Case Mail v. 17 no. 2
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Volume 17, No. 2
January 15, 2015
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Case table
Subject Index
Aboriginal Law – Reserves
and Real Property
Administrative Law –
Arbitration – Collective
Agreement
Administrative Law –
Judicial Review –
Saskatchewan Liquor and
Gaming Regulations Act –
Alcohol Consumption after
Closing Time
Bankruptcy and Insolvency
– Conditional Discharge –
Factors
Civil Procedure – Appeal –
Leave to Appeal
Civil Procedure – Noting for
Default – Application to Set
Aside
Civil Procedure – Queen’s
Bench Rule 5-12
Contract Law – Breach –
Damages
Contract Law –
Interpretation
Contracts – Breach –
Damages
Criminal Law – Aboriginal
Offender – Sentencing
Criminal Law – Appeal –
Conviction
Criminal Law – Assault
Criminal Law – Assault –
Aboriginal Law – Reserves and Real Property
Statutes – Interpretation – Natural Resources Transfer Agreement, Section 11
Torts – Trespass
Peter Ballantyne Cree Nation v. Canada (Attorney General), 2014 SKQB 327 - Court of
Queen's Bench, Smith, October 7, 2014 (QB14304)
The plaintiffs brought several causes of actions against the defendants. The defendants
brought an application for summary judgment pursuant to Queen’s Bench rules 7-2 and
7-3 to determine whether the matter was statute-barred under The Limitations of
Actions Act (1978) or by The Public Officers’ Protection Act (POPA) and that there was
no genuine issue for trial. The Peter Ballantyne Cree Nation (PBCN) is located on
Indian Reserve 200 at the south end of Reindeer Lake near the outlet to the Reindeer
River. The reserve was set aside pursuant to Treaty 6 in 1876. In 1928, the Churchill
River Power Company (CRPC) was authorized by Canada to develop and operate the
Island Falls Dam on the Churchill River. In 1938, after plans to erect another dam on
the same river were put in motion, the CRPC contacted the Secretary of Indian Affairs,
among others, regarding the plan and the effects of the dam and the water storage that
would accompany it, and informed him that the project had been approved by the
Reserve’s Indian agent. The secretary then authorized the proposed construction of the
Whitesand Dam on the same river. In 1943, the dam was completed and it caused
flooding of a portion of the plaintiff’s reserve. The water stored in Reindeer Lake could
be released or held back by barriers known as stop logs. Regardless of how many stop
logs are used, a portion of the reserve remains flooded, varying from 200 to 640 acres.
The Natural Resources Transfer Agreement transferred the responsibility for the water
and the dams to Saskatchewan. The CRPC operated the dams until its licence expired
in 1981 when Saskatchewan Power Corporation was designated. In 1981, PBCN
retained legal counsel to investigate a claim for trespass due to flooding and sent
demand letters to all of the defendant parties. The statement of claim was filed in 2004
but no further action was taken until September 2013 when the plaintiffs filed an
amended statement of claim. The causes of action included: 1) against Canada, a
breach of the honour of the Crown based upon s. 11 of the NRTA, which created a
constitutional obligation specific to PBCN as Crown was administer Indian reserves for
the benefit of the bands to which they had been allotted; 2) against Canada, a breach
of the duty to consult because there was no consultation prior to the Crown’s consent
for construction of both dams. The plaintiffs claim for damages for a past failure as well
as a present and continuing failure to consult based on the adverse impact on hunting,
fishing and trapping rights that arises each time the stop logs are added or removed to
fluctuate the depth of the water on the flooded land; 3) against Canada, a breach of its
fiduciary duty arising out of the honour of the Crown. The duty owed to PBCN was to
act in the best interest of the band to protect its possessory interest in the reserve prior
to the issuance of the licence to CRPC. The failure to do so resulted in the flooding. As
the land was never surrendered and continues to be flooded, the duty remains and the
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Sexual Assault
Criminal Law – Assault –
Sexual Assault – Consent
Criminal Law –
Breathalyzer – Demand for
Sample – Reasonable and
Probable Grounds
Criminal Law – Controlled
Drugs and Substances Act
– Forfeiture
Criminal Law – Defences –
Necessity – Appeal
Criminal Law – Mischief
Criminal Law – Motor
Vehicle Offences – Driving
with Blood Alcohol
Exceeding .08
Criminal Law – Murder –
Second Degree – Appeal
Criminal Law – Selfrepresented Litigant
Criminal Law – Theft
Family Law – Appeal
Family Law – Child Support
Family Law – Child Support
– Determination of Income
Family Law – Child Support
– Retroactive
Municipal Law –
Expropriation –
Compensation
Professions and
Occupations – Lawyers –
Fees
Real Property – Vesting
Order – Queen’s Bench
Act, 1998, Section 12
Small Claims – Appeal
Statutes – Interpretation –
Local Improvements Act,
1993
fiduciary breach continues. The plaintiffs sought a declaration of possession and or in
the alternative, damages; and 4) against the CRPC (now Hudson Bay Mining and
Smelting (HBMS)), SaskPower and Saskatchewan, the plaintiffs alleged that trespass
had been committed and because the injurious conduct of adding and removing stop
logs continues, it is a continuing tort and therefore not statute-barred. If damages were
found to be the only remedy available, the plaintiffs asserted that provincial limitation
statutes did not apply to bar these claims.
HELD: The court held that this was an appropriate case in which to give summary
judgment as the germane facts were not in dispute and it could decide how the law
would be applied to the facts. The court held with respect to the plaintiffs’ grounds that:
1) the honour of the Crown was not engaged. It arises upon a solemn promise, but the
NRTA did not create such a promise. Section 11 only ensured that the federal
government would continue to recognized Aboriginal rights already in existence when it
transferred control and responsibility for natural resources to Saskatchewan and
therefore did not create an constitutional obligation; 2) the present duty to consult could
not arise because there is no new or novel impairment of Aboriginal rights. The band
members are and have been precluded from hunting and fishing on the same area of
land since the time of the original act. A failure to consult cannot be brought against a
third party, SaskPower, a Crown Corporation that is a separate entity from the province
and owes no fiduciary duty to PBCN. The court held that the plaintiffs’ ability to recover
damages for any past breaches of the duty would be determined within the analysis of
the limitation period; 3) the authorization for the licence given with the apparent and
ostensible authority of the Indian agent on behalf of PBCN, from which it could be
inferred that Canada gave its consent for the dam. The consent did not amount to a
transfer of the land and alienation of title, just use and possession. In not surrendering
the land, the court held that the band was not entitled to a claim for a continuing
breach of fiduciary duty because it was known at the time that the dam was proposed
that permanent water storage was required. Therefore, CRPC would have believed and
was entitled to rely on the ostensible consent was given to long-term flooding. PBCN
was found to be estopped from asserting that they were now not bound by the
agreement. Concerning the plaintiffs’ claim for damages against Canada for breach of
fiduciary duty, it arose at the time of discovery of the material facts in 1939 when the
authorization for the project was given to CRPC. If the plaintiffs can recover from such
breach rested on whether provincial limitations legislation applies; and 4) that this is not
a case of continuing trespass. It did not involve a structure or object that had not been
removed by the defendants in this case. The dams are not located on the reserve and
the trespass occurs as a result of flooding because of the dam’s operation. The
flooding has persisted since 1942-43 and no new harm has arisen – the same lands
are affected. Any claim for trespass would have to have been made at the time of
discovery of material damage in 1942; Provincial limitations legislation applied to bar
the claims for damages arising from breach of fiduciary duty, failure to consult and
trespass, which all arose between 1939 and 1942. The Limitations of Actions Act
(1978) and POPA would apply to the matter and their respective limitation periods have
expired. The court declined to exercise its discretion under s. 2(1)(b) of POPA to
extend the limitation period because the plaintiffs had had many years in which to bring
their claim.
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Administrative Law – Arbitration – Collective Agreement
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Statutes – Interpretation –
Saskatchewan Employment
Act, Section 6-78
Administrative Law – Arbitration – Judicial Review
Administrative Law – Judicial Review – Standard of Review
Statutes – Interpretation – University of Saskatchewan Act, Section 51
Trusts and Trustees – Trust
Agreement – Interpretation
University of Saskatchewan v. University of Saskatchewan Faculty Association, 2014
SKQB 299 - Court of Queen's Bench, Laing, September 16, 2014 (QB14289)
Cases by Name
Baltic Properties and
Developments Inc. v.
Rajbar
Belly Up Pub & Grill v.
Saskatchewan Liquor and
Gaming Licensing
Commision
Bittner v. Wutzke
Bruce v. Dan Leonard Auto
Sales Ltd.
Bulischak v. Kriewaldt
Chaina v. Cove
CLR Construction Labour
Relations Association of
Saskatchewan v.
International Association of
Heat and Frost Insulators
and Asbestos Workers,
Local 119
Colhoun v. Lumsden (Rural
Municipality No. 189)
deBalinhard v. deBalinhard
The university applicant applied for a review of the arbitrator’s decision that remitted a
tenure decision back to the Board of Governors to consider the Tenure Appeals
Committee decision as if it had been transmitted to them by the president of the
university. The Faculty Association filed a grievance on behalf of a professor approved
for tenure by the Tenure Appeals Committee. The tenure decision was reversed by the
president and upheld by the board. The arbitrator reviewed The University of
Saskatchewan Act, 1995 and concluded that the board did not have to follow the
president’s recommendation. The issue centered on s. 51 of the Act, specifically
whether the tenure was an appointment within s. 51(a) or a promotion within s. 51(b).
The Renewals and Tenure Appeal Committee granted the professor tenure, and the
president reversed the decision. The university argued that the board could only act on
the president’s recommendation because tenure was either an appointment and/or
promotion within s. 51 of the Act. The association argued that the grant of tenure was
neither an appointment nor promotion. The arbitrator agreed with the association. The
university argued that the standard of review was that of correctness while the
association argued that the standard was reasonableness.
HELD: The application was dismissed. The court held that the standard of review of the
arbitrator’s decision was one of reasonableness. Section 25 of The Trade Union Act
states that the conclusions of arbitrators are final and therefore the court noted they
should not be interfered with lightly. Further, the court noted that the decision of the
arbitrator was not of significant importance to the general public. The court reviewed
the history of collective bargaining at the university and found that tenure was not
dependent on the president’s personal recommendation in the past. The court found
that the arbitrator’s reasoning was transparent and intelligible throughout. To include
the word tenure in the definition of appointment or promotion was not the only
conclusion that could be drawn. The arbitrator’s decision was within the range of
acceptable conclusions and was reasonable.
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Dyck v. JCL Property
Management Ltd.
Ferris v. Longhurst
Guenther v. Vanderhoof
Margon Holdings Ltd. v.
Starpass Properties Inc.
