MLB-Slaw Selected Case Summaries

Here you’ll find weekly summaries of selected cases provided to Slaw by Maritime Law Book’s National Reporter System.MLB-Slaw Selected Case SummariesTumblr (3.0; @slawcases)http://cases.slaw.ca/SlawMLBSelectedCaseSummarieshttp://feedburner.google.comNew Brunswick Housing Corp., Re 2013 NBQB 150<p><strong>Government Programs - <span>Housing - Rental accommodation - Termination, forfeiture and reentry</span></strong></p> <p>On November 22, 2012, the New Brunswick Housing Corp. (NB Housing) received Community Safety Warnings from an employee of the New Brunswick Department of Public Safety pursuant to the Safer Communities and Neighbourhoods Act with respect to certain public housing premises. The warnings alleged that the Department of Public Safety had received a complaint with respect to each of the premises alleging “habitual activities” relating to offences of illegal drug activity. The tenants were current with their monthly rental payments and there were no other issues with respect to their NB Housing leases except for the Community Safety Warnings issued by the Department of Public Safety. NB Housing issued eviction notices. The tenants sought reviews under the review process followed by NB Housing. The reviews were dismissed at both levels one and two. NB Housing applied for orders pursuant to the Landlord and Tenant Act to evict the tenants.</p> <p>The New Brunswick Court of Queen’s Bench, Trial Division, dismissed the applications.</p> <p><a href="http://files.slaw.ca/cases/nbhousing_2013-06-18.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+NBQB+150&IW_DATABASE=NBR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/LDgphb4bZLg" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/LDgphb4bZLg/53287626801http://cases.slaw.ca/post/53287626801Tue, 18 Jun 2013 13:16:49 -0400http://cases.slaw.ca/post/53287626801R. v. Gauthier (C.) 2013 SCC 32<p><strong>Criminal Law - <span>General principles - Mens rea or intention - Abandonment of intention</span></strong></p> <p>The accused and her husband had a murder/suicide pact to kill their three children and themselves by using a sophoric drug (oxazepam), purchased by the accused for that purpose, that was mixed in drinks. The husband prepared and served the drinks. The accused called 911 after ingesting the drug and having her wrist slit by her husband. She survived. The children and her husband did not. The accused was charged with three counts of first degree murder as a party under s. 21(1) of the Criminal Code (aider and abettor by supplying the fatal drug). The accused raised incompatible defences. First, she claimed to have been in a dissociative state when she purchased the drug, precluding her from forming the specific intent for murder. Alternatively, if the defence based on mens rea was rejected, she relied on the defence of abandonment of intent. The trial judge refused to put the abandonment defence to the jury, questioning the availability of the defence to a party under s. 21(1). The jury found the accused guilty on all counts. The accused appealed on the ground that the trial judge erred in not leaving the defence of abandonment with the jury.</p> <p>The Quebec Court of Appeal dismissed the appeal because an alternative defence that was incompatible with the defence’s principal theory could not be left with the jury. The accused appealed.</p> <p></p> <p>The Supreme Court of Canada, Fish, J., dissenting, dismissed the appeal. The defence of abandonment should not have been excluded on the basis that it was incompatible with the defence’s principal theory. However, since the defence lacked an air of reality, the trial judge correctly did not leave the defence with the jury. Fish, J., would have allowed the appeal on the ground that there was an air of reality to the defence of abandonment and that the defence should have been left with the jury.</p> <p><a href="http://files.slaw.ca/cases/gauthier_2013-06-18.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+32&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/7DbaveNLBr4" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/7DbaveNLBr4/53287423258http://cases.slaw.ca/post/53287423258Tue, 18 Jun 2013 13:13:38 -0400http://cases.slaw.ca/post/53287423258Futter et al. v. United Kingdom (Her Majesty's Revenue and Customs) [2013] UKSC 26<p><strong>Mistake - <span>Mistake of fact - General - Mistake of fact - What constitutes</span></strong></p> <p><u>Futter Case:</u></p> <p>This case involved a private family trust. Futter made two settlements. Initially both settlements had non-resident trustees, but subsequently Futter and Cutbill, both United Kingdom residents, were appointed as trustees. Cutbill was a partner in the firm of solicitors acting for the trustees and gave tax advice respecting the settlements. Acting on that legal advice, Futter and Cutbill distributed capital from the trust funds in the exercise of a power of enlargement and the power of advancement. The legal advice overlooked certain capital gains consequences such that the trustees also overlooked the tax consequences in distributing the funds. The trustees applied to have the deed of enlargement and deeds of advancement declared void on the basis of the Hastings-Bass rule. Revenue and Customs resisted the application. The trial judge allowed the application, holding that the advancements were vitiated under the Hastings-Bass rule and should be set aside. Revenue and Customs appealed.