MCLACHLIN SPOKE most for top court .................................. 1

FEDS FADING in face of furor..1

ANONYMOUS COMPLAINTS

turf family.................................2

FEDERAL GOVERNMENT taking heat over oil pipe ..................... 4

B.C. APPEAL court backs fired bus driver................................. 4

PROJECTS FOR taxpayers who are in trouble............................ 5

IMMIGRANT CLASS action suit is over ...................................... 8

FOCUS

Business Law
PAYING FOR hidden costs..... 11

MANITOBA ADDS to the franchise law quilt.................. 12

JaNpietruszka / Dreamstime. Com

OSC EYES ‘no contest’ rule to ease logjam............................ 13

Anonymous complaints turf family

RAMPING UP accessibility compliance ............................. 14

DONALEE MOULTON

WHAT IS keeping franchisors up at night?................................. 14

Civil Litigation
NORWICH ORDERS: ‘nifty’ tool
to get the evidence................ 16

NEW APPROACH to summary judgement in ontario.............. 17

BUSINESS & CAREERS

A Cape Breton family no longer has a home to call their own—at least for 70 days. The Nova Scotia Court of Appeal dismissed an appeal that would have allowed Delilah Dixon, Peter MacKinnon, and their three young children to remain in their home despite a community safety order issued by the province to evict them temporarily for allegedly running a drug house.

The decision was both
expected and unanticipated, said
Tony Mozvik, a lawyer with The
Breton Law Group in Sydney
who represented the appellants.
“The movement in justice is to be
tough on drugs, but I was some-
what surprised the bar [for evic-
tion] was set so low.”
“Lawyers will have to analyze
their cases very carefully,” he
added, to determine if the legal
issues before them mirror those
raised in Dixon v. Nova Scotia
(Director of Public Safety), 2012
NSCA 2.

One of the contentious ques-
tions before the court was
whether the trial judge erred in
his interpretation of the words
“habitually used” regarding
alleged illegal uses of the appel-
lants’ property. “The Crown said
‘habitual’ means a lower stan-
dard [of evidence]. The appeal
court agreed,” Mozvik said.

Mozvik found the facts were
sparse. “In this case, there wasn’t
a lot of evidence.”
The evidence included state-
ments from the police that, since
2009, when one of the appellants
was released from prison, com-
plaints and criminal activity in
the neighbourhood had sharply
increased. For example, they
described six events of arson in
the fall of that year in the vicinity
of the family and their home. The

WHEN TWEET dreams turn to nightmares......................... 20

HE’S CLASS action’s leader of the pack ................................. 21

The Crown said ‘habitual’ means a lower standard [of evidence]. The appeal court agreed.

“

DEPARTMENTS

tony mozvik, the Breton Law group

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Correction

Michelle Gage is the national director of legal talent at Norton Rose Canada LLP. In a story on page 8 of the January 20, 2012 issue of The Lawyers Weekly she was incorrectly identified.

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to an application because they
cannot directly test the credibil-
ity, accuracy or reliability of
such evidence. “However, that
does not render the evidence
inadmissible.”
Citing Saskatchewan (Director
of Community Operations) v.
S.M.M., 2006 SKQB, Justice
Bryson said it is the quality of the
evidence received that must be
carefully considered.

The appeal court’s ruling means the family must now leave their home for 70 days, after which time they may return. For renters, this may be incentive enough for people to move on to a new residence enabling the alleged drug activity in that neighbourhood to stop. However, the home in this case is owned by the appellants.

“This [situation] could repeat itself,” Mozvik said, if they return to their home and more complaints are made.

Community safety orders are relatively new in Canada; four other jurisdictions — Manitoba, Alberta, Saskatchewan, Yukon — currently have such legislation in place. Under the Safer Communities and Neighbourhoods Act, which became law in Nova Scotia four years ago, individuals can be removed from their home if they are engaging in an illegal activity that disrupts the neighbourhood. A conviction is not required.

Since Nova Scotia’s legislation has been in place, more than 730 complaints have been filed with the province’s director of public safety, and a total of 86 individuals have been evicted from their homes. Only six people, however, have actually taken their case to court. n

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The appellants argued unsuccessfully that the ordinary meaning of “habitually” should be used. “With respect, the appellants’ attachment to a dictionary meaning of ‘habitually’ cannot succeed,” Justice Bryson concluded. “The law requires— and the Chambers judge recognized — a more contextual approach. Certainly, the term would not describe an isolated incident or ancient history. On the other hand, the ‘ continuance,’ ‘permanence’ and ‘daily presence,’ which the appellants advocate, is not reasonable.

“Habitual use involves more
than a discrete event,” he stated.
“Occasional activity implying
ongoing conduct would suffice.
In my view, it is unnecessary and
unwise to say more by trying to
provide an a priori definition of
‘habitually used.’ I agree with the
Chambers judge when he said:
‘Its meaning will depend on the
facts of each case.’ ”
director of public safety also
interviewed as many as 18 com-
plainants, but their identities
were protected.