Maurice Law, Barristers &
Solicitors v. Sakimay First
Nation
Peter Ballantyne Cree
Nation v. Canada (Attorney
General)
Prairie Valley School
Administrative Law – Judicial Review – Saskatchewan Liquor and Gaming Regulations
Act – Alcohol Consumption after Closing Time
Administrative Law – Judicial Review – Natural Justice/Procedural Fairness
Belly Up Pub & Grill v. Saskatchewan Liquor and Gaming Licensing Commision, 2014
SKQB 306 - Court of Queen's Bench, Currie, September 22, 2014 (QB14292)
The applicants requested that a decision of the Saskatchewan Liquor and Gaming
Licensing Commission be set aside. The commission found that the applicants failed to
comply with s. 71 of The Alcohol and Gaming Regulations Act by allowing alcohol
consumption in their premises after closing time. An inspector entered the premises at
4:00 am and saw an almost full beer with condensation on a table in front of a person
sitting at the table. The disclosure given to the applicants did not include the details
about the almost full beer with condensation. The applicants did not mention the
problem with the disclosure at the hearing. The commission based its conclusion
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Division No. 208 v. Pilot
Butte (Town)
R. v. Borley
R. v. Fogarty
R. v. Gamble
R. v. Gerl
R. v. Hordyski
R. v. Kenke
R. v. Maxie
R. v. McGhie
largely on the evidence of an almost full beer bottle with condensation. The applicants
argued that the commissioner’s decision must be set aside on the basis of procedural
fairness principle of natural justice because of the commission’s failure to disclose.
HELD: The applicants were entitled to disclosure as a matter of procedural fairness.
The decision was regulatory but the hearing resembled a judicial process, which
suggested to the court that there was a need for timely disclosure. The court noted that
the only evidence of the importance of the decision was that the applicants had the
choice between a $1,000 fine and a two-day suspension. The relatively minor
consequence suggested to the court that timely disclosure was less required. Because
the applicants did not say anything when the disclosure came out at the hearing, the
court found that the applicants did not have disappointed expectations. The applicants
had the opportunity to respond to the disclosure and to cross-examine on it. The court
held that the applicants were not denied procedural fairness in relation to the timing of
the disclosure. Further, the court rejected the applicants’ argument that the
commission’s decision did not meet the reasonableness standard.
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R. v. Papequash
R. v. Pelly
R. v. Rempel
Bankruptcy and Insolvency – Conditional Discharge – Factors
R. v. Thompson
Swystun, Re (Bankrupt), 2014 SKQB 323 - Court of Queen's Bench, Thompson, October 6,
2014 (QB14302)
R. v. Worm
R. v. Y. (E.G.)
Royal Trust Corp. v.
Nekaneet First Nation
Surespan Construction Ltd.
v. Saskatchewan
Swystun, Re (Bankrupt)
University of Saskatchewan
v. University of
Saskatchewan Faculty
Association
Urch Estate, Re
© Law Society of
Saskatchewan Libraries,
1999
Swystun assigned in bankruptcy for the second time in 2011. The trustee and his
former spouse, Hanikenne, opposed his bankruptcy discharge on a number of grounds.
For the most part, they alleged that the bankrupt had behaved in a way that indicated
that he was hiding assets and/or income before and during his bankruptcy. Hanikenne
objected primarily on the ground that Swystun had used bankruptcy to avoid her claim.
During the marriage to Hanikenne (2007-2010), the bankrupt had purchased a
motorhome, a boat, a vehicle trailer and an ATV. He borrowed $13,000 with
Hanikenne’s assistance in 2009. She agreed to co-sign the loan, and when Swystun
stopped making payments on it, the lender sought payment from Hanikenne. She
commenced an action claiming against Swystun for all losses suffered by her in relation
to the promissory note. Before the loan claim was resolved, the bankrupt began
disposing of his property, such as his truck and motorhome. Although he continued to
be registered as the owner of both, a document indicated that he had received $15,000
from his mother who had purchased them. In 2010, Hanikenne and the bankrupt arrived
at a settlement where she agreed to return certain property to him on the condition that
he obtain financing to pay off the loan. Shortly thereafter, the bankrupt’s mother
appeared to have transferred the ownership of the motorhome to the woman with
whom Swystun was living. It was after such transfers that the bankrupt assigned in
bankruptcy. In response to questions about his assets on the statement of affairs,
Swystun indicated that he had not sold or disposed of any property prior to the
bankruptcy. His income and expense statement indicated that he had monthly income
of $1,950, which he received from Worker’s Compensation Board, and that he paid
$900 for child support and child care, leaving him with no monthly surplus income. Over
time, the trustee had discovered that Swystun had not accurately reported his income.
He failed to account, for example, for tax refunds. Swystun could not provide
justification for his pre- and post-bankruptcy conduct nor could he explain why he had
claimed that he had not disposed of property prior to his assignment.
HELD: The court granted a conditional discharge. Swystun would be discharged after
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he had paid the trustee the amount of $17,200 for the benefit of the bankruptcy estate,
which was the full amount admitted by the trustee for the dividend. The court could not
find the bankrupt to be an honest but unfortunate debtor. Swystun assigned in
bankruptcy to avoid having to pay his ex-spouse for the loan.
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Civil Procedure – Appeal – Leave to Appeal
Land – Certificate of Pending Litigation
deBalinhard v. deBalinhard, 2014 SKCA 95 - Court of Appeal, Caldwell, September 15,
2014 (CA14095)
The appellant sought leave to appeal the chambers decision not to vacate the
certificate of pending litigation registered on behalf of her estranged husband, who was
deceased. The respondent’s solicitors filed the certificate of pending litigation after his
death. The appellant transferred the land subject to the certificate of pending litigation
into her name only and entered into an agreement to sell the land, which could not
proceed with the certificate of pending litigation.
HELD: The appeal was of sufficient merit and it was not prima facie frivolous or
vexatious. The appeal, however, was not found to be of sufficient importance to the
practice of law or the Court of Queen’s Bench to warrant determination by the Court of
Appeal. There was no new, controversial or unusual issue of practice raised by the
appeal. The issues were determined to be better left for resolution by the Court of
Queen’s Bench after hearing vive voce evidence at trial.
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Civil Procedure – Noting for Default – Application to Set Aside
Margon Holdings Ltd. v. Starpass Properties Inc., 2014 SKQB 328 - Court of Queen's
Bench, Rothery, October 7, 2014 (QB14305)
The defendant applied to set aside the default judgment in the sum of $14,900 granted
against it in June 2014 and to be granted leave to file its statement of defence. The
plaintiff had sued the defendant for monies owed for services provided by it. The
defendant was an Alberta corporation and required by s. 268 of The Business
Corporations Act to have a power of attorney registered on the Saskatchewan
Corporate Registry. In accordance with s. 269 of the Act, the plaintiff served the
defendant’s power of attorney. The officer of the defendant swore that he had only
learned of the default judgment when he became aware of the sheriff’s enforcement
proceedings in August 2014 and immediately contacted counsel and made this
application. If the application was granted, the plaintiff argued that it should be
recompensed for costs thrown away of approximately $4,500 to $5,000. It had incurred
these costs before the defendant acted upon the judgment because of the expense of
pursuing enforcement proceedings under The Enforcement of Money Judgments Act.
The plaintiff had tried to serve the defendant properly: to the address of the power of
attorney and to the defendant’s registered officer. In the case of the power of attorney,
the statement of claim was not forwarded to the defendant. In the case of the second
service, it was returned to the plaintiff as “unclaimed”.
HELD: The court allowed the application and set aside the default judgment because
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the defendant had explained the short delay and the plaintiff would not suffer any
prejudice. However, the defendant had been involved in a previous lawsuit in which the
court had explained to it that service to the name and address of the power of attorney
listed in the registry was valid service. The defendant had not changed its power of
attorney as required by s. 268(3) of the Act and thus it had not become aware of the
statement of claim. The plaintiff’s costs were incurred as a result of the defendant’s
decision not to comply with the Act. The court ordered the defendant to pay the plaintiff
costs of $3,500 within 10 days of the order. Once paid, the default judgment would be
set aside.
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Civil Procedure – Queen’s Bench Rule 5-12
Surespan Construction Ltd. v. Saskatchewan, 2014 SKQB 298 - Court of Queen's Bench,
Barrington-Foote, September 16, 2014 (QB14275)
The plaintiff applied pursuant to Queen’s Bench rule 5-12 for an order for production of
documents by the defendant, which raised the issue related to the majority of the
documents whether they are relevant to any matter in issue in the action within the
meaning of rule 5-6. The plaintiff had bid on a contract tendered by the defendant for
the supply, fabrication and erection of the structural steel for a bridge. The bids were
opened and published, and the defendant requested clarification from the plaintiff as to
whether it held a certain welding certification as required by the tender. The plaintiff
claimed that it advised the defendant that it would hold that certification before
fabrication commenced and therefore its bid was compliant or, alternatively, that any
non-compliance was not material and waived by the defendant. As a result, a tender
contract was formed between the parties. The defendant informed the plaintiff that it
rejected all bids and re-tendered the project in two separate competitions. A company,
Capitol Steel, won the first contract for fabrication and Minty’s was awarded the
contract for erection. The plaintiff claimed that the defendant’s failure to either award
the contract to the plaintiff as low bidder or to enter into negotiations with it regarding
cost-saving measures that might have been available constituted a breach of contract
and that the defendant engaged in bid-shopping. The defendant asserted that it
rejected the first bids because they were non-compliant and that it had not waived
same and that the bids exceeded their budget and denied that it was bid-shopping.
The plaintiff sought disclosure of four categories of documents, which included: 1)
copies of all documents related to the evaluation of Minty’s bid and the award; 2)
copies of all documents related to the evaluation of Capitol’s bid and the award; 3)
copies of any performance bonds provided by either of those companies; and 4) a copy
of the defendant’s budget estimates. It also requested copies of emails and other
documents sent by a Department of Justice lawyer to government officials. It was
agreed by the parties that the court would inspect the last group to determine whether
they were subject to solicitor-client privilege.
HELD: The court granted the order requested in large part. It held with respect to each
group of documents that: 1) they would assist the plaintiff in determining whether the
alleged reason for the rejection of its bid was a relevant factor in awarding that
competition to Minty’s and therefore tend to prove or disprove the matter of bad faith.
The documents would confirm whether the scope of work was the same in the first and
second competitions and would also assist the plaintiff in determining damages based
on the profit it would have earned had it been given the original competition; 2) the
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same reasons applied to this group of documents; 3) the performance bonds were not
relevant and disclosure was not ordered; and 4) would disclose the manner in which
the budget was developed and might be relevant. Evidence that the defendant had not
developed the budget calculated to produce a reasonable estimate and thus a real
comparator might tend to support that inference that the plaintiff’s bid was not rejected
for the reasons given by the defendant but for the reasons asserted by the plaintiff.
