Case mail v. 15 no. 13

The Law Society of Saskatchewan
Volume 15, No. 13
July 1, 2013
Administrative Law – Judicial Review – Automobile Injury Appeal Commission –
Subject Index
Reduction of Benefits
, 2013 SKCA 29 - Court of Appeal, Cameron
Jackson Richards, March 11, 2013 (CA13029)
The appellant appealed the decision of the Automobile Injury Appeal Commission. It decided that the amount of the appellant’s income benefit that he was receiving as a result of injuries sustained in an automobile accident in 2006 would be reduced and that the appellant was able to re-enter the workforce as a line-haul truck driver. The appellant argued that the commission erred in law by overlooking evidence that he was no longer qualified to operate trucks as a line-haul driver because his operator’s licence had been downgraded during his recovery from a Class 1A to Class 5A licence, thus disqualifying him from doing so. In addition to that evidence, there was also evidence before the commission from a vocational counsellor who had stated the downgrading of the appellant’s licence prohibited him from returning to work in that HELD: The Court allowed the appeal. The commission erred in law by overlooking the critical evidence that went to the question of whether the appellant could work as a line-haul driver. The Court set aside the decision and remitted the matter of the appellant’s entitlement to an income replace benefit to SGI for determination in accordance with the governing provisions of The Automobile Accident Insurance Act.
The Law Society of Saskatchewan Libraries Administrative Law – Judicial Review – Municipal Bylaws
2013 SKQB 99 - Court of Queen's Bench, Ball, March 21, 2013
The applicants brought an application requesting an order in the nature of mandamus requiring the City of Estevan to issue to the applicants taxi-cab licenses and Business Licences for 2013. The application arose out of a number of facts. The applicant Mr.
Jess had operated the applicant taxi cab company for a number of years in Estevan.
The city requires the operator of a taxi cab business to hold three different licences: a Business Licence pursuant to the city’s Business Licence Bylaw, a taxi cab operator’s license and a Taxi-Cab Licence, both issued pursuant to the city’s Taxi-Cab Bylaw.
The Business Bylaw required that an applicant for a licence to provide a Certificate of Good Character by the Chief of Police. Under the Taxi-Cab Bylaw an applicant for a taxi-cab operator’s licence must provide the same certificate. The applicant was not able to obtain the certificate. In 2011, the applicant had obtained a document entitled Certificate of Good Character/Police Approval from the Chief of Police approving Mr.
Jess as a “Transport Passengers for Hire Driver” under The Traffic Safety Act, which was required by SGI. During 2012, the Police Chief, the defendant, Del Block, had file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] learned of and witnessed Mr. Jess conducting himself in a way that indicated that he was abusing drugs or alcohol and was demonstrating emotional instability. The episodes were described in the judgment. As a result of this information, the Chief decided that he could not provide a Certificate of Good Character or recommend to the City that Mr. Jess’s licences be renewed in the absence of the certificate. The issuance of the certificate was based on not only criminal record checks but also on considerations regarding people in positions involved in the safety or well-being of young people, elderly or otherwise vulnerable people. The Chief then informed that applicant Mr. Jess of his decision. On December 31, 2012, Mr. Jess was informed by the city that his licences were expiring that day and that they would not be renewed.
The applicants brought the application as a result. The issues before the Court were: 1) whether Mr. Jess was required by the bylaws to obtain a Certificate of Good Character as a condition of obtaining the licences required by the applicants to operate a taxi-cab business in 2013; 2) whether the certificate issued to Mr. Jess in April 2011 remained valid and satisfied the requirements of the bylaws; 3) whether the Chief of Police acted lawfully in refusing to issue a certificate to Mr. Jess; and 4) whether the City of Estevan or its Licence Inspector failed or refused to carry out a statutory duty to the applicants that they should be ordered to perform by way of mandamus.
HELD: The Court dismissed the application and held, regarding each issue, that: 1) the appellant was required by the provisions of the Taxi-Cab Bylaw to furnish the Licence Inspector with a Certificate of Good Character as a condition of obtaining a taxi-cab operator’s licence; 2) the certificate relied upon by the applicant was not issued for the purposes of the bylaw but for provincial legislation. The bylaw required that the certificate be renewed annually; 3) the bylaw gave the Chief of Police the general discretion to issue a certificate but limited it to refusal where the applicant had been previously convicted of an indictable offence. The Court found on the evidence that the Chief had acted fairly, reasonably and in good faith in declining to issue the certificate and acted lawfully in doing so; 4) the applicants chose not to apply for a Business Licence under the Business Licence Bylaw or for a taxi-cab operator’s licence under the Taxi-Cab Bylaw because they knew that they would not have been able to obtain a certificate from the Chief of Police and, without it, the licences would not have been issued. Mandamus was not available because the duty of a public official to issue the licences did not arise until the applicants had submitted their application and the certificate, which they had not. It would serve no practical purpose, a pre-condition for the issuance of an order of mandamus to issue, to require the respondents to issue the taxi licences in the absence of a taxi operator’s licence.
The Law Society of Saskatchewan Libraries Cases by Name
Constitutional Law – Charter of Rights – Education – Minority Language
Injunction – Interlocutory Injunction
, 2013 SKCA 35 - Court of Appeal, Klebuc
Richards Caldwell, March 28, 2013 (CA13035)
The respondent operates French language schools in Saskatchewan. The respondent believes that it has been chronically underfunded by the appellant government. As a result, it commenced an action in Queen’s Bench against the government seeking a range of declaratory and injunctive relief with the hope that the parties long-term fiscal relationship would be more favourable to the respondent. The respondent obtained file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] three interlocutory injunctions that obligated the appellant to provide it with supplementary funding. The appellant argues that two of the injunctions have the effect of requiring it to pay for educational services provided to non-Saskatchewan students attending school in Lloydminster and Bellegarde. The appellant argues that it has no duty to fund students who reside outside the province of Saskatchewan and seeks to have these injunctions set aside to the extent that they result in carrying the cost of HELD: The appeal was allowed in part. The Government has no obligation to finance the minority language education of students who reside outside the province of Saskatchewan. However, the injunction with respect to the Lloydminster school must remain in place because the costs associated with educating students who are resident in Alberta is not easily calculable. The evidence suggests that a significant number of the students attending the school in Lloydminster are Alberta residents; however, the evidence is not clear as to how the cost of providing education to the Saskatchewan students at the Lloydminster school can be calculated. Based on the evidence before the Court, it is impossible to parse out which costs are directly attributable to the Saskatchewan students and which costs are attributable to the Alberta students in the Lloydminster school. For example, it is impossible to say how the annual maintenance costs of the school could be apportioned to the students in Saskatchewan. With respect to the Lloydminster injunction, the Chambers judge erred in finding that it was appropriate to order Saskatchewan to initially carry the full cost of the Lloydminster school and that Saskatchewan should then seek reimbursement from Alberta for expenses relating to Alberta students. If the s. 23 rights of Alberta students are not met, the Alberta students should look to the Province of Alberta to satisfy their rights.
