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Thursday, October 06, 2016 @ 8:00 PM

Contracts - Remedies - Equitable remedies - Rectification

Appeal by the applicants, Anderson and LJ Anderson Farms Limited, from refusal of declaratory relief. Anderson was the sole director and shareholder of the corporate appellant. He owned farm equipment and land utilized by the company for a farming enterprise. The company advanced monies to Anderson through shareholder loans. A concern arose that the loans would be deemed income for taxation purposes. In 2011, the applicants’ accountants recommended Anderson transfer land and equipment to the company in a rollover transaction. The transactions were recorded in the company’s records, but the accountant failed to instruct the appellants’ lawyers to prepare the necessary documentation in timely fashion. In 2013, upon notification of an audit of the rollover, the appellants’ lawyers were instructed to prepare the relevant documents with an operative date of January 1, 2011. Canada Revenue reviewed the documents and determined a proper rollover was not accomplished. The appellants applied for equitable relief through retroactive rectification of the documents. The chambers judge changed the date of the documentation, but declined to declare they were retroactively valid, binding and effective as of that date. The applicants appealed. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Damages - For torts - Fraud and misrepresentation - Pure economic loss

Appeal by the defendants from the assessment of damages in respect of the sale of strata units in the Vancouver Westin Grand Hotel. The plaintiffs were investors who purchased strata units in the Hotel in 1996 marketed and sold by the defendants. The sales closed in 1999 following construction of the Hotel. In a 2008 trial on the issue of liability, the disclosure statement was found to contain a material false statement in a note to the financial statements regarding projected occupancy rates relative to other competing hotels. The liability finding was affirmed on appeal. The defendant developers were liable to compensate the plaintiffs pursuant to s. 75 of the Real Estate Act. Following protracted damages assessment proceedings, the trial judge awarded the plaintiffs $8 million plus $3.1 million in pre-judgment interest. The damages reflected the fall in value of the strata units as of the date of closing. The developers appealed. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Criminal Law - Criminal Code offences - Offences against person and reputation - Homicide - Second degree murder

Trial of the accused, Vader, for two counts of first degree murder. In July 2010, an elderly couple left their home in Alberta for a road trip holiday to British Columbia. They drove a large recreational vehicle which towed an SUV. The couple failed to arrive for a scheduled rendezvous with family members. The family contacted police. The couple was never found, dead or alive. Their recreational vehicle was found on fire and their SUV was found abandoned. Forensic investigators found the victims’ blood inside the SUV, and a hat that belonged to the male victim with a bullet hole. A key to the SUV was subsequently found in a stolen pickup truck with a partially burned interior. The victims’ cell phone was found in a dumpster. The phone was used to make calls and text messages to the accused’s ex-girlfriend, an individual with no connection to the victims. The accused was a methamphetamine addict who denied any involvement with the missing victims. Two Crown witnesses testified they saw the accused operating the victims’ SUV and the stolen pickup truck on the day of their disappearance. DNA and fingerprint evidence linked the accused to the SUV. Defence counsel submitted that there was no evidence the victims were dead, or that the accused committed any unlawful act that led to their death. Counsel questioned the reliability of the cell phone and physical evidence, and further submitted that there was eyewitness evidence that placed the accused in an entirely different area of the province at the time of the alleged murders. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Insurance Law - Property insurance - Exclusions

