APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Shirley Tibbetts v. Reginald Greg Murphy, Joseph George Joyce (N.S.)
Negligence – Statutory Interpretation
As Ms. Tibbetts drove her motorcycle behind that of Mr. Joyce along a road in Antigonish County, she was struck by an oncoming truck driven by Mr. Murphy. Ms. Tibbetts brought an action in negligence against Mr. Murphy, who added Mr. Joyce as a third party. The trial judge apportioned liability for the accident as two-thirds by Ms. Tibbetts and one-third to Mr. Murphy. The only issue in the application for leave is the proper interpretation of s. 113A of the Act, which provides that “the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by all payments in respect of the incident that the plaintiff has received…for income loss or loss of earning capacity under the laws of any jurisdiction or under an income-continuation benefit plan”. The parties disagree over whether the disability payments Ms. Tibbetts received under the CPP must be deducted from the damages awarded. The Supreme Court of Nova Scotia, Trial Division held that the CPP payments were deductible from the damages awarded for loss of income and lost earning capacity. The Nova Scotia Court of Appeal dismissed the appeal, holding that through s. 113A of the Act,the Legislature intended to reduce automobile insurance premiums, thereby changing the collateral benefits rule and the treatment of CPP disability benefits.
Robert Must v. Yana Shkuryna, Nicholas Deeley, Ontario Teachers’ Pension Plan, James Leech, Marcia Mandes-d’Abreau and Angela Rae (Ont.)
Status of persons – Appointment of Public Guardian and Trustee
In the context of an action initiated by the Applicant against the Respondents, a motion was brought seeking an order appointing the Office of the Public Guardian and Trustee as his legal representative. The order was granted and the Applicant subsequently sought to have the appointment order overturned. The Court of Appeal quashed the appeal.
Agri Resource Mgt. 2001 Ltd. v. Saskatchewan Crop Insurance Corporation (Sask.)
Civil procedure – Time
The applicant owned considerable farmland and obtained crop insurance through the respondent. Disputes arose between them, leading to a denial of some of the applicant’s claims and the eventual cancellation of the policies. In July, 1993, the applicant commenced an action against the respondent, who filed a notice of intent to defend and a statement of defence. Various applications were brought by the parties. The statement of claim was amended, to which the respondent filed a counterclaim and statement of defence, and examinations for discovery were held. The applicant delayed in replying to its undertakings, obtaining an expert report quantifying its damages (for which a pre-trial conference was adjourned) and filing its amended statement of claim and a defense to the respondent’s counterclaim.
Twenty-three years later, and after giving several months’ notice of its intention to do so, the respondent applied to have the claim dismissed for want of prosecution pursuant to Rule 4-44 of The Queen’s Bench Rules. The Court of Queen’s Bench of Saskatchewan granted the application, finding inordinate delay that was inexcusable. While the Court found that the respondent bore some responsibility for delay, it held that it was not in the interests of justice for the case proceed to trial notwithstanding the delay. The Court of Appeal for Saskatchewan dismissed the appeal.
Jacques Gagné v. Her Majesty the Queen (Que.)
Taxation – Income tax
In 1997, 1998 and 1999, the applicant Mr. Gagné developed and carried out a scheme that enabled taxpayers to withdraw money from their RRSPs, RPPs or LIRAs without paying taxes.
Mr. Gagné was convicted of four of the seven charges laid against him under the Income Tax Act. The charges in question were for offences under s. 239(1)(d) (wilfully evading or attempting to evade compliance with the Income Tax Act). He was sentenced to imprisonment for 42 months and fined $616,000. The Court of Appeal dismissed the appeal.
Mr. Gagné argued that s. 239(1)(d) contains two separate offences, namely evading or attempting to evade compliance with the Act and evading or attempting to evade payment of taxes, that he had been charged only with the former offence and that the judge had wrongly included the charge of evading or attempting to evade payment of taxes in his analysis. He also argued that he had not breached any tax obligation to which he himself was subject. The Court of Québec convicted the applicant of four counts of tax evasion. The Court of Appeal dismissed the applicant’s appeal.
Paul Oommen v. Capital Region Housing Corporation, Jeff Doe (Alta.)