The Lloydminster Charter does not speak to the funding and operation of minority language schools. As a matter of policy, it might be advisable for Alberta and Saskatchewan to work out a means of cooperating in the provision of French language education in Lloydminster, but the provinces are under no legal obligation to find such a relationship. The situation at the school in Bellegarde is different. The Bellegarde school is located near the Manitoba border. Fourteen students who reside in Manitoba are enrolled at the Bellegarde School. The respondent charges each of these students $12,000 per year. The appellant says that the cost of educating these Manitoba children is substantially more. To the extent that Saskatchewan is required to subsidize the cost of educating the Manitoba children at the Bellegarde school, the injunction must be set aside. The Court held that it would be inappropriate to allow the appellant to claw back any overpayment made to date. The order with respect to the Bellegarde school will be The Law Society of Saskatchewan Libraries Appeal – Criminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08
Constitutional Law – Charter of Rights, Section 10(b) – Right to Counsel
, 2013 SKCA 28 - Court of Appeal, Klebuc Ottenbreit Herauf, March 11, 2013
The appellant appealed the Summary Conviction Appeal Court’s order of a new trial on a charge of driving with a blood alcohol level exceeding .08. The trial judge had originally acquitted the appellant on the basis that his rights under s. 10(b) had been breached. The Crown appealed the trial decision, and a Summary Conviction Appeal Court judge held that although the police had not fulfilled the implementational file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] requirements of s. 10(b), the appellant’s right to counsel was met by virtue of the fact that the appellant twice expressed satisfaction with his telephone call to Legal Aid. The Summary Conviction Appeal Court judge ordered a new trial. When the appellant was stopped by the police, he was advised of his right to retain and instruct counsel without delay. The appellant indicated that he understood what he was being told, but said he did not have a lawyer. At the police station, the appellant again indicated that he would speak to a lawyer, but did not have one. The officer suggested that the appellant could call a family member who might be able to recommend a lawyer. The appellant repeated that he did not have a lawyer. At that point, the officer re-read the right to counsel and warning and informed the appellant that he could call Legal Aid Duty Counsel. The appellant indicated that he wanted to call Legal Aid. The officer put the accused in touch with Legal Aid Duty Counsel and the appellant was on the phone for about seven minutes. After the call ended, the appellant was asked if he was satisfied with his telephone consultation with duty counsel and he said he was. The appellant also told the qualified technician that he had spoken to a lawyer and was satisfied with HELD: The appeal was dismissed. The Court of Appeal held that the appellant’s s.
10(b) rights were not breached. The Court of Appeal specifically indicated that it did not agree with the summary conviction appeal judge’s endorsement of the trial judge’s finding that the police had failed to fulfill the implementational duty to the appellant.
The Law Society of Saskatchewan Libraries Civil Procedure – Class Actions
, 2013 SKQB 113 - Court of Queen's Bench, Ball, March 28,
2013 (QB13095)
The plaintiffs applied for a certification of a proposed class action suit against the defendant regarding a prescription drug, Paxil. The plaintiffs applied for leave to amend their pleadings and to file additional materials. The defendants opposed the granting of leave on the grounds that it would: constitute an abuse of the court’s process; amount to the splitting, improperly, of the plaintiffs’ case; and substitute one class of plaintiffs for another to the prejudice of the defendant. The plaintiffs commenced their action in 2008 and had apparently been the cause of delays in moving the claim forward. In this application, the plaintiffs wished to revise the class description and substitute the term “depression” for “MDD” or “Major Depressive Disorder”. The application for leave to file additional materials involved new affidavits. The issues were whether the new material would be relevant to the issues to be decided and whether it would cause an injustice HELD: The Court held that the pleadings could be amended on the basis that the proposed change to the class would not deprive the defendant of the defence of the expiry of a limitation period. The amendment would not constitute an abandonment of the claim by Paxil users as the defendant suggested. The Court then reviewed each of the affidavits and found them to be relevant. For example, one identified a representative plaintiff who was a member of the proposed class and who satisfied the residency requirements of s. 4(1) of The Class Actions Act and the other introduced a document from Canada Health’s database related to adverse drug reactions. Since the affidavit filed by the plaintiff contained an expert opinion regarding the calculation of an aggregate award based upon facts contained in an affidavit submitted by the file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] defendant, admission of it would not prejudice the defendant. The Court gave the plaintiff leave to file the additional materials.
The Law Society of Saskatchewan Libraries Civil Procedure – Queen’s Bench Rule 338
Civil Procedure – Queen’s Bench Rule 347
Civil Procedure – Judgments and Orders
Criminal Law – Procedure – Restitution – Judgment
, 2013 SKCA 27 - Court of Appeal, Klebuc
Richards Caldwell, March 11, 2013 (CA13027)
The appellant appealed from the decision of the Chambers judge (see: 2011 SKQB 312), which had granted the respondent’s application to renew a judgment against the appellant pursuant to Rule 347(1) of The Queen’s Bench Rules. The appellant argued that the renewal of the judgment was statute-barred because it was beyond the 10- year period prescribed by s. 7.1 of The Limitations of Actions Act. The Chambers judge found that s. 3(l)(i) of the Act applied and that the respondent’s judgment for the purposes of that section had arisen on August 10, 2001. The judgment in question arose from the respondent’s filing in the Court of Queen’s Bench on August 10, 2001, a restitution order dated June 13, 2001, made against the appellant by the Provincial Court pursuant to s. 738 of the Criminal Code. On July 7, 2011, the respondent served the appellant with its notice of motion to renew the judgment.
HELD: The Court dismissed the appeal. The restitution order only became a judgment by being registered and that occurred on August 10, 2011. The Chambers judge was correct in finding that it was Queen’s Bench Rule 338 that applied to determine the effective date of the judgment. As it was not appealed, that was the date on which the respondent’s cause of action on the judgment arose. Rule 347 permitted the respondent to renew the judgment because the respondent applied within the 10-year period set by s. 3(l)(i) of the Act. The appellant also raised the question of whether interest accrued on the amount of the judgment as a judgment or restitution order but the Court declined to answer the question as the Chamber’s judge had indicated that he would hear the matter if the parties could not agree.
The Law Society of Saskatchewan Libraries Contract – Breach
Torts – Negligence
2013 SKPC 27 - Provincial Court, Agnew, March 13, 2013
The corporate plaintiff operates a flooring store. It entered into a contract with the corporate defendant for the installation of tile flooring in two homes. The defendants installed the tile, but the workmanship was of a low quality and errors were made.
HELD: The plaintiff was entitled to damages against the corporate defendant. The plaintiff has not established a sufficient basis to pierce the corporate veil, particularly because the plaintiff made a conscious decision to enter into a contract with the corporate defendant rather than the individuals. In addition, no evidence was put before the Court as to the corporate structure of the defendant corporation. The Court did not file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] accept the plaintiff’s evidence with respect to the quantum of damages and found that the plaintiff was inappropriately trying to recover lost profit in a claim for damages.
