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Docket: CA159144 Date: 19991102 NOVA SCOTIA COURT OF APPEAL [Cite as: Labourers’ International Union of North America v. Dexter Construction Company Ltd. 1999 NSCA 132] BETWEEN: LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1115 (hereinafter referred to as the “Union”) and Blaise MacDonald PERSONS UNNAMED for The Union Intended Defendant(s) and Eric Durnford for the respondent DEXTER CONSTRUCTION COMPANY LTD. Intended Plaintiff/ Respondent Application Heard: October 21, 1999 Decision Delivered: November 2, 1999 BEFORE THE HONOURABLE JUSTICE RONALD N. PUGSLEY IN CHAMBERS Pugsley, J.A. (In Chambers): [1] Labourers’ International Union of North America, Local 1115, (hereinafter called the Union) applies for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and to bring an appeal from orders made on September 23 and October 1, 1999, by Justice Tidman of the Supreme Court, in proceedings brought by Dexter Construction Co. Limited (Dexter), Intended Plaintiff, against Persons Unnamed, Intended Defendant(s). [2] The leave to obtain intervener status as a party is made pursuant to Civil Procedure Rules 5.02, and 5.04, and 8.01(1). The application to be joined as an amicus curiae, or friend of the court, is made pursuant to Rule 8.02. The application to be added as an intervener is made pursuant to Rule 62.35. [3] Application is also made for extensions of time and variation in the manner and time and place of service on Dexter, pursuant to Rules 3.03, 37.05, and 62.31. Background [4] On Wednesday, September 23, 1999, Dexter, the Intended Plaintiff, filed an interlocutory notice ex parte application against "Persons Unnamed Intended Defendant(s)", seeking an interim injunction to restrain the Intended, Defendant(s) "and each of their servants, agents, representatives and employees, and any person or persons acting under the instructions of them, or any of them, and any person having notice of this order", from picketing or otherwise impeding or preventing Dexter, its employees and suppliers, from entering premises located in the Cape Breton Regional Municipality where Dexter was carrying on work. [5] No other party was named as an Intended Defendant(s). [6] In support of the application, the affidavits of Kevin MacDonald, President of Dexter, and Daniel Clifton, General Superintendent, were filed. [7] An order ex parte was granted on September 23, 1999, by Justice Tidman of the Supreme Court. It provided, inter alia, that "this matter be returnable on the 30th day of September, 1999 at 12:00 noon, at such time the Unnamed Defendant(s) shall be afforded an opportunity to be heard in relation to the continuation of this Injunction Order." [8] am advised by counsel for the Union that he was instructed by his client, on Friday, September 24, 1999, of the existence of the ex parte order, copy which was apparently delivered to him on that day. Over the next few days, copies of one, or more, of the supporting affidavits were also obtained by him. [9] On Thursday, September 30, 1999, Dexter filed supplementary affidavit deposed by Mr. Clifton on the 29th of September. Dexter also filed memorandum in support of its submission for the continuation of the ex parte injunction. Mr. MacDonald, counsel for the Union, advised he was not aware of the existence of these documents before the hearing on September 30th. [10] On the return date, counsel for the Union was present in court for his client on an application to continue another unrelated injunction proceeding (Cape Breton Regional Municipality, Intended Plaintiffs v. Labourers’ International Union of North America, Local 1115 and Persons Unnamed, Intended Defendants, SN No. 111895, proceeding which was the subject of another Chambers application before me). [11] Upon counsel for Dexter requiring clarification of Mr. MacDonald's status respecting the Dexter application, the following exchange occurred: Mr. MacDonald: My Lord, am not here representing any unnamed persons, ...local 1115, who is client, client of mine, is not named in the application, as understand and I've got copies of it faxed to me from the Court.. can tell you this My Lord, and this is one of the things that concerns me and offer this as friend of the, friend of the Court. And, of course, in the interest of my client as well. And in the interest of the operating engineers in the I.B.E.W. who are not my clients. But it affects all of those. And that is one of the problems with respect to labor injunctions and the caveat provision in the Judicature Act to...the Court avoid them as, as much as possible. Certainly none without notice. The Court don't want to hear your argument on the issuance of the injunction. want to hear your response to Mr. Sampson's opposition to you having status before the Court. Mr. MacDonald .. do not represent any unnamed parties, have no idea who the unnamed persons are and if knew who they were it may well be that my client, [the Union] would instruct me to assist or defend them or whatever. But we have no idea who they are. The Court ...this is against unnamed persons, there is nothing anywhere in the material to indicate that the unnamed persons have anything to do with your client. And the action is not against your client. ... as far as the Court is aware there is no labor/management dispute. And in view of the fact that you had told the Court that you don't represent the unnamed, unnamed parties, the persons unnamed, as party to the action, then you have no status to appear before the Court, because your client is not party to the action. [12] No viva voce evidence was called by Dexter in support of its submission for the continuation of the injunction. Submissions were made to Justice Tidman by counsel for Dexter, as well as counsel for the Union. [13] On October 1, 1999, Justice Tidman issued an order substantially in the form of the order granted on September 23, with the following amendments: AND IT IS FURTHER ORDERED that the Intended Plaintiff shall file an Originating Notice and Statement of Claim upon further direction being given by this Honourable Court AND IT IS FURTHER ORDERED that the Intended Defendants are at liberty to make an Application to this Court to have hearing on this application by providing forty-eight (48) hours’ notice to the Intended Plaintiff of its intention to make such application; THIS ORDER is subject to and in no way restricts the lawful right of the Intended Defendants and its representatives and members and their lawful right solely to communicate and disseminate information to the public; THIS ORDER is to continue until further Order of this Honourable Court. [14] The Union has filed two affidavits in support of its position on the present applications, one by Bernie MacMaster, Secretary Treasurer and Dispatcher of Local 1115, deposed on October 8, 1999, and the other by Doug Serroul, Business Manager of Local 1115, deposed on October 12, 1999. [15] Mr. MacMaster deposes in part: 2. THAT attached to this my Affidavit as Exhibit "A", is true copy of draft of an application which LIUNA 1115 is making to the Construction Industry Panel of the Nova Scotia Labour Relations Board under the Nova Scotia TRADE UNION ACT. The said draft application is an application for successors rights. It is claim to successor rights by LIUNA 1115 for the balance of the work on the Provincial Highway #125 Twinning Project. The latter project was formally contracted to Municipal Ready Mix Ltd. and now the balance of or the last one-third (1/3 approximately) of the work is being performed by Dexter Construction Ltd. without compliance with the collective agreement which was in effect in operation for the first two thirds of the project. 3. THAT am informed by LIUNA 1115 solicitor, Blaise MacDonald, and believe him that there is an arguable issue that the matter put before the Supreme Court of Nova Scotia on September 23rd, 1999, in the initial Ex-Parte Interim Application, and placed again on the return date of September 30th, 1999, was “labor-management dispute” within the meaning of s. 44 of the JUDICATURE ACT.. 4. THAT no notice of these September 23 and September 30th, 1999, proceedings, except copy of the September 23rd, 1999, Order of the Supreme Court, was served upon the LIUNAl 1115 up to the time of my swearing this Affidavit. 5. THAT members of LIUNA 1115, and members of other road building unions such as the International Union of Operating Engineers (“I.U.O.E.”) and the International Brotherhood of Electrical Workers were employed on the road building project in question and would be, if successful at the Labour Relations Board, be employed there in the future until its completion. 7. THAT am told by Blaise MacDonald, solicitor for LIUNA 1115, and do verily believe him, that the transcript will reflect that he attempted without notice from the applicant, to make submissions to the Court and was not permitted to do so on September 30, 1999. [16] Doug Serroul deposes in part: 4. THAT have read the affidavit of Bernie MacMaster sworn the 8th day of October, A.D. 1999, and he is mistaken in that LIUNA 1115 was never formerly served with any Order, Notice or Affidavits in this proceeding Although copy of an order dated September 23rd, 1999, ... was served by fax upon LIUNA 1115 on the afternoon of September 24th, 1999. 5. THAT am told by Blaise MacDonald, .... and do verily believe him, that he obtained copies of documents from the file at the Prothonotary’s Office prior to the hearing on Thursday, the 30th day of September, 1999, but copies of an affidavit of Daniel Clifton, sworn September 30th, 1999, and letter to the Court from Dexter’s Solicitor, Robert Sampson, dated September 30th, 1999, were not made available to him prior to or during the Court Proceedings before Mr. Justice Gordon Tidman. 6. THAT instructed Blaise MacDonald, solicitor for LIUNA 1115, to attend the application on Thursday, the 30th day of September, 1999, and attempt to make representations to the Court that LIUNA 1115 and its members were in the midst of labour dispute with Dexter Construction Company Limited and its predecessor contractor on that project, Municipal Ready Mix Limited. 12. THAT LIUNA1115 instructed its Solicitor to attend because it was desirous of seeing the lawful rights protected for those who are members of LIUNA 1115 and who lost their employment, their opportunity for employment, all LIUNA 1115 members, and indeed any members who were in sympathy or empathy with the plight of Local 1115 and its members. 18. THAT LIUNA 1115 especially in the absence of any other party who oppose the intended Plaintiff, will instruct its Solicitor to make submissions to this Honourable Court, which include the following: (a) That there was denial of natural justice and fair hearing by the learned trial judge by allowing the intended Plaintiff to proceed against “Unnamed Persons”, as sole defendants, without further description, in the manner in which the learned Justice did, including purporting to hold an Inter Partes Interlocutory hearing in the manner in which it was noticed and held. (b) That there was denial of natural justice and fair hearing, as well as jurisdictional error, by the failure of the learned Trial Judge to hear the LIUNA 1115’s Solicitor on the arguable issue of the existence of “labour dispute” within the meaning of s. 44(1)(b) of the Judicature Act, RSNS, 1989, Ch. 240, as amended. (c) That the trial judge committed errors of law and jurisdiction when he permitted “Unnamed Persons”, simpliciter, without more, to be the defendants, indeed the sole defendants, in an interim and interlocutory proceeding. (d) That the learned trial judge erred in proceeding with an uncontested Interlocutory hearing continuing the injunction till trial, particularly in the circumstances of this case. (e) Whether other submissions may advance the interests of LIUNA 1115, its members and or oppose the position of the Intended Plaintiff after examining and studying the transcript and determining what occurred at all the proceedings before the learned Trial Judge and may allow for additional grounds. (f) THAT “Unnamed Persons”, without more, should rarely, if ever, be used as defendants, and rarely, if not never, be used as sole defendants. [19] THAT understand that there is no other opposition to the intended action by the Intended Plaintiff and would hope that LIUNA 1115’s submissions would be helpful to this Honourable Court. [17] No evidence was adduced that the Union was directly affected by the provisions of the order of October 1, 1999. [18] The grounds of the proposed appeal are stated as follows: 1. The Justice herein erred at law in that he denied the natural justice and fair hearing by: (a) By permitting the Intended Plaintiffs to proceed in an interlocutory proceeding against “Unnamed Persons” as the sole Defendant(s). (b) By failing to require notice in pleadings to be served in the usual manner, or through substituted service, upon unnamed persons. (c) By prohibiting and refusing submissions by the counsel for [the Union] that there was an arguable issue that there was “labour dispute” within the meaning of the Civil Procedure Rules and the Judicature Act, R.S.N.S., 1989, Ch. 240, as amended, s. 44(1)(b). (d) Wrongfully denying [the Union] to complete its submission before denying status. 2. THAT the Learned Justice erred in law by allowing the sole defendant(s) “Unnamed Persons” to stand as the sole defendant(s) in the proceeding, or purported proceeding. 3. THAT the learned Justice erred in law in any other way that may become apparent from examination of the transcript of these proceedings. 4. THAT the learned Justice erred in law in denying status to [the Union]. [19] The Union requests the judgment appealed from be varied: ...by deleting “Unnamed Persons” as defendants or intended defendants in these proceedings. [20] No one was served on behalf of the Intended Defendant(s), Persons Unnamed, and no one appeared on behalf of that Intended Defendant(s) at the hearing of these applications. [21] Dexter opposes all of the applications advanced by the Union. [22] An appeal to this Court may only be filed by party to proceeding, or by an intervener added pursuant to the Civil Procedure Rules, (see McMahon, J. A., sitting in Chambers, in Johnston et al v. Prince Edward Island [1989] 73 Nfld. PEI, 219 (C.A.)). The Union was not joined as a party by Dexter, and was not joined as a party or as an intervener by order of the Supreme Court. The Union, therefore, does not have the status to file an appeal, unless it is first joined in either of these two capacities as a result of the applications presently before me. [23] It is convenient to deal with these applications by first considering the Union’s request to be joined as an intervener, pursuant to Rule 62.35; secondly, as party or amicus curiae, pursuant to Rule 8; and finally as party pursuant to Rule 5. At the hearing of these applications, counsel for the Union advised that he would not make any oral submissions respecting the applicability of Rule 5.02, as he concluded the provisions of Rule 5.04 were more pertinent. [24] Justice Hallett, in 1874000 Nova Scotia Limited et al. v. Adams et al. (1996), 1996 CanLII 5243 (NS CA), 156 N.S.R. (2d) 208, determined that judge of this Court, sitting in Chambers: ...does not have the jurisdiction to grant intervener status as there is nothing in Rule 62 or any other Rule or enactment that authorizes such an application to be made to the Chambers judge rather than to the Court. (at p. 215) (See also Hallett, J.A. in Future Inns Canada Inc. v. Nova Scotia Labour Relations Board (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358). [25] Prior to the decision in Adams, applications for intervention at the appeal level, in civil cases, were made under Rule in combination with Rule 62.31(1). (See Arnoldin Construction and Forms Limited v. Alta Surety Company (unreported, C.A. No. 106122, filed October 31, 1994); Arrow Construction Products Ltd. v. Nova Scotia (Attorney General) (1996), 1996 CanLII 5589 (NS CA), 148 N.S.R. (2d) 392.) [26] The decision in Adams led to the introduction of new rule entitled “Intervention on Appeal” providing for intervention in civil appeals. The rule came into effect in June of 1997. It was made rule of this Court by virtue of the authority granted to the judges of the Court of Appeal by s. 46 of the Judicature Act, RSNS, 1989 C.240. It is the rule governing interventions to this Court by persons who are interested in an appeal. It is the rule that should govern the consideration of applications for intervention to this Court. [27] The new rule is significantly different from the provisions of Rule 8. [28] I am satisfied that the Union’s application to be joined as an intervener pursuant to Rule 62.35 should not be granted, as there is no appeal outstanding to this Court. [29] The provisions of Rule 62.35(1), in my opinion, make the existence of an appeal an imperative. The section reads: Any person, including any person who intervened in proceeding pursuant to Rule 8, interested in an appeal, may, by application in accordance with Rule 62.31 apply to Judge in Chambers for leave to intervene upon such terms and conditions as the Judge may determine. (emphasis added) [30] This interpretation is supported by an examination of the provisions of Rule 62.35(2) and (3). [31] Rule 62.35(2) requires an intervention to be filed and served within 20 days after the filing of the notice of appeal. [32] Rule 62.35(3) sets out the test to be employed by the Chambers judge requiring the applicant to describe its interest in the appeal, to identify the position to be taken by it, on the appeal, and finally, to set out the submissions it wishes to advance on the appeal, and the reasons for believing that the submissions would be useful to the Court and different from those of other parties. [33] would dismiss the application of the Union to be joined as an intervener pursuant to Rule 62.35. [34] The alternative application that the Union be joined as an amicus curiae, or an interested person, pursuant to Rule 8, should be dismissed as well, for the reasons set forth by Justice Hallett in Adams. [35] The Union also relies upon Rule 5.04(2). [36] Rule 5.04 under the heading “Misjoinder and Nonjoinder of Parties”, provides: (2) At any stage of proceeding the court may, on such terms as it thinks just and either of its own motion or on application, ... (b) order any person, who ought to have been joined as party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectively adjudicated upon, be added as party [37] Counsel for the Union relies upon the definition of the word “court” as it is found in Rule 1.05(e)(i) as granting sufficient authority to Chambers judge in this Court to entertain an application for joinder under Rule 5.04(2). [38] Rule 1.05(e)(i) provides: Definitions 1.05 In these Rules, unless the context otherwise requires, (e) “court” means, (i) in the Nova Scotia Court of Appeal, the court or judge or the judges thereof, whether sitting in court or Chambers. ... (emphasis added) [39] Rule 1.05(e)(i) was apparently not relied upon by counsel in Adams. [40] In my view, however, the limits on the jurisdiction of Chambers judge in this Court, as stipulated in Rule 62, constitute “context” restricting the broad definition expressed in Rule 1.05(e)(i). [41] would, accordingly, dismiss the application to join the Union pursuant to Rule 5.04 for the reasons expressed in Adams. [42] There are, however, additional cogent reasons that influence me to refuse the relief requested. [43] There are, to the best of my knowledge, no reported decisions in this jurisdiction dealing with an application by non-party to be added to proceeding as defendant, or as an Intended Defendant pursuant to Rule 5.04. The cases arising under this section are usually concerned with an application by an existing plaintiff to add an additional party as plaintiff, or as defendant (see P. A. Wournell Contracting Ltd. v. Allen (1980), 1980 CanLII 2720 (NS CA), 37 N.S.R. (2d) 125, (C.A.); Blair v. Alderney Consultants 1987 Ltd. (1995), 1995 CanLII 4154 (NS SC), 149 N.S.R. (2d) 184 (S.C.)). [44] Rule 5.04 was derived from Order 15, Rule of the Supreme Court Practice. While amendments were made to Rule in 1971, they are not relevant to the following comments which appear in the 1999 Supreme Court Practice. (Sweet Maxwell, Vol. I, 1998). The authors write in part: Generally in common law and Chancery matters plaintiff who conceives that he has cause of action against defendant is entitled to pursue his remedy against that defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue (quoted with approval by Wynn-Parry J. in Dollfus Mieg, etc. v. Bank of England [1951] Ch. 33). Under this rule, however, person who is not party may be added as defendant against the wishes of the plaintiff either on the application of the defendant or on his own intervention, or in rare cases by the Court of its own motion. The jurisdiction of the court under this rule is entirely discretionary. (emphasis added) [45] Even if had jurisdiction to grant the relief requested under Rules 5.04, or Rule 8, would not exercise it in the circumstances of this case. [46] reach this decision because am of the view that the issues namely the joinder of the Union, and the continuation of the injunction order against the Intended Defendant(s), Persons Unnamed are issues that should be initiated at the level of the Supreme Court, and determined, by judge of that court. [47] Justice Tidman, in an interim application, determined on the basis of evidence adduced by affidavit, to continue an injunction “until further order of the Court”. The appropriate forum to consider the further continuation of that order is the Supreme Court. [48] The Union still has an opportunity to apply to judge of the Supreme Court for joinder, and if joined to make representations concerning the further continuation of the injunction. [49] Counsel on the hearing before me takes the position that on the afternoon of September 30th, 1999, he: ...attempted to intervene and make submissions to the Court on several aspects of the injunction application including attempting to gain intervener status in the intended action but that he was denied status and access to the hearing. [50] My examination of the transcript leads me to conclude that counsel for the Union confined his submissions to attempt to convince the Court to permit him to make representations: ...as friend of the Court, and of course, in the interests of my client as well, and in the interests of the operating engineers and the IBEW, who are not my clients. [51] This conclusion is supported by the absence of any affidavits filed on behalf of the Union before Justice Tidman supporting any submission to join the Union pursuant to Rule 5.04 or Rule 8. [52] In addition, the transcript does not disclose that counsel for the Union requested an adjournment in order to prepare the documents that are usually filed in support of an application under either of these Rules. [53] The order of October 1st simply continued the interim injunction “until further order of the Court”. These words were used, presumably, because the Court anticipated that Dexter would commence an action in the Supreme Court, as counsel had advised. That action, one would expect, would include request for injunctive relief for specific time limit. [54] All of the issues set forth in the proposed notice of appeal are issues that can properly be addressed by the Union if it is joined by application to Supreme Court judge. The forum of the Supreme Court is the proper forum to enable both parties to adduce evidence in support of their respective opposed submissions. [55] The Union further submits that if its submissions to grant intervener status pursuant to Rule and joinder pursuant to Rule 5.04 are rejected, then request is made to refer the issue of joinder as party to panel of this Court. This was the practice followed by Angers, J. A., of the Court of Appeal of New Brunswick, sitting in Chambers, in la Societe des Acadiens du Nouveau-Brunswick Inc., et al, v. Minority Language School Board No. 50 (1984) 53 N.B.R. (2d) 158. [56] In that case, an association of parents applied to Justice Angers to be added as party for leave to appeal the decision of Chief Justice Richard, rendered in an action brought by the Society against the School Board. The association of parents was not party to the action. [57] Justice Angers stated at p. 161: Since there is nothing in the Judicature Act nor in the Rules of Court which provides that such an application can be heard by single judge, it is my opinion that the application should be dealt with by the Court of Appeal. Accordingly, am adjourning these applications into the Court of Appeal to be heard by the Court on March 1st, 1984, at 2:00 p.m. [58] The Court of Appeal of New Brunswick subsequently determined 1984 CanLII 2954 (NB CA), [1984] D.L.R. (4th) 238, that an order should issue granting the association of parents leave to appeal as the defendant in the case. Rather than relying on Rule 15 of the New Brunswick Rules of Court dealing with intervention, the Court concluded that it had jurisdiction to add party for the purpose of launching an appeal, such authority arising from the provisions of the Judicature Act which incorporated the ancient practice of the High Court of Chancery in England. An appeal to the Supreme Court of Canada was dismissed 1986 CanLII 66 (SCC), [1986] S.C.R. 549. [59] decline the request to refer this matter to panel. [60] The history of the proceedings in the present case, is not comparable to the history of the proceedings in the Association case. [61] Chief Justice Richard presided over trial that lasted in excess of ten days. The parties had agreed on statement of facts and extensive viva voce evidence, expert and otherwise, was called. Voluminous exhibits were introduced. final determination of the issues was made by Chief Justice Richard in lengthy judgment. At the time the association of parents applied for joinder before Justice Angers, the decision of Chief Justice Richard determining the issues in the case had been rendered. The opportunity for participation at the trial level had, unlike the opportunity available to the Union here, long since passed. [62] The present proceeding is still at the stage of interlocutory proceedings. No viva voce evidence has yet been adduced. No final determination has been made by trial judge. The only order issued is one that provides for the continuation of an interim injunction until further order of the Court. Indeed, an action has not yet been commenced. This is in marked contrast to the situation that was before Mr. Justice Angers. [63] Rule 5.04 and Rule 8, are primarily designed for adding parties, or for intervention at the trial level. (See comments of Hallett, J.A. in Adams, at pp. 214-215, respecting Rule 8). [64] Rule 62.35 governs interventions to the Court of Appeal in an existing appeal. [65] A judge of this Court sitting in Chambers does not have the jurisdiction to grant intervener status pursuant to Rule 8 or to join a person as a party to a proceeding pursuant to Rule 5.04. [66] As the Union was not a party to the original proceeding commenced by Dexter, and has not been joined as an intervener, or as a party defendant, by order of a judge of the Supreme Court, the Union does not, in my opinion, have any standing to file an appeal. [67] do not accept the Union’s submission that it applied to Justice Tidman to be joined as an intervener, or as party, pursuant to Rule 5.04 or Rule 8. [68] Even if had the jurisdiction to add the Union as party pursuant to Rule 5.04, or as an intervener pursuant to Rule 8, would decline to exercise such discretion in view of the remedies available to the Union at the level of the Supreme Court. [69] would further decline to exercise my discretion to refer this matter to panel of the Court in view of the remedies available to the Union at the Supreme Court level. [70] Accordingly, I reject the applications for leave to obtain intervener status as a party, or as amicus curiae, or alternatively as an intervener, and I further reject the application to set down this matter for hearing before a panel of this Court. [71] In the circumstances, decline to award costs. Pugsley, J.A.

