APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37925

Victor James Paul Davies v. Her Majesty the Queen (Ont.)

Criminal law – Appeals – Unreasonable verdict

The applicant, Mr. Davies, and an accomplice went to a store in Hamilton. The robbery was captured on video. An eye witnesses testified and identified Mr. Davies as one of the men running out of the store. The eyewitness also identified Mr. Davies in a photo line-up. After a trial by judge and jury, Mr. Davies was convicted of the following offences: armed robbery, use of an imitation firearm and disguise with intent. Mr. Davies’ principal ground of appeal was that the trial judge did not sufficiently caution the jury about the specific frailties in the evidence of the identification witness in this case. The Court of Appeal held that during the jury charge, the trial judge returned to the specific concerns about the identification evidence. The Court of Appeal held that it was satisfied that the trial judge properly identified the specific concerns that emerged from the evidence at trial. The conviction appeal was dismissed.

37826

Pierre Watters v. Director of Criminal and Penal Prosecutions (Que.)

Provincial offences

The applicant Mr. Watters was convicted of driving at a speed of 97 km/h in a 50 km/h zone. He was sentenced to pay a $480 fine. At trial, he did not deny driving at 97 km/h, but he argued that the road and traffic signs and signals were faulty and did not comply with the standards set by the Minister of Transport. The trial judge rejected that argument. In her view, Mr. Watters had failed to rebut the presumption created by the common law that road and traffic signs and signals are considered to be compliant with prescribed standards. The Superior Court allowed the appeal on the ground that neither s. 303.1 of the Highway Safety Code nor the common law creates a presumption of regularity for road and traffic signs and signals. The prosecution had to prove beyond a reasonable doubt that the signs and signals were compliant, from the standpoint of both the actus reus of the offence and the defence of impossibility. The Court of Appeal allowed the appeal and restored the trial judgment.

37866

Kimberley Isbister v. Paige Delong (B.C.)

Damages – Quantum – Evidence

Kimberly Isbister was injured by a vehicle driven by Paige Delong. Ms. Isbister commenced an action against Ms. Delong, seeking damages in excess of $3 million. The action went to trial before a judge of the Supreme Court of British Columbia solely on the question of damages. At issue were the nature and extent of Ms. Isbister’s injuries and the past, present, and future impact of those injuries.

The B.C. Supreme Court granted Ms. Isbister damages in the amount of $834,823. The claims for management fees, net income loss, tax gross-up on future care costs, special damages and costs, were also granted, while the claim for recovery of litigation loan interest, was denied. The B.C. Court of Appeal dismissed Ms. Isbister’s appeal (Smith J.A., dissenting).

37882

M.M. v. Société de l’assurance automobile du Québec - and - Administrative Tribunal of Québec (Que.)

Administrative law – Appeals – Standard of review

The applicant M. M. is a retired Quebec resident who stays in Florida during the winter. In November 2015, he was shot in the head by a firearm when he was the victim of an attempted theft while driving his car in Florida. He hurried back to Quebec to have his injuries treated. He filed an application with the SAAQ for compensation, which was denied. That decision was upheld by the ATQ, which found that the attempted murder was unrelated to the use of a vehicle, so there could be no [translation] “accident caused by an automobile”. On judicial review, the Superior Court selected and applied the reasonableness standard and concluded that the ATQ’s determination fell within the range of possible, acceptable outcomes having regard to the facts and the law. The Court of Appeal dismissed the motion for leave to appeal, finding that the ATQ’s interpretation was consistent with the ordinary meaning and the courts’ liberal interpretation of the expression “accident caused by an automobile”.

37904

Daniel F. Clark v. Shanna Hunka, Bishop & McKenzie LLP (Alta.)

Civil Procedure – Pleadings

During the hearing of a complaint of professional misconduct against the applicant, a Discipline Tribunal established by the Complaints Inquiry Committee (the “CIC”) of the Institute of Chartered Accountants of Alberta received independent advice on the applicant’s motion to strike the proceedings from the respondent, Ms. Hunka. Ms. Hunka gave advice on law and procedure and did not disclose to the Tribunal or the applicant that she had previously prosecuted other chartered accountants in other discipline proceedings on behalf of the CIC. The applicant brought an application for a stay of proceedings on the grounds that this constituted an irreconcilable conflict of interest giving rise to a reasonable apprehension of bias. His application was dismissed, but was successfully appealed and the discipline proceedings against the applicant were stayed.

The applicant brought an action against the respondents for malicious prosecution. A Master dismissed an application by the respondents to strike out the statement of claim, finding that while it did not fit within the traditional framework of malicious prosecution, it was a novel claim. The Alberta Court of Queen’s Bench allowed the respondents’ appeal on the basis that the Statement of Claim failed to allege facts in support two of the four mandatory components of the tort of malicious prosecution or establish a novel tort and that the claim had no reasonable possibility of success. The Alberta Court of Appeal dismissed the appeal.

38050

Kurt McKnight v. Bank of Nova Scotia Trust Company (Ont.)

Civil procedure – Costs

Mr. McKnight brought a motion to strike the respondent’s statement of defence without leave to amend, to note the respondent in default and to have the court grant judgment in his favour for the claimed amount of damages. He also moved to amend the amount he claimed for damages. The motions judge granted the motion to amend, which was on consent, but dismissed the balance of the applicant’s motion with costs. A single justice of the Court of Appeal determined that the orders of Hood J. were interlocutory, that the court therefore had no jurisdiction over the matter and dismissed the motion to transfer the applicant’s appeal to the Court of Appeal.

37947

Graeme McCreath v. Victoria Taxi (1987) LTD., British Columbia Human Rights Tribunal (B.C.)

Human Rights – Discriminatory practices

The applicant is legally blind and requires a cane or a guide dog to assist him with his mobility. While accompanied by his guide dog, he required a taxi in downtown Victoria, B.C. and was refused service by the dispatched taxi driver on the basis that he was allergic to dogs. The respondent taxi company has an Exception Policy exempting drivers who provide an annual medical certificate confirming their allergy from taking passengers with animals. The driver arranged for another taxi to come and the applicant was picked up one to two minutes later. The applicant filed a discrimination complaint against the respondent under the Code. On judicial review, the courts upheld the British Columbia Human Rights Tribunal’s decision that while there had been prima facie discrimination, the respondent had established a bona fide and reasonable justification for the refusal of service based upon its Exception Policy, which balanced the rights between service users and employees as persons with disabilities.