The Lawyers Weekly - January 20, 2012

TYPES OF DAMAGES – General
damages – For personal injuries – Spe-
cial damages – Non–pecuniary loss.

Appeal by the plaintiff from damages awarded for injuries suffered in a motor vehicle accident when she was eight years old. The trial judge determined that the appellant had suffered soft tissue injuries that lasted less than two years. The appellant claimed that she had ongoing pain that became chronic. The trial judge awarded her non–pecuniary damages of $25,000 and agreed special damages of $6,721. He made no award for loss of earning capacity or cost of future care. He found that the appellant was proceeding at a pace and level that did not reflect any diminished capacity and found no grounds for an allowance for the possibility that she had lost some part of her prospective range of opportunities owing to the injuries suffered in the accident. At the time of trial, the appellant wanted to study medicine. The trial judge did not accept that the appellant suffered from a chronic pain disorder. In assessing costs, the trial judge disallowed the appellant recovery of disbursements for expert reports from a psychologist and another doctor on the basis that the factual premises of the reports were unsound. The trial judge found the psychologist’s report inadmissible as the psychologist had no expertise in pain treatment and found the other doctor’s report not useful. The appellant argued that the award of non–pecuniary damages was inordinately low and that the trial judge erred in making no award for loss of earning capacity or cost of future care. She also claimed that the trial judge did not apply the proper legal test in denying recovery of the cost of the experts’ reports.

HELD: Appeal allowed in part. The
damages awarded were not inordinately
low. The trial judge reviewed and con-
sidered all of the evidence, weighed it,
assessed the credibility and reliability of
the witnesses, made findings of fact, and
assessed the damages accordingly. The
appellant had not shown that the award
of non–pecuniary damages was inordin-
ately low or disproportionate in all of the
circumstances of the case. The trial judge
erred, however, in disallowing the costs
for the other doctor’s report. A litigant
was entitled to legal resolution of hon-
estly held views of their claims. It was not
unreasonable to obtain expert opinions in
support of those views, especially from
treating professionals. In denying the dis-
bursements for those reports, the trial
judge engaged in the hindsight analysis.
A disbursement should not be disallowed
if it was reasonable at the time when it
was incurred. While it was not unreason-
able to obtain an opinion from the appel-
lant’s treating psychologist, it should have
been obvious to counsel that the psychol-
ogist’s opinion would not be admissible
because she did not have the qualifica-
tions to provide opinions on the appel-
lant’s medical treatment for pain. On that
basis, incurring the expense for the
report, at the time it was obtained, was
not reasonable.

FAMILY LAW
SEPARATION AND DIVORCE –
Practice and procedure – Appeals and
judicial review – Of final orders – Limit-
ation periods.

Motion by the wife, the respondent on appeal, for an order quashing the notice of appeal filed by the husband. In October 2010, a judge granted the parties a divorce and reserved his decision on the claim for corollary relief. In April 2011, the judge rendered his written decision. In July 2011, the decision was filed in the clerk’s office. On August 16, 2011, the judge signed an order directing judgment based on the April 2011 reasons for decision. The order stated that it was effective as of April 2011. The husband filed a notice of appeal on September 8, 2011. He appealed the provisions of the August 2011 order related to spousal support and the division of family assets. The wife sought to quash or have the appeal dismissed on the basis that the notice of appeal was not issued within 30 days of the order or decision as required by s. 21( 3) of the Divorce Act and Rule 62.05( 2)(a) of the Rules of Court. At issue was whether the time commenced from the date of the filing of the written reasons, or the date of a subsequent order directing judgment. The wife contended that the determinative date was April 2011.

HELD: Motion dismissed. The juris-
prudence relied upon by the wife was dis-
tinguished, as this was a case in which the
order under appeal was a judge–made
order filed for the purpose of directing
judgment. Certain paragraphs of that
order were specifically challenged in the
notice of appeal. There was no inconsis-
tency between s. 21( 3) of the Divorce Act
and Rule 62.05( 2)(a) giving rise to a para-
mountcy issue. Under s. 21 of the Divorce
Act, the term “order” referred to the order
directing judgment rather than the filing
of the reasons for decision. Here, the
order was signed and filed in compliance
with Rule 60.02( 2)(b) and thus the time
for the appeal began to run in August
2011. The paragraph specifying the effect-
ive date of the order had nothing to do
with the commencement of the appeal
period. The husband was clearly within
the prescribed period for filing his notice
of appeal. The parties were ordered to
bear their own costs.

