case mail v. 18 no. 18 - law society of saskatchewan · stewart v. keating, 2016 skca 59 richards...

Case Mail v. 18 no. 18

file:///lsssbs/kchiu/webLS/CaseMail/CM%2018-18.htm[13/09/2016 2:32:09 PM]

The Law Society of Saskatchewan Library's online newsletterhighlighting recent case digests from all levels of Saskatchewan Court.

Published on the 1st and 15th of every month.

Volume 18, No. 18 September 15, 2016

Subject Index

Administrative Law –Judicial Review

Administrative Law – Judicial Review – Standardof Review –Reasonableness

Bankruptcy – Bankruptcyand Insolvency Act, Section172.1

Civil Procedure – Affidavits– Admissibility

Civil Procedure – Appeal

Civil Procedure –Application to DismissAction – Want ofProsecution

Civil Procedure –Examination for Discovery– Undertakings

Civil Procedure – Pleadings– Statement of Claim –Striking Out

Civil Procedure – Queen’sBenchRules, Rule 9-19

Constitutional Law –Charter of Rights, Section11(b)

Criminal Law – Appeal –Acquittal

Stewart v. Keating, 2016 SKCA 59

Richards Ottenbreit Ryan-Froslie, April 28, 2016 (CA16059)

Civil Procedure – AppealCivil Procedure – Relitigate Criminal TrialStatutes – Interpretation – Criminal Code, Section 11Statutes – Interpretation – Police Act, 1990, Section 10(3)

The appellant appealed the Court of Queen’s Bench decision dismissinghis claim for damages against the respondent, a police constable. Therespondent stopped the appellant in a traffic stop. He was arrested forobstruction when he did not stay in his vehicle as instructed andrefused to provide his name or driver’s licence. The trial judge foundthat the appellant’s ss. 9 and 10 Charter rights were breached and thatthe remedy was an absolute discharge. The appellant did not appeal theconviction but rather commenced a civil action against the respondentfor damages for the injuries he said he suffered at the hands of therespondent during his arrest and detention. He claimed $400,000 basedon damages from various torts. After trial, the appellant’s claim wasdismissed and the respondent was awarded costs. The issues were: 1) ifthe judge erred in finding that the appellant’s civil claim was an abuseof process because it was an attempt to relitigate the issues in hiscriminal trial; 2) whether costs should have been awarded to therespondent because that punished the appellant for challenging anarguable breach of his human rights resulting from his arrest; 3)whether s. 11 of the Criminal Code mandated that the appellant’s civilclaim must succeed; 4) whether the dismissal of the civil claimrewarded the respondent’s violation of the appellant’s Charter rights

https://www.canlii.org/en/sk/skca/doc/2016/2016skca59/2016skca59.pdf



Criminal Law – Appeal –Conviction

Criminal Law – Arrest –Reasonable and ProbableGrounds

Criminal Law – AssaultCausing Bodily Harm

Criminal Law – Assault witha Weapon

Criminal Law –Breathalyzer – Demand forSample – Valid Demand

Criminal Law – Defences –Charter of Rights, Section9, Section 10(a), Section24(2)

Criminal Law – Fail to StopAfter Accident

Criminal Law – MotorVehicle Offences – Drivingwith Blood AlcoholExceeding .08 – Conviction– Appeal

Criminal Law – Robbery –Conviction – Appeal

Criminal Law – SexualOffences – Touching for aSexual Purpose – YoungPerson

Family Law – Child in Needof Protection – Child andFamily Services Act –Permanent Order

Family Law – Child in Needof Protection – PermanentOrder

Family Law – Child Support– Arrears – Recission

Family Law – Custody andAccess

Family Law – Custody andAccess – Mobility

Family Law – Custody andAccess – Person ofSufficient Interest

Family Law – Custody andAccess – Variation

Family Law – FamilyProperty – Division

because there were Charter breaches in the criminal matter; 5) theappellant argued that he did not receive disclosure in the criminal case;6) if the judge erred by disallowing evidence of the respondent’salleged previous violent conduct in other cases involving the appellant;and 7) if the judge erred in finding that three of the elements necessaryfor a finding of malicious prosecution had not been established.HELD: The appeal was dismissed. The appeal court held that: 1) thejudge did not err in finding that the appellant’s conviction wasconclusive that he was lawfully arrested and the appellant wasattempting to relitigate the issues decided in his criminal trial; 2) thejudge was correct to order costs to follow the cause; 3) s. 11 had noapplication because the appellant was not seeking a civil remedy for anact that was a criminal offence; 4) the appellant’s argument wronglyassumed that the respondent was responsible for the Charter breaches.The respondent was not responsible for the unlawful detention becausethe respondent had already turned the appellant over to the officer incharge at the detachment; 5) the ground was without merit and was anattempt to relitigate the criminal matter; 6) this was an attempt tointroduce character evidence trying to prove lack of credibility. Thejudge did not err in characterizing the evidence as character evidence;7) the appellant misunderstood that an absolute discharge means thathe was convicted. The appeal court also held that the appeal must bedismissed on the basis that s. 10(3) of The Police Act applied. Therespondent was protected from civil action because there was noevidence that he acted maliciously or with lack of good faith inexercising his powers of arrest.

© The Law Society of Saskatchewan Libraries Back to top

R. v. Pankiw, 2016 SKCA 60

Ottenbreit Caldwell Ryan-Froslie, May 3, 2016 (CA16060)

Criminal Law – Motor Vehicle Offences – Driving with Blood AlcoholExceeding .08 – Conviction – AppealConstitutional Law – Charter of Rights, Section 11(b)

The appellant applied for leave to appeal a decision of a Court ofQueen’s Bench judge (see: 2014 SKQB 381), acting as a summaryconviction appellate judge, who upheld his conviction in ProvincialCourt of driving while over .08, contrary to s. 253(1)(b) of the CriminalCode. The appellant had argued unsuccessfully at trial that his s. 11(b)Charter rights had been violated because it took 27 months for thecharges to proceed to trial and that most of the delay was due to theCrown’s failure to provide reasonable disclosure. The trial judge foundthat the time was excessive but not unreasonable after he consideredwhat amount of delay was attributable to the Crown and concluded




Family Law – FamilyProperty – Division –Enforcement

Real Property – Mortgage –Discharge

Tort – Personal Injury – Scienter

Wills and Estates – Proofof Will in Solemn Form

Cases by Name

101239408 SaskatchewanLtd. v. S-5 Holdings Ltd.

Brown v. 629839Saskatchewan Ltd.

D.(A.) v. B.(A.)

Farm Credit Canada v.Gherasim

Fourney v. Fourney

G. (J.), Re

Good Spirit School DivisionNo. 204 v. Christ theTeacher Roman CatholicSeparate School DivisionNo. 212

H. (N.) v. H. (B.)

Keenan v. Keenan

Kreway v. Kreway

Kwok v. Jennings

L. (C.W.), Re

R. v. Ali

R. v. Burns

R. v. Choli

R. v. Drysdale

R. v. Gronlund

R. v. Manitopyes

R. v. Martin

R. v. Pankiw

R. v. Pelletier

R. v. Ross

R. v. Styles

that the appellant had suffered minimal prejudice as result of the delay.The trial judge dismissed the defences of self-defence and defence ofproperty raised by the appellant. On appeal, the appeal court judgedetermined the trial judge had correctly identified and applied the testfor unreasonable delay as set out in Morin and that his decision did notdisclose any reviewable error nor did his assessment of the law relatingto the defences. The appellant appealed on the grounds that the appealcourt judge erred: 1) in law in his review of the trial judge’s assessmentof the delay and its effect on the appellant’s right to a trial within areasonable time; and 2) in sustaining the trial judge’s findings that theappellant’s defences were not established in the circumstances of thecase.HELD: Leave to appeal was granted and the appeal was allowed. Thecourt held with respect to each ground that: 1) the appeal court judgeerred because he ignored a number of legal errors in the trial judge’sMorin analysis. The trial judge failed to recognize that the delayscaused by the appellant’s diligent requests for disclosure should havebeen attributed to the Crown. The court found that the trial judge’sestimate of five to eight months of delay caused by the Crown shouldbe increased to 13 or 14 months. The trial judge’s errors in thecharacterization and attribution of delay affected his prejudice analysisand balancing of interests protected by s. 11(b) of the Charter because ofhis finding that the delay was not unreasonable. The appeal court judgeerred by failing to properly apply the appellate standard of review tothe trial judge’s Morin analysis. The court held that the delay wasunreasonable and the appellant’s s. 11(b) rights were breached. It foundthat the appellant had suffered prejudice (actual and inferred). In theassessment of society’s interest in having him brought to trial fordrinking and driving, the court found that the appellant’s right to trialwithin a reasonable time tipped the balance in favour of him. The courtordered a stay of proceedings with respect to the driving over .08charge; and 2) the court found it unnecessary to consider the otherground of appeal.


R. v. Manitopyes, 2016 SKCA 61

Richards Lane Whitmore, May 5, 2016 (CA16061)

Criminal Law – Robbery – Conviction – AppealCriminal Law – Evidence – Similar Fact Evidence

The appellant appealed from his conviction for four robberies, oneattempted robbery and four counts of masking his face with intent tocommit an indictable offence. He was also convicted of possession of astolen vehicle (see: 2012 SKQB 141). He and his co-accused were




R. v. Suteau

R. v. Sweeney

R. v. Veikle

Radiology Associates ofReginal Medical PC Inc. v.Regina Qu'Appelle RegionalHealth Authority

Riel v. Riel

Schmidt v. Schmidt

Seitz, Re (Bankrupt)

Stewart v. Keating

Stuckel v. Lozinsky

United Food andCommercial Workers, Local1400 v. K-Bro LinenSystems Inc.

United Steel Workers v.Comfort Cabs Ltd.

