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 26

Malton v. Attia et al. 2013 ABQB 642

Barristers and Solicitors - Courts - Evidence - Torts

Summary:
The plaintiffs hired the defendant lawyer and his law firm to represent them in their lawsuit against HouseMaster Inspection Service for a deficient house inspection. The plaintiffs were partially successful. The plaintiffs made a complaint to the Law Society of Alberta with respect to the defendant’s management of the HouseMaster action. In June 2008, the plaintiffs sued the defendant. After the trial ended, the defendant requested that the court address one issue before the parties would argue the whole case. At issue was whether it was fatal to a plaintiff’s action in negligence against a lawyer, if the plaintiff failed to call the evidence of an expert lawyer as to standard of care.

The Alberta Court of Queen’s Bench determined the issues.

Link to PDF of complete summary

Link to full judgment


R. v. Al-Enzi (N.B.) 2014 ONCA 569

Barristers and Solicitors - Civil Rights - Courts - Criminal Law

Summary:
Al-Enzi, Kayem and Abdul-Hussein were charged with the murder of Zalal. Abdul-Hussein gave a statement to the police that Al-Enzi shot Zalal in a car driven by Kayem. The Crown then proceeded jointly against Al-Enzi and Kayem, charging each with first degree murder. Both pleaded not guilty and blamed the other. Midway through the trial, Abdul-Hussein recanted his statement. Al-Enzi’s counsel was allowed to withdraw. Al-Enzi could not find another lawyer, despite an adjournment of nearly four months and an extensive search throughout the province. He applied for a severance or a mistrial. The trial judge refused and appointed amicus curiae to assist Al-Enzi. Kayem was acquitted. Al-Enzi was convicted. He appealed on the main ground that the trial judge’s refusal to grant a severance or a mistrial caused a miscarriage of justice.

The Ontario Court of Appeal allowed the appeal, set aside the conviction, and ordered a new trial. “[T]he trial judge exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus, even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge’s denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice.”

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


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.

Link to PDF of complete summary

Link to full judgment


Page 1 of 68