Appeal from a judgment of the Alberta Court of Appeal setting aside a decision granting Ledcor Construction Ltd.’s (Ledcor) action against Northbridge Indemnity Insurance Co. (Northbridge). The outcome of these appeals hinged on the interpretation of an exclusion clause in a common form of all-risk property insurance, variably referred to as “builders’ risk”, “contractors’ risk”, “all risks”, “multi-risk” or “course of construction” insurance. This type of insurance covered physical damage on a construction site. It was usually issued to the owner of the property under construction and the general contractor, providing coverage for them as well as for all contractors and subcontractors working on the project. The exclusion clause at the heart of these appeals was a standard form clause that denied coverage for the “cost of making good faulty workmanship” but, as an exception to that exclusion, nonetheless covered “physical damage” resulting from the faulty workmanship. In the present case, a contractor was hired to clean the windows of a building under construction. In the course of the cleaning, the contractor scratched the building’s windows, which ultimately needed to be replaced. The windows’ replacement cost was claimed by Ledcor under a builders’ risk policy issued in favour of the owner and all contractors involved in the construction, but Northbridge denied coverage on the basis of the “cost of making good faulty workmanship” exclusion. The issue before the courts was thus to determine whether, where windows of a construction project were damaged from post-installation cleaning by a contractor responsible for only their cleaning, the cost of the windows’ replacement was excluded from coverage under the faulty workmanship exclusion. After determining that the work performed by the contractor amounted to faulty workmanship, the trial judge applied the contra proferentem rule against Northbridge and concluded that the faulty workmanship exclusion did not exclude from coverage the damage that the contractor had caused to the building’s windows. Applying a correctness standard of review to the interpretation of the insurance policy, the Court of Appeal of Alberta overturned the trial judge’s decision and declared that the damage to the building’s windows was excluded from coverage, as the damage was physically or systematically connected to the very work the contractor had performed. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused

Appeal by the Crown from a ruling excluding evidence, resulting in the acquittal of the accused, Derbyshire, of after the fact accessory to murder. Police investigating a murder concocted an undercover operation that targeted the accused in the hope she would reveal the whereabouts of Skinner, the investigation’s primary suspect. Officers posed as members of an outlaw motorcycle gang and confronted the accused by detaining her in a vehicle and ordering her to turn off her phone. They aggressively demanded that she disclose how she assisted Skinner in disposing of evidence and enabling his escape from the jurisdiction. The accused complied by showing them where the gun was disposed and Skinner’s clothes were burned. The officers spent time in the accused’s apartment and commented on personal photographs of her family. The accused was subsequently charged with being an accessory after the fact to murder. No evidence was obtained that assisted with Skinner’s arrest. At trial, the accused sought a stay of proceedings or exclusion of the evidence on the basis the police conduct breached her Charter rights. The trial judge dismissed the Charter motion. However, the judge applied the Supreme Court of Canada Hart decision addressing Mr. Big operations and concluded that although this was not an operation of that nature, the police conduct amounted to an abuse of process. The evidence obtained was excluded and the accused was acquitted. The Crown appealed. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Review boards - Orders - Considerations - Protection of public from dangerous persons - Reintegration of accused into society - Dispositions - Conditional discharge

Appeal by Head from a decision by the Newfoundland and Labrador Review Board ordering his continued detention. The appellant suffered from chronic schizophrenia from 2003 onward, requiring admission to hospital on four prior occasions. In 2006, the appellant was found not criminally responsible for possession of a weapon for a dangerous purpose and mischief. Police arrested him following reports he had slashed a vehicle’s tires and was following tenants in his building while carrying a big stick and talking to himself. The appellant was detained at a forensic hospital. Three conditional discharges between 2008 and 2010 led to the appellant’s readmission shortly thereafter due to substance abuse, altercations, and a lack of community support. Between 2011 and 2015, the appellant was away from the hospital without leave on several occasions. The most recent hearing in 2015 involved evidence that the appellant had made improvements in his treatment and management of his substance abuse issues. Caregivers recommended the appellant’s discharge. The Review Board ordered detention of the appellant for a further six months based on a recent change in his medication, and his previous unsuccessful attempts at reintegration. The appellant submitted the decision was unreasonable, as it did not represent the least onerous and restrictive disposition. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Proceedings - Appeals and judicial review

Appeal by the defendants in personal injury litigation from a judgment awarding damages to the plaintiff. The plaintiff suffered injuries in motor vehicle accidents that occurred in November 2009, March 2010, and October 2012. The plaintiff’s three actions arising from the accidents were tried together. The defendants were the owners and operators of the vehicles involved in each accident. Liability was admitted for the first two accidents and determined in the plaintiff’s favour in respect of the third accident. The plaintiff, age 52, developed chronic pain syndrome that rendered her unable to continue her employment with an industrial laundry company or carry on as her family homemaker and caregiver for her grandchildren. Her condition was unlikely to resolve. The plaintiff was awarded damages of $90,000 for non-pecuniary loss, $136,700 for past wage loss, $300,000 for lost earning capacity, $35,000 for past lost housekeeping capacity, $35,000 for future lost housekeeping capacity, $43,000 for costs of future care, and special damages of $1,465. The defendants appealed, arguing the amounts provided for loss of housekeeping capacity were excessive, and that aspects of the future costs of care award were not reasonable or medically justified. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Environmental Law - Environmental assessments - Canadian Environmental Assessment Act - Federal-provincial coordination and cooperation - Panel hearings - Screening report - Provincial environmental assessment

