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Thursday, September 08, 2016 @ 8:00 PM

Limitation of actions - Extension, interruption, suspension and inapplicability - Expiry of limitation periods

Appeal by the plaintiff, Trombley, from a summary trial judgment dismissing his claim against the defendants, the Pannus, as statue-barred. In July 2012, the plaintiff tripped and fell on stairs in front of a premises owned by the defendants. The plaintiff was seriously injured in the fall. In April 2013, he retained counsel. In August 2013, counsel notified the defendants of the plaintiff’s intent to pursue a claim for damages. In September 2013, the defendants’ insurance adjuster wrote to plaintiff’s counsel advising the incident was under investigation and requesting a written account from the plaintiff. In November 2013, the plaintiff provided the requested information and hospital records. In January 2014, the adjuster sent 40 questions related to the issues of liability and damages. In February 2014, counsel provided the plaintiff’s answers. In April 2014, the adjuster sent a without prejudice letter that requested any settlement demands. No settlement proposal was provided and the plaintiff’s notice of civil claim was filed in August 2014, three weeks after expiration of the two-year limitation period. The summary trial judge rejected the plaintiff’s contention that the April 2014 without prejudice request for settlement proposals acknowledged liability in a manner that extended the limitation period. The action was dismissed. The plaintiff appealed. ... [read more]

Thursday, September 08, 2016 @ 8:00 PM

Contracts - Terms - Express terms - Exclusion clauses - Term and termination

Appeal by the plaintiffs, Chuang and his companies, from dismissal of an action against the defendant, Toyota Canada. The plaintiffs had a history of involvement in operating luxury car dealerships. The parties entered into an agreement for the construction and operation of a Lexus dealership in downtown Toronto. The defendant terminated the agreement due to the plaintiffs’ failure to meet the construction deadlines stated therein. The plaintiffs sued for specific performance of the agreement plus damages. By trial, the plaintiffs had opened a different dealership on the proposed site. They accordingly limited their claim to damages arising from the defendant’s wrongful termination of the agreement. The trial judge concluded that the defendant did not act reasonably in terminating the agreement. However, the agreement’s exclusion clause insulated the defendant from any damages or losses sustained by the plaintiffs as a result of the agreement’s termination. The action was dismissed with costs of $1.2 million awarded to the defendant. The plaintiffs appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Construction Law - Bidding process - Breach of tender

Appeal by the contractor from the award of damages for breach of contract and cross-appeal by the owner from the finding that it was in breach of the contract. The appellant was an unsuccessful bidder on a CCDC-2 Stipulated Price Construction Contract. The Instruction to Bidders and other related documents involved situation specific contract terms. The contract had standard clauses allowing the general contractor to make a claim for additional compensation from the owner due to reasonably unanticipated project conditions. After the project was awarded to another contractor, the appellant commenced a claim for breach of contract asserting that there was a departure from the essence of the bidding process and an improper and unequal treatment of the bids. At trial, the respondent sought to establish that the appellant’s profit margin should be discounted by negative contingencies. It led evidence from the successful bidder that they lost money on the project. The trial judge found that the respondent was in breach of the “Contract A” element of the bidding process by awarding the contract to the other contractor. He found that the appellant could have been awarded the contract had the respondent properly applied its criteria and that its losses were not too remote. He further found that the respondent had not met its onus in proving a discount for uncertainty or the appellant’s avoidance of its loss. However, he concluded that the appellant, like the contractor to whom the contract was awarded, would have suffered heavy financial losses in its performance of “Contract B” and he limited damages accordingly. The respondent claimed that it was entitled to judgment in the amount of its anticipated profit and that there was no reason for the trial judge to discount its lost profit effectively to zero. The respondent cross-appealed, arguing that the appellant should have lost by non-suit and that the expression “sole and unfettered discretion” in the Instruction to Bidders document conferred on it the right to use whatever methodology it saw fit to evaluate criteria after the bids were received. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Criminal Law - Defences - Entrapment

