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Digests

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Tuesday, April 04, 2017 @ 8:33 AM

JUDICIAL INTERIM RELEASE OR BAIL - Pending appeal - Grounds for denial - Detention necessary to maintain confidence in the administration of justice - Review of

Appeal by Oland from a judgment of the New Brunswick Court of Appeal denying him bail pending the determination of his appeal against conviction. Oland applied for bail pending appeal following his conviction on a charge of second degree murder involving the death of his father. His application was denied under the public interest criterion set out in s. 679(3)(c) of the Criminal Code. While public safety was not in issue, the appeal judge was not persuaded that public confidence in the administration of justice would be maintained if Oland were to be released. The appeal judge found that the gravity and brutality of the offence weighed in favour of Oland’s detention. While the grounds of appeal put forward by Oland were “clearly arguable”, they were not of such unique strength as to “virtually assure a new trial or an acquittal”. On balance, the appeal judge was not persuaded that public confidence in the administration of justice would be maintained if Oland were to be released. Accordingly, he dismissed the application for release pending appeal. A review of the detention order by a three-judge panel of the appeal court, as directed by the Chief Justice of New Brunswick under s. 680(1), proved unsuccessful. In dismissing Oland’s application for review, the panel determined that Oland had failed to show any error in the reasons of the appeal judge that would warrant interference; nor had he persuaded the panel that his detention in the circumstances was clearly unreasonable. Oland appealed the review panel’s decision, but prior to the appeal being heard, the New Brunswick Court of Appeal allowed his appeal from conviction, ordered a new trial and granted his release on bail pending his re-trial. Accordingly, Oland’s appeal from the review panel’s order upholding his detention order was rendered moot. However, in light of the unanimous position taken by the parties and interveners that guidance was needed from the Court to resolve inconsistent approaches to bail taken by appellate courts across the country, and given that the appeal met the criteria established in Borowski, the Court decided to hear the appeal on its merits. ... [read more]

Monday, April 03, 2017 @ 11:54 AM

EVIDENCE - Documentary evidence - Electronic records - Privilege - Informants - Publication bans and confidentiality orders

Appeal by Vice Media (Vice) and Makuch from the dismissal of applications to quash a production order and to unseal the record supporting the production order. Between June and October 2014, Makuch wrote and Vice published three articles about the involvement of Shirdon with the terrorist group ISIS in the Middle East. The articles were based upon communications between Makuch and Shirdon through a text messaging service. Shirdon was under investigation for several terrorism-related offences at the time. Makuch’s articles purported to confirm that Shirdon was an ISIS combatant. The police sought a production order directing Vice and Makuch to produce documents and data relating to their communications with Shirdon. The issuing judge ordered the production of all paper printouts, screen captures and computer records of all communications with Shirdon via text and directed that all information relating to the application for the production order should be sealed. Vice examined its records and advised the police that the only materials in its possession covered by the production order were some instant messenger chats between Makuch and Shirdon, and screen captures of the chats. Makuch and Vice did not produce the material, but instead applied to quash the production order and to unseal the record relied upon by the police to obtain it. The applications judge found the order reasonable and refused to quash it. The judge found that the material sought was the best and most reliable evidence of what Shirdon said, and could provide direct evidence against Shirdon on the outstanding charges. He noted that Shirdon was not a confidential source and that much of the information sought had already been placed in the public domain by Makuch in his articles. In sealing the record supporting the production order, the judge accepted that there were national security reasons for sealing and/or redacting portions of the record. He also accepted redactions of the identity of an individual who had provided information to the police affiant and of the future steps the police intended to take in investigating Shirdon. The applications judge also made a non-publication order with respect to the affidavit, citing Shirdon’s fair trial rights. ... [read more]

Monday, April 03, 2017 @ 11:48 AM

CIVIL PROCEDURE - Discovery - Electronic discovery and production - Privacy issues - Freedom of information and privacy legislation

Appeal by the Province from an order compelling it to produce information in its databases about health care expenditures for tobacco-related diseases to tobacco manufacturers. The Tobacco Damages and Health Care Costs Recovery Act (Act) permitted the Province to pursue an action against manufacturers of tobacco products for the recovery of health care expenditures incurred in treating individuals exposed to their products. The Act permitted the use of statistical and study-based information to establish causation and to quantify damages of the cost of health benefits. The Province maintained databases with different types of health information, which needed to be linked or cross-referenced in order to identify the tobacco-related costs. The databases were compilations of particular individual health records with data values organized in rows and columns. The Province indicated it intended to use the data to prove its case to recover health care costs, but it refused to produce the data to the manufacturers. It proposed to give the manufacturers severely restricted access through a series of intermediaries, including Statistics Canada. One manufacturer, Philip Morris International (PMI), took the position that the arrangement would be inadequate and unfair as a substitute for discovery. A judge agreed that non-disclosure of the databases could lead to an unjust result. He found that deleting names and other personal information from the databases would address any privacy concerns while permitting PMI to answer the Province’s case, as would be appropriate if the Province made a claim for recovery of the health care costs of any individual impacted by the use of tobacco products. ... [read more]

