THE LAWYERS WEEKLY
June 18, 2010 | 17
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
CHARTER OF RIGHTS
& FREEDOMS
SEARCH AND SEIZURE – Sections
of the Safety Standards Act (B.C.)
which authorized a warrantless entry
and inspection of residential premises
to inspect electrical systems violated s.
8 of the Charter.
Appeal from a finding that certain
provisions of the Safety Standards Act
(B.C.) did not violate s. 8 of the Charter.
Pursuant to the Act, appellants’ residence was earmarked for a safety inspection due to high electricity consumption.
A team of fire safety inspectors attended
the residence. The team was accompanied by two RCMP officers. Appellants
refused entry to the RCMP officers
because they did not have a warrant. The
team’s policy was not to enter a residence
without police first conducting a safety
check. The team left the property without conducting the inspection. As a
result, the city requested and obtained
disconnection of the electrical power to
appellants’ residence. Appellants argued
that the warrantless inspection of their
residence authorized by the Act violated
their ss. 7 and 8 Charter rights. The
application judge held that the Act was
intra vires the province’s legislative
authority. The provisions that authorized
electrical safety inspections did not violate s. 8 of the Charter. The Act struck the
appropriate balance between administrative efficiency, and individual privacy.
HELD: Appeal allowed. Subsections
18( 1) and 19. 3( 1) of the Act violated s. 8 of
the Charter to the extent that they authorized the warrantless entry and inspection
of residential premises for the regulatory
purpose of inspecting electrical systems
for safety risks that may have been related
to grow operations. While a safety
inspector may have been looking for an
electrical panel or electrical wiring in
which the individual had a diminished
expectation of privacy, if doing so meant
intruding into the individual’s home
where there was a high expectation of
privacy, such an inspection was intrusive.
Not only was there a high expectation of
privacy in this case, but the inspections
constituted a considerable intrusion.
Obtaining an administrative warrant was
feasible. There was a 48-hour notice provision built into the Act. Therefore, it
could not be said that the searches were
exigent. The regulatory regime was not
undermined or made inefficient or
inexpedient by a warrant requirement.
Arkinstall v. Surrey (City), [2010]
B.C.J. No. 940, B.C.C.A., per Finch
C.J.B.C. (Low, Frankel, Tysoe and
Groberman JJ.A. concurring), May
20/10. Digest No. 3007-001 (Approx.
23 pp.)
SELF-INCRIMINATION – Police
adequately explained to accused that
he had the right to remain silent during
a police interview.
Appeal by the Crown from the acquittal
of accused on several sex-related charges
involving the three-year-old son of his
then common law wife. At trial, the judge
ruled a confession to those offences
inadmissible. The confession was made
during an interview of accused by RCMP
officers during his detention at the local
detachment. A videotape of the interview
was tendered as evidence. The officer who
was interviewing accused read him his
rights, and included the statement that
accused need not say anything, and that
anything he said could be used as evi-
dence. The officer did not use the words
“you have the right to remain silent”.
Accused indicated on the videotape that
he understood his rights. The judge found
that, absent clear words to indicate accused
was informed of his right to silence, the
Crown could not prove the confession was
voluntary. The judge also considered testi-
mony from accused that he felt nervous
and scared during the interview, and that
he did not understand his right to silence.
Without the confession as evidence, the
Crown had no evidence to tender other
than the account of a three-year-old boy.
Accused was acquitted.
CIVIL PROCEDURE
DISCONTINUANCE – Plaintiff was
permitted to discontinue her class
action against defendants and continue
it as an individual action.
Motion for leave to discontinue a proposed class action. The proposed class
action alleged that defendant doctor was
professionally negligent in the course of
his practice as an obstetrician and gynaecologist. The action named a hospital and
several hospital officials and administrators as defendants for failure to properly
supervise the doctor’s medical practice.
Plaintiff’s proposed action contemplated
a class of anywhere between 150 and 200
of the doctor’s former patients plus derivative claims. Plaintiff no longer wished to
be a representative plaintiff due to her
exposure to costs and the substantial risk
that her action would not be certified as a
class proceeding. Plaintiff sought discontinuance without costs with certain conditions. Plaintiff sought an order that
notice be given to former patients of the
doctor. She also sought the indefinite suspension of limitation periods for certain
women already identified as potential
class members and a 12-month suspension for the balance of the putative class.
