The Lawyers Weekly - April 27, 2012

most of the grounds of appeal raised issues that fell within the expertise of the Commission and were therefore to be reviewed on a standard of reasonableness. Applying a standard of correctness to the constitutional challenge to the administrative monetary penalty (“AMP”) provision, the Divisional Court adopted the detailed reasons of the Commission’s sanctions decision rejecting the constitutional challenge. The Divisional Court found no error in the Commission’s consideration of conduct contrary to the public interest in awarding an AMP against Rowan. Noting that the appellants had not raised the issue below, the Divisional Court rejected the argument that the Commission erred in awarding AMPs against Carmichael and WCI without finding that their failure to supervise was itself a breach of Ontario securities law. The Divisional Court held that the Commission’s findings supported the conclusion that Carmichael and WCI breached Ontario securities law.

HELD: Appeal dismissed. The Commission and the Divisional Court correctly concluded that the only remedy available to the appellants under s. 11(d) of the Charter was to limit the authority of the Commission to impose AMPs to levels that qualified as administrative, rather than penal, sanctions. The AMPs at issue did not transgress that limit. The Commission did not err in concluding that the magnitude of the AMP was geared to its regulatory mandate. Given the very large number of infractions involving over one billion dollars worth of securities and over two million dollars in commissions, fines totalling $1,220,000 were within the constitutionally permissible range. The Divisional Court properly concluded that the Commission’s reasons were to be reviewed on a standard of reasonableness, and they met that standard. The Commission provided careful and detailed reasons for its decision, making all the necessary findings to support the sanctions it imposed. The Divisional Court correctly concluded that the appellants failed to show any basis for appellate intervention. Rowan’s transgressions were the basis for the imposition of a long list of sanctions, most of which were properly made because he had acted contrary to the public interest. There was nothing wrong with the Commission providing a complete list of the conduct it found to justify the various sanctions it imposed. In finding that Carmichael and WCI failed to adequately supervise Rowan’s trading in Biovail securities in the trust accounts, the Commission did not err. As Carmichael did not raise the issue of whether he was under a duty imposed by Ontario securities law to supervise Rowan, he could not advance this argument on appeal. The Commission found that Carmichael was under a duty to supervise Rowan. That finding fell within the expertise of the Commission and was entitled to deference on appeal. There was no basis upon which to conclude that the Commission’s finding on this point was unreasonable. The Commission found that Carmichael, McKenney and WCI failed to adequately supervise Rowan. Its findings in that regard were largely factual and policy based. They were within the special expertise of the Commission and the reasonableness standard therefore applied. The Commission’s findings easily met that standard.

Rowan v. Ontario (Securities Commission), [2012] O.J. No. 1375, Ontario Court of Appeal, R.J. Sharpe, R.A. Blair and R.G. Juriansz JJ.A., March 29, 2012. Digest No. 3148-014

TORT LAW

NEGLIGENCE – Dangerous things
and situations – Defences – Release –
Voluntary assumption of risk – Waiving
right of action.

Appeal by the plaintiffs from a trial judgment dismissing their negligence action. The respondent operated zip-lining tours. The appellants had contracted with the respondent to take part in such a tour. Both appellants had signed waivers releasing the respondent from all liability, including claims arising from the respondent’s own negligence. Due the respondent’s negligence, the appellants collided on the zip-line, which caused injury to both of them. The trial judge held that the releases were not unconscionable. He found that, having regard to the information about zip-lining on the respondent’s website and the statements in the release as to the risks and dangers involved, it could not be said that the company had taken unfair advantage of the appellants. The trial judge rejected the appellants’ argument that the release failed for lack of consideration because it was not part of their respective contracts with the respondent when their tours were booked.