Wanner v. Christie

DisclaimerAll submissions toSaskatchewan courts must conform to the CitationGuide for theCourts of Saskatchewan.Please note that the citationscontained in our databasesmay differ in style from thoseendorsed by the CitationGuide for the Courts ofSaskatchewan.

charged with the offences, a robbery spree that occurred on one day in2010. The accused did not testify at trial nor call any evidence. Identitywas the only issue after the offences were proven. The Crown did notapply to admit similar fact evidence, but the trial judge applied theevidence from each charge in relation to all the other charges. Thesimilar evidence included: the use of the same stolen vehicle; twoperpetrators wearing hoodies and masks and other identifying features;and the use of weapons such as knives and hammers. As well, theappellant’s DNA was found on the vehicle and on a bottle in it. Theappellant argued that the trial judge erred in law by convicting him onsimilar fact evidence without having determined its admissibility andthat the convictions were not reasonable.HELD: The appeal was dismissed. The court found that the trial judgehad erred in law because he failed to determine the admissibility of theevidence. However, the evidence was admissible in the circumstancesof this case. There were sufficient similarities and sufficient strikingsimilarities in the alleged acts that far outweighed any dissimilarity orcountervailing factors that might have otherwise increased theprejudicial value of the evidence to the appellant. The court reviewedthe appellant’s argument that he had been prejudiced by the admissionof the evidence because he was not given the opportunity to challengethe use of the evidence; he might have cross-examined the witnessesdifferently or the appellant may have testified. The court noted that theappellant had not challenged the admissibility of the similar factevidence at trial and that he had not shown that he was precluded fromaddressing the issue at trial or that the use of the evidence would haveimpacted his trial strategy. It found that he had not established anyprejudice to him. The court found that the trial judge’s verdict wasreasonable based upon ample circumstantial evidence implicating theappellant.


R. v. Pelletier, 2016 SKCA 62

Richards Lane Whitmore, May 5, 2016 (CA16062)

Criminal Law – Robbery – Conviction – AppealCriminal Law – Evidence – Identification

The appellant appealed his conviction on four counts of robbery, threecounts of having his face masked with intent to commit an indicatableoffence, and one count of possession of stolen property. The appeal washeard in conjunction with the conviction appeal of the appellant’s co-accused (see: 2016 SKCA 61). The two co-accused had been involved ina day-long crime spree. The sole issue before the trial judge sittingwithout a jury was the identity of the accused. The appellant raised

http://www.sasklawcourts.ca/index.php/home/resources/citation-guide-for-the-courts






numerous issues on appeal, including that: 1) the trial judgemisapprehended the identification evidence given by one of thevictims; 2) he improperly took the role of a witness in commenting onthe nature of the appellant’s appearance to confirm the witness’sidentification of him; and 3) the trial judge failed to address thereliability of this particular witness. At trial, the witness in questionnoted that the robber had a tear-shaped tattoo on his face. The appellantalso had such a tattoo on his face. She described her attacker as being ofslight build, approximately 5 feet 8 inches in height. The lower part ofhis face was covered by a scarf but she identified the assailant as beingAboriginal with “unique” eyes. She identified the appellant as theassailant in a photo lineup and at trial. The trial judge commented thathe too found the appellant’s eyes to be unique. The appellant arguedthat the witness saying that his eyes were unique should have beensupported by expert evidence.HELD: The appeal was dismissed. The court held with respect to eachground that: 1) the witness was simply remembering the appellant’seyes and that was one of the reasons that she could identify him. Shedid not state that there was something objectively unique about hiseyes; and 2) the trial judge’s finding that the appellant’s eyes wereunique was his personal observation. He was not descending into therole of witness but simply assessed the reliability of the witness’sidentification evidence; and 3) the trial judge explained that he foundthe witness to be careful and deliberate and someone who stood upwell under cross-examination The trial judge also relied upon aconsiderable amount of circumstantial evidence implicating theappellant and had corroborative evidence from other witnesses of otherrobberies. They had identified the appellant as having a distinguishingtattoo on his face.


R. v. Choli, 2016 SKCA 64

Lane Whitmore Ryan-Froslie, May 4, 2016 (CA16064)

Criminal Law – Appeal – AcquittalCriminal Law – Appeal – Relevant EvidenceCriminal Law – Appeal – Totality of EvidenceCriminal Law – Controlled Drugs and Substances Act – Importing OpiumCriminal Law – Controlled Drugs and Substances Act – Possession forthe Purpose of Trafficking – Opium

The Crown appealed the respondent’s acquittal on charges of importingopium into Canada, contrary to s. 6(1) of the Controlled Drugs andSubstances Act (CDSA), and possession of opium for the purposes oftrafficking, contrary to s. 5(2) of the CDSA. Two parcels addressed tothe respondent were intercepted by Canadian Border Service Agency.




The parcels were labelled pizza makers and had a return address inTurkey. The parcels were opened when a sniffer dog reacted to one.The parcels contained pizza makers and over a kilogram of opium. Awarrant was obtained authorizing a controlled delivery of the parcels tothe address listed on them. The address was the respondent’s sister’sresidence, but he was there when the parcels were delivered. Heaccepted delivery of the parcels. Twelve minutes later, the respondentwas arrested. The parcels were located in a closet unopened. Theparcels and the respondent’s cell phone were seized once a warrant wasobtained. The cell phone had a video and two photographs of theparcels taken the day of the delivery. A different location, therespondent’s residence, was also searched and a postage packing slipfor the address in Turkey was located. The respondent indicated that hethought his sister must have used his name for the parcel delivery.Also, he said that he took pictures and videos of the parcels because henoticed holes in the parcels and had had previous issues with a Turkishairline in the past and wanted evidence. The trial judge concluded thatwithout more evidence establishing the involvement of the respondentin bringing the opium into the country he was not satisfied beyond areasonable doubt of the respondent’s guilt and found him not guilty ofthe charge. The trial judge was also left with a reasonable doubt aboutwhether the respondent actually knew the parcels contained opium.The issues on appeal were whether the trial judge erred: 1) in hisconsideration of the evidence by failing to articulate which expertevidence he found inadmissible; 2) in law by failing to consider thetotality of the evidence in relation to the test in W. (D.); and 3) in failingto consider all of the relevant evidence in relation to each charge.HELD: The appeal was allowed and a new trial was ordered. The issueswere considered as follows: 1) the trial judge stated that the expert’stestimony on the methods of packaging, concealment, shipment and thevarious consequences or inferences that may flow from them werelargely matters of common sense and did not meet the necessity criteriafor the admission of expert evidence. The appeal court found twoconcerns with the trial judge’s conclusion: a) it was unclear whichportions of the expert’s testimony were ruled inadmissible; and b) itwas not evident that they were matters of common sense that did notmeet the necessity criteria. The appeal court concluded that the trialjudge erred in his appreciation of relevant evidence in relation to bothcharges because he failed to articulate which expert evidence hedeemed inadmissible; 2) the appeal court found that the trial judgeerred by failing to consider the totality of the evidence in makingdeterminations of credibility; and 3) the Crown argued that the trialjudge failed to assess the cumulative effect of the evidence and insteadcompartmentalized the evidence and only considered certain pieces ofevidence in relation to each charge. The appeal court held that the trialjudge failed to consider all of the evidence in relation to the s. 6(1)charge. The three pieces of evidence the trial judge listed as beingrelevant to the trafficking charge were also relevant to the importing



charge. The court found three errors of law, all of them applying to theimportation charge and two applying to the trafficking charge. TheCrown was found to have met its burden of satisfying the court that theerrors may have reasonably had a material bearing on the acquittal. Anew trial was ordered.


R. v. Burns, 2016 SKCA 67

Jackson Caldwell Herauf, May 12, 2016 (CA16067)

Criminal Law – Appeal – ConvictionCriminal Law – Appeal – Grounds – Unreasonable VerdictCriminal Law – FirearmsCriminal Law – Hearsay Evidence – AdmissibilityCriminal Law – Unlawful ConfinementCriminal Law – Utter Threats

The appellant appealed his Criminal Code convictions of: two counts ofuttering threats contrary to s. 264.1(1)(a); one count of unlawfulconfinement contrary to s. 279(2); and using a firearm while committingan indictable offence contrary to s. 85(1)(a). The appeal was based onthe argument that the judge erred by admitting and relying on hearsayevidence. The evidence was a series of text messages between thecomplainant and her sister and an audio recording of a statement thecomplainant gave the RCMP minutes after the events in question. Thecomplainant was the 17-year-old daughter of the appellant’s girlfriend.The appellant and his girlfriend were intoxicated, the complainant wasnot. The complainant texted her sister that the appellant had a gun andwanted to shoot himself. She texted that the appellant also threatenedto shoot the girlfriend and complainant if they left. The sister called thepolice. At trial, the complainant was a reluctant witness for the Crownand had recanted or otherwise distanced herself from her prior out-of-court statements. The judge accepted the officers’ testimony as highlycredible. The trial judge did not find the appellant to be credible. Thetrial judge found that the principled exception to hearsay appliedbecause the elements of necessity and reliability were met. The trialjudge found the text messages and statement to be necessary becausethe complainant was holding the evidence hostage. She also found theevidence to be sufficiently reliable.HELD: The convictions were not set aside. The trial judge was correct inconcluding that the hearsay evidence was necessary because thecomplainant recanted her prior statement and was a reluctant witness.The appeal court found that there were relevant indicia to support thejudge’s conclusion that the evidence was reliable: the text messageswere voluntary and sent in the midst of events; the audio-statementwas given voluntarily to a uniformed officer immediately after the




events; the text messages were a first-hand account of the events as theyoccurred, which was consistent with the audio-statement; there waslittle ambiguity in the narrative of either of the statements; there was nocredible motive to lie; and the officers testified that the complainantappeared scared and cooperative when they spoke to her. There wassufficient circumstantial procedural and substantive guarantees ofreliability or trustworthiness of the hearsay evidence. The trial judge’sdecision to admit the evidence was entitled to deference. The appealcourt concluded that a properly instructed trier of fact could reasonablyhave convicted the appellant on the basis of the evidence that wasaccepted by the judge. The trial judge demonstrated the rationaleunderpinning her conclusions on credibility and reasonable doubt andthe appeal court found that she clearly did so with the relevantprinciples from case law in mind. The trial judge rejected thecomplainant’s in-court statements with good reason. The verdicts werenot unreasonable.


