36090   Lyle Agar v. Ulrich Weber, Paula Mae Weber

Torts – Negligence – Occupiers’ liability

The applicant and respondents are next-door neighbours. The applicant’s family were “welcomed guests” to use and moor their boat at the respondents’ dock. The male respondent offered to bait and set a crab trap so that the applicant could catch crabs. The respondent pointed out the homemade crab cleaning device on the respondents’ dock. There are different ways to clean crabs, none of which require a sharp edge. The applicant was familiar with catching and cleaning crabs. The applicant caught crabs the next day and used the crab cleaning device without incident to clean two crabs. With the third crab, as he needed to apply extra force, the shell gave way, causing the applicant to lose his balance and lurch forward. He experienced an electric shock up his arm and later realized he had been cut across his entire right wrist. He commenced an action against the respondents, bringing a statutory claim under the Occupiers Liability Act, R.S.B.C. 1996, c. 337, and a common law claim in negligence.

The Supreme Court of British Columbia found the respondents liable in damages. It held that the respondents breached their duty of care to the applicant by installing a device with a concealed sharp edge that constituted an “unusual danger” and by failing to warn the applicant of the existence of the concealed outboard sharp edge. The Court found that the breach caused the applicant’s injury and that he was not contributorily negligent. The appellate court allowed the appeal and dismissed the applicant’s action. The court examined the device and confirmed that there was no palpable and overriding error in the conclusion it was sharp. However, it was not inherently sharp, and the applicant had cleaned the crab with the dull inboard edge of the device. It was the downward force of his wrist hitting the outboard edge as he lost his balance that caused the applicant’s injury. The trial judge’s reliance on the term “unusual danger” may have caused him to limit his analysis. The conclusion that the outboard edge created an unreasonable risk of harm for the applicant in these circumstances could not be sustained.

36531   Rahim Jivraj v. Bryan G. Baynham, Q.C., Daniel J. Reid, Brent Pierce

Civil procedure – Costs – Ex parte orders

The respondents, Mr. Baynham and Mr. Reid are former counsel to Mr. Pierce, who sued the Applicant, Mr. Jivraj for defamation relating to comments made in two online newsletters entitled “Fraud Alert”. The comments referred to sanctions levied in the past against Mr. Pierce by securities regulators and alleged he was now currently engaging in fraudulent and criminal conduct involving different companies. Mr. Baynham and Mr. Reid, on Mr. Pierce’s behalf successfully applied for an Anton Piller order at an ex parte and in camera hearing to assist in identifying the publisher of the newsletters. Mr. Javraj was identified by these means. The order permitted Mr. Pierce to seize Mr. Jivraj’s computer hard drive. Mr. Jivraj was later ordered to pay special costs to Mr. Pierce. Upon application by Mr. Jivraj, the chambers judge later set aside the Anton Piller order on the grounds that Mr. Baynham and Mr. Reid had not provided full disclosure relating to the past sanctions. Pursuant to an application for an order of special costs, although the chambers judge found that Mr. Baynham and Mr. Reid did not act dishonestly, he found their conduct, which resulted in the search of Mr. Jivraj’s home, to be reprehensible and ordered special costs against them personally. The Court of Appeal allowed Mr. Baynham and Mr. Reid’s appeal on the special costs award.

36604    Saskatchewan Democratic Action Party v. Saskatchewan Chief Electoral Officer, Michael D. Boda

Administrative Law – Municipal Law - Appeals

Saskatchewan Democratic Action Party (SDAP) submitted an application to the Chief Electoral Officer in order to be registered as a political party in accordance with sections 224 and 225 of the Election Act, 1996. After examination, the Chief Electoral Officer advised SDAP that its application did not fully comply with s. 224 of the Act. The Court of Queen’s Bench of Saskatchewan ruled in favor of the Chief Electoral Officer. The Court of Appeal dismissed the application for leave to appeal.

36576     Peter A. Khaiter v. Her Majesty the Queen in Right of Ontario, Kevin Whitaker, Kelly Waddingham, Christopher J. Albertyn, Diane L. Gee, Tim R. Parker, Voy T. Stelmaszynski and Leonard Marvy

Charter of Rights – Right to fair hearing – Labour relations

The applicant was hired as a faculty member of York University in 2000. The terms and conditions of his employment were determined by a collective agreement between the University and his union, the York University Faculty Association. Since 2003, the applicant has made a series of complaints against the University for unjust, unfair and harassing treatment in his employment and requested that the union act in his support. The Ontario Labour Relations Board dismissed all of his complaints. The applicant brought an action against the Crown, the Ontario Labour Relations Board and some of its individual members, alleging that the Board and its delegates, inter alia, acted unlawfully, arbitrarily, capriciously in harassing, humiliating and harming him. The respondents moved to have the action dismissed.

The Ontario Superior Court of Justice granted respondents’ motion for dismissal of applicant’s action and the applicant’s appeal was dismissed.