BenchPress - Vol 41-6 - LawNow Magazine

BenchPress – Vol 41-6

  1. Damages for Future Surrogacy Fees

For the first time in Canada, a car crash victim has been awarded financial compensation for the future cost of surrogacy. The case, Wilhemson v. Dumma, centered on Mikaela Wilhemson who was the sole survivor of a “horrendous, high-speed, head-on” collision that killed three other people including her boyfriend.

In Canada, the law prohibits payment for a woman to carry another woman’s eggs or act as a surrogate. However, in her 109-page decision only on the issue of damages, British Columbia Supreme Court Justice Neena Sharma awarded Mikaela Wilhemson almost $4,000,000 of which $100,000 were included for surrogacy fees.

Justice Sharma relied on expert testimony to find that Ms. Wilhemson would have significant difficulties and put her health and welfare at risk to an unreasonable degree if she were to conceive and carry a child after the accident. Justice Sharma also relied on legal precedents to award damages for the cost of private clinics and U.S. health care expenses and to determine that compensating an American surrogate is lawful. Notably, both parties agreed that the loss of Ms. Wilhemson’s ability to carry a child was compensable.


  1. Costly Delays for Lawyers

Veteran criminal lawyer Robert Jodoin of Quebec was personally slapped with $3,000.00 in costs after he made two sets of motions against two judges. The motions challenged the jurisdiction of the judges on the grounds of bias in hopes of causing them to recuse from cases that Mr. Jodoin was set to defend. Mr. Jodoin was attempting to postpone trials of ten of his clients who were facing impaired driving charges. The case went all the way up to the Supreme Court of Canada (“SCC”).

The SCC agreed with the lower court decision and stated that a lawyer can be personally liable on an exceptional basis where they have seriously undermined the authority of the courts or interfered with the administration of justice. This decision reflects the SCC’s recent trend to speak out against complacency towards trial delays which can impair the efficiency of the criminal justice system as in the SCC’s 2016 R v. Jordan decision. However, the dissenting judges expressed concerns. They agreed with the majority in principle that judges can penalize abusive advocates, but found that Mr. Jodoin’s actions were not rare or sufficiently exceptional to justify punishment. Moreover, the dissent argued that in the criminal context, personal costs awarded against lawyers could have a chilling effect on defence counsel’s ability to properly defend their client.


  1. Brain Games

Awareness of the long-term impacts of professional sports-related injuries has spurred litigation and public concern in recent years. However, Canadian courts have twice quashed claims made by former CFL players for compensation. In the most recent case in the British Columbia Court of Appeal, former B.C. Lions player Arland Bruce alleged that concussions from playing football, resulting in numerous health problems, were due to the negligence, negligent misrepresentation, and failure to warn on the part of the CFL, CFL clubs and several individuals.

Unfortunately for Bruce, the B.C. Court of Appeal unanimously dismissed his appeal and agreed with the lower court judge that the case arose from the “unusual” collective agreement between the CFL and football players. Therefore, the claim was outside of the jurisdiction of the courts and should be sent to arbitration.
Bruce and his lawyers plan to appeal to the Supreme Court of Canada.


  1. Golf Fore-sight

Golfers beware: be careful who you leave your clubs with. In a recent case at the Alberta Provincial Court, Bloomer v. Connaught Golf Club, an unhappy golfer sued his golf club after the pro shop lost his golf clubs and settlement negotiations failed.

Judge Redman penned a noteworthy passage on the value of clubs:

The game of golf presents a myriad of opportunities to practice one’s perseverance, persistence, and perhaps most of all, patience. One is expected to contend with the wind and the rain, the roll of the greens and unusual lies, and slices, hooks, whiffs and yips; there are also the hazards – bunkers, berms, traps and trees. But one thing that can be counted upon is your clubs, the bag to carry them in and the accoutrements one collects over a lifetime of managing this sometimes miserable, but always memorable, game.

The Judge reviewed an annual application form signed by Bloomer and a membership handbook, which, when taken together, excluded the golf club from liability for loss or damage for their members’ property. However, because the exclusion clause was not specifically incorporated or referenced in the application form and was not otherwise brought to the attention of Bloomer, the Court held that it did not form part of the contract between Bloomer and the golf club.

Bloomer claimed $5,500 as the value of loss and testified that much of his equipment were gifts with sentimental value. However, the Judge relied on testimony of two of Bloomer’s witnesses who claimed that the value of the loss was $1,145 and $1,150, respectively. In refusing to put a price on sentimental value despite his above-noted comments, the Judge awarded Bloomer $1,350 for his lost clubs and accoutrements and $200 in court costs.


  1. Drunk Dunk

The Alberta Court of Appeal recently struck down a section of Alberta’s Traffic Safety Act pertaining to impaired driving in Sahaluk v. Alberta (Transporation Safety Board) 2017 ABCA 153.

In the 2-1 decision, with Justice Slatter writing for the majority, the Court struck down the mandatory roadside suspension of a licence of any driver charged with an alcohol-related driving offence under the Criminal Code of Canada until the charge has been dropped. The Court found that this suspension violated fundamental constitutional rights of all accused drivers under the Charter of Human Rights and Freedoms.

In making this decision, the Court examined statistics which showed that 22% of drivers subject to the mandatory suspension were eventually found not guilty, but were still prohibited from driving for significant periods of time while they waited to go to trial. Moreover, the Court relied on “evidence and logic” in finding that drivers were induced to plead guilty and therefore surrender their constitutional right to presumption of innocence and right to a trial. If drivers plead guilty, they are able to apply to start driving much earlier with an alcohol sensing device installed in their cars, called an ignition interlock, than if they decided to wait for trial. Furthermore, the Court shut down the Province’s argument that the mandatory suspension is effective by noting that the fundamental rights of Canadians take precedence over efficacy.

Finally, the Court noted that the Province has gradually been increasing the reach and impact of the administrator licence suspension regime, but stated clearly that there must be a limit.

Justice Paperny, writing for the dissent, noted that the mandatory suspension regime does not infringe on Charter rights because there is no constitutional right to drive. She wrote that the jurisprudence is clear that a licence is a privilege, not a right and a lack of a driver’s licence does not amount to a restriction of one’s freedom of movement.

With respect to the majority’s concern regarding the inducement to file a guilty plea, Justice Paperny stated that if an accused pleads guilty out of his/her free will, then the motivation for such a decision does not matter.

The law, having been declared unconstitutional, will remain in place for one year until the Province can amend it or file an appeal at the Supreme Court of Canada.


Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta.

A Publication of CPLEA