MLB-Slaw Selected Case Summaries

Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.

Aug 12

Matheson v. Lewis et al. 2014 ONCA 542

Courts - Insurance - Motor Vehicles - Statutes

Summary:
The plaintiff, a farmer, was injured while driving an uninsured all-terrain vehicle (ATV) on a public road when he was struck from behind by a truck. The farmer and his family members (the plaintiffs) commenced an action against the driver of the truck, the truck owner and the farmer’s own automobile insurer (the defendants). The plaintiffs brought a pre-trial motion to determine whether their action was statute barred by s. 267.6(1) of the Insurance Act. Section 267.6(1) precluded a claim for damages if the injured person was operating an uninsured motor vehicle on a highway contrary to s. 2(1) of the Compulsory Automobile Insurance Act. The plaintiffs also sought a declaration that their claims against their insurer, Lanark Mutual Insurance Co., were not foreclosed by operation of s. 30(1)(a) of the Statutory Accident Benefits Schedule. Section 30(1)(a) provided that an insurer was not required to pay various benefits in respect of an injured driver who knew or ought reasonably to have known that he or she was operating an automobile without motor vehicle liability insurance.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 2441, held that the ATV was a “self-propelled implement of husbandry” and was therefore excluded from Ontario’s compulsory insurance regime. Consequently, neither s. 267.6(1) of the Insurance Act nor s. 30(1)(a) of the Statutory Accident Benefits Schedule, applied to bar the plaintiffs’ claims. The defendants appealed.

The Ontario Court of Appeal allowed the appeal based on the conclusion the ATV was not a self-propelled implement of husbandry but an off-road vehicle that had to be insured when operated by a farmer on a public road. The court held that the action was statute-barred by operation of s. 267.6(1) of the Insurance Act and the claims against Lanark Mutual for statutory accident benefits were foreclosed by operation of s. 30(1)(a) of the Statutory Accident Benefits Schedule.

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Estabrooks v. New Brunswick Real Estate Association 2014 NBCA 48

Courts - Torts

Summary:
The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct. The Committee assessed costs against Estabrooks and imposed a fine. Estabrooks appealed.

The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at (2003), 261 N.B.R.(2d) 260; 685 A.P.R. 260, allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks. In 2009, Estabrooks sued the NBREA for malicious prosecution.

The New Brunswick Court of Queen’s Bench, Trial Division, in a decision not reported in this series of reports, allowed the action. The NBREA appealed.

The New Brunswick Court of Appeal allowed the appeal.

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Desjardins Securities Inc. v. Schellenberg 2014 MBQB 115

Brokers - Torts

Summary:
Desjardins Securities Inc. (DSI), a discount electronic trading broker, liquidated a number of trading options accounts held by Schellenberg, a sophisticated options trader, for failing to deposit cash or securities as demanded by DSI to satisfy margin calls. DSI claimed the shortfall of $61,203.48. Schellenberg advanced a counterclaim against DSI and three of its employees. His damage claim exceeded $2 million for alleged breaches of duty that “resulted in the decline of the value of his accounts and a loss of [his] life savings”.

The Manitoba Court of Queen’s Bench dismissed the counterclaim. DSI was entitled to judgment against Schellenberg in the amount of $61,203.48, plus costs and prejudgment interest.

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R. v. Bichsel (N.H.) 2014 BCCA 251

Criminal Law - Evidence

Summary:
The accused appealed his convictions on one count of possession of child pornography (Criminal Code, s. 163.1(4)) and one count of making child pornography available (s. 163.1(3)). The charges arose after he downloaded, and consequentially shared with others by way of several file-sharing programs, files containing child pornography.

The British Columbia Court of Appeal dismissed the appeal. The accused had raised a multitude of arguments concerning the trial court’s jurisdiction, the trial judge’s treatment of the evidence, and the verdict itself. However, underlying most, if not all, of his submissions remained his theory that someone else, either his friend and neighbour, an unknown third party, or a computer virus, was responsible for the creation of the child pornography files on his computer. The court saw no merit in any of the accused’s submissions.