Charter of rights – Self-incrimination – Civil procedure
The applicant, Mr. Paul Oommen, is a resident of a property operated by the respondent Capital Regional Housing Corporation (“CRHC”), whose core business is providing affordable housing in Edmonton. Mr. Oommen alleges that a theft occurred in his suite in 2007, committed by either a co-tenant or an employee of the property (identified as the other respondent, “Jeff Doe”). Mr. Oommen alleges that CRHC failed to ensure appropriate security for the property and for Mr. Oommen’s suite, and failed or refused to cooperate with police during an investigation of Mr. Oommen’s complaints. As a result of the theft and of these alleged failures, Mr. Oommen claims he has suffered property losses, as well as personal injuries including psychological injuries. He therefore sought relief against CRHC in the form of a civil action for damages. During discovery, CRHC made a number of requests for Mr. Oommen to provide various documents and undertake to fulfill various undertakings. Mr. Oommen having failed to do so by a court-ordered deadline, CRHC then brought an application seeking to cite Mr. Oommen in civil contempt of court.
The chambers judge at the Alberta Court of Queen’s Bench allowed CRHC’s application and found Mr. Oommen in contempt of the court order for production. The chambers judge concluded that the breaches of the order were obvious, the law on the issue of contempt was clear, and Mr. Oommen’s refusal to comply with the order was deliberate and wilful. She therefore fined him $1,000.00 as a penalty for his contempt, and ordered him to comply with the original order by a new deadline, failing which CRHC would be at liberty to apply to strike his claim. The Court of Appeal unanimously upheld the chambers judge’s order. The Court of Queen’s Bench then issued a subsequent order striking Mr. Oommen’s claim, pending the outcome of his application for leave to appeal before the Supreme Court of Canada.
56 King Inc. v. Aviva Canada Inc. (Ont.)
Insurance – Property insurance – Appraisal
An insured, 56 King Inc., commenced a claim under an insurance policy it had with an insurer, Aviva Canada Inc., for damage to a commercial property caused by windstorms in July 2013. The action is for damages under the policy and damages for breach of the insurer’s duty of utmost good faith in handling the claim for coverage. The statement of claim was issued on February 14, 2014. On January 25, 2016, Aviva elected an appraisal under s. 128 of the Insurance Act, R.S.O. 1990, c. I.8. 56 King rejected the appraisal on the basis that it was too late and that, in any event, the bad faith claim could not proceed by appraisal. Aviva brought a motion requesting a declaration that 56 King’s losses could be determined by appraisal.
The Ontario Superior Court of Justice granted Aviva’s motion to have the quantum of the claim for damages under the provisions of the policy be determined by appraisal. The Ontario Court of Appeal dismissed 56 King’s appeal.
311165 BC Ltd. v. Attorney General of Canada, Attorney General of British Columbia, Constable Scott Gardiner and the Royal Canadian Mounted Police (B.C.)
Civil procedure – Striking pleadings
The claims set out in 311165 BC Ltd.’s notice of civil claim are for losses allegedly suffered as a result of the Attorney General of Canada obtaining a restraint order under s. 14 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, prohibiting 311165 BC Ltd. from dealing with a piece of property, and for punitive damages. Compensatory damages are claimed for damage to a home on the property while it was uninsured, for losses resulting from an inability to dispose of the property in favourable market conditions, and for costs expended in attempting to deal with the restraint order and an application for forfeiture. The notice alleges multiple causes of action against various defendants. The respondents, Attorney General of Canada et al, brought a motion to strike the notice of civil claim in its entirety.
The Supreme Court of British Columbia struck the claims set out in the notice of civil claim, other than the claim for abuse of process against the Attorney General of Canada. The B.C. Court of Appeal granted the appeal, in part, reinstating the claim for malicious prosecution, and dismissed the cross-appeal to strike the claim of abuse of process against the Attorney General of Canada.
With more than 1,400 legal professionals in 18 cities worldwide, we provide our clients with in-depth expertise in key global sectors and a suite of legal services at home and abroad. We see the world through our clients’ eyes, and collaborate across countries, offices, service areas and sectors to help them succeed, no matter how challenging the circumstances.