transfer of 73 acres of land forming part of
an estate to the testator’s eight surviving
children. The testator’s will provided for the
payment of equal shares of the residue of his
estate to each of his eight surviving children.
The executors consulted a lawyer before
making the transfer and discovered that the
beneficiaries could benefit from a capital
gains tax exemption for farm property once
the land was sold. One of the beneficiaries,
S, challenged the transfer. The court found
that the executors were not entitled to
transfer the land in specie as that conflicted
with the terms of the will providing for the
conversion of the estate’s assets into money
and for the transfer of the residue after taxes
and disbursements to the eight beneficiaries. The executors appealed.
HELD: Appeal dismissed. Transferring
a one-eighth interest in the farm property
to each of the beneficiaries was not the
same as transferring to each of them a one-eighth share of the residue of the estate.
The transfer was properly set aside as contrary to the will. Also, the executors could
not make the transfer without the agreement of all the beneficiaries, including S.
Gunn Estate v. Gunn, [2010] P.E.I.J.
No. 35, P.E.I.C.A., per McQuaid J.A.
(Jenkins C.J.P.E.I. and Murphy J.A. con-
curring), July 21/10. Digest No. 3014-
006 (Approx. 14 pp.)
EVIDENCE (CRIMINAL)
CROSS-EXAMINATION – Trial
judge erred in foreclosing appellant’s
cross-examination of a police officer.
Appeal from conviction. Appellant was
charged with committing an assault on the
complainant, his former wife. It was alleged
that, following an exchange between the
two, appellant lifted up a mattress that
complainant was lying on, causing her to
jump up and land on the floor on her feet,
following which she bumped into a night
table. No injuries were alleged. Appellant
was arrested the day after on the strength of
the former wife’s statement and videotape
interview. At trial, the main thrust of appellant’s defence was that it was impossible for
him to have lifted the combined weight of a
queen size mattress and complainant, who
was 6 ft. 2 inches tall and weighed about
170 lbs. The arresting officer did not view or
investigate the mattress, nor did he interview anyone other than complainant.
Appellant was unrepresented at trial and
his first language was not English. He
intended to question the officer about the
quality of the investigation with a view to
sustaining reasonable doubt in the mind of
the trial judge. The trial judge ruled that he
would not be permitted to cross-examine
the officer in the manner that he had
intended.
HELD: Appeal allowed. As a result of
reframing appellant’s comments into a
challenge under s. 9 of the Charter and rul-
ing that there had been no such breach, the
trial judge foreclosed appellant from cross-
examining the officer on issues related to
whether he had reasonable and probable
grounds to arrest appellant. The error was
clearly inadvertent but, as a result, the
judge evaluated the credibility of the com-
plainant in the absence of evidence that
should have been elicited from the officer.
There was no evidence on the record which
would allow the judge to draw a conclusion
about appellant’s fitness other than his per-
sonal observations and assessments. It was
pivotal that the configuration, size and
weight of the bed was never clarified but
that the trial judge drew the conclusion that
appellant was able to lift those items. A new
trial was ordered.
SPOUSES – Spousal privilege did not
apply to recordings of telephone conver-
sations between accused and his wife
while he was in pre-trial incarceration.
Appeal from conviction for robbery.
Accused argued that the trial judge erred in
admitting transcripts of telephone calls
accused made to his wife and others during
his pre-trial incarceration. He alleged the
evidence violated spousal privilege and that
the recordings of all of the telephone calls
were obtained by the police in violation of s.
8 of the Charter. Accused had been charged
with five counts of robbery and pleaded
guilty to two robberies. The trial judge found
that there were sufficient similarities in the
four robberies to justify the reception of the
evidence of the admitted robberies as similar
fact evidence. Upon his arrest, accused was
held at a pre-trial centre. Based on an
anonymous tip that accused confessed to a
robbery during the telephone conversations,
police obtained a production order of the
recordings. The trial judge used the transcripts only in assessing accused’s credibility
in the context of his alibi evidence.
HELD: Appeal dismissed. Spousal privilege did not render the impugned transcripts inadmissible against the accused
since s. 189( 6) of the Criminal Code was
inapplicable. The privilege created by s. 4( 3)
of the Canada Evidence Act was against
compulsory disclosure of marital communications. It was a testimonial privilege giving
a right to withhold evidence, but the information itself was not privileged. Section
189( 6) had no application because the communications at issue did not fall within the
definition of private communication. It was
known to all participants that all calls were
recorded by prison authorities. The transcripts of the telephone calls were not tendered as the wife’s evidence but for the
statements made by accused. Accused had a
privacy interest in the contents of the
recordings sufficient to found a right under
s. 8 of the Charter. The recordings from the
telephone conversations should have been
excluded. However, the inadmissible evidence did not form an integral part of the
judge’s reasoning.
R. v. Siniscalchi, [2010] B.C.J. No.
1438, B.C.C.A., per Groberman J.A.
