HELD: Appeal dismissed. The random
stop program was directly related to legitimate highway purposes. As such, the initial
stop did not violate the s. 9 Charter rights of
accused. There was no doubt that, after the
initial stop, the officer quickly obtained reasonable grounds to believe that accused
were operating the truck in violation of the
HTA. At the time the officer began to investigate the cab of the tractor unit, it was quite
within his statutory authority to search for
further evidence related to the HTA
offences. The officer’s concurrent interest in
contraband did not render the HTA search
unlawful or unreasonable within the scope
of s. 8 of the Charter. As events progressed
from the police stop to the initial regulatory
search of the cab, there was no police invasion of the minimal privacy interest that
existed. When the officer opened the bag,
the cash was in plain view. The seizure of the
marijuana was Charter compliant as it was
discovered during a valid search for evidence incidental to a valid arrest.
R. v. Nolet, [2010] S.C.J. No. 24,
S.C.C. per Binnie J. (McLachlin C.J. and
LeBel, Deschamps, Fish, Abella, Char-
ron, Rothstein and Cromwell JJ. con-
curring), June 25/10. Digest No. 3012-
006 (Approx. 23 pp.)
CIVIL PROCEDURE
PUBLICATION BAN – Court granted
an application permitting the minor
applicant to use initials in her appeal and
ordering a publication ban of words used
on a Facebook page.
Application for orders permitting the use
of initials for the purposes of applicant’s
appeal and for a publication ban pending the
disposition of the appeal. Applicant, a
15-year-old, was represented by her father as
litigation guardian in an action seeking damages for defamation against an unknown
person who had created a fake Facebook
profile of applicant. Applicant and her father
had sought an order compelling B Inc. to
disclose the identity of the owner of the IP
address used to create the fake profile. Several media outlets opposed the application.
Applicant had been unsuccessful in obtaining
a publication ban and permission to use
initials from a chambers judge. She appealed
that decision. Applicant and her father stated
that they were completely unprepared for the
media attention their claim had generated
and wanted to prevent further damage to
applicant’s reputation that publication of her
name along with the allegedly defamatory
statements could have caused. The media
outlets had already reported on the nature of
the case and the nature of the contents of the
Facebook profile.
HELD: Application allowed. The protection of the emotional health of applicant, a minor, was a sufficient concern to
warrant the use of initials in her appeal.
The use of initials would not have a significant deleterious effect on her case or the
rights of the media outlets to report on the
case. A publication ban was issued to prevent publication of the actual words used
in the Facebook profile.
A.B. (Litigation guardian of) v. Bragg
Communications Inc., [2010] N.S.J. No.
354, N.S.C.A., Oland J.A., June 25/10.
Digest No. 3012-007 (Approx. 6 pp.)
CLASS ACTIONS
APPEALS – Fresh evidence admit-
ted on appeal raised a genuine issue for
trial sufficient to justify certification of
a class action.
CERTIFICATION – Certification
judge erred in his decision on common
issues. The appellate court certified
appellant’s action as a class proceeding.
Appeal from dismissal of plaintiff’s
motion for certification of his action as a
class proceeding. Plaintiff brought an action
against the defendant UBC in contract and
negligence. Electricity to a freezer operated
by the Andrology lab was interrupted when
a circuit breaker tripped. The freezer was a
storage unit for sperm samples belonging to
the plaintiff and other men who underwent
chemotherapy and other medical treat-
ments. The freezer’s alarm system failed to
function and the freezer temporarily lost
power, resulting in the destruction of the
sperm samples. UBC issued third party
notices to the parties involved in the freezer’s
manufacture, distribution and installation.
UBC also relied on an exclusion from liabil-
ity clause in the standard agreement signed
by all clients using the storage facilities of the
lab. However, no signature page was pro-
duced for 25 of the 161 clients that stored
sperm in the freezer, including the page
signed by plaintiff. In addition, the agree-
ment listed a different entity than UBC as
party to the agreement. Plaintiff’s action was
found unsuitable for certification as a class
proceeding. Although the negligence issues
were appropriate as common issues, the
issues related to the enforceability of the
exclusion clause were not common to class
members. Given the importance of the indi-
vidual damage and liability issues, a class
action was not the preferable procedure for
determination of any common issues. Plain-
tiff appealed.
COMMON ISSUES – There were suf-
ficient common issues apart from dam-
ages to justify certification of franchisees’
action against a franchisor.
