The Lawyers Weekly - March 23, 2012

CIVIL LITIGATION
LIMITATION OF ACTIONS – Time –
When time begins to run – Accrual of
cause of action – Discoverability.
Appeal by the plaintiff from partial sum-
mary judgment granted in favour of the
defendants. The plaintiff claimed damages,
losses and compensation pursuant to ss.
36(1) and 45(1) of the Competition Act. The
claim under s. 36(1) was subject to the lim-
itation period stated in s. 36( 4), which
provided for a two-year limitation period
from the date of conduct that breached s.
45(1) of the Act. The plaintiff’s action was
commenced in August 2008. The particu-
lars of the claim alleged that the defendant
knowingly negotiated and entered into pur-
chasing agreements with various parties
that unduly restrained or injured competi-
tion. The pleaded claims involved events,
negotiations and discussions leading up to
the agreements in question. The three
named agreements were dated November
2003, February 2005 and March 2006. The
plaintiff submitted that its claim was not
discoverable until it had received copies of
the impugned agreements, and that the
defendant’s conduct constituted a continu-
ing course of action and continuing dam-
ages. The motion judge ruled that the plain-
tiff’s action was time-barred and thus
disclosed no reasonable cause of action.
There was no jurisprudence supporting a
general rule of discoverability applicable to
s. 36( 4) of the Act, as that provision was
linked to a fixed event unrelated to the
plaintiff’s knowledge or the basis of the
cause of action. Similarly, any continuing
course of conduct was irrelevant given the
linkage of the limitation period to a fixed
event. Under s. 45(1), the continuing effects
of an offending agreement were not action-
able. There was no authority for the propos-
ition that continuing losses extended the
limitation period. In addition, the judge
ruled that the plaintiff’s action was time-
barred even if the discoverability principle
applied, as the plaintiff had commenced its
action prior to having access to the docu-
mentation in question, revealing that know-
ledge of the documentation had no bearing
upon its ability to commence the action.
HELD: Appeal dismissed. There was no
error in the motion judge’s statement or
application of the law, nor any palpable and
overriding error with respect to his factual
findings. The issue of discoverability did not
arise under the circumstances, as the judge
correctly found that the plaintiff had com-
menced its action before it had access to the
impugned documents and before it began
the discovery process. The information
available to the plaintiff in April 2006 fol-
lowing the defendant’s response to a cease
and desist letter was essentially the same
information it had when it commenced the
action in August 2008. As the judge found,
the alleged offence under s. 45 was complete
at the time of the conclusion of the purchase
agreements. Ongoing effects did not extent
the time period established under s. 36( 4) of
the Act.
Garford Pty Ltd. v. Dywidag Systems
International, Canada, Ltd., [2012]
F.C.J. No. 220, Federal Court of
Appeal, Layden-Stevenson, Gauthier
and Stratas JJ.A., February 13, 2012.
Digest No. 3143-001