However, it would be unfair for the Court to award the plaintiff nothing on the basis that it had not proven its damages. The Court calculated damages based on one half of the total invoices presented by the plaintiff. The corporation was liable for the damages arising out of breach of contract. The individual defendants were also liable in negligence for damage caused by one of the defendants dropping a tile and chipping the floor. Both defendants were found liable because it was impossible to say which one had done it. Damages in negligence were found to be as estimated by the The Law Society of Saskatchewan Libraries Contract – Breach
SKPC 45 - Provincial Court, Green, March 22, 2013 (PC13040)
The plaintiff entered into a contract with the defendant for the installation and monitoring of temperature monitoring equipment for its meat cutting business. The defendant monitored the temperature in the freezer and cooler at the business. The plaintiffs sued because their freezer failed and meat spoiled after a circuit breaker at the business tripped off. The defendant had received no alarm. The plaintiff asserts that the defendant breached the contract by failing to properly monitor the temperature HELD: The contract between the parties was solely for installation and monitoring. The contract did not include any obligation on the defendant to maintain or repair the equipment at the plaintiff’s business. The Court was satisfied that the defendant was monitoring the signal from the plaintiff’s business on the dates in question and no alarm was received. It is not possible to say with any certainty why the defendant did not receive an alarm, but the Court was not satisfied that the plaintiff was regularly having its monitoring equipment serviced or repaired. The plaintiff has not proven that the defendant breached the contract. The action is dismissed.
The Law Society of Saskatchewan Libraries Criminal Law – Controlled Drugs and Substances – Trafficking Marihuana
Constitutional Law – Charter of Rights, Section 11(d) – Right to Trial Within a Reasonable
Time – Trial Delay
2013 SKPC 33 - Provincial Court, Campbell, March 11, 2013 (PC13027)
The accused was charged with trafficking marihuana. The information was first sworn on May 11, 2011. The accused was placed on a number of conditions on the same date. The accused made his first appearance in court June 27, 2011, and adjourned to seek counsel on two occasions. The accused entered a not guilty plea on September 19, 2011, and a trial date was selected of January 19, 2012. The trial did not proceed on that date because the court party was unable to travel due to inclement weather. A second trial date was set for May 24, 2012. The trial did not proceed because the Crown withdrew the original information and placed the replacement information with a new information charging the accused jointly with another person. The defence file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] requested an adjournment and indicated delay would be an issue. On June 4, 2012, the accused entered a not guilty plea and a trial date of March 14, 2013, was set. If the trial proceeds in March, it will be the third trial date. The Court declined to set a special sitting date, which might have resulted in an earlier date, because the accused was not in custody. The accused alleges a breach of his Charter right under s. 11(d) to HELD: The entire period between swearing the first information and the trial date of March 13, 2013, should be considered in determining whether unreasonable delay exists. Approximately 22 months have now elapsed and both the applicant and respondent agree that further examination is required. The Court held that waiver or the applicant’s actions were responsible for 7 months of the total delay. Of the remaining 15 months, the inherent time requirements of the matter, in light of the institutional resources available, accounted for about 5 months. The balance of the delay, being 10 months, was caused by the actions of the respondent in deciding to proceed on replacement information and the schedule of the co-accused’s counsel causing a delay in re-scheduling the trial. The overall delay in this case is not unreasonable and the applicant’s s. 11(d) right has not been breached.
The Law Society of Saskatchewan Libraries Criminal Law – Driving with a Blood Alcohol Level Exceeding .08 – Sentencing
, 2013 SKPC 41 - Provincial Court, Cardinal, March 12, 2013 (PC13031)
The accused plead guilty to one count of driving with a blood alcohol level exceeding .08 and one count of driving while disqualified. The accused had a criminal record with 27 convictions. He was before the Court being sentenced on his fifth conviction for driving over .08 or while impaired and his second conviction for driving while disqualified. His readings were 140 and 150 mgs%. The accused is 40 years old, has three children and is gainfully employed. The Crown, as represented by a member of the RCMP, and defence put forward a joint submission for a fine.
HELD: The sentencing judge rejected the joint submission, commenting that it does not carry as much weight as it might have had an experienced Crown Prosecutor presented it rather than a member of the RCMP. No significant reason has been put forward for accepting the joint submission and it is outside the range of an acceptable sentence given the accused’s prior record. The joint submission is contrary to the public interest.
The accused was sentenced to six months in jail on the .08 with a two-year driving prohibition and a concurrent sentence of three months’ jail on the drive while disqualified with a two-year concurrent driving prohibition.
The Law Society of Saskatchewan Libraries Criminal Law – Motor Vehicle Offences – Driving While Impaired
Criminal Law – Defences – Charter of Rights
2013 SKPC 20 - Provincial Court, Kovatch, February 26, 2013
The accused was charged with impaired driving contrary to s. 253(1)(a) of the Criminal Code and driving while having a blood alcohol level in excess of .08, contrary to s.
253(1)(b) of the Code. The charges arose from a police officer’s observation that the file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] accused’s vehicle was travelling at a speed slightly over the speed limit on roads that were slippery. The officer pulled over the vehicle and spoke to the accused and noticed his eyes were glassy and there was a smell of alcohol coming from the car. The accused demonstrated some difficulty removing his licence from his wallet. The officer testified at trial that although he did not feel that he had reasonable and probable grounds to make an Intoxilyzer demand, he did have sufficient grounds to support an ASD demand for a breath sample. The accused failed the test and the officer then arrested him and advised him of his right to counsel. At 3:29 am the officer made the Intoxilyzer demand. At 3:39 am they arrived at the police station. The officer followed police procedure and waited 15 minutes, considered to be an observation period, to ensure that any mouth alcohol had dissipated, which promoted more accurate readings of blood alcohol. The defence argued that because the officer failed to ask the accused when he had his last drink, prior to taking the ASD sample, this was fatal to the Crown’s case. Secondly, the 15-minute delay at the station was a breach of the accused’s Charter rights because the breath sample was not taken as soon as possible. Defence counsel argued that the appropriate time for the officer to have observed the accused was during the ride to the station.
HELD: The Court first held that the ASD test simply provides reasonable and probable grounds for the Intoxilyzer demand. There was no suggestion here of recent drinking.
The officer had no reason to doubt the accuracy of the ASD test and therefore the results of it gave the officer reasonable and probable grounds to make the Intoxilyzer demand. The Court held that the 15-minute observation period was a well-established and reasonable procedure. The test was administered as soon as practicable. The Certificate of Analysis was admissible. The accused was found guilty of driving while his blood alcohol level exceeded .08.
The Law Society of Saskatchewan Libraries Criminal Law – Motor Vehicle Offences – Driving while Impaired
Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10(a)
2013 SKPC 31 - Provincial Court, Kovatch, February 27, 2013 (PC13024)
The evidence adduced at trial had been adduced in a Charter voir dire. Counsel for the defence argued that the accused’s Charter right to be promptly informed of the reasons for her detention had been infringed in violation of s. 10(a) of the Charter. In addition, the police officer did not have reasonable and probable grounds for the Intoxylyzer demand. Therefore the taking of breath samples from the accused infringed the accused’s s. 8 and s. 9 Charter rights. The accused had been charged with impaired driving and driving while her blood alcohol exceeded .08, contrary to s. 253(1)(a) and s.