R. v. Sweeney, 2016 SKPC 63

Tomkins, May 2, 2016 (PC16051)

Criminal Law – Arrest – Reasonable and Probable GroundsCriminal Law – Blood Alcohol Level Exceeding .08 – Breath Demand –Reasonable and Probable GroundsCriminal Law – Care or Control – PresumptionCriminal Law – Care or Control – De Facto – ActualCriminal Law – Defences – Charter of Rights, Section 8, Section 9,Section 24(2)Criminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08

The accused was charged with driving while impaired and driving over.08, contrary to ss. 253(1)(a) and 253(1)(b) respectively, of the CriminalCode. The accused met co-workers at a bar at 6:30 pm, where he hadtwo schooners, equivalent to about four beers. At 9:00 pm the accusedwent to his truck to charge his phone. He was in the driver’s seat withthe truck started. It was February and cold. He reclined the seat and fellasleep waiting for his phone to charge. He indicated that he did nothave any intention to move the truck. Officers attended at 10:56 pmafter receiving a call of a man passed out in a running vehicle. Theofficers opened the truck doors and removed the keys from the ignition.An officer testified that he was overwhelmed by the smell of alcohol.He advised the accused that he was under arrest for impaired care orcontrol and asked him to exit the truck. The dash cam from the policevehicle indicated that the accused was arrested and outside the truckwithin 15 seconds. The following Charter issues were raised on voirdire: 1) was the entry to the truck without warning and without

https://www.canlii.org/en/sk/skpc/doc/2016/2016skpc63/2016skpc63.pdf



grounds thereby constituting an unlawful entry and detention, contraryto s. 9; 2) were there reasonable grounds for the accused’s arrest forhaving care or control while impaired and was he therefore arbitrarilydetained contrary to s. 9; 3) were there reasonable grounds for theBreathalyzer demand and was the accused subjected to an unlawfulsearch contrary to s. 8; and 4) a s. 24(2) Grant analysis for any Charterbreaches.HELD: The issues were determined as follows: 1) opening the doorswas not itself a Charter breach, but was instead considered with thearrest. The court indicated that even if their approach was incorrect andopening the doors was a Charter breach, it would not lead to exclusionof the Certificate of Qualified Technician after a s. 24(2) Grant analysis;2) the court was satisfied beyond a reasonable doubt that the officersapproached the vehicle anticipating an impaired occupant and uponsmelling alcohol and hearing guttural sounds from the accused,concluded immediately and without more that the occupant wasimpaired. The arrest was made within seconds of opening the door sothere was no time to draw any conclusions. The officer had subjectivesuspicion, but he did not have subjective reasonable grounds for thearrest. The arrest was unlawful and the accused’s detention wasarbitrary and contrary to s. 9 of the Charter; 3) by the time the officermade the breath demand he had acquired additional information: theaccused spoke intelligibly; he responded appropriately in conversation;he had no difficulty walking; and he did not make any furtherintelligible sounds. The officer did not have sufficient grounds tosupport a Breathalyzer demand. There was nothing in thecircumstances to prevent the officer from conducting the requiredinvestigation into the suspected impaired driving prior to giving thebreath demand. The officer did not have reasonable grounds to make ademand for breath samples; and 4) the officer had time to do a morethorough investigation into the accused’s impairment and thatincreased the seriousness of the Charter breach. The accused wasarbitrarily detained for longer than one hour and 15 minutes. Societyhas interest in adjudicating impaired driving cases, but society also hasan interest in ensuring that Charter rights have real meaning. The courtbalanced the factors and concluded that the admission of evidencewould bring the administration of justice into disrepute. The Certificateof Qualified Technician was excluded. The court found that the truckseat was not fully reclined and therefore the presumption of care andcontrol was raised. The court accepted the accused’s evidence regardingthe plan he and his co-workers had for a designated driver. The courtwas also satisfied that the accused abandoned that plan when he wentinto his vehicle and stayed there for two hours. The accused did notrebut the presumption of care or control. The court indicated that evenif that conclusion was incorrect, the accused was in de facto care orcontrol of the truck. The court held that the evidence did not establishthat the accused’s ability to operate a motor vehicle was impairedbeyond a reasonable doubt. The accused was also acquitted of the .08



charge because the certificate was not in evidence.


R. v. Ross, 2016 SKPC 64

Robinson, May 2, 2016 (PC16054)

Criminal Law – Fail to Stop After AccidentCriminal Law – Impaired Driving Causing Bodily Harm

The accused was charged with the following Criminal Code charges: 1)having control of a vehicle involved in an accident, with intent toescape liability, fail to stop his vehicle, give his name and offerassistance to an injured party who appeared to require assistance,contrary to s. 252(1.2); and 2) causing bodily harm operating a vehiclewhile impaired by alcohol contrary to s. 255(2). The victim was drivingher bicycle straight through an intersection one evening and theaccused was turning onto the road when he struck her. The accused leftthe scene, but did attend the police detachment a week later to give twoseparate video-taped statements. In the first statement the accusedindicated that he was hungover and started drinking again about 2:00pm the day of the accident. He said he had five or six drinks or hardliquor and was pretty much intoxicated. The victim indicated that shehad also been drinking, as many as six beer. The victim’s bicycle didnot have a light or a reflector. The victim received four stitches and hermigraine headaches became worse after the accident. The passenger inthe accused’s vehicle testified that the accused stopped at theintersection, proceeded, and stopped when a bicycle was noticed. Thepassenger indicated that the bicycle ran into the vehicle. He alsoindicated that there was nothing unusual about the accused’s drivingand he was not slurring his words. He said he could smell alcohol onthe accused.HELD: The evidence clearly established that the accused did not leavehis name and address and did not offer any assistance to the victim.The court found that it should have been readily apparent to theaccused that the victim required some assistance. There was noevidence to rebut the presumption in s. 252(2) that the accused intendedto escape liability. The victim suffered bodily harm that was more thantransient or trifling in nature. The accused fled the scene before heknew the extent of the victim’s injuries, but the court found that he waswillfully blind to what those injuries were. The accused was guilty of acharge contrary to s. 252(1.2). The court determined that the accused’sadmission that he was intoxicated was not sufficient to prove theCrown’s case. The passenger testified that there was nothing unusualabout the accused’s driving. The collision itself was not found to beevidence of intoxication because the court said it was quite plausible




that no driver would have seen the bicycle. The Crown did not provebeyond a reasonable doubt that the accused’s ability to operate avehicle was impaired by alcohol. Further, the court indicated that if theaccused was found to be impaired, it would have concluded that thevictim’s bodily harm was not caused by the impairment. The bodilyharm was caused by her driving her bicycle down a highway in thedark without using any lights or reflectors.


R. v. Styles, 2016 SKPC 67

Tomkins, May 5, 2016 (PC16052)

Criminal Law – Breathalyzer – Demand for Sample – Valid DemandCriminal Law – Defences – Charter of Rights, Section 8, Section 9,Section 10(b), Section 24(2)Criminal Law – Driving over .08 – Approved Screening Device –ForthwithCriminal Law – Driving over .08 – Approved Screening Device – ValidDemandCriminal Law – Driving over .08 – Breathalyzer – Observation PeriodCriminal Law – Impaired Driving

The accused was charged with driving while impaired and driving over.08, contrary to ss. 253(1)(a) and 253(1)(b) respectively, of the CriminalCode. The vehicle the accused was driving was stopped at 8:17 pm. Cpl.K. noticed the accused had red, glassy eyes and the he spoke slowlyand appeared to have to concentrate to speak correctly. A mild odour ofalcohol was also noticed. The accused was asked to accompany Cpl. K.to the police vehicle for an impaired driving investigation. After heexited the vehicle, Cpl. K. confirmed that the smell of the alcohol wascoming from the accused. The accused was advised that he was beingdetained for an ASD breath sample. Another officer, Cst. K., arrived atthe scene with an ASD. Cpl. K. advised Cst. K that the accused was thedriver and the he had alcohol on his breath. Cst. K. made an ASDdemand at 8:35 pm and a fail resulted after the test. The accused wasarrested for driving over .08. Cpl. K. then gave the accused his Charterrights and warning at 8:38 pm. The accused was taken to thedetachment where he consulted counsel before giving his first breathsample at 9:47 pm. The issues discussed by the court were: 1) if the ASDdemand met the requirements of s. 254(2) because Cst. K. did not haveinformation as to the time the accused operated the vehicle; 2) was theASD demand made forthwith; 3) the analysis of Grant factors for anyCharter breaches; 4) if the Crown proved beyond a reasonable doubtthat the accused was driving while impaired; 5) did the officer make avalid demand under s. 254(3); and 6) was the accused properlyobserved prior to taking the Breathalyzer tests and, therefore, did the




presumption of accuracy apply. The video from the detachmentrevealed that Cpl. K. directly observed the accused for less than fourminutes in the 21-minute video of the observation periods.HELD: The issues were discussed as follows: 1) there was no evidencethat Cst. K. drew the inference that the accused was driving within theprevious three hours or that he turned his attention to the time ofdriving at all. Therefore, Cst. K. did not have grounds to make the ASDdemand and the accused’s ss. 8, 9, and 10(b) rights were breached; 2)Cpl. K. formed a suspicion at 8:22 pm and the demand was made at8:35 pm and the test was performed at 8:36 pm. Cpl. K. explained thathis post is to investigate organized crime, but that on the day inquestion he was working overtime for a rodeo event. He was notfrequently involved in impaired driving investigations and thereforethought he should leave the demand to an officer more familiar withthem. The court did not find this to be a reasonable explanation for thedelay in giving the ASD demand. The ASD demand was not madeforthwith and was without reasonable or justified delay. The accused’srights were breached: the ASD sample was an unlawful search andseizure contrary to s. 8; his detention to obtain samples was arbitrarycontrary to s. 9; and his right to counsel was not suspended during thatperiod of detention. The taking of samples without informing him ofand implementing his rights to counsel violated s. 10(b); 3) Cst. K.’s rolein the breach was not serious, whereas, Cpl. K.’s role was very serious.The impact of the breach was minor, with one breach flowing from theprevious. The test was conducted when it would have been even if Cpl.K. had given the accused the ASD demand as he should have. The courtdetermined that society has an interest in both adjudicating cases ontheir merits and in protecting Charter rights. After considering thefactors together, the court determined that the ASD test would not beexcluded; 4) the court was satisfied that the accused had consumedalcohol and that he operated a vehicle after doing so, but the court wasnot satisfied beyond a reasonable doubt that his ability to operate avehicle was impaired; 5) Cpl. K. did not read the breath demand fromthe police-issued card, but did advise the accused that he would betaken back to the detachment to give breath samples into an approvedinstrument and that he was required to provide them. The demand wasadequate; and 6) the Crown argued that there was evidence from Cpl.K. that the accused did not take anything by mouth or burp during theobservation period. The court determined that the distance betweenwhere the accused was seated and where Cpl. K. stood with his back tothe accused was too far to be confident that the officer would hear anoise coming from the accused if he burped or regurgitated. Theevidence constituted “evidence of deficiencies in the test process thatraised a reasonable doubt as to the proper operation of theBreathalyzer”. The presumption of accuracy was rebutted and,therefore, the court did not accept that the Breathalyzer readings on theCertificate of Qualified Technician were accurate. The accused wasacquitted of both charges.




