Case Mail V. 20 No. 23

Case Mail v. 20 no. 23

The Law Society of Saskatchewan Library's online newsletter highlighting recent case digests from all levels of Saskatchewan Court. Published on the 1st and 15th of every month.

Volume 20, No. 23 December 1, 2018

Subject Index

Aboriginal Law – Hunting McKay Career Training Inc. v Baker, 2018 SKCA 83 and Fishing Rights Jackson Caldwell Whitmore, October 24, 2018 (CA18082) Bankruptcy and Insolvency – Discharge Civil Procedure – Appeal Bankruptcy – Discharge – Contracts – Breach – Damages Income Tax Debt – Tort – Negligent Misrepresentation Bankruptcy and Insolvency Act, Section 172.1 The appellant appealed a Court of Queen’s Bench decision dismissing

Civil Procedure – Appeal its claims of negligent misrepresentation and breach of contract against a commercial realtor. The appellant had the realtor act on his behalf to Civil Procedure – Class locate commercial premises for it. The realtor agreed to approach the Action – Certification – Designation of Judge City to see if a building for lease would be suitable for the appellant’s use and also to see whether a sprinkler system would be required. The Civil Procedure – Class Actions – Settlement realtor attended at the City and spoke with someone who he said Agreement – Approval conveyed that “it looks like sprinklers would not be required”. He

Civil Procedure – Pleadings never mentioned to the person that there would be renovations taking – Statement of Defence – place at the location. A lease was signed in September. It was learned Application to Strike that a sprinkler system was required after the plaintiff appellant began Civil Procedure – Queen’s renovations to the building. The sprinkler system cost $111,690.60. The Bench Rules, Rule 3-49 appellants alleged that the realtor had breached his agreement to

Civil Procedure – Queen’s provide correct information regarding the need for a sprinkler system Bench Rules, Rule 7-2 and, further in the alternative, that he had made false and negligent representation to them about the need for a sprinkler system in the Civil Procedure – Queen’s Bench Rules, Rule 7-5 building. The trial judge found that the appellant had satisfied four of the five criteria for negligent misrepresentation. According to the trial Constitutional Law – Charter of Rights, Section judge, the appellant did not establish that it had relied in a reasonable 8, Section 24(2) manner on the negligent misrepresentation. The trial judge also found

Contract Law – Breach that the realtor had satisfied the term of the contract that he act in the

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best interests of the appellant using the reasonable skill and care of an Criminal Law – Controlled experienced commercial realtor. The trial judge concluded that the Drugs and Substances Act – Forfeiture – Application realtor had fulfilled his undertaking to raise the issue of the suitability of the property with the City and to report on that discussion. The issue Criminal Law – Defences – Charter of Rights, Section on appeal was the trial judge’s consideration of the breach of contract 8, Section 24(2) claim. HELD: The dismissal of the claim in contract against the realtor was set Criminal Law – Evidence – Identity aside and judgment was entered against him. The costs ordered against the appellant were set aside and the matter was remitted back to the Criminal Law – Motor Vehicle Offences – Driving Queen’s Bench for determination of damages and costs of trial. The with Blood Alcohol appeal court did not find a palpable error in the trial judge’s finding of Exceeding .08 – Conviction fact regarding whether the appellant relied, in a reasonable manner, on – Summary Conviction Appeal a negligent misrepresentation. The appellant argued that the trial judge failed to answer whether the realtor had breached the standard of care Criminal Law – Possession of Counterfeit Money owed under the contract. The appellant relied on certain findings of fact that the trial judge made when canvassing the negligent Family Law – Child Custody misrepresentation claim. The trial judge had concluded that the realtor and Access – Shared Parenting acted negligently, and he identified the specific ways he had been negligent. The appeal court concluded that the findings of fact made by Family Law – Child in Need of Protection – the trial judge amounted to a breach of the contractual standard of care. Reintegration The realtor breached the contract. The quantification of damages was remitted back to the trial judge. Family Law – Child Support – Determination of Income – Imputing Income © The Law Society of Saskatchewan Libraries Back to top

Landlord and Tenant – Residential Tenancies Act, 2006 – Appeal

Regulatory Offences – Metcalfe v 101102382 Saskatchewan Ltd., 2018 SKCA 84 Saskatchewan Employment Act Jackson Whitmore Ryan-Froslie, October 31, 2018 (CA18083) Statutes – Interpretation – Bankruptcy and Insolvency Statutes – Interpretation – The Limitations Act, Section 5, Section 20 Act, Section 178 The appellant, the executor for the estates of his wife and daughter, Statutes – Interpretation – appealed from the decision of a Queen’s Bench chambers judge to deny Income Tax Act, Section 224(1.3) his application to amend a statement of claim alleging a breach of contract, originally filed under The Small Claims Act, 1997. The Statutes – Interpretation – appellant’s first claim on behalf of his wife was filed in and issued by The Limitations Act, Section 5, Section 20 Provincial Court in November 2012 against the defendant, 382 Sask Co. operating as Stonebridge Partnership. The defendant did not file a Cases by Name statement of defence. On November 8, 2013 the appellant filed another claim, with his wife as plaintiff, against the defendant 299 Sask Co. 101082401 Saskatchewan Ltd. v Tunnels of Little operating as Swift Current Partnership and another claim, with his Chicago Association Inc. daughter as plaintiff, against the same defendant 299 Sask Co. operating as Swift Current Partnership. When these two claims came Archibald v Archibald before a Provincial Court judge, he refused to issue them for a variety Clunas v Kreisle of reasons including: the existence of the first action; portions of the Dumais v Bolwe claims were properly within the jurisdiction of the Court of Queen’s Bench; and they should be brought in the judicial district of Swift Farm Credit Canada v

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101181565 Saskatchewan Current. The appellant then attempted to have both claims issued in the Ltd. Provincial Court in Swift Current, but they were not received until after

Federated Co-operatives December 31, 2013, by which time the limitation period had expired. Ltd. v Weyburn (City) For other reasons, though, the Provincial Court judge there also refused to issue them. After more confusion, the appellant applied to the H.R., Re Provincial Court in Saskatoon for an order amending the first action to Hello Baby Equipment Inc. incorporate the two other claims and an order under s. 11(3) of The v BOFA Canada Bank Small Claims Act transferring the whole of the action to Queen’s Bench. Hicks v R The Provincial Court judge did not grant the order to amend but J.M.S. v J.M.S. transferred all the files to Queen’s Bench. The appellant then applied to that court for an order pursuant to Queen’s Bench rule 3-72(1)(a) to Lattery, Re (Bankrupt) amend the claim to incorporate the two other claims with the original Ledcor Design-Build claim, as the defendant had not yet filed a defence. The defendants’ Saskatchewan Ltd. v counsel argued that they could not be added by amendment because as Comfort Structures Ltd. they had not been issued in Provincial Court, the claims had expired McKay Career Training Inc. unless the appellant could bring them within s. 20 of The Limitations v Baker Act (LA). The chambers judge refused to add the two other claims Metcalfe v 101102382 because they involved different parties and the actions were not the Saskatchewan Ltd. same as the original one. Furthermore, the claims had not been issued Mock v Mock and the limitation period had expired.

Montgomery, Re HELD: The appeal was dismissed. The court found that the chambers (Bankrupt) judge had correctly applied s. 20 of the LA. The appellant’s claim on behalf of his wife against Swift Current Partnership did not arise out of Pambrun v Canada (Attorney General) the same transaction as her claim against the Stonebridge Partnership. The appellant’s claim on behalf of his daughter against Swift Current PRI Management v Parent Partnership had even less to do with the first claim against the R v Besplug Stonebridge Partnership. The appellant’s two claims were initially R v Desjardin rejected and then not resubmitted until after the limitation period had expired. Thus, they were not commenced for the purposes of s. 5 of the R v Hartle LA. R v Maier © The Law Society of Saskatchewan Libraries Back to top R v Nalco Champion

R v Paddy

R v Ward

Venture Construction Inc. v Workers' Compensation Board v Petkau, 2018 SKCA 85 Government of Saskatchewan (Ministry of Caldwell Ryan-Froslie Schwann, November 1, 2018 (CA18084) Highways and Infrastructure) Statutes – Interpretation – Bankruptcy and Insolvency Act, Section 178 Workers' Compensation Statutes – Interpretation – Workers’ Compensation Act, 2013, Section Board v Petkau 20, Section 112