</p> <p>The England and Wales Court of Appeal (Civil Division), per Lloyd, L.J., in a decision with neutral citation [2011] EWCA Civ 197, allowed the appeal. The trustees’ acts of enlargement and advancement were within their powers under the respective settlements, and could not be held to be void. The trustees took advice from appropriate solicitors as to the tax consequences of what they were thinking of doing, and acted in accordance with that advice. Therefore, they did not act in breach of trust in making the enlargement and the advancements even though, because the advice was wrong, they were mistaken as to the tax consequences. The enlargement and the advancements were therefore not voidable. Futter appealed.</p> <p>The United Kingdom Supreme Court dismissed the appeal. The court generally agreed with the decision of Lloyd, L.J., as it related to the application of the Hastings-Bass rule.</p> <p><u>Pitt Case:</u></p> <p>Pitt became mentally incompetent because of head injuries sustained in a road traffic accident. His wife was appointed as Pitt’s receiver under the Mental Health Act. His claim for damages from the accident was compromised by a structured settlement of £1.2 m. Upon the advice of financial advisors, Pitt’s wife established a trust under the authority of the Court of Protection. Some years later it was discovered that the financial advisors failed to address the issue of inheritance tax and, if that matter had been considered, the trust could have been set up in a more advantageous manner. Pitt died. His personal representatives, who were also two of the trustees, commenced proceedings to have the trust set aside either under the Hastings-Bass rule or on the ground of mistake. Revenue and Customs resisted the application. The trial judge allowed the application and set aside the trust on the basis of the Hastings-Bass rule, but would not have done so on the basis of mistake. Revenue and Customs appealed.</p> <p>The England and Wales Court of Appeal (Civil Division), per Lloyd, L.J., in a decision with neutral citation [2011] EWCA Civ 197, allowed the appeal on the Hastings-Bass issue. What Pitt’s wife did was within the terms of the power conferred on her by the Court of Protection. It was therefore not void. She owed her husband a fiduciary duty in respect of her exercise of the power conferred on her by the Court of Protection. However, having taken advice from a proper source as to the advantages and disadvantages of the various courses open to her, she was not in breach of fiduciary duty even though, because of the inadequacy of the advice given, she did not take into account the liability that would arise. Accordingly, what she did was not voidable as having been done in breach of fiduciary duty. The court refused to set aside the trust on the basis of mistake. Pitt appealed.</p> <p></p> <p>The United Kingdom Supreme Court dismissed the appeal in so far as it turned on the Hastings-Bass rule, generally agreeing with the decision of Lloyd, L.J., on that issue. The court, however, allowed the appeal on the mistake issue, and set aside the trust on that basis.</p> <p><a href="http://files.slaw.ca/cases/futter_2013-06-18.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=%5B2013%5D+UKSC+26&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/-FeqVGTYKpI" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/-FeqVGTYKpI/53287289063http://cases.slaw.ca/post/53287289063Tue, 18 Jun 2013 13:11:32 -0400http://cases.slaw.ca/post/53287289063Manary v. Strban et al. 2013 ONCA 319<p><strong>Medicine - <span>Liability of practitioners - Negligence - Team leader (incl. Most Responsible Practitioner/Physician)</span></strong></p> <p>A pregnant woman was admitted to hospital with chest pains. On the day she was to leave the hospital she died of a ruptured aorta/aneurism. Her baby was delivered by an emergency Caesarian section. The woman’s family brought a medical negligence suit against an obstetrician, who pursuant to hospital policy was the Most Responsible Practitioner/Physician for the woman’s care, a radiologist and the respirologist.</p> <p>The Ontario Superior Court, in decision reported [2011] O.T.C. Uned. 176, dismissed the action against the radiologist and the respirologist, but allowed the action against the obstetrician. The obstetrician appealed.</p> <p></p> <p>The Ontario Court of Appeal, Doherty, J.A., dissenting, dismissed the appeal.</p> <p><a href="http://files.slaw.ca/cases/manary_2013-06-13.