253(1)(b) respectively of the Criminal Code. At the time of the alleged offence, the officer had observed the accused run an amber light. The officer followed the accused’s car and measured her speed at 68 kilometres per hour in a 50 kilometre per hour zone.
He pulled over the accused’s vehicle and when she opened the driver’s window, he smelled alcohol. The accused had trouble retrieving her documents. The officer noted that her eyes were bloodshot and her speech was slurred. He observed an open box of beer in the vehicle. He asked her if she had been drinking and denied that she had. He then requested that the she accompany him to the police cruiser. He said that her gestures and speech became exaggerated. As he knew her from previous dealings, he realized that she was behaving differently. Once in the cruiser, he confirmed that the smell of alcohol was coming from the accused. As a result of the foregoing reasons, he file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] concluded that the accused was probably impaired and made the Intoxilyzer demand and she was taken to the police station. Her breath samples indicated 130 and 120 milligrams of alcohol. The defence took issue with the officer’s evidence that her speech was slurred as the videotapes of the accused’s conversation did not demonstrate impairment. The officer’s observation that the accused was not speaking or behaving as she normally did was also contested.
HELD: The Court held that there was no breach of the accused’s s. 10(a) rights. The officer made the Intoxilyzer demand quite promptly, and when he did so, it was apparent to the accused that she was under detention and for what reason. The officer had reasonable and probable grounds to make the breath demand based on his observations. The Court found that the evidence supported the officer’s conclusion that the accused was at least slightly impaired. The accused was found guilty of driving while her blood alcohol limit exceeded the legal limit.
The Law Society of Saskatchewan Libraries Criminal Law – Sentencing – Controlled Drugs and Substances – Conspiracy to Traffic
Criminal Law – Sentencing – Criminal Organization
2013 SKQB 91 - Court of Queen's Bench, Rothery, March 15, 2013
The accused was convicted of trafficking cocaine and participating in a conspiracy to traffic cocaine. The accused became part of a criminal organization directed by another person. Cocaine was brought into Saskatchewan, cut with other product to increase its amount and distributed by concealing one-ounce packages in individual-sized potato chip bags. The accused was one of the distributors of the one- ounce packages to sellers on the street. When the accused decided to discontinue distributing cocaine himself for a period of a month, he had additional sellers working for him. He obtained a commission for his sales. The accused was employed as a plumber throughout the offence dates. He had an addiction to crack cocaine and said that he used some of the money he made from the criminal organization to purchase drugs for personal use. The accused sought a conditional sentence order. The Crown argued for a jail sentence of six years. The leader of the criminal organization had received a sentence of seven years in jail. One co-accused, who was primarily a courier, plead guilty and received a sentence of three years. A third co-accused who had a similar role as the accused plead guilty to the same charges and received a sentence of five years in jail.
HELD: While the accused has rehabilitated himself and is no longer addicted to cocaine, his motivation to sell and distribute the cocaine in this instance was more than simply feeding a habit. He had a job and had resources to pay for his own drug habit.
Instead, he chose to align himself with the others for significant financial gain. The trafficking of cocaine in this case occurred on an elaborate and extensive commercial scale and was carried out within a criminal organization. It is a grave offence with significant harm to society. Deterrence and denunciation must be the primary objectives in sentencing the accused. The accused was sentenced to a total of six years in custody. He was sentenced to three years for the conspiracy charge and three years consecutive on the criminal organization charge. The accused’s parole ineligibility was left to the CCRA. A firearms prohibition, DNA order and forfeiture order were also The Law Society of Saskatchewan Libraries file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] Employment Law – Dismissal Without Cause – Damages
2013 SKQB 75 - Court of Queen's Bench, Konkin, March
1, 2013 (QB13092)
The plaintiff was employed by the defendant for 12 years. The defendant was a company the plaintiff incorporated with his wife when they purchased a pharmacy. The plaintiff was employed as a front store manager at the pharmacy. Overtime, the relationship between the plaintiff and his wife deteriorated to the point that they sought marriage counseling and, eventually, separation. During counseling, the plaintiff disclosed that he had an affair with an employee at the pharmacy. The wife became upset about this and fired the employee. Thereafter, operations at the pharmacy deteriorated. The wife took the position that the plaintiff was not performing his duties properly. Problems were occurring with receiving stock, being available to address problems at the business and staff were becoming frustrated. The plaintiff was served with a termination letter as he was driving home from work in the middle of traffic by a process server. The plaintiff was told not to go to the pharmacy and staff were directed HELD: There was no just cause for the termination of the plaintiff. There was evidence that problems arose with respect to the plaintiff’s work performance, but he was never told that he needed to remedy those issues. He was not given a chance to respond to the complaints about his work and was not put on notice that action would be taken if these issues were not addressed. The plaintiff was a 12-year employee of the company. The employer has an obligation to allow the plaintiff to correct the shortcomings or provide him with payment in lieu of notice of termination. In this case, a period of notice of 12 months is appropriate. During that time, the plaintiff failed to seriously look for alternate employment and chose to try to use the legal system to get his job back. Three months were deducted from the notice period for failure to mitigate.
The plaintiff found alternate employment for a period of five months during the notice period, which was also deducted. The Court also deducted an amount of spousal support that the plaintiff had received based on the fact that he had no income during the notice period. Three weeks of holiday pay was added to the total damage award.
The plaintiff was not awarded aggravated or punitive damages.
The Law Society of Saskatchewan Libraries Family Law – Child Custody and Access
Family Law – Child Support
Family Law – Spousal Support
, 2013 SKQB 55 - Court of Queen's Bench, Zarzecny, February 21, 2013
The petitioner and the respondent had one daughter during the course of their 8-year common-law relationship. The petitioner left the relationship in June 2010 and shortly afterward was beaten by the respondent, who then forced her and their daughter into his car and drove to Ontario. He was sentenced to 6 months’ imprisonment and 18 months’ probation. The petitioner issued her petition in November 2010, and since then, received a number of interim orders regarding child and spousal support as well as parenting arrangements. The petitioner received an order to have the interim primary file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] residence of the child be with her and provided supervised access for the respondent, which was eventually altered to unsupervised access on alternating weekends. No interim custody order was made. An order for interim child support was made but the respondent failed to make payments. The respondent was ordered to pay interim spousal support in the amount of $500 per month, which he also failed to pay. The petitioner sought custody of their daughter and child support from the respondent, as well as spousal support and the division of family property. At the trial, the petitioner and respondent offered conflicting testimony about the nature of their relationship. The petitioner worked erratically during the relationship and currently is self-employed as a house cleaner and works 12–14 hours per week. Her earnings for the last year were $11,500 less expenses of $8,000, resulting in a net income of $3,400. The respondent works across the Prairies as a certified pressure welder. The petitioner argued that the Court should impute an income to him for child and support purposes of $80,000.
