The Lawyers Weekly - September 23, 2011

DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca

ADMINISTRATIVE LAW

REMEDIES – Court dismissed motion by self-represented informant for orders of certiorari and mandamus requiring justice of the peace to issue summons to accused.

Motion by the self-represented informant, Y, for an order of certiorari to quash a decision of the justice of the peace (JP) and for an order of mandamus compelling the JP to issue a summons to accused H. Y owned a condominium. H represented the condo. Y allowed his condo payments to go into arrears. The corporation put a lien on his condo in April 2006. In 2008 Y issued a cheque to pay the arrears and faxed H to advise that they had been paid and requiring the corporation to discharge the lien. In May 2008 H authorized the solicitor for the corporation to register a discharge of the lien. The solicitor had sold his law practice so the fax was not received and the lien was not discharged. When Y discovered this he started a small claims court action against the corporation and H for damages. On receipt of the claim H gave directions to the solicitor, who had resurfaced, to register a discharge of the lien, which was done in March 2010. H filed a defence to the claim stating that the lien was discharged within a week after Y gave notice to the defendant that the arrears had been fully satisfied. He verified the truth of that statement in an affidavit. Y took the position that H knowingly and willfully made a materially false statement with intent to mislead and thereby committed an indictable offence contrary to the provisions of s. 131 of the Criminal Code. The JP ruled that the process could not be issued.

HELD: Motion dismissed. The JP found that H did not willfully and intentionally make the statement and pointed out that there was no date mentioned. He concluded that the evidence did not prove beyond a reasonable doubt that H was guilty of perjury. The Crown conceded that the JP used the wrong standard in assessing the evidence. The issue came down to ambiguity in H’s statement. If it referred to events in 2010 then it was factually correct and could not form the basis of perjury. If it referred to events in 2008, it was perjury. The statement could not reasonably be understood to apply to 2008. It was set out in the March 2010 defence that H issued after the lien had actually been discharged. By then the parties were well aware that the lien had not been discharged in 2008. In his defence H stated that he only discovered that the lien had not been discharged upon receiving the claim. There was no evidence that H would benefit from making a misleading statement about the date of the discharge. Y failed to establish perjury on the part of H.

R. v. Hughes, [2011] O.J. No. 3781,
Ont. S.C.J., Lauwers J., Aug. 18/11.
Digest No. 3119-001 (Approx. 5 pp.)
CIVIL PROCEDURE

AMENDMENT OF PLEADINGS –
Court dismissed motion by defendant to
amend statement of defence to with-
draw admission that he was the tenant
of commercial premises.

AMENDMENT OF PLEADINGS –
Court dismissed appeal by defendant
from a master’s order refusing him
leave to amend statement of defence.

Appeal from a master’s order refusing
leave to defendant to amend his statement
of defence. Plaintiff was involved in a
motor vehicle accident in 1996 in Mich-
igan. It was alleged that he sustained ser-
ious and permanent personal injuries.
Plaintiff retained defendant M to pursue
recovery of damages for injuries sustained
in the accident from the owner and oper-
ator of the vehicle that struck him, the tort
defendants. At the time, the tort defend-
ants lived in Colorado and had third party
liability limits of US$50,000 with State
Farm. Plaintiff was insured by General
Accident under a standard automobile
policy of insurance including OPCF 44
family coverage with limits of $2 million.
In 1998 M commenced a claim against the
tort defendants on behalf of plaintiff and
in 1999 obtained an order adding General
Accident as an additional defendant for
damages pursuant to the underinsured
motorist provisions of plaintiff’s policy. In
2002 M settled plaintiff’s tort action for
the policy limits of the tort defendants,
US$50,000. Plaintiff, on defendant’s
advice, executed a release. Plaintiff then
sued M for solicitor’s negligence for failing
to pursue damages against General Acci-
dent. Plaintiff also sued Aviva, the succes-
sor to General Accident. M brought a
motion to amend the statement of defence
to plead particulars of plaintiff’s insurance
with Aviva. The motion was denied.

COSTS – Court set aside costs order
against corporate respondents given a
lack of previous authoritative rulings on
issue in dispute.

Application by respondent director for directions concerning the conduct of a court-ordered hearing and determination of costs. Applicant had appealed the dismissal of its appeal from a decision by the director refusing the cancellation of the corporate respondents’ two business name registrations. The court allowed the appeal, finding that the director issued insufficient reasons with respect to his decision, and ordered that the director conduct a further hearing. In addition, the court ordered that applicants were to have their costs against the respondents in both this court and the court below. However, no costs were ordered against the director. The parties sought the direction of the court on the issue of how the hearing should be conducted. The corporate respondents took the position that both they and applicant should be awarded costs against the director as it was his action in providing inadequate reasons that necessitated the court action. Alternatively, they argued that no order for costs should have been made.

HELD: Application allowed. As the
court vacated the director’s decision and
ordered a further hearing, a new hearing
was required for accountability and in
order for justice to be seen to be done. The
hearing was to be a hearing de novo so that
the director could make a relevant deci-
sion based on current evidence. As there
was no misconduct on the part of the dir-
ector, it was not appropriate to order costs
against him, especially considering the
limited role he played in the appeal and his
status as an impartial decision-maker.
However, as there were no previous rul-
ings on the issue, there was a good reason
for departing from the general rule that
costs followed the event. Consequently, no
costs were ordered.

LEGAL CAPACITY – Court had no
jurisdiction to hear respondent’s action
for wrongful dismissal against inter-
national organization.

Appeal from dismissal of appellant’s application to dismiss respondent’s wrongful dismissal action. Appellant was an international organization, headquartered in Nova Scotia. Respondent was its second highest ranking employee until his summary dismissal in 2005. Respondent commenced an action for wrongful dismissal. Appellant claimed immunity as an international organization. An agreement between appellant and the Crown was reflected in an order-in-council known as the Northwest Atlantic Fisheries Organization Privileges and Immunities Order. Under the order, which reflected subs. 3(1) of the Privileges and Immunities ( International Organizations) Act, appellant was immune from every form of legal process, except where it waived its immunity. Appellant claimed that the court lacked jurisdiction over respondent’s action. The court found that appellant was not entitled to immunity as a requirement of customary international law or under the order. Immunity under the order was limited to the extent that it was required for the performance of appellant’s functions. The court ruled that the action could proceed on its merits.

HELD: Appeal allowed. In assessing immunity, the court adopted an overly restrictive interpretation of subs. 3(1) of the Act. Under the order, appellant was entitled to immunity from any domestic suit that interfered with its autonomy in performing its functions. Respondent’s action involved the dismissal of a key senior employee and would inevitably involve close assessment of appellant’s core operations given the allegations of misconduct and claims for punitive damages and solicitor-client costs. Immunity was required in such circumstances, as respondent’s action condemned appellant’s management structure and represented interference with its autonomy. The court had no jurisdiction to adjudicate the matter.

Amaratunga v. Northwest Atlantic Fisheries Organization, [2011] N.S.J. No. 453, N.S.C.A., per MacDonald C.J.N.S. (Beveridge and Bryson JJ.A. concurring), Aug. 23/11. Digest No. 3119-005 (Approx. 25 pp.)