The respondent filed an interlocutory notice, ex parte application, against the intended defendants, seeking an interim injunction. The applicant union applied for leave to obtain intervener status as a party pursuant to Rule 62.35, or as amicus currie pursuant to Rule 8.02, or alternatively as an intervener pursuant to Rules 5.02, 5.04, and 8.01(1), and to bring an appeal from orders made by a Supreme Court judge in proceedings brought by the intended plaintiff against the intended defendants. Rejecting the applications, that a Court of Appeal judge sitting in chambers does not have the jurisdiction to grant intervener status or to join a person as a party to a proceeding. Furthermore, as the union was not a party to the original proceeding, and was not joined as an intervener, or as a party defendant, by order of a Supreme Court judge, it does not have standing to file an appeal.

2_1999nsca132.txt

Q.B. A.D. 1992 No. 3039 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN MIKOLAYCZYK, AS LITIGATION GUARDIAN OF JESSEE MIKOLAYCZYK, MINOR, SHERRY MIKOLAYCZYK and JOHN MIKOLAYCZYK RESPONDENTS (PLAINTIFFS) and CHRISTOPHER PAUL REID and CANADA TRUCK LEASE LTD. APPLICANTS (DEFENDANTS) G. A. Thompson for the applicants (defendants) J. A. Morrison for the respondents (plaintiffs) JUDGMENT BARCLAY J. March 28, 1995 This is an application by Christopher Paul Reid andCanada Truck Lease Ltd. (the "defendants") for an orderpursuant to the Court\'s inherent jurisdiction severing theissues of liability and damages. The grounds that were argued in connection with the application are as follows: (a) determination of the issue of liability in favour of the defendants will render determination of the issue of damages unnecessary; (b) given the quantum of damages claimed by the plaintiffs and the volume of evidence necessary to prove this aspect of the claim, the prior determination of the issue of liability may result in very significant reduction in trial time and costs; (c) the evidence to be heard with respect to each issue is easily segregated, and prior determination of the issue of liability will not require repetition of the evidence on that point; (d) the plaintiffs' position as to the quantum of damages claimed will not be prejudiced by prior determination of the point of liability; (e) severance of the issues will not result in any significant delay in the overall management of the action. FACTS This action arises out of tragic motor vehicle accident which occurred in the City of Saskatoon, on September 20, 1991. minor, Jessee Mikolayczyk ("Jessee"), who was riding his bicycle, collided with delivery truck operated by the defendant, Christopher Paul Reid, and owned by the corporate defendant, Canada Truck Lease Ltd. Jessee was seriously injured and such injuries include brain damage, fractured pelvis and laceration of the groin area with associated blood loss, internal injuries including injury to his bladder and bowel, collapsed lung, injury to the left eye, hearing loss and injury to the facial nerves. At the time of the accident he was years of age. Liability is in issue. The plaintiffs have served demand that the trial of the issues be heard by jury. Section of The Jury Act, 1981, S.S. 1980-81, as am. S.S. 1990-91, c. C-81, ss. 68(1) and (2) provides statutory right to jury trial in cases such as the one before the Court. This section reads: 1(1) In an action for libel, slander, malicious arrest, malicious prosecution or false imprisonment and in an action where the amount claimed exceeds $10,000, any party to the action may demand jury in accordance with The Queen's Bench (2) The party demanding jury: (a) shall deposit with the local registrar in advance of the trial any sum that the local registrar considers sufficient for the fees and expenses of the jury for the estimated length of the trial; and (b) subject to subsection (3), is responsible for the full cost of the jury and is not entitled to recover any part of the cost of the jury from the opposing party in the event of success at trial. (3) Where party is successful in an action: (a) for libel, slander, malicious arrest, malicious prosecution or false imprisonment; or (b) in respect of personal injury or death where the amount claimed exceeds $10,000; the judge presiding at the trial may make any order as between the parties regarding the cost of the jury that he considers appropriate. previous motion was made to sever and Goldenberg J. dismissed the application. He did however, grant leave to the defendants to reapply. The terms of Goldenberg J.'s order are as follows: IT IS ORDERED THAT: (a)on the undertaking of Mr. J. A. Morrison, counsel on behalf of the Respondents (Plaintiffs), that he has briefed medical practitioners and will be calling medical experts to testify as to the nature of the injuries which evidence is beyond the medical evidence which has been disclosed to date and which evidence the accident reconstruction expert retained by the Respondents (Plaintiffs) require, the application to sever the issue of liability from the issue of quantification of damages is dismissed; (b)as condition of the dismissal of the application the Respondents (Plaintiffs) shall serve and file Notice of Expert Witness disclosing the earlier referenced medical evidence referenced by their counsel in compliance with the Rules of Court at least 60 days prior to trial; (c)the Applicants (Defendants) are given leave to thereafter apply anew to sever the trial of the issues of liability and quantification of damages claimed; (d)the costs of the application are costs in the cause. THE LAW The controlling authority in Saskatchewan on the issue of severance is Central Canada Potash Co. Limited and Attorney General of Canada v. Attorney General of Saskatchewan, Minister of Mineral Resources of Saskatchewan and Government of Saskatchewan (No. 1), 1974 CanLII 976 (SK CA), [1974] C.A.). Culliton C.J. canvassed the circumstances under which an application for severance of issues will be granted. He referred to the case of Emma Silver Mining Company v. Grant (1879), 11 Ch.D. 918, in which Jessel M.R. considered this point and court's jurisdiction with respect thereto. Jessel M. R. noted, at p. 926, that: The discretion is general. Of course it is judicial discretion, and there must be sufficient reason for exercising it. He went on, at p. 927, to enunciate the rule when an application to sever is made by defendant: In case of this kind my opinion is that the Judge must have some evidence which will make it at least probable that the issue will put an end to the action. The Plaintiff is not to be harassed at the instance of the Defendant by series of trials, each trial taking issue on every link of the Plaintiff's case. That is not the meaning of the rule as understand it, but it may properly be applied in such case as that have stated, where the Judge has serious reason to believe that the trial of the issue will put an end to the action. He also noted that the situation is different than when the application is made by plaintiff, and at p. 928, commented on the difference thusly: The Defendant has of course right to shape his own case, and to say to the Plaintiff, "You must prove every part of your case; if can put my finger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject me to the whole expense of protracted investigation, and especially when you, the Plaintiff, cannot pay the costs of it". From his discussion of Emma Silver Mining Company v. Grant Culliton C.J., in Central Canada Potash Co. Limited, went on to enunciate what the Saskatchewan Court of Appeal considered to be the principles to be followed in determining an application such as the one at bar. He stated, at pp. 377 and 378: [T]hat separate trials should be granted only in exceptional cases, and in cases where the issues to be tried separately are simple, and that there should be some evidence which makes it at least probable that the trial of the separate issue will put an end to the action. think the principle is accepted by all courts that piecemeal trial of an action must be avoided. It appears as well that courts are reluctant to have separate trial of an issue if, in the disposition of that issue, all or most of the evidence will be called that would have been called to dispose of all the issues. In my opinion an application for severance of the issues should only be granted for the most compelling reasons and in cases in which it is probable that the trial of one issue will put an end to the action. In this case accept the submission of the plaintiffs that there is relationship between liability and damages and that both of these issues will depend extensively upon the same testimony. Counsel for the plaintiffs, in his written brief, succinctly set out the plaintiffs' position on severance in this case. He stated in part as follows: The determination of liability in this case will depend extensively upon the accident reconstruction of experts. In order to determine liability, to which the Plaintiff himself cannot speak, it will entail assessing the conflicting opinions of the accident reconstruction experts as to how the accident itself occurred. This will require, an examination of the injuries and how they where [sic] caused by the accident reconstruction expert. It is therefore necessary in order to determine liability to also determine the cause and effect of the impact of the Plaintiff and the Defendants' vehicle and that this is consistent with the nature of the injuries sustained. This will necessitate themedical testimony required to establish the quantum of damageswhich will be required to establish one of the factualunderpinning of the evidence of the accident reconstructionexpert that will be called by the Plaintiff. The Defendants are therefore grossly underestimating the substance and time that will be required to establish liability in this litigation. Such evidence would necessarily be replicated ina second trial with possibly an incongruous result. agree with this argument. In this case, the determination of liability will involve both an examination of the injuries and the contention between experts as to their origin and their significance in formulating an opinion as to how the accident happened. Therefore, severing the issues will cause repetition of this costly expert testimony and if not properly considered would be prejudicial to the plaintiffs. An important additional factor to consider is that the plaintiffs have served demand that the trial of the issues be heard by jury. If the issues of liability andquantum are severed, it is at least arguable that theplaintiffs may well be disentitled from their right to have ajury decide what is the appropriate quantum of damages. In Beddow v. Megyesi (1992), 1992 CanLII 735 (BC SC), C.P.C. (3d) 12 (B.C.S.C.), Thackray J. held no jury, whether discharged or not, can be reassembled some time later to carry on with the second part of the trial whence it followed that where the issue of liability on severed trial was tried by the court with jury, the only proper body left to hear the balance of the case is the judge who presided in the first part of the trial. On that issue Thackray J. stated at p. 19: If the liability portion of trial is by judge and jury, that jury, after discharge, cannot be reconstituted. In Lew v. Lee (1925), 1925 CanLII 320 (BC CA), 37 B.C.R. 81, [1926] D.L.R. 678 (C.A.), the Chief Justice noted that counsel could find no case, "nor can he cite one from all the history of our jurisprudence," where jury that had been discharged had been recalled to assess damages. The court held that such jury could not be recalled. I would go further and say that no jury, whetherdischarged or not, can be reassembled some time later to carryon with the second part of the trial. The court in Beddow also emphasized that credibility considerations, even though made on the issue of liability, are part of the entire trial. Evidence such as impact and severity of impact continue to be relevant evidence in the quantum portion of the trial. This was commented on by Trainor J. in Bernhardt et al. v. Vernon Board of School Trustees et al. (1979-80), 11 C.P.C. 82 (B.C.S.C. At p. 84 Trainor J. stated: Both the assessment of credibility and an appreciation of the nature and extent of injuries and consequent damage can best be achieved by trying the issues together. am also comforted by the comments of Thackray J. in Beddow in which he stated at p. 171: In Bernhardt, Mr. Justice Trainor referred to the remarks of Lord Denning in Coenen [v. Payne [1974] W.L.R. 984, [1974] All E.R. 1109 (C.A.)] that the normal practice is for liability and damages to be tried together, "but the courts should be ready to order separate trials wherever it is just and convenient to do so." However, Trainor J. preferred the approach of Stephenson L.J. in Coenen who stated [p. 1114]: In most personal injury cases the issues of liability and damages, though clearly separate, are rightly tried together. That is so, even where the issue of damages, perhaps because of complicated medical evidence, takes longer to try than the issue of liability. In personal injuries case the courts will not depart from the normal practice except for good reason. have examined the medical evidence which was filed by the solicitors for the plaintiffs as result of the order of Goldenberg J. and this evidence, in my view, is relevant both as to liability and quantum. In fact, the plaintiffs' accident reconstruction expert, Clifford Anderson, states in his affidavit filed herein, that these opinions are consistent with one of the factual considerations he used in formulating his opinion in the accident reconstruction report, namely that the nature and extent of the injuries sustained by Jessee, were result of crushing type force. There should be compelling reasons before a trialshould be severed. This has not been established in thiscase. Therefore, for all the above reasons, the application to sever the action is dismissed with costs.