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Aug 5

R. v. Larouche (R.) 2014 CMAC 6

Armed Forces - Civil Rights

Summary:
The accused, a Private in the armed forces, was charged with a number of sexual offences, including voyeurism (Criminal Code, s. 162(5)) and possession of child pornography (s. 163.1(4)).

A Standing Court Martial convicted the accused (2012 CM 3009). The accused appealed, arguing that s. 130(1)(a) of the National Defence Act, which provided for service trials for civil offences, was unconstitutional. The accused argued further that the trial judge erred in refusing to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Court Martial Appeal Court allowed the appeal and acquitted the accused. The constitutionality of s. 130(1)(a) could be preserved by reading in a military nexus test. The court held that the trial judge erred in refusing to exclude evidence which was gathered under two search warrants that had been declared invalid.

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Equustek Solutions Inc. et al. v. Jack et al. 2014 BCCA 295

Injunctions

Summary:
The plaintiff, Equustek Solutions Inc., obtained an interim injunction restraining Google Inc. (a non-resident non-party) from indexing or referencing specific websites in search results on its search engines. The order was made with a view toward limiting access to websites through which the defendants in the underlying action had been advertising and selling products in breach of the plaintiffs’ intellectual property rights and contrary to court orders. (See [2014] B.C.T.C. Uned. 1063; 2014 BSCS 1063). Google Inc. applied for leave to appeal, and in the event leave was granted, for a partial interim stay of the order pending the hearing of the appeal.

The British Columbia Court of Appeal, per Willock, J.A., granted leave to appeal but dismissed the application for the stay. The appeal was not without merit and raised novel and important issues. As to the stay, Google Inc. was unable to demonstrate irreparable harm.

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Norman Estate v. Watch Tower Bible and Tract Society of Canada 2014 BCCA 277

Gifts - Practice - Trusts - Wills

Summary:
Under a “Conditional Donation Agreement” (Agreement) between Lloyd and Lily Norman and the Watch Tower Bible and Tract Society of Canada (Society), donations were made by the Normans to the Society. Dana Norman was the administrator for the estate of Lloyd Norman (Estate). She applied, after the Normans’ death, to recover the $250,000 balance of the donations that the Normans had made to the Society under the Agreement.

The British Columbia Supreme Court dismissed the application. The court found that the Normans intended the Agreement to have immediate effect, and therefore the donations were not testamentary dispositions. The Agreement evidenced a gift with a condition subsequent that created an inter vivos trust. The Estate appealed. At issue was whether the Agreement was a testamentary disposition and therefore invalid because it failed to comply with the Wills Act in effect at the relevant times.

The British Columbia Court of Appeal dismissed the appeal.

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Jul 29

United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp. 2014 SCC 45

Labour Law 

Summary:
On April 29, 2005, Wal-Mart Canada Corp. (Wal-Mart) closed its store in Jonquière, Quebec. The closure, which had been announced the day an arbitrator was appointed to resolve an impasse in negotiations for a first collective agreement with the union certified for that establishment, led to a series of proceedings based on various sections of the Labour Code, C.Q.L.R., c. C-27 (Code), and the Act respecting labour standards, C.Q.L.R., c. N-1.1. An arbitrator concluded that the resiliation of the contracts of employment of all the employees of the Jonquière Wal-Mart constituted a prohibited unilateral change, contrary to s. 59 of the Code. See [2009] R.J.D.T. 1439. Wal-Mart sought judicial review.

The Quebec Superior Court, in a decision reported at [2010] R.J.D.T. 1118; 2010 QCCS 4743, affirmed the decision. Wal-Mart appealed.

The Quebec Court of Appeal, in a decision reported at [2012] R.J.Q. 978; 2012 QCCA 903, allowed the appeal. The union appealed.

The Supreme Court of Canada, Rothstein and Wagner, JJ., dissenting, allowed the appeal and remanded the case to the arbitrator to determine the appropriate remedy in accordance with the disposition of his award. The court awarded costs throughout to the union.

