Musqueam Indian Band v. Musqueam Indian Band Board of Review, Assessor of the Musqueam Indian Band, Shaughnessy Golf and Country Club

Aboriginal law – Indian Band By-laws – Taxation

The Shaughnessy Golf and Country Club operates its golf course in Vancouver on reserve land belonging to the Musqueam Indian Band. Since 1958, the Club has leased this land from the Band, and the lease restricts the use of the property to that of a golf course. During that time, the Club has paid property taxes, first to the City of Vancouver, and then to the Band, based on the value of the land as a golf course. The Band appealed a 2011 tax assessment to the Musqueam Indian Band Board of Review, contending that the true assessed value of the property should be its value as residential land. The Board sought a determination from the Supreme Court of British Columbia on whether the use of the land as a golf course could properly be considered in assessing the value of the property. The Supreme Court of British Columbia answered the question in the affirmative, holding that the use of the property as a golf course could be considered in assessing the value of the land to determine its highest and best use. On appeal by the Band, the British Columbia Court of Appeal upheld this result but varied the Supreme Court of British Columbia’s answers, finding that the use of the land as a golf course constituted a “restriction” on use specified in the lease, which was “placed by the Band”, and was therefore to be considered by the Board in assessing the property’s value under the terms of the Band’s property assessment by-law.


Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary

Privacy — Access to information

In the course of a wrongful dismissal suit by an individual against the respondent University, the University asserted solicitor-client privilege over certain material. The individual made an access to information request under s. 7 of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, seeking certain records about her in the University’s possession. The University provided some disclosure, but claimed solicitor-client privilege over some of the requested material. The Commissioner’s delegate eventually directed the University to the Commissioner’s “Solicitor-Client Privilege Adjudication Protocol”. When the University did not comply, the delegate issued a “notice to produce records” under s. 56(3) of the Act. It reads, in part, “[t]he Commissioner may require any record to be produced to the Commissioner and may examine any information in a record… [d]espite any other enactment or any privilege of the law of evidence”. The delegate indicated in an accompanying letter that the purpose of the notice was to enable him to determine whether solicitor-client privilege had been properly asserted because the University had not provided sufficient evidence to allow him to make that determination. The University sought judicial review of the delegate’s decision to issue the notice to produce. The Law Society of Alberta was granted intervener status at the Court of Queen’s Bench and the Court of Appeal. The application for judicial review was dismissed, and the subsequent appeal was allowed.


Albert Benhaim, Michael O'Donovan v. Cathie St-Germain, personally and in her capacity as tutor to her minor son whose name is being kept confidential, Cathie St-Germain, in her capacity as universal legatee of the late Marc Émond

Civil liability – Medical malpractice – Causation

Cathie St‑Germain brought a medical malpractice suit, in her own name and in her capacity as universal legatee and as tutor to her minor son, against the attending physician and the radiologist of her spouse, Marc Émond, who had died of lung cancer in 2008 at the age of 47. She argued that the applicants had failed to detect and investigate the presence of a nodule on her spouse’s right lung, which had appeared as a shadow on a lung X‑ray taken by chance in November 2005, and had failed to propose a course of action that would have allowed for early diagnosis and full recovery.  She claimed a total of $3,780,000 in damages. In their defence, the applicants argued that a diagnosis in November 2005 would not have allowed Mr. Émond to recover because the cancer was already at an advanced stage.  The Superior Court held that the physicians were at fault in this case but that causation had not been proved.  The Court of Appeal set aside the decision.