CIVIL LITIGATION
CIVIL PROCEDURE – Parties –
Class or representative actions – Com-
mon interests and issues.
Appeal by the plaintiff from an order
refusing to certify the action as a proposed class action. The plaintiff had a
gambling problem. He had signed a voluntary self-exclusion contract prepared
by the defendant pursuant to which the
defendant could exclude him from the
gaming venues it operated. Exclusion of
individuals who had signed the self-exclusion contract depended on the individuals’ own will to stay away and, where
the individuals attempted to enter despite
their agreement to stay away, on the ability of the defendant’s employees to
remember whether the individual was a
self-excluder. The plaintiff alleged that he
was not stopped by the defendant from
entering its gambling facilities despite
the self-exclusion contract and that he
consequently gambled and sustained
losses and other damages. The proposed
class consisted of those who had signed
the voluntary self-exclusion contracts but
were permitted to enter gaming venues
by the defendant. The plaintiff sought
damages in negligence and breach of contract and punitive damages. The plaintiff
alleged that the defendant had an ineffective way to implement the contracts. The
motions judge found insufficient common issues to warrant certification. He
found that although the vulnerability of
the class members as problem gamblers
was the general theme of the proposed
common issues, the class definition did
not require the members to be identified
as problem gamblers in any sense or to
any particular degree. He found that the
class definition was to that extent objectionably over-inclusive, and the proposed
common issues lacked commonality.
HELD: Appeal dismissed. The
motions judge did not err in finding that
the common issues requirement had not
been satisfied. Even if there were some
common issues in contract, the plaintiff
could not prove breach of contract as a
common issue, since it could not be
determined without individual inquiry
which of the class members presented
themselves at a gambling facility in viola-
tion of the self-exclusion agreement and,
if so, with what results. In order to deter-
mine the amount that the defendant
should have to disgorge as restitutionary
damages, a court would have to deter-
mine what the defendant earned from
self-excluded gamblers. That would
require an individual inquiry as to their
losses. Vulnerability was an individual
issue, and the individuality of any vulner-
ability determination rendered virtually
every significant element of liability in
tort an individual issue. The Class Pro-
ceedings Act did not permit the require-
ment of commonality to be avoided by
statistical estimates of probability of
commonality. The requirement of proof
of liability at common law was not per-
mitted to be replaced by statistical evi-
dence of likelihood of liability. Consid-
ering the numerous individual issue that
remained, a class proceeding was not the
preferable procedure.
CRIMINAL LAW
CONSTITUTIONAL ISSUES – Canadian Charter of Rights and Freedoms
– Legal rights – Protection against
arbitrary detention or imprisonment –
Right to retain and instruct counsel
without delay.
Appeal by the accused from convictions for possession of marijuana for the
purpose of trafficking and unlawful cultivation of marijuana. The police detained
the accused after he left the site of a suspected marijuana grow-operation during
execution of a search warrant. The
accused was detained in the back of a
police van for 42 minutes during the
search. The police confirmed the existence of the grow-operation and arrested
the accused. The accused was read his
rights and indicated that he wished to
speak with a lawyer. The accused was
searched incidental to the arrest and the
police seized a key to the home containing
the grow-operation. The accused was
booked and photographed at the detachment. He was not given the opportunity
to speak with counsel until approximately
five hours after his arrest. The trial judge
found that the initial 42-minute detention was not arbitrary and did not amount
to a de facto arrest. The trial judge found
that there were reasonable grounds for
the subsequent arrest of the accused following the police’s discovery of the grow-operation. The trial judge found that the
police breached the ss. 10(a) and 10(b)
Charter rights of the accused, but that
those breaches did not justify exclusion of
the key or booking photograph from evidence. On appeal, the accused submitted
that the trial judge erred in failing to find
that the initial detention breached his s. 9
Charter rights. The accused further submitted that the police lacked reasonable
and probable grounds to believe he was
associated with the grow-operation and
thus his formal arrest was unlawful. The
accused submitted that the breaches of
his Charter rights justified exclusion of
the evidence. He also submitted that even
if the admission of the evidence was justified, the evidence adduced was insufficient to prove possession or control of the
grow-operation.
HELD: Appeal dismissed. The trial
judge did not err in admitting the
impugned evidence and did not err in
convicting the accused. The detention of
the accused was not arbitrary, did not
constitute a de facto arrest, and did not
breach his s. 9 Charter rights. There was
ample evidence upon which the trial
judge could find that the detention satis-
fied the Mann requirements. The judge’s
conclusion that the 42 minutes in the
police van was not an unreasonable per-
iod of detention was based on findings of
fact regarding the difficulty in executing
the search warrant and confirming the
presence of the grow-operation. Those
findings were entitled to deference. Simi-
larly, the finding that the manner of
detention did not give rise to a de facto
arrest was not unreasonable. The subse-
quent warrantless arrest and incidental
search of the accused were not unlawful.
The accused’s presence at the site of the
offence provided sufficient grounds for
the arrest, as it was clear to the police
that the house containing the grow-oper-
ation was not used as a residence. It fol-
lowed that the incidental search was
lawful. The trial judge did not err in
principle or misapprehend the evidence
in ruling the evidence of the key and the
accused’s booking photograph admis-
sible under s. 24( 2) of the Charter. The
trial judge properly characterized the s.
10 Charter breaches as serious and fla-
grant. The judge was entitled to find that
the impact on the accused was minimal
and that there was a strong societal inter-
est in the adjudication of the case on the
merits given the reliability and funda-
mental nature of the evidence. The con-
viction verdict was reasonable. The
accused was one of two men inside a
home used completely for growing mari-
juana and was found in possession of a
key to the only door allowing access.
FAMILY LAW
MAINTENANCE AND SUPPORT –
Spousal support – Variation or termin-
ation – Occurrence of material change.
Appeal by the wife from a judgment of
the Quebec Court of Appeal affirming in
part a decision reducing and then ter-
minating her spousal support as of
August, 2010. Shortly after the parties
married, the wife learned that she had
multiple sclerosis. Throughout the mar-
riage, the husband pursued his career
outside the home, while the wife looked
after the household and children. The
parties were divorced in May 2003. In
April 2003, the parties entered into a
comprehensive agreement dealing with
the issues arising from their separation.
The order of May 2003 incorporated the
agreement, including a provision for
indexed spousal support payable by the
husband to the wife in the initial amount
of $3,688 per month. In 2007, the wife
applied under s. 17 of the Divorce Act to
vary the order, seeking a retroactive and
prospective increase in child support. In
response, the husband brought a motion
to vary, also under s. 17 of the Act, seek-
ing both a reduction and, ultimately, a
cancellation of spousal support. The trial
judge rejected the husband’s claim that
his financial circumstances had changed,
but concluded that the wife was able to
work outside the home. As a result, an
order was made reducing and then ter-
minating her spousal support as of
August 2010. The wife appealed, arguing
that the trial judge erred in varying
spousal support without having found a
material change of circumstance, as
required by s. 17 of the Act. The Court of
Appeal rejected the wife’s appeal, con-
cluding that her failure to become self-
sufficient over time gave rise to a material
change in circumstances.
