Law Times

Law Times • march 20, 2017 Page 13 www.lawtimesnews.com Supreme Court of Canada Insurance AUTOMOBILE INSURANCE Underinsured motorist endorsement Future CPP disability benefits did not reduce amount payable by insurer Plaintiff 's action against de- fendant tortfeasor with respect to motor vehicle accident was allowed with award of dam- ages exceeding limits of tortfea- sor's insurance policy. Plaintiff claimed shortfall from his own insurer under SEF 44 Fam- ily Protection Endorsement, but insurer took position that En- dorsement's deduction of future disability benefits from "any policy of insurance" applied to Canada Pension Plan (CPP) disability benefits. Trial judge ruled that CPP benefits were not deductible from shortfall owed to plaintiff by insurer. Insurer's appeal was allowed. Plaintiff ap- pealed. Appeal allowed. Ordi- nary meaning of words at issue was clear, reading Endorsement as whole. Average person apply- ing for this additional insurance coverage would understand "policy of insurance" to mean optional, private insurance con- tract and not mandatory statu- tory scheme such as CPP. Insurer could not rely on its specialized knowledge of jurisprudence to advance interpretation that went beyond clear words of policy. Precedent relied on by insurer and appellate court with respect to meaning of "policy of insur- ance" was decided in very differ- ent interpretive context and did not support alternative reason- able interpretation. Future CPP disability benefits did not reduce amount payable by insurer. Sabean v. Portage La Prai- rie Mutual Insurance Co. (2017), 2017 CarswellNS 38, 2017 CarswellNS 39, 2017 SCC 7, 2017 CSC 7, McLachlin C.J.C., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellNS 472, 2015 NSCA 53, Beveridge J.A., Hamilton J.A., and Scanlan J.A. (N.S. C.A.). Public Law ELECTIONS Advertising Election Act (B.C.) registration requirement should be imposed only on those paying for advertising services or receiving services Section 239 of BC's Election Act (Act) required everyone spon- soring election advertising dur- ing campaign to register with province's Chief Electoral Offi- cer (CEO), regardless of amount spent during writ period. 2010 Report of CEO did not distin- guish between sponsors con- ducting full media campaigns and individuals engaged in such activities as putting bumper stickers on cars, posting hand- written signs in windows, or wearing T-shirts with political messages (individuals). Non- profit association brought un- successful application for decla- ration that registration require- ment in respect of sponsors of election advertising spending less than $500 in given cam- paign period infringed s. 2(b) of Canadian Charter of Rights and Freedoms, was not saved by s. 1, was of no force and ef- fect, and should be read down to include exception for indi- viduals. Trial judge and major- ity of Court of Appeal found that s. 239 infringed s. 2(b), but that infringement was justified under s. 1. BC Attorney General (A-G) took position that s. 239 did not force individuals to register. Association appealed. Appeal dismissed. Individuals who neither paid others to ad- vertise nor received advertising services without charge were not "sponsors" and could trans- mit their own points of view by posting handmade signs in windows, putting bumper stick- ers on their cars, or wearing T- shirts with political messages on them, without registering under Act. Act was consistent with position taken by A-G. Courts below did not determine scope and nature of limitation on free expression imposed by s. 239 but accepted CEO's interpreta- tion as including individuals in definition of "sponsor". When words of s. 239 were read in en- tire context and in grammatical and ordinary sense harmoni- ously with scheme of Act, object of Act, and intention of Parlia- ment, it was clear that provi- sion was directed only at those undertaking organized adver- tising campaigns who paid for advertising services or received those services without charge as contribution. While defini- tion of "election advertising" in s. 228 was broad enough to cov- er expressions by individuals, ordinary meaning of "sponsor" was not. Act defined "sponsor" as "individual or organization who pays for election advertis- ing to be conducted". Interpret- ing s. 239 as imposing registra- tion requirement only on those who pay for advertising services or receive services from others in undertaking election adver- tising campaigns was consistent with purpose of Act, intention of legislature, and legislative history. B.C. Freedom of Informa- tion and Privacy Assn. v. Brit- ish Columbia (Attorney Gen- eral) (2017), 2017 CarswellBC 161, 2017 CarswellBC 162, 2017 SCC 6, 2017 CSC 6, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1035, 2015 BCCA 172, Newbury J.A., Saunders J.A., and Lowry J.A. (B.C. C.A.). Federal Court of Appeal Commercial Law AGRICULTURAL PRODUCTS Miscellaneous Respondent did not transport cows in violation of Health of Animals Regulations (Can.) Corporate respondent's employ- ee was charged with transport- ing cows in violation of s. 138(4) of Health of Animals Regula- tions. Employee attempted to raise two cows that were lying on side but without success. Inspec- tor found that there was tram- pling and muscle tremors and that cow was unfit for transport. Canada Agricultural Review Tribunal found that corporate respondent did not transport cows unfit for transport. Attor- ney General of Canada brought application for judicial review. Application dismissed. Decision was reasonable. Regulations did not retain capacity for cow to rise independently as sole crite- rion for determining fitness for transportation. It was therefore up to carrier during transport and tribunal to assess whether cow was unfit given context of each case. Canada (Procureur gé- néral) c. L. Bilodeau et Fils Ltée (2017), 2017 CarswellNat 108, 2017 CAF 5, Scott J.A., Richard Boivin J.A., and De Montigny J.A. (F.C.A.). Criminal Law PRISONS AND PRISONERS Regulation Independent chair reasonably applied modified objective standard for applicant's conduct Correctional service officers found and seized four gallons of liquor in applicant's cell. Af- ter discovery of liquor, applicant asked to be placed in administra- tive segregation for fear of safety. Applicant pleaded not guilty to disciplinary offence and raised defence of duress. Applicant tes- tified that inmates used his cell to manufacture liquor, forcing him to keep it in his cell in ex- change for reduction of debts he contracted while in prison and that he saw no other way out but to accept liquor. Applicant was convicted of offence. Ap- plicant's application for judicial review was granted. Attorney General of Canada appealed. Appeal allowed. Independent chairman did not err in failing to analyze last three criteria in modified objective standard of defence of duress. Independent chair reasonably applied modi- fied objective standard for appli- cant's conduct. Applicant knew solution but ignored it when he breached establishment rules by keeping prohibited liquid mixture in his cell. Independent chairman concluded that appli- cant knew and could seek pro- tection, because that it exactly what he did once seizure was made. Canada (Procureur gé- néral) c. L'Espérance (2016), 2016 CarswellNat 7426, 2016 CAF 306, Noël C.J., Johanne Trudel J.A., and Boivin J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 12, 2016 Carswell- Nat 1950, 2016 FC 19, 2016 CF 19, Sylvie E. Roussel J. (F.C.). CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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