BenchPress - Vol 42-5 - LawNow Magazine

BenchPress – Vol 42-5

  1. Free the Beer Case

New Brunswick’s Liquor Control Act limits the amount of alcohol that someone can purchase from another Canadian province and bring back to New Brunswick. In October 2012, Gerard Comeau was charged for trying to bring back 354 bottles of beer and three bottles of liquor, which greatly exceeded the permitted limit. His car was under surveillance for cross-border liquor transport and was intercepted on his way back into New Brunswick.

Mr. Comeau argued that the provincial law is unenforceable and that it violates Section 121 the Constitution Act, 1867 which states:

Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

At trial, the judge agreed that the provincial law was unenforceable because it created a trade barrier that is not permitted under the Constitution as noted above. The New Brunswick Court of Appeal denied the attorney general of New Brunswick leave to appeal. However, this decision was appealed to the Supreme Court of Canada, which allowed the appeal. The SCC found that the Liquor Control Act does not violate the Constitution and is valid law.

In a 9-1 decision, the SCC found that the law’s primary purpose was not to restrict trade, but to allow the production, movement, sale and use of alcohol to be supervised within New Brunswick. While Mr. Comeau was originally fined $292.50, the SCC also found that he had to pay the costs of the SCC application, which will surely cost him a lot more than the fine.

R v. Comeau, 2018 SCC 15

  1. Legal Aid Ontario on the Hook for Costs for the First Time

For the first time in its history, Legal Aid Ontario has been ordered to pay costs in losing a case it funded. The costs amounted to approximately $385,000.

In Hunt v. Worrod, Legal Aid Ontario represented a woman, Kathleen Ann Worrod, against a man named Kim Kevin Hunt and his court-appointed guardians – his two sons.

In June 2011, Mr. Hunt, who was 50 years old at the time, suffered severe and permanent brain injury after an ATV accident. On August 2011, the Office of the Public Guardian and Trustee became Mr. Hunt’s statutory guardian after finding that Mr. Hunt was not capable of managing property.  He was released home in October 2011 to his two sons after they had received significant training to care for him. The day before he was released, his sons applied to become their father’s guardians. Their application was granted sometime later.

Three days after he arrived home from the hospital, Ms. Worrod’s uncle picked up Mr. Hunt when his sons were not at home. They did not bring Mr. Hunt’s medication, nor did they tell anyone that he was picked up. Ms. Worrod and Mr. Hunt were previously in a relationship and lived together in the same home, but separated after signing a separation agreement. Ms. Worrod’s alcoholism and disorderly conduct, which cost Kim at least $25,000 is said to have been the reason for their separation. In the separation agreement. Mr. Hunt paid out Ms. Worrod for her share in the home they shared.

On the same day that Mr. Hunt was picked up, Ms. Worrod had arranged a wedding with only her family present, and with a marriage official who had met with Ms. Worrod and Mr. Hunt for 20 minutes before their wedding. Also, on the same day, his sons were finally able to reach Mr. Hunt by cellphone. He told them that he was going to price out a foundation job (even though he was a landscaper prior to the accident, not a builder and never constructed foundations). Later that day, the police located Mr. Hunt by tracking his credit card purchases, which included a hotel room booking, and took him back to his sons. Even after this incident, the sons invited Ms. Worrod to be involved in caring for Mr. Hunt, but for the two appointments arranged with medical professionals, she came late to the first appointment and did not attend for the second one. Still, Ms. Worrod argued in the case that Mr. Hunt was capable of consenting to the marriage and that, therefore, she is entitled to interest in the home owned by Mr. Hunt, his assets, and his future disability payments.

The Judge found that Mr. Hunt did not have capacity to enter the marriage because:

  1. he did not understand the nature of the marriage contract and duties flowing from it; and
  2. he was unable to manage himself and his affairs.

At the time Ms. Worrod and Mr. Hunt got married, he needed 24 hour care, had difficulty walking and remembering things, and could not make decisions or solve problems. The evidence of his condition came from several medical professionals, family members and friends of both Mr. Hunt and Ms. Worrod, and individuals such as the marriage officiant and a police officer who had previously charged Ms. Worrod for driving while intoxicated.

The Judge also ordered that all contact between Mr. Hunt and Ms. Worrod be prohibited, based on information from the medical professionals who indicated that Mr. Hunt’s health was impacted by her.

The Judge, however, wasn’t done. He noted that Legal Aid Ontario’s support of Ms. Worrod was an abuse of process that wasted judicial resources and hurt the public interest. He found that Mr. Hunt’s family had to spend hundreds of thousands of dollars needlessly. Ms. Worrod did not pay anything for the $25,000 it cost Legal Aid Ontario to support her case. However, Mr. Hunt and his guardians had to pay for specialized lawyers who did the “heavy lifting” of proving the case.

The Judge called the case “meritless”, something that he said Legal Aid Ontario would have known prior to trial. For example, Legal Aid Ontario would have known that Mr. Hunt was a “vulnerable person”, because when they put a lien on Mr. Hunt’s home, the Office of the Public Guardian and Trustee had already registered a certificate on title giving it the sole authority to transfer or sell Mr. Hunt’s home. Legal Aid Ontario also paid for an expert report which showed that Mr. Hunt was intellectually incapable for making independent decisions.

