39260 Quinn Provost v. Dueck Downtown Chevrolet Buick GMC Limited, Kyle Katerenchuk (B.C.)

Torts — Negligence — Duty of Care 

Dueck Downtown Chevrolet Buick GMC Limited operates a large car and truck dealership in Vancouver. Mr. Katerenchuk, the lot manager, left a one‑ton 2011 GMC Sierra K2500 pickup truck outside a detail bay of the dealership for forty minutes with the keys left in the ignition, the engine running and the doors unlocked. The dealership is not fenced and is frequented by many people. B stole the truck. More than an hour later, following attempts by officers to arrest B, he was involved in three collisions, two of which caused serious personal injury.

The RCMP had used unmarked vehicles to follow the truck. At one point a constable pointed his pistol, identified himself, and commanded B to stop. B backed into the police car parked behind him and drove away. As another constable attempted to arrest B, B drove into another police vehicle, and subsequently struck a third covert vehicle driven by Constable Quinn Provost. The chase continued, with some officers started active pursuit with lights and a siren. The truck struck Ms. Brundige’s vehicle stopped at an intersection. B was eventually caught trying to steal a vehicle from another dealership. Three actions arose from that series of events. This application relates only to an action in negligence commenced by Constable Provost against the respondents.

The Supreme Court of British Columbia held that the respondents were negligent in storing the truck and their negligence was a cause of all three collisions. The Court apportioned 15 percent of the liability in all three actions to the respondents. The appellate court allowed the respondents’ appeal and dismissed the actions against them, finding that they did not owe a duty of care to the plaintiffs. While it was reasonably foreseeable that a thief could cause injury or damage while being pursued in the course of the theft or during immediate flight, the foreseeability should not be extended to include the risk of harm arising from police actions, including active pursuit, more than an hour after the theft.


Gary Curtis v. Andrew Pinto, Pinto Wray James LLP(Ont.)

Constitutional law — Charter of Rights

Mr. Pinto and his firm represented Mr. Curtis in a wrongful dismissal action. Mr. Curtis instructed Mr. Pinto to oppose the decision that a jurisdictional issue would be heard and decided prior to other issues. The hearing went ahead as planned and the adjudicator reserved his decision. Mr. Curtis then terminated his retainer with Mr. Pinto and informed the adjudicator that he wished to reopen the proceedings. The adjudicator agreed. Mr. Curtis, with the assistance of new counsel, argued that, because Mr. Pinto had not opposed the two‑phase hearing, he had provided Mr. Curtis with ineffective counsel. Mr. Pinto was not allowed to intervene, but the adjudicator found that Mr. Curtis’s claims were unsubstantiated and that Mr. Curtis’s additional submissions would not have changed his decision. He went on to find that he lacked jurisdiction to hear the matter because Mr. Curtis had not been wrongfully dismissed — he had resigned voluntarily. His decision was confirmed on judicial review: Curtis v. Bank of Nova Scotia, 2017 FC 380.

Mr. Curtis then brought an action against the respondents Mr. Pinto and his firm, arguing that they had failed to follow his instructions, misled and deceived him, or failed to provide competent legal services when they represented him. Mr. Pinto and his firm moved to have the action dismissed as an abuse of procedure or as frivolous or vexatious under r. 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At what was meant to be the hearing of the motion, Mr. Curtis asked the motions judge to recuse himself due to an apprehension of bias. After Dow J.’s decision and numerous other proceedings, the hearing went ahead several years later.

Dow J. dismissed the application as an abuse of process, with costs of $28,276.43. The Court of Appeal dismissed Mr. Curtis’s application for leave to appeal that award of costs, and dismissed the appeal with costs of $8,500.


Qianhui Deng, Administrator on behalf of the Estate of Shiming Deng (deceased) v. Her Majesty the Queen(F.C.)