Disclaimer The Saskatchewan Workers’ Compensation Board (WCB) appealed the All submissions to Saskatchewan courts decision of a Queen’s Bench chambers judge regarding whether the must conform to the Citation debt owed by the respondent to the WCB, survived the respondent’s Guide for the Courts of Saskatchewan. discharge from bankruptcy pursuant to s. 178(1)(e) of the Bankruptcy Please note that the citations and Insolvency Act (BIA) and if so, what was the amount of the debt. contained in our databases The respondent had pled guilty to defrauding the WCB of a value may differ in style from those

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endorsed by the Citation exceeding $5,000 contrary to s. 380(1) of the Criminal Code in relation to Guide for the Courts of workplace benefits he had improperly received from the WCB. The trial Saskatchewan. judge found the Crown’s evidence about how much money the respondent had received to be unpersuasive and decided that as he could not calculate the amount, he would “peg” it at $5,001. The decision was not appealed. Before the trial, the respondent had assigned into bankruptcy, listing the WCB as one of his unsecured creditors. After the criminal proceedings, the WCB issued an order under s. 112 of The Workers’ Compensation Act, 2013 (WCA) fixing the amount of its overpayment to the respondent at $39,000 and registered the order as an enforcement charge against a property owned by the bankrupt. Having received an offer to purchase that property prior to his discharge from bankruptcy, the respondent transferred title to the purchaser subject to the enforcement charge. He was then discharged from bankruptcy except for debts included in s. 178(1) of the BIA. He applied to the Court of Queen’s Bench for an order discharging the WCB enforcement charge and the WCB applied to lift the stay of proceedings imposed by s. 69.3 of the BIA and to quantify the amount of the respondent’s fraud for the purposes of s. 178(1)(e) of the BIA as a debt owing to the WCB that would survive his bankruptcy discharge. The judge found that the respondent’s conduct was fraudulent and fell within s. 178(1)(e) and would survive his discharge. He lifted the stay of proceedings and then quantified the amount of the respondent’s debt as result of his fraud to be $5,001 as per the finding made by the judge in the criminal proceedings. He found that the WCB hearing and order were insufficient to provide the strict proof of fraud because of the deficiencies in the hearing (see: 2018 SKQB 7). The WCB’s grounds of appeal were that the chambers judge failed: to properly apply s. 20(1)(a) of the WCA whereby the WCB has exclusive jurisdiction to examine, hear and determine all matters arising pursuant to the WCA; and to apply to ss. 20(3) and (4) of the WCA, whereby all of the decisions of the WCB are final and conclusive and not open to review by any court. HELD: The appeal was dismissed. The court held that the WCB has the exclusive jurisdiction under s. 112 of the WCA to determine whether a worker received benefits in excess of their entitlement under the WCA. It does not have exclusive jurisdiction to determine matters under s. 178(1)(e) of the BIA, nor are judges bound by the WCB’s findings where they must rule on s. 178(1)(e). It found that the chambers judge had not erred by basing his ruling on the fraud and the quantum related to it upon the findings made by the trial judge in the criminal proceedings before the WCB began its process under s. 20(1)(a) of the WCA that led to its order. In this case, the only judicial determination establishing a causal connection between the respondent’s fraud and the debt to WCB said to have resulted from that fraud was made by the trial judge in the criminal proceedings.

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Archibald v Archibald, 2018 SKCA 86

Jackson Herauf Schwann, October 1, 2018 (CA18085)

Civil Procedure – Queen’s Bench Rules, Rule 3-49

The appellant appealed from a decision of a Queen’s Bench chambers judge dismissing his originating application under Queen’s Bench rule 3-49(1) for an order for the production of documents pertaining to the execution of certain testamentary dispositions. The appellant was the co-executor with his brother, one of the respondents, of his mother’s will, executed in 2009. In it, the testatrix left farmland to the respondent brother with specific bequests to the appellant. The testatrix died in 2015 but the will had not yet been probated. The appellant’s father had died in 1991 and left a holograph will and a printed will. The appellant alleged that he and his mother had entered into a verbal agreement whereby he would not contest the validity of the printed will in exchange for her promise to bequeath the farmland to him. He contended that he and his mother jointly retained the respondent law firm to resolve the matters with respect to that agreement and settling his father’s estate. In his originating application, he requested the production of documents from the law firm based upon those promises. The law firm claimed solicitor-client privilege on behalf of the appellant’s mother. It filed an affidavit from the lawyer who prepared the mother’s will and he attested that she retained the firm in her name only to assist with drafting her will and there had never been a joint retainer between the appellant, his mother and the firm and disclaimed any knowledge of the verbal agreement. Another lawyer who had become responsible for advising the mother in 2009 deposed that he was not aware of any joint retainer agreement and that the mother asked him to keep all communications between them in confidence and not to disclose them to the appellant. The chambers judge found that no retainer agreement existed and that the law firm should not be compelled to produce the documents. The issues on appeal were whether: 1) the appropriate procedure was followed, because originating applications under rule 3-49(1)(a) relate to questions of the administration of estates where an action had been commenced; 2) the chambers judge erred in finding that the joint retainer agreement did not exist; and 3) the law firm should be compelled to produce a list of documents. HELD: The appeal was dismissed. The court found with respect to each issue that: 1) it would resolve the appeal on the basis on which the appellant had presented it to the Court of Queen’s Bench because the new rules promoted resolution over a technical approach and because, in this case, neither of the respondents objected to proceeding under rule 3-49; 2) the chambers judge had made no palpable or overriding error regarding her finding that the agreement did not exist; and 3) the appellant had not shown how the chambers judge had erred by not

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ordering the law firm to disclose documents in its possession.

R v Besplug, 2018 SKPC 41

Henning, June 21, 2018 (PC18052)

Criminal Law – Defences – Charter of Rights, Section 8, Section 24(2) Criminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08

The accused was charged with operating a motor vehicle while impaired and while over .08, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, respectively. A voir dire proceeded to determine if his ss. 8 and 9 Charter rights were breached. A witness testified that she saw a blue Dodge truck swaying back and forth on a two-lane highway. She called 911 when she saw the driver take a drink of a beer. The witness followed the vehicle to a house where the driver and two others exited the vehicle. Police attended and located two intoxicated males outside. Neither matched the description of the driver, but the officers were told another person was in the house. A person came to the back of the house and was immediately arrested for impaired driving. A breath demand was made, and the accused was taken to the detachment. The accused and the two people in the back yard testified on the voir dire. The first witness testified that they did not begin drinking until they got to the house. He said that he was arrested when he told the officers in the backyard that they could not go into the house and that they should get the warrant that they had referred to. The witness testified that he was arrested very roughly at that point for obstruction, but no charges were ever laid. The second person in the backyard testified that, after the arrest of the first person, the officers advised that they would have the house “swatted and surrounded” within twenty minutes if the person they sought did not appear. He then went into the house and got the accused. The accused described how he was arrested before he fully exited the house. He indicated that he was not drinking on the way to the house. The accused raised the following issues: 1) his arrest was unlawful and thus contrary to s. 9 of the Charter because he was arrested immediately upon reaching the back door of the house; 2) his s. 8 Charter rights were breached because the officer reached into the house and did not have a warrant; and 3) there were no exigent circumstances to permit an entry and arrest within a home as authorized by s. 529 of the Criminal Code. HELD: The court accepted the testimony of the witness regarding his arrest for obstruction because the officer did not give any details of it. Further, the court had no doubt that the accused and two others at the house felt intimidated by the police presence and by the actions of the police. One of the people was the renter of a suite in the house and

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therefore, the court concluded that he had control and rights over the building and land adjacent to it in the same way a registered owner would have. The person that asserted rights to the property was arrested with some force and the court questioned its legality. The accused’s appearance at the back door was found to be prompted by the intimidation and aggressive behaviour of the police up to that point. The exit was not voluntary. Section 8 was breached in that he exited the residence because of inducement by force and intimidation. The court concluded that the accused relinquished his s. 8 rights for reasons of both physical and psychological coercion. The police did not have a right of entry. The right of privacy to the house was found to accrue to the accused under the circumstances where the lawful homeowner was arrested by the police with some force and for questionable grounds. The court reviewed the Grant case and considered applicable factors to conclude that the s. 8 breach was egregious. The factors noted by the court were: impaired driving is a serious and continuing problem throughout Canada; the police considered that they had a strong case against the accused; the police considered the tenant’s failure to admit them to be unreasonable resulting in a questionable arrest of that person with some force, which conveyed a threatening message to the others at the house; and the accused had a limited expectation of privacy. The breath sample results were excluded. The trial would continue on the impaired driving charge.

