SHAREHOLDERS – The appellate
court upheld a finding that respondent
was not in default of a unanimous share-
holders agreement.
Appeal from a decision holding that
respondent was not in default of a unanimous shareholders agreement (USA). The
parties and B were shareholders in a professional veterinary corporation. The USA they
executed precluded the transfer of a shareholder’s shares to another shareholder without notice to all the shareholders. In arbitration, a transfer of B’s shares to respondent
was set aside because it contravened the
USA. The other shareholders pursued default
proceedings against respondent. The arbitrator and later the court held respondent was
not in default under the USA because there
was no obligation on her part to inform the
other shareholders of the transfer, and also
because the shares had reverted back to B
when the transfer was set aside. As such, if
there was any default by respondent, it ended
when the transfer was set aside.
HELD: Appeal dismissed. There was no
obligation imposed on respondent as transferee of B’s shares under the USA. The proposed sale was not permitted. Therefore, B
was still the owner of her shares and respondent was no longer in default.
Lizotte v. Arsenault, [2010] N.B.J.
No. 825, N.B.C.A., per Green J.A. (Dra-
peau C.J.N.B. and Deschênes J.A. con-
curring), Mar. 18/10. Digest No. 2947-
006 (Approx. 10 pp.)
CRIMINAL LAW
COMMITAL FOR TRIAL – The pre-
liminary inquiry judge erred in commit-
ting applicants for trial in the absence of
any evidence that could support a finding
of guilt.
Certiorari application by three of seven
persons charged with uttering forged documents, fraud and conspiracy. Applicants
were accused of being involved in the purchase of 55 vehicles with false identification
and employment records. The loans obtained
for the vehicle purchases had gone into
default and the vehicles had disappeared.
Two applicants were sales persons at the
dealership and one was the sales manager.
The Crown’s witness was a party involved in
the fraudulent transactions. There was no
evidence connecting the first applicant sales
person to the witness or to the transactions.
The only evidence connecting the sales manager to the scheme was the Crown witness’s
testimony that he knew the sales manager
and had faxed false insurance slips to him.
However, there was no evidence connecting
the false documentation to the 44 vehicle
transactions the manager was associated
with. The third applicant, a sales person, was
charged because of his alleged involvement
in one bad transaction. However, the Crown
presented no evidence in relation to that
particular deal and relied on applicant’s
familial connection to the other accused.
HELD: Application allowed. The Crown
relied entirely on mere association in having applicants committed for trial. The evidence was insufficient to justify committal.
The judge erred in committing applicants
in the absence of any evidence that could
support a finding of guilt. Applicants’ committal was quashed.
R. v. Chaudhry, [2010] O.J. No. 1138,
Ont. S.C.J., O’Connor J., Mar. 18/10.
Digest No. 2947-007 (Approx. 8 pp.)
WRONGFUL DEATH – The trial
judge erred in his assessment of damages
for wrongful death by underestimating
the deceased’s probable future income.
Appeal from the assessment of damages
in an action brought under the Family
Compensation Act (B.C.). Appellant’s wife
was killed in a traffic accident in 2003. She
was 50 years old at the time of her death.
She was survived by appellant and two
young children. A claim under the Act was
advanced on behalf of all three. Appellant
contended that the trial judge underestimated the income that the deceased would
have earned from a career college that she
had founded and operated, had she lived.
He sought a consequential increase in both
the awards for loss of dependency and loss
of inheritance.
HELD: Appeal allowed. Appellant’s
damages for loss of dependency were
increased to $204,000, and the children’s
damages were increased to $86,000 and
$93,000 respectively. The trial judge underestimated the deceased’s probable future
income. He dismissed anticipated future
growth of the college as speculative when
the evidence established a substantial possibility of future growth. A figure close to the
amount the deceased earned from the college in 2007 was appropriate. Had the judge
not made the errors that he did, he would
have found the deceased’s income for 2007
to be approximately $125,000, which was
the figure that should have been used for
her future income.
Stegemann v. Pasemko, [2010] B.C.J.
No. 512, B.C.C.A., per Groberman J.A.
(Rowles and Levinve JJ.A. concurring),
Mar. 25/10. Digest No. 2947-008
(Approx. 7 pp.)
EVIDENCE (CRIMINAL)
STATEMENTS – The court excluded
statements made by applicant to two bail-
iffs because it was not satisfied that the
statements were obtained without threat
or inducements.
Application to exclude statements.
Applicant was charged with a number of
fraud-related offences at a car dealership. It
was alleged that in January 2006 and
another person attended the dealership and
obtained a number of vehicles by providing
false banking and credit information. The
Crown sought to rely on a number of utterances made by applicant to two bailiffs who
were involved in the recovery of the vehicles.
Some were made at applicant’s home, some
during telephone conversations between
applicant and one of the bailiffs, one made
while a police officer listened in over a
speaker phone.