Application by the accused Nuttall and Korody for a stay of proceedings due to entrapment and abuse of process resulting from the conduct of the police in an undercover operation. Both accused were convicted of terrorist offences arising from the planting of explosive devices made from pressure cookers. The RCMP’s interest in Nuttall arose from a tip given to them by CSIS in 2013 that indicated he was attempting to purchase potassium nitrate at local pharmacies. The RCMP conducted an investigation through surveillance and an undercover operation into possible terrorist activities by Nuttall and his common law spouse, Korody. Police had very little evidence at the commencement of the undercover operation to support any reasonable suspicion that Nuttall was already engaged in criminal activity of any type. Tactics were used by the undercover officers to foster a belief that Officer A was a high-ranking member of a well-financed and well-resourced sophisticated terrorist organization. Nuttall indicated he had a plan and needed items to carry it out. A large part of the undercover investigation involved holding out the possibility of strategic assistance as a means of perpetuating contact between Officer A and the accused. Having failed to motivate the accused to either decide on a specific plan or articulate how they would accomplish a plan, the investigative team decided to focus them on making explosives out of pressure cooker devices. The investigative team then made a firm offer to provide the accused with C4 explosive specifically for the pressure cooker devices and actively encouraged this idea. Many of Nuttall’s statements to Officer A about his abilities and his past behaviour were false or exaggerated. The accused were easily manipulated by Officer A, who on many occasions orchestrated the desired outcomes as a result of the control and influence he exercised over them. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Creditors & Debtors Law - Proceedings - Appeals and judicial review - Practice and procedure - Parties - Standing - Evidence

Appeal by the defendant, Darc, from a summary trial order requiring repayment of three loans to the plaintiff, Strother. The parties were longstanding friends and business partners. In the past, the defendant provided financial assistance to the plaintiff and his wife during litigation that temporarily froze the plaintiff’s assets. In 2012, the defendant was in need of cash. The plaintiff made three loans to the defendant totaling $445,000. The first loan of $300,000 was made in September 2012 and evidenced by a promissory note that contemplated repayment upon the earlier of the sale of the defendant’s property, or August 31, 2013. The second loan of $100,000 was made in May 2013 and the third loan of $45,000 was made in August 2014. The second and third loans were not evidenced by a promissory note. The plaintiff sued to recover repayment. The defendant submitted that the first and third loans were advanced by the plaintiff’s holding company and therefore could not be enforced by the plaintiff in his individual capacity. The defendant further submitted that the promissory note was unenforceable for lack of consideration flowing from the plaintiff. The defendant contended that repayment was voluntary based on a collateral oral agreement. The summary trial judge rejected the defendant’s position, finding that the primary debtor and creditor relationship was between the parties, and directing repayment. The defendant appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Contracts - Performance and discharge - Performance - Inability to perform

Appeal by the defendant, Aujla, from a finding of contractual liability. The plaintiff 0909043 BC Ltd owned commercial property in Chilliwack and the defendant Snowland Sporting Goods (Snowland) owned a hotel property in Williams Lake. Aujla had an ownership interest in the Williams Lake property through a holding company. The parties entered into two written contracts to contemporaneously swap ownership of the properties through share transfers and purchases. A term in each contract provided for payment of $500,000 in the event of default. The plaintiff Badesha claimed that he was willing and able to complete, but that Aujla failed to proceed. Aujla took the position the agreements were unenforceable and that the $500,000 provision was an impermissible penalty clause. The trial judge found that the agreements were sufficiently certain as to their terms, and that the $500,000 clause was not disproportionate to the damages recoverable for Aujla’s breach. The plaintiffs were awarded damages of $1 million based on the default provisions in each contract. Aujla appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Civil Litigation - Civil procedure - Parties - Representation of - By non-lawyer

Application by Park Avenue Flooring Inc. (Park Avenue) to permit Miller to represent Park Avenue in the appeal or cross-appeal. EllisDon Construction Services Inc. (EllisDon) was retained as a construction manager for the Court Yard Infill Project (CYI Project) at the Calgary Airport. In early 2002, EllisDon accepted Park Avenue’s bid to do work on tiling and flooring for the CIY Project. By September 2002, Park Avenue claimed $550,000 in unpaid invoices. Informal mediation was unsuccessful and the relationship continued to deteriorate until EllisDon sent a termination letter to Park Avenue in April 2003. Park Avenue commenced litigation in October 2003. In 2007, a judge of the Court of Queen’s Bench issued an order permitting Miller to represent Park Avenue. Miller was a Director and Officer of Park Avenue, but was not a member of the Law Society of Alberta. The trial judge awarded Park Avenue $877,582 in damages and dismissed EllisDon’s counterclaim. Park Avenue filed a Notice of Appeal and sought to appeal portions of the judgment in relation to damages. EllisDon cross-appealed and objected to Miller’s representation of Park Avenue. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Alternative Dispute Resolution - Binding arbitration - Arbitrators and arbitration boards - Jurisdiction - Practice and procedure - Parties - Appeals and judicial review