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ONCA+319&IW_DATABASE=OAC&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/M6opnwWLQ6A" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/M6opnwWLQ6A/52862880871http://cases.slaw.ca/post/52862880871Thu, 13 Jun 2013 08:06:08 -0400http://cases.slaw.ca/post/52862880871Canadian National Railway v. Seeley et al. 2013 FC 117<p><strong>Civil Rights - <span>Discrimination - Employment - What constitutes discrimination</span></strong></p> <p>Seeley complained that her employer, the Canadian National Railway (CN), discriminated against her based on family status by failing to accommodate her parental childcare obligations and by terminating her employment. The Canadian Human Rights Tribunal allowed the complaint. CN applied for judicial review.</p> <p></p> <p>The Federal Court dismissed the application.</p> <p><a href="http://files.slaw.ca/cases/cnr_2013-06-13.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+FC+1174&IW_DATABASE=FTR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/De8NTuP2peY" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/De8NTuP2peY/52862771263http://cases.slaw.ca/post/52862771263Thu, 13 Jun 2013 08:03:06 -0400http://cases.slaw.ca/post/52862771263APM Construction Services Inc. et al. v. Caribou Island Electric Ltd. et al. 2013 NSCA 62<p><strong>Building Contracts - <span>Labour and material payment bonds - Liability of surety - Extent of surety’s obligation</span></strong></p> <p>The Province of Nova Scotia retained APM Construction Services to act as the general contractor for renovations to one of its buildings. APM took out a payment bond with Travelers Guarantee Company of Canada. APM retained Caribou Island Electric Inc. to supply material and services on the project. Caribou retained a company carrying on business as Advance Cabling Systems (ACS) to supply material and services. The Canada Revenue Agency (CRA) served APM with an Enhanced Requirement to Pay with respect to debts owed by Caribou to the CRA totalling $183,351.44. ACS notified APM that it claimed a lien for $85,347.83 plus HST with respect to work performed on the project by it for Caribou. APM owed Caribou $94,441.36 for work performed. APM applied for an interpleader order (an order to pay the money owed to Caribou to an appointed person or into court) and ancillary relief.</p> <p>The Nova Scotia Supreme Court, 320 N.S.R.(2d) 71; 1014 A.P.R. 71, held that it was unnecessary to make an interpleader order and found that CRA was entitled to the funds that APM sought to pay into court. The court further found that Travelers was required to pay ACS the amount that it was owed by Caribou pursuant to the terms of the bond. The court directed APM to pay CRA $94,441.36 and Travelers to pay ACS $86,201.64. The parties subsequently consented to an order dismissing the lien action as against APM and the Province. The action remained outstanding as against Caribou only. The funds were paid as directed by the court. APM and Travelers appealed. ACS and the Province cross-appealed. The following issues were raised: (1) whether the court erred by failing to discharge APM’s obligations under the Builders’ Lien Act; (2) whether the court erred by failing to discharge APM and Travelers of their obligations to ACS under the Bond; and (3) whether the court erred in failing to make an award of costs and disbursements in favour of ACS and the Province.</p> <p></p> <p>The Nova Scotia Court of Appeal allowed the appeal in part and discharged APM of its obligations under the Builders’ Lien Act. The court otherwise dismissed the appeal and cross-appeal.</p> <p><a href="http://files.slaw.ca/cases/apm_2013-06-13.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+NSCA+62&IW_DATABASE=NSR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/WzJujnPaj8c" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/WzJujnPaj8c/52862678587http://cases.slaw.ca/post/52862678587Thu, 13 Jun 2013 08:00:46 -0400http://cases.slaw.ca/post/52862678587R. v. S.J.B. 2013 ABCA 153<p><strong>Criminal Law - <span>Sentencing - Considerations on imposing sentence - Mental illness or disorder</span></strong></p> <p>The accused (Ms. B, 34 years old), pled guilty to manslaughter, attempted murder, and failure to provide necessities of life. The victim of the manslaughter offence was Ms. B’s 10 month old son ( a “soft smothering”, to stop his crying). Six years later, Ms. B attempted to murder her five year old son. For two hours she repeatedly impeded his breathing by suffocation or strangulation. He suffered permanent brain damage and was severely physically disabled. The evidence established that Ms. B was suffering from mental disorders. The Crown sought a global sentence of 18 years’ imprisonment.</p> <p>The Alberta Provincial Court, in a decision reported at [2012] A.R. TBEd. JL. 039, imposed a global sentence of 13 years’ imprisonment, less a pre-trial custody credit of three years, five months. The Crown appealed.</p> <p>The Alberta Court of Appeal, McDonald, J.A., dissenting, dismissed the appeal. “Although the sentence imposed is at the low end of the range, appellate interference is not warranted.” The sentencing judge took “full account of the egregious circumstances … but was equally mindful of the personal circumstances and the psychiatric assessment” going to Ms. B’s moral blameworthiness, including her “borderline IQ of 72” and “disordered personality structure”. McDonald, J.A., would have allowed the appeal, resulting in a global sentence of 18 years.