DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
APPEALS
STAY PENDING APPEAL – Court
stayed custody order pending appeal.
Application by the father to stay a custody order respecting the parties’ nine-year-old daughter pending his appeal of the
order. The judge granted sole custody to the
mother on the ground that the father had
alienated the child from the mother. The
child had lived with the father for the past
two yeas. The child, who had seen the
mother only once during that time, did not
wish to live with the mother. The order did
not provide for any access by the father.
HELD: Application allowed. The appeal
raised a serious question respecting the
concept of parental alienation. Failure to
grant the stay would have resulted in
irreparable harm. The child might have had
to be forcibly transferred, and she would
have been denied contact with the one parent with whom she had lived for the past
two years. Given the short time required to
complete the appeal process, and considering the very disruptive effect enforcing
the order would have undoubtedly had on
the child, the balance of convenience and
consideration of harm led to the conclusion
that, in the best interests of the child, the
order should be stayed pending determination of the appeal.
R.E. v. N.G., [2010] N.J. No. 272,
Nfld. & Lab. C.A., Welsh J.A., Sept. 1/10.
Digest No. 3020-001 (Approx. 4 pp.)
CHARTER OF RIGHTS
& FREEDOMS
SEARCH AND SEIZURE – Police
officer did not have reasonable suspicion
that accused was involved in drug-related
activity sufficient to search his vehicle.
Appeal from conviction for possession of
marijuana for the purpose of trafficking. The
police deployed a drug detector dog to search
for contraband while accused was stopped at
a random road safety checkpoint. They
found a suitcase containing 34 one-pound
bags of marijuana in the trunk. The trial
judge found that the random traffic safety
stop was lawful as it was a valid road enforcement procedure conducted for traffic safety
purposes, and not for the purposes of a drug
investigation or for some ulterior purpose.
He found that the officer had a reasonable
suspicion that accused was involved in drug-related criminal activity because of accused’s
appearance and the type of vehicle he was
driving. The judge admitted the evidence
and found accused guilty.
HELD: Appeal allowed. The trial judge
properly applied the reasonable suspicion
standard in determining whether the drug
detector dog was lawfully deployed. The
judge erred, however, in finding that the
factors relied on by the officer were capable
of providing the required objectively dis-
cernable nexus between accused and illegal
drug activity. The collective picture of the
factors taken together was not capable of
providing grounds for any objective suspi-
cion of criminal drug activity. The search
was therefore unlawful and constituted a
breach of s. 8 of the Charter. The breach
could not be characterized as inadvertent.
Accused had a significant interest in being
free to drive on public roads without being
subject to unlawful vehicle searches, espe-
cially at traffic safety checkpoints, which
already amounted to arbitrary detentions.
Admission of the marijuana seized from
accused’s vehicle would have brought the
administration of justice into disrepute.
CIVIL PROCEDURE
AMENDMENT OF PLEADINGS –
Court granted leave to amend a notice
of action to replace defendants John
Doe and Jane Doe with the actual name
of the defendant.
Motion for leave to amend a notice of
action to replace defendants John Doe and
Jane Doe with DB. On Mar. 8, 2008 plaintiff was rear-ended by defendant on Highway 401. At the scene, both parties were
given a copy of the accident report. Plaintiff
waited until Mar. 1, 2010 to visit his lawyer.
The copy of the accident report he had was
of poor quality and the name of the driver
who rear-ended him was not legible. The
police led him to believe a new copy could
not be sent to him by the second anniversary of the accident. His lawyer therefore
issued a notice of action on Mar. 5, 2010
naming defendant as John Doe, operator
and Jane Doe, owner. After receiving the
fresh copy of the accident report from the
police, he drafted a statement of claim
naming defendant correctly and on Apr. 13,
2010 the notice of action and statement of
claim were served on DB.
HELD: Motion granted. The notice of
action identified plaintiff by name and
claimed that defendant rear-ended his
vehicle on the collector of Highway 401 on
Mar. 8, 2008. The identification of defendant as “John Doe, operator and Jane Doe,
owner” must have made it obvious that the
action was intended to reach someone with
an unknown name who owned and operated the vehicle in question. Defendant
admitted that he knew he had been involved
in a car accident on the 401 on Mar. 8,
2008. He was given a copy of the accident
report. It was difficult to read but the surname of plaintiff was legible. Defendant
may have forgotten plaintiff’s name by the
time he was served but he still had the accident report in his control and did not have
to make enquiries. The required coincidence of knowledge existed as a result of
the notice of action and defendant’s knowledge of the accident, without reference to
the statement of claim.