GOVERNMENT LAW
ACCESS TO INFORMATION AND
PRIVACY – Protection of privacy –
Legislation – Provincial and territorial.

Appeal by the Information and Privacy Commissioner from a ruling upholding a chambers judge’s decision to quash an adjudicator’s decision that the Commissioner had lost jurisdiction due to the failure to extend the period for the completion of an inquiry within the prescribed time. The Commissioner started an investigation after receiving complaints about an Alberta Teachers’ Association publication of private information. At the time, the Commissioner’s enabling statue provided that an inquiry “must” be completed within 90 days of the complaint being received by the Commissioner, unless the Commissioner notified the parties concerned that he was extending the period and provided an anticipated date for completing the inquiry. In dealing with the complaints against the Association, the Commissioner took 22 months from the initial complaint before extending the estimated date on which the inquiry would be concluded. The adjudicator delegated by the Commissioner subsequently issued an order against the Association before the anticipated date for completion and 29 months after the initial complaint was made. The issue of compliance with statutory timelines was not raised before the Commissioner or the adjudicator. Subsequently, the Association applied for judicial review of the adjudicator’s order, arguing that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days. The chambers judge granted the application on this basis, quashing the adjudicator’s decision. This decision was upheld by a majority of the Court of Appeal. The first question at issue was whether the timelines issue should have been considered on judicial review since it was not raised before the Commissioner or the adjudicator. The second involved a determination of what was the applicable standard of review. The third question was whether the adjudicator’s continuation and conclusion of the inquiry, despite the Commissioner having provided an extension after 90 days, survived judicial review.

HELD: Appeal allowed. The adjudica-
tor’s order against the Association was
reinstated. The timelines issue was subject
to judicial review. Although the issue was
not raised before the Commissioner or the
adjudicator, it was implicitly decided by
both the Commissioner and the adjudica-
tor, and there was no evidentiary inad-
equacy or prejudice to the parties in this
case. The Commissioner had expressed his
views in several other decisions so the
Commissioner had the opportunity to
decide the issue at first instance and the
court had the benefit of his expertise. No
evidence was required to consider the
timelines issue. With respect to the second
question at issue, the implied decision of
the Commissioner to extend the time after
90 days as implicitly adopted by the dele-
gated adjudicator was reviewable on a
reasonableness standard. The question
was whether the inquiry automatically ter-
minated as a result of the Commissioner
extending the 90–day period only after the
expiry of that period. This question
involved the interpretation of s. 50( 5) of
the Personal Information Protection Act, a
provision of the Commissioner’s home
statute. Deference would usually result
where a tribunal was interpreting its own
statute or statutes closely connected to its
function. This principle applied unless the
interpretation of the home statute fell into
one of the categories of questions to which
the correctness standard continued to
apply. However, the timelines question was
not a constitutional question or a question
regarding the jurisdictional lines between
two or more competing specialized tribu-
nals. In addition, it was not a question of
central importance to the legal system as a
whole. Finally, the timelines question did
not fall within the category of a “true ques-
tion of jurisdiction or vires”. The adjudica-
tor’s decision was reasonable. The Com-
missioner and his delegated adjudicators
had considered the issue, as it related to s.
50( 5) of PIPA and to the similarly worded
s. 69( 6) of the Freedom of Information and
Protection of Privacy Act, on numerous
occasions and had provided a consistent
analysis. It was reasonable to interpret s.
50( 5) of PIPA in a manner consistent with
s. 69( 6) of FOIPA. Both provisions gov-
erned inquiries conducted by the Commis-
sioner and the two provisions were identi-
cally structured and used almost identical
language. Therefore, there existed a rea-
sonable basis for the adjudicator’s implied
decision in this case that extending the
90–day period after the expiry of that per-
iod did not terminate the process.

IMMIGRATION LAW
IMMIGRANTS – Application for
immigrant visa – Units of assessment/

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