</p> <p></p> <p>Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.</p> <p><a href="http://files.slaw.ca/cases/SJB_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ABCA+153&IW_DATABASE=AR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/W0uktg7RAgg" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/W0uktg7RAgg/52147887103http://cases.slaw.ca/post/52147887103Tue, 04 Jun 2013 12:51:38 -0400http://cases.slaw.ca/post/52147887103Jubenville v. Jubenville et al. 2013 ONCA 302<p><strong>Insurance - <span>Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - Insured defined </span></strong></p> <p>The plaintiff (Ashley) was five years old when she was injured in a single vehicle motor vehicle accident while a passenger in her father’s vehicle which was uninsured. Ashley’s mother had insurance on two other vehicles. An issue arose as to whether the father’s vehicle fell within the definition of “uninsured automobile” in the mother’s standard automobile insurance policy such as to entitle Ashley to claim pursuant to the uninsured provisions in the mother’s policy.</p> <p>The Ontario Superior Court, in a decision reported [2012] O.T.C. Uned. 5678, held that the father’s vehicle qualified as an uninsured automobile such that Ashley could make a claim. The father, the mother’s insurer and the Superintendent of Financial Services appealed.</p> <p></p> <p>The Ontario Court of Appeal dismissed the appeal.</p> <p><a href="http://files.slaw.ca/cases/jubenville_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ONCA+302&IW_DATABASE=OAC&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p> </p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/uxvlyq5-bho" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/uxvlyq5-bho/52147765779http://cases.slaw.ca/post/52147765779Tue, 04 Jun 2013 12:49:31 -0400http://cases.slaw.ca/post/52147765779Cojocaru v. British Columbia Women's Hospital and Health Center et al. 2013 SCC 30<p><strong>Courts - <span>Judges - Duties - Re reasons for decisions</span></strong></p> <p>The plaintiff mother was a high risk pregnancy patient. While virtually unsupervised, her uterus ruptured and her unborn plaintiff son suffered an asphyxial insult resulting in permanent brain damage (cerebral palsy). The plaintiffs brought a medical negligence action against the defendants (three doctors, a nurse and the hospital).</p> <p>The British Columbia Supreme Court, in a judgment reported [2009] B.C.T.C. Uned. 494 found all five defendants liable and awarded damages of $4 million. The trial judge’s reasons for judgment consisted largely of a reproduction, without acknowledgment, of the plaintiffs’ written closing submissions. The trial judge did not accept all of the plaintiffs’ submissions, discussed a number of issues, stated his final conclusions in his own words and varied the quantum of damages requested by the plaintiffs. Two appeals were brought by the defendants. At issue was whether the trial judge erred in delivering reasons for judgment that largely reproduced the successful parties’ written closing submissions.</p> <p>The British Columbia Court of Appeal, K. Smith, J.A., dissenting, in a judgment reported (2011), 303 B.C.A.C. 278; 512 W.A.C. 278, allowed the appeals, quashed the judgment and ordered a new trial. The court was not satisfied that the trial judge independently and impartially considered the law and the evidence to arrive at his own conclusions on the complex issues before him. The plaintiffs appealed. Two of the defendants (nurse and hospital) cross-appealed. At issue was whether the trial judge’s decision should have been set aside because it copied large portions of the plaintiffs’ submissions and, if not, did the trial judge’s decision disclose palpable and overriding errors of fact or legal error.</p> <p>The Supreme Court of Canada allowed the appeal and cross-appeal. The court stated that “the incorporation of large portions of the plaintiffs’ submissions in the reasons in this case does not justify overturning the trial judge’s decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. This said, aspects of the reasons disclose palpable and overriding error and must be set aside”. The plaintiffs were entitled to damages as assessed by the trial judge against one defendant (Dr. Yue), but the action as against the remaining four defendants (two doctors, nurse and hospital) was dismissed.</p> <p><a href="http://files.slaw.ca/cases/cojocaru_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+30&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/tMVZGlMV4UA" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/tMVZGlMV4UA/52147642086http://cases.slaw.ca/post/52147642086Tue, 04 Jun 2013 12:47:19 -0400http://cases.slaw.ca/post/52147642086Branco v. American Home Assurance Co. et al. 2013 SKQB 98<p><strong>Damage Awards - <span>Exemplary or punitive damages - Breach of contract</span></strong></p> <p>Branco, at age 58, developed reflex sympathetic dystrophy in his right foot after two injuries while working as a welder for the Kumtor Operating Co. in Kyrgyzstan. He had not worked since March 2000. Branco started this action in 2001. He claimed that American Home Assurance (AIG) and Zurich Life Insurance wrongfully denied him disability and medical benefits, and that Kumtor and its parent company (Cameco) breached the employment contract by not providing disability and medical benefits. The issues included evidentiary and choice of law issues, whether AIG and Zurich breached the duty of good faith and fair dealing, whether Branco was entitled to aggravated damages or damages for mental distress, and whether punitive damages should be awarded.