Monday, April 03, 2017 @ 11:42 AM

CIVIL PROCEDURE - Actions - Availability - Right of action

Appeal by Godbout from a judgment of the Quebec Court of Appeal setting aside a decision concluding that her civil action against the medical staff who treated the injuries she had suffered in an automobile accident was admissible and appeal by Gargantiel from a judgment of the Quebec Court of Appeal affirming a decision that dismissed his claim against Sûreté du Québec officers who were allegedly negligent in searching for the crashed vehicle he was in. Godbout and Gargantiel were both seriously injured in automobile accidents and were compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (SAAQ) under the Automobile Insurance Act (Act). In separate actions, they sought reparation for the injuries caused by the alleged subsequent faults of third parties. Godbout was involved in a serious automobile accident in January 1999. She was treated by Pagé, an orthopaedic surgeon, and the other respondents. After suffering from advanced compartment syndrome and muscle compartment necrosis that led to amputations following the surgery, Godbout filed a motion to institute proceedings against them for failing to act in accordance with good practice in treating her and causing separate injuries that had not been suffered in the automobile accident. The trial judge concluded that s. 83.57 of the Act did not preclude her action, but the Quebec Court of Appeal allowed the appeal and set aside the trial judge’s decision. In October 2009, Gargantiel lost control of his automobile. Even though the OnStar company, having located Gargantiel’s vehicle by satellite, contacted the Sûreté du Québec’s call management centre and provided it with the GPS coordinates of the vehicle, officers were unable to locate it and decided to give up the search. Gargantiel was found by a passerby 40 hours after the accident with severe hypothermia and other serious bodily injuries that led to the partial amputation of his leg. He claimed damages from the Attorney General of Quebec (AGQ) for injuries linked to the negligence of the officers who had participated in the search for his car. The trial judge granted the AGQ’s motion to dismiss, and the Court of Appeal dismissed Gargantiel’s appeal. The Supreme Court of Canada considered whether a person injured in an automobile accident who was eligible to receive compensation under the Act but whose condition was aggravated as a result of a fault committed by a third party could bring a civil action against the third party to seek compensation for bodily injury resulting from that subsequent fault. ... [read more]

Friday, March 31, 2017 @ 8:55 AM

WORKPLACE HEALTH AND SAFETY - Offences and enforcement - Defences - Due diligence - Offences - Failure to ensure health and safety of workers

Application by the Crown for leave to appeal a Summary Conviction Appeal Judge (appeal judge) decision setting aside the respondent’s convictions under the Occupational Health and Safety Act for failing to ensure the safety of its workers. In December 2010, a team of the respondent’s employees were removing an oil drill string from a well. During the process, the drilling pipe suddenly spun out of control while two employees were in the rotary table danger zone. Part of the apparatus struck one of the floorhands, who died of his injuries. The driller, who might have been in the best position to testify as to what occurred, did not testify as he was working in the US. At trial, there was competing evidence about what caused the drill string to spin. The trial judge concluded that the Crown proved the actus reus more broadly than required by the prima facie breach approach, so that the defence needed to satisfy him that they had taken all reasonable steps to avoid the present type of accident. The appeal judge held that the trial judge erred by finding that the Crown proved the offence merely by proving that the accident occurred. The appeal judge found that the accused met all industry standards and regulations. She held the trial judge erred by failing to assess due diligence with reference to industry standards and the absence of any specific safety standard, which would govern what a reasonable drilling company would have done in the circumstances. The Crown argued the appeal judge erred by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence and erred in law in her interpretation and application of the due diligence test. ... [read more]

Friday, March 31, 2017 @ 8:54 AM

POWERS OF MUNICIPALITY - Services and utilities - Types - Water - Sewer

Motion by the Corporation of the Town of Arnprior for summary judgment dismissing the action by the plaintiff, Nylene Canada. The plaintiff operated a polymer manufacturing facility within the Town. It alleged the Town overcharged it for provision of wastewater services from 2005 onward, as it invoiced on the basis of the amount of water supplied rather than the lesser amount of wastewater discharged into the sewage system. The plaintiff submitted that it was accordingly overcharged for wastewater services it did not use. The plaintiff argued that s. 394(1)(c) of the Municipal Act prohibited imposition of a fee based on use or consumption of a service other than a service provided or performed by a municipality. The Town sought summary judgment dismissing the claim on the basis that imposition of charges for wastewater services was a policy decision that attracted statutory immunity. ... [read more]

Friday, March 31, 2017 @ 8:53 AM

INTERESTS IN LAND - Dower rights - Statutory dower - Homesteads - Homestead legislation - Dower rights of non-owning spouse - Remedies of non-owning spouse - Action in damages