The Defendants applied to sever the issues of liability and damages for purposes of the trial of this matter. The trial was to be held before a jury.HELD: 1)The Court has a general discretion as to severance of issues which must be exercised judicially. 2)Severance should only be ordered when the judge has a serious reason to believe that the trial of the issue proposed to be severed will put an end to the action. 3)The Court accepted the Plaintiff's submission that expert medical evidence would be necessary to establish the cause of the accident since the Plaintiff had suffered brain damage and would be unable to testify. This medical evidence would have to be repeated to establish the Plaintiff's damages if the issues were severed and liability was found. 4)The severance of the issues would deny the Plaintiff the right to have the jury determine his damages. A jury cannot be disassembled and then recalled to conclude the trial of the remaining issues. 5)The Court was of the view that there should be compelling reasons before issues should be severed for trial, but that no compelling reason had been established in this case.

7_1995canlii5894.txt

nan Editor’s Note: Corrigendum released July 20, 2006. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants JUDGMENT DOVELL J. May 16, 2006 [1] The plaintiff, Thomas Walton, the representative plaintiff, applies for certification of this action pursuant to The Class Actions Act, S.S. 2001, c. C‑12.01, on behalf of himself and the other passengers of an international flight being Flight 361 from Punta Cana, Dominican Republic, to Regina and Saskatoon, Saskatchewan, Canada, on January 21, 2004. The flight was delayed for about an hour and half at the Punta Cana airport as result of several evolving mechanical difficulties referred to by the pilot as “creeping delay” resulting in uncomfortable conditions on the airplane for the passengers. [2] On June 21, 2004, statement of claim was issued with regard to this case and on October 20, 2004, an amended statement of claim brought under The Class Actions Act. In response, on November 29, 2004, statement of defence was entered on behalf of all of the defendants. Subsequently there has been with the consent of counsel for the plaintiff an amended statement of defence made on February 3, 2005, and an amended amended statement of defence made on February 24, 2006. [3] On February 21, 2005, an order was made pursuant to s. 4(2)(a) of The Class Actions Act appointing myself as Justice of this Court to hear the certification application pursuant to s. 4(2)(b) of the Act. [4] Prior to the actual certification hearing counsel for the defendants objected to the form of the notice of motion in that it was not in strict compliance with Form 5D which resulted in the plaintiff redrafting the notice of motion for certification brought under The Class Actions Act. [5] Argument of the certification application was actually made on February 24, 2006; however, counsel for the plaintiff was given until March 3, 2006, to file case law with regard to the narrow issue of the meaning of “bodily injury” within Article 17 of the Montreal Convention of 1999 and counsel for the defendants was given until March 10, 2006, to file any material in reply. Three cases were provided to the Court by plaintiff’s counsel who requested the opportunity of presenting further oral argument to the Court which the Court heard on April 28, 2006. [6] In support of the certification application the applicant filed two affidavits of the proposed representative plaintiff, Thomas Walton, and an affidavit of Randy Slusar, the son‑in‑law of Thomas Walton, who both were passengers on Flight 361. [7] The defendants filed five affidavits of flight attendants, including those of Brenda Martin, Louanne Mountain, Sheila Johnstone, Nancy McEwen and Alejandra Rosenberg; the affidavit of Maria Xavier (Sousa), the customer service manager of Flight 361; the affidavit of the pilot of Flight 361, Ian Rampersaud; the affidavit of Joel Birnbaum, the director of claims and facilities of MyTravel Canada Holdings Inc.; the affidavit of Marylou Lavalle, supervisor with customer relations at Skyservice Airlines Inc.; and the affidavit of Christina Groth, vice president of aviation and operations of Signature Vacations. B. Nature of The Claim [8] The statement of claim seeks to bring the action on behalf of 215 passengers who boarded Skyservice Boeing 757 200 aircraft, Flight 361, at approximately 4:10 p.m. on January 21, 2004, in Punta Cana with destination to Regina and Saskatoon. The plaintiff claims damages on his behalf and on behalf of all members of the class of plaintiffs which he seeks to represent in this class action for negligence for which he alleged all of the defendants are liable; unlawful confinement on the part of the defendant, Rampersaud and breach of contract with regard to the defendants, MyTravel and Signature. [9] Specifically, the following pleadings are contained in the amended statement of claim: 15. This action is brought on behalf of the Plaintiffs in their own right and ... as representatives of all passengers of the aforementioned Flight 361 and all passengers who have suffered personal injury, economic loss or damage as result of the events described in Paragraph 10 herein. 17. The Plaintiffs state that each Defendant was negligent in its dealing with the Plaintiffs and each Defendant owed duty of care to them. The Plaintiffs state that each defendant, inter alia: (a) Owed each Plaintiff duty of care to ensure that their health and well‑being were maintained during the flight; (b) Knew that breach of its duty would cause serious and severe damages to the Plaintiffs; (c) Knew or ought to have known of the potential for extreme heat in Puna [sic] Cana and should have taken all reasonable precautions to ensure that there were no excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not taking such precautions; (d) Knew or ought to have known of mechanical difficulties which could arise with the operation of the aircraft and failed to properly maintain and repair it. The Plaintiffs state that the defendants were negligent in not properly maintaining and repairing the aircraft; (e) Knew or ought to have known that the Puna [sic] Cana airport did not have properly functioning air conditioning cart and should have made alternate arrangements as result or, alternatively, taken additional precautions to ensure that there were not excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not making proper arrangements or taking such precautions; (f) Knew or ought to have known that Puna [sic] Cana airport would require satisfactory advance payment for the use of the air conditioning cart or alternatively, would require approved credit for use [of] the air conditioning cart. The Plaintiffs state that the Defendants were negligent in not having available funds to utilize the cart or for failing to have proper financing in place; (g) Knew or ought to have known that proper financing for the use of the Puna [sic] Cana airport, its equipments, and facilities was required in order to utilize its airport services. The Plaintiffs state that the Defendants were negligent in not having financing in place at Puna [sic] Cana; (h) Such further and other acts not now known to the Plaintiffs. 18. The Plaintiffs state that the Defendants SkyService, Rampersaud, and Sousa were also negligent in that they, inter alia: (a) Failed to provide water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (b) Failed to properly stock the aircraft with water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (c) Failed generally to attend to the needs of the Plaintiffs during their ordeal; (d) Such further and other acts not now known to the Plaintiffs. 19. The Plaintiffs state that the Defendant, Rampersaud, is liable for the tort of unlawful confinement by refusing to permit the passengers to disembark from the aircraft during the period in question after several passengers had requested that they be allowed to leave. The Plaintiffs further plead and rely upon the Airline Pilots Association Code of Ethics in support of their claim. 20. The Plaintiffs state that the defendant, SkyService, is vicariously liable for the acts of the Defendants Rampersaud and Sousa, as Rampersaud and Sousa were acting throughout in their capacity as employees of SkyService and/or as agents and or designates of SkyService. 21. The Plaintiffs state that the Defendants My Travel and Signature have breached their contract with them, term of which either expressly or impliedly was, inter alia, that: (a) The air transportation‑certified carrier hired would provide safe, comfortable, trouble‑free and secure air travel; (b) The air transportation‑certified carrier hired would be properly financed and/or have proper line of credit in order to utilize the equipment and facilities at the airports frequented by the air transportation‑certified carrier; (c) The reasonable efforts had been made in selecting the air transportation‑certified carrier utilized; (d) such further and other breached not now ascertained by the Plaintiffs. 22. The Plaintiffs hereby plead the provisions of the Warsaw Convention as they may apply to this action and in particular rely on Articles 1, 19 and 20. 23. The Plaintiffs state that purported disclaimer regarding liability as result of the actions or inactions of the air transportation‑carrier is of no force and effect as it was not part of the terms of the contract and was communicated after consideration had been paid to the Defendants. 24. The Plaintiffs state that the conduct and actions of the Defendants, SkyService, MyTravel, Signature, Ian Rampersaud and Maria Sousa, were high‑handed, callous and arrogant, warranting exemplary and/or punitive damages. The Plaintiffs state the utter disregard shown for their welfare and the Defendant’s attempts to profiteer from the Plaintiff’s thirst warrant increased damages. [10] The amended amended statement of defence of February 24, 2006, raises numerous defences including the following as plead: 10. In response to the entire Amended Statement of Claim and in response to all of the causes of action alleged against the various defendants, the defendants state that the three named plaintiffs, and all other passengers on Flight 361, were travelling on journey of international carriage by air, departing from Canada and returning to Canada, with an agreed stopping place in Punta Cana of the Dominican Republic. Accordingly, the rights and obligations of the parties are governed exclusively by the Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention, 1999”), which is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26 (hereinafter referred to as the “Convention”). 11. The defendants state that the claims of the named plaintiffs and of any other passengers on Flight 361 are governed by the Convention, which provides the sole cause of action and only remedy for all claims arising in relation to Flight 361, including all claims for damages for bodily injury suffered by passengers. Article 17, paragraph and Article 29 of the Convention read as follows: “17.1 The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable.” 12. The defendants state that the plaintiffs have no cause of action against any of the defendants by reason of the following: (a) none of the plaintiffs suffered bodily injury within the meaning of Article 17, paragraph of the Convention; and (b) if any of the plaintiffs did suffer bodily injury, which is not admitted but denied, the bodily injury was not caused by an accident within the meaning of Article 17, paragraph of the Convention. 13. In the alternative, the defendants deny any negligence, breach of contract or unlawful confinement on their part. The defendants further deny that the doctrine of res ipsa loquitor has any application to the facts of this case. C. The Class Actions Act and The Queen’s Bench Rules [11] The following provisions of the Act have application to the certification application before the Court: Interpretation nan In this Act: ... “class” means two or more persons with common issues respecting cause of action or potential cause of action; ... “common issues” means: (a) common but not necessarily identical issues of fact; or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts; ... Class Certification nan The court shall certify an action as class action on an application pursuant to section or if the court is satisfied that: (a) the pleadings disclose cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represent the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. Certification application 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. ... Certain materials no bar to certification nan The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. [12] In respect of The Queen’s Bench Rules applicable upon certification application, Rule 82 provides: Application for Certification 82(1) Notice of Motion for Certification pursuant to clause 4(2)(b) or section of the Act shall be in Form 5D. (2) An application for certification order pursuant to section of the Act must be supported by an affidavit of the proposed representative plaintiff: (a) deposing to the proposed representative plaintiff’s willingness to be appointed; (b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class; (c) setting out objective criteria for determining membership in the proposed class, and providing the proposed representative plaintiff’s best information on the number of members in the proposed class; (d) setting out sufficient information to establish that the proposed representative plaintiff would fairly and adequately represent the interests of the class and is aware of the responsibilities to be undertaken; (e) exhibiting plan for the class action that sets out workable method of: (i) advancing the action on behalf of the class; and (ii) notifying class members of the action; and (f) setting out sufficient information to establish that the proposed representative plaintiff does not have, on the common issues, an interest that is in conflict with the interests of other class members. [13] Although the applicant argued that if ever there was case that should be certified, this case was it as it involved defined group of passengers in confined space, being an airplane, over small period of time, the defendants opposed the certification application on the basis that none of the five criteria as set out in s. of the Act had been met by the applicant. [14] The Court agrees. Although the Court would have dismissed the certification application on the sole basis of not meeting the criteria as set out in s. 6(a) of the Act, for reasons that will be thoroughly canvassed in this judgment, it would have also dismissed the certification application on the basis of the other criteria as outlined in s. of the Act not being met for reasons which will be briefly outlined in this judgment. (1) Section 6(a) cause of action [15] The amended statement of claim alleges negligence on the part of all of the defendants, unlawful confinement on the part of the pilot, Rampersaud, and breach of contract as against the defendants MyTravel and Signature Vacations. [16] As stated by McLellan, J. in Daniels v. Canada (Attorney General), 2003 SKQB 58 (CanLII), 230 Sask R.120 at paras. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. And at paragraph 18: [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: “7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. “(2) An order certifying an action as class action is not determination of the merits of the action.” [17] Accordingly, this Court in determining this certification application has assumed that all of the specific allegations as contained in the amended statement of claim are true. [18] The question to be determined is whether or not it is plain and obvious that the applicant’s claim does not disclose cause of action. [19] The defendants argue that the statement of claim does not disclose cause of action as against any of the defendants as any potential claim that any of the passengers of Flight 361 might possibly have against any of the defendants is governed solely by the provisions of the Montreal Convention of 1999 and that the requirement of Article 17(1), that namely, bodily injury must be established by the applicant has not been met. The Court agrees. [20] Although the applicant pleaded in his amended statement of claim the provisions of the Warsaw Convention, the applicable convention for consideration of this Court with regard to the passengers aboard Flight 361, being an international flight, is the Montreal Convention of 1999. [21] The Montreal Convention of 1999 is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26, and is set out as Schedule VI of the Act. The Montreal Convention of 1999 modernized the Warsaw Convention and became effective on November 4, 2003. [22] The purpose of the Carriage by Air Act as outlined in the preamble of the Statute is as follows: An Act to give effect to certain conventions for the unification of certain rules relating to international carriage by air. [23] There is no question that Flight 361 from Punta Cana, Dominican Republic to Regina and Saskatoon, Saskatchewan, was an international flight and thus the provisions of the Carriage by Air Act are applicable. [24] Section 2(2.1) of the Carriage by Air Act states: (2.1) Subject to this section, the provisions of the Convention set out in Schedule VI, in so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, have the force of law in Canada in relation to any carriage by air to which the provisions apply, irrespective of the nationality of the aircraft performing that carriage. [25] The general relevant provisions of the Montreal Convention of 1999 as contained in Schedule VI of the Carriage by Air Act to this certification application include the following: Schedule VI Chapter General Provisions Article Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. 4. This Convention applies also to carriage as set out in Chapter [Carriage By Air Performed by Person Other Than Contracting Carrier], subject to the terms contained therein. [26] The specific governing sections of the Montreal Convention of 1999 with regard to the defendant, Skyservice, being the carrier, are Articles 17(1) and 29. Those provisions read as follows: Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17 Death and Injury of Passengers ... 1. The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. [Emphasis of the Court.] ... Article 29 Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable. [Emphasis of the Court.] [27] The specific governing provision of the Montreal Convention of 1999 with regard to the defendants, Ian Rampersaud and Maria Sousa, being the servants and/or agents of the carrier, Skyservice, is Article 30(1). It provides: Article 30 Servants, Agents Aggregation of Claims 1. If an action is brought against servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention. [28] Chapter of the Montreal Convention of 1999 provides for situations in which the carriage of air was performed by person other than the contracting carrier. In this case those entities to which Chapter would be applicable include the defendants, MyTravel and Signature. These operators sold packages to passengers including airfare and then made arrangements with the carrier being Skyservice to include the international flight. Chapter thus has expanded the applicability of the Convention to entities previously not covered by the Warsaw Convention. [29] In particular, Article 39 provides: Chapter Carriage by Air Performed by Person Other Than the Contracting Carrier Article 39 Contracting Carrier Actual Carrier The provisions of this Chapter apply when person (hereinafter referred to as “the contracting carrier”) as principal makes contract of carriage governed by this Convention with passenger or consignor or with person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary. [30] As well, Article 43, like Article 30, provides any servant or agent of carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under the Convention to the carrier whose servant or agent they are. [31] As previously stated, the Court accepts and agrees totally with the defendants’ argument that all of the defendants as named in the lawsuit are governed by the provisions of the Montreal Convention of 1999. That includes the defendant carrier, Skyservice, the contracting carriers, being MyTravel and Signature, and the agents and/or servants of the carrier, being Sousa and Rampersaud. The Montreal Convention of 1999 serves as the exclusive remedy for all passengers in Flight 361 as against all of the defendants. [32] The wording of Article 29 is clear and obvious. Any claim for damages of passenger of an international flight against carrier, contracting carrier or employee of either carrier can only be brought within the ambit of the Montreal Convention of 1999. [33] The applicant provided to the Court the case of Ruth Ann Reed, et al. v. Forwood Cloud Wiser, Jr., et al, 414 F.Supp. 863 (S.D. N.Y. 1976), wherein the issue before the United States District Court for the Southern District of New York was whether the Warsaw Convention’s limitation of liability provisions were applicable to employees of TWA. The legislation at the time being the Warsaw Convention had no definition of “carrier” and as such the court found that the Warsaw Convention did not limit the liability of employees or agents of carrier. [34] That loophole, so to speak, has been filled by the inclusion in the Montreal Convention of 1999 of the expanded limitation of liability provisions as contained in Article 30(1) to include the servants and/or agents of the carrier in this case being the defendants Sousa and Rampersaud and Article 39 with regard to the contracting carriers in this case being MyTravel and Signature. [35] The applicant also provided the Court with the decision of Akehurst and Others v. Thomson Holidays Ltd. and Britannia Airways Ltd., decision from Wales which involved claim against commercial passenger airline (Britannia) and package tour operator (Thomson) arising from crash landing. Although the court found that the claimants had no right of recovery against Britannia in relation to purely psychological injuries, in view of Article 17, liability was established against the tour operator for psychological