R. v. Ali, 2016 SKPC 75

Hinds, May 18, 2016 (PC16063)

Constitutional Law – Charter of Rights, Section 11(b)

The accused was charged with 56 offences set out in eight informations.The offences were alleged to have taken place in June 2012. The chargeswere laid that month. The accused brought a Charter application inMarch 2016 alleging that his right to trial within a reasonable time asguaranteed by s. 11(b) of the Charter was violated and he sought ajudicial stay of proceedings. The accused had been represented by threedifferent counsel from that time until this application. The first counselwithdrew after the first three months, and when the accused retainednew counsel shortly thereafter, the court gave him leave to withdraw inFebruary 2014. The accused hired another lawyer in March 2014 whocontinued to represent him. The accused had been released on his ownrecognizance in July 2012 with the condition that he stay in Calgary,where he resided, except for court appearances. The accused admittedthat he had instructed his third lawyer to seek a trial date and had notdone so with his second counsel because he left the matter to bedetermined by the lawyer. He argued that the lengthy delay in thematter had caused him embarrassment in his community and wasincreasing the stress on his health as he suffered from diabetes.HELD: The application was dismissed. The court found that the 51months between the charges and the scheduled trial was sufficientlylong to warrant an inquiry into the reasonableness of the delay. As theaccused had specifically and voluntarily waived almost five months ofthe delay, the court deducted that amount, leaving 46 months to beconsidered. The various types of delay were considered by the court:11.5 for inherent delay; 15.5 months to be attributed to the actions of theaccused; 10 months to be attributed to the Crown; and 10 months toinstitutional delay. The court found that the accused had not sufferedprejudice and as most of the delay was attributable to adjournmentssought on his behalf, the court found that the overall delay in this casewas not unreasonable.


R. v. Suteau, 2016 SKPC 79

Martinez, May 5, 2016 (PC16059)

Criminal Law – Defences – Charter of Rights, Section 9, Section 10(a),





Section 24(2)Criminal Law – Motor Vehicle Offences – Roadside Screening Device –Refusal to Provide Sample

Two officers patrolling in a marked police vehicle followed andstopped a truck that seemed to be travelling at a speed greater thanusual for the road. An officer attending at the driver’s side windownoticed an overwhelming odour of alcohol coming from the vehicle.There were several intoxicated passengers in the vehicle. The officernoticed the driver had glossy eyes and a possible slight slur. The driverindicated that he had consumed his last drink two hours earlier. Theofficer asked the driver to sit in the back seat of the police vehicle todetermine if he had the smell of alcohol on his breath. Shortly after anASD demand was made. The accused refused to provide a sample evenafter being warned about the legal consequences of doing so. Theaccused asked to speak to a lawyer and was advised that an ASDdemand did not trigger rights to counsel and he was asked again toperform the ASD. He again refused and told the officer to take him tojail. The accused was arrested. The issue on voir dire was whether theodour of alcohol on the accused’s breath should be excluded, pursuantto s. 24(2) of the Charter, for violation of the accused’s ss. 9 and 10(a)Charter rights. The accused argued that his detention became arbitrarywhen the officer demanded that he get out of his truck.HELD: Section 209.1 of The Traffic Safety Act authorizes officers todetain and investigate motorists. The trial judge held that the officer didnot have reasonable grounds to suspect that the accused had alcohol inhis body and, therefore, did not have the reasonable grounds necessaryfor investigative detention at common law. The accused’s detentionoutside of his truck was arbitrary because the officer had exhausted hislawful statutory and common law powers to continue to detain theaccused. The accused’s s. 9 Charter rights were violated. The accusedwas not informed of the reason for his detention and, therefore, his s.10(a) Charter rights were also infringed. The court analyzed s. 24(2) asfollows: 1) the officer’s conduct with respect to the s. 9 breach wasnegligent but he acted in good faith. He also was assumed to know thathe had to tell the accused the reasons for his detention and he willfullydisregarded that right. The Charter breaches were serious and weighedin favour of excluding the evidence; 2) the arbitrary detention wasrelatively brief and minimally intrusive, having little impact on theaccused’s Charter-protected right to be free from arbitrary detention.The impact of the breach on the accused’s s. 10(a) right was also foundto be minimal; and 3) society’s interest in deciding the case on its meritsfavoured including the evidence. The court concluded that the balancefavoured excluding the evidence of alcohol on the accused’s breath. Thedemand was thus unlawful and the accused was not legally obligatedto comply with the demand. The charge was dismissed.




Radiology Associates of Reginal Medical PC Inc. v. Regina Qu'AppelleRegional Health Authority, 2016 SKQB 143

Keene, April 27, 2016 (QB16136)

Civil Procedure – Pleadings – Statement of Claim – Striking OutCivil Procedure – Queen’s Bench Rule 7-9

The defendant health authority brought an application for an orderstriking out the statement of claim or dismissing the action of theplaintiff, Radiology Associates of Regina Medical PC Inc. (RARPC),pursuant to Queen’s Bench rules 2-10 and 7-9. The plaintiff brought anapplication for summary judgment. The plaintiff, a businesscorporation, is comprised of radiologists who were its shareholders,and who are granted hospital privileges by the defendant. It ended itscontract with RARPC to provide hospital radiological services, andRARPC sued the defendant in its own right and on behalf of allmembers of the RARPC, claiming that the defendant had breached therights of RARPC and its members as protected under s. 2(d) of theCharter. The issue was whether the RARPC could bring arepresentative action on behalf of its members pursuant to Queen’sBench rule 2-10.HELD: The defendant’s application was granted and the plaintiff’sentire claim was struck pursuant to rule 7-9(1) because the pleadingsdid not disclose a reasonable cause of action and would be bound to failat trial. The court reviewed the requirements of Queen’s Bench rule 2-10as established in Kilback v. Tillus and found that the radiologists werenot “members” of the class but shareholders of RARPC. Asshareholders, they had no personal capacity to sue for wrongs done tothe corporation and their interests were different in law and in fact. TheRARPC could not bring a representative action on behalf of itsshareholders. The court also found that as the pleadings showed thatthe corporate plaintiff was not bringing the action in its own right butas a representative, the RARPC did not have standing as a plaintiff.


101239408 Saskatchewan Ltd. v. S-5 Holdings Ltd., 2016 SKQB 144

Allbright, April 27, 2016 (QB16137)

Civil Procedure – Examination for Discovery – UndertakingsCivil Procedure – Queen’s Bench Rules, Rule 5-27

The plaintiff brought an action against the defendant for breaching theterms of a lease. The defendant, S-5, had leased business premisesowned by the Indian Head Building Corporation. Indian Head later

https://www.canlii.org/en/sk/skqb/doc/2016/2016skqb143/2016skqb143.pdf




assigned the lease to the plaintiffs. The defendant’s defence was thatthere was no privity of contract between the plaintiff and itself. In thisapplication, the plaintiffs sought, pursuant to Queen’s Bench rule 5-36(3), an order striking the defendant’s statement of defence inconsequence of its failure to reply to the undertakings given at theexamination for discovery of the defendant’s proper officer held inDecember 2015. At the questioning, the proper officer for the defendantrefused to answer or provide undertakings to some questions withregard to a franchise agreement between Jamm Enterprises and SlymakHoldings. The sole shareholder of S-5 was Jamm, a franchise companyof Sangsters, the health store. Slymak was the company that operatedthe Sangsters store that went out of business. The applicant requestedan order pursuant to Queen’s Bench rules 5-3(2)(c), 5-12 and 5-33requiring the respondent to produce a copy of the franchise agreementwith Slymak and an order pursuant to Queen’s Bench rules 5-27 and 5-33 requiring the respondent to answer relevant questions relating to thefranchise agreement. It argued that it required the answers and thedocument to enable it to understand the entire business relationshipbetween the defendant, its sole shareholder and franchising company,Jamm, and its franchisee, Slymak, all of which was broadly relevant tothe matter in question. The defendant filed an affidavit of the properofficer who stated that the defendant was not a party to the franchiseagreement and therefore could not comply with the applicant’srequests. The defendant had argued at the questioning that therequested undertakings were not relevant as between the plaintiff andthe defendant. As Jamm was not a party to the action, it wasappropriate for the defendant’s counsel to decline to provide responsesto the disputed undertakings and to decline to produce the franchiseagreement.HELD: The plaintiff’s application was dismissed as it related to thespecific undertakings regarding Jamm and Slymak and production ofthe franchise agreement. Slymak was not a party to the action andtherefore this aspect of the plaintiff’s application did not satisfy thebroad relevancy test. The application for timely production ofremaining undertakings from the oral questioning of the proper officerwas granted. If the defendant failed to provide replies to theundertakings within 30 days of the order, the plaintiff was givenpermission to apply to the court to have the statement of defencestruck.


Brown v. 629839 Saskatchewan Ltd., 2016 SKQB 145

Allbright, April 27, 2016 (QB16138)

Civil Procedure – Application to Dismiss Action – Want of Prosecution




Civil Procedure – Queen’s Bench Rules, Rule 4-44

The defendants applied pursuant to Queen’s Bench rule 4-44 for anorder dismissing the plaintiff’s action for want of prosecution. Theplaintiff’s statement of claim was issued in 2005, alleging that he hadbeen wrongfully dismissed from his employment. At that time, each ofthe corporate defendants had operated a business and partnershipunder the name of Standard Machine. The defendants’ grounds werethat the claim should be dismissed because of inordinate andinexcusable delay by the plaintiff and because they had and wouldcontinue to suffer prejudice as a result of the delay. They argued thatthey no longer had any involvement with the business as it existed in2005 and that many of the key witnesses were no longer employed bythe current owner. The plaintiff acknowledged that there had beeninordinate delay but that after his termination by the defendants, hehad had trouble finding employment that paid similar wages becausethere were no other companies operating in Saskatoon that did thesame type of work as the defendants and what positions were availablewere filled by people who possessed a university degree in metallurgy.Consequently, he had to work in positions that paid him a much lowerwage. Because of the high cost of litigation and expenses related to hiswife’s health and the cost of supporting his child’s sports career, theplaintiff could not afford to pursue the action. It had taken him 11 yearssince he was terminated to find a stable job and he was only recentlyable to earn the same salary as he had received from the defendants.HELD: The application was denied. The court found that the delay wasinordinate but that it was excusable. The defendant would be able tofind the witnesses and they would be able to refresh their memoriesfrom the documents available. The defendants had not shown any otherprejudice caused to them by the delay. They themselves had allowedthe file to sit in abeyance for long periods of time. The court recognizedthat the public’s confidence in the administration of justice requiredthat the plaintiff have the opportunity to access the justice system.


