Law Times

Law Times • augusT 4, 2014 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Evidence CHARACTER EVIDENCE Deceased's record dated and had limited probative value Accused charged with second de- gree murder. Accused took part in planned robbery of deceased, a drug dealer. Accused testified that after robbery was aborted deceased approached him threat- eningly and displayed gun in his waistband. Accused then shot de- ceased repeatedly. Defence sought to lead evidence that deceased had criminal record for firearms. Trial judge excluded evidence of de- ceased's record. Majority of Court of Appeal dismissed accused's ap- peal. Majority held that deceased's record was dated and had lim- ited probative value and evidence would have protracted trial and distracted jury. Accused's fur- ther appeal to Supreme Court of Canada dismissed. Trial judge did not err in finding that minimal probative value of evidence was substantially outweighed by its prejudicial effect. R. v. Jackson (Apr. 23, 2014, S.C.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35622) Deci- sion at 109 W.C.B. (2d) 558 was affirmed. 112 W.C.B. (2d) 674. FEDERAL COURT OF APPEAL Administrative Law BOARDS AND TRIBUNALS Administrative tribunal's interpretation of own statute reviewable on standard of reasonableness Section 16(1) of Canada Trans- portation Act (CTA) speci- fied that, subject to Canadian Transportation Agency rules, two members constituted quo- rum. In 2013, respondent Ca- nadian Transportation Agency amended own General Rules by adding Rule 2.1 stating that one member constituted quorum in all proceedings before agency. Appellant granted leave to ap- peal on question of law, whether respondent permitted to amend quorum rule without approval of Governor in Council (GIC). Ap- pellant submitted that Rules were regulations within meaning of s. 36(1) of Act and, as such, could only be made with approval of GIC. Appellant also submitted that since Rules originally made with approval of GIC, they only be amended with approval of GIC. Respondent claimed au- thority to enact rule according to rule-making power in s. 17 of Act. Appeal dismissed. Administra- tive tribunal's interpretation of own statute reviewable on stan- dard of reasonableness. Under s. 17, respondent granted power to make rules respecting variety of matters, including number of members required to hear any matter or perform any function. Whether respondent required approval of GIC depended on interpretation of "regulation" in s. 36(1). While s. 2(1) of Inter- pretation Act (Can.), and s. 2(1) of Statutory Instruments Act (Can.), both provided that "regu- lation" included rule, definitions limited to only those statutes themselves. Contrary intention evidenced in CTA, which did not use words "regulation" or "rule" interchangeably. Act used "rule" only for internal procedural or non-adjudicative administrative matters, such as quorum. Inter- preting s. 17 as granting power to make rules without approval of GIC reasonable on textual, con- textual and purposive analysis. Lukács v. Canadian Transpor- tation Agency (Mar. 19, 2014, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Ed- mond P. Blanchard J.A. (ex of- ficio), File No. A-279-13) 239 A.C.W.S. (3d) 2. ONTARIO CIVIL DECISIONS Bankruptcy and Insolvency Civil Procedure DISCOVERY Documents relevant to product liability and duty to warn causes of action Lawsuits arose out of airline crash in which people died. Appel- lants manufactured engine that failed and was identified as one of causes of crash. Appellants were ordered to produce documents concerning parts, counterweights and accidents. Documents were found to be relevant to show ap- pellants had propensity to man- ufacture improperly and that they knew of issues with similar systems. Appellants complained they were being asked to produce large number of documents over substantial period of time. Appel- lants appealed. Appeal dismissed. There was no error in assessment of relevancy. Documents were relevant to product liability and to duty to warn causes of action pleaded. Appellants were in reg- ulated field where information was routinely updated as state of knowledge advanced. Without evidence from appellants with description of hardship to coun- terbalance relevancy and discre- tionary factors, there was no basis to conclude there was error of law, principle, or appreciation of facts. Hudson v. ATC Aviation Technical Consultants (Mar. 4, 2014, Ont. S.C.J., Myers J., File No. CV-09- 37858800-0000) 239 A.C.W.S. (3d) 54. Plaintiffs deemed to have waived any solicitor-client privilege they had Defendant lawyers brought mo- tion to require plaintiff to re- attend for discovery to answer questions previously refused and to produce associated relevant documents. Master dismissed motion on basis that plaintiffs had not waived solicitor-client privilege over communications they had with their lawyers. De- fendants appealed. Appeal al- lowed. Master erred in holding that solicitor-and-client privilege had not been waived. Master erred in not balancing principles of fairness and consistency. Plain- tiffs were deemed to have waived any solicitor-client privilege they had given claim that they relied, to their detriment, on evidence given by defendant lawyers. Plaintiffs put state of mind in is- sue. Plaintiffs must have spoken and/or written to their own law- yers. Plaintiffs were required to answer questions regarding com- munications with their lawyers that were relevant to their alleged reliance on defendant lawyers and they were to produce associ- ate relevant documents. Roynat Capital Inc. v. Repeatseat Ltd. (Jan. 29, 2014, Ont. S.C.J., Greer J., File No. CV-09-385219) Decision at 223 A.C.W.S. (3d) 52 was reversed. 239 A.C.W.S. (3d) 60. Contracts BUILDING CONTRACTS Subcontractor had no obligation to correct deficien- cies arising from others' work Subcontractor performed certain exterior work on property own- er's condominium construction project. Owner complained about various cosmetic defects. Subcon- tractor remedied certain defects, but others were due to problems with prior construction. Owner was unwilling to pay extra to rem- edy underlying problems. Owner refused to make final payment to subcontractor. Subcontractor brought action against owner for payment of amount owing. Ac- tion allowed. Subcontractor was awarded $39,728.58 as claimed. Subcontractor had performed its contractual obligations, subject to concerns about deficiencies. Subcontractor did not have ob- ligation to take steps to correct deficiencies arising from others' work. Subcontractor had offered to perform extra work to remedy underlying problems, but owner had refused. After correcting certain other deficiencies, sub- contractor's work was as good as it could have been. Window & Door Centre Inc. v. Pine Lake Properties Inc. (Mar. 21, 2014, Ont. S.C.J., A.D. Grace J., File No. 8394-12) 239 A.C.W.S. (3d) 79. Family Law ARBITRATION Fact arbitrator did not make calcula- tion himself did not nullify award Arbitration award provided that wife to pay husband $106,942. Wife contended that arbitration award was never finalized. Hus- band brought motion for order that arbitration award be en- forced. On recording of conversa- tion parties had with arbitrator, arbitrator stated that he had fin- ished arbitration on equalization payment. Parties filed net family property statements with arbitra- tor. It was intention of parties that wife retain matrimonial home and, in order to do so, she must pay husband $109,866.25 for his interest less $2,923.88. Wife was also entitled to exclude $18,000 from equalization, which would involve further credit to her of $9,000 against amount she owed husband with result that wife owed equalization payment to husband of $97,942.37. While it would have been helpful if arbi- trator had made this calculation himself, fact that he did not do so did not nullify award. Sidhu v. Sidhu (Mar. 13, 2014, Ont. S.C.J., Van Melle J., File No. FS-07-059899-00) 239 A.C.W.S. (3d) 106. and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. 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