injuries not because the tour operator was not covered by the Convention but because of the express terms of contract as between the tour operator and the plaintiff which allowed for the recovery of such damages. The court in that case was also dealing with the Warsaw Convention of 1929 as opposed to the provisions of the Montreal Convention of 1999, including Chapter V, which now recognizes the existence of both contracting carrier and actual carrier, and thus was of little assistance to the Court. [36] Although no specific case law was provided to the Court with regard to the Montreal Convention of 1999, there is ample case law with regard to its predecessor, the Warsaw Convention, as to its exclusive remedy for passengers. Those cases include Connaught Laboratories Ltd. v. British Airways (2002), 2002 CanLII 4642 (ON SC), 217 D.L.R. (4th) 717 (Ont. S.C.J.), aff’d (2005), 2005 CanLII 16576 (ON CA), 253 D.L.R. (4th) 601 (Ont. C.A.), at paragraph 26: 26 Further, as question of law, the Warsaw Convention would not be ousted in this situation. The goods were damaged in the course of transit between countries. There is remedy for that damage provided for in the Warsaw Convention. That being the case, the Warsaw Convention applies regardless of whether there might be other remedies available as matter of domestic law. ... The Warsaw Convention is meant to be an exhaustive source of remedies for damage sustained as result of international carriage by air. ... [37] As well, in McDonald v. Korean Air (2002), 26 C.C.L.T. (3d) 271 (Ont. S.C.J.), aff’d (2003), 26 C.C.L.T. (3d) 275 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 160, Hermiston J. concluded Article 17 of the Warsaw Convention was “exclusive and exhaustive” in respect of what the plaintiff could argue in terms of liability allegations. [38] Another case of note is Gal v. Northern Mountain Helicopters Inc. (1998), 1998 CanLII 6810 (BC SC), 54 B.C.L.R. (3d) 87 (B.C.S.C.), aff’d 1999 BCCA 486 (CanLII), 177 D.L.R. (4th) 249, in which the Court accepted that any remedies sought for personal injury suffered on an international flight were confined to the Warsaw Convention. At paragraphs 31 and 32 the court stated: [31] As well, have concluded that the plaintiff has no cause of action in negligence in light of this international carriage by air which brings it within the jurisdiction of the Warsaw Convention. The Warsaw Convention remedy pursuant to Article 17 is exclusive, that is, it extends to all claims made by passenger against carrier arising out of international carriage by air. See Article 24(1) and (2). [32] If the flight is one to which the Warsaw Convention applies, and am satisfied that it is, the plaintiff has no claim except for that permitted under the Warsaw Convention. See Sidhu v. British Airways PLC, [1997] All E.R. 193 (H.L.). [39] Accordingly, since Flight 361 was an international flight to which the Montreal Convention of 1999 applied with respect to all of the defendants, it is clear and obvious to this Court that the sole and exclusive claims that can be advanced by the plaintiffs are claims that must be launched pursuant to Article 17, Paragraph 1, of the Montreal Convention of 1999. In light of that, the plaintiffs’ claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and the request for punitive damages as outlined in the statement of claim do not disclose a cause of action. [40] Nor has the applicant established that cause of action exists within the meaning of Article 17(1) of the Montreal Convention of 1999. [41] Article 17(1) of the Montreal Convention of 1999 provides remedy for passengers who have been injured on international flights. If passenger sustains “bodily injury” as result of an accident which took place on board the aircraft or in the course of embarking or disembarking, the carrier is liable without proof of fault on the part of the carrier. strict liability regime has been set up with cap of damages established within the Convention if the passenger fits the criteria as set out in Article 17(1). That would be the sole and exclusive remedy available to the passenger. [42] It must be established that passenger sustained “bodily injury.” In this case there is absolutely no evidence of “bodily injury” in any of the materials filed by the applicant, including the amended statement of claim and affidavit material. There is no evidence that any bodily injury was sustained by either the proposed representative plaintiff or any of the other passengers in the aircraft during the international flight. [43] It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. The case law, as established, interpreting Article 17 of the Warsaw Convention (almost identical to Article 17 of the Montreal Convention of 1999) is entirely consistent that an individual must have suffered from bodily injury being palpable, conspicuous or physical injury (Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385 (1974)) as opposed to mere anguish or psychological injury. [44] “Bodily injury” pursuant to Article 17 has been described as “direct, concrete bodily injury as opposed to mere manifestation of fear and anxiety in Carey v. United Airlines, 255 F.3d 1044 (9th Cir. 2001). [45] There is some limited acceptance for psychological injury causally connected to recognizable bodily injury in very specific circumstances as was determined in Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2nd Cir. 2004), as stated by the United States Court of Appeals for the Second Circuit: ... Our exhaustive examination of these sources leads us to conclude that carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries. [46] Also Terrafranca v. Virgin Atlantic Airways, 151 F.3d 108 (3rd Cir. 1998), provided that the only situation in which psychological injury is compensatory is when the psychological injury flows directly from bodily injury. [47] As previously pointed out, the court recently in Wales in Akehurst and Others v. Thomson Holidays Ltd. held that the tour operator was not liable for psychological injuries suffered by the claimants as result of the application of the Warsaw Convention but liable contractually independent of the Warsaw Convention. [48] Having accepted the allegations as true as contained in the statement of claim, the only facts the Court has before it is that the environmental conditions on the aircraft threatened the health and lives of the passengers. As well, in addition to the prolonged physical pain and duress, the on‑going discomfort triggered psychological and/or emotional trauma which increased as the ordeal persisted. [49] Even if the Court were to consider in addition to the facts pleaded in the statement of claim the evidence as contained in the affidavits of Thomas Walton in determining whether it had “any evidence” of bodily injury, the most that Mr. Walton swore to was that the passengers he could see were sweat‑soaked, disrobing and red faced. Babies were crying and even shallow breaths had become difficult for him and his wife. [50] At best, what has been pleaded is physical discomfort as opposed to bodily injury as contemplated by Article 17(1). [51] The Court has carefully considered the deficient information as disclosed by the proposed representative plaintiff regarding any “bodily injury” as well as the affidavit material filed by the defendants and, in particular, the five flight attendants and Maria Xavia. All of the flight attendants have sworn that while it was somewhat uncomfortable on the plane before the air conditioning was able to be started, at no time were any medical forms completed by any flight attendant which would have been required if any medical treatment had been sought by any passenger and provided by the flight crew. [52] Having determined that it has not been established by the applicant that any bodily injury had been sustained by any of the passengers on Flight 361 or that any psychological injury had been sustained as a result of any bodily injury as required within the meaning of Article 17(1) of the Montreal Convention of 1999, as a matter of law it is plain and obvious that the claim does not raise a reasonable cause of action as within Article 17(1) of the Montreal Convention. [53] The applicant’s counsel argued that in the event that the Court was to determine that the Montreal Convention of 1999 was applicable and was to determine that the Applicants had not sustained “bodily injury”, that the Court should allow the applicant to amend its amended statement of claim to bring the claim within the ambit of the Montreal Convention of 1999. That, according to the applicant, was clearly available to the Court pursuant to Section 7(1) of the Act. [54] The Court is not prepared to grant the applicant leave to amend their claim as, under the circumstances of this case, it would not be appropriate. The Court accepts that the applicant has candidly put forth his best evidence as to what transpired to he and the other passengers before Flight 361 took off for Canada from Punta Cana, Dominican Republic. It would not be feasible to the Court that the applicant would now put forth affidavit material that the passengers all suffered from something other than discomfort or anxiety. On the chance that an individual passenger did sustain bodily injury, certainly he or she could pursue litigation against the appropriate defendants independent of this application for class action. But as class, to allow the applicant the opportunity of amending his materials would serve no useful purpose. If Mr. Walton or any of the passengers had sustained any bodily injury, the Court would have expected that fact to have been pleaded. The Court assumes that it was not pleaded because no passenger on that plane sustained anything more than short term discomfort. While certainly the Court acknowledges that the situation that arose was understandably irritating, at the end of the day, in the year 2004, is to be regrettably expected as part of today’s perils of air travel. [55] For all the reasons as outlined herein the applicant has failed to establish the first criteria as set out in s. 6(a) of the Act, and the application for certification shall be dismissed on that basis alone. [56] However, in the event the Court is in error in that regard, the Court wishes to briefly outline its reasons why it would have dismissed this application for certification on each of the other four criteria as outlined in s. of the Act. (2) Section 6(b) identifiable class [57] At first blush it would appear that “215 passengers of Flight 361” would certainly be an identifiable class; however, it is not quite that simple. [58] The applicant bears the onus of establishing that group of people have the same causes of action against the defendants about common issues. The Court has concern that very few, if any, of the other passengers on the flight other than Mr. Walton and his son‑in‑law, Mr. Slusar, wish to take action as against the defendants. At most, Mr. Walton in paragraph 19 of his affidavit sworn February 2, 2005, states: ... That have had contact with many of the individuals who were on board this aircraft and attached to this my Affidavit and marked as Exhibit “A” is list of those people together with their place of residence and phone numbers. [59] And at paragraph 20(d): 20 ... (d) have the support of at least 165 passengers, either individually or through group representative, out of the approximately 215 passengers. These individuals have contacted me and entrusted me to act on their behalf. believe would have nearly 100% support of the passengers if had way to contact all of them; [60] The Court has difficulty in accepting that all of these people Mr. Walton is referring to wish to commence an actual action as against the defendants as opposed to just standing behind Mr. Walton. Of significance to the Court is the material filed by the applicant, including statements from several other passengers whose concerns can be categorized as general venting against the airline as opposed to filing specific complaint, as well as the large amount of evidence as filed by the flight attendants who all consistently have sworn that while the cabin of the aircraft was somewhat uncomfortable for period of time, at no time was any airline personnel required to complete medical report for any passenger on Flight 361 which would have been required if any form of medical attention or treatment had been provided on the aircraft. In other words the suggested identifiable class is very overstated and over‑inclusive. [61] An identifiable group is not just group of people. As stated by our Court of Appeal in Jameson Livestock Ltd. v. Toms Grain Cattle Co. Ltd., 2006 SKCA 20 (CanLII), [2006] S.J. No. 93 (QL), at paragraph 28: 28 However, the mere fact that group of people is identifiable is not sufficient to render them class for the purpose of class action. In addition, there must be rational connection between the proposed class definition, the proposed causes of action and the proposed common issues. In effect, the class description must describe persons who in fact have claim asserted in the statement of claim. This has often been interpreted to mean that all members of the proposed class must have at least colourable claim and that the class definition should not be over‑inclusive or under‑inclusive, sweeping in those who do not have claim against the proposed defendants or arbitrarily excluding others who share the same cause of action. ... [62] The individual circumstances of each passenger would have to be analyzed in depth both as to how they booked his or her vacation, their reaction to the unfortunate situation as well as what transpired after the flight, e.g., whether or not they accepted the settlement and cashed in his or her settlement cheque. [63] In this case, assuming the passengers exclusive remedies are as contained in the Montreal Convention of 1999, it would have to be established they had sustained “bodily injury” or psychological injury resulting from bodily injury. At this time there is no evidence that the proposed representative or any of the other passengers suffered from any bodily injury as opposed to anxiety. There is no identifiable class of passengers who have cause of action against anyone and thus there is no identifiable class. [64] Even in the event any of the passengers were entitled to pursue claim, there is no properly identifiable class. As stated earlier, there are too many variables in the claims for negligence, unlawful confinement and breach of contract. [65] With regard to the unlawful confinement as against the pilot, there is only the evidence of Mr. Slusar that he was not allowed to leave the aircraft; no one else. One person, namely, Mr. Slusar, does not constitute class. [66] With regard to the claim in negligence, consideration in each case would have to be given to the defendants’ duty, particular breach of that duty, the cause of any damage and the particular damages to each passenger in light of the specific circumstances of each individual passenger. If individual circumstances have to be looked at, that is not an identifiable class. [67] Also the claims of breach of contract as against the defendants, MyTravel and Signature, would need individual analyses into the circumstances of each passenger. Extensive analysis would be needed. Some passengers booked packages through MyTravel, some passengers booked packages through Signature and some passengers booked their trip themselves through the internet or other means. There would be different terms and conditions attached to these different modes of contracts that would have to be analyzed. [68] As well, there is the matter of 149 of the passengers having signed releases and cashed in the settlement cheques sent to them. What would be required is the individual circumstances of each passenger being analyzed, precluding there being true identifiable class. (3) Section 6(c) common issues [69] For all the reasons that it would be impossible to identify an identifiable class, it would be unrealistic and almost impossible to find that there were common issues as between all of the passengers and all of the defendants. There are numerous scenarios that would arise depending upon the unique and specific circumstances of each passenger. [70] It is impossible at this stage to state with any certainty the different situations of the passengers other than to say that there are many different situations and thus there is less likelihood that there are any common issues that can be applied straight across the board. (4) Section 6(d) Preferability [71] The preferability analysis is based on and guided by the three principal advantages of class actions identified by the Supreme Court of Canada in the trilogy: judicial economy, access to justice and behaviour modification. [72] The number, complexity and significance of the individual issues and common issues are each key components in determining whether class proceeding is preferable. [73] While the five factors as outlined in s. of the Act individually are not basis to refuse certification, it is also quite clear that their presence can be looked at in examining the preferability of class proceeding. [74] It is extremely clear that court is not to simply assume that class action is preferable procedure because of its theoretical advantages. There are several U.S. decisions that have denied certification in aircraft accident cases, including Marchesi v. Eastern Airlines, 68 F.R.D. 500 (E. N.Y. 1975), and Sioux City v. United Airlines, Inc., 1990 U.S. Dist. LEXIS 181 (N.D. (E. Div.) Ill. 1990). [75] As stated in numerous cases, such as the case here, class action is not preferable procedure where the causes of action, the damages alleged and the issues proposed by the plaintiff as being common were dependent upon the class members individually establishing their claims against the defendant. [76] Considering the facts of this case, as whole, class action would be completely unmanageable, and certification would result in multitude of individual trials which would completely override any advantage that might be derived from trial of few potential common issues. [77] The prospect would be large in this case for third party claims in the breach of contract cause of action as against numerous travel agencies. That alone would be reason enough to render class proceedings unduly complicated and unmanageable as was found in Sutherland v. Canadian Red Cross (1994), 1994 CanLII 7243 (ON SC), 17 O.R. (3d) 645 (Ont. Ct. Gen. Div.). [78] In addition, the issue of the releases signed by some of the passengers also is of great concern to the Court and would be large factor in not proceeding by way of class action. [79] Although, as it turns out, not of great importance considering the decision of the Court in this certification application, the Court has grave concerns as to the deficiency of the proposed litigation plan. There is absolutely no detail in the applicant’s plan to allow the Court to assess the ability of the action to proceed in class context if it had decided otherwise and would have required substantial amendments. [80] Lastly, if any of the passengers were to pursue claim against the defendants, the individual claim would be straightforward pursuant to the provisions of the Montreal Convention of 1999. The Convention assumes strict liability against all of the defendants in this case. The only issue to be determined would be if the individual passenger sustained “bodily injury” and, if so, what the appropriate damage would be. There would be no need for complicated scientific expert evidence; simple calculation of damages. (5) Section 6(e) the representative plaintiff [81] In the event the Court had determined that there was an identifiable class, Thomas Walton would not have been the appropriate person to fairly and adequately represent the interests of the class for numerous reasons, including the fact he had booked his vacation through Signature as opposed to other passengers booking through MyTravel. He could not fairly and accurately represent those persons who booked their vacation through MyTravel or by themselves through the internet or other means. [82] As well, he was not one of the 149 persons who cashed in the settlement cheques and thus could not fairly or adequately represent those passengers who did. Again, there are just too many variables for any one passenger to fairly and adequately represent all of the interests of all of the passengers. That is not to say that his intentions were not sincere they were but impossible to accomplish in the circumstances of this case. [83] As stated before, his plan for the class action certainly lacked detail, and the Court, if it had granted the certification application, would have required much more detailed plan be put forward with regard to advancing the class action. [84] For all the reasons as outlined in this judgment, the certification application is dismissed. Most importantly, the pleadings do not disclose cause of action. The negligence, unlawful confinement and breach of contract claims cannot be made outside the provisions of the Montreal Convention of 1999 as the claims being made were by passengers on an international flight. The Montreal Convention of 1999 clearly applies to any claim being pursued by any of the passengers against the defendants in this case. [85] Nor is there any cause of action as against any of the defendants within the ambit of the Montreal Convention of 1999 on the evidence presently before the Court as there is no evidence that any of the passengers in Flight 361 suffered from anything other than mental distress or anxiety. It is necessary to establish that the passenger sustained bodily injury. That is fatal to any claim they may have had against any of the defendants pursuant to the Montreal Convention of 1999, resulting in no cause of action. [86] As well, none of the other criteria as outlined in s. of the Act have been met by the applicants. There is need for any potential claims of the passengers in Flight 361 to be individually assessed both as to liability and damages. Thus, the application for certification is denied. J. M.L. Dovell QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants CORRIGENDUM July 20, 2006 DOVELL J. to Judgment of May 16, 2006 (2006 SKQB 231) [87] On page 3, para. [7], line 5, “Holidays” should read “Holdings”. J. M.L. Dovell