Wanner v. Christie, 2016 SKQB 147

Layh, April 27, 2016 (QB16146)

Civil Procedure – Affidavits – AdmissibilityCivil Procedure – Costs – TariffCivil Procedure – Court of Appeal Rules, Rule 74Civil Procedure – Queen’s Bench Rules, Rule 7-9, Rule 11-1, Rule 13-30Civil Procedure – SettlementProfessions and Occupations – Lawyers – Code of Professional Conduct

The plaintiffs claimed negligence and breach of contract against the




defendants when a newborn suffered hypoxic-ischemicencephalopathy, a brain injury caused by lack of oxygen. The actionwas settled and minutes of settlement were executed. A clause of theagreement indicated that the defendants agreed to pay to the plaintiffstheir legal costs and disbursements to be taxed or as agreed. Theplaintiffs alleged costs should be taxed in the amount $788,753.40 andthe defendants argued that $11,900 was appropriate. The issues werewhether : 1) certain paragraphs or even all of the affidavit of one of theplaintiffs’ lawyers be struck. The defendants criticized the affidavitbased on Queen’s Bench rules 7-9 and 13-30 ; 2) portions of one of theplaintiffs’ affidavits be struck; and 3) the tariff of costs under the rulesgoverned and what evidentiary basis was required to support a claimfor disbursements and, in particular, the cost of the plaintiffs’ experts’reports.HELD: The matter of costs in this case was without a trial and thereforea few issues were kept in mind by the court: there were not any provenfacts; the agreement to pay costs was not intended to be a precedent-setting amount, whether too high or too low; and the pre-trial judgeafforded the judge the opportunity to canvas many of theconsiderations necessary to determine costs as stated in rule 11-1(4).The issues were discussed as follows: 1) the court determined thatportions of the lawyer’s affidavit were to be struck, such as thoseexpressing opinion, speculation, argument, and matters not proven.The portions of the affidavit that were uncontroverted and a matter ofrecord were not struck. Portions that were averments of fact that couldonly have been found if there was a trial were struck. The court alsoconsidered whether to allow those portions of the affidavit concerningthe impact of the Canadian Medical Protective Association (CMPA).The CMPA has been criticized of having a general aversion tosettlement of claims. The court took into account only the specificconduct of CMPA in this matter not their general practice or policy. Thecourt allowed the portions of the affidavit that were uncontroverted ordescriptive of the complexity of the action. The defendants also arguedthat the lawyer’s affidavit was offensive pursuant to: s. 4.02 of the Codeof Professional Conduct of the Law Society of Saskatchewan; rule 74 ofThe Court of Appeal Rules; and rule 13-30 of The Queen’s Bench Rules.Several Saskatchewan decisions indicated that a lawyer cannotadvocate from his or her own affidavit and they have disallowed onelawyer in a firm from swearing an affidavit to be argued by anotherlawyer in the same firm. The court granted leave to the plaintiffs toeither have another law firm argue the matter of costs or to have aperson that was not a member of the same firm swear an affidavit; 2)portions of the plaintiff’s affidavit stating factual conclusions that couldonly be proven at trial were struck; and 3) the plaintiff suggested thatthe court should award half of the legal fees expended based on: apercentage of actual fees expended; plus extra consideration for thecomplexities of the case; the role of CMPS; the need for highlyspecialized counsel; and the technical subject matter. The court



provided direction for the re-convening of the hearing: the court can fixall or part of the costs with or without reference to the tariff, therefore,the argument as to whether the new or old tariff applied had lesssignificance than the parties may have argued; the parties were givenleave to file new calculations of the tariff and to offer comments on eachother’s calculations; the court suggested the parties provide it withauthority respecting principles that are for or against the use of thetariff rather than a lump sum payment independent of the tariff; theparties were ordered to detail the factors specifically relevant to the costassessment as enumerated in rule 11-1(3)(a) to (l) that should beconsidered in the event a lump sum is awarded; and all disbursementsmust be properly vouched for.


Good Spirit School Division No. 204 v. Christ the Teacher RomanCatholic Separate School Division No. 212, 2016 SKQB 148

Layh, April 28, 2016 (QB16140)

Civil Procedure – Queen’s BenchRules, Rule 9-19

The plaintiff and the defendants had been involved in pre-trialproceedings for 11 years regarding the closure of the school inTheodore, Saskatchewan. In the course of the proceedings, the courtheard evidence from a witness for the plaintiff, Dr. Aboguddah, in avoir dire. The witness was cross-examined by counsel for bothdefendants. In this application, the plaintiff requested that it couldpresent the evidence of the school board witnesses by affidavit. Itindicated that it would present the witnesses at trial to answer in cross-examination to the defendants. The defendants took the position thatQueen’s Bench rule 9-19 prohibited the leading of this affidavitevidence and brought an application pursuant to rule 7-9 and 15-20 tostrike the plaintiff’s application and the affidavits of the school boardwitnesses. It also argued that the evidence of Dr. Aboguddah was notadmissible either. The evidence was an abuse of process because earlierinterlocutory rulings in the Court of Queen’s Bench and the Court ofAppeal had circumscribed the action to prevent these non-partywitnesses from giving any evidence. Admitting such evidence from theschool board witnesses would also prejudice the defendants and wasirrelevant to the issues. The defendants expressed the same concernsregarding the proposed testimony of Dr. Aboguddah as his evidencehad no relevance to the factual nexus surrounding the Theodore schoolclosure.HELD: The application regarding the plaintiff’s request to lead theevidence of the school board witnesses by affidavit was denied becauseQueen’s Bench rule 9-19 does not permit it. The evidence of these




witnesses should be presented viva voce at trial. The court held thatneither the testimony of the school board witnesses nor that of Dr.Aboguddah was to be excluded in the trial on the basis suggested bythe defendants. It was not abuse of process to hear evidence fromwitnesses other than those who were privy to the closure of the schoolbecause of the constitutional importance of the case. It would set aprecedent for government funding of non-minority students in separateschools in Saskatchewan. The court reviewed and dismissed thedefendants’ argument that admitting the evidence would cause themhardship due to the court’s earlier decisions and found that thosedecisions, previous interlocutory rulings, had not dealt with theadmissibility of evidence at trial.


H. (N.) v. H. (B.), 2016 SKQB 153

Sandomirsky, May 2, 2016 (QB16148)

Family Law – Custody and Access

The parties had three children aged 13, 10 and 7 at the time of thisapplication regarding custody and parenting. The petitioner soughtjoint custody, to be designated as the primary parent and for thechildren’s primary residence to be with her. She proposed that therespondent should parent them from Friday after school until Sundayevening for three consecutive weeks and to have the children afterschool until 8:00 pm one day per week. This petitioner argued that thisproposed arrangement preserved the status quo and acknowledged herrole as the primary and psychological parent. The respondent soughtjoint custody and shared parenting alternating weekly with thepetitioner. The parties had been equally involved in the care of theirchildren when they still lived together. The family resided in BritishColumbia when the petitioner separated from the respondent in 2011.In 2012, she relocated with the children to the small town inSaskatchewan where her parents live. The respondent was told that themove was temporary. After living with her parents for a year, thepetitioner purchased a home nearby. Her parents were involved in theday-to-day care of the children during the entire period. Therespondent then moved to a nearby town in Saskatchewan in 2013because he missed being close to his children. He then sought an orderof interim access to the children when the petitioner thwarted hisrequest for access. The order gave him parenting time on alternateweekends from Friday afternoon to Sunday evening and on one dayeach week, from after school to early evening. Pursuant to anotherinterim order made in 2013, the respondent paid $900 per month inchild support. The petitioner opposed a shared custody approach




because she alleged that the respondent had demonstrated somebehaviour during the course of the marriage that she believed would bedeleterious to his ability to parent. At the time of the application, therespondent had moved to the same town as the respondent andobtained employment that he believed would allow him to work ashorter period for each day during the week that he had the children inhis care. His home was adequate and he had been offered assistancewith childcare by a friend if required. The parties had commissioned acustody and access evaluation in August 2015. The expert’s opinion atthat time was that the parties should share custody. The expert testifiedthat the respondent’s recent move to the town only strengthened hisbelief that this would be in the best interests of the children. He statedthat both parents were capable and loving.HELD: The court ordered that it was in the best interests of the childrenthat they be parented by the petitioner and the respondent onalternating weeks. The court dealt with each of the petitioner’sobjections. It reviewed her argument regarding the status quo andfound that the historical pattern of parenting indicated that the partieshad shared it equally and that the petitioner had unilaterally moved thechildren to Saskatchewan, depriving the respondent of access to hischildren for a year. Once he moved to the province, he had to apply tothe court for an order to obtain interim access, which created the statusquo. The court found that the petitioner’s allegations regarding theconduct of the respondent during the marriage were unfounded andsuch matters were irrelevant to the decision of what was in the bestinterests of the children. It also held there was no presumption infavour of the “psychological parent”. It was in the best interests of thechildren to achieve maximum contact with both parents. The questionof child support was dealt with under s. 9 of the Guidelines. As thepetitioner’s income was more than twice that of the respondent’s, thecourt used the set-off amount to establish that the petitioner should paythe respondent $827 per month. Each party would bear theirproportionate share of s. 7 expenses.