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R. v. Mann (R.S.) 2014 BCCA 231

Civil Rights - Criminal Law - Police

Summary:
The British Columbia Supreme Court, sitting without a jury, convicted Mann of multiple charges relating to a kidnapping: see [2012] B.C.T.C. Uned. 1265. The principal trial issue was whether Mann was the “third kidnapper”. Mann appealed the conviction on three grounds: (a) the trial judge erred in ruling that Mann’s election to be tried by a judge without a jury survived the recommencement of the proceedings within one year of the Attorney General entering a stay of proceedings on a direct indictment (see [2012] B.C.T.C. Uned. 1248); (b) the trial judge erred in finding that searches of two BlackBerry devices seized during the arrests were valid under the common law power of search incident to arrest and did not violate s. 8 of the Charter (see [2012] B.C.T.C. Uned. 1247); and (c) the trial judge misapprehended key aspects of the evidence in concluding that Mann was the third kidnapper.

The British Columbia Court of Appeal dismissed the appeal: (1) Mann was not entitled to be tried by a judge with a jury; (2) the warrantless searches of Mann’s BlackBerrys breached his right under s. 8 of the Charter, but the evidence was not excluded under s. 24(2); and (3) the trial judge did not misapprehend any evidence, or if he did, it was not material to his decision.

Editor’s Note: This was the first case involving a search of a smartphone incident to arrest to be considered by the British Columbia Court of Appeal: see paragraph 80. The British Columbia Civil Liberties Association appeared as an intervenor on the issue.

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Keewatin et al. v. Ontario (Minister of Natural Resources) 2014 SCC 48

Constitutional Law - Indians, Inuit and Métis

Summary:
In 1873 Canada and the Chiefs of the Ojibway Indians entered into Treaty 3 whereby the Ojibway surrendered to Canada a large tract of land, including the Keewatin Lands, situated in what became northwestern Ontario and eastern Manitoba. The Treaty contained a harvesting clause which preserved the right of the Ojibway to hunt and fish on the surrendered land subject to a “taking up” clause. That clause allowed the Government of the Dominion of Canada to take up lands for settlement, mining, lumbering, etc. In 1912 most of the Treaty 3 lands, including the Keewatin Lands, became part of the Province of Ontario. In 1997, Ontario issued a sustainable forest licence which enabled Abitibi-Consolidated Inc., a large pulp and paper manufacturer, to carry out clear-cut forestry operations in certain parts of the Whiskey Jack Forest, which fell within the Keewatin portion of the Treaty 3 territory. In 2005, the Grassy Narrows First Nation, commenced an action, alleging that on a proper meaning of the harvesting clause, any taking up of land by Ontario had to be first authorized by the Dominion of Canada. A case management judge divided the trial into two phases, with the first phase involving two issues:

"Question One: Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to ‘take up’ tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the plaintiffs to hunt or fish as provided for in Treaty 3?

"Question Two: If the answer to question/ issue 1 is ‘no’, does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3?"

The Ontario Superior Court (Sanderson, J.), in a decision reported [2011] O.T.C. Uned. 4801, answered “no” to both questions, finding in favour of Grassy Narrows on every crucial issue. In particular, the court found that in the Keewatin Lands, Ontario could not take up land so as to limit harvesting rights without first obtaining Canada’s approval (i.e., there was a two-step process). An appeal ensued. Abitibi-Consolidated Inc., the Minister of Natural Resources (Ont.) and the Attorney General of Canada) appealed. Several other groups intervened.

The Ontario Court of Appeal, in a decision reported 304 O.A.C. 250, allowed the appeals. The court held that the answer to question one was “yes” (i.e., Ontario had the right to “take up” lands and thereby limit harvesting rights without first obtaining Canada’s approval respecting the Treaty 3 lands which became part of Ontario in 1912). It was therefore unnecessary to answer question two. The Grassy Narrows First Nation appealed.

The Supreme Court of Canada dismissed the appeal. The court concluded that Ontario had the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone had the ability to take up Treaty 3 land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982. A two-step process involving federal approval for provincial taking up was not contemplated by Treaty 3.

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