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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Public Law

Elections

Advertising

Election Act (B.C.) registration requirement should be imposed only on those paying for advertising services or receiving services

Section 239 of BC’s Election Act (Act) required everyone sponsoring election advertising during campaign to register with province’s Chief Electoral Officer (CEO), regardless of amount spent during writ period. 2010 Report of CEO did not distinguish between sponsors conducting full media campaigns and individuals engaged in such activities as putting bumper stickers on cars, posting handwritten signs in windows, or wearing T-shirts with political messages (individuals). Non-profit association brought unsuccessful application for declaration that registration requirement in respect of sponsors of election advertising spending less than $500 in given campaign period infringed s. 2(b) of Canadian Charter of Rights and Freedoms, was not saved by s. 1, was of no force and effect, and should be read down to include exception for individuals. Trial judge and majority of Court of Appeal found that s. 239 infringed s. 2(b), but that infringement was justified under s. 1. BC Attorney General (A-G) took position that s. 239 did not force individuals to register. Association appealed. Appeal dismissed. Individuals who neither paid others to advertise nor received advertising services without charge were not “sponsors” and could transmit their own points of view by posting handmade signs in windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them, without registering under Act. Act was consistent with position taken by A-G. Courts below did not determine scope and nature of limitation on free expression imposed by s. 239 but accepted CEO’s interpretation as including individuals in definition of “sponsor”. When words of s. 239 were read in entire context and in grammatical and ordinary sense harmoniously with scheme of Act, object of Act, and intention of Parliament, it was clear that provision was directed only at those undertaking organized advertising campaigns who paid for advertising services or received those services without charge as contribution. While definition of “election advertising” in s. 228 was broad enough to cover expressions by individuals, ordinary meaning of “sponsor” was not. Act defined “sponsor” as “individual or organization who pays for election advertising to be conducted”. Interpreting s. 239 as imposing registration requirement only on those who pay for advertising services or receive services from others in undertaking election advertising campaigns was consistent with purpose of Act, intention of legislature, and legislative history.
B.C. Freedom of Information and Privacy Assn. v. British Columbia (Attorney General) (2017), 2017 CarswellBC 161, 2017 CarswellBC 162, 2017 SCC 6, 2017 CSC 6, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1035, 2015 BCCA 172, Newbury J.A., Saunders J.A., and Lowry J.A. (B.C. C.A.).

Insurance

Automobile insurance

Underinsured motorist endorsement

Future CPP disability benefits did not reduce amount payable by insurer

Plaintiff’s action against defendant tortfeasor with respect to motor vehicle accident was allowed with award of damages exceeding limits of tortfeasor’s insurance policy. Plaintiff claimed shortfall from his own insurer under SEF 44 Family Protection Endorsement, but insurer took position that Endorsement’s deduction of future disability benefits from “any policy of insurance” applied to Canada Pension Plan (CPP) disability benefits. Trial judge ruled that CPP benefits were not deductible from shortfall owed to plaintiff by insurer. Insurer’s appeal was allowed. Plaintiff appealed. Appeal allowed. Ordinary meaning of words at issue was clear, reading Endorsement as whole. Average person applying for this additional insurance coverage would understand “policy of insurance” to mean optional, private insurance contract and not mandatory statutory scheme such as CPP. Insurer could not rely on its specialized knowledge of jurisprudence to advance interpretation that went beyond clear words of policy. Precedent relied on by insurer and appellate court with respect to meaning of “policy of insurance” was decided in very different interpretive context and did not support alternative reasonable interpretation. Future CPP disability benefits did not reduce amount payable by insurer.
Sabean v. Portage La Prairie Mutual Insurance Co. (2017), 2017 CarswellNS 38, 2017 CarswellNS 39, 2017 SCC 7, 2017 CSC 7, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellNS 472, 2015 NSCA 53, Beveridge J.A., Hamilton J.A., and Scanlan J.A. (N.S. C.A.).