HELD: The Court held that the petitioner should have sole custody of the child in the context of s. 3(1) of The Children’s Law Act. The Court found that the respondent did not possess the necessary parenting capacity to be given shared custody and cited that this was revealed by his past and continuing aggressive and disrespectful behaviour towards the petitioner and his failure to acknowledge that he and the petitioner had equal rights to family property. With respect to the claim for child support, the Court found the respondent’s income to be in the range of $70,000. In accordance with the Federal Child Support Guidelines, he was ordered to pay $581 per month. To establish his share of s. 7 expenses, the Court had to determine the petitioner’s income. It held that she was deliberately under-employed. Based on the information before the Court and imputing a higher level of income to her if she worked more hours, the Court established her annual net income at $30,000. Therefore the respondent was ordered to pay 70 percent of the child’s s. 7 expenses. The respondent was in arrears in child support payments in the amount of $16,800, which he was ordered to pay. Regarding the petitioner’s claim for spousal support, the Court noted that the respondent had been ordered to pay interim spousal support of $500 per month commencing August 2012, which he had not paid resulting in arrears of $3,500.
Taking into account that the petitioner was in a new spousal relationship, her capacity to work and earn more employment income, and the property settlement, the Court ordered spousal support to be continued for one year after the commencement of the interim order and to terminate in July 2013. The family property division was based primarily upon the equal division of the parties’ equity in the family home of $177,000 and its current value set at approximately $300,000. The Court ordered that if the respondent was unsuccessful within 60 days in refinancing the family home to pay the equalization amount found owing to the petitioner, then an order would issue granting the petitioner vacant possession of the home and a further order to issue for the The Law Society of Saskatchewan Libraries Family Law – Child Support – Interim
Family Law – Spousal Support – Interim
, 2013 SKQB 58 - Court of Queen's Bench, Wilson, February 21, 2013
The petitioner mother and the respondent separated in April 2011. The parties have one child. The petitioner applied for interim child and spousal support. The petitioner is file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] self-employed and her gross income from sales was in excess of one million dollars.
After expenses were deducted, which included wages she paid to herself in the amount of $41,400, the business was operating at a loss. The respondent contended that the petitioner was inflating her expenses. While in his previous position, the respondent had an annual income of $397,000 in 2011. He changed jobs because of the stress and the long hours. In his new position, his base salary and performance bonus yielded income of $207,000. His employment was less stressful and he had more time to spend with his son. The petitioner argued that additional income should be imputed to the father pursuant to s. 19 of the Federal Child Support Guidelines, as the father is currently under-employed and his choice to take a new position was not reasonable.
HELD: The Court determined that for the purposes of calculating support, the petitioner’s income was $41,900 as the respondent had been unable to pinpoint any expenses that were unreasonable and that the respondent’s income was $214,800, basing the larger amount on additional income he would receive from his bonus. As the respondent’s income is greater than $150,000, s. 4 of the Guidelines applied. The Court decided that the s. 3 amount provided that the respondent should pay the sum of $1,726 per month in child support. Regarding the petitioner’s claim for spousal support, the Court held that the critical factors in this case entitling the petitioner to interim support was the disparity in income between the parties and that the petitioner had suffered an economic disadvantage as a result of the breakdown of the marriage. Using the Spousal Support Advisory Guidelines, the Court ordered an interim spousal support payment in the sum of $3,800 per month. The issue of retrospective support would be left for determination at the pre-trial conference.
The Law Society of Saskatchewan Libraries Family Law – Child Support – Variation
2013 SKQB 70 - Court of Queen's Bench, McIntyre, February 27, 2013
The respondent brought an application to vary a child support order on the grounds that two of the children are now in a shared parenting arrangement. The petitioner requested some income information from the respondent and his spouse. The respondent refused to produce some of the information and redacted portions of some of the information that he did provide. He argued that his present wife’s income is not relevant as she is not a party to the proceedings.
HELD: The Court stated that s. 9 of the Federal Child Support Guidelines controls shared parenting regimes, and under it, the Court may look at the standard of living of the child in each household and their respective abilities to absorb the costs required to maintain the appropriate standard of living in the circumstances. The net worth of each parent is consistent with the means and needs test in s. 9(c). The ability to absorb increased costs can be the result of resources available to that parent’s household.
Accordingly, income information of the respondent’s present spouse is relevant. The Court ordered that the respondent provide various documents relevant to his income and Parts 5 and 6 of his financial statements in Form 609A to the petitioner within 15 The Law Society of Saskatchewan Libraries file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] Family Law – Child Support – Variation – Arrears
, 2013 SKQB 80 - Court of Queen's Bench, Wilson, March 6, 2013
The respondent brought an application to vary the child support order granted in 2008 regarding the two children of the marriage. The respondent sought to expunge arrears that had accumulated pursuant to that order. He also asked for a determination that his income was and is substantially less than the income set out in the 2008 order and an order for ongoing support reflecting his decreased income. The petitioner applied to vary the order too and sought an order requiring the respondent to contribute to the costs of the Sylvan Learning fees and swimming lessons. In 2008, the Court imputed income to the respondent in the sum of $71,000. At the time of the order, the respondent earned non-taxable income as a foster care giver and had taxable income in the amount of $31,130 from employment income. The respondent consented to the order and paid the amount required until mid-June 2010. For that year, the respondent suggested that his income was $14,300 but he did not include the non-taxable earnings from fostering, which was $85,800. After expenses, the respondent’s non-taxable earnings were $23,000. After grossing up, the amount of actual earnings from fostering was $32,000, resulting in the respondent having an income $46,300 for 2010. The respondent stopped fostering in October 2010 and moved to Alberta, where he worked from February to August 2011, earning $18,100. His 2011 return showed an income of $20,600. Without explanation, he left his job in Alberta and returned to Manitoba and took up residence in a small town. He has been unable to obtain any fostering work and was only able to find work part-time in a wood plant. He acknowledged that he owned 3 rental properties in Winnipeg, which he stated that he wanted to hold on to so that he could leave them to his children. The petitioner’s annual income was $39,000.
HELD: The Court held that the respondent’s income for 2010 was substantially lower than the sum imputed to him of $71,800 in 2008 and therefore did not have the ability to pay the support ordered. He should have paid $646 per month. His share of the s. 7 expenses for that year was $440 per month. With respect to 2011, the respondent stopped working and decided to move to a small town where he could not find work in his field. His position regarding his rental property was not acceptable: his current support obligations are of concern. The Court held that the respondent was intentionally unemployed pursuant to s. 19(a) of the Federal Child Support Guidelines and imputed income in the sum of $45,000 for that year. His obligation for child support for that year was $628 per month. His share of the s. 7 expenses in the amount of $9,100 was set at 66 percent or $6,000 because the petitioner’s income that year was $22,600.
