reasonable suspicion for the detention.
Without the prior Charter breaches, the
accused’s statement regarding the boxes
in his trunk would not have been obtained
and there would have been no lawful
basis to search his vehicle. Balancing the
relevant factors favoured exclusion of the
evidence, as the Charter violations were
deliberate and flagrant. Admission of the
evidence would have negatively affected
the long-term repute of the administration of justice. The evidence was excluded.
R. v. Caines, [2012] N.J. No. 1, New-
foundland and Labrador Provincial
Court, W. Gorman Prov. Ct. J., Janu-
ary 3, 2012.
DAMAGES
PHYSICAL AND PSYCHOLOGICAL INJURIES – Physical injuries – Head injuries – Concussion –
Psychological injuries – Cognitive
impairment.
Action by the insured for payment of
Schedule B benefits. The plaintiff was
injured in a 2005 motor vehicle accident
and was insured under a standard automobile policy with the defendant. The
plaintiff was paid $250 in weekly benefits under the policy for 108 weeks.
Although the policy maximum was 104
weeks, the defendant paid an additional
four weeks pending receipt of psychological and medical reports, but determined the plaintiff did not qualify for
Schedule B benefits. It was common
ground that the onus was on the plaintiff
to establish that his injuries continued to
prevent him from engaging in any occupation or employment for which he was
reasonably suited. In the accident, the
plaintiff sustained a fractured spine,
broken nose and kneecap, various cuts
and bruises, and a mild concussion. The
plaintiff was hospitalized for six days and
then discharged. The plaintiff recovered
from his physical injuries but claimed
that his closed head injury caused cognitive impairment that prevented him from
working. At the time of the accident, the
plaintiff worked as an orthotic technician
at his wife’s clinic. He was also a skilled
photographer. The plaintiff attempted to
return to work but claimed he was mentally tired, bothered by noise, and unable
to concentrate. The plaintiff’s wife agreed
with his assessment. Since 2006, the
plaintiff had been living at his cottage,
where his wife joined him on weekends.
The plaintiff was able to take care of
domestic needs, drive and maintain the
property, but had largely given up photography because he mixed up chemicals
and could not concentrate on details.
HELD: Action allowed. The expert
evidence indicated that the plaintiff
showed no signs of malingering and had
likely sustained a mild traumatic brain
injury that either created or exacerbated
cognitive defects. The plaintiff had difficulty with attention and concentration.
The plaintiff was unable to return to his
20-year career and was unable to engage
in photography. The evidence established, on the balance of probabilities,
that the plaintiff’s cognitive impairments
made him unable to take any job for
which he was reasonably suited. Damages of $52,000 were awarded to reflect
the policy breach from January 1, 2008
to January 1, 2012 at $250 a week, plus
interest. The plaintiff was also awarded
$5,850 costs.
Hayston v. Wawanesa Mutual Insur-
ance Co. of Canada, [2012] N.B.J. No. 2,
New Brunswick Court of Queen’s Bench,
P.S. Creaghan J., January 3, 2012.
FAMILY LAW
MAINTENANCE AND SUPPORT –
Child support – Calculation or attribu-
tion of income – Financial disclosure –
Considerations – Quantum.
Application by the father for a declaration that the parties’ child ceased to
be a child of the marriage for support
purposes during a 10-month period. The
parties separated in 1994. The youngest
child, age 19, moved out of his mother’s
home in November 2010 to work at a ski
resort. The child moved back home in
April 2011, and left home in September
2011 to return to full-time post-secondary education in the area of ski resort
management. The father sought an order
that no support was payable between the
relevant dates. The quantum of ongoing
support remained at issue. The father
was a shareholder of two companies, one
of which employed his new spouse. He
contended that one of the companies
was attempting to establish business in
Nicaragua and had been unprofitable to
date. The mother earned a net business
income of $8,920 in 2010. In 2011, she
worked for a municipality and earned
$23,000 plus an additional $4,000 from
her business. The child worked for the
mother’s business as his summer job.
The mother expected to return to her
business in 2012 and to earn $12,000
per year.