R v Maier, 2018 SKPC 44

Harradence, July 17, 2018 (PC18035)

Criminal Law – Controlled Drugs and Substances Act – Forfeiture – Application

The office of the director of Public Prosecutions applied pursuant to s. 16 of the Controlled Drugs and Substances Act (CDSA) and s. 462.37 of the Criminal Code for forfeiture of a vehicle. The vehicle had been used by the accused in the commission of offences. He had been convicted of two counts of conspiracy to traffic in cocaine and marijuana and two counts of possession of those drugs for the purpose of trafficking (see: 2018 SKPC 21). The conspiracy charges covered the time period between January and July 2016 and the possession charges were based on the results of a search conducted in April 2016. The accused had lived with his spouse until June 2016 when they separated. The vehicle was registered in the spouse’s name. She testified at the hearing that the accused would take the vehicle at night and return it in the morning. She did not know that he was using drugs or selling them or that he was using the vehicle for the purpose of a drug operation.

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HELD: The application was granted against the accused but dismissed against his spouse. The court accepted her evidence and found that she should not forfeit her interest in the vehicle under s. 19(3) of the CDSA. She had not been willfully blind to the accused’s use of the vehicle.

R v Desjardin, 2018 SKPC 52

Lavoie, September 28, 2018 (PC18056)

Aboriginal Law – Hunting and Fishing Rights Constitutional Law – Charter of Rights, Section 25, Section 35

The accused was charged with violating s. 7(2)(b) of the Saskatchewan Fishery Regulations, 1995 by unlawfully fishing in an area of Canoe Lake, specifically Jans Bay, that had been closed to all fishing since 1993 because of overfishing by the local commercial fishery industry. The accused, a status Indian with Aboriginal and Treaty 10 rights, was fishing for food. He had used a net in the restricted area and had caught eight suckers, two walleye and one northern pike. The Bay was very close to the residence of the accused on the Canoe Lake First Nation and was his preferred area to fish. The remainder of Canoe Lake was subject to restrictions governing all fishing but open to unlimited Treaty sustenance fishing all year round. The accused admitted to the actus reus of the offence. Under the Constitutional Questions Act, 2012 the accused gave notice that he would argue that s. 7(2)(b) of the regulations was invalid because it restricted his Treaty and Aboriginal right to fish food in the restricted area as defined by the Regulations; infringed his Treaty and Aboriginal right to fish for food as protected by s. 35(1) of the Constitution Act, 1982; and infringed his Treaty and Aboriginal right to fish for food as protected by s. 25 of the Charter of Rights. The agreed Statement of Facts confirmed the accused’s Aboriginal Treaty status and right to sustenance fishing. The Crown’s major witness was an expert in fish biology and he testified that the restricted area had been closed to protect it for walleye spawning. He stated that the closed area could not be opened for sustenance fishing. The conservation effort had been supported by the Canoe Lake Band Council. HELD: The accused was found guilty. The court found that the accused had failed to show a breach of his Treaty fishing right that would raise a defence or a Charter remedy to the charge against him: 1) the challenged regulations were within the implied common law limitations on Aboriginal fishing rights; 2) alternatively, the regulations fell within the provisions that permitted such regulations in Treaty 10; 3) alternatively, if they were not within the implied limitations of the right, the evidence had not established a prima facie infringement of the

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right; 4) alternatively, if there was a breach, it met the justification principles set out in Sparrow and Pierone.

Clunas v Kreisle, 2018 SKPC 59

Green, October 12, 2018 (PC18055)

Contract Law – Breach

The plaintiffs brought a small claims action against the defendants for breach of contract and damages. The defendant farmer asked the plaintiff farmer to cut and bale hay for him on his land and in return, the plaintiff would receive two thirds of the bales produced. The plaintiff cut and baled hay in 2015, 2016 and 2017. In the last year, the plaintiff went to the defendant’s farm to pick up his share of the bales but found that the defendant had improperly retained 41 of them. He sought damages in the amount of $2,250 (41 bales at $55 per bale). The defendant denied owing anything to the plaintiff because the latter had violated their agreement. HELD: The plaintiff was granted judgment in the amount of $2,050. It accepted the plaintiff’s evidence and rejected the defendant’s claim that the plaintiff had committed a variety of breaches. The court found that 41 bales had been kept by the defendant and set their value at $50 per bale.

R v Nalco Champion, 2018 SKPC 61

Wiegers, November 2, 2018 (PC18057)

Regulatory Offences – Saskatchewan Employment Act Public Welfare Offences – Occupational Health and Safety – Death of a Worker Regulatory Offence – Strict Liability – Defence of Due Diligence

The defendant company was charged with contravening s. 3-78(g) of The Saskatchewan Employment Act by failing to meet its duty under s. 302(2)(a) of the Occupational Health and Safety Regulations to take all practicable steps to prevent exposure of a worker to a hazardous chemical substance. The defendant denied the allegation, claiming that the Crown had failed to discharge its burden of proof or, alternatively, that it relied upon the defence of reasonable care. The charge arose after an employee of the defendant died after he was exposed to lethal

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amounts of hydrogen sulfide. The defendant’s business related to obtaining and analyzing samples of “produced water” (crude oil extracted from oil wells containing a mixture of oil, water, salt, gases and other substances) from oil pipelines in order to recommend blends of chemical additives that would inhibit corrosion of pipelines. It had business relationships with 50 oilfield companies in Saskatchewan and Manitoba and assigned employees to each of them to take liquid samples for analysis. In this case, the employee was assigned to Harvest Energy Corporation and had sampled at the site about 100 times before the incident that caused his death. The liquid sampling occurred at a pressure gauge point inside one of Harvest’s buildings at its facility. The task in which the employee had been engaged was one he had performed successfully on thousands of occasions and would take no more than five minutes. He had received training in the task and testing had found him competent to do so. The defendant’s employees were not required to wear respirators when taking liquid samples unless the client insisted on it. In the vast majority of cases the client, including Harvest, did not. On the incident date, the employee was not wearing a respirator and did not have one with him. When the employee removed the pressure gauge to insert a spigot into the sampling valve, he detected a small leak and went to another area of the building to turn off the inlet valve. However, he had inadvertently removed a retainer ring that held a ball valve designed to restrain the production stream behind it. The ball valve was held in place for a brief period by a coating but when that failed, a deadly high-pressure stream was emitted. The gas would have overwhelmed the employee within minutes but the investigation that followed his death revealed that he may have been trapped in the space where he was trying to turn off the inlet valve. The building was equipped with a hydrogen sulfide monitor alarm that went off after the second valve failure. The employee was not wearing an approved atmosphere-supplying respirator at the time, which would have supplied him with oxygen for 30 minutes. After the defendant requested particulars from the Crown to find out what failed practicable steps it was claiming resulted in the employee’s death, the Crown provided eight amongst which was the defendant’s failure to ensure that the employee was provided with and used a respirator. The issues were: 1) whether the Crown had proven the actus reus of s. 302(2)(a); and 2) if so, whether the defendant had established the defence of due diligence. HELD: The charge was dismissed. The court found with respect to each issue that: 1) the Crown had met the requirements of s. 302(2)(a) and proven beyond a reasonable doubt that the deceased was the defendant’s employee who, during the course of his work, was exposed to a potentially harmful substance that caused his death. The court reviewed the eight particulars and decided that the defendant’s failure to ensure that the employee wear his respirator had caused his death. The court found that even if the employee had been stuck, his respirator would have kept him conscious and given him time to escape; and 2)

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the defence of due diligence was available to the defendant. On the evidence, it met the standard set out in s. 3-80(a) and (b) of the Act that it was not practicable for it do more than what was actually done in this case. The defendant had taken all practical steps to prevent the employee from being exposed to hydrogen sulfide beyond the contamination limit. The potential danger here was not reasonably foreseeable.