CONSTITUTIONAL LAW
CONSTITUTIONAL PROCEEDINGS
– Practice and procedure – Parties –
Standing.
Application by the defendants for dis-
missal of the action on the ground that the
plaintiff lacked standing to advance the
claims made. The action concerned the can-
cellation of the only program in the British
Columbia correctional system that provided
for mothers of infants to live with and care
for their children while incarcerated. The
action sought to establish that both mothers
and infants had constitutional rights to
remain together during the incarceration of
the mothers in the provincial corrections
system. The plaintiff was incarcerated while
pregnant in 2008. She was expected to give
birth prior to the end of her two-year sen-
tence. Although she was held at a provincial
prison, she was transferred to a federal
institution. Her daughter was born in 2009.
The statement of claim alleged that the can-
cellation of the Mother-Baby Program
infringed the rights of both mothers and
infants under ss. 7, 12 and 15 of the Charter.
The relief sought included a declaration
pursuant to s. 24(1) of the Charter setting
aside the cancellation of the Mother-Baby
Program on the basis that the cancellation
violated ss. 7, 12 and 15 of the Charter.
HELD: Application dismissed. At a min-
imum, the plaintiff had standing to pursue
her claim for relief pursuant to s. 24(1). Apart
from her claims for relief pursuant to s. 24(1)
of the Charter, the plaintiff did not have a
direct, personal interest in the action suffi-
cient to accord her private interest standing
with respect to the balance of the relief
sought. Since the plaintiff had already
received a federal sentence when the action
was commenced, she was already beyond the
reach of a practical remedy, even if the pro-
gram had been reinstituted the day after the
action was commenced. It was an appropri-
ate case for the court to exercise its discretion
to grant the plaintiff public interest standing
to enable the adjudication of the entire action
as pleaded. Considering the vulnerable situa-
tion of the other potential litigants and the
absence of other proceedings, the court was
not satisfied that the persons more directly
affected than the plaintiff might reasonably
commence proceedings to challenge the
legislation at issue in the action.
Inglis v. British Columbia (Minister of
Public Safety and Solicitor General),
[2012] B.C.J. No. 262, British Columbia
Supreme Court, C.J. Ross J., February 9,
2012. Digest No. 3143-002
CORPORATIONS,
PARTNERSHIPS
& ASSOCIATIONS LAW
RELIGIOUS INSTITUTIONS – Dir-
ectors and officers – Non-profit corpora-
tions – Membership – Meetings of mem-
bers – Directors and officers – Civil
procedure – Injunctions.
Motion by the plaintiff, Sri Guru Nanak
Sikh Centre, for an interlocutory injunction
restraining the defendants, Dhadda and
others, from seizing control of two Sikh
temples and for summary judgment on
whether there were 38 members of the
plaintiff. Motion by the defendants for an
interlocutory order for independent over-
sight of the plaintiff’s financial affairs. The
plaintiff was a not-for-profit cultural and
religious association. It owned and operated
two Sikh temples in the City of Brampton.
In September 2000, the plaintiff com-
menced litigation concerning the identity of
its directors and members. In June 2001,
the trial judge found that there were 18
members of the plaintiff “to the commence-
ment of the litigation” and that the five
incorporators remained the five directors.
On March 28, 2010, several members of the
plaintiff were elected as directors of the
plaintiff at the annual general meeting. The
defendants challenged the legitimacy of that
meeting. Many of the defendants purported
to requisition a meeting of the members of
the plaintiff, which was held on April 18,
2010. At that meeting, the directors elected
on March 28, 2010, were purportedly
removed and many of the defendants were
purportedly elected in their place. These
new directors then appointed officers, took
control of the plaintiff, changed the locks,
and took possession of the plaintiff’s corpor-
ate records and finances. The annual gen-
eral meeting was conducted on the premise
that there were 38 members of the plaintiff
entitled to vote. The requisitioned meeting
was convened and conducted on the basis
that there were 1,086 members of the plain-
tiff. The defendants claimed that 725 addi-
tional members were added in October
2000, and a further 344 were added in June
2008. There was nothing in the corporate
records and nothing in the trial judgment to
indicate that the 725 donors were members,
as alleged by the defendants, or that anyone
thought that they were members, by the
time of the trial in March 2001. The usurped
directors retained counsel on behalf of the
plaintiff and brought a successful motion
for an urgent injunction on April 23, 2010
to restore the directors who had been elected
at the annual general meeting held on
March 28, 2010 to possession and control of
the plaintiff. The plaintiff sought to con-
tinue the injunction until the trial.
HELD: Plaintiff’s motion allowed and
defendants’ motion dismissed. Partial sum-
mary judgment was issued declaring that
there were 38 members of the plaintiff
entitled to vote at members’ meetings. An
interlocutory injunction was issued to
remain in place until the end of the trial.
The defendants’ takeover of the plaintiff was
illegal. The financial issues raised by the
defendants were distinct from the member-
ship and control issues. The defendants’
efforts to tie these issues together did not
justify their illegal usurpation of the board
of directors. The defendants were not
entitled to assert a claim that the 725 per-
sons who signed forms in 2000 were mem-
bers of the plaintiff entitled to attend and
vote at members’ meetings. The claim
respecting the 725 persons allegedly added
as members in October 2000 was statute
barred on January 1, 2005. Furthermore,
the purported approval of 344 members did
not happen in June 2008, as the defendants
alleged. There was a serious issue to be tried
that the defendants had acted unilaterally to
seize control of the plaintiff without legal
justification. There was good reason to
believe that they would continue in this con-
duct if not restrained from doing so. The
plaintiff would suffer irreparable harm if the
injunction was not granted. The plaintiff
needed to be in the hands of the lawfully
elected board, which was charged with the
responsibility of managing its affairs. The
board was not to be distracted from its dut-
ies by fighting a constant rearguard action
against the defendants. The balance of con-
venience strongly favoured the plaintiff, as
the current board was the legally elected
board of directors. In addition, it was diffi-
cult to maintain a neutral state of affairs
pending trial, as the essential dispute was
over control of the plaintiff. The defendants
had demonstrated that they would engage
in self-help, lie, alter documents, and persist
in untenable claims to promote their ambi-
tion to take over the plaintiff. The defend-
ants did not meet any of the three steps in
the injunction test for granting the relief
they sought on an interlocutory basis. The
defendants sought to interfere with the
management of the plaintiff by taking over
the plaintiff themselves and by causing
trouble for the existing board. The appoint-
ment of a monitor and an auditor would
have been an intrusion into the ordinary
management function of the board and the
officers, and the defendants did not estab-
lish that there were proper grounds to do so.

CRIMINAL LAW
PROCEDURE – Trial judge’s duties –
Trials – New trial, grounds for.
Appeal by the accused from his convic-
tions on two counts of indecent assault of
two young girls who had lived in his neigh-
bourhood in the early 1970s. The trial judge
imposed a sentence of three and one-half
years’ imprisonment. On appeal, the accused
claimed that he was not present at a mid-
trial conference that the trial judge had
convened in his chambers with both coun-
sel. During the conference, the trial judge
expressed his opinion about both the weak-
ness of the accused’s testimony and some
problems with the Crown’s case, and urged
counsel to try to resolve the case. The
accused argued that this violated s. 650(1) of
the Criminal Code, which provided that “an
accused ... shall be present in court during
the whole of his or her trial.” The Crown
conceded that, given the contents of the
discussion in the in-chambers conference, s.
650(1) was violated. However, the Crown
contended that this was a proper case for
the application of the proviso in s. 686(1)(b)
(iv) to preserve the verdict. The accused also
argued that the verdict was unreasonable.
HELD: Appeal allowed. A new trial was
ordered. The in-chambers discussion about
possible resolution affected the accused’s
vital interests, and thus should have been
held in the accused’s presence. Furthermore,
the trial judge’s negative comments about