by the board to abandon wells and related
facilities in Southern Alberta. One of the
reasons for the orders was appellant’s failure to satisfy the security deposit requirements of the Licensee Liability Rating
program. Appellant applied for review.
One of the issues before the board at the
hearing was whether there were mitigating circumstances requiring it to reconsider the orders. Appellant moved to tender certain evidence arising from prior
legal action between appellant and the
board in which it was found that the board
treated appellant unfairly. The board
reviewed the allegations regarding the earlier dispute and concluded the evidence
was not relevant to the issues on review.
Appellant argued that it was taken by surprise by this finding and that it had never
sought to adduce the evidence itself. It
claimed that it was merely seeking directions as to how to adduce it.
HELD: Appeal dismissed. Appellant’s
application did not invoke only a procedural question with respect to the mechanics of placing the proposed evidence
before the board. It was an elementary
condition to the receipt of evidence that it
was relevant. The question of relevance
had to be addressed before getting to the
mechanics of adducing the proposed evidence. It was clear from appellant’s
materials that it understood that the relevance of the evidence would be considered. Appellant had every opportunity
to show that the evidence was relevant,
attempted to do so, and was unsuccessful.
The board’s ruling that the evidence was
inadmissible did not result in procedural
unfairness to appellant.
Sarg Oils Ltd. v. Alberta (Energy and
Utilities Board),  A.J. No. 129,
Alta. C. A., per O’Brien J.A. (Slatter J. A.
and Hawco J., (ad hoc) concurring),
Feb. 11/11. Digest No. 3041-012
(Approx. 5 pp.)
sideration of highest and best use necessarily involved valuation of development
potential when determining market value.
The planned use by a hypothetical willing
buyer required an income approach to
value based on the highest and best use
rather than G Ltd.’s existing use. The
assumptions underlying G Ltd.’s appraisal
were supported by sufficient reliable evidence. The board’s decision to rely on G
Ltd.’s appraisal was reasonable and
entitled to deference.
Yarmouth (Town) v. Gateway
Importers and Exporters Ltd., 
N.S.J. No. 67, N.S.C.A., per Bryson J.A.
(Hamilton and Fichaud JJ.A. concurring), Feb. 8/11. Digest No. 3041-013
(Approx. 7 pp.)
– Plaintiff granted interlocutory
injunction restraining defendants
from blocking access road to plaintiff’s
Motion for an interlocutory injunction
prohibiting defendants from blocking
access road to plaintiff’s camp property.
Plaintiff had long used the road to access
his camp property. Defendants installed a
fence and gate blocking him from using it.
Plaintiff alleged that the road was an
access road as defined by the Road Access
Act (Ont.) and there was no alternate
access to his property.
HELD: Motion granted. Road access
cases generally presented serious issues,
since the moving party asserted that he
was blocked from accessing his property. It
was undisputed that the road, historically
used by plaintiff, which crossed defendants’ property, had now been blocked.
There was a serious issue to be tried.
Blocking access to real property constituted irreparable harm. Given the infrequent use but need to monitor the property during the winter, the status quo was
of far greater harm to plaintiff than to
defendants. The balance of convenience
favoured plaintiff. Defendants were to
remove or open the gate or provide plaintiff with a key to the gate.
Vagnini v. Javorsky,  O.J. No.
408, Ont. S.C.J., Hennessy J., Feb. 1/11.
Digest No. 3041-014 (Approx. 5 pp.)
action against them, a pre-condition for an
order under s. 265.6.
HELD: Appeal dismissed. There was
nothing in the record to support the conclusion that the judgment in the tort
action would relate to the action against
the insurer for Section B benefits. Appellants had thus not established a condition
precedent to the application of subs.
263( 2). The motion judge did not err in
the exercise of her discretionary power
when she quantified the advance payment
without taking into consideration
respondent’s resources. The evidence as
well as the admissions of fact contained in
the record allowed the judge to assess the
loss of income as she did, and nothing
required her to take respondent’s resources into consideration in quantifying the
Cyr v. Pelletier Plumbing & Heating
Ltd.,  N.B.J. No. 36, N.B.C.A., per
Drapeau C.J.N.B. (Larlee and Quigg
JJ.A. concurring), Feb. 10/11. Digest
No. 3041-015 (Approx. 11 pp.)
DUTY TO DEFEND – Respondent
insurer failed to meet onus of establishing it did not have to defend applicants in actions arising from motor
Application for a declaration that
respondent owed applicants a duty to
defend allegations of negligence in two
actions arising out of a car accident in 2007.