Regarding the determination of the respondent’s ongoing support obligation, the Court imputed income in the amount of $45,000 for the same reasons as that amount was imputed to him for 2011. He was ordered to pay s. 3 support of $616 per month and his share of the s. 7 expenses set at 50 percent of 1,000. The s. 7 expenses included the Sylvan Learning fees and the costs of private Christian school fees. The Court would not order the payment of additional s. 7 expenses as requested by the petitioner.
The Law Society of Saskatchewan Libraries Family Law – Custody and Access
, 2013 SKQB 60 - Court of Queen's Bench, Allbright, February 21, 2013
file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] The petitioner sought orders for divorce and custody of her nephew Marcus, the son of her sister. The petitioner’s sister had arranged for her mother to care for him when he was born. When her mother fell ill, the petitioner became responsible for him. Later the petitioner and Marcus began living with the respondent and her children from a previous relationship. The parties married and shortly thereafter, separated in 2010 at which point Marcus remained with the respondent and her children. The evidence showed that Marcus had been well-cared for by the respondent and was doing well at school. However, his grade 1 teacher testified that in the 2 years since she had taught Marcus he had begun to show signs of anger at school. The respondent is a member of the Poundmaker First Nation and has involved Marcus in activities at the White Buffalo Youth Lodge. The petitioner and Marcus are members of the Saulteaux First Nation and the petitioner lives on the reserve.
HELD: The Court granted the order for divorce. The petitioner’s application for custody of Marcus was denied but she was granted reasonable access. The Court found that maintaining the status quo was in his best interests. Because of his teacher’s evidence though, the Court ordered that the respondent would receive custody but that the matter would be returned to the Court for review of the order in September 2013 to determine whether the custody arrangement remained in the best interests of Marcus.
The Law Society of Saskatchewan Libraries Family Law – Custody and Access – Mobility Rights
2013 SKQB 59 - Court of Queen's Bench, Danyliuk, February 21, 2013
The petitioner mother has entered into a new relationship and is pregnant. She wants to move with the parties’ two children to live with her new spouse. The respondent father is currently in jail and will be incarcerated for the balance of the calendar year.
The respondent opposes the move and wants access to his children at the jail. The mother had unilaterally moved with the children prior to making this application in the face of an existing court order. One of the reasons that respondent is in jail is because HELD: The Court was of the view that this was an exceptional case that warranted permitting the move on an interim basis. The petitioner’s new relationship and the impending birth of a new sibling for the children is a material change in circumstances.
The move is justified because the petitioner is the only parent available to the children and it would defy common sense to deprive the children of a relationship with their new sibling, particularly when the respondent is unavailable as a parent and there is no reasonable basis to conclude that matters can be resolved in the father’s favour. The respondent asked to have the issue of custody and access delayed until his release.
This is not a realistic option. It was clear that the father had not truly considered the best interests of his children in opposing this application and that the mother’s position would likely prevail at trial. With respect to access with the father in jail, there was no evidence that visiting the respondent in jail would be beneficial to these young children.
The respondent was granted telephone access and, if it was possible to arrange with corrections officials, access via Skype or Face Time.
The Law Society of Saskatchewan Libraries file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] Family Law – Custody and Access – Variation – Appeal
, 2013 SKCA 18 - Court of Appeal, Klebuc Lane Jackson, February 19,
2013 (CA13018)
The appellant appealed the Queen’s Bench trial decision rendered in 2011 regarding the variation of the custody and access arrangements between the parties. The original order sought to be varied arose from a 2004 consent judgment in which the parties agreed to a shared parenting arrangement. They also agreed to use alternative dispute resolution proceedings to resolve differences before proceeding to court. In an interim order made in 2010, the Chamber’s judge awarded the respondent interim sole custody with the appellant to have limited supervised access. This variation had occurred because the Chamber’s judge had found a material change in circumstances because the appellant’s conduct was having significant negative effects on the child. It was pursuant to this decision that the trial judge issued his decision. The trial judge had assessed the appellant as unable to communicate with the respondent and that the appellant could not put his needs ahead of his daughter’s; rather than support her extracurricular activities, the appellant had created anxiety for the child. As a result, the trial judge ordered that the respondent would have the final decision if the parties were unable to agree respecting decisions regarding the child but was satisfied that a joint custody arrangement was in the best interests of their child. The appellant appealed on the ground that the respondent’s application was illegal because the respondent had not complied with the 2004 order regarding the process for resolving the parties’ differences. He argued that there had been no change in circumstances because the parties had always been in disagreement regarding the child’s extracurricular activities.
HELD: The Court dismissed the appeal. It found that the trial judge’s finding that the appellant’s conduct had had a negative effect on the child was supported by the evidence. The appellant did not refer at all to what the child wanted to do when he appeared before the Court. The Court advised the appellant to recognize his child’s wishes. It ordered him to attend counseling with his daughter.
The Law Society of Saskatchewan Libraries Family Law – Spousal Support – Interim
Civil Procedure – Discovery – Documents
, 2013 SKQB 53 - Court of Queen's Bench, McMurtry, February 15,
2013 (QB13040)
The applicant sought interim and retroactive spousal support, occupational rent and an order setting the matter down for pre-trial conference. The applicant issued a petition in May 2009 but no progress was made on obtaining a settlement agreement and the applicant was unaware of her right to support in the meantime. During the course of the 22-year marriage, the applicant had a series of businesses and began working for SaskTel in 2007, where she remained until 2011. She left her position because of ill health and difficult working conditions. She recently obtained a new position and is earning $30,300. After she separated from the respondent, the applicant had to borrow $140,000 from her mother to pay off business debts and help to pay her living expenses. The respondent, who earns $118,700, sought disclosure of documents from the applicant regarding the loan that the applicant claimed as family property and also sought to obtain the applicant’s personal and medical files for the post-separation file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] HELD: The Court ordered the respondent to pay the applicant interim support in the amount of $2,500 per month. The Court declined to order retroactive spousal support or occupational rent (because the respondent had remained in the family home following the separation), due in both instances to the lack of information and deferred the matter to the pre-trial conference or trial. The Court ordered that the applicant prepare a statement as to documents to meet the need for an accounting at the pre-trial conference. The Court denied the order for a pre-trial as premature because of the necessity for proper discovery of documents.
The Law Society of Saskatchewan Libraries Family Law – Spousal Support – Variation
2013 SKQB 57 - Court of Queen's Bench, Smith, February 20, 2013
The parties were married for 15 years. In 2008, the petitioner was ordered to pay the respondent $1,450 per month, to be reviewed after August 2012. The petitioner brought a motion seeking a review of the support order and asking that it be terminated. The petitioner has retired and is living on his pension of $33,000 and farm income. He argued that he has fulfilled his obligation and that to continue to have to pay spousal support would be double-dipping as the respondent received her share of the petitioner’s pension at the time of separation. The respondent claimed her income in 2011 was $30,000 and her net worth was $237,200 comprised primarily of the value of her condominium valued at $174,000. She has health problems and, at age 56, has limited options. The petitioner, she asserted, should not have retired at 50 and that his net worth is $500,000. His farm income is $23,000 per year in addition to his pension.