The plaintiff applies for certification pursuant to The Class Actions Act on behalf of himself and the other passengers of an international flight from the Dominican Republic to Regina. The flight was delayed for about 1.5 hours at the Dominican Republic airport as result of several mechanical difficulties. The claim is with respect to alleged negligence, unlawful confinement and breach of contract. HELD: The applicant has failed to establish the first criteria as set out in s. 6(a) of the Act. The application for certification is dismissed on that basis. 1) The court accepts that all of the defendants are governed by the provisions of the Montreal Convention of 1999. The wording of Article 29 of that agreement is clear. Any claims for damages of passenger of an international flight can only be brought within the ambit of the Montreal Convention of 1999. The court reviewed the cases and found that the plaintiff's claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and punitive damages do not disclose a cause of action. 2) The sole exclusive remedy available to passengers is set out in Article 17(1) of the Montreal Convention of 1999. strict liability regime has been set up with cap of damages where passenger sustains 'bodily injury' as result of an injury that occurs in the course of embarking or disembarking. It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. It has not been established that any bodily injury has been sustained by any of the passengers on Flight 361. It is plain and obvious that the claim does not raise a reasonable cause of action. Corrigendum received dated July 20, 2006 and added to fulltext.

e_2006skqb231.txt

nan INFORMATION Y245194 2004 SKPC 82 IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT BETWEEN: HER MAJESTY THE QUEEN H. (A.R.) Inez Cardinal for the Crown Catherine Knox for the Youth September 14, 2004 P. S. KOLENICK PCJ JUDGMENT [1] The accused youth is charged that on April 27, 2002, near Dundurn Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired by alcohol or a drug, contrary to Section 253(a) of the Criminal Code. [2] The issue which arose herein was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. Review of Evidence for the Crown Sgt. Ian Mitchell [3] At about 6:00 p.m., Sgt. Mitchell of the RCMP received dispatch in regard to possible impaired driver. Therefore he patrolled south on Highway 11, hoping to intercept it. At approximately 6:53 p.m., he met vehicle which matched the description in the complaint, being operated by the accused. It appeared to be speeding. Therefore, he crossed the median on the four lane highway, followed behind, and observed. [4] He estimated the speed of the accused vehicle to have been at least 120 kilometres per hour, which was over the speed limit. As well, he noted the accused’s vehicle to make an abrupt lane change twice, without signalling. Further, it was wandering somewhat within the lane, but did not cross into the adjacent one. [5] At 6:55 p.m., after only about two minutes of observation, Sgt. Mitchell engaged the vehicle emergency flashers and shortly thereafter the accused pulled onto the shoulder and stopped. He suggested that there was some brief delay by the accused’s vehicle and that the braking was abrupt. On the evidence, the accused had passed another vehicle just prior to responding to the emergency lights and stopping, which presumably resulted in the lane changes which the officer had noted. [6] When Sgt. Mitchell first spoke to the accused behind the wheel, he was aware of strong smell of beverage alcohol in the vehicle. He asked him on two occasions if there was alcohol in the car, and the accused responded that there was not. However, the officer located part-full bottle of beer behind the front driver’s side seat, which, on the evidence belonged to Ashley Beaton. She was seated in the rear driver’s side seat, and testified for the defence. There were also two other male passengers. [7] Once the accused was out of the vehicle, Sgt. Mitchell was aware of very strong smell of beverage alcohol on his breath. He confirmed from him that he had one bottle of beer with his lunch, at approximately 2:30 p.m. In regard to other signs of impairment, he noted flushed face, eyes which were glazed and bloodshot and movements which were slow and deliberate, but no problems with balance. He described him as being “cocky” but cooperative. [8] At the scene, he also conducted field sobriety test known as the horizontal gaze nystagmus, which purports to note the degree of involuntary jerking of the eyes as they follow beam of light. According to the officer, he failed six out of six of the clues. Failing four of six indicates seventy-seven percent possibility of the presence of blood alcohol concentration of one hundred milligrams percent or more. The officer had learned this procedure at training course which he had attended in February 2002, and has only used it three times since then. He also administered heel and toe test to determine balance. The parameters of it require the presence of at least two out of eight of the indicators in order to fail. However, the accused had displayed only one, so it was regarded as inconclusive. At the detachment, Sgt. Mitchell also conducted Romberg test, in which the accused is required to tip his head back, while the officer observes for eyelid flutter. Again, the accused allegedly failed, which would indicate recent use of marijuana. [9] Sgt. Mitchell was not qualified as an expert in respect to the prior-mentioned field sobriety tests, nor was there any other expert testimony on the issues of the proper method, interpretation, and their relative reliability. [10] In any event, at the scene, at 7:00 p.m., he read the accused breath demand and rights to counsel, both of which he understood. They arrived at the Saskatoon detachment at approximately 7:45 p.m., after which the accused spoke to legal aid duty counsel for approximately ten minutes. Once that was concluded, he provided two breath samples of eighty milligrams percent each, at 7:54 p.m., and 8:15 p.m., respectively. [11] In cross-examination Sgt. Mitchell confirmed that there was no smell of marijuana use in the motor vehicle, nor were drugs located, despite his claim that the accused having failed the Romberg test was reliable indicator of marijuana consumption. [12] He indicated further that the policy of the RCMP in Saskatchewan is to charge “over .08" only when subject blows one hundred milligrams percent or higher, unless there is an injury in motor vehicle accident. However, it is discretionary matter, and in the past he has charged impaired driving with blood alcohol concentration as low as fifty milligrams percent. Evidence for the Defence The Accused [13] The accused is now twenty years old, and resides in Regina. He testified that the only alcohol which he had consumed on the day of the alleged offence was one bottle of beer, with his lunch, at approximately 2:30 p.m. The day before however, he had been partying with friends, and did not arrive home until 2:00 or 3:00 a.m. He was unsure how much he had consumed, but estimated that it was probably more than twenty bottles of beer, as well as having shared marijuana joint with four friends. [14] The next morning he awoke at roughly 11:00 a.m. or noon. As he was feeling somewhat hung over, he had one beer only, and no drugs. He decided with his friends that they would go to Saskatoon to skate, and they headed out for that purpose at 3:30 or 4:00 p.m. [15] He confirmed also that Ashley Beaton had brought 1.1 litre of Colt 45 beer. He had told her not to bring alcohol in the car, but she had insisted, so he relented. On route, the other three drank the beer with some small glasses, but the accused did not consume any of it. As well, the others had raised their glasses in toast to some of the other vehicles which they encountered on the trip. [16] The accused indicated that he was not feeling the effects of his prior consumption, and did not believe that his ability to operate motor vehicle was impaired by alcohol or drug. Further, there was nothing unusual in his manner of driving and the trip was in all respects normal, during which he was listening to music and talking with his friends. [17] He agreed that he may have been speeding, as observed by the officer, but that he was also in the process of passing another vehicle, and normally travels at approximately ten kilometres per hour over the speed limit on the highway. As well, he was unsure if he had signalled the lane changes, and may not have done so, because traffic was light, and he might not normally signal to pass the other vehicle on the divided highway with no other traffic being affected by the lane change. [18] He testified further that it was windy at the time, which may have caused him to weave somewhat in his lane, but on the evidence his vehicle did not cross into the other lane. Also, he pulled over as soon as he was aware of the police emergency lights, which he may not have immediately noticed because he was talking with his friends. As well, he did not feel that there was anything unusual in the manner in which he braked, and the process of stopping had to be delayed about thirty seconds for safety, because of the presence of the other vehicle which he had just passed. [19] He disputed that at the time he was displaying any worthwhile signs of impairment. In regard to the smell of alcohol on his breath, he suggested that perhaps it was from his substantial consumption of alcohol the day before, but he had only one beer that date, before they headed for Saskatoon. Specifically, he denied drinking any of Ashley Beaton’s beer in the car, although he allowed the others to do so. [20] He explained further that his bloodshot eyes may have been from his consumption the night before. As well, he is chain smoker and some were smoking in the vehicle, which could have caused the redness. Further, he suggested that his flushed face was perhaps the result of nervousness from his encounter with the police. Ashley Beaton [21] Ashley Beaton, age twenty, has been friend of the accused since they were children. She indicated that she in unable to recall all of the details of the event, presumably because of the passage of over two years from the date of the alleged occurrence. [22] However, she confirmed that she had brought the beer in the car, but that the accused did not drink from it, because he was driving. As well, she believed that he only had one beer at home that day before they departed. Further, during the trip, she was not aware of any nature of erratic driving by the accused which caused her any concern for her personal safety. [23] In cross-examination she indicated that she could not recall when she had first seen the accused that date, but believed it had been in the early afternoon. Apparently therefore she was not with him for the whole day. As well, she did not remember seeing him the previous day during the party, nor did she notice the smell of alcohol on the day of the alleged offence. Analysis Is the evidence sufficiently credible to prove beyond reasonable doubt the offence of impaired operation of motor vehicle, contrary to s. 253(a) of the Criminal Code? [24] In general, the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, am guided by the principles restated in R. v. McKenzie (P.N.) (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.) (1992) 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), at paragraph 4: “First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” [25] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence of the accused raises reasonable doubt. [26] In R. v. Huot (M.) (No. 3) (2001) 2001 CanLII 368 (SK PC), 209 Sask. R. 171, referred to the appropriate legal principles to be applied by the court in the assessment of evidence of alleged impairment, commencing at paragraph 26: “[26] In respect to this issue, in R. v. Arevalo (B.), [2001] S.J. No. 218; 2001 CanLII 394 (SK PC), 205 Sask. R. 315 (Prov. Ct.), noted the following commencing at paragraph 8: ‘[8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at paragraph 14: ‘In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.’ [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness of one’s feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances in the case.” [27] Further, in R. v. Landes (T.) (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B., Klebuc, J.), the court referred to Stellato, supra, and made the following observations, commencing at paragraph 16: ‘[16] An opinion as to impairment, be it by the trial judge or nonexpert, must meet an objective standard of “an ordinary citizen” or “reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. To that end list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive motor vehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall, at p. 66 (R. v. Hall (S.J.) (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62).’” [27] Therefore, these principles must be considered on the basis of the evidence. Evidence of Improper Driving [28] In Landes, supra, the court made the following observations, in the context of the evidence therein, at paragraph 19: “[19] Manner of Driving It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physical capability, or both, to drive motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, it must be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g., mere negligence. Cst. Briant testified people run stop signs when they are sober and when they do, accidents often occur. similar observation may be concerning the quick turn and loss of control. The reference to speed of at least 60 kilometres per hour has little probative value in the absence of evidence as to the posted speed limit for the thoroughfares in question.” [29] On the Crown evidence herein, the accused was operating his vehicle on divided highway, in light traffic. He was exceeding the speed limit and had failed to signal lane changes, which he made in an abrupt manner as he passed the only other vehicle in the immediate vicinity. As well, although the vehicle wandered somewhat within its lane, it did not stray into the other lane of traffic. The officer noted also that the accused’s response in stopping was somewhat delayed, and that when he did stop, he braked abruptly. The opportunity to make the observations was only during roughly two minutes. [30] However, the accused took issue with the suggestion that there had been anything of note either in the timing of the stop, or the manner of braking. At that time, he was visiting with his companions, and as soon as he was aware of the emergency lights, he began to slow and pull over to the shoulder, being required to do so safely because he had just previously passed the other vehicle in the immediate vicinity. He indicated also that it was not unusual for him to speed to some extent on the highway, which may have been more on this occasion, as he passed the said vehicle. He did not dispute that he may have not bothered to signal, because the traffic was light and he was on highway. He agreed as well that the weaving within the lane may have occurred, but that there was some wind, and on the evidence the vehicle had not entered into the other lane to any extent. [31] Having given careful consideration to the evidence of the alleged erratic driving, and the accused’s explanation for it, in my view, the aspects which were observed may well have been the result of driver inattention which could have occurred whether or not his ability to operate motor vehicle was impaired by alcohol or drug. Therefore, that evidence will not be given any weight herein. Evidence of bloodshot or watery eyes [32] The accused suggested that his bloodshot eyes may have been the result of his chain smoking, and that his companions and himself had been doing some smoking on route before they were stopped by Sgt. Mitchell. That description of possible cause has an air of reality to it. As such, the bloodshot eyes will not be considered as reliable indicator herein. Further, the evidence of glazed eyes is inconclusive, in the absence of reliable evidence of bloodshot eyes. As well, the officer did not observe at all watery eyes in the accused as an indicator of impairment. Evidence of flushed face [33] The accused suggested that he may have been blushing at the time from nervousness in his encounter with the police. However, he did not indicate that he tends to get flushed face when he is under stress, and it was not particularly evident when he testified herein that the stress of the trial was causing him to blush. Therefore, the flushed face will be considered as reliable sign of impairment. Odour of alcohol [34] There is no expert evidence in these proceedings as to the rates of absorption and elimination of alcohol, and in any event, the accused was uncertain as to his precise consumption the previous day except that it was probably in excess of twenty bottles of beer, as well as single bottle of beer he had during the day. In any event, the evidence of very strong odour of beverage alcohol is reliable indicium of impairment, due to the consumption of alcohol by the accused, and it will be considered herein. Lack of coordination or inability to perform physical tests [35] On the evidence, the accused did not have any problems with balance, but rather he was moving in slow and deliberate manner. In my view, if the accused was not displaying difficulty with balance and coordination, the suggestion that he was moving slowly is not a credible indicator of impairment and will not be given undue weight for that purpose. [36] In regard to the matter of physical tests, as noted previously, the Crown purported to rely on the results of standardized field sobriety tests, including horizontal gaze nystagmus, heel and toe, and the Romberg. Sgt. Mitchell had learned at least some of the methods at training course in February 2002. Although he had used them since, it was only on few occasions, and he did not suggest that he was an expert. He claimed that the accused had failed the nystagmus because he had failed six out of six indicia, and when there are at least four out of six, it indicates seventy-seven percent chance of blood alcohol concentration of one hundred milligrams percent or more. As well, the heel and toe test was regarded as inconclusive because the accused displayed only one of eight indicators and at least two of eight are required to indicate impairment. He also failed the Romberg test, which involved the officer observing the accused’s eyelids fluttering while tipping his head back, and failure indicated recent marijuana use. In any event, I have concluded that in the absence of expert evidence to explain the scientific basis for these tests, the proper method of application, and to comment on their relative reliability, it is not appropriate for the court to rely upon them on the issue of guilt or innocence, to the prejudice of the accused. [37] In regard to the other potential indicators of impairment, as per Stellato, supra, and Landes, supra, the accused did not display slurred speech. As well, he appeared to fully comprehend his legal rights and obligations in his communications with the peace officer, and legal aid duty counsel. He did not display any mental confusion, or noteworthy inappropriate behaviour. He was described as being “cocky” but cooperative. In general, he conducted himself in rational and reasonable manner. The effect of the Intoxilyzer readings [38] As noted, the accused blew eighty milligrams percent on two occasions. Of course, he was not charged with an offence of being over .08, contrary to s. 253(b) of the Criminal Code, and indeed the policy of the RCMP is to charge only on results of one hundred milligrams percent or higher, unless there is motor vehicle accident in which an injury occurs. Further, Sgt. Mitchell indicated that in the past he had charged an accused with impaired operation, contrary to s. 253(a) of the Criminal Code, with blood alcohol concentration as low as fifty milligrams percent. Every situation in that respect will depend on its own circumstances, and obviously the particular tolerance to the same amount of alcohol consumption will vary from one individual to the next. Further, the accused did not dispute the accuracy of the Intoxilyzer results, and as such, he must be presumed to have consumed sufficient alcohol at some point to have achieved same. [39] However, regardless of that alcohol consumption, and the accused’s blood alcohol concentration, the only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused has offered a reasonable explanation for them. As a result, the evidence is so frail as to leave a reasonable doubt as to impairment, and the accused must be acquitted. Therefore, he is not guilty of impaired operation, contrary to s. 253(a) of the Criminal Code.