The costs of the case, that Legal Aid Ontario and Ms. Worrod would have to share is $385,000. The Court noted that although these costs were reasonable, Ms. Worrod would be unlikely to pay because she works at a Tim Horton’s and has no assets. A news report noted that the Judge called this a “predatory marriage”.

Hunt v. Worrod, 2017 ONSC 7397

  1. Fido’s Folly

The Alberta Court of Appeal (“ABCA”) heard an appeal from a woman, Karen Stefanyk who sued Sobeys, First Capital (Eastview) Corporation, and a dog owner for an injury outside a Sobeys store.

Ms. Stefanyk argued that while she was walking on a sidewalk beside a Sobeys, which Sobeys did not own, a dog that was tied to a bicycle rack startled her. The dog had lunged at her, while still tied, causing her to step back and trip over the edge of the sidewalk. She stated that some Sobeys garbage containers had blocked the dog’s presence so she did not see him. She suffered injuries to her head, back and wrists.

The case was dismissed at Masters Chambers. Ms. Stefanyk appealed at Justice Chambers, where the parties wanted the case to proceed by summary judgment. This is where a decision is made based on the documents and not a trial. Justice Chambers decided that a trial was necessary. At the ABCA, the Court decided that a summary judgement could be made, because there were no significant issues of credibility or facts in dispute. Second the ABCA found that Sobeys was an occupier of the sidewalk because even though Sobeys did not own the sidewalk, it had some control over it.

However, the ABCA also decided that Sobeys was not negligent because it was not directly responsible for the dog, the dog did not cause any other problems for Sobeys to anticipate its behaviour, and Sobeys is not expected to ban all dogs from its premises. As a result, the action was dismissed.

Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125

  1. Rent and Renovictions in Vancouver

The cost of renting or purchasing a home in Vancouver is known to be unaffordable for many locals. In one case at the British Columbia Supreme Court (“BCSC”), a tenant, won a case against her landlord, Aarti Investments Inc., for trying to evict her to obtain higher rents. The BCSC overturned the decision of the Residential Tenancy Branch (“RTB”).

Ms. Baumann has been living in the same one bedroom apartment building for 17 years. In December 2014, several other tenants wrote a letter to the landlord about maintenance and repair issues. About six months later, the landlord applied to increase the rent for all tenants. Ms. Baumann’s rent would have increased 64% from $730 to $1200.

The landlord stated that the rent was increased to conduct renovations. Several tradespeople inspected Ms. Baumann’s suite and found numerous issues. Shortly after, the landlord’s insurance company advised that if certain issues were not address, the landlord’s insurance coverage would be lost.

In July 2017, the landlord sent Ms. Baumann a two-month eviction notice on the grounds that it had all the permits and approvals to renovate or repair the unit. They needed the unit to be vacant to do the renovations. These are being called “renovictions”.

Ms. Baumann challenged their argument by stating that not all the permits for the proposed work were obtained by the time of her eviction, and therefore, vacant possession was not necessary. She also argued that the two-month eviction notice was not in good faith and that the landlord want to end the current tenancies, including hers, to increase rents in the property. At the RTB, Ms. Baumann lost her argument.

The BCSC found the decision of the RTB was “openly, evidently, and clearly unreasonable”. The Court sent the matter back to the RTB for reconsideration.

The Court noted that the RTB did not consider Ms. Baumann’s compromise to move out of the premises during the repairs and pay for that expense herself. The Court found that terminating the tenancy is permitted where it is the only way to ensure the repairs occur. The Court also found that the Evict Notice should not have been issued because permits for only some, not all, of the work were obtained.

Baumann v. Aarti Investments Ltd., 2018 BCSC 636

  1. Lifetime Registry of Repeat Sex Offenders in Ontario

In this case, the Ontario Court of Appeal was requested to consider whether a Criminal Code law, which requires a sex offender convicted in Ontario to be registered for life with the Province of Ontario, is constitutional. The sex offender in this case, Richard Long, was convicted of three sexual assaults that occurred on the same day to the same woman who was hired through a program for people with learning disabilities. He was the victim’s employer. Long put his hand under the woman’s bra to touch her breast for about a minute and then left. He returned to touch her breast again and started kissing her. Finally, when she went to the basement at her place of work to get something, he undid her shirt and kiss her again. After that day, the victim never returned to work.

At trial, Long argued that the woman consented. However, because she had disabilities, she could not consent. In addition, he preyed on her as he was in a position of trust as her employer, he was found guilty. The trial judge sentenced him to serve 9- days, probation for 2 years and be registered as a sex offender for life.

Long appealed the decision to the summary conviction appeal judge. All of his claims were dismissed. Long then appealed to the ONCA, on the grounds that the sex offender registration violates his Charter rights. The ONCA found that the provision was not arbitrary, overbroad or grossly disproportionate. In doing so, the Court provided many reasons. Some but not all include:

  • It helps police services investigate crimes of a sexual nature;
  • Ensures public safety by registering for sex offenders who have convicted more than offence and are at an higher risk of re-offending
  • Long can apply to terminate the order (and therefore, the registration) after 20 years
  • The fact that Mr. Long committed three offences on the same day to the same person shows that he was persistent and impulsive, which means he has a higher risk of re-offending
  • The lifetime registration only has a modest impact on Long’s liberty.

In the end, the ONCA dismissed Mr. Long’s Appeal.

R v. Long, 2018 ONCA 282

Authors:

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


A Publication of CPLEA