R v Hartle, 2018 SKPC 62

Agnew, October 29, 2018 (PC18059)

Criminal Law – Possession of Counterfeit Money Statutes – Interpretation – Criminal Code, Section 448

The accused pled guilty to robbery with an imitation firearm, possession of counterfeit money, breach of probation by failing to keep the peace and failing to report, and failure to attend court. During its sentencing of the accused, the court considered the issue of whether the bills constituting the counterfeit money in this case were to be considered counterfeit in law under s. 448 of the Criminal Code because the accused could not be convicted of the offence if the pieces of paper in question were not capable of constituting counterfeit money. The accused had in his possession ten bills that resembled Canadian currency of $20, $50 and $100 denominations, but bore very prominent markings with a series of Chinese characters in colours contrasting with the normal currency colours and occupying a significant amount of space on each bill’s surface. The Crown provided information from the RCMP that bills of this type with the same serial numbers were known to have passed as genuine. HELD: The bills were found to be counterfeit. The accused was sentenced to three years on the charge of robbery with an imitation firearm and given credit for remand of one year and 27 days; six months consecutive for possession of counterfeit money; two months consecutive for breach of probation by failing to keep the breach, and seven days consecutive for breach of probation for failing to report and failure to attend court. The court found that the bills in this case were capable of constituting counterfeit money. The court found that money is counterfeit if it is reasonably possible that it will be accepted in a commercial transaction by a person of ordinary prudence and vigilance. The intention of the holder or the maker to use the bills as currency is irrelevant but rather it is the potential for harm which is the deciding factor.

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R v Paddy, 2018 SKPC 63

Morgan, October 31, 2018 (PC18058)

Constitutional Law – Charter of Rights, Section 8, Section 24(2)

The accused was arrested by the police for being unlawfully at large contrary to s. 145(1)(b) of the Criminal Code. A Canada-wide warrant had been issued and the police received a tip that he might be staying at a certain address. While the building was under surveillance, they saw the accused knock and be given entry to a ground floor apartment. The accused was wearing a backpack. The officers announced their presence at the door but received no response. The police obtained a Feeney warrant and the accused opened the apartment door. He was arrested and taken to a police car. An officer who had known the accused for a long time and knew of his criminal activities testified that he went into the apartment to check to see whether there were other individuals in it because he knew from experience that it was not uncommon for people to be held against their will if there was potential gang involvement. He was also concerned that other individuals hiding in the apartment could be a danger to the police. While he was in one of the bedrooms, he noticed the accused’s backpack on the floor of a closet. He opened it and found a semi-automatic rifle and ammunition which led to the laying of gun charges against the accused. The defence brought a Charter application alleging breaches of s. 8 on the basis that the search and seizure was unreasonable and sought exclusion of all the evidence. The issues were: 1) after the execution of the Feeney warrant, did the officer have any legal authority to enter and search the apartment; and 2) if so, was the seizure and search of the backpack appropriate. HELD: The Charter application was granted and the evidence of the search was excluded. The court found with respect to each issue that: 1) the general requirement for the police to preserve the peace allowed the officer to enter the premises for the limited purpose of ensuring that there were no other citizens potentially at risk; and 2) the seizure and search of the backpack violated s. 8 of the Charter. It was not incidental to the arrest of the accused. There was no evidence that the accused might have been armed when he entered the apartment and the officer had no idea what was in the backpack and could not justify its seizure because of his opinion that the accused was a criminal. The backpack was closed and its contents were not in plain view. After conducting the Grant analysis, the court found that the breach was egregious and that the impact of it on the accused was serious. The evidence should be excluded because to admit it would bring the administration of justice into disrepute. The officer had to right and duty to do a quick search of the premises, but he went well beyond that and used it as a pretense to search for evidence. The court should dissociate itself from this type of conduct by the police.

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R v Ward, 2018 SKPC 64

Snell, November 6, 2018 (PC18060)

Criminal Law – Evidence – Identity

The accused was charged with stealing money while armed with an imitation firearm contrary to s. 344(1)(b) of the Criminal Code. While wearing a mask, the accused robbed an employee of a hotel of $7,500. The robbery was witnessed by another employee and the owner of the hotel. The employee testified that he recognized the accused’s voice because he had been a customer and had spoken with him numerous times, but did not know his name. The owner also believed that she recognized the accused’s voice. They were able to find a picture of the accused on Facebook and obtained his name. The Crown called a witness who had been living with the accused at the time of the robbery. She was reluctant to testify and had to be arrested to do so. She said that she drove the accused to Regina on the night of the robbery but before they left, the accused left the car for a few minutes, during which time he could have committed the crime. She also said that the accused had thrown clothing out of the car window while they were driving and when the police found some clothing at that spot, the witness identified one of the items recovered as similar to that owned by the accused. On cross-examination, she also said that the accused told her about the robbery. The items of clothing did not bear traces of the accused’s DNA. The issue was whether the accused had been properly identified as the person responsible for the robbery. HELD: The accused was found guilty. Although there were frailties in the evidence, when viewed in its totality, the Crown had proved beyond a reasonable doubt that the accused was the person who committed the robbery.

J.M.S. v J.M.S., 2018 SKQB 240

Krogan, September 7, 2018 (QB18231)

Family Law – Child Custody and Access – Shared Parenting Family Law – Child Support – Imputing Income Family Law – Child Support – Retroactive Family Law – Division of Family Property

The parties began living together in 2006, marred in 2011 and separated

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in 2015. A petition was issued in 2016. Two children were born of the relationship, a daughter in 2009 and a son in 2012. From 2012 to 2016, the petitioner’s income was between $20,065 and $38,876. The petitioner lived two and a half blocks from the children’s school. The respondent provided oil field services through his company until February 2017. He did not provide corporate or personal income tax returns. The owner draws from the company for 2012 to 2014 were between $99,131.79 and $151,172.70. In August 2017, the respondent became a sales representative where he could set his own hours and be home every night. His annual salary was $71,000 plus commission. The respondent had a new partner. He lived in the matrimonial home. Since separation, the respondent parented the children three weekends each month, but he wanted a shared parenting arrangement. During the marriage, the petitioner primarily cared for the children. The petitioner was concerned about the respondent’s drug use, the children’s ability to be exposed to the drugs, and the respondent’s choices to drive after drinking. The respondent had three prior convictions for drinking and driving. The issues concerned: 1) property. The family home and other family property. The value of the family home and equity in it were agreed to. Also, the respondent agreed to reimburse the petitioner for the amounts she contributed to the matrimonial home after separation. The respondent did not provide a property statement. According to the petitioner’s property statement she had $2,817.87 of assets, minus debts, and the respondent had $147,868.68, which included the matrimonial home. The petitioner also requested retroactive child support of $23,303.55 and costs of $4,000 previously ordered against the respondent to be paid out of the property division due to the respondent’s inability or lack of desire to pay the sums; 2) child custody; 3) child support. The petitioner suggests that income of $80,000 be imputed to the respondent, as was done on an interim application, because the respondent did not provide sufficient information to determine his income with precision; and 4) the petitioner requested solicitor-client costs against the respondent because he: refused to provide income information and financial information; failed to participate in the pre-trial conference; and he requested a trial adjournment to secure counsel, but never did. HELD: The court determined the issues as follows: 1) the equalization payment to be paid to the petitioner was $72,525.41. The court found that the total amount owed by the respondent ($105,165.88) should be satisfied out of the equity in the family home. The respondent was ordered to immediately make a cash payment to the petitioner or make inquiries regarding financing. If the respondent was unable to secure refinancing, the house had to be transferred to the petitioner. The court gave the petitioner leave to bring the matter back if the respondent did not take steps in a timely manner; 2) the court found that the children were used to and comfortable with the petitioner as their primary caregiver. The respondent did not live in the same town as the petitioner. The respondent’s new employment required drug testing;

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however, the court did not find similar assurances with respect to his overuse of alcohol. Also, the court found that the respondent’s anger would make the communication necessary for a shared parenting arrangement difficult. The anger would have a significant negative effect on the best interests of the children. The respondent’s emotional health and stability was also a concern for the court. The respondent’s plan for the children if he had them 50 percent of the time was also unknown. Shared parenting was not in their best interests; 3) the court agreed that the respondent’s income should be imputed as $80,000. The petitioner’s 2016 income was $38,866. The respondent was ordered to pay the petitioner $1,095 per month in s. 3 Federal Child Support Guidelines support. The respondent was ordered to pay his share of after-tax child care costs and the remaining s. 7 expenses. The parties were to exchange income tax returns; and 4) the respondent’s conduct was not found to fall within the exceptional category of scandalous, outrageous, or reprehensible behaviour justifying solicitor-client costs. The petitioner was awarded taxable costs against the respondent.