G. (J.), Re, 2016 SKQB 154

Megaw, May 2, 2016 (QB16149)

Family Law – Child in Need of Protection – Permanent Order

The Ministry of Social Services sought a permanent wardship orderwith respect to two children, aged 15 and 13. They had beenapprehended in 2013 after their father had assaulted them whileintoxicated. They were taken to a foster home where they continued toreside pursuant to successive temporary orders obtained by the




Ministry. The parents of the children did not appear at the hearing.Their mother had been absent during most of their childhood due todrug addiction. They had live with their father but there was evidencethat he had assaulted them on previous occasions and that he had ahistory of exhibiting aggressive behaviour to both women and children,regardless of whether he was intoxicated. The children did not wish tosee their father and wanted to remain with their foster family. Theyboth had behavioural problems when they were taken into care but atthe time of the hearing, they had made very good progress and weredoing well with school, extracurricular activities and their new familymembers. The Ministry retained a psychologist to complete a parentingcapacity assessment report to assist in formulating a plan for thechildren. The psychologist indicated that they should not be returned totheir father nor should he have any access to them. The childrenthemselves were anxious about the outcome of the hearing.HELD: The order was granted. Following the expiry of the currenttemporary order, the court found that the children were in need ofprotection pursuant to s. 11 of The Child and Family Services Act. Asthe father had taken no steps to deal with his anger, violence andalcohol issues, the children continued to be in need of protection as theywere likely to suffer physical harm at his hands. Their psychologicalwell-being required that they remain in protection to allow them to dealwith the trauma they had suffered while they were in his care.Therefore, the court found that because the children were doing well infoster care and did not wish to be returned to their father and that theexpert had advised against them having any further contact with him, itwould make a permanent order rather than a long-term order.


R. v. Gronlund, 2016 SKQB 156

Gabrielson, May 4, 2016 (QB16152)

Criminal Law – Assault Causing Bodily HarmCriminal Law – Sentencing – Aboriginal OffenderCriminal Law – Sentencing – Dangerous Offender – IndeterminateSentenceCriminal Law – Sentencing – Pre-sentence Report

The accused pled guilty to assault causing bodily harm contrary to s.267(a) of the Criminal Code. A dangerous offender assessment wascompleted and two agreed statement of facts were filed. The assaultoccurred when the accused struck another prisoner at a correctionalinstitute from behind while he was incarcerated. The other prisoner hada laceration that required sutures. The accused was also involved invarious other instances while he was incarcerated. The accused’s




criminal record dated back to 1992 when he was a youth and included11 violent offences. His first federal sentence was in 1996 and he wasreleased in August 2005. Only 24 hours later the accused was arrestedand sentenced to another federal sentence. The accused took limitedprogramming while incarcerated, but was scheduled to take a six-month violence prevention program. The accused spent a lot of his timein segregation where programming was not available. A federalinstitution employee testified that the accused had made great gainsover the past six months. The accused was apprehended by socialservices when he was an infant and was eventually adopted. He wasremoved from that home and placed in foster care. One witnesstestified that the accused was abused by his adoptive family. An expertin forensic psychiatry testified that the accused had borderlinepersonality disorder and a multiple substance abuse disorder withsignificant features of a psychopathic personality. The expert’s riskassessment resulted in a high likelihood of the accused participating insome form of violence in the foreseeable future and that the violencemay be serious. The accused had few thoughts regarding living withinthe community and the expert therefore concluded that he would havelittle chance to be managed in the community. The accused was a statusAboriginal person. The accused was assessed as being high risk, or ofhaving an 80 percent chance of reoffending within a three-year period.Further, he was assessed to be at the 92 percentile of the generalSaskatchewan offender population. The Crown sought a dangerousoffender designation with an indeterminate sentence.HELD: The Crown established beyond a reasonable doubt that thepredicate offence demonstrated a failure by the accused to restrain hisbehavior and further that he constituted a threat to the life, safety, orphysical or mental well-being of other persons, as required by s. 753(1)(a). The Crown proved beyond a reasonable doubt that there was apattern of repetitive behavior and that the accused showed a failure torestrain his behaviors in respect to causing injury to other persons inthe future and thereby met the requirements of s. 753(1)(a)(i) of theCriminal Code. The court also found that s. 753(1)(b) applied becausethe accused’s history demonstrated a persistent pattern of aggressivebehavior to others. The court was satisfied that the predicate offenceshowed a substantial degree of indifference on the part of the accusedas to the reasonable foreseeable consequences to other persons of hisbehavior. The Crown, therefore, met the requirements of s. 753(1)(a)(ii).The court analyzed the Gladue factors, but found that they had limitedpotential application to the accused. The court found nothing in thepre-sentence report or the evidence to suggest that there was arestorative justice approach available to the accused that wouldadequately protect the public. The court was unable to speculate whatthe accused may do and therefore found that he met the criteria in s.753(4) so that the accused had to be sentenced to an indefinite period ofdetention. The court also made ancillary orders.




R. v. Drysdale, 2016 SKQB 160

Zarzeczny, May 9, 2016 (QB16155)

Criminal Law – Assault with a WeaponCriminal Law – Defences – Self-defence

The accused was charged with assault by threatening to use a weapon,a butcher knife, contrary to s. 267(a) of the Criminal Code. The accusedwas panhandling outside a store when he and one of two securityofficers had a verbal confrontation. The accused walked towards thesecurity officer with a butcher knife. The security officer ran to hisvehicle and the accused followed him and slashed a tire on the securityofficer’s vehicle. The attending officer was directed to a yard where helocated the accused. A knife was also located in the yard. A videotapefrom the store was entered as an exhibit and played for the court. Theaccused was considerably smaller than either of the security officers.The accused testified that he was homeless and had a lot to drink theday of the incident. He indicated that he “blacked out” and was in frontof two security officers when he came to. He said that he offered them acigarette for being in their personal space and one of the men told himthat he would punch him out. The accused indicated that he got theknife out of the bag just to show the men that he was bigger than them.He said that he did not intend to stab them. At one point the accusedadmitted following the security officer to his vehicle and at anotherpoint said he did not. The accused said he then tried to get away fromthe area but was prevented from doing so by a large black vehicle. Theaccused said he eventually stabbed the vehicle’s tire because it wasblocking his way and he went into panic mode. The accused raised theissue of self-defence.HELD: There was no question that the Crown established the offencebeyond a reasonable doubt. The court found that the accused initiatedthe confrontation by walking up to the security officer and getting veryclose to him. The court found that the Crown witness’s evidence waspreferred over the accused’s where it differed, namely the slashing ofthe vehicle tires. The court accepted the accused’s submission that thesecurity officer told the accused to get out of his face or he would knockhim out or something to that effect. The court considered the factors setout in s. 34(2) and concluded that the force or threat faced by theaccused due to the size of the security officers and the words used byone of them did not warrant the action taken by the accused. The courtoffered numerous reasons for the conclusion: the accused initiated theconfrontation; the security guard did not touch or further go after theaccused; no physical force was used against the accused; and there wasno history between the accused and security officer. The accused’sactions were out of proportion to any reasonable response to any threat.




The court held that the Crown established, beyond a reasonable doubt,that the facts and circumstances of the case did not give rise to thedefence of self-defence. The accused was found guilty as charged.


United Food and Commercial Workers, Local 1400 v. K-Bro LinenSystems Inc., 2016 SKQB 161

Mills, May 5, 2016 (QB16156)

Administrative Law – Judicial Review – Standard of Review –ReasonablenessAdministrative Law – Judicial Review – Labour Relations BoardLabour Law – Labour Relations Board – Certification Application

The applicant union applied for judicial review of a decision of theSaskatchewan Labour Relations Board. The respondent employer, K-Bro, supported the application. The union had applied in 2015 to becertified as the bargaining agent for all employees of K-Bro. Theemployees numbered 14 at the time, but the parties expected thatnumber to grow because K-Bro was expanding its work after obtaininga contract to process laundry for health regions throughout theprovince. The employer supported the certification application. Theboard raised the issue of whether the “build-up principle” wasapplicable in that it was concerned that the small number of employeeswho applied for certification might eventually not be representative in ashort time after the expected growth in the work force had occurred.The board determined that although certification was appropriate, theorder would remain in effect for only a year. At the end of the period, afurther vote of the employees could be taken. In this application, theunion and K-Bro argued that the standard of review was correctness.They submitted that the board exceeded its jurisdiction. Under s. 6-13 ofThe Saskatchewan Employment Act, it was mandatory that the boardissue the order. When it ordered another vote within one year, theBoard was effecting a decertification vote. It was in breach of s. 6-17(4)that required such a vote to be held during the two years following thefirst certification order.HELD: The application was dismissed. The court found that the boardhad the authority under ss. 6-103(2)(d) and 6-111(v) to make an interimorder and hold additional votes and that ordering of the subsequentvote was not the equivalent of a decertification vote. Therefore theapplicant had not established a question of jurisdiction and the board’sdecision should be reviewed by the reasonableness standard. The boardreviewed the competing factors in the application between the right ofthe present employees to be represented by a union for bargainingpurposes and the right of future employees to select a bargaining agent




and decided in favour of making an interim order, relying upon specificpowers granted to it under the legislation. The interpretation of itspowers as applied to the fact situation was reasonable.


Keenan v. Keenan, 2016 SKQB 163


Family Law – Child Support – Arrears – Recission

The petitioner, a resident of Saskatchewan, applied to vary a consentorder granted by the Alberta Court of Queen’s Bench in December 2008.The petitioner was obliged to pay $500 per month in child support tothe respondent. She sought to cancel child support arrears and have theSaskatchewan Maintenance Enforcement Office (SMEO) refund to herthe sum of $11,580, which was attached from her bank account. In thealternative the petitioner sought a provisional order cancelling the childsupport arrears and directing the refund to her from the SMEO. Thetwo children of the marriage were born in 1991 and 1995 respectively.The oldest child ceased to be a child within the meaning of the DivorceAct on his 18th birthday in July 2009. The petitioner argued that shewas not obliged to pay child support for him thereafter. The youngestchild turned 18 in October 2013. The SMEO issued a statement ofarrears in March 2013 in the amount of $12,814. The petitioner arguedthat in addition to the SMEO incorrectly including arrears in theamount of $1,015 because it failed to take into account that herobligation to the oldest child had ended, the petitioner challenged that$11,580 of the total arrears accrued in the years 2009, 2010 and 2011 wasowing. She brought her application on the basis that her total income in2009 was $7,650 and in 2010, she earned $7,354. In 2011, the petitionerwas unemployed for the first 11 months of that year. Therefore, herincome in those three years had not reached the minimum thresholdprescribed under the Federal Child Support Guidelines forSaskatchewan. She would not have been obliged to pay child support inthose years had she applied for variation in a timely fashion. Thepetitioner inherited $62,000 in 2015. The SMEO garnished $11,580 ofthat inheritance when it was deposited into her bank account.HELD: The application for a provisional order pursuant to s. 18(2) ofthe Divorce Act was granted. The court had jurisdiction to adjust orcancel arrears if the arrears or a portion thereof were based uponsupport that was payable after a child ceased to be entitled to support.The court found that the requirement for a material change incircumstance for a variation application was established as thepetitioner’s sons ceased to be children of the marriage since thegranting of the order by the Alberta court in 2008 as neither were




dependent for reasons of disability or other cause. The court found thatthe amount of $1,015 of the arrears should be rescinded due to the factthat the petitioner did not owe support for the older son once he turned18. The petitioner’s financial circumstances in the years 2009 to 2011were such that she was not obliged to pay child support. The amount ofarrears for that period consisted of $8,613. Her subsequent inheritancewas not considered income in this case. Therefore she was entitled tohave the sum of $9,628 rescinded subject to a confirmation judgmentfrom the Court of Queen’s Bench in Alberta. The court ordered that theSMEO should hold that amount until the confirmation judgmentissued.