HELD: Application granted. It may well
be that the two bailiffs had nothing to do
with the criminal investigation. They were
not deliberately assisting the police. The
point was how their role was perceived by
applicant and whether his perception was
reasonable. Applicant established that he
subjectively believed the bailiffs were some-
how connected to and could have had some
influence over, a criminal investigation con-
cerning him. The Crown had to establish, to
the requisite standard, that the statements
were not the product of any threats or
promises made by the bailiffs. Applicant
testified that the bailiffs said a number of
things to him, either as threats or induce-
ments, which caused him to cooperate with
them and provide them with information.
There was not even rudimentary note tak-
ing. The court was not satisfied beyond a
reasonable doubt that anything that appli-
cant said during the telephone conversa-
tions was free and voluntary. The Crown
was unable to meet its onus.
FAMILY LAW
CHILD SUPPORT – The motion
judge erred in failing to accept the fath-
er’s uncontradicted evidence of a change
in his income requiring a reduction in
child support.
Appeal from an order dismissing the
father’s motion to vary a final order for child
support. The father was paying $446 per
month in child support for two children
based on an imputed income of $30,000.
He launched a motion to vary seeking to
have the ongoing amount reduced and to
have the accumulated arrears rescinded. He
had been in default since the orders were
first made, and arrears totalled $44,942 to
Dec. 31, 2009. The only evidence was the
uncontradicted affidavit evidence of the
father. However, the mother told the motion
judge she had never received her equalization payment, and that the father had sold
the matrimonial home, worth $300,000,
for $100,000. The motion judge refused to
vary child support.
HELD: Appeal allowed. The father’s
evidence was uncontradicted. There had
been a material change in the circumstances of the father, in that his income was
only $12,098. To ignore that change in circumstances was an error in law. On the
hearing of the appeal, the mother conceded
she had never taken proceedings for an
equalization payment. Therefore, the questions related to the house and equalization
payment were to be ignored. Based on the
correct support figures, the father’s arrears
as of Dec. 31, 2009 were fixed at $15,240.
From Jan. 1, 2010 to Feb. 28, 2010, the
amount owing was $322. Ongoing child
support payable was $161 per month commencing Mar. 1, 2010.
Davidson v. Davidson, [2010] O.J.
No. 1149, Ont. Div. Ct., per Ferrier J.
(Cunningham A.C.J.S.C.J. and Leder-
man J. concurring), Mar. 18/10. Digest
No. 2947-010 (Approx. 5 pp.)
CHILD WELFARE – The appellate
court upheld a decision awarding
permanent care of appellants’ child to
respondent agency.
Appeal from an order awarding perma-
nent care of appellants’ child to respondent
agency. The child, an infant, was rushed to
hospital due to an incident of apnea. Dur-
ing treatment, medical staff discovered
fractures below the child’s knees in both
legs. In 2007, the agency applied for an
order for temporary care due to concerns
regarding the unexplained fractures, the
parents’ history of substance abuse and
their lack of insight into their parenting
shortcomings. The parents contended that
the child’s bones were weak due to a pre-
mature birth. Doctors testified that the
child’s injuries were non-accidental. The
child was found to be in need of protective
services. The agency initially contemplated
the return of the child to the parents follow-
ing their completion of remedial services.
The agency later revised its position to seek
permanent care without access, which was
granted in 2009. The parents appealed,
alleging errors by the trial judge. They vol-
untarily took a polygraph test.
CUSTODY – The chambers judge
failed to consider the best interests of
the children in awarding the father
supervised interim access.
Appeal from an order granting the
father supervised interim access. The parties had twins born in 2004. The parties
separated in 2005. When the children
were about 18 months old, the father fired
two gun shots at the mother’s residence.
As a result, the father was incarcerated
and had no further contact with the children. The mother was awarded sole custody. After he was released on parole in
2009, the father applied for supervised
access. The mother deposed that the children had no memory of their father and
did not ask about him.
HELD: Appeal allowed. The chambers
judge erred in principle. The judge’s decision seemed to be based on the principle
that access to both parents was presumed
to be in the best interests of the child.
However, he failed to consider whether the
change in the status quo was in the children’s best interests. The judge should not
have granted access in the absence of
information as to whether the father was
able to control the behaviour he had exhibited in the past. The judge should also have
taken into account how the children might
best have been introduced to the father
and considered whether it was in the children’s best interests to have contact, recognizing the possibility that at some future
point the father might again disappear
from their lives should he not be successful
in obtaining a final order. The matter was
remitted for reconsideration.
Jones v. Bahr, [2010] S.J. No. 168,
Sask. C.A., per Lane J.A. (Klebuc
C.J.S. and Richards J.A. concurring),
Mar. 19/10. Digest No. 2947-012
(Approx. 5 pp.)