Regarding the last group, the defendant was entitled to assert solicitor-client privilege
in relation to all of the documents because they were all related to the seeking,
formulating or giving of legal advice.
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Contract Law – Breach – Damages
Contracts – Breach – Consumer Protection Act
Contracts – Breach – Sale of Goods Act
Contracts – Interpretation – Implied Term
Small Claims – Breach of Contract
Bruce v. Dan Leonard Auto Sales Ltd., 2014 SKPC 160 - Provincial Court, Kovatch,
September 29, 2014 (PC14153)
The plaintiff bought a 2005 truck from the defendant on September 12, 2011. The truck
emitted a lot of white smoke when the plaintiff took it to Lloydminster shortly after the
purchase. When the plaintiff took the truck to a dealership, he was advised that the
engine either needed to be replaced or rebuilt. The plaintiff called the defendant but he
was unwilling to assist in the repairs. The defendant testified that he had used the truck
for two weeks prior to the sale and that it worked well. He surmised that the plaintiff
tried to pull something too heavy or otherwise abused the truck so as to cause engine
damage. Further, the defendant indicated that he told the plaintiff to bring the vehicle
back to be checked out, but the plaintiff refused to do so and wanted a new motor.
HELD: The Consumer Protection Act did not automatically apply because the plaintiff
purchased the truck for business. The court did, however, find that the parties adopted
the warranty provisions of The Consumer Protection Act as a part of their contract of
sale. Both parties agreed that the defendant warranted his vehicles for 30 days. The
court found the warranties the defendant was offering were those contained in s. 48 of
The Consumer Protection Act: 1) that the truck was of acceptable quality; 2) that the
truck was reasonably fit for the purpose; 3) that the truck would be reasonably durable;
and 4) that the truck was free of any known or patent defects. The Sale of Goods Act
applied. The court implied a warranty that the truck was fit for the purpose described
by the plaintiff, which was known to the defendant. Further, there was a merchantable
quality warranty. The court held that the truck did not meet or comply with the
warranties. The engine failed within days and therefore was not reasonably durable or
fit for the stated purpose. The plaintiff had only put 1,627 kilometres on the truck when
the engine failed. The engine was not durable for a reasonable period of time. The
principle of betterment was taken into account in determining the damages. The court
adopted the midpoint between the cost of two engines, one with higher kilometers than
the truck and one with lower kilometers. The engine cost was therefore $5,425. The
cost to install the engine was also added to the damages total. The PST was added
but the GST was not because the plaintiff could claim the GST back through his GST
return. Total damages awarded were $8,683.77 plus interest.
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Contract Law – Interpretation
Civil Procedure – Queen’s Bench Rule 3-49
Dyck v. JCL Property Management Ltd., 2014 SKQB 274 - Court of Queen's Bench,
Wilkinson, August 27, 2014 (QB14279)
The applicant brought an application under Queen’s Bench rule 3-49 for a declaration
that his deceased wife had a half-interest in a certain condominium property owned by
the respondents. The application was brought in order for him to include the property
in his wife’s intestacy. The deceased had entered into an agreement as a lessee with
respondents as lessors with respect to the property in 1997. The agreement was
entitled “Lease/Partnership Agreement” (LPA). The deceased would pay half the
purchase price of $25,000 and the respondents would pay the other half. They would
take title to the property and hold the deceased’s interest in trust. She would have a
lease for her lifetime or until her death or she decided to voluntarily vacate. The
agreement further provided that the respondents would pay the mortgage on the
property and that the deceased would pay no rent but be responsible for payment of
condo fees, utilities, etc. The respondents could not unilaterally terminate the
agreement. If the deceased had vacated the property, the property would be sold and
the proceeds divided equally. Another clause in the contract provided that if the lessee
predeceased the lessors, the lease terminated and the lessee’s property interest would
vest in the lessors. (The mirror clause allowed the lessors’ property interest to vest in
the lessee if they predeceased her.) The applicant argued that this clause only
addressed the deceased leasehold interest and was ineffective to vest in the
respondents any other property interest in the condominium held by her. The
respondents argued that the clause referred to the deceased’s property interest not her
interest in it as a tenant. They provided parol evidence regarding the background to the
agreement.
HELD: The court held that the matter was eligible to be dealt with summarily under rule
3-49 as the substantive issue was one of contractual interpretation with the possibility
of resorting to extrinsic evidence if there was ambiguity. The court rejected the
applicant’s proposed interpretation of the clause as unreasonable and, on the basis of
the plain language, found that deceased had not had a property interest per se. She
had a beneficial interest that entitled her to half the sale proceeds if she voluntarily
vacated or to a survivorship interest if she outlived the respondents. As the applicant
had not requested a declaration of trust or beneficial ownership, the court dismissed the
application.
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Contracts – Breach – Damages
Contracts – Breach – Misrepresentation
Contracts – Breach of Contract – Non-payment
Contracts – Interpretation
Contracts – Set Off
Small Claims – Breach of Contract
Small Claims – Debt for Service Supplied
Small Claims – Practice and Procedure
Baltic Properties and Developments Inc. v. Rajbar, 2014 SKPC 173 - Provincial Court,
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Demong, October 3, 2014 (PC14154)
The plaintiff claimed recovery of money it said the defendants owed pursuant to a
building contract where the plaintiff built a basement for them. The cost for the
basement in the contract was $49,155.12 and the plaintiff received only $25,000 so
sought the remainder. The plaintiff brought his claim down to $20,000 so that it would
qualify under The Small Claims Act. The defendants claimed that the plaintiff failed to
ensure that the foundation was sufficiently above grade as required in the subdivision.
Further, they counterclaimed that there were other terms to the contract requiring the
plaintiff to provide a concrete floor, steel beams, roughed-in plumbing and electrical,
service hook-ups, and other things. Further, the defendants claimed that the plaintiff
agreed to act as the general contractor but failed to do so. They also sought damages
pursuant to s. 5 of The Consumer Protection Act, alleging that the plaintiff committed
an unfair practice by misleading them regarding what was included in the building
contract. The issues before the court were: 1) what was the true nature and scope of
the agreement; 2) did the plaintiff commit an unfair practice by misleading the
defendants; 3) was the plaintiff entitled to recovery of money due under the contract or
was there a breach of a term that the foundation was to be placed above a certain
grade; 4) were the defendants entitled to set-off amounts; and 5) were the defendants
entitled to further relief as set out in their claim. The defendants sent an email to the
plaintiff requesting a quote for all of the items in their counterclaim. The eventual
signed contract does not reference the additional work items and the defendants
conceded on cross-examination that there was no written contract for them nor was
the cost of them discussed. The defendants did maintain, however, that the definition of
foundation included a cement slab floor. When the RTM house was set, the defendants
measured the basement windows to be up to 22 inches below grade rather than the
minimum six inches above grade they required. The defendants contacted the plaintiff
and were told that it would cost $14,000 to rectify the problem. The defendants
terminated the contract and removed the house to have the foundation level raised at a
cost of $25,000.
HELD: The court determined the issues as follows: 1) the plaintiff agreed to provide
only the services that were reduced to writing in the contract. The court did not find that
the definition of foundation necessarily included a rebar reinforced cement slab floor.
Further, the initial quote was the same cost as the final quote and the defendants had
discussed all of the extra services after the first quote. The court noted that it could not
be expected that the plaintiff would perform all of the extra work at no extra cost; 2) the
court concluded that there was not enough evidence to conclude that the defendants
were misled to such an extent that it constituted an unfair practice pursuant to The
Consumer Protection Act; 3) the foundation was structurally sound, as conceded to by
the defendants, but was below the level sought by them. The court drew an adverse
inference against the plaintiff because he did not lead any evidence to show that the
level was not too low. The court also found that level of the foundation was a condition
of the agreement and was well known to the plaintiff. Further, there was no evidence
that it was the surveyor who erred as argued by the plaintiff. The plaintiff failed to
ensure that the foundation met the specific obligations. The plaintiff provided a sound
foundation so was entitled to the contract price, however, the defendants were also
entitled to monetary damages reasonably necessary to correct the deficiency; 4) the fix
the defendants decided on was not a radical change from what they expected from the
plaintiff. Also, they could not be required to rehire the plaintiff for the job they did not
do properly in the first place; and 5) the court did not have the authority to direct
declaratory relief such as declaring that the plaintiff unreasonably misled the
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defendants and the court would not have so declared in any event. The court also
could not order the plaintiff to remove the lien on the defendants’ property. Each party
reduced their claim to $20,000 and each party was found to be entitled to that amount.
The court set off the amounts and neither party owed the other party.
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– Aboriginal Offender – Sentencing
– Appeal – Sentence
– Assault
– Sentencing – Conditional Sentence
R. v. Papequash, 2014 SKCA 99 - Court of Appeal, Lane Caldwell Whitmore, September
18, 2014 (CA14099)
The respondent was sentenced to a 21-month conditional sentence after pleading
guilty to assaulting his estranged wife. The Crown appealed the sentence. Within four
months of the respondent’s previous conditional sentence ending, he got in the back
seat of his estranged wife’s car and they began to argue over custody. The respondent
choked his estranged wife from behind to the point that she could not call for help. The
estranged wife suffered minor injuries. The respondent’s criminal record began when he
was 12 and there were 41 convictions; 13 for various assaults. The respondent’s adult
record included nine assaults. Several convictions were for failure to comply with court
orders and failure to attend. He had received four previous conditional sentences. The
respondent breached the terms of the conditional sentence he received for assaulting
his estranged wife shortly after it was imposed.
HELD: The appeal was allowed because the sentence was unfit. The sentencing judge
was found to have overemphasized the rehabilitation factor while underemphasizing
risk to the community. Also, the judge failed to give sufficient emphasis to the fact that
this was a domestic assault. Further, the judge did not adequately consider the
respondent’s past offences, especially the assaults and failures to comply with court
orders. It was held that a term of incarceration should have been imposed. A 21-month
term of incarceration was imposed with the same remand credit as given by the
sentencing judge.
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– Appeal – Conviction
– Appeal – Sentence
– Assault – Sexual Assault Causing Bodily Harm
– Evidence – Admissibility
– Procedure – Application for Severance
– Sentencing – Breach of Undertaking
– Sentencing – Sexual Assault Causing Bodily Harm
R. v. Gamble, 2014 SKCA 101 - Court of Appeal, Lane Herauf Whitmore, September 17,
2014 (CA14101)
The appellant was convicted of two counts of sexual assault causing bodily harm
contrary to s. 272(1)(c) of the Criminal Code and two counts of failing to comply with a
condition of an undertaking contrary to s. 145(3) of the Criminal Code. The appellant
was sentenced to five years of incarceration and then four years of consecutive
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incarceration for the sexual assault charges. The failure to comply charges resulted in
30 days of incarceration for each, to be served concurrently. The appellant appealed
the convictions and sentences. The first sexual assault occurred when the appellant
picked up the drunk victim and offered to give her a ride. The appellant forced himself
onto her and hit her when she tried to escape. The second sexual assault occurred
when the appellant was driving a vehicle in which the victim was the only passenger.
