincial Court Judge for want of jurisdiction. Police investigating fraud sought production of financial institution client records pursuant to s. 487.014 of the Criminal Code. The Judge refused to grant the requested production order. The Crown applied to the Court of Queen’s Bench for prerogative relief. The Court of Queen’s Bench quashed the Judge’s ruling and mandated issuance of the production order. The Judge appealed to the Court of Appeal, challenging the Court’s direction and its interpretation of s. 487.014 of the Code. The Crown applied to quash the appeal for want of jurisdiction. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Damages - Assessment of damages - Difficulty in assessment

Appeal by Aujla from the $165,254 judgment granted to 581257 against her. Aujla was found to have stolen this amount from the company, which operated a liquor store, during the course of her employment between 2001 and 2008. Because the company was unable to fully account for its losses, and because Aujla and her husband admitted they used stolen funds for personal expenses that could not be traced, the Court determined damages by calculating the average amount Aujla admittedly stole per shift and multiplied it by the number of shifts she worked for the company, starting one month after her employment commenced. In calculating damages, the Court relied on the respondent’s expert evidence from Prasad, a Certified General Accountant, about what excessive amounts deposited into Aujla’s bank accounts meant in terms of what she stole. ... [read more]

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 19, 2017 @ 7:00 PM

Tort Law - NEGLIGENCE - Duty and standard of care - Standard of care - Causation - Causal connection - Evidence and proof

Appeal by the defendant, Doctor Joshi, from a finding of professional negligence in favour of the plaintiffs, the Barbers. In 2006, Mark Barber died at age 46 of pneumococcal bacterial meningitis. The plaintiffs, Barber’s surviving wife and children, sued the appellant and another emergency room physician for damages for negligence. They alleged that Barber’s death resulted from the defendants’ failure to properly investigate, diagnose and treat his meningitis. The trial judge found that the appellant’s care and treatment of Barber fell below the applicable standard by failing to consider the possibility of meningitis in a differential diagnosis, failing to conduct procedures to rule out meningitis, and by failing to suspect and diagnose meningitis during a second assessment the following day. The trial judge found causation was established, as it was more likely than not that but for the appellant’s failure to properly diagnose and treat Barber’s illness, he would not have died. The action against the other physician was dismissed for failure to demonstrate a causal link between Barber’s death and the physician’s breaches of the standard of care. Doctor Joshi appealed on the basis the trial judge erred in the analysis of the standard of care and causation. Doctor Joshi also sought leave to appeal the costs award in favour of the other defendant. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Real Property Law - PROCEEDINGS - Appeals and judicial review - Practice and procedure - Evidence

Appeal by the plaintiffs from a judgment valuing disputed development lands. In 2005, the parties acquired a tract of land pursuant to a joint venture agreement that contemplated subdivision and development. By 2011, disagreements between the parties led to one of the defendants withdrawing from the venture. In 2012, during appraisal of the lands to facilitate unwinding of the joint venture, a prospective buyer offered $40 million to purchase the lands. The plaintiffs did not disclose the offer and did not pursue the sale. Litigation ensued. In 2014, the plaintiffs were found to have breached their fiduciary duty to the defendant. The trial judge directed valuation of the lands as of 2012 and as of 2015, pursuant to a specific process. The parties were unable to agree on a valuation and returned to the trial judge with competing appraisal reports. The trial judge rejected one report as seriously flawed, save for its estimate that market value of comparable properties dropped by 15 per cent between 2012 and 2015. The judge identified issues with the other appraisal report, rejecting its 2015 valuation, and accepting its determination of the property’s minimum value in 2012 as $30 million. The trial judge found that the best evidence of the property’s 2012 value was the $40 million prospective purchase offer. The judge concluded that the property’s value was $36 million in 2012 and $31 million in 2015. The plaintiffs appealed. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Wills, Estates & Trusts Law - WILLS - Preparation and execution - Undue influence, fraud and mistake - Mistake - Types of mistakes - Drafting errors - Remedy

Appeal by the Trustee of the McLaughlin Estate from an order finding a secondary Will invalid. In 2012, the Testatrix passed away. In 2010, she had executed a primary and secondary Will with instructions to her longtime solicitor. The secondary Will addressed her home. The primary Will addressed the balance of the Estate. Clerical errors resulted in mistakes in the secondary Will. It repeated specific bequests made in the primary Will, included a revocation clause revoking all other previous Wills, including the primary Will, and omitted a residue disposition, such that an intestacy would result. In 2014, a judge ordered rectification of issues with the secondary Will in order to correspond with the Testatrix’s instructions to her solicitor. The order was not appealed. Thereafter, the Estate Trustee applied to remove an objection to appointment filed by the respondents. The application judge, of his own initiative, embarked on an examination of the validity of the secondary Will. The judge ruled that the Will was not valid based on the 2014 judge’s finding the Testatrix had not read or approved the contents of the secondary Will. The Trustee appealed. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Natural Resources Law - Fishing - Offences and penalties

Appeal by McKinnell Fishing from its conviction for fishing for crab in a restricted area, a strict liability offence. McKinnell argued that it was not fishing for crab in the closed area, but merely taking possession of them there, having fished for them in an open area. Its alternate argument, that its vessel drifted to a closed area inadvertently, was accepted by the trial judge, who acquitted McKinnell. The summary conviction appeal judge rejected this due diligence defence and substituted a conviction for fishing in a restricted area. The facts underlying the case established that McKinnell laid crab traps on the ocean floor in the unrestricted area, but that its vessel drifted into the restricted area as the traps were retrieved. It argued that the retrieval of the crabs from the traps aboard the vessel did not constitute “fishing”, the act of which was complete when the crabs entered the trap in the unrestricted area. ... [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]