DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ARBITRATION
ARBITRATION AGREEMENT –
Rules of arbitration signed by appli-
cants’ solicitor binding on applicants.
Application for judicial review of an
arbitration award holding that an arbitra-
tion agreement was not null and void.
Applicants and a related company com-
menced court actions against respondents
seeking damages for breach of fiduciary
duty and conduct amounting to fraud and
embezzlement of funds. The parties had
signed an arbitration agreement in Decem-
ber 2010 which provided that the parties
would agree on arbitration rules and pro-
cedures and the agreement would not be
changed except in writing. The draft rules
were prepared and signed on applicants’
behalf by their solicitor. The arbitrator
concluded that the agreement was valid
and it was not necessary that applicants
sign the rules of arbitration as they were
signed by their solicitor.
HELD: Application dismissed. The
arbitrator correctly held that every agree-
ment must be interpreted against the con-
text in which it was formed and consist-
ently with the totality of its provisions so
that the intent of both parties was achieved.
The agreement set out the process to be
followed where changes or modifications
were made to the agreement. It did not
state that the signature of all parties must
be effected personally rather than through
an authorized agent, nor was there a provi-
sion elsewhere in the agreement that
required the rules to be signed by the par-
ties personally. The arbitrator’s decision
was correct.
Malkin v. Bulman, [2011] O.J. No.
5212, Ont. S.C.J., Thorburn J., Nov. 21/11.
Digest No. 3132-001 (Approx. 6 pp.)
ASSESSMENTS
APPEAL – Municipal tax assess-
ments of properties owned by appel-
lants arbitrary and discriminatory.
Appeals from decisions affirming muni-
cipal tax assessments of appellants’ prop-
erties. Appellants each owned and oper-
ated a brewery assessed under a newly
enacted classification of special purpose
property. The classification resulted in
greatly increased assessed values for the
purpose of taxation. Before the Review
Commissioner, appellants submitted that
the classification of six commercial prop-
erties, including their own, was discrimin-
atory in relation to other properties that
had met the statutory definition but had
not been classified as such. The Commis-
sioner dismissed the appeals. On judicial
review the reviewing judge found that the
Commissioner’s decisions were not
unreasonable. The judge found that gen-
eral principles favouring uniformity over
discrimination in municipal taxation were
not relevant considerations in determin-
ing whether the assessments of the appel-
lants’ properties should stand, and if such
principles were relevant, such lack of uni-
formity or discrimination was expressly or
impliedly permitted by ss. 17 and 18 of the
Assessment Act (Nfld.).
HELD: Appeals allowed. The Com-
missioner erred in law finding that the
issue of uniformity and equity could only
be considered with respect to the six
properties classified as special purpose
properties and further made an unreason-
able finding that the evidence did not
establish that other special purpose prop-
erties were not classified and assessed as
such. Both the Commissioner and the
reviewing judge incorrectly interpreted
ss. 17 and 18 of the Act as expressly
authorizing discrimination within the
special purpose property classification.
Appellants established that their proper-
ties were assessed in an arbitrary, inequit-
able and discriminatory manner. The
appeals were referred back to the Com-
missioner with appropriate directions.
Labatt Brewing Company Ltd. v. St.
John’s (City), [2011] N.J. No. 409, Nfld.
& Lab. C.A., per Harrington J.A. (Rowe
and White JJ.A. concurring), Nov. 28/11.
Digest No. 3132-002 (Approx. 19 pp.)
CHARTER OF RIGHTS
& FREEDOMS
SEARCH AND SEIZURE – Plaintiff
awarded damages arising from con-
duct of police in conducting search at
his home.
Action by plaintiff for damages in con-
nection with execution of a search war-
rant, false arrest and unlawful detention.
Police investigating a gang associated with
illegal firearms received a tip that a gang
member had moved into his cousin’s home,
which was plaintiff’s residence. A search
warrant for the home was executed by a
SWAT team. Plaintiff received a call that
police were breaking down his front door.
He immediately drove home and was
arrested for possession of firearms. Plain-
tiff was handcuffed, placed in a cruiser and
watched police search his car, breaking the
sun roof. He was not allowed to speak with
a lawyer until after he was strip-searched
and lodged in a cell. He stated that police
mocked him while he was naked, made
homosexual slurs and wielded a stun gun
in a threatening manner. He was held for
several hours before his release. He was
not told about the nature of the warrant or
the investigation until his release. No guns
were recovered by police during the search.
Plaintiff adduced photographic evidence
of damage to his home caused by flash
grenades used by police.
HELD: Action allowed in part. Police
violated plaintiff’s Charter rights. There
was no basis for his arrest. The search of
plaintiff was unnecessarily intrusive. His
evidence established he was subjected to
insulting and degrading comments. There
was also no basis for his continued deten-
tion. The search of the home was a fishing
expedition that resulted in the seizure of
personal items not authorized by law.
