Law Times

Law Times • apriL 10, 2017 Page 17 www.lawtimesnews.com CASELAW Supreme Court of Canada Civil Practice and Procedure LIMITATION OF ACTIONS Real property Claimant could not establish uninterrupted adverse possession over disputed lot In 1930, disputed area escheated to Crown. Appellants, M family, commenced action seeking dec- laration that provincial Crown did not own land and could not transfer it to city, and petitioned for declaration of ownership of land in fee simple in posses- sion. M family claimed that C family lived on disputed area starting in 1909 and G family moved into C home and lived there until 1922. Municipality brought summary trial applica- tion seeking dismissal of related action. Trial judge found there was approximate four-year pe- riod between last evidence of C arguably living on disputed area and first evidence of G family as residents in area. In second hearing, M family produced further evidence pursuant to s. 11 of Land Title Inquiry Act. Municipality's motion for sum- mary judgment was granted. M family successfully appealed. Municipality appealed. Appeal allowed. Decisions of chamber s judge was restored. Given chambers judge's finding — un- tainted by palpable and overrid- ing error — that M family had not established uninterrupted adverse possession over disput- ed lot from 1916 through 1920, it was unnecessary to address submissions of municipality and of Attorney General of Brit- ish Columbia regarding wheth- er M family's claim was defeated for lack of registration. GM held no interest in disputed lot and therefore no interest therein passed to M family. Nelson (City) v. Mowatt (2017), 2017 CarswellBC 400, 2017 CarswellBC 401, 2017 SCC 8, 2017 CSC 8, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellBC 611, 2016 BCCA 113, Saunders J.A., Chiasson J.A., and Harris J.A. (B.C. C.A.). Criminal Law OFFENCES Murder New evidence about witness testimony was admitted on appeal Accused and co-accused were convicted of second degree mur- der and assault with weapon arising out of shooting outside of casino following altercation be- tween deceased and complain- ant's group and accused and co- accused's group. On appeal from convictions, accused applied to admit new evidence about tes- timony given by eyewitness S during co-accused's retrial and two statements given by S to police, but not disclosed to ac- cused until after his first appeal had been dismissed. S had stated that man with ponytail, identi- fied as accused, was not shooter. Appeal judge held that weighed against evidence of identifica- tion based on inferences drawn from arguably ambiguous state- ments made afterwards by ac- cused, S's eyewitness evidence that man with ponytail was not man who shot deceased bore directly on identity of shooter and could therefore be of criti- cal importance at any retrial. S's police statements, or at least his KGB statement, could well have raised reasonable doubt as to ac- cused's identification as one of shooters in mind of trial judge, particularly given paucity of other evidence upon which that judge relied to assure himself of that element. New evidence was admitted, accused's appeal was allowed, and new trial was ordered. Appeal by Crown dis- missed. In all of circumstances, court was satisfied that S's KGB statement was admissible, was reasonably capable of belief, and could reasonably have affected outcome. R. v. Brown (2017), 2017 Car- swellAlta 255, 2017 CarswellAl- ta 256, 2017 SCC 10, 2017 CSC 10, Abella J., Moldaver J., Kara- katsanis J., Gascon J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 1190, 2016 ABCA 192, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Myra Bielby J.A. (Alta. C.A.). Federal Court of Appeal Civil Practice and Procedure PLEADINGS Amendment Motion to amend statement of claim in patent infringement action was dismissed Plaintiffs sought leave in Federal Court to amend their statement of claim in patent infringement action to add three individuals as additional defendants and to add claim for joint and several liability. Motion was dismissed by prothonotary of Federal Court. Appeal was dismissed. Plaintiffs appealed. Appeal dis- missed. Federal Court did not err in law in identifying and ap- plying legal principles concern- ing amendment of pleadings, in its understanding of case law regarding personal liability of directors and officers, or with respect to legal principles to be applied regarding personal li- ability of third parties. There was no palpable and overriding error. Federal Court took into account all relevant pleadings. Facts set out in proposed plead- ing did not establish type of conduct necessary for personal liability. Pleaded facts were to effect that each of corporate defendants infringed plaintiff 's patent, but these were not suf- ficient to support claim for joint and several liability. NOV Downhole Eurasia Ltd. v. TLL Oilfield Consulting Ltd. (2017), 2017 CarswellNat 277, 2017 FCA 32, David Stratas J.A., Mary J.L. Gleason J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 Carswell- Nat 2276, 2016 CarswellNat 3772, 2016 FC 685, 2016 CF 685, B. Richard Bell J. (F.C.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Termination of employment Adjudicator's determination was unreasonable Grievor was federal public ser- vant, whose last assignment in- volved working as civilian clerk at RCMP district office. RCMP management spoke to grievor about certain issues, and when that did not lead to improve- ment in her performance and behaviour, levied three and then 10-day suspension. Security re- view process culminated in re- vocation of grievor's reliability status, and termination followed as grievor's position required that she possess valid reliability status. Seven grievances filed by grievor were referred to adju- dication, and adjudicator dis- missed grievances. Grievor's ap- plication for judicial review was dismissed. Grievor appealed. Appeal allowed. Six of grievor's grievances were remitted for re-determination. Adjudicator's determination that grievor was not subject of disguised disci- pline was unreasonable. Secu- rity review process was used as means to terminate grievor's employment because her su- pervisors were dissatisfied with her workplace performance and behaviour. Grievor should have been accorded right to have reasons for her termination re- viewed under cause standard. Interpretation of Public Service Labour Relations Act adopted by adjudicator deprived grievor of this right and, if allowed to stand, would largely hollow out protection from dismissal with- out cause afforded to employees under Act. Bergey v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 276, 2017 FCA 30, M. Nadon J.A., Johanne Gauthier J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 1511, 2015 Car- swellNat 8344, 2015 FC 617, 2015 CF 617, Roger T. Hughes J. (F.C.). Law Enforcement Agencies PARTICULAR POLICE AND SECURITY FORCES Royal Canadian Mounted Police Designated officer did not breach duty to act fairly Superintendent ordered Mem- ber Representative Director- ate (MRD) of Royal Canadian Mounted Police (RCMP) to rep- resent applicant in his challenge of disciplinary notices pursuant to paragraph 3(b) of Commis- sioner's Standing Orders (Rep- resentation). Superintendent decided to refuse applicant's continued representation on grounds that applicant refused to collaborate with counsel and lack of confidence necessary to estab- lish solicitor-client relationship. 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! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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