(Donald and Huddart JJ.A. concur-
ring), July 21/10. Digest No. 3014-008
(Approx. 30 pp.)
FAMILY LAW
CHILD WELFARE – Trial judge did
not err in making a permanent care
order for a child of appellants.
Appeal from the dismissal of an appeal
from a permanent care order. Appellant
parents had two children, D and S. D was
apprehended by respondent agency. In
October 2009, D was placed in the perma-
nent care of the agency without access on
the basis that the child had suffered non-
accidental injuries while in the care of the
parents. An appeal from that order was
dismissed. S had been apprehended by the
agency in May 2008. In February 2010, S
was found to be a child in need of protec-
tion and was placed in the permanent care
and custody of the agency without access to
the parents. The parents appealed the order
relating to D on the basis that the agency
erred in its consideration of medical evi-
dence, failed to give proper weight to poly-
graph evidence, erred in considering
unrelated criminal charges from which the
parents were acquitted, failed to consider
other custody options, and erred in failing
to recognize the completion of services by
the parents.
INSURANCE
(MOTOR VEHICLE)
COVERAGE – Former passengers of a
city’s public transit system were not
‘named insured’ under the system’s
insurance policy.
Appeal from the decision of arbitrator.
In 2006, 16 year old C suffered serious personal injuries in a stolen car when it
slammed into a tree. He was dependent on
his mother L for financial support and care.
Neither L nor C possessed a driver’s licence
or owned a car. L mostly used the municipal transit system, which was insured by
respondent, to travel to and from work. She
owned monthly passes and paid cash fares.
Appellant insured the stolen car and paid
some benefits but sought to recover its outlay and establish that priority rested with
respondent. An arbitrator concluded that
neither C nor his mother L were deemed to
be a named insured under respondent’s
policy and it was not obligated to pay any
statutory accident benefits.
HELD: Appeal dismissed. Appellant
argued that s. 66 of the Statutory Accident
Benefits Schedule, which stated that an
individual shall be deemed to be a named
insured under a policy if the insured auto-
mobile is being made available for the indi-
vidual’s regular use, applied to compel the
arbitrator to find that C and/or L was a
named insured. The arbitrator made the
specific finding that municipal buses were
not “made available” to C and L, and it was
doubtful that being a passenger on a public
transit vehicle was “use” within the context
of the regulation. The arbitrator’s award
was both correct and reasonable and ought
not to be modified. Holding otherwise
would result in nearly every time a public
transit authority sold a token, ticket or bus
pass anywhere in Ontario, it would also be
seen to be including a policy of insurance as
an added extra bonus premium to mem-
bers of the public.
LABOUR RELATIONS
JUDICIAL REVIEW – Court refused
to intervene with an arbitrator’s decision
that certain employees were not entitled
to severance pay under the Employment
Standards Act (Ont.).
Application for judicial review of an
arbitration award. Respondent employer
was a manufacturer of automobile parts. In
July 2008 it started issuing termination
notices to its employees in a gradual process. Applicant union represented both
office and plant workers. The employer had
a generous pension plan which specifically
contemplated for early retirement eligibility upon plant closure. The Employment
Standards Act (Ont.) exempted employers
from providing severance pay to certain
employees. The issue was whether the
employees who received pension benefits
upon plant closure came within the terms
of the exemption. If so, they were not eligible for severance pay under the Act. The
arbitrator found in favour of the employer.
HELD: Application dismissed. The arbitrator’s decision was reasonable. The arbitrator found that the employer’s pension
plan was designed to make up for the losses
of future service credits or pension accrual
by imposing significant financial responsibilities upon the employer in the event of
a plant closure. It granted “up front” benefits to make up for future potential being
taken away from those forced to retire. The
Act was designed to provide severance pay
to employees who did not have those benefits. There was no basis to intervene with
the arbitrator’s decision.
National Automobile, Aerospace,
Transportation and General Workers’
Union of Canada (CAW-Canada), Local
1451 v. Kitchener Frame Ltd., [2010]
O.J. No. 3041, Ont. Div. Ct., per Molloy
J., (Reilly and Dambrot JJ. concurring),
July 9/10. Digest No. 3014-011 (Approx.
12 pp.)
LIMITATION OF ACTIONS
COMMENCEMENT – Motion judge
erred in calculating the limitation period
applicable to plaintiff’s claim. Action
was statute-barred.
Appeals from the partial dismissal of
plaintiff’s action. On June 29, 2005,
respondent commenced an action against
defendant city arising from his alleged
assault at the hands of city police officers
during an arrest he stated occurred on June
30, 2003. A month later, in a second notice
of action, plaintiff added allegations that he
was also assaulted by police a second time
on an unspecified date. The city was never
served with the second notice. Plaintiff
amended his claim in November 2008,
deleting certain defendants and adding the
allegation that he was attacked a second
time by city police officers in September
2003. The city denied any tortious conduct
and pointed out that plaintiff was actually
arrested on June 28, 2003. Plaintiff
amended his claim again in January 2009,