Judgments and orders — Summary judgment

The applicant is the Administrator of his late son’s estate. His son came to Canada in 1999 as a foreign student from his home in China and eventually became a permanent Canadian resident. In 2004, he was convicted of aggravated assault. In 2005, following a trip to China, the Canada Border Services Agency seized his passport when he returned to Canada, and prepared an Inadmissibility Report based upon his aggravated assault conviction. He was referred to an admissibility hearing before the Immigration and Refugee Board where he was found to be inadmissible for serious criminality. A deportation order was issued against him at the conclusion of the hearing. Later that day, he committed suicide. His parents came to Canada in 2007 to learn more about the circumstances of their son’s death. The Administrator commenced an action alleging that the conduct of immigration officials caused his son’s suicide, seeking damages for negligence, abuse of power and breach of statutory duty. That action was wholly discontinued by the filing of a notice of discontinuance in September 2010. In September 2017, the Administrator filed a new statement of claim against the Crown. The Administrator sought various forms of relief including an annual visa to enter Canada each year allowing the parents to visit their son’s grave, the granting of posthumous citizenship to the son, a formal apology from the Crown for causing his death and $300 million in compensatory, general, special and punitive damages. The respondent Crown brought a motion to strike the statement of claim on several grounds, including that the action was brought well outside the two year limitation period under the Limitation Act, S.B.C. 2012, c. 13, and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50. The motion judge granted the respondent’s motion and dismissed the action. This decision was upheld on appeal.


Leah Drover v. Craig Drover(N.L.)

Family law — Support — Child support

The parties started cohabiting in 2002, married in 2004 and separated in 2013. Their son was born in the first year of their marriage, and was later diagnosed with ADHD. At the time of trial, the child was attending a junior high school and was living with the applicant wife. The wife ceased working as a travel agent in 2013 primarily as a result of her son’s special needs. The husband is employed as a journeyman electrician and is a project manager for an electrical company. At issue were retroactive and ongoing child and spousal support. The wife maintained that the husband had not provided sufficient financial disclosure in order to determine his income for support purposes. She estimated his annual earnings to be $200,000 from all sources. His line 150 income tax return showed approximately $55,000 for each year in question. The trial judge imputed income to the husband and ordered ongoing and retroactive child and spousal support. That decision was upheld on appeal.


T.J.K. v. M.A.K.(Alta.)

Family law — Support — Child support

The parents married in 2010 and separated in 2014. There are three children born of the marriage and the parents share custody of the children on an equal basis. Following their separation, the husband remained in the matrimonial home and the wife purchased a home of her own. Shortly before marriage, the wife had purchased a company, Valion Inc. She is the sole director and shareholder of the company, which provides occupational testing and safety training to workers in the oil field industry. At trial, both parties disputed the Guideline incomes for each other. The wife applied for child support and s. 7 expenses for the three younger children. The husband’s position was that the set‑off approach to child support in their shared custody arrangement should not apply. Shortly before trial, the husband quit his job in the oil industry and began work as a mechanic, earning significantly less in his new job. The wife maintained that a high income should be imputed to him. The trial judge made an order for an unequal division of matrimonial property in favour of the husband. She ordered that several claimed corporate expenses to be added into the wife’s income for the purposes of calculating child support. She disallowed the wife’s claims to retroactive and ongoing child support and disallowed most claims for s. 7 expenses for the children. These decisions were overturned on appeal.


Orren Brooks Johnson v. Her Majesty the Queen(Sask.)

Criminal law — Appeal — Unreasonable verdict

The applicant, Mr. Johnson, and a co‑accused were charged with first degree murder. The victim was found shot in a bedroom at a home located in Prince Albert, Saskatchewan. At trial before judge and jury, the applicant was convicted of first degree murder and his co-accused of second degree murder. Both the applicant and his co‑accused appealed their convictions, but for different reasons. The applicant argued that his conviction was unreasonable as it was irreconcilable with his co-accused’s verdict of second degree murder. The Court of Appeal for Saskatchewan unanimously dismissed the applicant’s appeal.