was found in possession of 46 kilograms of
cocaine. His pre-offence record was minor
but related. His conviction appeal had
already been dismissed, but he had an
application pending for leave to appeal to
the Supreme Court of Canada, which was
expected to be heard and determined in
the fall of 2010. Applicant had been on
judicial interim release for almost all the
time between his arrest and the dismissal
of his first appeal, without incident. He
had initially lived with his elderly parents,
performing the services of a caregiver for
his ailing father, but his father had since
passed away and his mother had moved
out of the province. He proposed that he
would live with friends in British Columbia if released.
HELD: Application dismissed. Applicant
satisfied the two criteria for judicial interim
release, that his appeal was not frivolous and
that he would surrender himself into custody
when required. However, his detention was
necessary in the public interest. There was no
longer a need for him to act as a caregiver,
one of the reasons the Crown had consented
to his release in the first place. Also, applicant
was not challenging on appeal the finding
that his crime was connected with a criminal
organization. That meant that his crime was
serious enough that his release had the
potential to undermine the public confidence
in the administration of justice. His appeal,
while not frivolous, was a long shot.
R. v. Oddliefson, [2010] M.J. No. 246,
Man. C.A., MacInnes J.A., Aug. 5/10.
Digest No. 3016-007 (Approx. 5 pp.)
CROWN
IMMUNITY – Plaintiff pleaded a suffi-
cient basis for a claim of bad faith against
defendants to preclude reliance on statu-
tory immunity.
Motion by certain defendants to dismiss
plaintiffs’ action on the basis that they were
statutorily immune from liability, or to strike
the amended statement of claim as disclosing
no reasonable cause of action. The moving
defendants were all employed as correctional
officers at a detention centre. Plaintiff sought
damages for injuries he sustained from an
assault by another inmate while both were at
the detention centre. Plaintiff was rendered
unconscious and sustained a traumatic brain
injury. He remained in a long term care facility without a memory of the incident.
Defendants relied on s. 12(1) of the Ministry
of Correctional Services Act (Ont.), which
protected officers and employees of the Ministry for damages for acts done in good faith.
Bad faith on the part of defendants must be
established before the statutory immunity
from liability could be lifted.
HELD: Motion dismissed. Facts amount-
ing to inexplicable and/or reckless conduct
by defendants were sufficiently particular-
ized in the amended statement of claim.
The facts, if taken as true, allowed a reason-
able inference that plaintiff’s injuries
resulted from defendants’ reckless and
inexplicable failure to provide protective
safeguards against a known violent and
dangerous inmate and ensure functioning
cameras and the presence of corrections
officers for security and protection in the
area of the incident. Plaintiff had sufficiently
set out the factual basis for a claim in bad
faith against defendants as a group. It would
be difficult without a trial to obtain the facts
that could prove the existence of the mental
state of wilfulness and mala fides. It was not
plain and obvious that the pleadings with
respect to bad faith and breaches of Charter
rights disclosed no reasonable cause of
action and were certain to fail.
BREACH OF CONTRACT – Trial
judge did not err in his determination of
the date of a breach of contract and the
calculation of damages payable to appel-
lant.
Appeal by appellant from the assessment
of damages payable by respondents. Appellant was involved in a long-running dispute
with his father on the one hand, and his three
uncles on the other, for breach of an oral
contract regarding “warehouse benefits”.
Appellant and his father were part owners of
a family business. Respondents had owned a
greater portion of the business. They decided
to create a warehouse benefit and the parties
entered into an oral agreement that appellant and his father would be provided with
that benefit. However, appellant and his
father received nothing and were evicted
from the company. Appellant and his father
argued that they were entitled to the value of
a completed warehouse, with a valuation
date of June 27, 1995, the date of an earlier
judgment in the action, because by then all
parties knew that respondents had to account
for breaching the agreement. Respondents
argued that the agreement provided that
they would provide appellant and his father
with an interest-free loan and other assistance to enable them to construct their own
warehouse. They contended that they only
owed appellant and his father the value of the
interest-free loan. The trial judge held that
the oral agreement was to provide each
family with a warehouse and had clearly
been breached. Appellant and his father were
to receive the same benefit as the other families and the evidence indicated that that was
financial assistance, not a completed warehouse. The benefits respondents provided to
the other families were the interest-free loan,
construction management and leasing services. All parties were aware that the agreement had been breached by Jan. 1, 1992.