Hicks v R, 2018 SKQB 267

Chicoine, October 3, 2018 (QB18259)

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – Summary Conviction Appeal Constitutional Law – Charter of Rights, Section 7, Section 8, Section 9, Section 10

The appellant was convicted in Provincial Court of driving while his blood alcohol content exceeded .08 contrary to ss. 253(1)(b) and 255 of the Criminal Code and he appealed the conviction. At trial, the defence brought a Charter application alleging that the appellant’s ss. 7, 8, 9 and 10 rights had been breached and seeking remedies under s. 24(2). A blended trial and voir dire proceeded with the Crown calling as its only witness the RCMP officer who had arrested the appellant. He testified that he had seen a number of people walking around the parking lot of a bar and then saw the appellant’s vehicle leave the parking lot at 2:30 a.m. Although he didn’t see any irregularities in the appellant’s driving, he stopped the vehicle to make sure the driver was sober and had a licence and registration. When the appellant pulled over, his vehicle veered off into deep snow and onto the lawn of a residence. The officer spoke to the appellant and could smell alcohol coming from the vehicle. There were two passengers who were clearly intoxicated. The appellant took about five minutes to find his licence and the officer noted that his speech was slurred and his eyes were red and that there was a drink in the cupholder in the console next to the appellant, although he could

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not tell whether it was alcohol. He asked him whether he had been drinking and the appellant said that he had had a few. The officer asked the appellant to accompany him to the police cruiser to provide a sample to ensure that he was okay to drive. The appellant complied and was asked if he understood the demand and he replied affirmatively. The appellant failed the test and the officer informed him he was under arrest for impaired operation of a vehicle and read him his Charter rights and the police warning. He was asked if he understood and he said that he did and replied that he did not want to speak to a lawyer. The officer then made the breath demand. It then took an hour before the samples could be taken because the officer had to drive for 35 minutes to the nearest station and because he had to arrange for a tow truck to come and to deal with the appellant’s passengers, who were unruly, and to inform them that they had to find their way home. The trial judge dismissed the defence’s arguments that the appellant’s Charter rights had been breached and found him guilty. On appeal, the grounds were whether the trial judge had erred in: 1) not holding that there was a violation of s. 10(a) because the officer had not informed the appellant of the reason for detention when he asked him to accompany him to the police vehicle; 2) finding that s. 8 was not violated when the officer failed to determine when the appellant had had his last drink and therefore could not rely on the accuracy of the ASD reading; 3) finding that the Crown had established reasonable grounds to make a s. 254(3) Criminal Code demand; and 4) holding that the breath tests were taken as soon as practicable because over one hour had elapsed between the demand and the first breath sample. HELD: The appeal was dismissed and the conviction upheld. The verdict was reasonable and supported by the evidence and no miscarriage of justice had occurred. The court found with respect to each ground of appeal that the trial judge had not erred in finding: 1) that the officer had given the appellant sufficient notice under s. 10(a) of the Charter as to the reasons for his detention. The appellant would have known because of the time of night and having admitted to consuming alcohol, why he was being directed to the police cruiser; 2) there had been no breach of s. 8 of the Charter. The officer was not obligated to wait for potential mouth alcohol to dissipate before requesting the appellant to use the ASD. The trial judge was entitled to find that the officer was not obligated to make any inquiry about the time of the appellant’s last drink. On the facts, his subjective belief that he could rely on the fail result of the ASD to form the basis for the approved instrument demand was reasonable, and on an objective basis, there was sufficient evidence for the officer to conclude that the appellant had consumed alcohol but insufficient evidence that the consumption was recent; 3) that the Crown had established reasonable grounds as there had been no breach of s. 8 and the officer was entitled to rely upon the fail result to make the s. 254(3) demand, including the other evidence of alcohol consumption noted by the officer; 4) that the first breath sample was taken as soon as practicable in light of the tasks

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that the officer had to perform, the distance to the detachment and the time required for the observation period.

PRI Management v Parent, 2018 SKQB 269

McMurtry, October 4, 2018 (QB18264)

Landlord and Tenant – Residential Tenancies Act, 2006 – Appeal

The landlord appealed the decision of a hearing officer appointed under The Residential Tenancies Act, 2006 that found the respondent tenants did not owe the appellant any damages for the cost of cleaning the carpets after the tenants left. The appellant had relied on a clause in the lease agreement regarding the cleaning, but the officer did not find any such provision in the copy of the agreement filed at the hearing. She further stated that such a provision would be unenforceable in any case as being inconsistent with the Act. The appellant argued that the officer misinterpreted the Act. HELD: The appeal was dismissed. The court found that the officer’s comments were obiter dicta. Her findings were based on the evidence. The appellant had not established that the officer made an error of law or jurisdiction as required by s. 72 of the Act.

H.R., Re, 2018 SKQB 270

Barrington-Foote, October 2, 2018 (QB18258)

Family Law – Child in Need of Protection – Reintegration Family Law – Child in Need of Protection – Supervision Order

The Ministry of Social Services (Ministry) applied pursuant to The Child and Family Services Act for an order that two children were in need of protection pursuant to ss. 11(a)(vi) and 11(b) of the Act. The Ministry initially requested that the children be placed in their custody for a period of four months but later sought only a supervision order. The parents had a history of involvement with the Ministry. The mother’s three older children had been apprehended and returned to her. In November 2008, the father was charged with domestic assault. In April 2009, the older children were apprehended because one of them was left unsupervised with an older male, with whom she was having a sexual relationship to her parents’ knowledge. The children were successfully returned to their parents in October 2011. The current

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matter arose when the parents were drinking, and the father assaulted the mother in October 2017. The children were apprehended. The children were returned to the mother shortly after, but were apprehended again when she breached a condition that she have no contact with the father. The Ministry was prepared to discuss reuniting the family unit in May 2018. The plan was abandoned when the police had to attend the family home and found the mother and father severely intoxicated shortly after the end of a family visit. The father was arrested and held in custody for breach of his conditional sentence order. He was released in June 2018. The family service agreement was signed on June 19, 2018 and visits were reinstated. The children began staying with their parents from Monday to Friday in September 2018. There was no indication presented at the hearing that the mother and father continued to use alcohol. The father testified that he has sought help with his alcohol use since his release from prison. He was also seeing a counselor and psychiatrist to deal with his mental health issues. He was willing to provide toxicology screens and do whatever else the Ministry wanted him to do. The mother testified that she had been assessed by an addiction counselor and was told there was no need for further outpatient treatment. She also provided toxicology screens of her own volition. HELD: The children were found to be in need of protection. They were returned to the care of their mother and father pursuant to s. 37(1)(a) of the Act for a period of two months with conditions. The Ministry argued that the children were in need of protection because the parents’ ability to parent was contingent on them receiving supports provided by the Ministry. The parents both argued that an interim order should be made pursuant to s. 35, rather than finding the children were in need of protection. The court concluded that the parents both lacked credibility. They drank on family visits in the past. Further, they did not take adequate steps to deal with the issues that continued to create a likelihood of harm to their children. The parents were correct in stating that history was not the issue; however, the court did find that their long history of alcohol abuse and domestic violence, with repeated lapses, was relevant evidence to determine whether they were able and willing to provide for their children’s needs. The court concluded that it was more likely than not that the parents were not able to parent the children. Therefore, the children were in need of protection. The court agreed with the Ministry that the supervision, authority, and accountability that would be provided by a supervision order, rather than a supervision agreement, was necessary. The supervision order was made on conditions that included sobriety, weekly toxicology screens, etc.

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101082401 Saskatchewan Ltd. v Tunnels of Little Chicago Association Inc., 2018 SKQB 271

Brown, October 5, 2018 (QB18265)

Civil Procedure – Queen’s Bench Rules, Rule 7-5

The plaintiff brought an action against the corporation, Tunnels of Little Chicago, and the directors of that corporation, alleging breach of contract and breach of trust and seeking an accounting of a reserve fund, alleging breach of obligations under The Trustee Act, 2009. The plaintiff asked for the removal of the individual defendants as trustees of the reserve fund and sought the appointment of new trustees. After disclosure, questioning and pre-trial and before the scheduled trial date, the individual defendants applied for summary judgment pursuant to Queen’s Bench rule 7-5. They argued that no trust was created when they were appointed trustees and that they could not be found to be trustees. As the plaintiff had not alleged any act of bad faith on their parts in its claim, they were given statutory immunity under The Non-profit Corporations Act, 1995. The defendant B.B., the president of the board of Little Chicago, exhibited to his affidavit the agreements in issue between the parties. Those agreements evidence no explicit trust language, nor do they mention that the reserve fund was a trust or that any individual was a trustee. B.B. does not refer to any discussion prior to the drafting of the agreements related to a structuring of the reserve fund as a trust or any intention that the directors would be trustees. The plaintiff asserted that the individual defendants had not met the evidentiary onus upon them to show that there was no reasonable issue to be tried. HELD: The application was granted. The court found that there was no genuine issue requiring trial regarding the creation of an express, implied, resulting or constructive trust with respect to the individual defendants. The individual defendants were removed as defendants to the action as they were not trustees of the reserve fund. The court accepted the defendants’ evidence as presented in the affidavit and found that the plaintiff had not provided evidence to reverse its conclusion that no trust obligations had been imposed on the individual defendants.

