Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Damages PERSONAL INJURIES Ex turpi doctrine barred plaintiff from recovering damages for time spent in prison Province appealing and plaintiff cross-appealing decision reduc- ing plaintiff's award of damages for sexual assault by prison offi- cial. Plaintiff successfully suing for damages based on psycho- logical evidence that assaults caused him to start using heroin and exacerbated his subsequent substance abuse and criminal- ity. Award including damages for past wage losses which included compensation for time spent in prison. Award reduced by Court of Appeal for past wage loss in order Torts VICARIOUS LIABILITY Attorney General vicariously liable for damages resulting from accident which occurred during police chase Attorney General of British to compensate only for time spent in prison after eligibil- ity for parole and reduced future wage loss award to reflect high risk of recidivism. Province suc- cessfully appealing to Supreme Court of Canada. Ex turpi doc- trine barred plaintiff from recov- ering damages for time spent in prison because it would consti- tute a rebate of natural conse- quence of penalty provided by criminal law. Awarding damages for any period of incarceration would create conflict between criminal and civil law contrary to judicial policy Columbia found vicariously lia- ble to pay all damages resulting from death of driver in crash that occurred during police chase of stolen car. Fourteen-year-old uninsured driver of stolen vehicle found 90% at fault. Police officer involved found 10% at fault. Attorney General's vicarious lia- bility not limited to proportion of damages attributed to police officer. Police officers exempted from liability to pay damages resulting from acts of simple neg- ligence in performance of their duties, but victim protected by transfer of the tortfeasor's lia- bility to the Attorney General. Damages deemed to be indivis- ible and victim entitled to claim full compensation from Attorney General. McVea (Guardian ad Litem of ) v. B. (T.) (Feb. 7, 2008, S.C.C., McLachin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31515) Appeal from 137 A.C.W.S. (3d) 656; [2005] 8 W.W.R. 149; 345 W.A.C. 144; 41 B.C.L.R. (4th) 43 dismissed. Order No. 008/042/001 (10 pp.). underlying ex turpi doctrine. Novus actus interveniens doctrine should not be conflated with the ex turpi doctrine. Nor was application of novus actus doctrine appropriate. Evidence established there was chain of causation between sex- ual assaults and plaintiff 's crimi- nal activity and incarceration. Although award for past wage loss due to incarceration could be justified by exceptional con- siderations, no exception existed in this case. Court of Appeal not erring in reducing award for loss of future earnings to reflect high risk of recidivism identi- fied by psychological evidence. No indication that in awarding damages for future wage loss trial judge excluded time for future imprisonment based on high risk of that occurring. Zastowny v. MacDougall (Feb. 8, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31552) Appeal from 149 A.C.W.S. (3d) 807; 269 D.L.R. (4th) 510, 40 C.C.L.T. (3d) 240; 371 W.A.C. 191 was allowed in part. Order No. 008/042/002 (27 pp.). FEDERAL COURT OF APPEAL Crown CROWN CORPORATIONS Minister not obligated to consult VIA Rail Board of Directors before terminating respondent Attorney General of Canada appealed decision setting aside respondent's second termination from position as Chairman of Board of Directors of VIA Rail due to misconduct. Respondent's first termination set aside due to Cabinet's failure to provide rea- sons or allow opportunity to be heard. Minister met with respon- dent after respondent provided submissions but second termi- nation order issued. Attorney General's appeal of decision setting aside first termination upheld following adoption of second termination order made without consultation of VIA Rail Board of Directors. Second termination order set aside but Attorney General's appeal allowed. Although Financial Administration Act (Can.), APRIL 7, 2008 / LAW TIMES COURT DECISIONS CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. requires appropriate Minister to consult VIA Rail's Board of Directors before appointing officer-directors and s. 24(1) of Interpretation Act (Can.), prescribed that power to name public officer during pleasure includes power of termination, application judge erring in find- ing that combined effect required Minister to consult Board of Directors before termination. Clear and unambiguous text of provisions and legislative context not supporting such an interpre- tation. Minister not having obli- gation to consult VIA Rail Board of Directors before terminating respondent. Canada (Attorney General) v. Pelletier (Jan. 9, 2008, F.C.A., Decary, Letourneau and Noel JJ.A., File No. A-221-07) Order No. 008/024/157 (21 pp.). FEDERAL COURT Aboriginal Peoples GENERAL Election Appeal Board did not have jurisdiction to suspend councilors from office SC First Nation Election Appeal Board ("EAB") erred in find- ing that s. 58 of Election Law had been violated when