that another police officer had reasonable
suspicion that respondent was intoxicated.
However, the trial judge determined that
the police officer who administered the
approved screening device (ASD) demand
did not reasonably suspect that respondent
had alcohol in his body and, as a result, had
not complied with the requirements of
subs. 254( 2) of the Criminal Code, which
was a violation of respondent’s s. 8 Charter
rights. The appeal court judge agreed that
there had been a s. 8 breach.
HELD: Appeal allowed. A conviction
was entered. When the trial judge
instructed himself that he was limited to a
consideration of only the grounds that the
officer who administered the ASD test
was able to articulate at trial and his
independent investigation, he failed to
consider all the evidence that was before
him of the source of the officer’s reasonable suspicion. As a result, the officer who
administered the ASD test had a reasonable suspicion to make the demand pursuant to subs. 254( 2). There was consequently no s. 8 Charter breach.
R. v. Nahorniak, [2010] S.J. No.
300, Sask. C.A., per Ottenbreit J.A.
(Cameron and Smith JJ.A. concurring),
May 26/10. Digest No. 3008-006
(Approx. 9 pp.)
CIVIL PROCEDURE
SETTLEMENT – The court granted a
motion enforcing a settlement dismiss-
ing the action against the individual
defendant without costs.
Motion to enforce a settlement. Plaintiff
commenced an action for damages for the
handling of his statutory accident benefits
(“SAB”) claim relating to a motor vehicle
accident which occurred in 2000. He
alleged that he entered into a contingency
fee arrangement with defendant law firm
to pursue his tort and SAB claim. The SAB
claim settled and the settlement funds
were provided to the law firm and used by
them, unbeknownst by the plaintiff,
towards his tort action. The tort action
went to trial. Prior to trial, the tort defendant made an offer to settle, which the law
firm did not recommend accepting. After
trial, the plaintiff was granted judgment,
but for an amount less than the tort defendant’s offer to settle. As a result, plaintiff had
to pay the tort defendant significant funds.
Plaintiff then sued the law firm alleging
that they wrongly used the settlement proceeds from the SAB action to satisfy their
account and against the remaining defendants alleging that they provided the settlement funds to the law firm without plaintiff’s consent, which enabled the law firm
to take monies from the settlement funds
to which it was not entitled. The parties
then entered into settlement discussions in
which the individual defendant C proposed
that that action be discontinued against
him on a without costs basis. Plaintiff
accepted the offer but failed to provide the
requested release. Plaintiff later took the
position that no settlement had been
reached as he had failed to sign the
requested release and that the settlement
offer had expired. C sought to enforce the
settlement.
HELD: Motion allowed. A settlement
between the parties was concluded. The
deadline for accepting the offer was
extended by the continuing discussions
between the parties. Plaintiff’s solicitor
had ostensible authority to bind plaintiff to
the offer and the counsel for C was entitled
to rely on that authority in the absence of
some indication to the contrary. There was
no evidence of a mistake in accepting the
offer as neither plaintiff nor the counsel
who accepted the offer on his behalf filed
an affidavit, but rather attempted to
advance inadmissible hearsay evidence
containing vague hints of understanding.
CLASS ACTIONS
CERTIFICATION – The appellate
court upheld an order postponing
mediation of certification issues and
urged appellant to withdraw his
amended pleadings and substitute
proper documents.
Appeal from interlocutory orders postponing mediation of the certification issues
until the close of pleadings and ordering
particulars in respect of a second amended
statement of claim and an amended petition for judicial review. Appellant physician commenced a proposed class action
in 1998 for breach of statutory duty and
unjust enrichment based on the dismissal
of his claims for payment for certain medical services rendered. The application for
certification as a class action was dismissed. The appeal from the dismissal was
allowed and the matter was remitted to the
trial court. A dispute arose as to the course
to be followed in the renewed proceedings
in the trial court. The case management
judge ordered the postponement of mediation respecting the certification issues until
after the close of pleadings. The judge
refused to vacate the order postponing the
mediation and granted respondents’ application for further particulars.
HELD: Appeal allowed in part. The
order postponing the mediation of the
certification issues was not set aside. The
case management judge’s concern that
this court departed from the pleadings
and arguments initially placed before the
chambers judge on the certification hearing was unwarranted. To hold plaintiffs
strictly at the certification stage to their
pleadings and arguments as they were
initially formulated would in many cases
defeat the objects of the Class Proceedings Act (B.C.). There must be procedural
flexibility in order to facilitate realization
of the statutory purposes and there was
nothing wrong with plaintiffs reformulating their approach on appeal. Appellant’s
pleadings required amendment. Appellant was urged to withdraw his amended
pleadings and to substitute proper documents to provide a foundation for common issues at trial.
