DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ADMINISTRATIVE LAW
FAIRNESS – Property Assessment
Appeal Board did not violate the
requirement for procedural fairness
by dealing with an appeal by way of
written submissions.
Appeal from the dismissal of an
appeal by way of stated case arising
from a property assessment valuation.
Appellant owned three single-family
residential lots in Coquitlam, on which a
single-family residence was located.
Dissatisfied with his 2008 property
assessment, appellant appealed to the
Property Assessment Appeal Board.
Appellant requested an oral hearing in
order to cross-examine the appraiser
who had prepared a report for the assessor and to present evidence himself.
However, the appeal was slated for hearing by written submissions. The Board’s
decision affirmed the assessment.
Appellant appealed by stated case on the
issues of whether the Board erred in
accepting evidence of an appraiser
absent an opportunity for cross-examination; in failing to proceed by way of
oral hearing given appellant’s notice
that he wished to cross-examine the
appraiser; and in relying on the appraiser’s evidence, in the absence of contrary
evidence. The chambers judge answered
“no” to each question.
HELD: Appeal dismissed. Subsection
55(1) of the Assessment Act (B.C.) concerned the procedure that may be followed by the Board in relation to a hearing. The Act gave the Board the power to
make rules which included the filing of
written submissions by parties, and the
Board created such a rule. The duty of
procedural fairness the Board owed
appellant was not breached by the procedures the Board adopted in determining the appeal. Accordingly, there was
no reason to interfere with the order of
the chambers judge on the stated case.
Allard v. British Columbia (Asses-
sor of Area #10 – North Fraser Region),
[2010] B.C.J. No. 1969, B.C.C.A., per
Rowles J.A. (Saunders and Garson
JJ.A. concurring), Oct. 7/10. Digest
No. 3025-001 (Approx. 26 pp.)
CHARTER OF RIGHTS
& FREEDOMS
RIGHT TO COUNSEL – Detainee
who had been properly accorded his
subs. 10(b) Charter rights at the outset
of detention did not have a constitu-
tional right to further consultations
with counsel during the course of an
interrogation.
Appeal from a Court of Appeal judg-
ment affirming a decision to admit evi-
dence in appellant’s murder trial. Fol-
lowing his arrest for second degree
murder, appellant was advised of his
right to retain and consult counsel with-
out delay. After he was booked, appel-
lant twice spoke by telephone with a
lawyer of his choice. Later that day,
appellant was interviewed by a police
officer for approximately five hours.
Appellant stated during the interview
that he had nothing to say about the
investigation and wished to speak to his
lawyer again. The officer confirmed that
appellant had the right not to speak.
The officer also said that appellant had
the right to consult his lawyer but did
not have the right to have the lawyer
present during questioning. Appellant
appeared to accept that proposition and
the interview continued. Appellant sub-
sequently made statements implicating
himself in the murder. The trial judge
held that appellant’s statements were
voluntary and admissible. Appellant
was convicted of manslaughter. The
Court of Appeal agreed. The issue was
whether a detainee who had been prop-
erly accorded his or her subs. 10(b)
Charter rights at the outset of the deten-
tion had the constitutional right to fur-
ther consultations with counsel during
the course of the interrogation.
CONFLICT OF LAWS
JURISDICTION – Motion judge did
not err in finding that Ontario was the
convenient forum for an action arising
out of a bus accident in Mexico.
Appeal from dismissal of a motion by
Best Day Tours (BDT) for dismissal or
stay of the action by plaintiffs. BDT was
a Mexican company that had a contract
with defendant Sunwing to provide bus
transportation for its tour guests. Sun-
wing was an Ontario company. Plaintiffs
sought damages for injuries suffered as
a result of an accident in Mexico. Plain-
tiffs were on a tour provided by the
defendants when the accident occurred.
Local police determined that the acci-
dent was caused solely by the negligence
of the bus driver. Plaintiffs sued BDT
and Sunwing for damages. BDT argued
that there was no real and substantial
connection between the actions and
Ontario and that Mexico was the more
convenient forum. The motion judge
found a strong connection between
Ontario and the claims of plaintiffs.
They lived in Ontario and received med-
ical attention in Ontario. The vacation
packages included air transportation
from Ontario to Mexico. Most of Sun-
wing’s witnesses were in Ontario. The
balance of all of the relevant factors
weighed in favour of Ontario as the
more convenient forum for the actions.
CONTRACTS
BREACH OF CONTRACT – Plain-
tiff was unable to prove that her
mother breached a promise to leave
her two properties.
Plaintiff sought damages from
defendant for breach of contract, unjust
enrichment or negligent misrepresentation. She also sought punitive damages.
Plaintiff was the daughter of defendant.
Defendant brought a counterclaim for
an accounting of the money that plaintiff managed for her. In 2004 plaintiff
and her husband moved in with defendant to assist in her care, providing personal services and doing some home
renovations. They sold their own home.
Plaintiff alleged that defendant promised that they could have her house in
return for caring for her. Plaintiff also
claimed that defendant promised to
leave them another property she owned.
Relations between the parties deteriorated and defendant asked plaintiff and
her husband to leave in 2006.
HELD: Action dismissed. Counter-
claim allowed. Plaintiff’s assertions were
not proven. There was no particularity to
when or how the alleged promises were
made. The alleged promises did not fit
with the conduct of the parties. Plaintiff
attempted to control her mother and
pressure her into leaving plaintiff her
property. Defendant was not unjustly
enriched by plaintiff’s actions or work on
her house. Plaintiff and her husband
lived in the house rent-free. There was
no corresponding deprivation. Defend-
ant’s counterclaim for repayment of
cheques that plaintiff wrote on defend-
ant’s account was allowed. Defendant
was awarded $20,709.
CONSTRUCTION LIENS
VALIDITY – Lien claim against
respondent property owner was valid.
Appeal from a decision declaring a
construction lien invalid. Respondent
owned land upon which a large residential development was planned. Appellant contracted to build homes on the
land. Respondent was obliged to obtain
registration of the plan for the proposed
development by December 2007, failing
which appellant was entitled to the
return of any moneys paid to respondent. Appellant was obliged to purchase
four lots per month and to construct
homes on them pursuant to respondent’s specifications. Appellant was precluded from filing liens against respondent’s property. Respondent did not
obtain the registration until at least
August 2009. Nonetheless, appellant
worked on constructing 12 homes.
Appellant suspended its work in January 2009. No lots had been transferred
to appellant as per the parties’ agreement. In March 2009 appellant filed a
builders’ lien for $1,750,000 against the
lands to protect its interest in the 12
homes. In its application to have the lien
set aside, respondent posted $1,750,000
as security for the lien claim. A judge
held that the parties’ contract did not
contain an implied or express request
that appellant actually build homes on
respondent’s property, or that work was
done on respondent’s credit, behalf or
for its direct benefit. The judge declared
the lien invalid.
HELD: Appeal allowed. Appellant’s
lien was valid. By its course of conduct,
respondent impliedly requested that
appellant construct houses on its property. It was clear that it had requested
that construction proceed prior to its
obtaining subdivision approval. Because
respondent could not sell the lands upon
which appellant had built the homes
without approval, the homes were
clearly constructed for respondent’s
benefit, not for the benefit of some
future purchasers.
Acera Developments Inc. v. Sterling
Homes Ltd., [2010] A.J. No. 1096,
Alta. C.A., per Berger J.A. (Conrad
J.A. concurring), separate reasons
concurring in the result by Martin
J.A., Oct. 5/10. Digest No. 3025-005
(Approx. 15 pp.)