Applicant NT was the driver of the car
involved in the accident. He had consumed
several drinks at his birthday party the night
before the accident. He then slept for six to
nine hours and in the morning drove some
of the party guests home. His mother, GT
was the owner of the vehicle. Respondent
insurer denied coverage, taking the position
that NT contravened the Highway Traffic
Act (Ont.) prohibiting holders of Class G2
driver’s licence from driving with a blood
alcohol level in excess of zero per cent and
that she consented to NT driving when she
knew or ought to have known that he was
not permitted by law to do so.
HELD: Application granted. NT was
hospitalized as a result of the accident.
The laboratory blood test results show that
he had a blood alcohol concentration of
26.8mmol/L roughly two hours after the
accident. He had no recollection of the
morning of the accident because of the
injuries he sustained. NT had a reasonable
and honest belief that he had zero per cent
blood alcohol concentration when he
awoke the morning after his party. His
belief that he was qualified to drive was a
reasonable mistake of fact. GT and her
husband left between 9.30 p.m. and 10
p.m. the night of the party and did not see
anyone drinking. She saw her son for the
first time that morning and detected no
signs of alcohol consumption on him. The
evidence of NT’s friends who saw him
before he spoke with his mother was consistent with his not exhibiting any signs of
intoxication that morning. Respondent
failed to meet the onus of establishing that
coverage for NT was excluded under the
policy or that GT knew or ought to have
known that in permitting her son to drive,
she was permitting him to drive when he
was not authorized to do so. Applicants
were entitled to coverage.
Tut v. RBC General Insurance Co.,
 O.J. No. 539, Ont. S.C.J., Frank
J., Feb. 1/11. Digest No. 3041-016
(Approx. 5 pp.)
COMPENSATION – Decision by
Nova Scotia Utility and Review Board
awarding compensation of $215,000
for injurious affection reasonable and
entitled to deference.
Appeal from an award of compensation
for injurious affection by the Nova Scotia
Utility and Review Board. Appellant Town
expropriated prime commercial property
owned by respondent G Ltd. The property
was expropriated for the construction of a
road. The parties agreed on the value of
the expropriated land. The parties agreed
that G Ltd.’s remaining land was injuriously affected by the expropriation. The
parties disagreed on the quantification of
the injurious affection. The Town’s
appraisal valued it at $27,000. G Ltd.’s
appraisal valued it at $218,500. The board
awarded $215,600. The Town appealed.
HELD: Appeal dismissed. The board’s
decision was reasonable. G Ltd.’s appraiser
valued all property pre-expropriation and
post-expropriation as required by subs.
27( 5) of the Expropriation Act (N.S.).
The Town’s appraiser did not perform a
before and after valuation and in failing to
do so, did not appraise the un-expropri-ated lands other than a buffer zone. G
Ltd.’s appraiser found that the highest and
best use of the property was a strip mall,
and that expropriation increased the
building set back requirements, confining
the remaining property to a much smaller
development post-expropriation. Con-
COVERAGE – Trial judge erred by
applying common exclusions in prop-
erty insurance policy to an endorsement
for damage to pool.
Appeal from the dismissal of appellants’ application for a declaration that
their insurance policy covered their outdoor in-ground swimming pool. The
pool was damaged as a result of hydrostatic uplift pressure. The pressure
increased due to the buildup of ground-water, which caused the pool to lift out
of the ground. The pool cracked and was
significantly damaged. Appellants had
ADVANCE PAYMENTS – Motion
judge did not err in requiring appellants
to make advance payment for respond-
ent’s loss of income.
Appeal from an order under s. 265.6 of
the Insurance Act (N.B.) requiring appellants to make an advance payment for
respondent’s loss of income. Respondent
sued appellants for injuries suffered in a
motor vehicle accident. Respondent
received Section B benefits from her
insurer. When the insurer stopped making
the payments, respondent commenced an
action against the insurer for the benefits.
Appellants argued that respondent’s
insurer would likely be directed to provide
compensation for the full amount of her
loss of income in the action against the
insurer, appellants would obtain the benefit of a release under subs. 263( 2) of the
Act and would thus not be liable for
respondent’s loss of income in the tort
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
Executive Law Office
Non-conveyance lawyer preferred.
Please send enquiry to
RE: ESTATE OF
ERWIN GUSTAVE PHANN
1-800-668-6481 ex. 804