</p> <p></p> <p>The Saskatchewan Court of Queen’s Bench assessed punitive damages against Zurich in the amount of $3 million, and against AIG in the amount of $1.5 million. The court assessed aggravated damages against Zurich in the amount of $300,000, and against AIG in the amount of $150,000. Both AIG and Zurich failed to deal with Branco’s claim in good faith. “The actions of AIG and Zurich establish a pattern of abuse of an individual suffering from financial and emotional vulnerability.”</p> <p><a href="http://files.slaw.ca/cases/branco_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SKQB+98&IW_DATABASE=SASKR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/adC8ye8enpc" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/adC8ye8enpc/52147473926http://cases.slaw.ca/post/52147473926Tue, 04 Jun 2013 12:44:22 -0400http://cases.slaw.ca/post/52147473926Boyce v. Co-Operators General Insurance Co. 2013 ONCA 298<p><strong>Insurance - <span>Multi-peril property insurance - General - Limitation period</span></strong></p> <p>The insured claimed that their retail store was damaged by vandals in October 2010 and filed a proof of loss in December 2010. The insurer denied coverage. The insured commenced an action against the insurer in February 2012, more than one year, but less than two years after the incident. The insurer moved for summary judgment, claiming that the action was out of time by virtue of the one year limitation period in the insurance policy.</p> <p>The Ontario Superior Court, in a decision reported [2012] O.T.C. Uned. 6381, dismissed the motion for summary judgment. The court held that the provision in the policy limiting coverage to claims made within one year of the loss did not override the statutory two-year limitation period set out in s. 4 of the Limitations Act. The insurer appealed.</p> <p></p> <p>The Ontario Court of Appeal allowed the appeal, set aside the order below and dismissed the action insofar as it was based on a claim made under the insurance policy.</p> <p><a href="http://files.slaw.ca/cases/boyce_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ONCA+298&IW_DATABASE=OAC&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p> </p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/tlNrqAJCYwg" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/tlNrqAJCYwg/52147343621http://cases.slaw.ca/post/52147343621Tue, 04 Jun 2013 12:42:07 -0400http://cases.slaw.ca/post/52147343621R. v. Amell (D.P.) 2013 SKCA 48<p><strong>Criminal Law - <span>General principles - Rights of accused - Right to be present at trial</span></strong></p> <p>Douglas Amell practised naturopathy through his incorporated clinic, and was the sole director and shareholder of the corporation. His wife (Heidi) and his father (Robert) were employed by the corporation. Douglas, Heidi and Robert participated in a scheme, masterminded by Douglas, where they signed a “contract for hire” as a “natural person” and received compensation in exchange for property (their time and labour), without the compensation counting as taxable income. Each were charged with summary conviction offences under the Income Tax Act.</p> <p>The Saskatchewan Provincial Court, in a decision reported at 361 Sask.R. 61, found each guilty as charged. Douglas was sentenced to 16 months’ imprisonment and fined the amount of the unpaid taxes (over $170,000). Heidi was sentenced to five months’ imprisonment, while Robert was sentenced to three months, and both were ordered to pay fines in the amount of the tax evaded. Each appealed both conviction and sentence.</p> <p>The Saskatchewan Court of Queen’s Bench, in a decision reported at 391 Sask.R. 196, dismissed the appeals. Each appealed both conviction and sentence.</p> <p></p> <p>The Saskatchewan Court of Appeal dismissed the appeals of conviction and sentence of Douglas and Robert. The appeal of Heidi was allowed, her convictions set aside, and a new trial ordered.