regis- tered voters proceeded to vote after 6:00 p.m.. EAB did not err in ruling that N was not entitled to become member of council as he had existing crimi- nal record which included indict- able offence. EAB did not have jurisdiction to direct Electoral Supervisor in all future elections to consult with EAB Chairperson respecting poll closure. EAB did not, on facts of case, have juris- diction to suspend from office councilors who were declared elected. Judicial review allowed. Samson Indian Band v. Bruno (Jan. 3, 2008, F.C., O'Keefe J., File No. T-1769-06) Order No. 008/024/167 (39 pp.). Constitutional Law CHARTER OF RIGHTS Section 41(b.1) of Marihuana Medical Access Regulations violated s. 7 of Charter Marihuana Medical Access Regulations (Can.), permit cer- tain persons to apply to Minister of Health for authorization to possess dried marihuana. Section 41(b.1) of Marihuana Medical Access Regulations which lim- ited license holder to produce for only one user, was restriction on liberty and security rights of applicants under s. 7 of Canadian Charter of Rights and Freedoms. www.lawtimesnews.com Section 41(b.1) of Marihuana Medical Access Regulations was arbitrary and thus contrary to principles of fundamental justice and was not rationally connected to objectives stated for it and its restraint was disproportional to any state interests promoted. Section 41(b.1.) of Marihuana Medical Access Regulations was declared to be of no force and effect on basis that it violated s. 7 of Charter. Applications for designation of C. as applicants' producer ordered referred back to Minister for reconsideration. Sfetkopoulos v. Canada (Attorney General) (Jan. 10, 2008, F.C., Strayer D.J., File No. T-1415- 04) Order No. 008/024/173 (24 pp.). ONTARIO CIVIL CASES Assessment Assessed ASSESSABILITY Seasonal trailers properly included in property tax assessment value upon which owner of underlying land must pay taxes properly included value of third-party owned seasonally- used trailers which were placed upon or affixed to land. Section 19(1) of Assessment Act (Ont.), contemplates assessment of all that falls within expanded defini- tion of land despite use of words "fee simple". Seasonal trailers were properly included in appel- lants' property tax assessment. Assessment of 229 seasonal trail- ers was not direct tax and was not therefore beyond legislative competence of province. Carsons' Camp Ltd. v. Municipal Property Assessment Corp. (Jan. 14, 2008, Ont. C.A., Simmons, MacFarland and Rouleau JJ.A., File No. C46147; C46186) Appeal from 153 A.C.W.S. (3d) 17; 54 O.M.B.R. 399; 27 M.P.L.R. (4th) 217; 49 R.P.R. (4th) 288 allowed. Order No. 008/015/139 (10 pp.). Conflict Of Laws FOREIGN LAW No error in dismissal of motion to stay action based on forum conveniens Action by Canadian-based respondents for damages for def- amation related to article which appeared in appellant's newspa- per in India and reproduced in Canadian papers and on appel- lant's website. Motion judge did not err in dismissing appellant's motion to stay action on ground that India was more appropriate forum. Bains v. Sadhu Singh Hamdard Trust (Jan. 24, 2008, Ont. C.A., Borins, Cronk and Gillese JJ.A., File No. C47027) Appeal from 156 A.C.W.S. (3d) 809 dismissed. Order No. 008/028/052 (2 pp.). Contracts INTERPRETATION No ambiguity in language of agreement Motion judge did not err in granting summary judgment. Matter fell to be determined on interpretation of clause 5.01 of Agreement, specifically, whether City of Vaughan granted density increase in final form on L.'s ini- tial application at time amend- ments and approvals were passed, thereby entitling respondents to bonus as set out in clause 5.01. There was no ambiguity in lan- guage of Agreement and there- fore there was no need to look to extrinsic evidence for interpreta- tive aid. There were no material facts in dispute requiring trial. Disera v. Liberty Developments Inc. (Jan. 21, 2008, Ont. C.A., Simmons, MacFarland and Rouleau JJ.A., File No. C47180) Appeal from 157 A.C.W.S. (3d) 86 dismissed. Order No. 008/024/046 (6 pp.). Corporations DIRECTORS Director not liable for company's debt Claim on contract and installation of windows. Personal defendant was for supply direc- tor of corporate defendant and $2,600 deposit was placed on personal defendant's credit card. Windows were manufactured by plaintiff, dispute subsequently arose and windows were not installed. Balance of purchase price not paid and plaintiffs claimed $10,000. Judgment for plaintiff against corporate defen- dant. Personal defendant not liable. Plaintiff knew defendant was corporation from start of claim and no basis for personal liability was asserted. Director not liable for company's debt unless there was fraud or dis- honesty. Consumers Choice Home Improvements Corp. v. Jahangiri (Dec. 5, 2007, Ont.S.C.J. Small Claims Court, Ashby D.J., File No. SC-02-00068805) Order No. 008/010/070 (3 pp.). Family Law CHILD WELFARE Three-year-old child made Crown ward without access Society was granted Crown ward- ship without access of child, aged three. Parents had been provided substantial supervised access to

• Cover