Criminal Law

Offences

Sexual assault

Evidence of two experts was subjected to materially different levels of scrutiny

Accused was convicted of sexual assault. Majority of appellate court concluded that there was no basis for overturning accused’s conviction. Accused appealed. Appeal allowed. Because new trial had to be ordered, court did not need to finally decide whether impugned evidence of Crown’s DNA expert as to source of complainant’s DNA, found on accused’s penis, was or was not admissible. Assuming impugned evidence of Crown’s DNA expert was admissible, it was challenged by defence DNA expert as being speculative, and without any scientific foundation. On its face, there was no way of telling whether it was speculative, scientific or somewhere in between, and defence counsel did not explore this in cross-examination. Even though neither Crown nor defence counsel referred to impugned evidence in their closing addresses, trial judge accepted it at face value, without subjecting it to any scrutiny, and used it as important piece of evidence in finding accused guilty. At same time, trial judge subjected testimony of defence DNA expert to intense scrutiny. Materially different levels of scrutiny to which evidence of two experts was subjected was unwarranted, and it tended to shift burden of proof onto accused. Given importance that trial judge placed on impugned evidence in finding accused guilty, it could not be said that verdict would necessarily have been same had she not done so. Conviction was quashed, and new trial was ordered.
R. v. Awer (2017), 2017 CarswellAlta 47, 2017 CarswellAlta 48, 2017 SCC 2, 2017 CSC 2, Moldaver J., Karakatsanis J., Wagner J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 827, 2016 ABCA 128, Ronald Berger J.A., Jack Watson J.A., and Frederica Schutz J.A. (Alta. C.A.).

Administrative Law

Private law remedies

Damages for unlawful administrative action

Any tort claim against board was barred by s. 43 of Energy Resources Conservation Act (Alta.)

Plaintiff brought action against three defendants; energy corporation, conservation board and province. Claim against corporation was for alleged damage to water well which was source of fresh water for plaintiff’s home. Claim against board was for negligence in administration of regime and failure to respond to plaintiff’s concerns. Claim against province was based on resource development board’s alleged failure to protect plaintiff’s water supply or respond to complaints. Portions of statement of claim were struck. Plaintiff’s appeal was dismissed. Appellate court found case management judge correctly applied test for determining whether board owed private law duty of care. Appellate court found forcing board to consider extent to which it must balance interests of specific individuals while attempting to regulate overall public interest would be unworkable in fact and bad policy in law. Appellate court found case management judge correctly concluded that any tort claim was barred by s. 43 of Energy Resources Conservation Act. Appellate court found interpreting section so that board and its members would only be protected for about half of their conduct would be absurd Appellate court found case management judge correctly concluded that s. 43 of Act barred Canadian Charter of Rights and Freedoms claim. Plaintiff appealed. Appeal dismissed. Plaintiff did not successfully challenge constitutionality of s. 43 of Act. Damages were not appropriate and just remedy for Charter violations by board. Judicial review was appropriate remedy. Board had public duty of balancing several potentially competing rights, interests and objectives. Allowing claims for damages against board had potential to deplete board’s resources of money and time, and could result in defensive actions by board. Allowing Charter damages claims to be brought for board’s actions and decisions had potential to distort appeal and review process. Requiring case-by-case examination of particular claims undermined purpose of immunity.
Ernst v. Alberta Energy Regulator (2017), 2017 CarswellAlta 32, 2017 CarswellAlta 33, 2017 SCC 1, 2017 CSC 1, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanisn J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellAlta 1588, 2014 ABCA 285, Jean Côté J.A., Jack Watson J.A., and Frans Slatter J.A. (Alta. C.A.).

Constitutional Law

Charter of Rights and Freedoms

Nature of rights and freedoms

Appeal by teachers’ union was allowed

Defendant Crown in Right of Province amended schools legislation (“Old Act”), barring plaintiff teachers’ union from collectively bargaining certain elements of their working conditions, including class sizes, with school boards. Plaintiffs brought successful application for declaration that Old Act amendments were unconstitutional as they impaired plaintiffs’ right to freedom of association. Crown took no action within mandated one-year period and amendments became inoperative. Legislature enacted substantially identical provisions to ones declared inoperative (“New Act”). New Act provisions were found by trial judge to be unconstitutional and of no force or effect from point of enactment. Crown appealed successfully. Majority of Court of Appeal found that legislation was constitutional. Court of Appeal found that trial judge’s finding that Province did not consult in good faith was based on legal error. Court of Appeal found that pre-legislative consultations were relevant at infringement stage of constitutional analysis in freedom-of-association cases, and that trial judge erred on this issue. Court of Appeal found that pre-legislative consultations were not required to be with government acting as employer, and that trial judge erred in finding otherwise. Court of Appeal found that Province consulted in good faith, and that consultations and collective bargaining undertaken were adequate. Dissenting judge for Court of Appeal found that trial judge’s finding that passage of the bill was unconstitutional should be upheld. Dissenting judge found that trial judge was entitled to consider substantive reasonableness of Province’s negotiating position. Dissenting judge found that pre-legislative consultation could be replacement for traditional collective bargaining process, but only where it was meaningful, and that parties had to negotiate from approximate equality. Dissenting judge found that trial judge made no appealable error in finding that government consulted in bad faith. Plaintiffs appealed decision of Court of Appeal. Appeal allowed, substantially for reasons of dissenting judge in Court of Appeal.
BCTF v. British Columbia (2016), 2016 CarswellBC 3739, 2016 CarswellBC 3740, 2016 SCC 49, 2016 CSC 49, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 1113, 2015 BCCA 184, Bauman C.J.B.C., Donald J.A., Newbury J.A., Saunders J.A., and Harris J.A. (B.C. C.A.).

