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Thursday, November 10, 2016 @ 7:00 PM

Construction Law - Liens - Obtaining a lien - Claim - Filing - Defects and formalities - Notice of lien - Failure to provide - Vacating, loss or discharge of lien

Appeal by Superior Construction Solutions (Superior) from an order vacating its written notice of lien and a claim of lien. Superior performed work in respect of City property and other property under a subcontract to Hamilton Construction (Hamilton). The last day Superior performed work under its contract was November 19, 2013. Hamilton brought the present application on December 10, 2015. Superior had commenced a claim against Hamilton and several others on July 16, 2015 in Regina, but had failed to serve Hamilton with the claim or to give Hamilton notice of the claim. Superior obtained an order extending time for service, and served Hamilton with the claim. In the meantime, before Superior had effected service of its statement of claim, Hamilton searched the local registry and, finding no statement of claim, applied to vacate Superior’s written notice and claim of lien on the ground that no action had been commenced within two years. The judge allowed the application and vacated the written notice of lien and claim of lien. He found that s. 86(2) of the Builders’ Lien Act applied and he interpreted that section as requiring a lien claimant to file its statement of claim in the judicial centre nearest to the land over which the claim related. He also found Superior was required to provide the court with an evidentiary and legal basis for the claim to permit a determination that there was an arguable case and thus justification to maintain the extraordinary remedy of claim of lien and that Superior had failed to do so. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Digest - Alternative Dispute Resolution - Binding arbitration - Voluntary binding arbitration - Agreement to arbitrate - Interpretation

Appeal by the defendants Gunam and Feng from a decision of a motions judge refusing to stay the action in favour of an arbitration agreement. The co-defendant Viscardi did not appeal. The parties entered into a shareholder agreement respecting the operation of a restaurant. When the restaurant failed, the respondent sued the appellants and Viscardi for fraudulent misrepresentation which he alleged induced him to sign the shareholders’ agreement. The shareholders’ agreement contained an arbitration agreement. The alleged misrepresentation largely related to the failures of Viscardi and the appellants to perform their obligations under the shareholders’ agreement. The motion judge found that the claims were not in pith and substance contractual, but related only to fraudulent misrepresentation, apart from the oppression claim. The motion judge took the view that the scope of the arbitration agreement did not extend beyond contractual claims. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Sentencing - Criminal Code offences - Offences against person and reputation - Homicide - Manslaughter - Particular sanctions - Imprisonment - Probation - Sentencing considerations - Submissions - Joint submissions

Appeal from a judgment of the British Columbia Court of Appeal affirming a sentencing decision which set aside a joint submission regarding Anthony-Cook’s sentence. Anthony-Cook entered a plea of guilty to manslaughter on the basis of a joint submission as to sentence. The trial judge rejected the joint submission and imposed a longer custodial sentence than the sentence proposed by the Crown and the defence counsel. He also imposed a probation order for three years, even though the joint submission did not contemplate a period of probation. The Court had to determine whether the trial judge erred in departing from the joint submission proposed by the parties. The trial judge expressed two concerns with the joint submission. First, he noted that counsel had mistakenly overestimated by some six months the amount of credit to which Anthony-Cook was entitled for time spent in pre-sentence custody. Second, the trial judge was concerned that without a probation order, the sentence would not adequately protect the public. Applying the “fitness of sentence” test, the trial judge rejected the joint submission. While giving it careful consideration, he concluded that it did not give adequate weight to the principles of denunciation, deterrence, and protection of the public. The Court of Appeal for British Columbia unanimously dismissed Anthony-Cook’s sentence appeal. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Criminal Law - Appeals - Grounds - Misapprehension of or failure to consider evidence - Unreasonable verdict