Appellant’s proposed valuation date appeared
random because all parties were aware of the
agreement and breach well before the earlier
judgment. Damages also had to be reduced
because appellant failed to mitigate his losses
by developing his own warehouse without
respondents’ help. Damages of $500,000
were awarded, with pre-judgment interest
from Jan. 1, 1992.
HELD: Appeal dismissed. The trial
judge’s approach to the assessment of damages comprised of the benefit of the interest-free loan and the services that would have
been provided at below cost by the partnership. Appellant did not provide any principled reason why a date other than early 1992
should have been chosen.
De Cotiis v. Viam Holdings Ltd., [2010]
B.C.J. No. 1557, B.C.C.A., per Newbury
J.A. (Bennett and Garson JJ.A. concur-
ring), Aug. 6/10. Digest No. 3016-009
(Approx. 11 pp.)
DEBTOR
& CREDITOR
LOANS – Plaintiff was granted judg-
ment for payment of monies loaned to
defendants to enable them to complete
the purchase of their home.
ESTOPPEL
ISSUE ESTOPPEL – Respondent
insurer’s action against appellant insur-
ers was barred by issue estoppel and was
an abuse of process.
Appeal by two of C Corp.’s insurers from
a decision dismissing their application for
summary dismissal of an action against
them commenced by G Inc., C Corp.’s third
insurer. G Inc. had fully indemnified C
Corp. against claims by the estates of miners
killed when a helicopter carrying them to
the mine went down. G Inc. had defended
the actions against C Corp., after the two
other insurers refused to do so, on a reserva-
tion of rights basis. More than two years
after paying $6,400,000 in satisfaction of
all the claims against C Corp., G Inc. applied
to amend the statement of claim in C Corp.’s
action against its other two insurers to set
up a contribution claim. The application
proceeded on the basis of an admission by G
Inc. that its ability to pursue a contribution
claim against the other insurers was statute-
barred. G Inc. was successful in the lower
court. The court noting that any claim by G
Inc. against the other insurers directly was
statute-barred, but that the limitation
defence was defeated because amending C
Corp.’s action would in no way prejudice the
other insurers. That decision was over-
turned on appeal. The appellate court held
that the proposed amendments to C Corp.’s
statement of claim were too radical. The two
other insurers then moved to dismiss C
Corp.’s action against them, to dismiss a
second application by G Inc. to amend the C
Corp. statement of claim, and to dismiss an
action commenced by G Inc. against them
separately in the wake of the appeal deci-
sion. The court dismissed the applications,
noting that neither issue estoppel nor abuse
of process applied.
EVIDENCE (CRIMINAL)
EVIDENCE OF BAD CHARACTER –
Trial judge erred by failing to instruct the
jury on the limited use that could be
made of bad character evidence.
Appeal from conviction for second
degree murder. The deceased was found in
his car having suffered a fatal stab wound to
the chest. It was uncontested that the
deceased had picked up appellant, who was
a sex trade worker, on the evening of his
death and had taken her back to his apartment. They had an altercation and appellant left the apartment. Sometime later, the
deceased was found dead in the driver’s seat
of his car five blocks away from the apartment. The Crown’s theory was that appellant had both the opportunity and a motive
to kill the deceased. Appellant testified and
denied killing the deceased. She said that he
had assaulted her in his apartment during
the sex act. She left and did not see him
again. The defence position was that there
was ample time after appellant left the
apartment for the deceased to have become
involved with someone else, perhaps
another sex trade worker, who then killed
him. On appeal, appellant argued that the
trial judge erred by admitting evidence of
her bad character and failing to instruct the
jury on the limited use that could be made
of such evidence. The judge had ruled that
the Crown was permitted to cross-examine
appellant on her criminal record.
HELD: Appeal allowed. The conviction
was quashed and new trial was ordered. The
trial judge did not err in admitting the evidence of appellant’s bad character, as he
may well have concluded that she wanted
the evidence admitted in its entirety so as to
better enable her to challenge that evidence.
However, the judge erred by failing to give
the jury a limiting instruction with respect
to the use of the evidence. The impugned
evidence showed appellant to be a person
who lived outside the law, had no regard for
authority, and had a quick temper and a
potentially violent disposition. There was a
significant concern that, absent a clear
instruction on the use of the evidence, the
jury would engage in unacceptable propensity reasoning. The judge also erred in
admitting appellant’s record of convictions