Ledcor Design-Build Saskatchewan Ltd. v Comfort Structures Ltd., 2018 SKQB 273

Chicoine, October 10, 2018 (QB18271)

Statutes – Interpretation – Income Tax Act, Section 224(1.3) Builders’ Lien – Priorities

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Construction Law – Builders' Liens – Priorities Between Creditors

The Canada Revenue Agency applied for payment out of court of $42,500. The funds had been paid in by Ledcor, a general contractor, pursuant to s. 56(2) and s. 17 of The Builders’ Lien Act (BLA) for the purpose of removing two liens registered by two subcontractors (Skylift and Caliber) against the title of the owner (DNOW) of a newly- constructed building. Ledcor had entered into agreement with TS&M Supply in 2013 for the construction of the building and Ledcor signed a subcontract agreement with Comfort Structures to provide all labour and equipment required to erect the building for the subcontract price of $225,000. Comfort subcontracted with Skylift and Caliber to provide equipment. Comfort abandoned the project. It had billed Ledcor for $205,000 and the latter had paid $193,700 as at March 2014, leaving a balance of $42,500 unpaid on the subcontract with Comfort. Ledcor withheld the payment of $20,500, being 10 percent of the amount billed to that point, in accordance with the holdback requirements of the BLA. In April 2014, TS&M transferred title to DNOW. In June 2014, Caliber registered a builder’s lien against DNOW’s title, claiming it was owed $126,700 by Comfort on the project. In August, Skylift registered its lien for $34,300 and that month CRA served a requirement to pay upon Ledcor for $593,400 on account of Comfort’s liability under the Canada Pension Plan, Income Tax Act (ITA), etc. Ledcor then applied for an order pursuant to the BLA: 1) vacating the registered claims of lien and the claim by CRA upon payment into court of an amount the court considered reasonable; and 2) that the liens and claim by CRA would cease to attach to the holdback and other amounts subject to a charge, as well as to the lands, and instead become a charge on the amount paid into court. Before the application was heard, CRA notified Ledcor that Comfort owed the Crown amounts deducted from the wages of employees, pursuant to s. 227(4) and s. 227(4.1) of the ITA, in the amount of $451,900 that was deemed to be held in trust pending payment to the Crown. In its application, Ledcor proposed to pay into Court the amount of $42,500 to satisfy both the security for the removal of the lien claims of Caliber and Skylift, as well as the amount claimed by CRA pursuant to its “deemed trust” claim. Ledcor took the position that this was the limit of the amount which it owed to Comfort and was the maximum which Caliber, Skylift or CRA would be entitled to recover. The court determined under s. 56(4), that was a reasonable amount to be paid into court to vacate the lien on the land, but that it was not deciding whether the amount left owing by Comfort was the only amount which the lien claimants and possibly CRA might be entitled to recover, as that issue would be resolved after trial. As it was concerned that the CRA might attempt to make a “deemed trust” claim against the full amount which was to be paid into court to vacate the liens, the court limited the amount which Ledcor would pay into court by making an order that the security would be composed of part cash and part bond. The amount to be deposited to remove the liens was $161,000 plus $40,200 as security for costs, totaling $201,200. Of that file:///LS-FS1/RL-Common/CaseMail/CM20-23.html[2018-11-27 2:48:47 PM] Case Mail v. 20 no. 23

amount, $42,500 was paid into court as cash and the balance was secured by posting commercial bonds. The issue presented by the application by CRA was whether the deemed trust provisions of the ITA, and like provisions of other applicable federal statutes, resulted in the Crown having priority to the funds paid into court by Ledcor to remove the liens of Caliber and Skylift at least to the amount acknowledged by Ledcor to be the balance payable under its contract with Comfort of $42,500. HELD: The application was granted. The court followed the Court of Appeal’s decision in TransGas v Mid-Plains Contractor and found that the CRA was entitled to receive the balance of the funds that Ledcor owed to Comfort as at May 2014, representing both the holdback and the balance owing on the contract.

Montgomery, Re (Bankrupt), 2018 SKQB 274

Thompson, October 10, 2018 (QB18262)

Bankruptcy and Insolvency – Discharge

The bankrupt applied to be discharged. Since his assignment in 2012 he had accumulated income tax, GST and source deduction debts amounting to $98,000. This was his third bankruptcy. He attributed this bankruptcy to health issues, gambling, bad budgeting and marital breakdown. The bankrupt worked as an independent contractor laying concrete when he could secure jobs and had developed cognitive problems. Before his assignment he sold real property he owned for $53,000 and used some of the proceeds to pay off debts but the majority was spent on drinking and gambling. The trustee’s position was that the bankrupt should be discharged on a clear condition. HELD: The application for discharge was refused. The court granted the bankrupt the right to reapply in two years. He had demonstrated at least five conduct issues before and post-bankruptcy, some of which were facts under s. 173 of the Bankruptcy and Insolvency Act. The bankrupt would be a serious risk to future creditors if he was discharged.

Hello Baby Equipment Inc. v BOFA Canada Bank, 2018 SKQB 276

Barrington-Foote, October 11, 2018 (QB18266)

Civil Procedure – Class Actions – Settlement Agreement – Approval

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The plaintiff applied pursuant to s. 38 of The Class Actions Act for an order approving settlement agreements between it and the defendants, Visa, MasterCard and National Bank of Canada (MNV settlement agreements). The action was one of five class actions brought by a consortium of law firms against the same defendants in BC, Ontario, Quebec and Alberta, with BC becoming the lead action with the consent of the case management judges in the other proceedings. The settlement agreements had been approved in BC, Ontario and Alberta. The action was brought on behalf of approximately 700,000 merchants that accepted Visa and MasterCard credit cards as payment for goods and services. The credit card companies charged the merchants a fee, calculated as a percentage of the sale price, that the merchants had to pay each time a credit card was used. This merchant discount fee was made up of an interchange fee paid to the bank that issued the card, a service fee paid to the financial institution that processed the payment for the merchant and a network fee paid to either to Visa or MasterCard. The merchants also had to enter agreements with Visa, MasterCard and the issuing banks in order to accept payments by Visa or MasterCard. They could not impose a surcharge to recoup the merchant discount. The plaintiffs in the Canadian proceedings alleged the agreements between the defendants constituted two separate but interrelated conspiracies that limited competition and forced merchants to pay whatever merchant fees they were charged. They alleged breach of the Competition Act, unlawful means conspiracy, civil conspiracy to injure and unlawful interference with economic interests as well as making alternative claims. Damages in the amount of $5 billion were claimed. Under the MNV settlement agreements, Visa and MasterCard agreed to each pay $19.5 million and National Bank agreed to pay $6 million. Each of these settling defendants agreed to cooperate in the ongoing proceedings against the defendant banks that had not settled. Visa and MasterCard each agreed to modify their no surcharge rules. Notice of the settlement approval hearing was delivered to class members advising them of the terms of the agreements and the request for class counsel fees of up to 25 percent plus disbursements and the right to object. HELD: The application was granted. The court reviewed the four questions set out in Jeffery v Nortel Networks as well as having regard to the conclusions reached in the BC and Ontario actions and answered affirmatively that: 1) the settlement agreements were based on a proper analysis of the claim following a sufficient investigation by counsel for the plaintiffs of sufficient ability and experience; 2) the bargaining was conducted at arms-length on an adversarial basis and there was no reason to believe that the agreements were affected by collusion or extraneous considerations; 3) the class members would be well served by accepting the settlements rather than proceeding with litigation. The monetary benefits under the settlement agreements were small but that had limited significance in the context of the claim as a whole because the agreement did not release the claims for damages against the non-

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settling defendants and they were set for trial. Also, the non-monetary benefits were significant in that the settlement defendants had agreed to cooperate against the non-settling defendants and the credit card companies had agreed to allow merchants to surcharge up to a cap; and 4) the counsel fees were fair and reasonable.