Appeal by Lemaigre from his conviction for assault causing bodily harm. At the time of the alleged offence, Lemaigre was serving the community portion of his sentence as a long-term offender. The long-term supervision order prohibited Lemaigre from having any contact with his former spouse. She was the complainant. She testified that she found Lemaigre at her home, where he punched her once in the face, knocking her unconscious. She had a small scar as a result. Under cross-examination, the complainant admitted she had a history of alcohol problems and that she had been drinking the day before the incident with Lemaigre. No one witnessed the assault. The daughter of Lemaigre and the complainant, and the daughter’s boyfriend, testified for the defence. The daughter stated that the complainant had come to her home drunk, looking for a place to stay. When the daughter refused her entry, the complainant fell outside the home. The daughter and her boyfriend noted that the complainant had the eye injury that the complainant attributed to Lemaigre after the fall. The daughter also started to testify about the complainant punching Lemaigre at the daughter’s home some days later, but the Crown objected to the daughter testifying in chief about the events of any day other than the day in question, April 3, 2012. She rejected the suggestion that Lemaigre may have hit the complainant the next day after the complainant got up and left. The daughter was adamant that Lemaigre was out of town on April 3, 2012. Both she and her boyfriend stated that Lemaigre always called them when he was in town. The judge noted that neither the daughter nor her boyfriend were sure what the complainant may have encountered after she left their home. He found that the daughter angry with the complainant because of her drinking, protective of Lemaigre, and generally unbelievable. He found the complainant straightforward and credible in her account of being punched by Lemaigre and suffering a black eye that constituted bodily harm. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Appeals - Grounds - Miscarriage of justice

Appeal by Luk from convictions for assault with a weapon and related weapons offences. The complainant was Luk’s live-in girlfriend who claimed that she was assaulted by Luk with a knife and a gun over a two-day period in October 2014. The police arrested Luk at the home he shared with the complainant on October 2. He was placed in custody while the police obtained and executed a search warrant for the home, where they discovered a handgun under the duvet in the only bedroom. Other guns and imitation guns were also found in the apartment, along with ammunition. The home was not secured between the time of Luk’s arrest at 3:14 p.m. and 6:45 p.m. The only defence witness was Motevalli, who claimed he was a firearms enthusiast who had lived with Luk in the past. He testified that he and a friend of Luk’s, Jay, were present in the home when Luk was arrested. Motevalli was in the bathroom and did not see the police arrest Luk. He claimed Jay seemed nervous when Motevalli came out of the bathroom, after which Jay took a handgun from his hoodie, went to the bedroom, and appeared less nervous when he came out of the bedroom. The inference the defence sought to make from the evidence was that Jay left the handgun under the duvet, and that it did not belong to Luk. Motevalli was cross-examined about whether or not he spoke to Luk after the offence. There was some confusion about whether Motevalli spoke to Luk to get contact information for Luk’s lawyer, or whether he obtained the contact information from another friend, Mark. Motevalli was removed from the courtroom while counsel sought to determine how to clarify his answer. When he returned, the Crown asked if he had obtained the number from Luk or from Mark, and cut Motevalli off when he tried to clarify his response from earlier. The judge found the matter of speaking to Luk or Mark a major internal inconsistency in Motevalli’s evidence that undermined his credibility. The judge rejected Motevalli’s testimony and convicted Luk on all counts. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Wills, Estates & Trusts Law - Proceedings - Practice and procedure - Costs

Appeal by Roberta Cook and Ruth Estabrooks from the award of costs they received in successfully defending estate litigation. Roberta and Ruth sought solicitor-client costs, while the unsuccessful plaintiffs in the litigation also argued that they should have been awarded solicitor-client costs. Jarvis Estabrooks executed his last will and testament on May 3, 2001. The will was accidentally destroyed while Jarvis sorted through papers. That will provided for $40,000 bequests to each of two of Jarvis’s daughters, while his other three daughters were largely disinherited. The vast majority of the estate was bequeathed to two nieces, Roberta and Ruth. Ruth was also named executrix. Jarvis died in January 2012. Ruth applied for probate. The daughters filed caveats, asserting their entitlements to share in the distribution of the estate as dependants. The daughters subsequently amended their claims to argue that Jarvis intentionally destroyed his will and therefore died intestate. Ruth and Roberta offered to settle for $80,000 all-inclusive on September 8, 2014. The daughters countered with an offer to accept $350,000. The court in part relied on evidence from Jarvis’s friend Shaw in finding that the destruction of the will was unintentional, and that Jarvis was unconcerned because he had a copy of the will filed with his lawyer. The court awarded $870,000 in party and party costs to Roberta and Ruth, payable by the estate. He denied Ruth and Roberta solicitor-client costs from the date of the settlement offer because the daughters’ claim was not dubious, because the $80,000 offer represented less than 10 per cent of the potential recovery, and because the daughters narrowed their issues before trial, abandoned their claims of dependency, provided security for costs and consented to the taking of evidence by way of commission before the trial. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Intellectual Property Law - Patents - Procedure - Judicial review - Grounds