</p> <p><a href="http://files.slaw.ca/cases/amell_2013-06-04.pdf"><span><em>Link to PDF of complete summary</em></span></a><br/><span></span></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SKCA+48&IW_DATABASE=SASKR&IW_BATCHSIZE=20&IW_SORT=-11"><span><em>Link to full judgment</em></span></a></p> <p><span></span></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/PVx9iFSY224" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/PVx9iFSY224/52147071701http://cases.slaw.ca/post/52147071701Tue, 04 Jun 2013 12:37:00 -0400http://cases.slaw.ca/post/52147071701Manitoba Métis Federation Inc. v. Canada (Attorney General) 2013 SCC 14<p><strong>Civil Rights - Constitutional Law - Indians, Inuit and Métis</strong></p> <p>Manitoba entered Confederation on July 15, 1870, following the passage of the <span>Manitoba Act, 1870. Section 31 of the Act provided for grants of land in Manitoba to Métis </span><span>children. Section 32 of the Act contained quieting of title provisions to assure recognition of </span><span>existing property rights. In 1981, the plaintiffs, the Manitoba Metis Federation Inc. (MMF) </span><span>and 17 individuals (Métis), commenced an action for declaratory relief against Canada and </span><span>Manitoba.</span></p> <p>The Manitoba Court of Queen’s Bench, in a decision reported 223 Man.R.(2d) 42, <span>refused to grant any of the declarations sought by the plaintiffs and dismissed their claims in </span><span>their entirety. The court held, inter alia: (1) that the MMF lacked standing to pursue the action; </span><span>(2) the plaintiffs’ action, having been commenced in 1981, was statute barred by the </span><span>Limitation of Actions Act (Man.); (3) the doctrine of laches and acquiescence applied and </span><span>were a complete defence to the plaintiffs’ claim; and (4) there was no fiduciary relationship </span><span>between Canada and the Métis, nor was the doctrine of honour of the Crown implicated. The </span><span>plaintiffs appealed.</span></p> <p>The Manitoba Court of Appeal, in a decision reported 255 Man.R.(2d) 167; 486 <span>W.A.C. 167, dismissed the appeal. The plaintiffs appealed.</span></p> <p>The Supreme Court of Canada, Rothstein and Moldaver, JJ., dissenting, allowed the <span>appeal in part. The court held that the MMF should be granted standing. The obligations in ss. </span><span>31 and 32 of the Manitoba Act did not impose a fiduciary duty on the Crown. However, the </span><span>Métis were entitled to a declaration that the federal Crown failed to implement the land grant </span><span>provision set out in s. 31 in accordance with the honour of the Crown. The plaintiffs’ claim </span><span>based on the honour of the Crown was not barred by the law of limitations or the equitable </span><span>doctrine of laches. The court agreed with the courts below that the s. 32 claim was not </span><span>established and found it unnecessary to consider the constitutionality of the implementing </span><span>statutes.</span></p> <p>Editor’s Note: *Deschamps, J., took no part in the judgment.</p> <p><a href="http://files.slaw.ca/cases/metis_2013_06_02.pdf"><em>Link to PDF of complete summary</em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+14&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><em>Link to full judgment</em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/Qxw8POYQZwk" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/Qxw8POYQZwk/51575699230http://cases.slaw.ca/post/51575699230Tue, 28 May 2013 14:58:15 -0400http://cases.slaw.ca/post/51575699230R. v. J.F. 2013 SCC 12<p><strong>Criminal Law - Evidence - Parties to offences - Party to <span>conspiracy</span></strong></p> <p>The accused youth was convicted by a judge and jury of conspiracy to commit murder <span>and was sentenced to an 18 month custody and supervision order. The youth appealed both </span><span>conviction and sentence. The youth submitted that the trial judge erred (1) in leaving liability </span><span>as a party (Criminal Code, s. 21(1)) with the jury; (2) in admitting hearsay evidence under the </span><span>co- conspirator’s exception to the hearsay rule (and misdirected the jury on the application of </span><span>that exception); (3) in admitting evidence of the youth’s bad character; (4) in admitting the </span><span>youth’s police interview or failing to edit that interview; (5) in misdirecting the jury respecting </span><span>the use of the youth’s denial of guilt in the interview; (6) in failing to adequately state the </span><span>position of the defence; and (7) in failing to give a Vetrovec warning respecting two Crown </span><span>witnesses. The sentence appeal submitted that the trial judge erred in finding that the youth </span><span>committed a violence offence under s. 39(1)(a) of the Youth Criminal Justice Act and in </span><span>identifying a lack of remorse as an aggravating factor.</span></p> <p>The Ontario Court of Appeal, in a judgment reported (2011), 276 O.A.C. 292, <span>dismissed the conviction appeal, but allowed the sentence appeal, reducing the sentence to </span><span>eight months’ custody followed by four months’ conditional supervision. The youth appealed </span><span>his conviction with leave. The primary issue was whether a person could be found liable as a </span><span>party to the offence of conspiracy and, if so, under what circumstances.</span></p> <p>The Supreme Court of Canada dismissed the appeal. </p> <p><span>Editor’s Note: Certain names in the following case have been initialized or the case otherwise </span><span>edited to prevent the disclosure of identities where required by law, publication ban, Maritime </span><span>Law Book’s editorial policy or otherwise.