HELD: Application dismissed. Financial disclosure from both parties was
sparse. A negative inference was drawn
from the failure by the father to file personal tax returns or financial statements
for his two companies. His failure to provide the mother with his income tax
return was in breach of a 1999 court
order. It was thus necessary to impute
income to the father. The father’s 2010
line 150 total income of $50,000 was
grossed up for tax purposes to $65,773.
An additional $5,000 was added for
vehicle and household expenses run
through the business, resulting in an
imputed income of $70,000. The child’s
decision to work temporarily at a ski hill
was a sound decision given his pursuit of
education and a career in the ski industry. It was clear that the child was not
economically self-sufficient in November
2010 and still relied on parental support.
Based on the child’s earnings and
expenses, and the father’s income, it was
appropriate to order support below the
Guideline amount. The father was
ordered to pay 72 per cent of the child’s
expenses when the child lived and worked
away from home and attended school,
plus support of $400 per month during
the relevant period when the child lived
at home and worked for the mother.
W.D.M. v. R.A.M., [2012] B.C.J. No.
5, British Columbia Supreme Court,
Master B.M. Young, January 4, 2012.
HUMAN RIGHTS LAW
DISCRIMINATION – Prohibited
grounds – Sex – Context – Workplace dis-
crimination – Remuneration and wage
rates – Government benefits and services.
Appeal by the Public Service Alliance
and Murphy from the dismissal of their
judicial review application. Murphy was
a former member of the public service.
Murphy and the Alliance complained to
the Human Rights Tribunal that Murphy
was subject to discrimination by the
Minister of Revenue in respect of taxes
assessed against a lump sum payment
she received as compensation because
she was a female member of the public
service, underpaid for her work in com-
parison to her male counterparts.
Females in Murphy’s position received
the lump sum payments in 2000 for
work done in previous years. Murphy was
assessed taxes and interest on the pay-
ment. She complained that this was dis-
criminatory treatment on the basis of her
gender. Both the Tribunal and the Fed-
eral Court found that the Minister’s
assessment of taxes and interest against
Murphy was not a service pursuant to
which she could complain about dis-
criminatory treatment, but rather was
the application of the Income Tax Act
based on the undisputed facts that Mur-
phy received the lump sum payment as
income for her previous employment.
INSURANCE LAW
ACCIDENT AND SICKNESS
INSURANCE – Benefits – Disability –
Termination of.
Action by the plaintiff for recovery of
disability benefits under two disability
insurance policies. The defendant Costco
employed the plaintiff as a cashier from
1991 onward. The defendant Manufac-
turers Life Insurance (“Manulife”)
administered Costco’s group insurance
plan for its employees, including short-
and long-term disability. The plaintiff
alleged that she was disabled from carry-
ing out her employment duties due to
chronic depression. The plaintiff was
presently on medical leave and in receipt
of long-term disability benefits. She
sought disability benefits from the
defendants for six separate periods
between June 2002 and August 2008.
She claimed that the defendants breached
their contractual obligations when they
terminated her disability benefits in
2002 and when they denied her subse-
quent claims. In addition, she claimed
that the defendants did not provide
proper rehabilitation assistance during
the periods in dispute. The plaintiff
claimed that the defendants’ conduct was
undertaken in bad faith, and was
unreasonable, thereby causing her to suf-
fer mental distress. The plaintiff claimed
against Costco on the basis of breach of
fiduciary duty in the context of its role as
trustee of the group insurance policy for
employees. The plaintiff sought recovery
of disability benefits based on breach of
contract, plus punitive, exemplary and
aggravated damages. In addition, the
plaintiff sought damages on the basis
that the defendants’ conduct caused or
materially contributed to her personal
bankruptcy. The defendants contended
that the plaintiff was disabled during the
six periods in issue, and that they were
entitled to terminate benefits effective
June 2002 due to her failure to attend an
independent medical examination. The
defendants denied that the plaintiff suf-
fered mental distress or that any fiduci-
ary duty arose under the circumstances.
The issue of damages for bad faith con-
duct was severed pending proof of any of
the plaintiff’s other claims.
