powers be exercised only at trial. Uncertainty arose over the use of the new powers
conferred under the amended Rule. The
Court of Appeal consequently convened a
five-judge panel to hear five appeals from
decisions under the amended rule to
address issues concerning interpretation
of the new Rule. In the Combined Air
appeal, Combined Air appealed from the
dismissal of its action for damages against
Flesch and others based on alleged
breaches of non-compete restrictive covenants in an acquisition agreement. The
motion judge found that Combined Air
failed to adduce any evidence to support
its various allegations. Combined Air
appealed on the basis that the judge erred
in both directing and limiting the scope of
the oral evidence. In the two Hryniak
appeals, the Mauldin group and Bruno
sued Hryniak and others for fraud in connection with a lost investment. The
Mauldin group and Bruno were granted
summary judgment against Hryniak, but
not the other defendants. Hryniak
appealed on the basis that the motion
judge erred in finding it was in the interest
of justice to grant partial summary judgment, and in failing to find genuine issues
requiring a trial. In the Misek appeal,
Misek appealed from summary judgment
finding that she did not enjoy a prescriptive easement over the respondent’s property. Misek submitted that the motion
judge erred in concluding that a trial was
not required. In the Parker appeal, Parker
and others were refused summary judgment under the Rule 76 simplified procedure on the basis that numerous conflicts in
the evidence could only be justly resolved
after a trial. The appeal raised the novel
interpretative issue of how Rule 20 should
be applied in the context of an action
under Rule 76.
HELD: Appeal by Combined Air dis-
missed; appeals by Hryniak allowed in
part; appeal by Misek dismissed; appeal
by Parker dismissed. The amendments to
Rule 20 were intended to introduce sig-
nificant changes removing restrictions on
the analytical tools available to the motion
judge. The purpose of the new rule was to
eliminate unnecessary trials rather than
eliminate all trials. The motion judge was
able to weigh the evidence, evaluate the
credibility of a deponent, and draw any
reasonable inference from the evidence in
determining whether there was a genuine
issue requiring a trial with respect to a
claim or defence. In deciding whether
those powers should be used to resolve all
or part of an action, a motion judge was
required to ask whether the full apprecia-
tion of the evidence and issues required
to make dispositive findings could be
achieved by way of summary judgment,
or whether full appreciation could only
achieved by way of trial. In the Combined
Air appeal, the motion judge did not err
in finding no issue requiring a trial, did
not err in exercising the power to order
presentation of oral evidence under Rule
20.04( 2. 2), and did not err in granting
summary judgment. In the Hryniak
appeals, both actions bore all the hall-
marks in which the full appreciation of
the evidence and issues could only be
achieved at trial. Going forward, such
cases required a trial. The judgment in
the Mauldin group’s action was affirmed,
as the extensive evidentiary record firmly
supported the determination that
Hryniak had committed the tort of civil
fraud. The judgment in the Bruno action
was set aside, as it was unclear on the
evidence whether Hryniak received all of
Bruno’s funds, and the motion judge
failed to apply an important element of
the test for fraud. In the Misek appeal,
the motion judge did not err in conclud-
ing that a trial was not required. The
judge properly employed the enhanced
powers accorded by Rule 20.04( 2.1) to
weigh the evidence, evaluate credibility,
and draw reasonable inferences in order
to decide the action summarily. In the
Parker appeal, there was no error in the
Divisional Court’s affirmation of the
motion judge’s order refusing summary
judgment given the nature of the issues in
dispute, the absence of any cross-examin-
ations of the key witnesses, the lack of a
detailed damages assessment in the
appellants’ expert report, and the absence
of any appreciable efficiency gain that
would be accomplished by the motion.
Where summary judgment was refused in
a Rule 76 action, it was open to the court
to exercise the case management powers
under Rule 20.05.
CONSTITUTIONAL LAW
CONSTITUTIONAL VALIDITY OF
LEGISLATION – Level of government
– Provincial or territorial legislation –
Interpretive and constructive doctrines
– Pith and substance.
Petition by Sivia and others challenging
the constitutionality of the Automatic
Roadside Prohibition (“ARP”) regime. In
2010, the province of British Columbia
amended the Motor Vehicle Act to introduce the ARP regime. The amendments
provided for an automatic and immediate
90-day driving suspension when a driver
registered a “fail” on a roadside screening
device, which indicated a blood alcohol
level over .08. The amendments also provided for shorter suspensions of between
three and 30 days if the driver registered a
“warn” on the screening device, which
indicated a blood alcohol level of between
.05 and .08. In addition to the 90-day
automatic suspension for a driver over .08,
the ARP regime imposed monetary penalties and mandatory programs that cost
drivers up to $4,000. The petitioners each
received 90-day automatic roadside prohibitions after either allegedly registering
a “fail” on a roadside screening device, or
refusing to provide a sample of breath.
They challenged the constitutional validity
of the new regime on the basis that the
amendments were criminal law beyond
the legislative jurisdiction of the province,
and that the amendments violated their ss.
8, 10(b) and 11(d) Charter rights. In respect
of the Charter challenges, the petitioners
submitted that the ARP regime violated
the presumption of innocence, authorized
an unreasonable search and seizure, and
denied the right to counsel upon detention. The province submitted that the ARP
regime was within its legislative competence and that any Charter infringements
were justifiable under s. 1.
