Canada and the statement of claim included
allegations of misfeasance in public office.
The present action was one of four class
actions commenced in different Canadian
provinces. The parties in those actions discussed the desirability of proceeding in a
single jurisdiction with a result that would be
binding on all cattle farmers across Canada.
HELD: Motion allowed. The amendment of the claim was not opposed and was
granted. The certification order was
amended as requested subject to an opt-out-right to the Quebec residents who would
now become class members in this proceeding. The proposed amendment would promote judicial efficiency, save costs for the
parties, and ensure a consistent result applicable to cattle farmers across Canada. There
would be no common issues relating only to
the Quebec class members and there were
no conflicts amongst class members on the
common issues. The right of the newly
added Quebec class members to opt out was
fundamental to the court’s jurisdiction over
those parties in the proceeding and was integral to the court’s duty to ensure the fair
conduct of the proceeding.
Sauer v. Canada (Attorney General),
[2010] O.J. No. 3381, Ont. S.C.J., Strathy
J., Aug. 10/10. Digest No. 3018-007
(Approx. 6 pp.)
CONTEMPT OF COURT
DISOBEYING COURT ORDER –
Defendant was found in contempt of an
order to disclose certain information
related to pirated satellite signals. She was
ordered to purge her contempt.
Motion by plaintiff BELP for order that
defendant B was in contempt of a Dec. 18,
2009 disclosure order. BELP delivered television programming direct to homes of its
subscribers via satellite pursuant to a licence.
The signals were scrambled or encrypted and
subscribers required a “smart card” or “access
card” and a receiver to descramble the signals. Subscribers paid BELP a periodic fee
for the unscrambled signals and agreed not
to transfer their access cards, which remained
the property of BELP. Plaintiff N Co. supplied the encryption technology used by
BELP. Since 1998 “pirates” had succeeded in
cracking BELP’s system and obtaining its
programming in a descrambled format without paying a fee. The current pirates sold a
form of receiver known as a free-to-air or
“FTA” receiver, which could access “control
words” through servers on the internet called
IKS servers. The control words enabled the
receivers to descramble the BELP programming. The IKS servers obtained the control
words by using BELP receivers and access
cards activated with paid subscriptions.
Plaintiffs issued a statement of claim in 2009
against alleged pirates. They were granted ex
parte interim injunctions and Anton Pillar
orders. B was related to two of those defendants. She became a subscriber to BELP in
2005 and again in 2009 when she activated
four receivers and four corresponding access
cards on her account. Plaintiffs issued a
statement of claim against her in December
2009 alleging, among other things, that her
access cards and their associated BELP
receivers were used as part of the IKS server
supplying control words to a brand of FTA
receivers. Plaintiffs obtained an order that B
was to disclose certain information, which
they alleged she did not comply with.
HELD: Motion granted. The order clearly
and unequivocally stated what should and
should not be done. Through analyzing the
data streams from the IKS server providing
control words to the FTA receivers, N Co.
was able to ascertain with confidence the
serial numbers of the BELP receivers and
access cards being used by the IKS server to
descramble the control words and provided a
list of them to BELP, which was able to con-
firm that the IKS access cards and IKS
receivers were activated on B’s account.
There could be no dispute that B did not
disclose all information known or accessible
to her at the time she was served with the
order pertaining to the physical location of
her receivers and access cards until, at the
earliest, Jan. 21, 2010 when she provided a
responding affidavit. Plaintiffs proved beyond
a reasonable doubt that B deliberately and
wilfully disobeyed the order. The court found
B in contempt of the order and she was
ordered to forthwith purge her contempt.
CRIMINAL INJURIES
COMPENSATION
APPEAL – Appeal from a decision of
the Criminal Injuries Compensation
Board that a victim’s claim should proceed
was quashed based on lack of jurisdiction
and prematurity.
Motion by the Criminal Injuries Compensation Board to quash an appeal based on
lack of jurisdiction, prematurity and failure
of appellant to perfect the appeal in a timely
way. Respondent M was a claimant before
the Board seeking compensation for sexual
assault. He alleged he was assaulted by appellant in 1981 and 1982, when M was 14 and 15
years old. Appellant was a medical doctor
and the coach in the YMCA youth basketball
team on which M played. M first filed his
compensation claim with the Board in July
2003. The Board, on a preliminary motion,
had declined to dismiss a claim for compensation as being out of time and ordered that
the claim should proceed to a hearing on its
merits. Appellant appealed and the Board
proceedings were stayed as a result.