They were in a back alley waiting to buy some drugs, and when the victim asked to be
driven home, the appellant sexually assaulted her and hit and kicked her. The grounds
for the conviction appeal were: 1) the trial judge erred in not hearing the defence
application to sever the two assault charges. The appellant argued that the two
charges should have been severed because there was no connection between them;
and 2) the trial judge erred in not providing a ruling on the admissibility of evidence at
the close of a Charter voir dire. The trial judge reserved decision on the admissibility
until the close of trial and the appellant argued that he did not thus know the case that
he had to meet.
HELD: The appeal was dismissed in its entirety. The court ruled on the issues as
follows: 1) the Court of Appeal agreed that the 12 similarities between the two sexual
assaults were striking. The trial judge did not specifically refer to the severance
requested by the appellant, but the Court of Appeal found that it most certainly would
have been denied. Therefore, the trial judge’s lack of comment on the application did
not change the outcome; and 2) it was within the allowed discretion of the trial judge to
defer the ruling on the admissibility of evidence. The Court of Appeal found that the
appellant did know the case that he had to meet; the essential issue was identity and
his defence was alibi. The appellant, therefore, would have to testify to put forward his
defence, regardless of decisions on the admissibility of evidence. Also, the correctness
of the trial judge’s decision on admissibility has not been appealed. The appellant did
not submit any cases or argument to convince the Court of Appeal that the sentences
were unfit. The protection of the public was properly considered as a significant factor
in sentencing as was the gravity of the offences. The sentence was within the range
for similar offences.
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– Appeal – Conviction
– Appeal – Sentence
– Impaired Driving
– Judicial Stay
– Refusal to Provide Breath Sample
R. v. McGhie, 2014 SKQB 295 - Court of Queen's Bench, Wilson, September 15, 2014
(QB14287)
The accused was found guilty in Provincial Court of driving while impaired and failing to
comply with a breath demand, contrary to ss. 253(1)(a) and 254(5) of the Criminal
Code, respectively. The trial judge directed a judicial stay, provided there was not
appeal on the impaired charge. The accused was sentenced to a period of
incarceration of 30 days, to be served intermittently, together with six months’
probation. The accused appealed both the conviction and sentence. At 2:35 am the
accused drove through an intersection without stopping at a stop sign. A police officer
followed the vehicle and noted it was driving below the speed limit and was drifting to
the left. The officer stopped the accused when he made a turn with the vehicle without
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signaling. The officer noted signs of impairment, including the smell of liquor, slurred
speech, and bloodshot and watery eyes. A Breathalyzer demand was made at 2:52 am.
The accused was trying to defeat the Breathalyzer machine by burping, attempting to
vomit and talking. The officer and accused’s interactions in the police vehicle were
captured on the in-car video/audio camera.
HELD: The trial judge’s conclusion that the evidence of impairment was overwhelming,
given the video/audio recording was supported. The trial judge’s conclusion that the
defendant was belligerent and uncooperative and willfully attempted to avoid providing
a sample was also supported by the evidence. The court noted that there was really no
other conclusion that could be made. The appeal with respect to the fail to comply
count was dismissed. Because the appeal regarding the fail to comply charge was
dismissed, the court did not have to review the impaired charge and held that it was
then permanently stayed. Lastly, the court found that the sentence was fit and within
the range of sentences for similar offences committed by similar offenders.
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Criminal Law – Assault
Criminal Law – Evidence – Credibility
R. v. Fogarty, 2014 SKPC 157 - Provincial Court, Gordon, September 9, 2014 (PC14149)
The two accused were charged on separate informations with the same charges,
namely, an assault on RG and an assault on KG, both charges contrary to s. 266 of
the Criminal Code. The two accused were guests at the victims’ home to celebrate
RG’s birthday. The four drank alcohol during their visit. KG testified that the female
accused hugged her husband, RG, and she noticed the male accused getting mad and
leaving. KG admitted to tapping RG on the shoulder when she noticed the male
accused getting mad. KG said RG did make a move, which appeared aggressive. KG
next remembers the female accused pushing RG back and then pinning him down and
hitting him. KG yelled to the male accused “they are fighting” and he came in and
started punching RG until he lost consciousness and was bleeding. KG tried to
intervene and both accused then kicked and punched her. An officer who attended saw
the male accused punching RG and the female accused attempting to kick him. He
observed that both KG and RG had injuries.
HELD: The two accused were found guilty of both charges. The court found that the
two complainants gave their evidence in a forthright manner and they readily admitted
their consumption of alcohol. The court accepted that RG was hit repeatedly by both
accused without justification. The court did not conclude that KG was severely impaired
because she had three beer and was also taking a narcotic due to previous strokes.
Even though the officer on scene did not take extensive notes the court found his
evidence reliable; it was clear and exact. The court concluded that both accused could
be convicted of assault on RG based on the officer’s testimony alone. The court also
accepted KG’s testimony that she was assaulted by both accused.
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– Assault – Sexual Assault
– Dangerous Offender Application
– Sentencing – Dangerous Offender – Indeterminate Sentence
– Sentencing – Dangerous Offender – Sexual Assault
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Criminal Law – Sentencing – Long-term Supervision Order
R. v. Y. (E.G.), 2014 SKQB 281 - Court of Queen's Bench, Dovell, September 5, 2014
(QB14271)
The accused was convicted in 2012 of sexual assault committed in June 2011, contrary
to s. 271 of the Criminal Code. The Crown advised that it would make a Part XXIV
Code application and the accused was remanded for assessment by a psychologist.
The Forensic Assessment Report was received within three months. In February 2013,
the accused entered guilty pleas to two counts of sexual assault contrary to s. 271
committed in January 2011 and in 1999 against a different complainant. The victims of
these assaults were the accused’s niece, daughter and granddaughter respectively.
Another consent assessment order was made that the accused be remanded for a
further 60 days and an updated forensic assessment completed considering the two
additional offences. An application was made pursuant to s. 754(1)(b) of the Code to
have the accused declared a dangerous offender, imposing upon him an indeterminate
period of detention in a penitentiary in lieu of any other sentence that might be imposed
upon as a result of his June 2011 conviction and his guilty plea to the January 2011
offences. The third sexual assault sentence would be handled separately. The
dangerous offender application was made on the basis of the evidence that the
accused had shown a pattern of repetitive behaviour of failing to restrain his behaviour
and control his sexual impulses and a likelihood of his causing death or injury to other
persons. The accused, a 53-year-old Aboriginal man, had been in residential schools
and was abused sexually and physically. His father was very abusive and the accused
had been addicted to alcohol for most of his life. He had suffered from suicidal
thoughts. His criminal record was extensive, including 33 convictions, including
numerous assaults causing bodily harm and sexual assaults. Since 2003, he had been
convicted of six sexual assaults, including the predicate offences in 2011. The victims
included four female children and two incapacitated adult women, all but one victim
being family members. He had participated in programs while in prison and after
release to address his problems. The individuals who had been involved with the
accused in these programs or as his parole officer testified that he did not internalize
the concepts and minimized his responsibility for his conduct. The psychologist who
prepared the assessment of the accused believed that he was untreatable. The Crown
argued that that accused should be found to be a dangerous offender and given an
indeterminate sentence with a four-year concurrent sentence for the third sexual
assault. If the accused were to receive a determinate sentence, the Crown argued that
the accused received a global sentence of 10 years for the three offences followed by
a 10-year long-term supervision order. The psychologist who testified for the defence
indicated that it was not necessary for the accused to receive an indeterminate
sentence because of his age in that a substantial determinate sentence followed by a
long-term supervision order would adequately protect the public. The defence agreed
that sexual assault was a serious personal injury offence and that the second part of
the test of s. 753(1)(b) of the Code had been met, being that the accused was unable
to control his sexual impulses and that if the accused was determined to be a
dangerous offender, he should receive a determinate sentence of eight to nine years
followed by a 10-year supervision order and that he should receive a two-year
concurrent sentence for the third sexual assault.
HELD: The court found that the accused was a dangerous offender pursuant to s.
753(1)(a)(i) and (ii) and s. 753(1)(b) of the Code. It found that a determinate sentence
of 10 years would be appropriate: a four-year, six-month term for the June 2011 sexual
assault and a two-year, six-month term for the January 2011 sexual assault, followed
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consecutively by a sentence of three years for the third sexual assault. He was given
credit for three years, two months spent on remand, resulting in a net global
determinate sentence of six years, 10 months. The sentence was to be followed by a
10-year long-term supervision order.
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Criminal Law – Assault – Sexual Assault – Consent
Criminal Law – Sexual Assault – Breach of Trust
R. v. Thompson, 2014 SKQB 313 - Court of Queen's Bench, Acton, September 26, 2014
(QB14310)
The accused was charged with sexual assault contrary to s. 271 of the Criminal Code.
The victim was a 36-year-old mentally challenged woman with an emotional and
intellectual age of 11 to 13 years. The accused was a massage therapist and the victim
and her family were his clients and friends. The victim’s long-term memory was good
and she had a history of being honest and straightforward. The victim alleged that the
accused pushed his fingers up her vagina approximately 40 to 50 times while he gave
her massages over a period of years. The activity would go on for 10 to 15 minutes
during each massage. The accused testified that these activities did happen but that
they were consensual. The issue was whether there was valid consent.
HELD: The accused was found guilty. The accused was in a position of trust with the
victim. The court accepted the evidence of the victim that she did not consent to the
sexual touching. The actions were found to be a serious breach of a position of trust
and a position of authority.