Appeal by the husband from a chambers judge’s decision awarding damages to the wife in a Dower Act claim. The parties separated after a 21-year marriage. The husband owned a house prior to the parties’ marriage. The parties had lived there for several years until they moved into the matrimonial home, at which time the previous house became a rental property. Upon separation, the wife remained in the matrimonial home and the husband sold the house without her consent to fund the purchase of a new home. The wife commenced an action pursuant to the Dower Act and obtained a judgment for damages. The chambers judge found that the Dower Act could be applied without regard to their matrimonial property action because otherwise the relevant section of the Dower Act would be meaningless. The chambers judge noted that, unlike similar legislation in other provinces, there was no discretion in the remedy once the statutory conditions were met. The husband appealed arguing that the chambers judge erred in determining the issue by way of summary judgment, and that the chambers judge incorrectly interpreted the law with respect to the interaction between the Dower Act and the Matrimonial Property Act. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Environmental Law - ENVIRONMENTAL LEGISLATION - Approvals, licences and orders

Appeal by the Sipekne’katik First Nation from a decision by the Minister of the Environment dismissing its appeal from the granting of an Industrial Approval in favour of Alton Natural Gas Storage (Alton). Alton sought Approval of a brining pond as part of a larger project involving construction and operation of an underground natural gas storage facility. The underground facility would be built through solution mining using water from the Shubenacadie River. Water removed from the underground excavation would contain significant levels of dissolved salt. The brine storage pond was intended to keep the salt solution until sufficiently diluted for return to the River. Alton received an Industrial Approval for operation of the brine storage pond, subject to terms and conditions. The Minister dismissed the appellant’s appeal pursuant to s. 137 of the Environment Act (Act). The appellant appealed to the Court pursuant to s. 138 of the Act. The appellant submitted that it was denied procedural fairness and that the Crown breached its duty of consultation and accommodation. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Government Law - Access to information and privacy - Access to information - Legislation - Provincial and territorial - Right to information - Appeals and judicial review - Standard of review - Reasonableness - Privacy and information commissioners

Application by the Children’s Lawyer for Ontario for judicial review of the Information and Privacy Commissioner of Ontario’s (IPC) decision ordering the Attorney General for Ontario (MAG) to issue a decision respecting an access request under the Freedom of Information and Protection of Privacy Act (FIPPA). A parent whose children the Children’s Lawyer represented in a custody dispute sought production of records relating to the dispute. Some of the records were privileged. The access to information request was denied based on the Children’s Lawyer’s view that the FIPPA did not apply to private litigation files relating to her representation of a child under s. 89 of the Courts of Justice Act. In this capacity, the Children’s Lawyer stated that she represented the private legal interests of the child and did not act on behalf of MAG. The IPC concluded that the records were in “the custody or under the control” of MAG and ordered MAG to issue an access decision to the requesting parent. The Children’s Lawyer sought judicial review of the IPC order and MAG supported the Children’s Lawyer’s position. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Employment Law - Discipline and termination of employment - Resignation - Elements

Appeal by Avalon from judgment in favour of Evans in his wrongful dismissal action. Evans cross-appealed from the lack of an award for moral and punitive damages in the judgment. Evans worked for Avalon, a car dealership, from 1997 to July 2010. He was the commercial fleet manager responsible for dealing with commercial customers, reporting to Lester, the General Sales Manager, and Wilkins, the owner. Evans was also responsible for the oversight of the sales desk at the dealership premises. Evans was discovered to have made an inventory control error that delayed a payment to Avalon for a vehicle that was modified prior to delivery to a customer. A tense meeting took place involving Evans, Wilkins and Lester, during which Evans suffered a stress reaction. He went home early, but returned to work later that evening. He handed his keys over to Lester and said he was “done”, despite Lester’s efforts to calm him down. Lester informed Wilkins that Evans had resigned. Evans subsequently tried to call Wilkins, but his calls went unanswered. When they met four days later, Wilkins was harsh in criticizing Evans for deserting the dealership when it was busy and short-handed. Evans sought emotional support and presented a note from his doctor in support of a stress leave. Wilkins tore up the note and told Evans to leave. Evans’ final compensation was limited to his vacation pay and an incentive bonus owing to him due to a previous miscalculation. At trial of Evans’ wrongful dismissal and breach of contract action, the judge found that Evans’ resignation was neither voluntary nor equivocal, and that Avalon breached its duty of good faith and fair dealings in failing to give Evans time to cool off and reconsider, failing to make further enquiries and act with consideration in response to the resignation. Alternatively, Avalon’s actions showed a careless disregard for Evans, breaching an implied term of their contract. The judge awarded Evans damages for wrongful dismissal based on a salary that was reduced from what he had earned previously as commercial fleet manager given that, had he resumed work at Avalon, his duties would have been modified based on his medical condition. The judge found that Evans was entitled to compensation for lost short-term disability benefits resulting from the manner in which Avalon completed the supporting forms. She relied on the past practices of the parties in finding that Evans was entitled to an incentive bonus paid for a May 2010 sales program. ... [read more]