Halvorson v. Medical Services Commission of British Columbia, [2010]
B.C.J. No. 1008, B.C.C.A., per Smith
J.A. (Smith J.A. concurring), reasons
concurring by Ryan J.A., May 28/10.
Digest No. 3008-008 (Approx. 18 pp.)
DAMAGES
ASSAULT AND BATTERY – The
appellate court reduced damages
awarded to plaintiff for the aggressive
behaviour of her supervisor in which he
pushed her and refused to apologize.
Appeal from a judgment in favour of
plaintiffs. Plaintiff had worked for defend-
ant B Inc. for 10 years as an account man-
ager. She typically received excellent per-
formance reviews. However, her supervisor,
A, was an aggressive manager who often
used temper and profanity in managing his
workers. In 2004, A gave plaintiff a critical
performance appraisal. In May 2005, A
criticized plaintiff for failing to arrange a
client meeting and pushed her forcefully
when she attempted to show him an email.
He refused to apologize for the incident
and presented plaintiff with a performance
improvement plan. Plaintiff never returned
to work. She was diagnosed with post-
traumatic stress disorder and major
depressive disorder. She made a formal
complaint to human resources and A
received a written warning. Plaintiff sued
for general and punitive damages. A was
found personally liable for battery and
intentional and negligent infliction of
mental suffering. B Inc. was found vicari-
ously liable for the torts committed by the
supervisor and directly liable for negli-
gence and constructive dismissal. Plaintiff
was awarded total damages of $500,955.
DAMAGES
(PERSONAL INJURY)
APPEAL OF AWARD – The trial
judge erred in his determination of
appellant’s prognosis for recovery. Her
total damages were increased to
$582,503.
Appeal from damages of $223,503
awarded to appellant for personal injuries
she suffered in a motor vehicle accident in
2006. Appellant suffered soft tissue injur-
ies which led to the development of chronic
pain that affected all aspects of her life,
including her ability to earn an income.
The trial judge concluded that appellant
had a real and substantial prospect of
improvement, having particular regard for
the new course of treatment on which she
had embarked. Appellant worked until
2009 but then stopped working due to
pain and discomfort. The judge assessed
damages for her non-pecuniary loss at
$60,000. Accepting that appellant had
demonstrated the ability to earn an income
of $50,000 a year, the judge assessed the
loss of her capacity to earn income at
$100,000.
BRAIN – $225,000 general damages
– Plaintiff was awarded damages for
injuries sustained when he was hit in the
left eye by an arrow, which lodged itself
in his brain.
Action for personal injuries suffered
when defendant S shot an arrow which
pierced plaintiff’s left eye and lodged itself
into his brain. The parties were friends.
They went to a public archery range maintained by defendant city. The parties lost
some arrows. In order to locate some of the
lost arrows, they decided that one of them
would shoot an arrow over the top of the
target while the other stood downrange
near the line of fire to watch where the
arrow landed in the hope to locate lost
arrows. That conduct was expressly prohibited by the rules posted at the range.
Plaintiff was hit by an arrow as he was
looking for arrows in the grass. He admitted being partly liable. Expert evidence
indicated that users of the range regularly
violated the rules. As a result of the accident, the plaintiff, 54, sustained a severe
brain injury. He was deaf in his right ear,
had reduced cognitive function and poor
mobility. He has also been diagnosed with
profound depression, which had manifested itself in persistent feelings of helplessness, regular panic attacks, and suicidal
ideation. Plaintiff was now completely
unemployable. Prior to the accident, the
plaintiff’s income was $53,048 annually.
HELD: Action allowed in part. Plaintiff
was 50 percent negligent. The accident
resulted from the experiment to retrieve
lost arrows. S was negligent by agreeing to
fire an arrow in the general direction where
plaintiff was standing, thereby creating an
unreasonable risk of harm. The defence of
volenti non fit injuria did not apply. Even if
plaintiff willingly assumed the physical
risks of the plan to recover the lost arrows,
he did not waive his rights of recovery from
defendant should those risks result in
injuries. Considering that the plaintiff
knowingly put himself in the path of the
arrows shot by defendant, the accident was
so unpredictable that the city should not
have been expected to foresee or prevent it.
The action against the city was dismissed.
General damages were assessed at
$225,000. Plaintiff’s income loss was