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– Breathalyzer – Demand for Sample – Reasonable and Probable Grounds
– Breathalyzer – Refusal to Provide Sample
– Care and Control – Presumption
– Defences – Charter of Rights, Section 10(b)
– Impaired Driving – Presumption of Care and Control
– Impaired Driving – Refusal – Breath Demand – Reasonable and Probable
R. v. Borley, 2014 SKPC 146 - Provincial Court, Gordon, September 9, 2014 (PC14148)
The accused was charged with driving while his ability to do so was impaired by drug
or alcohol contrary to s. 253(1)(a) and with refusing to comply with a demand for breath
sample without reasonable excuse contrary to s. 254(5). The accused argued that the
informational component of his s. 10(b) Charter right had not been met. Two officers
were driving in a marked police vehicle and noticed a parked vehicle with a person
appearing to be sleeping in the driver’s seat. The keys were in the ignition of the
vehicle. The vehicle was in the parking lot of a 24-hour gas station and there had been
no complaints about the vehicle. The accused was confused and dazed when he was
woken up. The officer noted a strong smell of alcohol coming from the accused’s
mouth; the accused fumbled for his licence and slurred his words, and the officer had
to open the door for him. The accused was placed in the rear of the police vehicle and
the officer admitted that she did not give the accused the exact reason for placing him
in the police vehicle. An ASD demand was made, which resulted in a fail. The accused
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was arrested for driving while impaired and was given rights to counsel. The accused
indicated that he understood. The officer then made it clear to the accused that he was
under arrest for care and control of a motor vehicle while impaired. The accused again
indicated that he understood. At the police station the accused indicated that he was
not going to blow. He was advised that he could contact a lawyer and that if he did not
blow, he would be charged with refusal to provide a breath sample. The accused said
he understood. The accused argued that he should have been provided with a toll-free
number for Legal Aid.
HELD: The court found that the presumption in s. 258 of the Criminal Code applied;
there was no evidence to rebut the presumption. The court inferred that the vehicle had
not been stopped for long because the windows were not frosted over and it was
March in Saskatchewan. Also, the accused was still wearing his seat belt. The Crown
proved beyond a reasonable doubt that the accused was in care and control of the
motor vehicle while he was impaired and therefore the accused was guilty of the first
charge. The officer’s subjective belief that the accused had consumed alcohol was
supported by her objective observations. The officer had sufficient grounds to make the
ASD demand. The accused’s s. 10(a) Charter rights were breached when he was
asked to go to the police vehicle without being told the specific reason. The court
concluded that the breach was so minor so as not to require Charter relief. Also, even
if the court’s conclusion was wrong, it was noted that no evidence was gathered as a
result of the breach. The court was satisfied that the accused had been advised that he
could contact a lawyer and that Legal Aid was available and he could be given a tollfree number to contact them. There was no evidence that the accused asked for the
number or had any questions. Further, there was no evidence that the accused, an
Alberta resident, thought there was no use in contacting a lawyer when he was not
provided with the toll-free number. The court concluded that there was no s. 10(b)
breach. The officer had reasonable grounds for the s. 254(3)(a) demand and there was
no reasonable excuse for failing to provide a sample. The accused was guilty of an
offence contrary to s. 254(5).
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Criminal Law – Controlled Drugs and Substances Act – Forfeiture
R. v. Pelly, 2014 SKPC 176 - Provincial Court, Harradence, October 7, 2014 (PC14161)
The accused pled guilty to having possession of cocaine for the purpose of trafficking
contrary to s. 5(2) of the Controlled Drugs and Substances Act. When sentenced, he
agreed to forfeiture of the cocaine, cash and an iPhone. He resisted the Crown’s
application that he should forfeit the truck that he was driving at the time of his arrest
because the vehicle had been purchased by his former girlfriend and he wanted to
make an application for the return of it to her. After applying under s. 19(3) of the Act,
a hearing was held and the putative owner testified that she purchased the truck in
March 2013. She could not advise the court whether there was a bill of sale or what
the name of the vendor was or where she had purchased it as she had found it for sale
online. She loaned the vehicle to the accused. There was no evidence that this woman
was complicit in the accused’s offences or had knowledge of his criminal activity. As
the vehicle was registered in the name of the accused, the issue was whether the
applicant was lawfully entitled to the property or any part of it and to determine whether
the court should order that it be returned to her.
HELD: The court allowed the application. The truck seized as a result of the
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investigation should not be available for forfeiture and should be returned to the
accused’s former girlfriend. The Crown bore the onus throughout the application and
because the court found the woman to be an honest witness, she had a valid claim to
possession of the vehicle.
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Criminal Law – Defences – Necessity – Appeal
R. v. Maxie, 2014 SKCA 103 - Court of Appeal, Ottenbreit Caldwell Ryan-Froslie, October
1, 2014 (CA14103)
The Crown appealed the Queen’s Bench decision in which Brett Maxie had been
acquitted of a number of various charges relating to the injury that had occurred to
Elaine Maxay when the former struck her with his vehicle, although he had been
convicted of leaving the scene of an accident (see: 2014 SKQB 451). Maxie had hit
Maxay when she was standing near his truck. The grounds of appeal were that the trial
judge erred in law: 1) in applying the wrong test in determining whether there was a
causal connection between Maxie’s impairment and the accident that injured Maxay;
and 2) by finding that the defence of necessity applied.
HELD: The appeal was dismissed. The court found with respect to the grounds of
appeal that: 1) the trial judge’s finding that Maxie’s impairment was not more than a
trivial or insignificant cause of the accident was supported by the evidence and was not
unreasonable. He applied the correct standard in determining causation and had not,
therefore, erred in law; 2) the trial judge had made a number of evidentiary errors that
amounted to error of law. The first of these errors was admitting hearsay evidence that
a gunshot was heard. However, the trial judge’s conclusion that there was a gun
present at the time of the offence was supported by other uncontradicted evidence.
Thus the error had not materially affected the trial judge’s decision to acquit Maxie. The
court held that the Crown’s position was correct that there was no evidence to support
the trial judge drawing an adverse inference relating to the RCMP’s failure to conduct a
full investigation into the presence or use of a gun. The trial judge had also erred when
he had not given the Crown an opportunity to explain why it had not called certain
witnesses, from which he then drew an adverse inference. However, the trial judge had
other uncontroverted evidence to support his finding that a gun was present and its use
threatened, so the errors would not have materially affected the trial result. Finally, the
court held that the trial judge had not erred in law in his application of the defence of
necessity: his conclusions that Maxie was in a situation of imminent peril, that he had
no reasonable legal alternative and that the harm done was less than the harm avoided
was supported by the facts.
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Criminal Law – Mischief
Criminal Law – Offences Involving Communications
R. v. Gerl, 2014 SKQB 292 - Court of Queen's Bench, Gunn, September 12, 2014
(QB14274)
The accused entered guilty pleas to two offences: committing public mischief contrary
to s. 140(1)(b) of the Criminal Code; and conveying false messages with intent to injure
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or alarm the victim, by telecommunication, contrary to s. 372(1) of the Code. The
charges had arisen as a result of the accused discovering that her husband was seeing
two other women. She claimed that one of the women was sending her threatening
messages on Facebook and by email. After reporting the threats to the police, that
woman was arrested four times and was held in custody on two occasions. The
accused and her husband then reported receiving emails from the second woman that
indicated that she was watching them. In both instances, the accused had made the
communications herself. The Crown argued that the accused should have a criminal
record as a result of these offences and that she should receive a suspended sentence
with conditions. The accused sought a conditional discharge with probation.
HELD: The accused was given a conditional discharge. She had been bound by
restrictive conditions for the previous 21 months and had not breached them. She had
pled guilty and had apologized to the court and to the victims. The probation period
was 12 months subject to conditions.
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Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08
Constitutional Law – Charter of Rights, Section 7, Section 11(b)
R. v. Kenke, 2014 SKQB 324 - Court of Queen's Bench, Laing, October 3, 2014 (QB14303)
The accused was charged with impaired driving contrary to s. 253(1)(a) of the Criminal
Code and with having blood alcohol content in excess of .08 contrary to s. 253(1)(b) of
the Code. The accused brought two applications for relief under the Charter. He
alleged that his s. 11(b) right to trial within a reasonable time had been breached and
that there had been an abuse of process that violated his s. 7 Charter right. The
accused lived in Warman and worked as a mechanic in Saskatoon. He spent two hours
per day road testing vehicles. If he were to lose his licence, he would lose significant
income because he would not be able to perform the testing and it would be difficult for
him to get to work. As a result, he asked his counsel to obtain a trial date as soon as
possible to resolve the matter. The accused had made his first appearance in
September 2010 and a trial date was set for July 2011. In July 2011, the Crown
entered a stay of proceedings on both charges. There had been an investigation
following the stay. The accused’s father, a retired RCMP officer who served as a
special constable was terminated as a result of the investigation because he apparently
accessed the accused’s file when he was not authorized to do so. An RCMP officer
who had participated in the investigation testified that the investigation had failed to
disclose that an exhibit that had allegedly gone missing had ever been seized. The
report that the allegation had been proven false was made one month later. The officer
testified that new evidence had been obtained after the stay. However, it was not until
April 2012 that the Crown laid a new information containing the same two charges. The
Crown had to proceed by indictment because the six-month limitation period for
proceeding on summary conviction had elapsed. It then took another eight months
before the preliminary inquiry was held and another year until the date of the trial,
which resulted in a delay of 48 months. The defence argued that a normal impaired
driving charge should be disposed of in 15 months. When the possible missing exhibit
was reported by him to the Crown, counsel believed it would have been more
appropriate for the Crown to adjourn the matter while the investigation took place rather
than enter a stay. His client was not responsible for the time that elapsed up to and
including the preliminary inquiry. The defence also submitted that the breach of s. 7
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was based upon the fact that the accused was placed in increased jeopardy by reason
of the Crown having to proceed by indictment, as the penalties under indictment were
greater. The Crown had offered to proceed summarily but defence counsel had not
agreed.
HELD: The court found that delay of 48 months breached the accused’s s. 11(b) rights
and ordered a stay of proceedings. The court dismissed the application regarding s. 7
of the Charter. Under s. 786(2) of the Code, the case law indicated that prosecutorial
discretion could only be challenged when there was evidence of bad faith, improper
motive or arbitrary purpose, none of which were present in this case. The risk of
increased jeopardy to the accused would have been eliminated if the defence had
agreed to the Crown’s offer to proceed summarily.
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Criminal Law – Murder – Second Degree – Appeal
Criminal Law – Murder – Second Degree – Sentencing – Appeal
Criminal Law – Murder – Second Degree – Charge to Jury – Vetrovec Warning
Criminal Law – Manslaughter – Appeal
Criminal Law – Manslaughter – Sentencing – Appeal
Criminal Law – Home Invasion
Evidence – Unsavoury Witnesses – Vetrovec Warning
R. v. Worm, 2014 SKCA 94 - Court of Appeal, Ottenbreit Caldwell Herauf, September 15,
2014 (CA14094)
The three appellants were each found guilty by the same jury of criminal offences in
relation to the death of Douglas Anderson. Jacob Worm was found guilty of seconddegree murder and Denny Jimmy and Tyrone Worm were each found guilty of
manslaughter as a party to an offence under s. 21(2) of the Criminal Code. They had
been together at a party, during which time Jacob had shown them that he had a gun
in his possession. After attending a second party at the home of the witness, Candace
Smoke, the trio, with others, left that house and began walking to another party. En
route, Jacob Worm announced to the group that they were going to rush a house that
he alleged was a Native Syndicate drug house. It was not the case. All of the men
covered their faces by various means and kicked in the back door. Once inside they
confined the victim, his wife, their daughter, their daughter-in-law and four
grandchildren. The victim and others were assaulted and the group demanded money
and drugs. Jacob Worm shot the victim in the abdomen and the group fled. The victim
died. At trial, the Crown called a number of witnesses who had been present at the
offence, most notably: 1) Colby Smoke, brother to Candace Smoke, who had
participated in the home invasion and identified Jacob Worm as the person who shot
the victim and confirmed that Tyrone Worm (Jacob’s brother) and Jimmy were present.