Duravcevic v. Doe, [2010] O.J. No.
3630, Ont. S.C.J., Ramsay J., Aug. 27/10.
Digest No. 3020-003 (Approx. 3 pp.)
COSTS – Trial judge did not err in
ordering appellant to pay $240,000 in
costs to the successful respondents.
Appeal from a judgment requiring
appellant to pay $240,000 in special costs
to respondents. All of the substantive claims
against respondents were dismissed at trial.
Appellant argued that although a judge
could fix a lump sum as the costs of a proceeding, it could only be done with the
consent of the parties pursuant to Rule
57( 13). Appellant argued that the court
could not rely on its inherent jurisdiction to
fix costs in a manner that was not provided
for in the Rules of Court (B.C.).
HELD: Appeal dismissed. The trial judge
assessed costs pursuant to Rule 57( 3), not
Rule 57( 13). Appellant’s consent to a lump
sum assessment was thus not required.
Although such assessments were usually
conducted by a Registrar, a trial judge possessed inherent jurisdiction to conduct the
assessment summarily. In cases of great
length and complexity, where a judge was
particularly familiar with the matter, it might
be appropriate to exercise his inherent jurisdiction to assess special costs summarily.
Since the trial judge was also the case management judge, his familiarity with the proceedings enabled him to fairly assess costs.
Buchan v. Moss Management Inc.,
[2010] B.C.J. No. 1732, B.C.C.A., Garson J.A. (Frankel and Tysoe JJ.A. concurring), Sept. 2/10. Digest No. 3020-
004 (Approx. 11 pp.)
INTERVENTION – Court dismissed
motion for intervenor status by a chil-
dren’s advocacy organization.
Motion for intervenor standing in the
appeal from a decision refusing to allow
appellant minor to proceed by way of
initials and refusing to grant a publication
ban on material which appellant alleged
was defamatory. The proposed intervenor,
BB, was a volunteer organization that
advanced rights of children to be free from
abuse and exploitation without regard to
race, religion, gender or sexual orientation.
The focus and the mission of BB were on
various initiatives to protect children from
prostitution, pornography and trafficking
for sexual purposes. BB claimed that it
would present to the court a unique perspective of the special privacy interests of
children and young persons. It sought to
intervene on the basis of the public interest.
HELD: Motion dismissed. BB only had
an indirect interest in privacy interests of
youths, in general, who appeared in court.
Its intended submissions were not relevant
to the subject-matter of the appeal, which
raised the question of the sufficiency of
evidence in the present case to warrant
intrusion upon the open court principles.
The circumstances when an anonymity
order would be granted had been well-established. There was no broader public
interest in issue. The appeal was very narrow in scope and would not affect anyone
else seeking a similar order. BB sought to
change the state of the law which would
widen the lis between the parties that was
neither contemplated by the evidence and
arguments in the court below nor in the
grounds of appeal to this court.
A.B. v. Bragg Communications Inc.,
[2010] N.S.J. No. 467, N.S.C.A., Farrar
J., Aug. 30/10. Digest No. 3020-005
(Approx. 9 pp.)
STAY OF PROCEEDINGS – Court
stayed an action for recovery of legal
fees pending the outcome of two other
related actions.
CONTRACTS
SET OFF – Small claims court judge
did not err in allowing set-off to respond-
ents even though set-off was not specific-
ally pleaded.
Appeal from the dismissal of appellant’s small claims action against respondents. Respondents sought to move their
home from one lot to another. Due to the
proximity of hydro lines, they arranged a
site visit with appellant in order to obtain
consent and approval for the move. At the
site visit, appellant’s representative proceeded on the basis of an autumn move
and determined that the house could be
moved intact. Respondents formally
applied for a permit for an August move.
Appellant then stated that the house could
not be moved intact due to the considerable sag of hydro wires in the summertime. Due to the timing of the respondents’ land transactions, they decided to
remove the house roof in order to avoid