HELD: The Court held that after a 15-year marriage further spousal support was warranted. Annual income of $52,000 was imputed to the petitioner and $24,000 to the respondent, which would yield a monthly spousal support range from $525–$700. The petitioner was ordered to pay $600 per month until February 2017, at which time the The Law Society of Saskatchewan Libraries Insurance – Action on Policy
Damages – Punitive Damages
, 2013 SKQB 98 - Court of Queen's Bench,
Acton, March 21, 2013 (QB13079)
The plaintiff, a Canadian citizen resident in Portugal, was an employee of the defendant, Kumtor. He was a welder in that defendant’s mine in Kyrgyzstan and injured his foot there on the job in December 1999. He returned to work, for his next 28-day shift in February 2000 but reinjured his foot. He saw a doctor in Portugal when he finished his rotation, but as the problem had not been resolved, he only returned to work in order to contact Kumtor’s doctor in June 2000 and report his injury to them at I. The claim of the plaintiff against AIG: The defendant, American Home Assurance (AIG) was advised of the injury which triggered the WCB equivalent claim handled under the AIG policy with Kumtor. AIG sent the plaintiff to their doctor in Portugal, who file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] recommended surgery. The plaintiff had the surgery but it was not successful. The AIG adjuster in Saskatoon suspended the plaintiff’s benefits in May 2001 because she had not received a report from AIG’s doctor in Portugal regarding the plaintiff. In July 2001, the plaintiff’s personal physician notified AIG that the plaintiff was permanently unable to perform his occupational duties. On the same day, AIG made settlement offer of $225,000 to the plaintiff on the WCB claim. The plaintiff rejected the offer and said that he would contact a lawyer. The adjuster for SGI noted gleefully on her record that it would become very difficult for the plaintiff to handle his case in Saskatchewan from Portugal. Over the next period of time, the plaintiff complied, at his expense, with all of AIG’s requests for further medical examinations in Saskatchewan. In July 2002, AIG advised the plaintiff that he had to attend a facility in Portugal for vocational rehabilitation. At that facility, he was advised that he was too old to be assisted by them. AIG insisted that he retrain as a gardener, which was inappropriate because of his injury and the low wages. AIG terminated his benefits again in 2004 in spite of the fact that WCB Saskatchewan had informed AIG that in the plaintiff’s circumstances, it would pay full-monthly-wage loss benefits until he was 65 and pay his medical costs after that time. No further payments were made by AIG until August 2012, just before II. The claim of the plaintiff against Zurich: The defendant Zurich provided long-term disability benefits to Kumtor’s employees. It accepted the plaintiff’s claim in March 2002. Although it agreed that the first 24 months coverage applied, it refused to pay the plaintiff’s benefits. In 2003, it made an offer of $62,000 to the plaintiff in full settlement with a $9,000 deduction for its solicitor-client legal costs. The plaintiff refused to accept the offer, especially in light of the deduction. Zurich did not make any payments of benefits until May 2009, 9 years after the first payment was due. During this period, the plaintiff and his family had no income. The plaintiff’s health problems were exacerbated as he developed depression. Various specialists advised Zurich that there was little prospect for recovery. Despite the information, Zurich denied the claim until 2007.
However, it did not notify the plaintiff of that and payment was not made until 2009. In fact, it made an offer with the other defendants, to settle with the plaintiff for $238,000, knowing that that amount was far less than what the plaintiff was entitled to, based on the evidence that it had in its possession. It continued at trial to deny any obligations to continue life and accidental death insurance to the plaintiff under its policy.
III. The issues related to the claim against AIG were: 1) whether AIG was in breach of its policy by failing to pay benefits to the plaintiff; 2) whether AIG breached the duty of good faith and fair dealing and whether the plaintiff was entitled to aggravated damages or damages for mental distress; 3) whether punitive damages should be IV. The issues related to the claim against Zurich were the same.
HELD: The Court found that both the AIG worker’s compensation coverage and Zurich’s long-term disability insurance were peace of mind contracts, the object of which was to secure a psychological benefit. Mental distress caused by a breach of these contracts was considered within the reasonable expectations of the parties.
With regard to the plaintiff’s claim for aggravated damages, the Court held that: I. AIG was in breach of the duty of good faith when it discontinued benefits in order to create undue hardship for the plaintiff and force him to accept an extremely low offer of settlement. It also breached the duty in attempting to force the plaintiff to accept minimum wage employment. The purpose of the contract was to provide monthly payments and it was defeated. The Court held that the plaintiff was entitled to damages for mental distress and aggravated damages in the amount of $150,000. AIG was ordered to make WCB payments, which it ceased paying in 2004, and to continue them file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] until the plaintiff turned 65; and II. Zurich was in breach of the duty in failing to make any long-term disability payments until 2009. The plaintiff was entitled to aggravated damages and damages for mental distress, set at $300,000.
With regard to the plaintiff’s claim for punitive damages, the Court held that: I. AIG’s actions in discontinuing payments in order to force the plaintiff to accept a lower offer and making numerous and expensive court applications was planned, malicious and with knowledge of the harm that the plaintiff would suffer; and II. the Court awarded punitive damages in the amount of $3,000,000 against Zurich. The Court made particular note of the fact that the Court’s previous award against AIG for punitive damages for similar misconduct in a case involving similar facts (Sarchuk) and the Supreme Court’s award of punitive damages in Whiten had not deterred AIG or Zurich from engaging the same misconduct as had occurred in this case.
The Law Society of Saskatchewan Libraries Land – Order for Possession
Family Law – Division of Family Property – Limitation Period
2013 SKQB 121 - Court of Queen's Bench, Dufour, April 4, 2013
The parties were in a relationship for 7 years. The applicant lived in a senior’s apartment but purchased a house and rented it to the respondent. When the relationship ended in 2010, the applicant told the respondent to leave the house. She refused and the applicant tried through a number of different legal means to have the respondent removed. In May 2011, the applicant obtained an ex parte order pursuant to s. 3 of The Recovery of Possession of Land Act that the respondent should show cause why there should not be an order to remove her from the house. The respondent made an application under Rule 271 of the Queen’s Bench Rules that set aside the removal order and directed that the applicant’s be determined on the merits.
At the hearing, the Chambers judge found that the respondent raised an arguable issue whether she and the applicant were in a spousal relationship pursuant to The Family Property Act, in that if they were, then the respondent might have an interest in the house. The trial of that issue was referred to the Court.