He also identified other witnesses, Raphael and a young offender as being present.
Colby had an extensive youth criminal record and had been charged with a seconddegree murder and aggravated assault in another crime. He was never charged with
the home invasion or this homicide; 2) Ryan Raphael, who admitted participating in the
invasion and identified Jacob as the person who shot the victim and Tyrone as being
present. He was intoxicated by alcohol and drugs during the crime and blacked out a
number of times. He had an extensive youth criminal record. He was charged with firstdegree murder in connection with his participation in the invasion, but was released
from custody after cooperating with the police; 3) Candace Smoke, who was part of the
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group that went to the victim’s residence but had not participated in the home invasion.
She testified that she had seen the appellants, Colby Smoke, her brother, and Raphael
in the yard of the house prior to the homicide. She had voluntarily given a statement to
the police when called up do so that she had heard Jacob say he killed the victim. Ms.
Smoke was not charged with any offence related to the incident.
The appellants’ grounds of appeal, among others, were that the trial judge erred by: 1)
failing to give a jury a Vetrovec warning with respect to Ms. Smoke. They argued that
she should have been considered an accomplice, which merited the warning, and that
she had colluded with her brother; 2) advising the jury that the evidence of one
unsavoury witness could confirm the evidence of another unsavoury witness. They
argued that the judge’s charge indicated that the evidence of Colby Smoke and of
Raphael could confirm the other’s story; 3) failing to caution the jury about the frailties
of eyewitness evidence of identification; 4) failing generally to provide the jury with the
tools necessary for them to analyse the evidence of the unsavoury witnesses. The
appellants Jacob and Tyrone Worm also appealed their sentences.
HELD: The court dismissed the appeal regarding the convictions and the sentences.
The court reviewed the transcript and the charge given by the trial judge. It found with
respect to the grounds of appeal that: 1) the trial judge had not erred. Ms. Smoke was
not inherently unsavoury nor was her evidence inherently unreliable, and therefore a
Vetrovec warning was not required. The appellants’ allegations regarding Ms. Smoke’s
status in the crime or credibility were speculative. She was not charged with any
offence and there was no evidence that she acted as a witness for the Crown in
exchange for immunity or benefit. She had not exculpated her brother; 2) the trial judge
had not erred. She had given the appropriate Vetrovec warning to the jury that they
should be cautious, but where, as here, there was no evidence that the two witnesses
had colluded, the jury could decide whether the testimony of one unsavoury witness
corroborated that of another unsavoury witness; 3) the trial judge had not erred. Each
appellant had appealed on this ground for different reasons with respect to the judge’s
charge but each was unsuccessful. For example, the court rejected Jacob Worm’s
argument that because the testimony of only unsavoury witnesses implicated him in the
crime, the charge was flawed because it had not drawn specific attention to the lack of
other evidence placing him in the victim’s home at the time of the homicide; 4) the trial
judge’s preliminary remarks and closing charge contained instructions and advice on
the assessment of the credibility. Her Vetrovec warnings supplemented this with
caution for the special need to carefully scrutinize the evidence of unsavoury witnesses,
where they had received apparently beneficial treatment from the Crown. The judge’s
instructions were not insufficient or ineffective in warning the jury.
The court held that the sentencing judge’s decision to increase Jacob Worm’s period of
parole ineligibility from 10 to 16 years was warranted because of the gravity of the
offence and the circumstances: a home invasion in which the victim was shot in front
of his family. In the case of Tyrone Worm, the court found that although the sentence of
12-years imprisonment was at the high end, the sentencing judge had stressed the
gravity of the offence and the aggravating factors mentioned above. The sentencing
judge had not alluded to the Gladue factors because the appellant had indicated in his
pre-sentence report that he had not been affected by any of them.
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Criminal Law – Self-represented Litigant
Criminal Law – Conduct of Trial
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R. v. Rempel, 2014 SKQB 287 - Court of Queen's Bench, Tholl, September 9, 2014
(QB14265)
The appellant appealed his conviction for mischief under s. 430(4) of the Criminal
Code. At his trial in Provincial Court, the appellant was self-represented. The charge
had arisen out of an episode wherein the appellant had been visiting his son who lived
with his mother, the appellant’s former girlfriend, Stephanie Froh. Ms. Froh was the
only witness called by the Crown. During an argument, Ms. Froh alleged that the
appellant had thrown her laptop computer at a glass coffee table and then at the
television. Ms. Froh left the house with the child and hid, managing to call the police.
The appellant testified that Ms. Froh had thrown the laptop at him first. It struck him on
the arm and head causing a cut. As a reflex action, he threw the laptop at the
television. He then called the police. When they arrived, he decided to lie to them about
the incident because he was afraid that they would charge Ms. Froh with assault and
take the child away from her. The appellant testified that the police had seen the cut on
his head but did not take any photographs of it. Ms. Froh testified that the appellant
had shown violent tendencies in the past and had damaged property. When he crossexamined Ms. Froh, the appellant asked questions regarding her past conduct in
damaging his property and regarding a previous sexual relationship. The trial judge
informed him that the latter question was irrelevant and the appellant explained that he
was reacting to Ms. Froh’s attack on his character and needed to establish his own
credibility. The trial judge found Ms. Froh to be a credible witness and found the
appellant guilty. The grounds of appeal raised by the appellant were: 1) had the
Crown’s failure to disclose the recordings of the two telephone calls to police and its
failure to have the police officers present at the trial violate the appellant’s ss. 7 and
11(d) rights under the Charter; 2) was the appellant’s character improperly placed into
issue by the Crown leading to an unfair trial; and 3) had the trial judge failed to apply
the principles of R. v. W.D. and erred in the method used to analyse the appellant’s
credibility.
HELD: The court allowed the appeal on the second ground, set aside the conviction
and ordered a new trial. It found with respect to each issue that: 1) the appellant had
not met the onus on him to establish that his Charter rights had been breached. He had
not requested recordings of the telephone calls from the Crown and thereby failed to
exercise the standard of due diligence expected of a self-represented litigant. Without
the recordings of the telephone calls, there was no evidence before the court to permit
it to evaluate whether the content could have affected the outcome of the trial. At best,
the value of the content would be low. At trial, the Crown informed the trial judge, in
the presence of the appellant, that the Crown would only be calling Ms. Froh. The
appellant had not objected to the Crown not calling the officers or asked for an
adjournment in order to subpoena them. The court responded to the appellant’s
contention that the Crown had an obligation to a self-represented person to assist them
in advance of trial. It found that on the basis of the evidence, it was not prepared to
hold that the Crown had an obligation to do so; 2) the trial judge committed an error of
law in admitting the character evidence regarding the appellant without providing
assistance to him regarding his right to object and without engaging in analysis of
probative value versus prejudicial effect and the appeal was allowed on this point; and
3) the trial judge engaged in a proper credibility analysis.
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Criminal Law – Theft
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R. v. Hordyski, 2014 SKCA 102 - Court of Appeal, Herauf Whitmore Ryan-Froslie,
September 26, 2014 (CA14102)
The appellant represented himself at the appeal of his conviction for an offence of theft
under $5,000 contrary to s. 334(b) of the Criminal Code. He also appealed his
sentence. The appellant had been observed shoplifting merchandise in a store by a
loss prevention officer. The only witnesses who testified were the loss prevention
officer and the appellant. At trial, his defence was that he did not have the necessary
intent to commit the offence. The appellant argued that his trial counsel was
incompetent because he failed to call evidence that corroborated his theory that he did
not have the intent because he was suffering from a back injury and because his
relationship with his girlfriend was dysfunctional.
HELD: The appeal was dismissed. The trial judge had accepted the appellant’s
testimony regarding his physical condition and his relationship but rejected his
contention that either raised a reasonable doubt as to his intent to steal the items. The
appellant’s counsel cross-examined the Crown witnesses properly and elicited
evidence from the appellant relating to his defence. In not calling corroborating
evidence, the trial counsel had done nothing unreasonable when the proposed
evidence did not relate to material issues but only to facts the trial judge accepted. The
appeal of sentence was dismissed as moot as the appellant had served his entire
period of probation prior to the appeal being heard.
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– Appeal
– Child Support – Imputing Income
– Child Support – Interim Application
– Child Support – Variation
– Custody and Access – Contempt
Bittner v. Wutzke, 2014 SKCA 100 - Court of Appeal, Jackson Ottenbreit Caldwell,
September 22, 2014 (CA14100)
The appellant appealed two decisions. The first appeal was from the chambers judge
dismissing the appellant’s application to have the respondent found in contempt of a
court order and for payment of expenses she incurred for two trips to attempt to have
access to her son. The chambers judge found as a fact that there had been
miscommunication between the parties regarding the access arrangements. The
chambers judge found the respondent at fault for the miscommunication but did not
find that it was willful and therefore was not contempt of a court order. The chambers
judge could not make a decision on the expenses because there was no evidence
regarding them. The second appeal was from the dismissal of the appellant’s
application to vary interim child maintenance. The judge found that the appellant’s
circumstances had not changed so as to change the imputation of income to the
appellant.
HELD: The appeal was dismissed. The Court of Appeal did not find any basis to say
that the chambers judge erred in concluding that there was miscommunication between
the parties. Further, contempt is quasi criminal and requires proof beyond a reasonable
doubt. Also, there was no evidence of the specific expenses, so the chambers judge
could not decide on them. With respect to the second appeal, the Court of Appeal
found that there was no basis to set aside the judge’s decision.
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Family Law – Child Support
Ferris v. Longhurst, 2014 SKQB 294 - Court of Queen's Bench, Megaw, September 15,
2014 (QB14282)
The parties are the parents of an eight-year-old daughter who was born after they had
a brief relationship. At the time of the birth of their child, an interim order was made
providing the petitioner mother with sole custody and directing that the respondent pay
child support pursuant to s. 3 and s. 7 of the Guidelines. In 2008, a consent judgment
was granted determining the parties to have joint custody with the primary residence of
the child to be with the petitioner. The parties were to work out a parenting schedule
and to share holidays and special occasions equally. The support payment of the
respondent was reduced by $100. In 2013, the respondent applied to vary the 2008
order. The parties began to work on an equal parenting regime because of their work
schedules as they are both police officers. The financial statements showed that the
petitioner earned $98,400 per year and the respondent’s income was $103,500. They
filed financial statements and the petitioner spent $5,500 regarding her child’s expenses
and the respondent contributed $800. The respondent deposed that he had moved his
residence to the opposite end of the city and as he was responsible for driving his
daughter to school for 50 percent of the school year, this cost him an additional amount
of $500. The petitioner had been responsible for transporting the child to all
appointments and extracurricular activities. The respondent application included
requesting the court: 1) to determine that each party be entitled to two weeks of
vacation with their daughter; 2) to determine that he be allowed to take their daughter
out of school for these holidays and home-school her during the vacation; 3) to
determine that the respondent’s parent to have the child when he is away on vacation;
4) to set the appropriate amount of child support; and 5) to make a Contino order
based on the respondent’s additional travel costs to drive the child to school.
