top cases
it was registered in Alberta and therefore did not require a front plate but continued questioning Harrison. The officer also conducted a search of the vehicle for
Harrison's driver's licence, leading to the discovery of 35 kilograms of cocaine. "In summary, the price paid by society for an acquittal
in these circumstances is outweighed by the importance of maintaining Charter standards," wrote McLachlin. "That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded." However, the court used its new approach to uphold
convictions in three companion cases, R. v. Grant, R. v. Shepherd, and R. v. Suberu. Queen's University law professor Donald Stuart, who
represented the Canadian Civil Liberties Association as an intervener in Grant, embraced the court directive. "I think it's quite an imaginative judgment and it recog-
nizes that there have been problems in both of these areas, and the court's spent a lot of time and taken a lot of care in trying to come up with criterion that are more sensible and more workable," said Stuart.
Nolan v. Kerry (Canada) Inc.
Employers across the country were reassured this year by the top court's ruling on pension plan contribution holidays. The August decision in Nolan v. Kerry (Canada) Inc.
asserted that a clause in the company's pension plan indi- cates that contributions are based on actuarial calculations aimed at meeting future retirement benefits. "The clause therefore does not prevent the company
from taking a contribution holiday where the actuary certifies that no contributions are necessary to provide the required retirement income to members," wrote Jus- tice Marshall Rothstein for the majority, backing a 2007 Ontario Court of Appeal ruling. The case arose after beneficiaries raised objections about
the use of a $1.5-million surplus from Kerry's defined-ben- efit plan to align with obligations for defined-contribution aspects of the pension plan. The company created its defined-contribution pension plan in 2000, after which it started taking contribution holidays by using extra funds from the defined-benefit scheme. Kerry lawyer Peggy McCallum, a partner at Fasken Mar-
tineau DuMoulin LLP, said employers breathed a sigh of relief at the ruling. "They can take a great deal of comfort in terms of the way
many or most of them have been administering their plans and have been funding their plans," said McCallum. Justice Louis LeBel, however, issued a dissenting opinion.
He said the defined-contribution plan members should not be able to take advantage of the defined-benefit scheme.
Ari Kaplan, a partner at Koskie Minsky LLP who repre-
sented the appellants in the case, suggested the decision sends the wrong message. He said it will "accelerate the shift from defined-benefit to defined-contribution pension plans." He said the practice equates to "raiding pension plans." Said Kaplan, "That is not the kind of message you want
to send when attracting employees." MacNeil v. Bryan
A landmark $18.4-million award in May came as good news to the families of victims of motor vehicle collisions who face major challenges in caring for their injured loved ones. Superior Court Justice Peter Howden allocated $15 mil-
lion of an $18.4-million overall award for the long-term care of Katherine-Paige MacNeil, who suffered catastrophic injuries in a 2002 crash. But the judge also set aside funds to MacNeil's brother and parents, who took care of her for seven years after the crash. "The decision shows that our courts are now willing
to give greater recognition to parents who shoulder the burden of caregiving," said John McLeish of McLeish Orlando LLP, who represented the MacNeil family. MacNeil, 15 at the time, was in the back seat of a vehi-
cle driven by Trevor Bryan when the crash happened in August 2002. According to the court decision, the vehicle went through a stop sign and smashed into a ditch before coming to rest in a field. Because of the crash, MacNeil needs to be cared for around the clock. The Ministry of Transportation was named in the law-
suit — along with Bryan and his grandmother, the owner of the vehicle — due to an alleged lack of signage near the crash site. The ministry came to a settlement at the start of the trial through a Mary Carter agreement. Included in the award was $190,300 for the loss of
future interdependent relationship, which represents the amount an individual could have saved through living with a spouse or common-law partner. Richard Halpern, who spoke to Law Times in September
as chairman of the Ontario Bar Association's automobile insurance working group, said it was vital for the court to recognize the contribution made by family members to victims of catastrophic injuries. "Historically, courts may have been a little cheap in
recognizing the enormous burden and contribution that family members have to make when loved ones suffer catastrophic brain injuries like in [the MacNeil] case," said Halpern. "It is a 24-hour-a-day, gruelling job. If you were to expe-
rience it personally, it brings tears to your eyes when you see what these people have to do for their disabled daugh- ter in this case. It is very difficult. So I think the courts just have recognized the actual damages."
2009 top news & newsmakers 9