D.(A.) v. B.(A.), 2016 SKQB 164

Schwann, May 9, 2016 (QB16162)

Family Law – Custody and Access – VariationFamily Law – Custody and Access – Mobility Rights

The parties were the biological parents of a nine-year-old daughter.They had never resided together before or after the child’s birth. Eachof them were married and had other children. The petitioner, D.,actively pursued a relationship with the child once DNA testsestablished paternity. He brought a petition in 2008 to be declared thechild’s father and for access. At that time, he lived in Medicine Hat andthe respondent lived with the child in Moose Jaw. The petitioner wasdeclared to be the father and granted access on every second Sunday.The order confirmed that the respondent was the legal custodian of thechild under s. 3(2) of The Children’s Law Act, 1997. A considerablenumber of applications to vary the 2008 order were made by each partyin the following years. The petitioner frequently had problems with therespondent’s compliance with the orders. The petitioner and his familymoved to Moose Jaw in 2010 to be closer to the child and he appliedsuccessfully for expanded access. In 2010 a consent order was madegiving parenting time to the petitioner from Thursday until Sunday andevery Tuesday evening. In 2013, the respondent and her family movedto a small town about 45 minutes from Moose Jaw without consultingthe petitioner or pursuant to a court order. Because the move affectedthe petitioner’s parenting time under the consent order, the order wasvaried again. In 2015 the respondent decided that it would be in herfamily’s best interest to move to southeastern British Columbia becauseher sisters resided there and her parents wanted to re-locate to be closerto them. The respondent’s parents had been involved in providing childcare since the birth of their granddaughter in 2006 and the petitionerargued that she wanted to maintain close contact with her parents. She




had acquired a position as a clerk in a store owned by her sister andwould earn $12 per hour. There was no evidence that her husband hadany job prospects if they moved and she had not indicated what kind ofeducational advantages the move would provide to the child. Sheoffered the respondent increased parenting time and payment for allthe travel costs for the child to get to and from Moose Jaw toCranbrook. The travel would involve flying and driving time and costs.The petitioner argued that if the respondent moved, he feared that shewould attempt to limit his access to their daughter as she had in thepast.HELD: The application to vary the existing custody order wasdismissed. The court found that the respondent’s proposal to move thechild constituted a material change and it would consider the factorsrelevant to the case. Although the parties did not have equal parentingtime, the petitioner was an involved parent who was capable andloving and had a great relationship with his daughter as did his wifeand children. The court found that there was some risk that therespondent would not adhere to her promises and that the petitioner’sparental role would be reduced. The respondent’s move was notsufficiently planned to provide the court with the details of where thefamily would live and the schooling available. Her ability to fund herproposed access arrangements was questionable. She had not providedevidence from her parents regarding their move. The court found thatthe respondent had not established that the move would be favourableto the child.


Schmidt v. Schmidt, 2016 SKQB 167


Family Law – Family Property – Division

The petitioner brought applications for orders including such remediesas the following: the respondent return pieces of equipment that wereleased on the ground that he was about to commit dissipation; theRCMP enforce the order as well as earlier orders; and that the petitionerhave exclusive possession of the entire farmyard and that therespondent and his employees were not to come within 500 metres of it.HELD: The application was considered redundant. The court reviewedthe previous orders made by the court dating back to 1998 andconsidered that the petitioner had obtained the same relief earlier. Itdirected the local registrar to assign a new pre-trial date regarding theresolution of family property division. In preparation for the pre-trialthe respondent was ordered to identify ownership and provide hisevaluation of the equipment utilized in his business. The petitioner was




to have the family home appraised, including the 500-metrecircumference and the remaining portion of the yardsite.


Kreway v. Kreway, 2016 SKQB 168

Tholl, May 13, 2016 (QB16163)

Family Law – Family Property – Division – Enforcement

The petitioner and respondent applied for orders related to thedisposition of the family property and other matters. The parties hadentered into enforceable minutes of settlement regarding the division offamily property under which the respondent was to pay the petitioner$750,000 for her share (see: 2016 SKQB 115). The method of enforcementremained an outstanding issue between the parties. The familyproperty consisted largely of farm assets (land and equipment) and thefarming operation was conducted through a corporation, KJ. Thepetitioner and the respondent owned all the shares. The petitionerapplied pursuant to Queen’s Bench rule 3-84 to have KJ added as aparty after the court determined that the minutes of settlement wereenforceable and to ensure both the respondent and KJ were bound bythe enforcement order of the court. In order to pay the petitioner, therespondent had proposed to sell parcels of land through a realtor and tosell farm equipment by placing advertisements in the newspaper andon the Kijiji website. The petitioner argued that the farmland andequipment should be sold by auction. The petitioner requested costs beawarded on a solicitor-client basis or for enhanced costs.HELD: The application to add the corporation as a party was granted.The court determined that the respondent should be given theopportunity to sell the farmland through a realtor and the equipmentby advertisement as he proposed. If the assets were not sold within 90days, the petitioner was given leave to bring the matter back tochambers. The court held that this was not an appropriate case to ordersolicitor and client costs. The respondent’s position had addedcomplexity to the matter but was not unreasonable. As there were threeapplications, two of which were made by the petitioner, the courtawarded her costs in the amount of $4,000.


L. (C.W.), Re, 2016 SKQB 169

Megaw, May 12, 2016 (QB16164)





Family Law – Child in Need of Protection – Child and Family ServicesAct – Permanent OrderFamily Law – Child in Need of Protection – Child and Family ServicesAct – Temporary Order

The child, born December 2014, was apprehended at birth and themother was not capable of caring for the child. The court had to decidewhether the father’s life choices should result in him losing all chance toparent his child. The mother was intellectually low functioning. Thefather moved from Quebec after meeting the mother online. Therelationship was volatile. The police were involved and the mother wascharged and convicted of assault on the father. The father was notforthcoming with information that he had been charged with theft andfraud relating to taking money from the mother’s grandmother. Sincethe child’s birth, the father has exercised consistent supervised accesswith the child. He developed a bond with his child and visited fourdays a week. The father was 22, had a full-time job, and an apartmentequipped with furniture and toys for a child. The father was in arelationship with a woman who had four children ranging in age fromthree years to 18 years old. The girlfriend was also involved with theMinistry of Social Services and their concerns with her were: lack ofcleanliness of her house; safety of the children; and inappropriatediscipline of a child. The father proposed that his girlfriend wouldprovide childcare while he was at work. The Ministry was pursuing apermanent order pursuant to s 37(2) of the Child and Family ServicesAct because the mother was incapable of caring for the child andbecause the father continued to make inappropriate relationshipchoices. The court had to determine: 1) whether the child was in need ofprotection pursuant to s. 11; and 2) if so, what type of order wasappropriate to adequately provide for that protection.HELD: The issues were determined as follows: 1) the Ministry had notpermitted the father to try to actually parent. There was also littlecriticism of his parenting abilities. The court was not sure the motherand father were permanently separated and even if they were, domesticviolence issues continued to bubble. The court concluded that the childwas in need of protection because of: the violence; the father’s poorchoices regarding who could care for the child; and the uncertainty asto whether the father was providing the truth when he indicated whathas taken place and who would actually be involved with the child. Theperson the father called as his support was another person who had herchild apprehended at birth. The court concluded that s. 11(b) was alsoengaged and there was no adult person able to provide the care andattention required by the child; and 2) further opportunity should beprovided to allow the relationship between the father and child togrow. The court determined that the child’s best interests were servedby making a temporary order pursuant to s. 37 of the Act. The orderwas for six months and was subject to 10 conditions, including: thefather was not to permit his girlfriend to be in the care or control of thechild; the father had to remain living separate and apart from the



mother and his girlfriend; and he could not permit the mother to accessthe child without the consent of the Ministry.


Kwok v. Jennings, 2016 SKQB 170

Turcotte, May 16, 2016 (QB16173)

Tort – Personal Injury – ScienterTort – Personal Injury – Negligence

The appellant appealed the trial decision of a Provincial Court judgethat found him liable pursuant to the doctrine of scienter and innegligence for damages arising out of an attack by the appellant’s dogon the respondent’s dog. The dog died of her injuries after being treatedby a veterinarian over a nine-day period. The trial judge found theappellant liable for the injury to the dog and determined that therespondent had not been contributorily negligent. The trial judgeassessed damages in the amount of $9,628, which included the cost ofveterinary services of $8,000, additional costs, costs and prejudgmentinterest. The appellant’s appeal issues were that the trial judge erred inlaw in: 1) failing to apply the doctrine of res judicata with respect to theissue of the propensity for mischief and aggression of the appellant’sdog; 2) finding the dog had a known propensity for mischief andaggression; 3) finding that the appellant was liable in negligence andscienter; 4) failing to find the respondent to be contributorily negligent;and 5) making the assessment of damages.HELD: The appeal was dismissed. The court found that the trial judgehad not erred in law and had made no findings of fact that wereunreasonable. With respect to the issues, the court held that: 1) the trialjudge was not bound by the earlier decision of a Justice of the Peace indetermining that the appellant’s dog was dangerous because it hadbeen a bylaw proceeding, the parties were different, and because theevidential burden was based upon reasonable doubt and, in this case,on the balance of probabilities; 2) the evidence before the trial judgesupported his finding that the dog had the requisite mischievouspropensity. He also determined that the appellant had knowledge ofthe dog’s propensity to be aggressive based upon the earlier bylawproceeding. The evidence supported the trial judge’s finding that theappellant had the prior knowledge to support both actions in scienterand negligence; 3) there was no palpable or overriding error made bythe trial judge on his assessment of this evidence or its application tothe legal principles underlying the doctrine of scienter or in negligence.Further, the trial judge’s finding regarding the appellant’s knowledgewas unnecessary because s. 327(8) of The Cities Act provides that theperson injured does not have to prove that the owner knew that an




animal was of a dangerous or mischievous nature or accustomed todoing acts causing injury; 4) there was evidence before the trial judgethat supported his conclusion that the respondent was notcontributorily negligent; and 5) although there must be a reasonablelimit on the extent of the respondent’s veterinarian expenses, the trialjudge had not made any palpable error in his consideration of thisissue. The veterinarian testified that she ended the treatment after eightdays and that the actual costs of treating the dog exceeded the costscharged to the respondent.