Appeal by the Peace Valley Landowner Association from a judicial review judgment in respect of an environmental assessment certificate. BC Hydro was the proponent of the Site C hydroelectric project, involving the construction of a massive earth-fill dam on the Peace River. The project was of an unprecedented magnitude. It required an environmental assessment certificate (EAC) under provincial and federal legislation applied pursuant to a joint review process. Following submissions and a hearing, a governmental joint review panel produced a report including 50 recommendations, some of which were related to issuance of an EAC, and some of which were unrelated. The Executive Director of the Environmental Assessment Office responded to the recommendations, stating that, among other things, four of the recommendations at issue were outside of the scope of the panel’s mandate, and could not become conditions of an EAC. The panel’s report and the Director’s response were submitted to the Ministers. The Ministers subsequently issued an EAC that included several conditions, but did not address the four recommendations at issue. The appellant, an opponent of the project, sought judicial review of the issuance of the EAC based on the Ministers’ failure to consider the recommendations. The reviewing court found no basis for intervention, as there was no indication the recommendations were ignored, and the recommendations were not capable of being incorporated into the EAC as conditions. The Association appealed. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Family Law - Adoption - Persons who may adopt and be adopted - Practice and procedure - Courts - Jurisdiction

Appeals by the foster parents from the dismissal of their applications to adopt their foster child and for relief under the Charter. The appellants had been the foster parents of a three-year-old child who was in the permanent care of the Director. The child had been in the care of the appellants from two days after her birth. She was of Metis heritage, as was one of the appellants. The placement with the appellants had been successful and the appellants wished to adopt the child. However, the Director wished to place the child in the care of a couple in Ontario who had adopted two of the child’s siblings, with the intention that the child would be adopted by that couple according to the laws of Ontario. The Ontario couple were not Metis, but were willing to expose the child to Metis culture. The child’s parents supported the adoption of the child by the appellants and alleged that they signed the continuing custody order placing the child in the permanent care of the Director on the premise that the appellants would be adopting her. The appellants petitioned for an order for adoption and other relief. In a second petition, they petitioned for relief under the Charter. In dismissing the first application, the judge held that there was no basis to invoke the parens patriae jurisdiction. The parens patriae jurisdiction could only be invoked where there was a gap in the legislation or where the Director had acted in bad faith, which was not the case in this matter. He further found that the appellants had no powers under the Adoption Act to apply for adoption, and had no rights in the process without the Director’s consent. The appellant’s second application for Charter relief was dismissed on the basis of res judicata. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Intellectual Property Law - Patents - Defences to infringement - Invalidity of patent - Anticipation (lack of novelty) - Obviousness - Insufficiency of claims - Insufficiency of specifications

Appeal by Nova Chemicals (Nova) from a patent infringement judgment in favour of the respondents, the Dow Chemical companies (Dow). The parties both manufactured polyethylene film-grade copolymers for use in, amongst other things, packaging applications. Dow owned the 705 Patent for fabricated articles made from ethylene polymer blends, such as garbage bags and food wrapping. The 705 Patent purported to meet the identified need to develop polymers that could be formed into thinner films with improved strength properties. Dow alleged that Nova infringed the 705 Patent in respect of its product line, Surpass. Nova challenged the Patent’s validity on the grounds of utility, over-claiming, anticipation, obviousness, double-patenting and insufficiency of the specification. The trial judge confirmed the validity of the 705 Patent. The judge also construed six disputed terms in the patent claims and interpreted competing expert evidence in favour of the conclusion of infringement by Nova. Nova appealed, challenging the judge’s findings regarding validity, the construction of four of the six terms, and the corresponding conclusion of infringement. ... [read more]