</span></p> <p><a href="http://files.slaw.ca/cases/JF_2013_06_02.pdf"><em><span>Link to PDF of complete summary</span></em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+12&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><em><span>Link to full judgment</span></em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/R5g282evh-E" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/R5g282evh-E/51575282645http://cases.slaw.ca/post/51575282645Tue, 28 May 2013 14:51:52 -0400http://cases.slaw.ca/post/51575282645Enbridge Gas New Brunswick Limited Partnership et al. v. New Brunswick (Attorney General) 2013 NBCA 34<p><strong>Administrative Law - Jurisdiction of particular boards and tribunals - Energy and utility <span>boards</span></strong></p> <p>Enbridge Gas et al. (the applicants) applied for a declaration that s. 4(1) of Regulation <span>2012-49 under the Gas Distribution Act, 1999 (N.B.) was invalid as being ultra vires.</span></p> <p>The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at <span>392 N.B.R.(2d) 363; 1016 A.P.R. 363, dismissed the application. Section 4(1) of the Regulation </span><span>was intra vires. The applicants appealed.</span></p> <p>The New Brunswick Court of Appeal allowed the appeal and declared that that part of s. <span>4(1) of the Regulation dealing with the “revenue to cost ratio” was beyond the regulation-making </span><span>authority of the Lieutenant-Governor in Council.</span></p> <p><a href="http://files.slaw.ca/cases/enbridge_2013_06_02.pdf"><em><span>Link to PDF of complete summary</span></em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+NBCA+34&IW_DATABASE=NBR&IW_BATCHSIZE=20&IW_SORT=-11"><em><span>Link to full judgment</span></em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/4zUOKPYWYQY" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/4zUOKPYWYQY/51574875557http://cases.slaw.ca/post/51574875557Tue, 28 May 2013 14:45:40 -0400http://cases.slaw.ca/post/51574875557R. v. Blacklaws (F.O.) 2013 SCC 8<p><strong>Criminal Law - <span>Charge or count - </span></strong><strong>Severing counts in an indictment</strong></p> <p>The accused was charged in one indictment with a number of offences involving two <span>sex trade workers for offences committed 2.5 months apart. The accused approached each </span><span>worker in his vehicle, asked them to purchase crack cocaine for him, drove them to a secluded </span><span>area and assaulted both of them (sexually assaulted only the first worker). The trial judge </span><span>dismissed the accused’s severance application, finding that the benefits of hearing all counts </span><span>together outweighed any risk of prejudice to the accused. A jury subsequently found the </span><span>accused guilty on all counts. The accused appealed on the sole ground that the judge erred in </span><span>refusing severance.</span></p> <p>The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a judgment <span>reported (2012), 322 B.C.A.C. 107; 549 W.A.C. 107, allowed the appeal and ordered a new </span><span>trial on the ground that denial of severance resulted in an injustice. The Crown appealed.</span></p> <p>The Supreme Court of Canada allowed the appeal, ageeing with the dissenting reasons <span>of Finch, C.J.C.</span></p> <p>Editor’s Note: Certain names in the following case have been initialized or the case otherwise <span>edited to prevent the disclosure of identities where required by law, publication ban, Maritime </span><span>Law Book’s editorial policy or otherwise.</span></p> <p><a href="http://files.slaw.ca/cases/blacklaws_2013_06_02.pdf"><em><span>Link to PDF of complete summary</span></em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+8&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><em><span>Link to full judgment</span></em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/gcGdeUjSceE" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/gcGdeUjSceE/51574325784http://cases.slaw.ca/post/51574325784Tue, 28 May 2013 14:37:05 -0400http://cases.slaw.ca/post/51574325784R. v. Bélanger (F.) 2013 SCC 7<p><strong>Criminal Law - <span>Motor vehicles - Dangerous driving</span></strong></p> <p>The accused was charged with dangerous driving causing death to Rostand and <span>dangerous driving causing bodily harm to Bisson.</span></p> <p>The Court of Quebec convicted the accused. The accused appealed.</p> <p>The Quebec Court of Appeal, in a decision reported at 2011 QCCA 1598, allowed the <span>appeal, set aside the convictions and substituted acquittals. The Crown appealed.</span></p> <p>The Supreme Court of Canada allowed the appeal and restored the convictions. The <span>court remanded the case to the Court of Quebec for sentencing.</span></p> <p><a href="http://files.slaw.ca/cases/belanger_2013_06_02.pdf"><em><span>Link to PDF of complete summary</span></em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+7&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><em><span>Link to full judgment</span></em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/t81XMNITJGY" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/t81XMNITJGY/51573996628http://cases.slaw.ca/post/51573996628Tue, 28 May 2013 14:31:48 -0400http://cases.slaw.ca/post/51573996628R. v. Buzizi (D.) 2013 SCC 27<p><strong>Criminal Law - Murder - Provocation - Evidence and proof</strong></p> <p>The accused was convicted of second degree murder. He appealed.