Privacy and Freedom of Information

Provincial privacy legislation

Miscellaneous

Commissioner could not compel production of records over which solicitor-client privilege asserted

Solicitor-client privilege. In context of constructive dismissal claim, delegate of Information and Privacy Commissioner of Alberta ordered production of records over which University had claimed solicitor-client privilege. Delegate issued Notice of Inquiry instructing University to provide copy of records at issue or two copies of affidavit or unsworn evidence verifying solicitor-client privilege over records. University declined to provide copy of withheld records, and instead provided list of documents identified by page number only and affidavit indicating solicitor-client privilege had been asserted over records. Delegate issued Notice to Produce Records under s. 56(3) of Freedom of Information and Protection of Privacy Act (FOIPP) requiring University to produce documents for review. University again did not comply, and sought judicial review of delegate’s decision to issue the Notice to Produce Record. Application judge found that s. 56(3) of FOIPP permitted Commissioner to compel production of disputed records to verify claims of solicitor-client privilege. Application judge also found that provisions of FOIPP did not work together effectively unless Commissioner had power to compel production of information over which privilege was alleged since FOIPP provided no other mechanism to review that type of claim. Application judge found that delegate had correctly issued notice, noting that University had refused to substantiate in any other way its claims of solicitor-client privilege. Court of Appeal allowed University’s appeal, concluding that Commissioner did not have statutory authority to compel production of records over which solicitor-client privilege was asserted. Commissioner appealed with Supreme Court of Canada. Appeal dismissed. Under FOIPP, solicitor-client privilege was no longer merely privilege of law of evidence, but substantive right that was fundamental to proper functioning of legal system. Disclosure of documents pursuant to statutorily established access to information regime, separate from judicial proceeding, engaged solicitor-client privilege in its substantive, rather than evidentiary context. Reading s. 56(3) of FOIPP in context of statute as whole supported conclusion that legislature did not intend to set aside solicitor-client privilege.
Alberta (Information and Privacy Commissioner) v. University of Calgary (2016), 2016 CarswellAlta 2247, 2016 CarswellAlta 2248, 2016 SCC 53, 2016 CSC 53, Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); affirmed (2015), 2015 CarswellAlta 574, 2015 ABCA 118, Patricia Rowbotham J.A., Myra Bielby J.A., and Russell Brown J.A. (Alta. C.A.).


Judges and courts

Jurisdiction

Exchequer and Federal Courts

Federal Court did not have jurisdiction over claim

Applicant, which was incorporated by special Act of Parliament, An Act to incorporate The Canadian Transit Company (“CTC Act”), owned and operated Canadian half of Ambassador Bridge connecting respondent city and Detroit, Michigan. Applicant had purchased more than 100 residential properties in respondent city with intention of eventually demolishing homes and using land to facilitate maintenance and expansion of bridge and its facilities. Respondent city issued repair orders against properties pursuant to municipal bylaw. Applicant applied to Federal Court for declarations to effect that applicant had certain rights under CTC Act which superseded bylaw and any repair orders issued under it. Respondent city brought successful motion to strike applicant’s notice of application on ground that Federal Court lacked jurisdiction to hear application, and applicant successfully appealed. Respondent city appealed. Appeal allowed. Federal Court did not have jurisdiction to decide whether respondent city’s bylaws applied to applicant’s residential properties. In order to decide whether Federal Court had jurisdiction over claim, it was necessary to determine essential nature or character of that claim. Stated generally, issue was whether Federal Court had jurisdiction to decide claim that municipal bylaw was constitutionally inapplicable or inoperative in relation to federal undertaking. First part of three-part test for jurisdiction, which required that federal statute grant jurisdiction to Federal Court, was not met. Applicant was not seeking relief “under an Act of Parliament or otherwise” as required by s. 23(c) of Federal Courts Act, and s. 23(c) of Federal Courts Act therefore did not grant jurisdiction over this application to Federal Court.
Windsor (City) v. Canadian Transit Co. (2016), 2016 CarswellNat 6466, 2016 CarswellNat 6467, 2016 SCC 54, 2016 CSC 54, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellNat 4835, 2015 CarswellNat 816, 2015 FCA 88, 2015 CAF 88, Eleanor R. Dawson J.A., David Stratas J.A., and A.F. Scott J.A. (F.C.A.).


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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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