Appeal from an order conditionally certifying an action as a class proceeding. Two
former franchisees sought to represent all
Canadian franchisees of appellant in claiming they were charged exorbitant prices for
food and other supplies for use in their restaurants by appellant and by an affiliated
company set up to supply franchisees. In
certifying the action as a class proceeding,
the judge found the statement of claim disclosed causes of action for breaches of competition law and contract and civil conspiracy. The main contentious issue before the
judge was whether or not damages were a
common issue amongst class members.
The judge refused to certify the action on
the basis that the damages could not be
determined on a class-wide basis. The Divisional Court found the judge erred in
focusing solely on the damages issue and
failing to consider the other proposed common issues, which were sufficient to provide a basis for certification. It also found
that damages could be determined on an
aggregate basis at trial. The certification
motion was allowed conditionally.
HELD: Appeal dismissed. The judge
failed to provide an independent analysis
of the other common issues identified by
the franchisees, an error warranting appellate intervention. Whether or not appellant
and its affiliate had violated competition
law, breached contracts and participated in
a civil conspiracy were common issues that
did not necessarily depend on a damages
assessment. The Class Proceedings Act
(Ont.) provided a procedural code for
determining individual issues as an adjunct
to the class proceeding, therefore supporting the Divisional Court’s finding that
an aggregate damages assessment could be
used if necessary. The individual issues
between the proposed class members did
not overwhelm the common issues such
that a class proceeding was not the preferable procedure. The trial of the common
issues would significantly advance the litigation and would serve the objectives of
judicial economy and access to justice.
2038724 Ontario Ltd. v. Quizno’s
Canada Restaurant Corp., [2010]
O.J. No. 2683, Ont. C.A., per Arm-
strong J.A. (Blair and Juriansz JJ.A.
concurring), June 24/10. Digest No.
3012-010 (Approx. 14 pp.)
PERFORMANCE – Appellant was
liable to respondent for fees payable
under a contract to provide financial
advisory services.
Appeal from judgment allowing respondent’s action to recover fees payable under a
contract to provide financial advisory services. Appellant sought debt financing for a
project to convert an existing distillery to
produce energy. They engaged respondent
to help source and secure financing. Under
the parties’ contract, respondent was
entitled to a success fee of 0 to 4 per cent
depending on the type and source of financing secured. At one point it was anticipated
that National Bank and Farm Credit Canada would provide senior lending. Government funding was contingent on appellant
arranging other major funding within strict
time limits. Financing was secured by
respondent from the Golden Opportunity
Fund, although the Fund would not fulfill
the role of senior lender. Respondent
invoiced appellant when the Fund provided
initial financing of $400,000, for a success
fee based on the entire first financing of
$3,100,000. National Bank withdrew its
financing offer, jeopardizing funding from
other sources. The Fund ultimately introduced appellant to Spectra Credit Union,
which became the senior lender along with
Farm Credit Canada. Spectra also arranged
a $1 million line of credit. Respondent sued
appellant to recover its fees. Appellant took
the position that respondent repudiated,
terminated or failed to perform under the
parties’ agreement. The judge found that
respondent was entitled to success fees for
securing mezzanine financing as well as the
line of credit from Spectra.
HELD: Appeal dismissed. Respondent
had not repudiated the agreement. The line
of credit was a source of financing for appellant’s project whether or not appellant
advanced funds from it. The fact that mezzanine financing contained elements of debt as
well as equity did not preclude the judge
from finding that respondent was entitled to
a success fee for securing this type of financing. Respondent was entitled to its fees for
all financing from the Fund, not just the first
advance. The fees were payable as soon as
the legal commitment to finance the project
was secured from individual lenders.
Pivotal Capital Advisory Group Ltd. v.
NorAmera BioEnergy Corp., [2010] A.J.
No. 723, Alta. C.A., per Côté, Hunt and
Ritter JJ.A., June 24/10. Digest No. 3012-
011 (Approx. 8 pp.)
DEBTOR
& CREDITOR
SET OFF – Respondent was entitled to
rely on equitable set off to set-off amounts
it was owed against amounts owed to
applicant.
Application for a determination of
whether respondent was entitled to withhold payment of amounts owed under an
agreement. Respondent bank retained IT
Inc. to recruit, hire and deploy consultants to
provide information technology services
pursuant to a staffing agreement. Under the
agreement IT Inc. paid the consultants’
wages and benefits and respondent paid IT
Inc. an equal amount plus a mark up. The
agreement clearly provided that the consultants were employees or contractors of IT
Inc. and were not entitled to any compensa-
