THE LAWYERS WEEKLY
July 15, 2011 | 17
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ASSESSMENT
COLLECTION OF TAXES – Provin-
cial Mediation Board entitled to allow
city to move ahead with tax enforce-
ment before all appeals in relation to
properties exhausted.
Appeal from the dismissal of appellant’s application for writs of mandamus
and prohibition against respondent
board. Appellant owned two properties
in the City of Regina. Taxes on both properties had been in arrears for approximately eight years. The city registered tax
liens and then requested the consent of
the board to take title to both properties.
As provided in the Provincial Mediation Board Act (Sask.), a municipality
could obtain title to land pursuant to the
Tax Enforcement Act (Sask.) only on the
prior written consent of the board. In
September 2008 appellant sought orders
of mandamus and prohibition against
the board in an effort to require the
board to inquire into the validity of the
tax claims made by the city and to require
the board to withhold consent pending
resolution and exhaustion of the assessment appeal proceedings. In dismissing
the application the chambers judge held
that the assessment and taxation regime
under the Cities Act (Sask.) constituted a
complete statutory code and that the
board could play no role in determining
the validity of tax assessments.
HELD: Appeal dismissed. Appellant
had a full opportunity to play out to the
end, if it saw fit, any appeals in the system that were not yet finally resolved if
and when the city took title to the property in issue. Appellant failed to establish
that the board failed to discharge its
obligations under subs. 6(1) of the
Provincial Mediation Board Act. The board
was entitled to allow the city to move
ahead with tax enforcement before all of
the assessment appeals in relation to the
properties were finally exhausted.
101050457 Saskatchewan Ltd. v.
Saskatchewan (Provincial Mediation
Board), [2011] S.J. No. 371, Sask. C.A.,
per Richards J.A. (Caldwell and
Herauf JJ.A. concurring), June 20/11.
Digest No. 3111-001 (Approx. 5 pp.)
CHARTER OF RIGHTS
& FREEDOMS
EXCLUSION OF EVIDENCE – Arrest
of accused was lawful and evidence found
as a consequence admissible.
Appeal from conviction for possession
of cocaine for the purpose of trafficking.
Following investigation based on a tip
from a past reliable informant, police
seized 126 grams of cocaine from a resi-
dence pursuant to a warrant. N was
present during the search, but accused
was not. Police also discovered 18 grams
of cocaine in a police vehicle which had
transported accused to jail after his arrest.
Accused and N were charged with the
predicate offence. Although the trial judge
found that the search warrant was issued
validly, the information to obtain the war-
rant was not prepared with care. In addi-
tion, the judge found a number of Charter
breaches. Police entered the residence
using a battering ram, denied both N and
accused their right to counsel and unlaw-
fully arrested accused. The judge found
that the evidence obtained in the search of
the residence could not be used against N,
as his privacy rights were offended, but
was otherwise admissible against accused.
The judge concluded that the evidence of
the cocaine found in the police vehicle was
admissible pursuant to subs. 24( 2) of the
Charter, notwithstanding the Charter
breaches. The judge found that the Crown
established that accused possessed the
drugs found in the police vehicle but not
the residence. Accused appealed.
CIVIL PROCEDURE
DISCOVERY – Chambers judge mis-
apprehended scope of permissible cross-
examination on affidavit in support of
application to enforce foreign judgment,
but requests were properly refused as
irrelevant to possible defences.
Appeal from an order dismissing an
application to compel answers in a cross-
examination on an affidavit. Plaintiff
obtained a judgment against defendant
in Germany. Defendant now resided in
Alberta. The affidavit was sworn in sup-
port of plaintiff’s application for sum-
mary judgment to enforce the German
judgment in Alberta. Defendant con-
tended that the German judgment was
not properly obtained and was contrary
to Canadian notions of substantive jus-
tice. The deponent was plaintiff’s counsel
in the German action. A number of
undertakings were requested of the
deponent at his cross-examination on the
affidavit. The deponent objected to a por-
tion of the questions on the basis of rel-
evancy. The chambers judge did not find
sufficient evidence of natural justice
issues regarding the fundamental unfair-
ness of the German process as contended
by defendant. The judge refused to com-
pel answers to requests for two undertak-
ings related to the court process and the
deponent’s position in Germany, nine
undertakings related to the dealings
between the parties in Germany and the
merits of the German court process and
three undertakings related to criminal
proceedings involving defendant. The
judge found that the requests were not
relevant to enforcement of a German
civil judgment and held that the merits of
the German judgment should be excluded
from further cross-examination.