The accused youth is charged with driving a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to s. 253(a) of the Criminal Code. The issue was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. HELD: The only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused offered a reasonable explanation for them. The evidence is so frail as to leave a reasonable doubt as to impairment and the accused was acquitted. 1) The accused was exceeding the speed limit and failed to signal lane changes. His vehicle wandered somewhat in the lane, but did not stray into the other lane. The observations of his driving were made over 2-minute period. The aspects of the driving that were observed may have been the result of driver inattention. 2) The bloodshot eyes may have been the result of chain smoking. Further, the evidence of glazed eyes is inconclusive in the absence of reliable evidence of bloodshot eyes. 3) The evidence of flushed face was reliable evidence of impairment. 4) The evidence of strong odour of alcohol is reliable indicia of impairment, due to the consumption of alcohol by the accused. 5) The accused did not have any problem with balance, but was moving in slow and deliberate manner. If the accused was not displaying difficulty with balance and coordination, then the suggestion that he was moving slowly is not a credible indicator of impairment. The accused did not display slurred speech and appeared to comprehend his legal rights and obligations. He did not display any mental confusion or inappropriate behaviour. In the absence of expert evidence to explain the scientific basis for the physical tests administered, the proper method of application and their reliability the Court could not rely on them. 6) The accused blew 80 milligrams on two occasions. However, regardless of the alcohol consumption and the accused blood alcohol concentration, the only reliable indicia of impairment were a strong odour of alcohol and a flushed face.

e_2004skpc82.txt

J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Murphy, 2004 NSPC 30 Date: 2004-05-12 Docket: 1347575 Registry: Bridgewater v. Ausman William Murphy Defendant Judge: The Honourable Judge Crawford Heard: March 29, 2004, in Lunenburg, Nova Scotia Written Decision: May 12, 2004, in Bridgewater, Nova Scotia Counsel: Lloyd Tancock, for the Crown Joel Pink, Q.C., for the Defence By the Court: [1] Ausman William Murphy faces a charge under s. 13(1)(a) of the Nova Scotia Occupational Health and Safety Act that, as an employer, he failed to take reasonable precautions to ensure the health and safety of persons at a workplace. [2] The charge arises out of tragic incident aboard the fishing vessel “Big Guy M.S.K.K.F.” on August 19, 2003, in which fisher, Chadwick Zinck, lost his life. [3] The parties submitted joint statement of facts as follows: On Tuesday, August 19, 2003 Ausman Murphy along with Chadwick Zinck, Richard Heisler and Barry Cook set out to check tuna pen in the waters of the Atlantic Ocean off Horse Island near Northwest Cove, Lunenburg County, Nova Scotia. The defendant Murphy was operating the Motor Vessel “Big Guy MSKKF” which was owned by and registered to Larry Harnish. Zinck and Heisler were crew members for this trip and Cook was an invited guest. [N.B.: Richard Heisler testified in contradiction to this that it was he who operated the vessel that day, not the defendant.] In the belief that there were dead tuna fish in the tuna pen it was decided that somebody should go into the tuna pen to conduct search. Chadwick Zinck, despite having never done so before and having no experience diving with scuba diving equipment, was anxious to perform this task. He did so using diving equipment borrowed from Cook and another individual who was not present. Zinck ultimately did not return to the surface and was subsequently located near the bottom of the tuna pen by diver who was summonsed for that purpose. It was determined by medical autopsy that Zinck died of “drowning (salt water) due to inexperienced scuba diving.” [4] In addition, based on the evidence before me, make the following findings of fact: Zinck and Heisler had been recruited by Harnish to fish with him and the defendant in the 2003 tuna fishery. · All four thought of themselves as self-employed fishermen. Harnish owned the boat and one tuna pen. The defendant owned another tuna pen. Tuna could only be killed when Brian Coolen was aboard, as he owned the tuna licence under which all four were fishing. · Harnish, Murphy, Heisler and Zinck had a profit-sharing agreement, pursuant to which 10% of the gross was paid to Brian Coolen for the use of his tuna licence, 10% to Larry Harnish as boat share, 26% to Murphy or Harnish, depending on whose nets the fish in question came from, and after expenses were deducted, the net profits would be divided equally among the four. Larry Harnish, the owner of the boat, gave the orders when he was aboard; when he was not, no orders were given, as each of the three knew his duties and was able to work without direction. Zinck was dependent, in varying degrees, on Harnish, Murphy and Coolen, as he had no gear, boat or licence of his own; in particular, Harnish, as owner of the boat, could deny any of the other three the right to use his boat. All four were paid directly by the fish buyer, L.R. McCrae Fisheries Ltd., which did the accounting in accordance with their profit-sharing agreement and issued cheques and T4F certificates for each fisherman accordingly. Zinck was insistent on making the dive; he “tortured” Barry Cook and would not take no for an answer until Cook reluctantly lent him his equipment. Cook, licenced diver, was on board, advised Zinck in the use of the equipment and told him to stay within 10 to 12 feet below the surface. [5] The defendant conceded at the outset of the trial that the issue to be determined was whether or not he was an “employer” within the meaning of the Occupational Health and Safety Act. And the Crown agreed that it was the Crown’s burden to establish this beyond reasonable doubt. In other words, if find that the defendant was an employer, there is no doubt that, as such, he failed to take reasonable precautions for Mr. Zinck’s safety. Legislation [6] The relevant portions of the Occupational Health and Safety Act include the following: In this Act, (j) "dependent contractor" means person, whether or not employed under contract of employment and whether or not furnishing the person's own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another on such terms and conditions that the person is (i) in position of economic dependence upon the other, (ii) under an obligation to perform duties mainly for the other, and (iii) in relationship with the other more closely resembling that of an employee than an independent contractor; (o) "employee" means person who is employed to do work and includes dependent contractor; (p) "employer" means person who employs one or more employees or contracts for the services of one or more employees, and includes constructor, contractor or subcontractor; (ae) "self‑employed person" means person who is engaged in an occupation on that person's own behalf but does not include dependent contractor; 13 (1) Every employer shall take every precaution that is reasonable in the circumstances to (a) ensure the health and safety of persons at or near the workplace; Was the defendant Chad Zinck’s “employer” for the purposes of the Occupational Health and Safety Act? [7] In order to decide this question, it will be necessary to look at the obverse question: was Chad Zinck an employee of the defendant? If so, it follows that the defendant was his employer and, as such, owed him the duty set out in s. 13(1)(a) above. [8] The fact that fishermen have traditionally seen themselves as being self-employed is an important factor in deciding this issue, but is not, in and of itself, conclusive. However, it does make it clear that fishers are not simply “employees” in the normal use of that term. [9] The argument of the Crown is that fishers should be classified for the purposes of this Act as “dependent contractors” under s. 3(j) above. [10] The Crown took the position that both the defendant and Larry Harnish were employers for the purposes of the Act, but as Harnish was not present on the day of the accident, only the defendant was charged. [11] This might have been an easier argument for the Crown to make if it was apparent that the defendant was acting as skipper or captain in Harnish’s absence. But the evidence simply did not establish that the defendant was in any sense acting as Mr. Harnish’s lieutenant or second in command. It was Richard Heisler who was operating the vessel, not the defendant; and neither Heisler nor Harnish testified that the defendant had any kind of authority over the other fishers. [12] If the Crown is to make its case under s. 3(j) it will have to establish beyond reasonable doubt that Chad Zinck was economically dependent on the defendant, was required to perform duties mainly for him and was in relationship with him that more closely resembled an employee relationship than that of independent contractor. [13] As fisherman without boat, gear or licence, Chad Zinck would obviously be economically dependent on someone else for his livelihood. In this case, he was dependent on Harnish for the boat and part of the gear, on Coolen for the licence and on the defendant for the balance of the gear. The Crown’s argument that he was dependent on Harnish and Murphy jointly does not accord with the profit-sharing agreement. Apart from the differing percentages allotted to Harnish and Murphy for the boat and gear (out of which they had to pay expenses for what they owned), they were entitled only to an equal share with Zinck and Heisler. It is noteworthy that there was no differential due them as captain or mate. Nor does the Crown argue that Coolen should be considered an employer although all four fishers were dependent on him for the licence. [14] Although Chad Zinck was required to work “mainly for” Harnish and the defendant in the sense that this was full-time or nearly full-time work during the season and that if he did not show up or provide replacement he would not share in the profit, this cannot be determinative; the same would be the case whether he was “dependent” or “independent” contractor. [15] In analyzing this relationship it appears to me to be closer to that of independent contractor than that of employer-employee. [16] To sum up, do not believe that the Crown has established on the facts of this case that Chad Zinck was “dependent contractor” within s. 3(j). [17] am fortified in this conclusion by comparison to the definition of “dependent contractor” in the Canada Labour Code, R.S.C. 1985, c. L-2 which found it necessary to provide specific reference to fishers to bring them within the definition, as well as by the Trade Union Act, R.S.N.S. 1989, c. 475, s. 2(1)(k), which also specifically refers to fishers in order to bring them within the definition of “employee”. [18] also note that relevant case law has concluded as Laskin, C.J.C. stated in B.C. Packers v. Canada (Labour Relations Board) 1977 CanLII 205 (SCC), [1978] S.C.R. 97 at para 13, in regard to the decision in Re Lunenburg Sea Products Ltd.; Re Zwicker, 1947 CanLII 319 (NS CA), [1947] D.L.R. 195: The court then concluded that in the absence of particular definition of “employee” and “employer,” the “general law” applied, and under that law it must be held that the fishermen were engaged in joint venture with the owners of the vessels, species of partnership, and that there was no employer-employee relationship. [19] By contrast, the cases to which the Crown referred me by way of analogy were all decided in the context of labour relations, not worker health and safety, and none of them involved fishers. do not find them persuasive. [20] As anyone who has lived in Nova Scotia for any period of time is aware, fishers are unique type of worker. Traditionally they have been fiercely independent, jealously guarding their freedom from government interference in their workplace. They have their own code of conduct and regard themselves as the best and final guarantors of their own safety. [21] Chad Zinck was obviously an example of that type of rugged individualism. No one ordered him to make that dive; he wanted to do it; and he insisted on doing it against the advice of others more knowledgeable and experienced. [22] This was classic case of someone being the author of his own misfortune, and to hold the defendant or any other of his co-fishers responsible for his health and safety would be to arrogate to them degree of control they simply did not possess. [23] If the legislature means to include fishers as employers or employees under this Act, it should do so specifically and inform the industry in advance of that change in policy. Conclusion [24] I find the defendant not guilty of the offence charged.

The defendant was charged, as an employer, with failing to take reasonable precautions to ensure the health and safety of persons at a workplace. The defendant and three others had set out to check a tuna pen. The boat was owned by a fourth individual, who was not present at the time. One of the men, despite having no experience diving with scuba equipment and being advised against it by the others, insisted on diving to check the pen. He died of drowning due to inexperienced scuba diving. Defendant not guilty of the offence charged; the defendant was not the deceased's employer. All four individuals thought of themselves as self-employed fishermen and had a profit-sharing agreement; the evidence did not establish that the defendant was acting as skipper or captain in the owner's absence; the defendant was not operating the vessel and the evidence did not show that the defendant had any kind of authority over the other fishers. The deceased was dependant on the boat's owner for the boat and part of the gear, for another individual for the licence and on the defendant for the balance of the gear; the relationship was closer to that of independent contractor than that of employer-employee.

6_2004nspc30.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 399 Date: 2012 09 27 Docket: Q.B.G. No. 1597/2011 Judicial Centre: Saskatoon BETWEEN: BILL LAIDLAW, and MNP LLP (formerly operating as MEYERS NORRIS PENNY CO. CHARTERED ACCOUNTANTS LLP and MEYERS NORRIS PENNY LLP) Counsel: Grant J. Scharfstein, Q.C. for the plaintiff Brian G. Kapusianyk, Q.C. for the defendants FIAT MILLS J. September 27, 2012 [1] The defendant, MNP LLP (“MNP”), seeks a stay of the action pursuant to s. 8 of The Arbitration Act, 1992, S.S. 1992, c. A‑24.1. The plaintiff, Bill Laidlaw, is chartered accountant. By way of merger/purchase agreement dated September 14, 2000, he joined the partnership of MNP and became subject to the partnership agreement dated June 1, 1999. The merger agreement provided the courts of Saskatchewan would have exclusive jurisdiction to determine all disputes and claims arising between the parties. The merger agreement provided in part at clause 2.11 that: This Agreement shall prevail if and whenever there is any conflict or any inconsistency between the provisions of this Agreement and the MNP Partnership Agreement (as may be amended hereafter). [2] Subsequent to signing the merger agreement, new partnership agreement signed by the parties contained the following relevant clauses: 2.01 Effect This Agreement shall be deemed to amend and restate the existing Partnership Agreement and replace all prior Agreements entered into between the Parties hereto. 4.11 Existing Agreements The Partners acknowledge that the Partnership has entered into and is bound by the terms of the agreements which are listed on Appendix D, which is attached to and forms part of this Agreement. Appendix lists number of agreements, including merger agreements, that remain in force but did not include the merger agreement of the plaintiff. 17.01 Arbitration At any time while this Agreement and any of its provisions are in force, should any dispute or question arise between Partner and either another Partner or the Partnership concerning the interpretation of this Agreement or any part thereof which cannot be resolved by agreement among those Parties, then such dispute or question will be submitted to arbitration as herein provided by one Partner giving notice to the other Partner in dispute or if to the Partnership, to the C.E.O. ... [3] MNP gave notice to the plaintiff that his partnership arrangement would be terminated effective September 30, 2009. On May 10, 2011, the plaintiff’s solicitor sent letter to the C.E.O. of MNP, the relevant portions of which read: dispute has arisen between Mr. Laidlaw and Meyers Norris Penny LLP concerning his termination from the partnership and his entitlement to his capital account and buy‑out. Pursuant to Article 17.01 of the November 7, 2000 Partnership Agreement, this letter shall serve as formal notice that Mr. Laidlaw requires his dispute with Meyers Norris Penny LLP to be referred to arbitration. [4] On November 9, 2011, the plaintiff’s solicitor commenced claim against MNP. Relevant portions of the claim are: 6. Effective September 1, 2000, Laidlaw was admitted as principal partner of MNP, subject to the terms and conditions of the MNP Partnership Agreement dated November 7, 2000 (the “Partnership Agreement”). 16. MNP breached the terms and conditions of the Partnership Agreement by: (i) Failing to pay to Laidlaw the income owed to September 30, 2009; (ii) Failing to pay to Laidlaw his capital account; (iii) Failing to pay to Laidlaw the withdrawal proceeds. There is nothing in the claim that alleges the breach of the merger agreement or purports to rely on the merger agreement for the purpose of establishing cause of action. There is no material that discloses what happened to the arbitration request put forward by the plaintiff in May 2011, although, clearly, the commencement of the claim by the plaintiff and his opposition to this application for stay pending arbitration shows he does not wish to proceed with arbitration. On January 19, 2012, the Chief Executive Officer of MNP provided notice to arbitrate pursuant to the partnership agreement to the plaintiff. [5] Relevant sections of The Arbitration Act, 1992, supra, are: 8(1) Subject to subsection (2), if party to an arbitration agreement commences proceeding with respect to matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding. (2) The court may refuse to stay the proceeding in any of the following cases: (a) party entered into the arbitration agreement while under legal incapacity; (b) the arbitration agreement is invalid; (c) the subject-matter of the dispute is not capable of being the subject of arbitration pursuant to Saskatchewan law; (d) the motion was brought with undue delay; (e) the matter is proper one for default or summary judgment. [6] MNP argues that pursuant to s. 8(1), the Court shall stay the action unless s. 8(2) applies, and it argues that nothing in that section is relevant to the case. [7] The plaintiff argues number of issues. The first relates to whether the arbitration agreement is invalid as it applies to the relationship of the parties. The plaintiff submits that there are two agreements in play the merger agreement and the partnership agreement and that by virtue of clause 2.11 of the merger agreement, that agreement would prevail if there is conflict between the partnership agreement and the merger agreement. The plaintiff points out the conflict exists in clause 1.5 where it gives Saskatchewan and its courts exclusive jurisdiction to determine “all disputes and claims arising between the parties. The plaintiff submits that that clause is in direct conflict with the arbitration clause, which purports to give an arbitrator the authority to resolve disputes and interpret law according to the Province of Alberta. [8] The choice of law and method of resolution contained in the merger agreement relates to that agreement and the rights arising to the parties out of it. The problem with the plaintiff’s argument is that the statement of claim does not rely on the merger agreement other than for the choice of law. The claim is solely based on the new partnership agreement, alleging breach thereof. It seeks damages under the new partnership agreement. No relief is sought under the merger agreement. Yes, there may be potential conflict between the partnership agreement and the merger agreement, but that conflict is of no consequence when no action is being taken and no damages sought under the merger agreement. [9] Secondly, the plaintiff submits that any question of law must be determined by the court and, as here, the determination of the validity of the arbitration agreement requires an interpretation of the agreement. The issue must be decided by the courts, and not the arbitrator. He argued that the interpretation and interrelationship of the two agreements is question of law and must be determined by the Court. simple answer to that argument is that the merger agreement is irrelevant to the purpose of the statement of claim as framed. [10] The defendant also argues that clause 2.01 referred to above replaces all prior agreements that are entered into between the parties, including, of course, the merger agreement. That is possible interpretation, but do not have to deal with the issue given my analysis of the applicability of the merger agreement on the question of relevance. [11] In the case of Barber v. Meyers Norris Penny LLP, 2010 SKQB 175 (CanLII), 357 Sask.R. 77, similar application was made by MNP before Malone J. Ms. Barber, member of the partnership, commenced claim seeking monies pursuant to the provisions of the partnership agreement. Malone J. considered the same arbitration clause. He determined that the onus was on the plaintiff to show why stay should not be granted, relying on Dunwoody Co. v. Thiessen (1988), 1988 CanLII 5026 (SK QB), 70 Sask.R. 189, [1988] S.J. No. 485 (QL). The arguments advanced were not the same as those put forward by the plaintiff in this action. It appears the argument pressed strongly was that the partnership agreement could no longer apply as the plaintiff was no longer member of the partnership. Malone J. dismissed that argument, stating that the claim was based solely on the validity of the partnership agreement. That claim was not reproduced. However, the plaintiff here seems to have based his claim totally on the partnership agreement. There are no other provisions in s. 8(2) that apply to this situation that may result in refusal to stay the proceedings. Therefore, the action is stayed pursuant to s. 8(1) of The Arbitration Act, 1992, supra, with costs to the applicant. The draft order filed by the applicant may issue. “R.C. Mills” J.