HELD: Petition allowed in part. The
ARP legislation was not ultra vires the
province on a division of powers basis.
Based on its pith and substance, the
impugned legislation was within the prov-
ince’s jurisdiction to legislate with respect
to the licensing of drivers and the enhance-
ment of highway traffic safety, and was not
properly characterized as criminal law.
The ARP legislation did not create an
“offence” as that term was used in section
11(d) of the Charter, nor did it impose true
penal consequences in suspending one’s
driving privileges. Therefore, the legisla-
tion did not trigger the application of s.
11(d) of the Charter and it was not neces-
sary to address whether the ARP regime
violated the presumption of innocence.
The ARP legislation infringed s. 10(b) of
the Charter, but the infringement was
saved by s. 1 as it was a reasonable limit,
prescribed by law and demonstrably justi-
fied in a free and democratic society. The
ARP legislation infringed s. 8 of the Char-
ter insofar as it imposed significant pro-
hibitions, penalties and costs arising from
a “fail” reading over .08 in a context where
the limited scope of the review provisions
did not provide a meaningful opportunity
to challenge the results of the search. That
infringement was not justifiable under s. 1
of the Charter. The ARP legislation did not
infringe s. 8 of the Charter insofar as it
concerned the prohibition, penalty and
cost consequences arising from the screen-
ing device registering a reading in the
“warn” range of between .05 and .08.
Given that aspects of the legislation
infringed s. 8 of the Charter, the Court
requested further submissions on the
appropriate declaration or form of order.
CORPORATIONS,
PARTNERSHIPS
& ASSOCIATIONS LAW
UNINCORPORATED ASSOCIA-
TIONS AND CLUBS – Organization
and structure – Governing boards –
Meeting of members.
Application by the Ontario Korean
Businessmen’s Association, Kang, Kim, Ko
and others, for interim injunctive and
ancillary relief. The Association was comprised primarily of members who operated
convenience stores. A governance dispute
existed within the Association over tobacco
pricing issues and support of a subsidiary
association. Several memberships were
suspended, including that of one respondent. The most recent annual general meeting was hijacked by one of the respondents, who exited the meeting with the
incumbent officers and directors and some
members. The remaining members purported to elect new directors who took
over the Association’s offices, changed the
locks, and barred the incumbent executive
from entering the premises. The applicants were the incumbent executive of the
Association. They sought orders restoring
them to their positions and ousting the
respondents from the governance of the
Association. The respondents intended a
counter-application to maintain their positions, contending that the applicants had
ignored the corporate governance requirements of the Association’s bylaws.
HELD: Application allowed. A serious
question to be tried clearly existed, as the
validity of the purported election of new
officers and directors at the annual general
meeting was a live issue. To permit a mem-
ber to hijack an annual general meeting
without equitable sanction and the con-
tinuation of the current state of affairs
would have caused irreparable harm to the
proper governance of the Association.
There was no evidence that the respond-
ents had given notice of their own meet-
ing. What ensued after the hijacking was
not a valid members’ meeting. The subse-
quent election did not comply with the
Association’s rules of election. It was
unlikely that the subsequent steps taken
by the respondents were lawful. The bal-
ance of convenience did not favour con-
donation of such conduct and supported
the granting of interim injunctive relief.
The court ordered a special meeting to
conduct elections to be convened under
the supervision of an independent person
with expertise in corporate law. Manage-
ment of the daily operations of the Asso-
ciation was also to be placed under the
control of a third party. The respondents
were directed to vacate the office premises
and provide keys to the locks.
CRIMINAL LAW
CRIMINAL CODE OFFENCES –
Offences against person and reputation
– Motor vehicles – Impaired driving or
driving over the legal limit – Roadside
screening test – Approved screening
device.
Appeals by the Crown and the Chief of
Police for Edmonton Police Service from
the dismissal of their applications for an
order of certiorari to quash a disclosure
order. The accused was charged with
impaired driving and with driving with an
illegal blood alcohol level. He failed a
roadside test, was arrested, and was issued
a breath sample demand that subsequently
yielded samples with results showing an
illegal blood alcohol level. The accused
sought disclosure of the ASD calibration
logs held by the police. He submitted that
the pre-offence and post-offence calibration records were relevant to the operational integrity of the roadside device and
the objective reasonableness of the police
officer’s reliance on the device underlying
the subsequent breath sample demand.
The accused submitted that frequent
adjustments to bring readings within the
accuracy threshold would raise a reasonable doubt as to the operational integrity
of the device. The Crown and police were
required to disclose the records for the
three months preceding and the two
months following the date of the alleged
offences in respect of the calibration logs
for the device used in the investigation
involving the accused. The judge characterized the requirement as first party disclosure based on the relevance of the pre-offence logs and the potential relevance of
the post-offence logs. The Crown and
Police sought to quash the order. The
reviewing judge found that the judge did
not act outside of his jurisdiction or in
breach of principles of natural justice. Relevance was demonstrated to a sufficient
standard.
HELD: Appeals allowed. Certiorari
was available to the appellants for both
errors of jurisdiction and errors of law on
the face of the record. Since both first and
third party disclosure requirements were
based on relevance, it should not matter