</p> <p>The Quebec Court of Appeal, Bich, J.A., dissenting, dismissed his appeal. The accused <span>appealed as of right.</span></p> <p>The Supreme Court of Canada, LeBel and Wagner, JJ., dissenting, allowed the appeal and <span>ordered a new trial.</span></p> <p><a href="http://files.slaw.ca/cases/buzizi_2013_05_26.pdf"><em><span>Link to PDF of complete summary</span></em></a></p> <p><a href="%20http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+SCC+27&IW_DATABASE=NR&IW_BATCHSIZE=20&IW_SORT=-11"><em><span>Link to full judgment</span></em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/4CxBcdQ8C3g" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/4CxBcdQ8C3g/51020224347http://cases.slaw.ca/post/51020224347Tue, 21 May 2013 18:22:08 -0400http://cases.slaw.ca/post/51020224347Kikino Métis Settlement v. Métis Settlements Appeal Tribunal 2013 ABCA 151<p><strong>Indians, Inuit and Metis - Personal or legal rights - General - Wills and estates</strong></p> <p>Pruden owned two quarter sections of land (farm quarter and home quarter) on the Kikino <span>Métis Settlement. He died without leaving estate instructions under s. 7.6 of the Métis </span><span>Settlements General Council Land Policy. Since Pruden’s wishes were not known, and he did not </span><span>have a spouse, his estate stood to be distributed in accordance with any agreement of his heirs, </span><span>i.e., his seven children. The Council attempted to arrange a meeting of the potential heirs, or a </span><span>mediation, in order to ascertain the wishes of the potential heirs, but those efforts were </span><span>unsuccessful. The Council directed a distribution. Three heirs appealed to the Métis Settlements </span><span>Appeal Tribunal. The Appeal Tribunal found that by the time the dispute reached it, there was a </span><span>“substantial agreement” among the beneficiaries, which invoked s. 7.13(1)(d) of the Land Policy, </span><span>because four out of six heirs had now agreed on a solution. While the Land Policy then dictated </span><span>that the estate should be distributed in accordance with the “substantial agreement”, the Appeal </span><span>Tribunal concluded that the proposed distribution was impractical. The Appeal Tribunal </span><span>concluded that the estate should be distributed based on the “principles underlying the </span><span>agreement” and proposed its own distribution. The Council appealed.</span></p> <p>The Alberta Court of Queen’s Bench allowed the appeal.</p> <p><a href="http://files.slaw.ca/cases/kikino_2013_05_26.pdf"><em>Link to PDF of complete summary</em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ABCA+151&IW_DATABASE=AR&IW_BATCHSIZE=20&IW_SORT=-11"><em>Link to full judgment</em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/AxtJgruzQXA" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/AxtJgruzQXA/51019902055http://cases.slaw.ca/post/51019902055Tue, 21 May 2013 18:17:57 -0400http://cases.slaw.ca/post/51019902055Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd. 2013 ONCA 264<p><strong>Crown - Crown immunity - Exceptions - Benefit/burden or waiver exception</strong></p> <p>Lantheus Medical Imaging Inc., an American pharmaceutical company, used medical <span>isotopes produced by Atomic Energy of Canada Ltd.’s (AECL) nuclear reactor at Chalk River in </span><span>the manufacture of its products. Lantheus suffered losses estimated at more than $70 million as a </span><span>result of the extended closure of AECL’s reactor commencing in May of 2009. Lantheus sued its </span><span>insurer for indemnification (US action). Lantheus sought information from AECL through a </span><span>request under the Access to Information Act. Shortly after it filed that request, it obtained a Letter </span><span>of Request (LoR) from the United States District Court (US court). The LoR sought the </span><span>assistance of the Ontario courts in securing documents and viva voce testimony from AECL for </span><span>use at the trial of the US action. Lantheus applied, under s. 60 of the Ontario Evidence Act </span><span>(OEA), seeking an order giving effect in Ontario to the LoR. An application judge dismissed the </span><span>application. Lantheus appealed</span></p> <p>The Ontario Court of Appeal allowed the appeal and issued an order enforcing the LoR.</p> <p><a href="http://files.slaw.ca/cases/lantheus_2013_05_26.pdf"><em>Link to PDF of complete summary</em></a></p> <p><a href="http://search.mlb.nb.ca/?IW_FIELD_TEXT=2013+ONCA+264&IW_DATABASE=OAC&IW_BATCHSIZE=20&IW_SORT=-11"><em>Link to full judgment</em></a></p><img src="http://feeds.feedburner.com/~r/SlawMLBSelectedCaseSummaries/~4/q8Gre5mvctA" height="1" width="1"/>http://feedproxy.google.com/~r/SlawMLBSelectedCaseSummaries/~3/q8Gre5mvctA/51019550993http://cases.slaw.ca/post/51019550993Tue, 21 May 2013 18:13:22 -0400http://cases.slaw.ca/post/51019550993