The defendant seeks a stay of the action pursuant to s. 8 of The Arbitration Act. The plaintiff is chartered accountant who was partner with the defendant. 2000 merger agreement signed by the plaintiff indicated that the Courts of Saskatchewan would have exclusive jurisdiction to determine all disputes between the parties. After the merger, the plaintiff signed new partnership agreement that said arbitration would apply to any disputes between partner and the partnership. HELD: The action was stayed pending arbitration. The plaintiff's statement of claim does not rely on the 2000 merger agreement, the claim is based solely on the new partnership agreement and alleges breaches of the partnership agreement. The partnership agreement clearly states that disputes are to be resolved through arbitration.

e_2012skqb399.txt

D.I.V. of A.D. 1996 321 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DAVID ANTHONY SOUCY and MEENA KUMARI VARMA RESPONDENT D.N. ARMSTRONG for the petitioner R.J.F. LEPAGE for the respondent FIAT MCINTYRE, J. AUGUST 2, 1996 The petitioner seeks interim custody of his sonStefan. The respondent takes the position:1. The petition for divorce is a nullity and Saskatchewan courts donot have jurisdiction to hear and determine the divorceproceedings;2. The court lacks, or ought to decline to exercise jurisdictionunder The Children\'s Law Act, R.S.S. 1990, c.C-8.1; 3. If the court accepts and exercises jurisdiction under The Children's Law Act interim custody should be granted to the respondent. THE DIVORCE ACT The petition was filed May 31, 1996. In it the petitioner said he had only been resident in Saskatchewan since April 30, 1996. Section of the Divorce Act requires either spouse to have been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. find that the court does not have jurisdiction under the Divorce Act. CHILDREN'S LAW ACT To determine jurisdiction under The Children's Law Act reference is made to sections 15 and 1. For the purpose of section 15(1)(a) one must look to section (2). The petitioner argued that the respondent had consented to or acquiesced in Stefan residing in Saskatchewan with the petitioner. The petitioner moved from Alberta to Saskatchewan in April 1996 bringing Stefan with him. In Re G.E.P., [1965] Ch. 568, [1964] All E.R. 977 (C.A.), Lord Denning said: When father and mother are at variance and living separate and apart and by arrangement the child resides in the house of one of them then that home is his ordinary residence, even though the other parent has access and the child goes to see him from time to time. do not see that child's ordinary residence, so found, can be changed by kidnapping him and taking him from his home, even if one of his parents is the kidnapper. Quite generally, do not think child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change or delays it so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, should have thought, go far to show acquiescence. Even three months might in some circumstances. But not less. (The italics are Maxwell's.) do not wish to be taken as adopting rigid formula so far as how much time must pass before parent may have been said to have acquiesced in child's change of residence. On the affidavit evidence before me it is clear thatby June 1996 the parties were at odds with respect to Stefan\'sresidence and I find that the respondent did not acquiesce toStefan\'s residing in Saskatchewan such that it may be said he washabitually resident in Saskatchewan for the purposes of TheChildren\'s Law Act. It was also argued on the basis of section 15(4) that the court had jurisdiction as result of the respondent's acquiescence. For the reasons stated find the respondent did not acquiesce such as to found jurisdiction. With respect to section 15(1)(b) agree with the respondent that the seven factors listed are conjunctive and the petitioner must satisfy all seven in order for the court to exercise jurisdiction on the basis of this provision. The respondent argues that the factors (iii), (vi) and (vii) have not been satisfied. With respect to (iii) the respondent says there is an application pending in Alberta. Indeed the respondent commenced petition for divorce in Alberta July 17, 1996. For this court to be deprived of jurisdiction on the basis of 15(1)(b)(iii) an application for custody or access in another jurisdiction must have been pending at the time proceedings were commenced in Saskatchewan. Obregon v. Obregon (1984), 39 R.F.L. (2nd) 14 at 170 (Ont. U.F.C.); Gilbert v. Gilbert (1985) 47 R.F.L. (2nd) 199 at 208 (Ont. U.F.C.). With respect to (vi) and (vii) Stefan was born in Kelowna, British Columbia in July 1993 where the parties were residing at the time. He resided there with his parents until the end of April 1995 when they moved to Calgary and put their belongings in storage, coming on to Regina. The only connection with Calgary is that the parties moved there in the fall of 1995. However the respondent was back working in Regina from November 1995 until February 1996 and had Stefan with her. She returned to Calgary with Stefan in February 1996. By February 15 the parties had separated. By April 1996 Stefan was living in Regina with his father. Both sets of grandparents reside in Regina and itappears they will have a role to play in the disposition of theseproceedings. There are also other family members on both sideswho reside in Saskatchewan. The child has no connection ofconsequence to the Province of Alberta. I find that the childhas a real and substantial connection with Saskatchewan and it isappropriate for jurisdiction to be exercised in Saskatchewan. As aresult the court has jurisdiction pursuant to section 15(1)(b). Inthe event the court did not have jurisdiction under 15(1)(b) I wouldfind jurisdiction to exist pursuant to 15(3) as the childclearly has a closer connection to Saskatchewan than to Alberta. INTERIM CUSTODY Having found jurisdiction the issue is interim custody. Both parties make serious allegations against theother. There is substantial conflict in the affidavit evidence. In so far as the affidavit evidence is concerned note that it would appear one of the parties attempted to mislead the court. Both parents claimed that Stefan resided with them after the parties separated in February 1996. have difficulty understanding how one could be mistaken about this fact. prefer not to comment in detail on the affidavit evidence as cannot find, on the basis of the material before me, which parent is better able to meet Stefan's needs in the interim and there will be no interim custody order. However provision does have to be made for Stefan's residence and care on an interim basis. There will be an order that Stefan shallreside with the petitioner on an interim basis and the petitionershall have care and control of Stefan. It is a condition of thisorder that Stefan and the petitioner shall continue to residewith the petitioner\'s parents in the city of Regina. In the event that there is to be any change in the petitioner or Stefan's residence the matter is to be brought back before the court for review. It is a condition of this order that Stefanshall not be removed from the city of Regina without furtherorder of this court. In my view it is necessary that this matter move promptly to pre-trial. The Local Registrar is directed to set an early pre-trial conference date.

FIAT. The petitioner sought interim custody of his son. The respondent contested that the petition for divorce was a nullity and Saskatchewan courts did not have jurisdiction to hear the divorce proceedings and lacked jurisdiction or ought to decline to exercise jurisdiction under the Children's Law Act. Both parties made serious allegations against the other and there was substantial conflict in the affidavit evidence. HELD: An order for interim custody was granted on the condition the petitioner continued to reside with his parents in Regina and that the child not be removed from Regina without further court order. 1)The respondent did not acquiesce to the child's residing in Saskatchewan such that it may be said he was habitually resident here for the purposes of the Children's Law Act. 2)The seven factors listed in s15(1)(b) are conjunctive and the petitioner must satisfy them all. With respect to (iii) a petition for divorce was commenced in July 1996. 3)The child had a real and substantial connection with Saskatchewan and it was appropriate to exercise jurisdiction pursuant to s15(1)(b). Jurisdiction existed pursuant to s15(3) as the child had a closer connection to Saskatchewan then to Alberta. Both sets of grandparents and other family members on both sides reside in Saskatchewan. The child had no connection of consequence to the Province of Alberta.

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THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN and KEVIN EUGENE McGUIGAN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff COUNSEL: G. JOSEPHSON for the Appellant C.A. SNELL Q.C., for the Respondent DISPOSITION: Appeal Heard: May 4, 1995 Appeal Allowed: May 10, 1995 On Appeal From: QBCNJ 103/94 J.C. Regina Appeal File: 6597 Reasons by: The Honourable Mr. Justice Wakeling In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Sherstobitoff WAKELING J.A. The appellant pleaded guilty to the following charge:That Kevin Eugene McGuigan of Regina between 1 October 1991 and 31 October 1993 at or near Regina did commit numerous assaults on Ashley Bjornson by slapping and striking her with miscellaneous objects, contrary to s. 266 of the Criminal Codeand was sentenced to one year imprisonment and one year's probation. The evidence indicated that the assault consisted of cuffing the eight year stepdaughter rather frequently as a disciplinary measure. There was also an incident where a small paddle was employed and she had been struck with a cookie box. No injury had ever resulted from these assaults. The more grievous conduct was the belittling and sarcastic verbal abuse the appellant directed frequently at the child over her eating habits and consequent weight. At trial, the Crown and defence agreed that it was probably an instance where fine and probation order would create the necessary special deterrence and parental guidance the situation called for. The trial judge was however of the view that the conduct of the accused warranted more severe penalty. We have concluded that the trial judge must have been influenced to substantial degree by the lack of parenting skills displayed by the appellant in the way he mistreated and verbally abused the young girl in manner which was demeaning and destructive of her self image. As offensive as that conduct may be, a lack of parental skill does not constitute a criminal offence and the only thing that the appellant pleaded to was an assault which was not severe and produced no injury. The sentence of one year under these circumstances, even with the record of the appellant, is excessive. In addition, it will no doubt mean the appellant would lose his current employment upon which the family is reliant. We are mindful of the fact the Crown and defence counsel recommended fine and probation, but we must also be aware of the view the trial judge took of the appellant's conduct and accept that some degree of incarceration is appropriate given the position of authority he enjoyed and the existence of his past criminal record even though it does not include similar instances of violence. We therefore conclude the appeal should be allowed and a sentence of 60 days intermittent be substituted for the sentence of one year. The sentence to commence at 5:00 p.m. on Friday May 12th with release each Monday morning after the weekend. The probation order is to remain unchanged except to substitute the word `approved' for `supervised' in the first condition. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of May, A.D. 1995. WAKELING J.A. concur BAYDA C.J.S. concur SHERSTOBITOFF J.A.

The accused pleaded guilty to a charge of assaulting his 8 year old stepdaughter by slapping her and striking her with a small paddle. The Crown and counsel for the accused agreed that a fine and probation would be appropriate. The trial judge sentenced him to 1 year in prison and 1 year's probation. He appealed his sentence. HELD: Appeal allowed. 1)The force applied was minimal and the child was not injured physically. 2)The sentence imposed would result in the accused losing his employment which would harm his dependents. 3)The Court reduced his sentence to 60 days intermittent.