HELD: Appeal dismissed. The releases were not unconscionable or unenforceable at common law. It was not unconscionable for the operator of a recreational sports facility to require a person who wished to engage in activities to sign a release that barred all claims for negligence against the operator and its employees. There was no power imbalance where a person wished to engage in an inherently risky recreational activity that was controlled or operated by another. It was not unfair for the operator to require a release or waiver as a condition of participating. The provisions of Business Practices and Consumer Protection Act relied on by the appellants did not lead to the invalidation of the release because the facts did not support a finding of unconscionabil-ity. The consideration the appellants received for signing the release was being allowed to participate in the zip-lining activity. Whether either of them had read the statement on the respondent’s website regarding the requirement to sign a waiver was immaterial.

Loychuk v. Cougar Mountain Adventures Ltd., [2012] B.C.J. No. 504, British Columbia Court of Appeal, M.V. Newbury, S.D. Frankel and E.A. Bennett JJ.A., March 15, 2012. Digest No. 3148-015

(WHRA) on the basis that no reasonable cause of action was disclosed. Sinclair, who was an indigent, physically and cognitively disabled Aboriginal man, died in a hospital’s emergency waiting room on September 21, 2008, after having waited without attention for 34 hours. He complained of abdominal pain, a catheter problem and a lack of urinary output. Upon his attendance at the emergency room, he checked in with hospital staff and was directed to wait in the waiting room. He sat there in his wheelchair for the next 34 hours until his death. It was alleged that his death could have been prevented if the condition was treated in a timely way. Grant was Sinclair’s sister. She brought an action on her own behalf and in her capacity as administrator of Sinclair’s estate. The WRHA defendants included numerous officials and employees, including those who worked in the emergency room during the relevant period. Manitoba was named on the basis that it was responsible for the delivery of health care to citizens in the province. Grant sought declarations that certain rights guaranteed by the Charter were breached by the defendants; general and aggravated damages against WHRA for a violation of Sinclair’s privacy and negligent use of his personal medical information in relation to statements made to the media after Sinclair’s death; damages against Manitoba for public nuisance; and general and special damages and/or s. 24(1) Charter damages for the legal fees and disbursements to be incurred by Sinclair’s family and estate in relation to the inquest into his death.

HELD: Motion allowed in part. The
Charter claims against Manitoba and
the WRHA defendants were struck out,
the breach of privacy claim against the
WRHA defendants was struck out, and
the public nuisance claim against Mani-
toba was struck out. The claim for the
costs of the inquest against the WRHA
defendants was not struck out. It was
plain and obvious that Grant had no
standing to pursue Sinclair’s Charter
claims. An estate was just a collection of
assets and liabilities of a person who
had died. It was not an individual and it
had no dignity that might be infringed.
Charter claims that had neither been
adjudicated nor argued at the time of
death did not survive an individual’s
death. On the basis that Grant did not
have standing to pursue Sinclair’s Char-
ter claims, all Charter claims contained
in the re-amended statement of claim as
against Manitoba and the WRHA had to
be struck out. Similarly, an estate had no
privacy that could be violated for the
purposes of a tort action under The Pri-
vacy Act. The only material facts con-
tained in the re-amended statement of
claim spoke to what happened to Sin-
clair. There were no material facts relat-
ing to anyone else having suffered the
same or a similar fate, or indeed any
type of risk endured by vulnerable
Aboriginal persons in hospital emer-
gency rooms. There was no possibility
that Manitoba could properly plead in
response to the public nuisance allega-
tions, save for a bare denial. There was
no time frame given in the pleading over
which the alleged public nuisance had
been in existence. It was plain and
obvious that there was no case for Mani-
toba to meet in respect of public nuis-
ance. The pleadings contained no
material facts supportive of a public
nuisance claim. However, Sinclair’s
family was not involved in the inquest
by choice, but of necessity, and it was
very desirable that they had legal rep-
resentation. It was not plain and obvious
that the WRHA defendants had no rea-
sonable cause of action relating to the
recovery of inquest costs.

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EXECUTORS AND ADMINISTRATORS – Actions by – Conditions precedent – Proceedings – Constitutional issues – Canadian Charter of Rights and Freedoms – Practice and procedure – Parties – Standing.

Motion by Manitoba to strike out Grant’s action against Manitoba and the Winnipeg Regional Health Authority

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