HELD: The court declined to order that the respondent be allowed to remove the child
from school during the vacation time without any supporting facts. If the respondent
was unavailable to parent the child during his scheduled time, the petitioner should
have the first opportunity to parent during that time, not the respondent’s parents.
Based on a straight set-off analysis under the Guidelines and the parties’ income, the
respondent should pay $46 per month in child support. Using the Contino approach in
a shared parenting arrangement, the court found that it did not have sufficient
information before it to make a determination using the Contino approach in shared
parenting. The court found that the financial statements established that the petitioner
incurred higher child-related costs than the respondent. Considering the overall
situation of the parents and that the child’s needs appear to be met by each parent
according to their means, it would be appropriate for the respondent to pay the set-off
amount of $46 per month.
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– Child Support – Determination of Income
– Child Support – Imputing Income
– Child Support – Interim
– Child Support – Section 7 Expenses
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Family
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– Custody and
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Access
Access
– Children Born Outside Marriage
– Children’s Law Act
– Interim
– Sole Custody
Guenther v. Vanderhoof, 2014 SKQB 296 - Court of Queen's Bench, Turcotte, September
15, 2014 (QB14288)
The petitioner mother applied for sole custody of the child and for child support,
including a sharing of child-care expenses. The parties had a brief relationship that
ended shortly after the petitioner became pregnant. The child was born in April 2013,
and since that time the respondent had access twice a week for one hour supervised
by family or friends. The petitioner restricted the respondent’s access because he was
harassing, aggressive and belligerent towards her after learning that she was pregnant.
The petitioner argued that the respondent had a drug and alcohol problem. The
respondent sough joint shared custody. He indicated that he had not had alcohol since
November 2013, was in AA and had a counselor. The respondent proposed a gradual
increase in his parenting time working towards a 50-50 split. The respondent did pay
child support and he argued that he overpaid based on his income of $16,900.
HELD: The petitioner’s suggestion that the respondent’s access should continue to be
supervised was without foundation and contrary to the maximum contact principle in s.
6(5) of The Children’s Law Act. The court was not prepared to order joint custody
based on affidavit evidence when the petitioner had primarily cared for the child since
her birth and the respondent had limited access. The court ordered interim sole custody
for the petitioner with structured access for the respondent. The court stipulated
specific access times with a gradual increase in access time for the respondent,
working up to alternating weekends. The respondent was also ordered to refrain from
consuming alcohol, non-prescribed medications, and narcotics for a 24-hour period
prior to and during parenting. The order included the right of the respondent to inquire
about the child’s health, education and welfare. A right to review the interim order was
given after January 14, 2015. The court determined the respondent’s income to be
$30,000. The respondent was a self-employed cabinet maker and the court added
some income to his line 150 income to account for the personal portion of some
deductions and capital cost allowances. The petitioner’s income was $46,000. The
respondent was ordered to pay child support pursuant to s. 3 of the Guidelines as well
as his proportionate share of child-care expenses.
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– Child Support – Retroactive
– Custody and Access – Best Interests of Child
– Custody and Access – Children Born Outside Marriage
– Custody and Access – Children’s Law Act
– Custody and Access – Joint Custody
– Custody and Access – Primary Residence
– Custody and Access – Shared Parenting
Bulischak v. Kriewaldt, 2014 SKQB 301 - Court of Queen's Bench, Barrington-Foote,
September 18, 2014 (QB14307)
The petitioner father sought an order for joint custody and shared parenting, while the
respondent mother wanted to maintain the status quo whereby the child resided with
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her and the petitioner had access every second weekend. The respondent also sought
retroactive and ongoing child support. The petitioner had continuing contact with the
child, born in 2007, until March 2010 when the parties ended their intimate relationship.
On May 30, 2011, the court ordered access time to the petitioner. When the child
began school in September 2013, the parties agreed that the petitioner would have
access every second weekend. The petitioner indicated that his ability to rearrange
shifts for the every other weekend access would be reduced in the future. The
petitioner lived 60 minutes from the respondent under normal driving conditions. The
petitioner lived with his new partner and her six-year-old son. The new partner was not
employed outside the home and was willing to care for the petitioner’s child. The
petitioner also had a 10-year-old daughter from a different relationship, and she
sometimes visited at the same time as the child. The child also had a close relationship
with the petitioner’s parents who lived nearby the petitioner. The respondent and child
lived in Esterhazy and were within walking distance to his school. The parties had a
hostile relationship with no effective communication. The child was aware of the conflict
between his parents. The petitioner argued that he should pay retroactive support from
January 2011 and the respondent said it should be from the child’s birth. The petitioner
had paid child support since April 2008 and has contributed to daycare.
HELD: The respondent’s evidence was found to be self-serving based on her
demeanor. The respondent’s evidence was also found to be self-serving but to a lesser
degree. The court found that the petitioner’s ability to switch shifts would only be
reduced in the summer months when the child was off school. Both parties were found
to be fit and loving parents who could meet the child’s economic needs. The
petitioner’s new partner was suited to play a parental role. The court concluded that the
acrimonious relationship of the parties weighed against a shared parenting
arrangement, as did the petitioner’s shift work and residence over an hour away. The
court found that the respondent was the child’s psychological parent from his birth and
stability was an important consideration. The court also concluded that it was in the
child’s best interests to have frequent time with the petitioner with limited periods of
separation. The court ordered joint custody with primary residence with the respondent
and generous access to information and parenting time for the petitioner. The court
concluded that the respondent never pursued the issue of child support before 2010
and there was no evidence that the child suffered as a result of the petitioner not
paying full Guideline amounts. The court agreed with the petitioner that retroactive
support should only be ordered after 2011. The petitioner was ordered to pay
retroactive support in the amount of $2,700.
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Municipal Law – Expropriation – Compensation
Colhoun v. Lumsden (Rural Municipality No. 189), 2014 SKQB 321 - Court of Queen's
Bench, Barrington-Foote, October 2, 2014 (QB14313)
The applicant originally applied for an order quashing an expropriation bylaw enacted
by the respondent pursuant to s. 3 of The Municipal Expropriation Act (MEA) (see:
2013 SKQB 326). The court upheld the bylaw and the applicants then applied to the
court to determine the compensation payable for the land taken by the bylaw pursuant
to s. 7 of the MEA. Section 9 of the MEA established that the court should consider the
value of the land as at the date of deposit of the plan and the damage if any, caused to
the remaining land of the claimant. In this case, the applicants owned a quarter section
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and had tried to obtain approval of the subdivision of an eight-acre parcel of it for two
residential lots, known as A and B. The negotiations between the parties had been
aimed at finding a way for the applicants to meet the conditions for approval, because
there had been a two-acre parcel used historically to provide access to land owned by
other parties. The respondent offered to purchase the two-acre parcel without success
and expropriated the two-acre parcel for the purpose of providing legal access. For
various other reasons, the applicants were denied approval for their two-lot subdivision
from the Community Planning Branch of the provincial government’s Ministry of
Government Relations. The appraisal report prepared for the applicants was based
upon the assumption that the highest and best use of the eight-acre parcel was the
development of two residential lots. The appraiser was not aware of the failed attempts
to achieve the subdivision. The respondent’s appraiser concluded that the highest and
best use of the quarter section, including the eight-acre parcel, was agricultural
because the requirements for legal subdivision could not be met. He prepared a
second report that assumed that the highest and best use was for a single-lot
subdivision of the eight-acre parcel.
HELD: The court found that no compensation was payable to the applicants. It
employed the before-and-after method of valuation, which meant that the applicants
should receive the difference between the value of the eight-acre parcel that they
owned prior to the expropriation and the value of the six-acre site that they will have
after the expropriation. The calculation accounts for the value of the road parcel, the
damage to the remaining six-acre parcel and any increased value to the remaining land
arising from the work to be done which was the maintenance of a public road. The
unusual feature of this case was the existing road. The expropriation related to an
existing road and in order to subdivide a single parcel from the quarter section, the
applicants were required to secure legal access, meaning that they would have had to
transfer title to the road parcel at no cost. Given that transfer without compensation
was an unavoidable cost of single-lot subdivision, the value of the eight-acre parcel for
a single-lot subdivision was the same before and after the expropriation of the road
parcel. The applicants suffered no loss as a result of the expropriation.
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Professions and Occupations – Lawyers – Fees
Maurice Law, Barristers & Solicitors v. Sakimay First Nation, 2014 SKQB 310 - Court of
Queen's Bench, Krogan, September 24, 2014 (QB14308)
The plaintiff law firm applied pursuant to ss. 64 and 67 of The Legal Profession Act,
1990 to assess a fee agreement and bill of fees. The plaintiff acted as legal counsel to
the defendant from 2003 to 2011. There was a Treaty Land Entitlement (“TLE”)
Retainer Agreement between the parties, which did not provide for a bonus or
contingency. The TLE Retainer Agreement also had a provision dealing with the
payment of non-TLE-related legal services. The defendant argued that one of the
reasons the plaintiff was chosen to represent them in the TLE was because there was
no expected bonus or contingency. The plaintiff was retained by the defendant for
representation in 2006 with respect to negotiations with the Government of Canada and
Saskatchewan regarding flooding of the defendant’s land in the 1940s, known as the
QVIDA claim. The plaintiff eventually had the defendant sign another retainer for the
QVIDA claim: the QVIDA Retainer Agreement. The QVIDA Retainer Agreement
provided for hourly fees and a 3 percent bonus of settlement monies. To persuade the
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defendant to sign the QVIDA Retainer Agreement, a senior partner of the plaintiff
attended a meeting and told the defendant they were getting a good deal because
another law firm was getting a 10 percent bonus. The law firm did not get 10 percent
and this was conveyed to the plaintiff’s senior partner. There was no evidence that the
plaintiff advised the plaintiff they could seek independent legal advice. A councilor
testified that he would not have voted in favour of the agreement if he had known that
the other law firm was not actually receiving 10 percent. The 3 percent bonus
amounted to $635,751.96, which was known at the time of signing the Retainer
Agreement because a settlement had already been reached. The defendant terminated
the QVIDA Retainer Agreement with the plaintiff on December 21, 2010. The defendant
was billed $977,964.05 in legal fees from 2006 to 2011. The issues for the court were:
1) did the plaintiff accept the defendant’s repudiation of the QVIDA Retainer
Agreement; 2) is the QVIDA Retainer Agreement fair and reasonable; and 3) if the
QVIDA Retainer Agreement was not fair and reasonable, what was the plaintiff entitled
to do.