MOTIONS – Court declined to order
that applicant’s counsel could not argue
motion in which only affidavit was based
on his information and belief.
Motion to prevent B, the solicitor for
applicant, from arguing a motion. The
parties had entered into minutes of
settlement with respect to an application brought for the purpose of construing Ontario and federal student loan
program provisions, as they applied to
Canadians with disabilities. The federal
government had a program in place that
permitted various constitutional issues
to be addressed where the parties were
otherwise unable to fund proper legal
counsel for a constitutional challenge
and this was such an application. The
only affidavit filed in support of the
main motion was based on information
and belief obtained from B. Respondent
asserted that since B’s evidence was
being relied upon in opposition to the
Crown’s motion, which was largely
based on the understanding of the parties when they entered the minutes of
settlement, no one from B’s office could
argue the motion.
HELD: Motion dismissed. It would be
unjust and appear to be contrary to the
aims of our legal system for B to be prevented from arguing the motion. B was
clearly taking a risk and the consequences
of that remained to be resolved after the
motion had been argued. It seemed contrary to logic and common sense to incur
the expense of getting another counsel up
to speed, only to address what the Crown
asserted was primarily a question of contractual interpretation.
Simpson v. Canada (Attorney Gen-
eral), [2011] O.J. No. 2665, Ont. S.C.J.,
Short (Master), June 10/11. Digest No.
3111-004 (Approx. 7 pp.)
SUMMARY JUDGMENT – Defend-
ants did not have to deliver affidavit of
documents before their motion for sum-
mary judgment based on expiration of
limitation period.
Application to determine whether
defendants were entitled to schedule a
summary judgment motion without first
serving an affidavit of documents. Plaintiff commenced an action in 2009
alleging that a press release by defendants contained false statements made
with malice. Defendants served their
defence and advised that they were
planning to bring a motion for summary
judgment. Plaintiff served its affidavit of
documents and requested defendants’
affidavit, which was refused. Defendants
argued that there was no requirement
that they file an affidavit of documents
prior to the hearing of the summary
judgment motion, particularly where
their motion was based on the expiration of a limitation period.
HELD: Defendants were not required
to serve affidavit of documents before
the summary judgment motion was
heard. The rationale that parties must
deliver an affidavit of documents in all
cases including where a motion for
summary judgment was brought was
premised on the need for disclosure of
all relevant documents so that the
opposing party had all relevant information and was in a position to put
forward all its evidence in order to
defend the motion. Where the issue was
whether a limitation period for libel
applied, it would cause hardship to
defendants to require all documentary
evidence in their possession or control
be produced prior to arguing the motion
for summary judgment.
Natural Resource Gas Ltd. v. IGPC
Ethanol Inc., [2011] O.J. No. 2625,
Ont. S.C.J., Himel J., June 9/11.
Digest No. 3111-005 (Approx. 5 pp.)
CLASS ACTIONS
CERTIFICATION – Chambers
judge did not err in finding respond-
ents’ claims in nuisance, waiver of tort
and injurious affection to be common
issues in a class proceeding.
Appeal from the certification of a
class action. Between 2005 and 2009
appellant transit companies were
involved in the construction of a rapid
transit system which connected Vancouver with Richmond and the Vancouver International Airport. Construction
caused disruption to local business and
property owners. Respondent business
and property owners commenced an
action against appellants for nuisance,
waiver of tort and injurious affection
and sought to have the action certified
as a class action. Appellants took the
position that there were no common
issues and that a class proceeding was
not the preferable approach. The chambers judge found that there were common issues as to whether the construction interfered with respondents’ use
and enjoyment of their properties or
businesses and if such interference did
occur, whether there was statutory
authority for the interference and
whether respondents could avail themselves of the principle of waiver of tort.
In addition, the judge concluded that