d_1995canlii3966.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Minister of Community Services) v. B.L.C., 379 Date: 20061215 Docket: SFH CFSA 46794 Registry: Halifax Between: Minister of Community Services Respondent Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: "No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child." Judge: The Honourable Justice Beryl MacDonald Heard: October 25, 2006 and November 22, 2006, in Halifax, Nova Scotia Written Decision: December 15, 2006 Counsel: May Knox, counsel for Minister of Community Services Lola Gilmer, counsel for C. B. L.) By the Court: [1] This is an application by the Minister in protection proceeding pursuant to the Children and Family Services Act S.N.S. 1990, c.5. The Minister is requesting 13 Orders of Production for records prepared by and in the possession of persons and organizations who have provided services to the Respondent. The authority to make this order is found in section 69 of the Civil Procedure Rules: 69.08(5) Where document is in the possession, custody or control of person who is not party, and the production of the document might be compelled at hearing, the Court may, on notice to the parties, make and order.....for the production of true copy that may be used in lieu of the original. 69.09(6) An order for the production of any document for inspection by party or the court shall not be made unless the court is of the opinion that the order is necessary for the disposing fairly of the proceeding or for saving costs and is not injurious to the public interest. [2] The application of this Rule first requires the court to determine whether the document “might be compelled at hearing”. document that is relevant to proceeding and not subject to exclusion is compellable. After determining whether document is relevant the court must determine whether the document is to be excluded, which, in the context of this proceeding requires an examination of the Respondent’s right to claim privilege in respect to the documents requested. Finally, even if document is compellable, the court must determine whether the production of the document is necessary, whether it will save costs, and whether its production will be injurious to the public interest. [3] The Respondent has consented to the grant of Orders of Production for the child’s complete medical records and files in possession of her pediatrician, her family physician, the IWK Health Care Centre, and the Early Intervention Clinic. She has consented to the grant of an Order of Production for the file and records of her treatment with E.F. her former counsellor with Capital Health Addiction Prevention and Treatment Services. She objects to the grant of Orders of Production for the following records: a) The complete record and file of the Capital Health Addiction Prevention Treatment Services; b) The complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services; c) The complete medical records and files of Dr. and Dr. D, the Respondent’s family physician’s; d) The complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic; e) The complete record and file of Adsum Centre; [4] The Respondent considers these records irrelevant to these proceedings. For some she claims privilege. She also suggests the records are unnecessary for the fair disposition of these proceedings, that their production will not save costs and will be injurious to the public interest. [5] document to be relevant must contain material that will prove or support fact or proposition put forward by the party seeking the document. This provides the document’s connection to the proceeding. It is not enough to say that document about party exists and therefore it must be provided. The information in the document must relate to fact or proposition at issue. If there is no such relationship, the document is excluded as irrelevant. Facts or propositions that are admitted need no proof rendering any evidence on those issues irrelevant.” The Law of Evidence in Canada, Sopinka, Letterman and Bryant, (Butterworths Canada Ltd. 1992) at pg. 23. [6] It is not always clear whether particular document will indeed prove or support particular fact or proposition. In respect to Civil Procedure Rule 20, (identical to Rule 69, except for the notice provisions) those who have considered this question suggest the rule must be given broad liberal interpretation and it requires only that on the pleadings and the evidence, documents have semblance of relevance”. Eastern Coal v. Cape Breton Dev. (1995),1994 CanLII 4193 (NS SC), 137 N.S.R. (2d) 123 as affirmed in Cdn.Coal v.Cape Breton Dev. (1995), 1995 CanLII 4188 (NS CA), 141 N.S.R. (2d) 180. This is very low threshold. [7] The Respondent argues that this threshold is inappropriate for proceedings commenced pursuant to the Children and Family Services Act. This threshold was established for civil proceedings in which the records sought are often well-defined and generally narrow in scope. The records sought in the cases cited by the Minister pursuant to Rule 20 were documents pertaining to the flooding of mine, list of surgical patients and corporate records relating to staff layoffs. These records are quite dissimilar from those sought by the Minister in this proceeding. In this proceeding the Minister requests access to historic and current files detailing every contact made by the Respondent with her family physicians, and other service providers. Much of the information in these files may have nothing to do with the issues of concern to the Minister, yet the Minister is seeking everything. Its request is not limited to the issues of concern. [8] D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245 suggests child protection proceedings have “unique amalgam of elements criminal, civil, family, administrative. This comment was quoted by Lamer C.J.C. in the Supreme Court of Canada in New Brunswick (Minister of Health& Community Services) b. G.(J.) 1999 CanLII 653 (SCC), 1999 CarswellNB 305 at para 78: There is some debate between the parties as to whether child custody proceedings under the Family Services Act are more properly classified as adversarial or administrative in nature. In my view, formalistic classification of the nature of the proceedings is not helpful in resolving the issue at hand. Child protection proceedings do not admit of easy classification. As Professor Thompson argues, the "unique amalgam of elements criminal, civil, family, administrative makes child protection proceedings so hard to characterize": D. A. Rollie Thompson, "Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings Part I" (1988), Can. J. Fam. L. 11, at p. 12. [9] While the Supreme Court refused to make characterization, this “unique amalgam” impacts on the question whether there should be different “threshold” when determining relevance in child protection proceeding. Is higher standard needed to appropriately balance the competing interests the Minister’s interest in receiving all information that may determine whether child is in need of protection and what is in child’s best interest and the parent’s interest in retaining some semblance of privacy in his or her life notwithstanding the involvement of the Minister. In G.(J.) Lamer C.J.C. said at para 61: have little doubt that state removal of child from parental custody pursuant to the state's parens patriae jurisdiction constitutes serious interference with the psychological integrity of the parent. The parental interest in raising and caring for child is, as La Forest J. held in B.(R.) supra at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through procedure in which the relationship is subject to state inspection and review, is gross intrusion into private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as parent is often fundamental to personal identity, the stigma and distress resulting from loss of parental status is particularly serious consequence of the state's conduct. [11] and at paragraph 76: The interests at stake in the custody hearing are unquestionably of the highest order. Few state actions can have more profound effect on the lives of both parent and child. Not only is the parent's right to security of the person at stake, the child's is as well. Since the best interests of the child are presumed to lie with the parent, the child's psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship. [12] The Minister has argued against higher threshold citing for support the case of Children’s Aid Society of Algoma v. D.P. and H.L. [2006]O.J. N. 1878 In this case the Children’s Aid Society was seeking records of all police investigations, probation, and correctional services records involving the parents in situation where domestic abuse was an outstanding issue. The Attorney General for Ontario intervened on behalf of itself, the various police services, probation and parole services and correctional services in order to prevent the disclosure of these records to the agency. The parents took no position in respect to the request for those records. This is an important distinction because the court was not asked to balance right claimed by parent but was adjudicating claim put forward by the State. The position of the Attorney General was that it had an obligation, because of the decision in D. P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (Ont.C.A.), to protect the privacy of the witnesses and others whose names appeared in the records sought by the agency. [13] In Children’s Aid Society of Algoma v. D.P. and H.L. Justice Keast at paragraph 22 stated: In any consideration of the application of section 74, there is two test approach. First, the court must determine the issue of relevancy in the context of subsection 74 (3). The court must be satisfied that the record in question contains information that may be relevant. Assuming that this threshold is met, the court then embarks upon weighing process of the public and privacy interests, based on the principles enunciated in D. P. v. Wagg. In the appropriate circumstances, even if record may be relevant, the court can prevent disclosure of that record on grounds of privacy rights. [14] It is important to note that the Ontario legislation in subsection 74(3) specifically provides the threshold for the determination of relevancy. The threshold is that document may be relevant. This is low threshold similar to that applied in Nova Scotia in decisions interpreting Rule 20. Justice Keast makes reference to this low threshold in paragraph 30 of his decision: “...... The legislature deliberately set the threshold low so the widest possible net could be cast to obtain possibly relevant information in the protection of children. Prior to 1984, the threshold was higher, in that actual relevancy had to be demonstrated.” Rule 69, governs proceedings under the Children and Family Services Act. The words used in this rule are quite different from those appearing in section 74(3) of the Ontario legislation. As result Justice Keast’s interpretation of section 74(3) does not assist me in the interpretation of Rule 69. [15] The Respondent argues the higher standard used in criminal proceedings to determine relevancy should apply to child protection proceedings. agree. The nature of these proceedings have very serious consequences for parents and for their children and therefore demand “...a heightened concern for accuracy in fact finding...” (D.A.Rollie Thompson in his article “Are There Any Rules of Evidence in Family Law?” (2003) 21 C.F.L.Q. 245) [16] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411 at paragraph 22, the Supreme Court required judge to “be satisfied that there is reasonable possibility that the information is logically probative to an issue at trial or the competence of witness to testify.” consider this to be the appropriate standard to use when evaluating the question of relevance in child protection proceeding. [17] accept the proposition put forth in Children’s Aid Society of Algoma v. D.P. and H.L. that there are three purposes for which an agency may seek the production of records: 1. The documents are required as evidence to prove the grounds in the proceeding itself. 2. The documents are required to monitor compliance with existing orders. 3. The documents are required to develop and evaluate the plan of care. Relevance to Prove the Protection Finding [18] Information that merely provides or supports fact or proposition already admitted is not relevant. The Respondent has admitted to the protection finding pursuant to section 22 (2) (k): the child has been abandoned, the childs only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the childs care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the childs care and custody. [19] The affidavit filed with the Protection Application contained the factual material from which to conclude that the Respondent is unable to resume care and custody of her child because she suffers from alcohol and possibly pharmaceutical or other drug addiction that may be aggravated by depression, post traumatic stress disorder and other conditions of mental illness. Treatment and programs the Respondent has accessed in an attempt to eliminate or control these addictions and regain mental health have, for whatever reason, been unsuccessful. Since this is the information the Respondent had before her when she decided to admit to the protection finding it would appear she agrees with the Minister’s analysis. In addition, section 40 (3) of the Act states: parent or guardian may admit that the child is in need of protective services as alleged by the agency.(my emphasis) [20] The Respondent did not deny the factual information provided in the Minister’s supporting affidavit. If there were factual allegations with which she disagreed, in respect to this protection finding, she should have provided this information at the protection hearing, otherwise she must accept all of the allegations as proof of the protection finding pursuant to section 22(2) (k). This admission renders further proof of the allegations irrelevant. No further evidence to prove the protection finding is required. [21] The Minister has raised the suggestion in its submissions that it requires the information requested to determine whether there are other circumstances in the Respondent’s life that would place the child in need of protection, other than those already disclosed. While the Minister does have duty to “investigate” it must have some basis upon which to request information that may confirm or deny its suspicions. In this case the Minister cannot describe any other fact or condition that places this child at risk other than those to which have already referred. Receiving the Respondent’s “records” for this purpose would amount to fishing expedition. The records are not relevant for this purpose. Relevance to Compliance with Existing Orders [22] The Respondent was required by an Interim Order issued July 31, 2006 and by Protection Order issued August 25, 2006 to comply with the following terms and conditions: 1. She was to be referred to Capital Health Addiction Prevention and Treatment Services for therapy, counseling and treatment. She was to attend as and when directed and was to cooperate and comply with all reasonable requests, inquiries and recommendations of the clinician, or therapist. report with respect to the substance-abuse therapy, counseling and treatment was to be filed by Capital Health Addiction Prevention and Treatment Services with the court. 2. She was to submit to random urine analysis testing in accordance with the collection protocol for forensic urine drug testing and she was to absolutely refrain from the use of non-medically prescribed drugs and from the abuse of alcohol. [23] The Minister has requested the complete record and file of the Capital Health Addiction Prevention and Treatment Services. This file is not relevant for the purpose of monitoring compliance with the Order. This service is already required to prepare report concerning the Respondent that will be filed with this court. It will provide the information requested. [24] The Minister has requested the complete medical record, file and chart of the Nova Scotia Hospital, including but not limited to Dr. C’s assessment and psychiatric consult and the Respondent’s subsequent referral to Mental Health Services. have no information before me to suggest that the Respondent is presently receiving services from any of these sources. As result these records will tell us nothing about her present compliance with the court orders. [25] The Minister has requested the complete medical records and files of Dr. S. and Dr. D., the Respondent’s family physician’s. Dr. S. would have nothing of relevance because he has not been her physician since the commencement of these proceedings. Dr. D., her current physician may have records that have reasonable possibility to confirm or deny the Respondent’s compliance with the court orders. [26] The Minister is seeking the complete medical record, file and chart of the QEII Health Sciences Centre including but not limited to the complete record, file and chart of the Abbey Lane and Mental Health Clinic. understand the QEII Health Sciences Centre is the umbrella organization that includes, among other health services, services for those experiencing mental health illness and these more specialized services are offered through the facilities known as the Abbey Lane and the Mental Health Clinic. Records from the QEII and the other facilities since the commencement date of these proceedings that show the Respondent has been admitted to that facility or attended at the emergency department as result of the abuse of alcohol or drugs or as result of mental illness or disorder would be relevant to the question of compliance. Past records of attendances and treatment for other reasons would not. [27] The Minister is seeking the complete record and file of Adsum Centre. The Respondent has not been involved with the Adsum Centre since the commencement of these proceedings. Their records are of no assistance in respect to the compliance issue. Development of Plan of Care [28] The Minister suggests the information it requests is relevant to the plan of care to be developed for this child and to properly evaluate any plan of care the Respondent may present. The Minister has put forward three propositions in its submissions under this heading. will deal with them in order. 1.. “It is apparent that (the Respondent) is unable to address the child protection concerns. It is questionable which services (the Respondent) has actually participated in and benefitted from and to what degree. The documents sought are relevant to provide information on these questions and are necessary for the fair disposition of the permanent care and custody trial.” [29] The Minister knows the majority if not all of the services the Respondent has accessed. It also knows these have not resolved the problems in her life. This is obvious because the Minister has instituted this proceeding. What the Minister doesn’t know is whether the services accessed by the Respondent failed because she did not regularly attend and/or follow recommendations or for other reasons. This information is relevant to the preparation of plan of care. 2. “They are also relevant because the minister must review its case plan on regular basis. Information from third parties may give the minister an opportunity to reconsider its position and alter its expectations and plan.” [30] consider this to be restatement of the proposition put forth in the first submission. 3. “Even though the parental capacity assessors may have access to some of the information requested by the Minister, the Minister still has an obligation to investigate any and all information regarding child protection concerns. The Minister’s investigation may uncover information that was not parent or on the surface or otherwise in the assessors investigation. Further information relevant to the assessment and may never reach the assessors if (the Respondent) denies or downplays issues or concerns. The assessment will only be as good as the accuracy and the quality of the information upon which it is based. This information will assist in the preparation of the parental capacity assessment.” [31] The assessors in this case will have an abundance of material from which to understand the Respondent’s challenges. The affidavits filed in this proceeding give these details. In addition, all of the affidavit and other information filed in the previous protection proceeding involving this child are, by the Respondent’s consent, part of this proceeding. The assessors will have available to them information from E. F., the Respondent’s former counsellor with Capital Health Addiction Prevention and Treatment Services, they will have the report that Service is required to produce by court order, they will be able to make inquiries, because the Respondent has given her consent, from those presently involved with the Respondent at the Abbey Lane. [32] The assessors are to prepare an independent parental capacity assessment with psychological component. Of what assistance is the provision of previous psychiatric consultations or records of previous treatment and services provided for mental health or addiction related disorders? These may be useful in determining whether past addiction and mental health issues are or are not present in the Respondent’s life. They may provide information identifying what appeared to be barriers to her recovery which may include her failure to comply with recommendations. This information is relevant. The fact that this information may be provided by means other than Orders of Production relates to the question of necessity, not relevance. am satisfied that information about the Respondent’s past treatment and services utilized to address addictions and mental health illness or disorders is relevant both for the work to be accomplished by the assessors and for the development and analysis of plans of care. Exclusion because of Privilege [33] The Respondent has claimed that many of the records sought by the Minister should be excluded because they are confidential. The governing case for the claim of confidentiality in civil cases is A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] S.C.R. 157 (S.C.C.). In this case the Defendant sought production of the notes and reports of psychiatrist who had treated the Plaintiff. The Supreme Court confirmed that the degree of protection given by this privilege may be absolute or partial, “depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in given class must be produced. Documents should be considered individually or by sub‑groups on "case‑by‑case" basis.” [34] The criteria for the claim of privilege based on confidentiality are those: ......set forth in Wigmore on Evidence, vol. (McNaughton rev. 1961), §2285. First, the communication must originate in confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation. (para.20) [35] Chief Justice McLachlin stated at paragraph 37: Once the first three requirements are met and compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. document relevant to defence or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. [36] Many of the records sought by the Minister were created as result of the Respondent’s involvement in previous child protection proceeding. When an individual is directed by court or agrees under voluntary arrangement with the Minister to access services, he or she cannot do so with an understanding that communication with those service providers will be confidential. The Court, the Minister, or the agency involved will request reports from those service providers which will be based on communications and records of those communications. These records cannot attract privilege. [37] Records created by individuals and service providers sought out by the Respondent on her own initiative may attract privilege but consider the interest of the Minister to develop and evaluate an appropriate plan of care for this child takes precedence over the interest of the Respondent to keep relevant records, otherwise confidential, out of view. [38] The Minister suggests Orders of Production provide the most effective and cost efficient means by which to obtain the relevant information. The Respondent’s submission is that the requests for Orders of Production in this case would provide documents that would include significant irrelevant information, such as her physician’s treatment for illness and conditions not associated with addictions and mental illness and the admittance and treatment at the QEII for illness and conditions also not associated with addictions and mental illness. Substantial time is required by both the Minister and Respondent’s counsel to review all of this material. The Respondent suggests the Minister can obtain the information it requires by using interrogatories, and by requesting medical reports specific to the identified concerns. The production of everything is not necessary for fair disposition of the proceeding. agree. While it may be easier for the Minister to request everything and short through the material later, this is not efficient for the overall process. Hundreds of pages of information, having no relevance to the issues in proceeding are photocopied, delivered and stored. Many hours must be spent sifting through this information much of which is hard to read and may require experts to understand and interpret. The Minister has other means available to obtain the relevant information. The Minister may seek Orders of Production for records containing information about identified issues. Interrogatories may be used or medical report containing specific relevant information may be requested. Cost Savings [39] For reasons already given, and to follow, am not satisfied that the production of all of the Orders of Production requested will save costs. While this term has not been defined in Rule 69 consider it reference to the parties or to the “process”. The purpose of our Civil Procedure Rules is to “secure the just, speedy and inexpensive determination of every proceeding.” (Rule 1.03) Providing information to the parties and to the court that is not relevant does not achieve this purpose. To achieve this purpose relevant information must be clearly identified by providing the linkage between the information sought and the issues in dispute and it must be collected by selecting means specifically tailored to produce the relevant information. [40] There will be cost to service providers who are asked to produce only relevant records or to prepare report or answer interrogatories. This may place greater cost burden on the service provider than does merely copying all of its files. do not consider this to be the type of cost consideration contemplated by Rule 69 but if it is included consider the imposition of such cost to be required for the “just” determination of these proceedings. Will the Production of the Records be Injurious to the Public Interest [41] Discussions under this topic generally explore the relationship between, in this case Respondent, and the person or institution from which records are requested. There may also be an examination of the content of the information itself but this would likely arise in the context of cases involving national security. In this case the Respondent argues that the public has an interest in ensuring persons such as herself seek out services. If her service providers must disclose their records, she has no privacy and this invasion will undermine therapeutic intervention. This argument is similar to that put forward by the Respondent in respect to her contention that her records were confidential. However, the right of citizens to be protected from invasions of privacy is enshrined in the Canadian Charter of Rights and Freedoms. These privacy interests may require the exclusion of relevant evidence. balance must be achieved between the individual’s right to privacy and societies need to protect children. In this case consider the protection of children to be the predominant value. Nevertheless, the Respondent’s right to privacy may be invaded only for the purpose of providing relevant information to the Minister. Efforts must be made to prevent other information about the Respondent from being caught in the net. [42] Having reviewed the principles to be applied to evaluate the Minister’s request find the following: 1. The complete record and files of the Capital Health Addiction Prevention Treatment Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 2.. The complete medical record, file and chart of the Nova Scotia Hospital, including Dr.C’s assessment and psychiatric consult and the Respondent’s referral to Mental Health Services are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 3. The medical records and files of Dr. and Dr. are only relevant in respect to consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. This information may be obtained by other means, by way of interrogatories or medical reports and therefore the Orders of Production in respect to these physicians are not granted. 4. The complete record and files of the Abby Lane and Mental Health Clinic are relevant to the plan of care and assessment. They are necessary and their production will not be injurious to the public interest. 5. The complete medical record, files and charts of the QEII, to the extent it has this information separate or in addition to the information held by the Abby Lane and the Mental Health Clinic, are relevant only in respect to admissions, consultations, and treatment involving the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness. The Minister’s request for an Order of Production from this institution captures information that is irrelevant and as result is denied. request restricted to the collection of relevant information would be considered but this request is not before me. 6. The Minister seeks the complete record and file of Adsum Centre. am not informed by either party about what these records may contain. From its description on the web site, it is funded by the Department of Community Services and it “provides support and programming, in residential setting, to 16 women and their children who are trying to address barriers, which have led them to experience homelessness. Residents are asked to make commitment of at least six months and stay maximum of 12. As part of their exit strategy, women will develop long-term plan that will encourage reflection and include tools to assist them to maintain safe, stable housing and the changes they’ve realized in their lives.” If this organization has kept records of every conversation the Respondent has had with staff, the records may contain significant irrelevant information. On the other hand if the Respondent’s alcohol and possible pharmaceutical or other drug addiction, her depression, post traumatic stress disorder and other conditions of mental illness were identified “barriers” the recommendations made to her, her compliance, and her resulting plan are relevant to the plan of care and assessment. do consider it important to consider the Respondent’s right to privacy in respect to the production of irrelevant information. The relevant information must be produced notwithstanding the Respondent’s wish to keep it private. However, it is not necessary to produce all the records. This organization may be requested to prepare report, or interrogatories may be used in respect to the identified barriers, the recommendations made, the Respondents follow through and the plan she prepared prior to her leaving the Centre. Since the Minister is requesting all records in its Order of Production deny the request. Beryl MacDonald, J.

The Minister sought numerous orders for production of medical and various other files (including the mother's complete medical files from her family physician, the Nova Scotia Hospital and another hospital, and her files from a woman's shelter and an addiction treatment and prevention service) in an ongoing child protection proceeding. The mother argued that the records sought were irrelevant and that if there was any relevance, they were privileged, were unnecessary to the fair disposition of the proceeding, and their production would not save costs and would be injurious to the public interest. The addiction prevention and treatment service, Nova Scotia Hospital and mental health clinic records and files are ordered to be produced; the medical records of the family physician, the hospital and the woman's shelter are not ordered to be produced as these files would contain some irrelevant information and the relevant information could be obtained by other means. In a child protection proceeding, documents may be relevant to prove a protection finding, to monitor compliance with existing orders, or to develop and evaluate a plan of care. Records held by individuals or organizations to whom an individual has been referred as a result of a child protection proceeding are not privileged as no confidentiality could be expected in those circumstances. Records held by individuals or organizations whose services were accessed independent of a court order or the Minister's involvement that would ordinarily attract privilege may be ordered to be produced in child protection proceedings. However, if the information contained in the records can be obtained by a means targeted specifically to produce the relevant information, then orders for production for all of the records will not be necessary to the fair disposition of the proceeding. Also, since such records contain irrelevant, as well as relevant material, such an order would violate the privacy protections found in the Charter and be injurious to the public interest.

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"J. Q.B. A.D. 1996 148 J.C.E. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN IN THE MATTER OF AN AP(...TRUNCATED)

"The applicant sought to be appointed as property guardian for his uncle pursuant to s19 of the Depe(...TRUNCATED)

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