THE LAWYERS WEEKLY
December 24, 2010 | 15
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ANIMALS
ABUSE – Reasonable for respondent
Society to seize several feral cats from
appellant and not return them.
Appeal from the dismissal of appellant’s
application for judicial review of a decision
of respondent Society to seize several feral
cats from her and not return them.
Respondent investigated two complaints
about appellant’s feral cats. The cats were
found in various stages of neglect.
Respondent seized the animals after determining that they were in distress and had
to be removed from appellant’s home in
order to be relieved of their distress.
Appellant argued that the animals were
not in distress and, even if they were,
respondent did not give her an opportunity to relieve the distress. As a result, she
argued that a statutory precondition to
taking custody of the animals was not met.
The chambers judge found that respondent was justified in concluding that the
animals were in distress and in finding
that appellant would be unable to relieve
the distress promptly.
HELD: Appeal dismissed. There was
ample evidence to support the conclusion
of the chambers judge that respondent’s
agent was of the opinion that the animals
were in distress. Respondent was not
required, as a matter of law, to provide
appellant time in which to relieve the animals’ distress. In any event, respondent
had been in touch with appellant regarding
its concerns one week prior to the seizure
of the animals. It was therefore reasonable
for respondent to conclude that appellant
would not promptly take steps to relieve
their distress. It was reasonable for
respondent to take custody of the animals
and not to return them.
Ulmer v. British Columbia Society
for the Prevention of Cruelty to Animals, [2010] B.C.J. No. 2277, B.C.C.A.,
per Chiasson J.A. (Newbury and Levine
JJ.A. concurring), Nov. 23/10. Digest
No. 3032-001 (Approx. 11 pp.)
ARBITRATION
AWARD – Fiduciary not entitled to
be paid bonus earned during period in
which he engaged in wrongful conduct.
Appeal from an arbitration award find-
ing that respondent was entitled to be paid
a bonus earned during a period of improper
conduct. Appellant employed respondent
from July 1999 to December 2008 as vice-
president, which put him in control of all
of appellant’s construction projects and
obligations. Respondent was paid an
annual fixed salary of $100,000 plus a
bonus of 30 per cent of the profits. Appel-
lant discovered that, from September
2007, respondent had been using various
schemes to divert substantial company
resources and funds towards extensive
renovations to his home. It terminated
respondent’s employment in December
2008. After pleadings were delivered, the
parties agreed to arbitration. The arbitra-
tor ordered respondent to pay damages of
$546,452 to appellant. The arbitrator
found the termination was justified and
dismissed respondent’s counterclaim for
damages for wrongful dismissal. However,
the arbitrator also found that respondent
was entitled to compensation for an
unpaid bonus for work performed during
the period of his wrongdoing, because
appellant had gained a benefit.
BANKRUPTCY
& INSOLVENCY
CLAIMS – All claims of preferred
shareholders against applicant com-
pany were equity claims under the Com-
panies’ Creditors Arrangement Act.
Motion for an order that all claims and
potential claims of the preferred shareholders against applicant company be
classified as equity claims within the
meaning of the Companies’ Creditors
Arrangement Act. The company raised
money from investors and then used those
funds to extend credit to customers in
vendor assisted financing programmes. It
issued promissory notes or preference
shares to the investors. The preferred
shareholders were entered on the share
register and received share certificates.
They were treated as equity in the company’s financial statements. The claims of
the preferred shareholders against the
company were for declared but unpaid
dividends, unperformed requests for
redemption, compensatory damages for
negligent or fraudulent misrepresentation
and payment of the amounts due upon the
rescission or annulment of the purchase or
subscription for preferred shares.
HELD: Motion allowed. The preferred
shareholders were shareholders of the
company, not creditors. The substance of
the arrangement between the preferred
shareholders and the company was a relationship based on equity and not debt. The
claims of the preferred shareholders did
not constitute a claim provable for the
purposes of the Act. The language of s. 2 of
the Act was clear and unambiguous and
equity claims included a claim in respect
of an equity interest and a claim for a dividend or similar payment and a claim for
rescission. That encompassed the claims
of all of the preferred shareholders.