HELD: The issues were determined as follows: 1) the plaintiff did not unequivocally
accept the defendant’s repudiation of the QVIDA Retainer Agreement. The plaintiff did
not treat its obligation as ended; 2) s. 64(3) of the Act requires that fees must be fair
and reasonable. The TLE Retainer Agreement provided for legal services beyond the
TLE to be billed on an hourly basis like work on TLE matters. There was no evidence
that the plaintiff brought this to the defendant’s attention, and the court concluded that
the defendant did not know that the additional legal services were covered in the
original TLE Retainer Agreement. If the defendant had known of the additional fee
arrangement, the court found that they would not have agreed to the QVIDA Retainer
Agreement. Because the defendant did not have the information needed to properly
consider the QVIDA Retainer Agreement, there was unfairness to them. Further, the
vote to accept the QVIDA Retainer Agreement was influenced by the plaintiff telling the
defendant that another law firm was receiving a 10 percent bonus, which was
inaccurate. The plaintiff failed to demonstrate the QVIDA Retainer Agreement was fair.
The plaintiffs increased and then gave a discount on their hourly rate in the TLE
matter. The court concluded that this was done in hopes that the defendant would view
it as a good deal on fees, prompting them to accept the QVIDA Retainer Agreement.
The quantum of damages was agreed to when the QVIDA Retainer Agreement was
signed and therefore the plaintiff assumed no risk. Once the agreement was reached,
counsel for all the different First Nation groups worked together to draft the necessary
documents. The plaintiff did not have to draft all of the documents. The court
concluded that the QVIDA Retainer Agreement was not reasonable in the
circumstances; and 3) the court concluded that the amounts already paid and the final
bills to be paid were fair and reasonable compensation for the work completed by the
plaintiff.
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Real Property – Vesting Order – Queen’s Bench Act, 1998, Section 12
Wills and Estates – Property
Urch Estate, Re, 2014 SKQB 312 - Court of Queen's Bench, Goebel, September 25, 2014
(QB14309)
The applicant applied pursuant to s. 12 of The Queen’s Bench Act, 1998 for an order to
vest a 1/6 interest in mines and minerals in a parcel of land in Saskatchewan. The
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applicant argued that the interest was part of the rest and residue of the estate of the
testator, who died in 1981. The executors and first line of beneficiaries had all since
passed away. The remaining beneficiaries all agreed that the interest be transferred to
the deceased’s granddaughter.
HELD: The court found that the application sufficiently identified all interested parties
and provided proof that the title to the interest was still in the testator’s name with no
interests registered against it. Given there were no disputed facts or adverse parties
and because all other remedies would be out of proportion to the nominal value of the
interest, the court exercised its jurisdiction and granted the vesting order.
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Small Claims – Appeal
Chaina v. Cove, 2014 SKQB 311 - Court of Queen's Bench, McMurtry, September 25, 2014
(QB14298)
The appellant appealed a decision of Small Claims Court that found the appellant 75
percent liable for a motor vehicle accident and the respondent to bear 25 percent of
the liability. The appellant had been turning his vehicle left across traffic on an advance
green light. As he was in the intersection, the advance green turned yellow. The
respondent drove through the intersection from the intersection and only saw the
appellant’s vehicle a few feet ahead before his vehicle collided with the appellant’s.
The trial judge held that a person conducting a left-hand turn at an intersection has a
heavy onus to ensure himself that he can do so in safety and that the appellant had not
satisfied that onus. The judge also concluded that the respondent’s vehicle entered the
intersection on a green light but had not acted prudently in proceeding through in the
fashion that he had. The appellant appealed on the ground that the judge had
neglected the fact that the appellant still had the right of way when he proceeded to
turn left on a yellow arrow, which meant that the respondent entered the intersection
on a red light.
HELD: The court dismissed the appeal. The court found that the trial judge made a
reasonable determination on the facts and because of the heavier onus on the
appellant, he correctly apportioned blame.
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Statutes – Interpretation – Local Improvements Act, 1993
Statutes – Interpretation – Municipal Board Act
Prairie Valley School Division No. 208 v. Pilot Butte (Town), 2014 SKQB 302 - Court of
Queen's Bench, McMurty, September 18, 2014 (QB14276)
The applicant School Division owns four lots in the respondent town of Pilot Butte on
which it operates the elementary school. It received a notice from the respondent of a
local improvement special assessment pursuant to s. 33(2) of The Local Improvements
Act, 1993. The special assessment was levied in relation to a water distribution service.
The School Division appealed the assessment to a board of revision, which rejected
the appeal. It then applied to Queen’s Bench for judicial review of the decision and of
the bylaw permitting the respondent to levy the assessment. The applicant argued that
it was exempt from the special assessment pursuant to s. 30 of the Act.
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HELD: The court dismissed the application. The Act provides for a right of appeal
against every special assessment to the board of revision of the municipality. Under s.
40, the Act provides that the party may appeal the board’s decision to the
Saskatchewan Municipal Board (SMB). The Municipal Board Act provides that an
appeal to the Court of Appeal may be made from the SMB’s decision on a question of
law or its jurisdiction pursuant to s. 33.1 of that Act. The applicant must take the
question to the SMB to inquire whether it should be exempted from special
assessment.
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Statutes – Interpretation – Saskatchewan Employment Act, Section 6-78
Injunction – Interlocutory Injunction – Requirements
Labour Law – Collective Bargaining Agreement – Interlocutory Injunction
CLR Construction Labour Relations Association of Saskatchewan v. International
Association of Heat and Frost Insulators and Asbestos Workers, Local 119, 2014 SKQB
318 - Court of Queen's Bench, Smith, September 29, 2014 (QB14300)
The plaintiff is a representative employer organization within Division 13 (Construction
Industry) of Part VI (Labour Relations) of the new Saskatchewan Employment Act. The
defendant is the bargaining agent for the Insulator Trade Division (ITD) as per s. 6-66
of the Act. The parties applied to the court because they disputed the interpretation of
s. 6-78 of the Act, particularly as it applied to two collective bargaining agreements
negotiated by the plaintiff and the defendant within the ITD: one for the industrial sector
and the other for the commercial sector. The latter agreement was to expire on
October 31, 2014. The former agreement expired on April 30, 2014, and on September
15, the plaintiff was served by the defendant with a 48-hour strike notice. The plaintiff
sought and obtained an injunction from the court until a judgment could be rendered.
This application appears to be part of the injunction process. Section 6-78 states that if
a union or council of union intends to strike in a trade division, it shall strike with
respect to all unionized employers in the trade division and with respect to all unionized
employees of the unionized employers. The defendant argued that the Court of
Queen’s Bench might not be the appropriate forum for this type of application and
might defer it to the Labour Relations Board. Regarding interpretation of the Act, the
defendant argued that it had been the plaintiff who had originally insisted that
bargaining within the ITD be split into two separate agreements. The parties continued
to bargain separately and deliberately established different end dates to ensure that
simultaneous bargaining was not required. Reading the provisions of the Act
contextually, it was then nonsensical to assert the industrial employers would be
subject to the terms of the Commercial Collective Agreement.
HELD: The court ruled that it was cloaked with jurisdiction under s. 65 of The Queen’s
Bench Act, 1998 to hear and determine the application for an injunction and would use
the tests to determine whether there was a good arguable case, irreparable harm and
balance of convenience. The court found that the plaintiff had made a good arguable
case, although it agreed with the defendant that the parties’ past practice in negotiating
two agreements within the ITD had created an anomalous situation in the face of s. 678. The wording of the Act clearly indicates, though, that if a union intends to strike in a
trade division, all unionized employees must strike. In light of s. 6-17 of the Act, no
employees of the ITD may strike (notwithstanding the expiry of the industrial
agreement) until all the employees of the trade position are in a legal position to strike.
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The province-wide nature of the strike could do irreparable harm. The balance of
convenience also supported the plaintiff’s case. The commercial agreement was to
expire very soon and at that time if the parties hadn’t resolved the matter, the
defendant would be in a position to comply with s. 6-78 and strike the entire trade
division. The court issued an interim injunction restraining the union from engaging
strike activity until the time when the Industrial employees and those covered by the
commercial agreement were in a position to legally strike.
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Trusts and Trustees – Trust Agreement – Interpretation
Royal Trust Corp. v. Nekaneet First Nation, 2014 SKQB 309 - Court of Queen's Bench,
Krogan, September 24, 2014 (QB14294)
Royal Trust, as trustee of the Nekaneet Treaty Benefits Claim Trust under the
Nekaneet Treaty Benefits Claim Trust Agreement of October 1, 2009, applied pursuant
to s. 47 of The Trustee Act, 2009 and to Queen’s Bench rules 3-2 and 3-49 for a
determination regarding the construction and administration of the Trust Agreement.
The determination was necessary to identify the number of positive votes required to
constitute a valid amending agreement in accordance with paragraphs 12.2(c) and (d)
of the agreement. The paragraphs in question described the amendment to the
agreement shall require in the case of (c): “…approval by a majority of 50% plus one of
all Electors voting in favour of agreement in a Referendum duly called for such
purpose”; and in (d) “by written agreement of the parties as to an amendment that
would permit the use of Trust Property…shall require approval by a majority of 75% of
all Electors voting in favour of such amending agreement.” The term “Elector” was
defined in the agreement as: “member of the First Nation who has achieved the age of
at least 18 years on a given date”; and the term “Member” was defined as: “a member
of the First Nations within the meaning of the Indian Act”. The first issue was whether
the court had jurisdiction to determine the question, and if so, how to interpret the terms
of the agreement.
HELD: The court found that it had jurisdiction. Although Indian Band Councils are a
“federal board, commission or tribunal” within s. 18(1) of the Federal Court Act, the
respondent here was the membership of the Nekaneet First Nation who are the
beneficiaries of the trust. The agreement was made in the province respecting a trust
in the province. Further, the application was made pursuant to the terms of the trust,
which included a provision that the parties would submit and attorn to the courts of the
province and fell within the inherent jurisdiction of the court regarding trusts. The court
interpreted the paragraphs in question to mean a majority of the majority. The case law
supported the identification of a quorum of eligible voters from which a majority must
return a positive vote in order to approve a particular matter. The quorum in (c) is 50
percent plus 1 and in (d) 75 percent plus 1.
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