Appeals by two generic drug manufacturers, the Attorney General and the Minister of Health from orders setting aside Notices of Compliance (NOC) issued by the Minister. The Minister issued a NOC to Teva Canada Limited (Teva) for its generic version of exemestane tablets. Pfizer Canada Inc. (Pfizer), who marketed exemestane tablets under the brand name AROMASIN, challenged the Minister’s decision to issue the NOC to Teva. A judge of the Federal Court found that the standard of review of the Minister’s decision was correctness. The Federal Court went on to find that the Minister’s interpretation of the Regulations was incorrect and, as a result, he set aside the NOC issued to Teva. Teva, the Attorney General and the Minister of Health appealed the decision of the Federal Court judge. The Minister also issued a NOC to Hospira for its generic version of 100mg/vial infliximab powder. Janssen, who marketed infliximab under the brand name REMICADE, challenged the Minister’s decision to issue the NOC to Hospira. With the consent of the parties, the Federal Court set aside the decision of the Minister to issue the NOC, without prejudice to any right to appeal. Both Hospira and the Attorney General and the Minister of Health appealed the judgment. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Real Property Law - Title - Boundaries - Determination - Surveys

Appeal by Mackenzie from the $8,000 judgment in favour of his neighbour, MacKay, in an action arising from a property line dispute. MacKenzie cut 16 trees near the border of the parties’ respective properties. Mackay obtained a survey to establish the property line, and, dissatisfied with the opinion of surveyor Bernard that the trees lay on MacKenzie’s property, fired Bernard and sought another survey. His second surveyor, Clow, came to a conclusion about the boundary that was favourable to MacKay’s position. MacKenzie then hired Bernard to carry out another survey. Bernard found that the boundary line was two feet west of the tree stumps, meaning that they were situated on MacKenzie’s property. Bernard shared his findings with Clow, who revised his opinion and survey to more closely align with Bernard’s. MacKay commenced his action for trespass against MacKenzie, basing his claim on the location of the legal boundary. MacKenzie counterclaimed for damages for Mackay’s wrongful action in twice knocking down woodpiles MacKenzie made with the felled trees. The judge rejected all the evidence put forth by MacKenzie, his family, Bernard and Clow, found that the boundary was the crooked tree line running an irregular course through the centre of the tree trunks, and found that MacKenzie trespassed on MacKay’s property by cutting boundary trees presumed to be common property. MacKay was ordered to pay MacKenzie $166 for knocking down the wood piles, to be set off against the judgment of $8,000. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Evidence - Witnesses - Credibility - Examination - Cross-examination - Range of examination

Appeal by the accused from conviction for sexual interference against his stepdaughter. The parties had agreed that unless the appellant raised the issues himself, Crown counsel would not cross-examine the appellant about his departure and six-month absence from the jurisdiction after he was arrested and charged, his failure to attend his first preliminary inquiry, and his subsequent guilty plea, conviction and sentence for failing to attend. In response to Crown counsel’s question during the appellant’s cross-examination as to whether the appellant wanted to clear these charges up as soon as possible, the appellant stated that he left the jurisdiction, but came all the way across Canada and turned himself into the police station on his own accord. Crown counsel then obtained a ruling permitting Crown counsel to question the appellant about his post-arrest conduct. The trial judge concluded that the appellant had put his post-offence conduct into issue by his answer. Crown counsel invited the jury in his closing to use the evidence of the appellant’s post-arrest conduct to negatively assess the appellant’s credibility. The trial judge gave no caution to the jury about using the post-arrest conduct to assess the appellant’s credibility. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Workplace Health, Safety & Compensation Law - Workers’ compensation - Appeals and judicial review - Natural justice - Procedural fairness - Boards and tribunals - Powers

Appeal by Schulte from a decision dismissing his motion for judicial review of decisions of the Workers’ Compensation Appeals Commission (Appeals Commission) refusing reconsideration of an earlier decision respecting the appropriate rate of compensation. The appellant was dissatisfied with the compensation he received as a result of a 1987 and a 2006 accident. He argued that various orders of the Workers Compensation Board in 1995, 2005 and 2012 relating to cost of living adjustments were inconsistent with the Charter and that it was not within the competence of the Legislature under the Administrative Procedures and Jurisdiction Act to allow the Board to address division of powers issues under the Constitution, but not issues under the Charter. He also argued there was a reasonable apprehension of bias on the part of the Appeals Commission, either institutionally or specifically. ... [read more]