Motion by the respondent, the Covanta Durham York Renewable Energy Limited Partnership (Covanta), to quash an appeal by Barton-Malow and others. Regional municipalities contracted with the respondent to build and operate an energy-from-waste infrastructure facility. The respondent subcontracted with the CPP appellants to provide construction services. The appellants in turn subcontracted with two other appellant subcontractors. The agreement between Covanta and CPP contained a binding arbitration provision which adopted the UNCITRAL Arbitration Rules and the Model Law on International Commercial Arbitration. The subcontracting agreements between CPP and the other appellants also included an arbitration clause. In April 2015, CPP issued a notice of arbitration to the respondent and brought a motion to add the other subcontractor appellants as parties. The arbitrator granted the motion. The respondent applied for review of the decision. The application judge concluded the arbitrator failed to satisfy himself that the subcontractor appellants were parties to the arbitration agreement. The ruling was set aside. CPP and its subcontractors appealed. Covanta moved to quash the appeal. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Sentencing - Homicide - Attempted murder - Particular sanctions - Imprisonment - Sentencing considerations - Aggravating factors - Mitigating factors - No previous record

Sentencing of Forcillo following his conviction for the attempted murder of Yatim. Forcillo was a police officer with three years of experience, trained to use his firearm in a lethal manner only in cases where a threat was imminent. He knew that a potential threat was not justification for using lethal force. Forcillo was one of the first three officers to respond to a call about an armed person on a streetcar. Forcillo positioned himself in front of Yatim, armed with a knife, pointed his gun, and demanded that Yatim drop the knife. Yatim refused, and hurled insults at Forcillo. Forcillo instructed Yatim not to move. Yatim took some steps. Forcillo fired six shots into Yatim’s chest and arm. Yatim fell to the floor of the streetcar on his back. Expert evidence established he was rendered paralyzed from the waist down by one of the shots, and that his death resulted from another shot from this volley. Forcillo claimed he saw Yatim begin to raise himself up and to switch his knife from one hand to the other. Perceiving this to indicate that Yatim intended to resume an attack, Forcillo fired six more shots at Yatim’s groin area. Expert evidence established that Yatim would not have felt any of the shots, and that none of them were the cause of his death. Video of the incident showed that Yatim did not in fact raise himself up at all after the first volley of shots. Forcillo was acquitted of second degree murder at his trial, the jury finding that he was justified in firing the first volley of shots into Yatim. He was convicted of attempted murder with respect to firing the second set of shots. Forcillo was likely to lose his job if his conviction was sustained on appeal. He provided many reference letters describing him as a family man devoted to his wife and daughters, thoughtful and caring. He had no prior criminal record. He had drawn his gun 12 times during his years as a police officer, but had never before fired it. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Family Law - Maintenance and support - Spousal support - Considerations - Compensatory support - Effect of parties’ subsequent relationships - Economic disadvantage of marriage - Variation or termination of obligation

Appeal by the husband from a decision dismissing his application for termination of spousal support. The parties lived together from 1973 to 1976, married in 1976, separated in 1996, and divorced in 1997. Their three adult children were living independently. The wife took time out of the workforce to have the parties’ children, and returned to work on a part-time basis to continue assuming care of the children. In 1997, the wife left the workforce due to symptoms associated with Chronic Fatigue Syndrome. The husband obtained a Master’s degree in Business Administration and his Chartered Accountant designation during the course of the marriage. In 2011, 2012 and 2013, the husband earned $660,723, $548,889 and $614,658 respectively. The parties entered into a settlement in 1997 and included an agreed amount of spousal support in the amount of $2,350 per month. The terms of the settlement provided for a review in the event that the wife’s share of her father’s estate exceeded $200,000. The review was ultimately heard and it was ordered that the spousal support remain at $2,350. The wife was cohabitating with a new partner at his home. The wife’s income without spousal support was $42,300. The husband retired in 2014 and his total income was $135,000 per year. The husband had approximately $1,500,000 in assets, and the wife had approximately $1,350,000, not including any future interest in her father’s estate. The chambers judge held that the spousal support award was compensatory and entitlement was ongoing. He essentially found that compensation had not been achieved because of the low amount of spousal support the wife received over the years in comparison to what the Spousal Support Advisory Guidelines recommended. The husband submitted that the chambers judge failed to first consider the issue of entitlement to spousal support before considering quantum. ... [read more]