Pambrun v Canada (Attorney General), 2018 SKQB 277

Popescul, October 11, 2018 (QB18267)

Civil Procedure – Class Action – Certification – Designation of Judge Civil Procedure – Queen’s Bench Rules, Rule 1-6, Rule 3-90

The plaintiff, A.H., commenced a proposed class action against the Attorney General of Canada in the Federal Court In January 2018. The plaintiff, J.P., commenced a proposed class action against the Attorney General of Canada in the Court of Queen’s Bench in May 2018. Both actions were purportedly brought on behalf of Indigenous people who were admitted to hospitals funded and administered by the federal government and alleging that the government was negligent. Counsel for the plaintiff in the Federal Court action applied to the Court of Queen’s Bench for an order to stay the Queen’s Bench action on the basis that it was duplicative of the action she had brought earlier. To facilitate the application, her counsel requested that a case management judge be assigned to permit the stay motion. Counsel for the plaintiff in the Queen’s Bench action had not yet brought an application pursuant to s. 4(2) of The Class Actions Act to have a judge designated to consider the certificate application and opposed this application. HELD: The application was granted and the court appointed a judge to be the designated judge. Although J.P. was in breach of Queen’s Bench rule 3-90 (the application to designate a judge to consider the certification application), the court used its discretion under Queen’s Bench rule 1-6(4) to cure the non-compliance by designating the judge to consider the certification application and to hear A.H.’s application for a stay.

Mock v Mock, 2018 SKQB 278

Megaw, October 11, 2018 (QB18270)

Family Law – Child Support – Determination of Income – Imputing Income

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Family Law – Child Support – Interim – Variation

the parties had three children. The oldest was 24 years old and was no longer a child of the marriage. The two younger children were D. and Z., 18 and 17 respectively. D. and Z. lived with their mother, the petitioner, from at least January 2012 until recently. D. moved in with the respondent in August 2017 and attended grade 12. Z. moved in with the respondent on July 8, 2018 and also completed his grade 12 while living with the respondent. The respondent paid child support pursuant to the original order of January 2012. There were no further applications and there were no provisions for the sharing of income information. The petitioner did not want to pay child support to the respondent, indicating her reason was because of what happened with the family debts upon separation. The respondent sought support for the children now living with him, and he also sought that any arrears under the existing support order be extinguished and his obligation thereunder the discontinued. The petitioner responded with questions about the respondent’s historical level of income and whether he should have been paying higher support throughout the years. She opposed an order requiring her to pay support and instead wanted the matter to proceed to a pre-trial conference once full financial disclosure had been provided. The respondent argued that the petitioner should have income imputed to her because she moved when the children left her home and relocated to a rural setting with lower income. The respondent also expanded his application on oral argument to vary the child support obligation he had prior to the children moving in with him. The issues were as follows: 1) the fact of moving the children from Ontario to Saskatchewan; 2) adjusting the respondent’s child support obligation back to January 1, 2017; and 3) the petitioner’s request for a historical adjustment to the respondent’s child support obligation. HELD: The issues were analyzed as follows: 1) the petitioner’s obligation to pay child support for D. arose in September 2017 and ended June 30, 2018. The respondent’s obligation would have continued with respect to Z. If D. decides to attend university in the future, another application can be made in that regard. The court found that the respondent’s line 150 income for 2017 was $55,405.50 and the petitioner’s line 150 income was $54,296. The petitioner was ordered to pay child support to the respondent for D. in the amount of $500.72 per month for September 1, 2017 through to July 31, 2018. The respondent was also ordered to pay child support to the petitioner for Z. in the amount of $452.57 per month for the same time period. The petitioner estimated her income from August 1, 2018 forward was down $20,000. The court concluded that there was not sufficient evidence to determine whether income should be imputed to the petitioner at this stage of the proceedings. The petitioner was ordered to pay child support to the respondent for Z. in the amount of $161 per month. The parties were each responsible for 50% of the children’s s. 7 expenses from September 1, 2017 to August 1, 2018. After August 1, 2018, the respondent was ordered to pay 73% and the petitioner was ordered to pay 27% of Z.’s s. file:///LS-FS1/RL-Common/CaseMail/CM20-23.html[2018-11-27 2:48:47 PM] Case Mail v. 20 no. 23

7 expenses. The issue of imputing income would be heard at a pre-trial and trial, if necessary; 2) the respondent’s application did not request that his child support obligation be reduced back to January 1, 2017. The court indicated that a single application does not automatically result in each and every argument between the parties being available for determination. The application is the defining document that outlines the issues to be determined. The court did not adjust the respondent’s child support obligation back to January 1, 2017; and 3) the petitioner did not bring an application to adjust the respondent’s child support payments in the past. Because an application for variation was served upon the petitioner does not mean that she can erase any and all the issues as a result. The court did not consider the respondent’s level of income prior to September 1, 2017. The respondent was entitled to costs set at $1000 in any event of the cost.

Farm Credit Canada v 101181565 Saskatchewan Ltd., 2018 SKQB 280

McMurtry, October 16, 2018 (QB18268)

Civil Procedure – Pleadings – Statement of Defence – Application to Strike

The plaintiff, Farm Credit Canada, sought an order pursuant to Queen’s Bench rule 7-9 striking the statement of defence and noting the defendants in default of defence. The plaintiff began the action to recover monies owed to it by the defendants arising out of two mortgages and an equipment lease. The corporate defendant 101181565 Saskatchewan entered into the two mortgages in 2011 and 2012 and the other defendants guaranteed the loans. After falling behind in their obligations on the mortgages and the lease, the defendants entered into a forbearance agreement in 2015 and acknowledged the amounts owing to that date. Although some payments were made, the amounts owing increased. In their statement of defence the defendants denied the amounts owing to the plaintiff. The plaintiff argued that a disagreement over the amount owing is not a triable issue and therefore the defendants had no reasonable defence to the action. The defendants requested a reference before the local registrar. HELD: The application was granted. The court struck the statement of defence because a question about the amount owing was not a triable issue. The defendants could not request a reference as they had not complied with Queen’s Bench rule 6-59. They could apply for an accounting under rule 10-43 at the appropriate time, after the plaintiff applied for an order nisi of the mortgages.

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Lattery, Re (Bankrupt), 2018 SKQB 281

Thompson, October 17, 2018 (QB18269)

Bankruptcy – Discharge – Income Tax Debt – Bankruptcy and Insolvency Act, Section 172.1

The bankrupt applied for discharge from his first bankruptcy. He was not entitled to an automatic discharge because the bankrupt owed the estate surplus income payments and the bankruptcy was a tax-driven bankruptcy pursuant to s. 172.1 of the Bankruptcy and Insolvency Act (BIA). The bankrupt owed the Canada Revenue Agency $306,390, with $95,281 being interest and penalties. The income tax was the only proven unsecured claim in the bankruptcy. The bankrupt indicated that his income tax debt was the result of bad advice from his accountant regarding property built using corporate funds. The bankrupt had made some efforts to deal with the income tax debt. For example, in February 2015, he made a proposal to his creditors to pay the administrator $126,000 for the benefit of his creditors. The proposal was accepted by the CRA; however, the bankrupt was not able to sell his house for the listing price and the proposal failed. The bankrupt was 54 years old and had previously worked in construction. His monthly available income pursuant to the Superintendent’s Standards was $1,349.50. The bankrupt did not provide evidence of any health issues, he only indicated that his body was getting too old for construction work. The issue was the appropriate terms of bankruptcy discharge, considering the unique circumstances of this bankruptcy. HELD: The hearing was to assess the honesty of the bankrupt’s conduct in relation to the personal income tax debt. Because the income tax debt was the only proven unsecured claim in bankruptcy, the court would infer that other creditors had been paid while the tax had not. The available options are: to refuse the discharge; suspend the discharge; require conditions of discharge; or require conditions with a suspension pursuant to s. 172.1(3). There is a rebuttable presumption that people who do not pay tax on income as it is earned are dishonest. If the presumption is not rebutted, the objective of deterrence will have more weight than the objective of rehabilitation. The bankrupt’s claim that he was innocently misled by bad accounting advice had to be considered. Other than the bankrupt’s testimony, there was no evidence regarding the accounting advice. Something more was required to rebut the presumption of dishonesty. The bankrupt was still working; therefore, under the circumstances, he had the ability to pay. The Minister of National Revenue sought an order that the bankrupt pay $30,000 to the bankruptcy estate, that the discharge be suspended for 36 months or 12 months if the debt was paid in full by then, and that there be conditions to the discharge. The court found that the bankrupt benefited from the unpaid income tax funds. The following was ordered: the bankrupt was

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to make monthly payments of $833.33 commencing December 1, 2018 until $30,000 was paid to the trustee; the bankrupt was not eligible for discharge until December 1, 2019; the bankrupt would be discharged once the total amount $30,000 had been paid to the trustee; the bankrupt was required to file monthly income and expense statements; and the bankrupt was required to file all income tax returns as they become due.