HELD: Motion allowed in part. Plaintiff was granted leave to continue her
action as an individual action. She was
ordered to post the notice of intent to
discontinue on her website with the
notice to be provided to certain media.
The known persons that contacted plaintiff’s counsel were unlikely to be prejudiced by the discontinuance. The filing of
the discontinuance was delayed for four
months to ensure putative class members
were protected by s. 28 of the Class Proceedings Act (Ont.) and able to commence individual actions if advised. It
was therefore unnecessary to explore
whether jurisdiction existed for an order
of indefinite suspension of limitation periods. Plaintiff was to pay costs of $20,000.
Hudson v. Austin, [2010] O.J. No.
2015, Ont. S.C.J., Perell J., May 13/10.
Digest No. 3007-003 (Approx. 9 pp.)
SETTLEMENT – A trial was
directed to determine if the parties had
reached a settlement in 2002 and, if so,
the terms of the settlement.
Defendants sought determination of
whether they could argue that plaintiff’s
action had been settled in 2002. Plaintiff
sought to set aside a transaction in which
defendant S Ltd. purchased the common
share it had issued to him. He sought a
declaration that he owned 50 percent of
the shares in S Ltd. The parties participated in voluntary mediation in 2002,
and although minutes of settlement were
not prepared, the parties’ counsel took
steps and exchanged correspondence suggesting the adoption of a cooperative
approach. The court refused to grant
summary judgment enforcing the settlement in 2007. Plaintiff argued the motion
for summary judgment was an all or
nothing proposition, and that having
failed, the remaining defendants were
now precluded from pursuing the issue.
HELD: Motion granted. The settlement agreement issue remained
unresolved. The decision on the summary judgment motion was not a final
order, but was interlocutory. The judge
contemplated a final resolution of the
settlement issue after a trial. The settlement issue was still alive, outstanding
and requiring resolution. An amendment to the statement of defence was
unnecessary. A trial was directed on the
issues of whether the action had been
settled in 2002 and, if so, the terms of
the settlement. Those issues were to be
tried and treated as a separate action.
Srebot v. Srebot Farms Ltd., [2010]
O.J. No. 2040, Ont. S.C.J., Grace J.,
May 14/10. Digest No. 3007-004
(Approx. 8 pp.)
USE OF PSEUDONYMS – The
court refused plaintiff’s motion to
permit her to use a pseudonym in the
proceedings.
Motion by plaintiff for order permit-
ting her to use the pseudonym Janet Doe
to identify herself in the proceedings, an
order banning publication of her name
and granting an injunction against any-
one having notice from publishing or
revealing her name. The action arose out
of a patient/doctor relationship. Plaintiff
alleged that defendant doctor committed
repeated escalating acts of inappropriate
sexual behaviour as a result of which she
suffered severe psychological injuries
resulting in several attempts by her to
take her life. Plaintiff stated that because
of the embarrassment and personal
nature of the facts, she did not wish to
have her name appear to protect herself
from further trauma.
CONSTRUCTION LIENS
CLAIMS – Plaintiff was entitled to
summary judgment against for
$155,714, of which $147,082 was by
way of claim for lien.
Motion for an order granting an
amendment to plaintiff’s statement of
claim and summary judgment against
defendant in the amount of $155,714. The
amendment was unopposed. However,
defendant opposed summary judgment
on the grounds there were material and
genuine issues requiring a trial. Plaintiff
registered a lien for $147,082 on Dec. 1,
2008, and in January 2009 it issued a
statement of claim seeking payment of
that amount, and in default of payment
enforcement of the claim for lien. On
Sept. 29, 2009, judgment was granted
under the Construction Lien Act (Ont.)
seeking to enforce plaintiff’s claim for
lien and claim on the contract, referring
the action for trial.
HELD: Motions granted. As no objection was taken to the amendment to
increase the amount claimed from
$147,082 to $155,714, the amendment
was granted, but only to increase the
amount claimed under contract, not by
way of claim for lien. Consent was
granted to bring the summary judgment
motion because it would expedite the