HELD: The Court held that the kind of hearing envisaged by The Recovery of Possession of Land Act was not designed to resolve complex facts such as those involved in this case, with establishing a spousal relationship. It decided the question though on the basis of the applicant’s argument that if the respondent had a claim pursuant to the Family Property Act, it was statute-barred. The Court assumed without deciding that the respondent was a spouse under the Act, but found that at the time of the trial she had not yet brought an application for the division of family property. As more than 2 years had elapsed since the relationship had ended, the respondent’s claim was statute-barred. The Court granted the applicant’s application and ordered that the respondent vacate the property within 20 days after service of the order upon her, failing which the Sheriff was directed to execute the Order for Possession and The Law Society of Saskatchewan Libraries Landlord and Tenant – Residential Tenancies Act – Hearing – Appeal
file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] , 2013 SKQB 43 - Court of Queen's Bench,
Krogan, February 8, 2013 (QB13101)
The respondent sought an order for possession of the rental premises occupied by the appellant pursuant to s. 57 and s. 70 of The Residential Tenancies Act, 2006. The respondent satisfied the hearing officer at the hearing that the appellant was 15 days or more in arrears of rent. The hearing officer granted an Order for Possession to issue if the appellant did not make payments of rent owing on or before the 1st day of November and December of 2012 and January 2013. The officer’s decision included the direction that if the appellant had difficulty making any payment, he should contact the respondent in writing, with a copy to the Residential Tenancies Office, explaining his inability to pay and asking for additional time. The appellant did not pay his rent on the occasions specified and a hearing officer ordered that a writ of possession be issued to place the respondent in possession of the rental premises. The appellant appealed the decision. In his notice of appeal, the appellant stated that he had a bed bug issue in his rental unit that the respondent had not been helpful in resolving and that as a result, he had kept his rent payment in case he had to find another place to HELD: The Court dismissed the application. The hearing office had not made any errors of law or jurisdiction in his decision. The appellant had failed to notify the respondent or the Resident Tenancies office regarding his reason for failing to make his The Law Society of Saskatchewan Libraries Landlord and Tenant – Residential Tenancies Act – Hearing – Appeal
2013 SKQB 44 - Court of Queen's Bench, Krogan,
February 8, 2013 (QB13102)
The appellant applied to the Office of Residential Tenancies for an order for damages resulting from the respondent’s alleged non-compliance with The Residential Tenancies Act. The decision of the hearing officer of the matter was appealed to the Court of Queen’s Bench. In that decision, the judge concluded that the hearing officer had erred in his decision. The Court returned the matter to the hearing officer to establish the appropriate measure of damages for those losses claimed by the appellant. Before the re-hearing occurred, the respondent brought an application for an order for possession based on the allegation that the appellant was more than 15 days in arrears of rent payment. The hearing officer found that the appellant was in arrears and held that there was nothing in the Queen’s Bench decision that prohibited the landlord from bringing the application. Pursuant to s. 72(1) of The Residential Tenancies Act, the appellant appealed on the grounds that the hearing officer’s decision was not based on all or the correct information, that additional fees were charged in excess of provincial guidelines and that the hearing officer could not overrule a Queen’s Bench decision.
HELD: The Court dismissed the application on the basis that the hearing officer had not committed any error of law or jurisdiction. The Court found that the appellant had sufficient notice of the hearing and he failed to provide the information relevant to the officer’s determination. The officer properly considered the information that was before him. The fee that was charged to the appellant was with respect to his NSF cheque to the respondent and was not part of the officer’s decision. Regarding the last ground, the earlier Queen’s Bench decision did not suspend the appellant’s obligation to pay file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] The Law Society of Saskatchewan Libraries Landlord and Tenant – Residential Tenancies Act – Hearing – Appeal
2013 SKQB 46 - Court of Queen's Bench, Krogan, February 11, 2013
The appellant tenant appealed form a decision of the Office of Residential Tenancies, ordering him to vacate his rental premises because he had been in arrears of rent for more than 15 days. At the hearing, the appellant appeared but as he had not been given sufficient notice of it, he stated that he was not prepared to proceed but would engage in discussions with the landlord regarding a date at which the landlord could take possession, which was agreed upon between them as November 15, 2012. The hearing officer’s decision contained the information that that date was the date of possession agreed upon by the parties. At the appeal, the appellant argued that the hearing officer’s conclusion that he was in arrears was incorrect. He had stayed in the rental unit only as long as it took him to remove his belongings. He also argued that his agreement to leave the premises was based upon the landlord providing him with a HELD: The appeal was allowed. The hearing officer’s decision did not contain any reference to evidence that the appellant’s rent was in arrears. Without such information in the record, the Court could not determine whether the hearing officer’s conclusion was a valid one. A finding of fact based on no evidence is an error of law.
The Law Society of Saskatchewan Libraries Motor Vehicle Offences – Liability as Registered Owner – Due Diligence
2013 SKPC 30 - Provincial Court, Morgan, March 5, 2013 (PC13026)
The defendant was charged with speeding and disobeying a stop sign under The Traffic Safety Act as the registered owner of the vehicle. The defendant claimed that she had registered the vehicle in her name, but the vehicle was used by her two brothers. Both brothers were disqualified drivers. The defendant claimed that the vehicle was used by various people who gave her brothers rides. The defendant asserted a defence of due diligence.
HELD: The defendant was convicted of both tickets. The defendant did not take reasonable steps to fulfill the doctrine of due diligence. She had no way of knowing what instructions her brothers gave to the people who were driving the vehicle, she did not know where the vehicle was located at any particular time and she had no idea whatsoever as to who may have been driving the vehicle at any given time. Finally, she left the keys with the vehicle, which demonstrated a complete lack of control over the The Law Society of Saskatchewan Libraries Municipal Law – Dangerous Animals Bylaw – Appeal
2013 SKQB 40 - Court of Queen's Bench, Gabrielson, February 5, 2013
file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM] The appellants appealed their conviction by a Provincial Court judge of violating the Saskatoon Bylaw 8176. They had been charged as the owners of a dog who had attacked another dog. The appellants, who are married and named as owners of the dog, were fined $250 plus a surcharge of $60. The attack had occurred when the appellant, Judith Kilcher, was walking the dog on a leash. She lost control of the animal when it pulled the leash out of her hand and ran towards the complainant’s dog and then attacked it. The judge found that as the offence was one of strict liability, and that the dog had demonstrated similar behavior in the past, specifically against the other dog, that the appellants were unable to rely upon the defence of due diligence.
On the evidence, they had not taken all reasonable steps to avoid another attack. The dog was found to be a dangerous animal within the meaning of the bylaw.
HELD: The Court found that pursuant to the provisions of the bylaw, the appeal would be considered as a summary conviction appeal. Section 686(1)(a) of the Criminal Code provided the standard of review. The Court held that the verdict was reasonable: upon the evidence, it was clear that the judge could find that the dog was dangerous. The judge considered the defence of due diligence as it applied to the appellant, Judith Kilcher, and based on the facts, found that she had not established on a balance of probabilities that it applied in the circumstances of the case. However, the Judge had not considered the defence as it applied to the other appellant, Christopher Kilcher, who was not present at the time of the attack. Although it was possible for the dog’s owners to both be charged, it did not justify the conviction of both when the bylaw contemplated only one person being the owner. The appeal by Judith Kilcher was dismissed and the appeal by Christopher Kilcher was allowed and a new trial was ordered but the Court advised the Crown to consider whether to proceed.
The Law Society of Saskatchewan Libraries file:///H:/webLS/CaseMail/CM%2015-13.htm[25/06/2013 11:32:01 AM]


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