Police were ordered to return plaintiff’s
items forthwith. Plaintiff was awarded
general damages of $25,000. Plaintiff was
awarded special damages of $4,500 for the
property damage. The conduct of police
warranted an award of punitive damages
of $2,500.
Elliot v. Waterloo (Regional Muni-
cipality) Police Services, [2011] O.J.
No. 5199, Ont. S.C.J., Milanetti J.,
Nov. 22/11. Digest No. 3132-003
(Approx. 11 pp.)
CIVIL PROCEDURE
DISCOVERY – Appellant doctors
entitled to examine deceased’s mother
and spouse in action brought against
them by Public Trustee.
Appeal from the dismissal of appel-
lants’ application to compel the deceased’s
mother and spouse to attend for question-
ing. The deceased committed suicide
within days of his release from defendant
hospital. The Public Trustee, on behalf of
the deceased’s estate, commenced an
action against appellants who were the
deceased’s treating physicians and the
operator of the hospital for negligence,
alleging that they discharged the deceased
without arranging for a proper psychiatric
examination. The Public Trustee sought
funeral expenses on behalf of the estate,
damages for statutory bereavement on
behalf of the deceased’s parents and dam-
ages for statutory bereavement and loss of
financial support on behalf of the
deceased’s spouse and child. A representa-
tive of the Public Trustee was unable to
answer many of appellants’ questions at
discovery and gave conflicting informa-
tion. Appellants believed that the
deceased’s mother and spouse might have
failed to take reasonable steps to assist the
deceased and they sought further informa-
tion from them. The chambers judge dis-
missed the application to compel the
deceased’s mother and spouse to attend for
questioning on the basis that, while they
were parties to the litigation, they were not
adverse in interest.
HELD: Appeal allowed. The cham-
bers judge properly found that the
deceased’s mother and spouse were par-
ties to the action. However, she erred in
concluding that they were not adverse in
interest to appellants as they were per-
sons for whose benefit the claim for relief
was brought and could have brought the
claim on their own behalf had the Public
Trustee failed to do so. Furthermore, they
had personal knowledge of facts that
were essential to the claim and would
likely be witnesses at trial.
Golden Estate v. Neilson, [2011] A.J.
No. 1268, Alta. C.A., per McFadyen,
Berger and O’Ferrall JJ.A., Nov. 29/11.
Digest No. 3132-004 (Approx. 8 pp.)
STAY OF ACTION – Appellate court
upheld stay of priest’s action against his
Diocese on jurisdictional grounds.
Appeal from the stay of appellant’s
action against respondent Diocese.
Appellant, a priest, was disciplined and
ultimately removed from office by
respondent in 2008. He did not appeal
any of the disciplinary or dismissal deci-
sions, choosing instead to first meet with
his parishioners despite respondent’s
refusal to hold such meetings, and sub-
sequently to bring an action for damages
for constructive dismissal. His action
was stayed as an abuse of process. The
judge found that the court had no juris-
diction over appellant’s claim because it
was ecclesiastical in nature. The judge
also noted that appellant had failed to
exhaust the internal procedures avail-
able to him.
CLASS PROCEEDINGS
DISCONTINUANCE – Court dis-
missed plaintiff’s motion to discontinue
action against Canada so similar action
could be pursued in Federal Court.
Application for approval to discon-
tinue the action against the federal gov-
ernment. If successful, applicants
intended to pursue similar relief in a
separate action in the Federal Court,
while continuing this action against the
government of Ontario. Plaintiffs were
engaged in production of flue cured
tobacco in Ontario between 2001 and
2008. In 2009 they started this proposed
class action seeking damages against both
Canada and Ontario for misfeasance in
public office and negligence. In October
2010 they brought an action in the Fed-
eral Court claiming the same relief in
order to shelter under the “no costs” pro-
vision of the Federal Court Rules for a
certification motion. That action had
been stayed pending the outcome of this
discontinuance motion.
HELD: Motion dismissed. The Ontario
action was the only forum wherein plain-
tiffs could proceed against both defend-
ants. An order to discontinue the action
against Canada would result in plaintiffs
pursuing two parallel mirror image
actions. Canada had the stated intention
to launch third party claims for contribu-
tion and indemnity once the exchange of
pleadings was complete. If the action
against Canada were to proceed in Fed-
eral Court, it would engage subs. 50.1(1)
of the Federal Courts Act to return that
action to this court. Plaintiff represented
their goal as an access to justice issue.
Based on the facts raised, the access to
justice goal here did not trump the con-
sideration of judicial economy.
Weninger Farms Ltd. v. Canada
(Minister of National Revenue – M. N. R.) ,
[2011] O.J. No. 5237, Ont. S.C.J., Tause-
ndfreund J., Nov. 23/11. Digest No.
3132-006 (Approx. 5 pp.)