Dumais v Bolwe, 2018 SKQB 282

Zuk, October 18, 2018 (QB18273)

Landlord and Tenant – Residential Tenancies Act, 2006 – Appeal

The appellant tenant appealed the decision of a hearing officer that granted a writ of possession to the respondent landlord with immediate possession of the rental premises. The respondent had served notice on the appellant requesting that she vacate the premises as the rent was overdue by 15 days. When she did not vacate, the respondent obtained a hearing date from the Office of Residential Tenancies (ORT) and served a summons on the appellant to appear at the scheduled hearing date. The appellant sent an email to the ORT advising that she wanted to attend the hearing but was unable to and requesting an adjournment. She received a computer-generated response from the ORT confirming receipt of her email that advised that a response, if required, would be provided to her by the ORT. No response was given by the ORT and the hearing proceeded in the appellant’s absence. The hearing officer’s decision noted her absence, but found that notice had been properly served, and then found in favour of the respondent. The appellant then filed her appeal and testified that she served the notice of appeal on the respondent at his business office. The respondent stated that he had not been served by the appellant and discovered the appeal was being heard when he spoke to someone in the Sheriff’s office. HELD: The appeal was allowed. The court set aside the decision of the hearing officer and the writ of possession and the matter was referred back to the director to conduct a new hearing. Under s. 70(2.1) of the Act, the director is empowered to adjourn a hearing and therefore had the obligation to respond to a written request by a party to a proceeding requesting an adjournment of a hearing. The director’s failure to reply resulted in a denial of natural justice and the appellant had been denied her right to a fair hearing. Regarding the respondent’s contention that he was not properly served with the notice of appeal, the court concluded that, as he had appeared in chambers and had not objected to the matter proceeding, any irregularity of service was cured by his personal attendance at the appeal.

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Federated Co-operatives Ltd. v Weyburn (City), 2018 SKQB 286

Chicoine, October 25, 2018 (QB18277)

Civil Procedure – Queen’s Bench Rules, Rule 7-2 Contract Law – Interpretation

The plaintiff, Federated Co-operatives, applied for summary judgment pursuant to Queen’s Bench rule 7-2 in an action against the defendant, the City of Weyburn, for damages in the amount of $70,000 for breach of an agreement for the sale of land by it to the defendant in 2009. The plaintiff claimed the defendant breached the agreement by selling a portion of the land to a third party in contravention of a condition that required the defendant to use the land primarily for a park and refrain from selling or allowing commercial development of the property for a period of 10 years. The evidence submitted by the plaintiff’s employee’s affidavit regarding the background to the sale indicated that the plaintiff wanted the land to be used primarily as a park and not to be commercially developed, since it was being sold to the defendant for $200,000, which was $70,000 less than fair market value (FMV). The offer to purchase contained a provision which stated that the purchaser acknowledged the price was below the FMV and in “the event of sale or full commercial development of the property” by the purchaser, it would be in contravention of the agreement and it would be open to the vendor to demand payment of the difference between the purchase price and the FMV at that time. The plaintiff was prepared to accept that some commercial use could occur, such as a concession stand. The defendant requested that the document state the FMV. The plaintiff’s revised the agreement to do so and changed the wording in the provision to: “in case of sale or commercial development”. The sale occurred and the defendant issued a charitable donation receipt for $70,000. Although the defendant admitted a portion of the land had been sold, it stated that no commercial development had taken place on any of the property and it was primarily used as a recreational area as contemplated by the agreement. The defendant argued that the sale of was for the purpose of raising funds to develop the otherwise vacant land into a park and recreational area and the sale had not constituted a breach. The issues were whether 1) this was an appropriate case for summary judgment; 2) the defendant had breached the condition; and 3) the plaintiff was entitled to damages. HELD: The application for summary judgment was granted. The plaintiff’s claim was dismissed and thus no damages were awarded. The court found with respect to each issue that: 1) there was no genuine issue requiring a trial and it could make its determination on the merits based on the affidavit evidence. The case involved the interpretation of

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a term of contract, a situation designed for summary resolution; 2) the true mutual and objective intention of the parties as expressed in the words of the agreement was that the property should be used primarily as a park or recreational area for 10 years. To interpret the provision as prohibiting the sale of any part of it, even if the purpose of the commercial development was to complement the use as a park, would result in a commercial absurdity. The sole purpose of the provision was to ensure that the property would be developed and used as a park. As it was in fact being used that way and there was no commercial development on it, the sale of a portion of it by the defendant did not contravene the provision; and 3) the claim for damages was dismissed.

Venture Construction Inc. v Government of Saskatchewan (Ministry of Highways and Infrastructure), 2018 SKQB 293

McCreary, November 1, 2018 (QB18280)

Civil Procedure – Queen’s Bench Rules, Rule 7-2 Civil Procedure – Limitation Period Contract Law – Interpretation

The defendant applicant, the Government of Saskatchewan, applied for summary judgment against the plaintiff/respondent, Venture Construction. The defendant sought an order that the plaintiff’s claim was statute-barred under The Limitations Act. The plaintiff brought its claim in 2014 for breach of contract and negligence arising from work performed on the surface of a provincial highway in 2010. The defendant argued that the limitation period began to run either in the second half of 2010 when the work giving rise to the claim was first performed or in the spring of 2011 when the plaintiff first discovered deficiencies in the work. The plaintiff responded the period did not begin to run until December 2012 at the earliest, as that was when the defendant provided test results that demonstrated that testing of the work at issue was inadequate. The plaintiff had entered into contract with the defendant in 2010 to widen the shoulders of a highway and rework the roadway. The plaintiff subcontracted with Johnston Bros. to perform the preparatory and subgrade work. The main contract set very specific requirements for the subgrade to meet density and moisture specifications. The contract delegated oversight and control of the work to an engineer, a delegate of the Ministry of Highways. The engineer was responsible to ensure that the plaintiff would only be paid for work performed if the work was complete and complied with the contract’s specifications. The contract also provided that the in certain circumstances the plaintiff would be paid for “extra work” which was considered necessary to satisfactorily complete the project. The

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subcontractor worked on the subgrade until December 2010 when it stopped for the winter. The engineer paid the plaintiff for the work performed until December. In May 2011, the plaintiff began the surfacing work and discovered that the subgrade was improperly compacted and contained excessive moisture and concluded that the work performed by the subcontractor needed to be redone. From May 2011 into 2013, the plaintiff worked to remedy the subgrade and said that if it had refused to remedy it, the entire project would have stopped, resulting in the plaintiff being contractually liable for penalties as a result of delay. It asked the Ministry in July 2011 to produce the moisture and density testing results ostensibly performed on the subgrade in 2010 in order to determine whether the testing was inadequate as suspected. The Ministry told the plaintiff in spring 2011 that the subgrade had become non-compliant due to excessive moisture from the winter/spring runoff. In December 2012, the plaintiff received an unofficial record of the subgrade test results from 2010 that it claimed showed that the Ministry’s testing was inadequate. In December 2013, the plaintiff asked the Ministry to compensate it for expenses it incurred to remedy the subgrade between 2011 and 2013. The Ministry said that it would review the claim and provide a response, but it did not do so, and the plaintiff brought its action. The issues were: 1) whether summary judgment procedure was appropriate to determine whether the plaintiff’s claim was statute-barred; and 2) if so, whether its claim was barred by the Act. HELD: The application for summary judgment was dismissed. The plaintiff’s claim was not statute-barred. The court found with respect to each issue that: 1) pursuant to Queen’s Bench rule 7-2, it was appropriate to determine the issue of whether the plaintiff’s claim was statute-barred. The issue of the limitation period did not require a trial as the key facts were uncontroverted; and 2) under s. 6(1)(a) and s. 6(1) (d) respectively of the Act, the plaintiff had not had subjective nor imputed knowledge that it suffered a loss in 2011 or 2012. It was not legally appropriate for it to commence an action until it completed the work under the contract in July 2013 and it would be appropriate to pursue its claim for extra compensation under the terms of the contract as an alternative mechanism for resolution.

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