HELD: Motion granted. In its motion
the Board confined itself to matters of jurisdiction, procedure and statutory interpretation. When seen in context, the right of
appeal in s. 23 of the Compensation for
Victims of Crime Act (Ont.) referred only
to final decisions of the Board. A decision
on a preliminary issue that resulted in the
hearing being ordered to proceed was not a
final order. Appellant should have delivered
an application for judicial review rather
than a notice of appeal. Either way, the
court would have stayed it as being premature. There was nothing about the case
now before the court that warranted judicial intervention at this stage.
Sazant v. McKay, [2010] O.J. No.
3472, Ont. Div. Ct., Molloy J., Aug. 16/10.
Digest No. 3018-009 (Approx. 12 pp.)
CRIMINAL LAW
IMPAIRED DRIVING – Summary
conviction appeal judge erred by finding
that a police officer did not have reason-
able and probable grounds to arrest
accused and demand a breath sample.
Appeal from a summary conviction
appeal decision that allowed the appeal of
the accused’s conviction for impaired driving.
After midnight, a citizen called police to
report an erratic driver. The driver was
accused. The citizen remained on the phone
with police while the arresting officer was
dispatched. Before police arrived, accused
collided with the rear of a parked truck.
Within a minute of arriving at the scene, the
officer arrested accused for impaired oper-
ation without making any inquiries into the
accident or whether alcohol had been con-
sumed. The officer noted an odour of alcohol,
unsteady balance, red glassy eyes and a dazed
look. The officer testified that in his 18 years
of experience, reports of an intoxicated driver
tended to be reliable. Accused subsequently
provided breath samples showing an illegal
blood-alcohol level. In pre-trial applications,
accused unsuccessfully argued that police
lacked reasonable and probable grounds to
make an intoxilyzer demand and that his
right to consult with counsel was breached.
Accused was convicted at trial of impaired
driving. The illegal blood-alcohol level was
conditionally stayed. The summary convic-
tion appellate court ruled that the trial judge
reversed the onus on the accused’s s. 8 Char-
ter application, and failed to assess the total-
ity of the surrounding circumstances in
determining the existence of reasonable and
probable grounds for the arrest and breath
sample demand. A new trial was ordered.
The Crown appealed.
RESTRAINT ORDER – Court had
no jurisdiction to return possession of
a property subject to a restraint order
to applicant to enable the property to
be sold.
Application by the registered owner of a
property to vary a restraint order to allow
applicant’s members possession or to permit
them to sell the property. The property was
the club house of the Toronto chapter of the
Hells Angels Motor Cycle Club. In June 2005
the police began an investigation into the
activities of the Toronto chapter’s member-
ship, including suspected illegal activity car-
ried out at the club house or planned or
organized there. As a result, a restraint and
management order was made granting
exclusive possession of the property to the
Minister of Public Works and Government
Services Canada. The order required the
applicant to keep up the mortgage and pay
utilities and insurance on the property. The
mortgage matured in May 2010 and the
mortgagee now asked that it be paid out.
Applicant complained that it was unjust to
require it to continue paying all the expenses
for the property.
STAY OF PROCEEDINGS – Court
refused to stay the suspension of appli-
cant drivers licence pending appeal
because his argument on appeal did not
have sufficient merit.
Application pursuant to para. 181(1)(a) of
the Traffic Safety Act (Alta.) for a stay of the
suspension of applicant’s drivers licence
pending his appeal from his conviction for
leaving the scene of an accident without giving his name and address with intent to
escape liability. The suspension of his licence
followed automatically under the Act. Applicant’s passenger had just dismounted from
his truck when he ran over her with his
vehicle. Applicant then took her to a hospital,
explaining that he had found her in a snow
bank, and he left the hospital without giving
his name or address. The passenger died
shortly thereafter. A police investigation subsequently discovered applicant’s identity and
the true cause of the passenger’s injuries.
HELD: Application dismissed. Applicant’s proposed argument on the appeal,
that he was not required to provide his name
and address because his passenger knew his
identity, did not have sufficient merit to warrant the granting of a stay. Furthermore, a
presumption of intention to avoid liability
could arise simply from the false story given
to the nurses.
R. v. Hoffman, [2010] A.J. No. 928,
Alta. C.A., Slatter J.A., Aug. 16/10. Digest
No. 3018-012 (Approx. 3 pp.)
DAMAGES
(PERSONAL INJURY)
DOG BITES – $8,500 general damages
– Plaintiff was awarded general damages
of $8,500 for injuries sustained when she
was attacked by a dog.
Assessment of damages owed to plaintiff
after she was bitten by a large dog owned by