Nelson Financial Group Ltd. (Re),
[2010] O.J. No. 4903, Ont. S.C.J.,
Pepall J., Nov. 16/10. Digest No. 3032-
003 (Approx. 9 pp.)
CHARTER OF RIGHTS
& FREEDOMS
PROCEDURE ON CHARTER
APPLICATIONS – New trial ordered
because proper notice of constitutional
question not given to Crown before ruling made on Charter issue.
Appeal from a stay of proceedings
entered on charges against accused.
Accused, an inmate, was charged with
obstruction of a corrections officer after he
had scratched his cell window impairing
visibility, tied his cell door shut, and
refused to move to another cell location.
During the forceful extraction of accused,
he threw a full soup can at an officer,
resulting in a charge of assault with a
weapon. At trial, the Crown tendered in
evidence a book of photographs of the contents of accused’s cell, a videotape of the
contents of the cell, and a videotape of the
attempted extraction of the accused. An
issue arose regarding continuity of the
cans depicted in the photographs and the
videos and cans packed in a discharge
storage room with the rest of accused’s cell
contents, and the failure to produce the
scratched cell window. Consequently, the
Crown tendered a 14-page report listing
the personal effects removed from
accused’s cell, including reference to four
soup cans. The Crown concluded its case.
Defence counsel was surprised by the
report. Defence counsel made an
impromptu application for a stay of proceedings based on non-disclosure and a
breach of accused’s s. 7 Charter rights. The
application was allowed.
HELD: Appeal allowed. The judge’s
failure to address the mandatory notice
provisions under s. 8 of the
Constitutional Questions Act (Sask.) was determinative of the appeal. A stay requested on
the basis of abuse of process arising from a
lack of disclosure and consequent prejudice to the right to make full answer and
defence fell within the scope of a subs.
24(1) Charter application. As such,
accused’s application was caught by s. 8 of
the Act. Despite Crown counsel’s willingness to proceed, there was no clear consent
or waiver, as everyone proceeded upon a
misapprehension of the law that notice
was not necessary. The Crown was prejudiced by the application. The trial judge
should have adjourned the matter until
such time as proper notice had been given.
A new trial was ordered.
R. v. Nome, [2010] S.J. No. 684, Sask.
C. A., per Ottenbreit J. A. (Lane and Rich-
ards JJ.A. concurring), Nov. 19/10.
Digest No. 3032-004 (Approx. 13 pp.)
SEARCH AND SEIZURE – Use of
digital recording ammeter to measure
electricity in respondent’s home did not
infringe his right to protection from
unreasonable search and seizure.
Appeal from a Court of Appeal decision
setting aside respondent’s conviction and
ordering a new trial. After an investigation
raised suspicions that a marijuana grow
operation was likely located in respond-
ent’s home, police approached the utility
providing electricity to the home and
requested that they install a digital record-
ing ammeter (DRA) on its power line. The
DRA graph showed a pattern of cycling of
approximately 18 hours, a pattern consist-
ent with a marijuana grow operation. On
the basis of her observations and the infor-
mation provided to her, including the DRA
graph, the officer obtained a search war-
rant. The subsequent search resulted in
the seizure of large amounts of marijuana.
Respondent was charged with possession
of marijuana for the purposes of traffick-
ing and production of marijuana and theft
of electricity. He sought to exclude the evi-
dence disclosed by the search on the basis
that no warrant had been obtained prior to
the installation of the DRA. The trial judge
allowed the evidence. The Court of Appeal
allowed respondent’s appeal and ordered a
new trial, concluding that he had a sub-
jective expectation of privacy in the DRA
information which was also objectively
reasonable.
CIVIL PROCEDURE
MEDICAL ASSESSMENT – Defend-
ant entitled to have plaintiff assessed by
life care planner to help evaluate her
claim for future health care costs.
Motion for order compelling plaintiff
to participate in a life care plan assessment by a certified life care planner. The
action arose from an accident in 2006
when plaintiff sustained an injury when a
rock fragment that fell from a truck
deflected from the road surface, went
through her open car window and struck
her in the head. The statement of claim
alleged that plaintiff sustained serious
injuries. She claimed future health care
costs and had served a future care cost