United Steel Workers v. Comfort Cabs Ltd., 2016 SKQB 171

Mills, May 17, 2016 (QB16174)

Administrative Law – Judicial ReviewLabour Law – Labour Relations Board – Collective Agreement

The applicant United Steel Workers Union applied for judicial reviewof a decision of the Saskatchewan Labour Relations Board. Theapplicant was certified in April 2014 as the bargaining agent for all taxidrivers employed by Comfort Cabs (the employer) except those personswho own or control two or more taxi cabs. The applicant and theemployer then negotiated the terms and conditions of the first collectivebargaining agreement. An outstanding issue between them wasreferred to the board. The applicant took the position that the terms andconditions of tax plate leases were properly included in the collectivebargaining process. The employer argued that the taxi plate leases wereseparate arrangements between lease operators and franchise ownersand that these conditions were not under its control. The applicantargued that the failure of Comfort Cabs to bargain on this issue was anunfair labour practice. The other matter concerned the applicant’sapplication to the board for a declaration that three specific franchiseowners be declared one employer along with Comfort Cabs for thepurpose of bargaining. The board dismissed the unfair labour practiceand refused to make the declaration that the employer and the threefranchise owners were one employer for the purpose of the Act.HELD: The application was dismissed. The court found that it wouldreview the board’s decision on the standard of reasonableness. Theboard was found to have conducted a proper analysis of the issues andreached a reasonable conclusion with respect to the two matters raisedby the applicant.





Seitz, Re (Bankrupt), 2016 SKQB 172

Thompson, May 19, 2016 (QB16165)

Bankruptcy – Bankruptcy and Insolvency Act, Section 172.1Bankruptcy – Conditional Discharge – FactorsBankruptcy – Income Tax Debt

The bankrupt applied to be discharged from bankruptcy. He was a 33-year-old security researcher who had authored two books but failed tofile and pay income tax from 2008 to 2013. The personal income taxdebt made up 98 percent of his proven claims in bankruptcy. Theprinciple income tax debt was $171,492.57 with $61,964.92 in interestand penalties for a total of $233,457.49. The bankrupt indicated that hisdebt became insurmountable due to a family breakdown resulting insignificant support obligations for his wife and four children. Thetrustee opposed the discharge but did acknowledge that the bankrupthad no surplus income. The CRA took the position that the bankrupthad income to pay his tax debt but instead chose to pay his formerspouse in excess of the Federal Child Support Guidelines instead. Thebankrupt admitted that he paid his former spouse first but indicatedthat he did so because she would have withheld access to the fourchildren otherwise. The issues were: 1) did s. 172.1 of the Bankruptcyand Insolvency Act apply; 2) if yes, were conditions warranted; and 3)what conditions were warranted in view of the unique circumstances ofthis bankruptcy.HELD: The court dealt with the issues as follows: 1) s. 172.1 appliedbecause there was a proven claim for more than $200,000 for personalincome tax debt and the claim made up more than 75 percent of theproven unsecured claims in bankruptcy; 2) the bankrupt admitted thathe agreed to pay his former spouse in excess of $5,000 per month inchild and spousal support even though he knew he had a considerableincome tax debt. The bankrupt did attempt to reduce his supportobligations to meet his tax obligations and he maintainedcommunication with the CRA from 2009 through 2014. He applied for abank loan and approached family members for assistance, but to noavail. Since bankruptcy, the bankrupt has restructured his business tobe more tax effective and has reduced his support obligations. He didnot have surplus income at the hearing but the court found that hispotential and resources should move him into more significant earningwithin the next 10 years; and 3) the bankrupt was ordered to pay$50,000 to the trustee for the benefit of his creditors. The court did notset out a payment schedule because the bankrupt did not have surplusincome, but he was required to provide the trustee with quarterlyreports on his income. The bankrupt’s discharge was suspended fortwo years from the date of the decision even if he paid the $50,000 infull.





R. v. Veikle, 2016 SKQB 173

Megaw, May 17, 2016 (QB16166)

Criminal Law – Appeal – ConvictionCriminal Law – Blood Alcohol Level Exceeding .08 – Approved ScreeningDevice – Demand – ForthwithCriminal Law – Defences – Charter or Rights, Section 8, Section 9,Section 10(a)

The appellant was convicted of driving over .08, contrary to s. 253(1)(b)of the Criminal Code. He appealed the dismissal of his Charterapplication and argued that the trial judge erred in not excluding theCertificate of Analysis. A truck driven by the appellant was observed todrift between lanes on the road. An officer stopped the truck and shesmelled alcohol in the vehicle, but could not tell if it was coming fromthe appellant or the passengers. The appellant indicated that he hadconsumed alcohol and the officer concluded that she had a reasonablesuspicion the appellant had alcohol in his body. The officer gave theappellant an ASD demand and the appellant failed. The officer gavehim the test again and he failed again. The appellant was given hisrights to counsel and the police warning. The appellant indicated thathe wanted to talk to a lawyer and said he would wait until they got tothe police detachment to do so. The appellant left a message for thelawyer of his choice. The officer then asked the appellant if he wantedto speak to duty counsel and the appellant spoke to duty counsel. Afterthe first breath test the appellant indicated that he wanted to speak to alawyer again; he was not given that opportunity. The following issueswere discussed on appeal: 1) did the trial judge err in failing to find aviolation of ss. 8 and 9 of the Charter because the ASD demand was notprovided forthwith; 2) did the trial judge err in failing to find aviolation of s. 10(b) of the Charter when the police failed to allow theappellant to call a lawyer from his cell phone while at the scene; and 3)did the trial judge err in failing to find a violation of s. 10(b) of theCharter when the police provided the appellant with an opportunity tocall duty counsel.HELD: The appeal was dismissed and the conviction was upheld. Theissues were determined as follows: 1) the appellant argued that theASD demand was not made forthwith because it was not made untilthe appellant was in the police vehicle. The officer had a sufficient basisto make the ASD demand. The ASD demand was made within minutesof the initial stop and there was no error made by the trial judge; 2)there was 37 minutes between the initial stop and his ultimate transportto the police station. The appellant clearly indicated that he would waitto talk to a lawyer at the police station. The appeal court did not findthe appellant’s s. 10(b) right to counsel to be breached by not allowinghim to use his cell phone to contact a lawyer at the scene; and 3) the




trial judge made a finding of fact that the officer did not choose dutycounsel for the appellant. There was evidence to enable the trial judgeto make the findings of fact he did. The trial judge found that there wasno pressure applied to cause the appellant to contact duty counsel andthe court determined that those findings were borne out by theevidence and there was no palpable or overriding error in that regard.There was no breach of the appellant’s s. 10(b) Charter right.


Riel v. Riel, 2016 SKQB 174

Turcotte, May 18, 2016 (QB16175)

Family Law – Custody and Access – Mobility

The parties separated in 2013 and, pursuant to an agreement betweenthem, shared custody of their two children in a shared parentingarrangement. From 2013 until January 2015, the arrangement was basedon a week-on/week off rotation. During that period, the partiescooperated well in their role as parents. In January 2015 the petitionerwife moved to Lanigan from Saskatoon so that she could take a seniorposition with a corporation located there. A term of her employmentwas that she reside in Lanigan. The petitioner moved to her parent’sformer farm site approximately 25 kilometres from Lanigan andrenovated the house for habitation by her and the children. After themove, she had the children in her care two out of every three weekends,and on the Thursday and Monday evenings before and after theweekend she did not have the children in her care. The petitionerwanted the children to move there permanently, and she proposed thatthe respondent would have parenting time with them for two out ofevery three weekends. The respondent objected to this proposal. Thepetitioner wanted to maintain her employment in Lanigan and was notprepared to commute between Saskatoon and Lanigan to continue theoriginal week-on/week-off shared parenting arrangement. Therespondent acknowledged that he might have employmentopportunities in Lanigan but his preference was to remain living inSaskatoon, where he had a job, a committed relationship with hisgirlfriend and where the children had the opportunity to continue withtheir schooling, their friendships and extra-curricular activities. Thechildren were described as well-adjusted and did well in school. Theywere enrolled in French immersion in Saskatoon, which was notavailable in Lanigan.HELD: The court ordered that the parties should have joint custody andthe residence of the children would be with the respondent inSaskatoon. The court reviewed the factors set out in Gordon v. Goertzand found that it was in the best interest of the children for them to




remain in Saskatoon. The current arrangement for the petitioner’sparenting time was confirmed and the court set out a detailed parentingschedule for the holidays. In the event both parties maintained theirresidences in Saskatoon, they would share parenting on a week-on/week-off basis. With respect to child support, the court determinedthe respective income of the parties. The court determined the amountof child support payable as offset by the petitioner to respondent unders. 9 of the Guidelines if the parties chose to parent on the week-on/week-off basis. If the petitioner did not maintain her ordinaryresidence in Saskatoon, the court determined the amount of support sheshould pay the respondent.


R. v. Martin, 2016 SKQB 178

Layh, May 5, 2016 (QB16169)

Criminal Law – Sexual Offences – Touching for a Sexual Purpose –Young Person

The accused was charged with touching a person under the age of 16for a sexual purpose contrary to s. 151 of the Criminal Code. Theaccused was sleeping on the complainant’s family’s couch on the nightof the alleged offence. The complainant informed his mother the nextmorning that after he had joined the accused on the couch, the accusedhad put his finger into his anus. The complainant’s mother decided notto contact the police. Neither the complainant nor his mother couldremember exactly when the alleged offence occurred. It might havebeen 2011 or 2013. The complainant was 11 years old at the time of trial.He had provided a video statement describing the incident to theRCMP in 2014. The accused testified that he had problems with hismemory because of injuries that he had suffered in an assault after thealleged incident. However, he denied that he had touched thecomplainant and stated that he would not engage in such sickeningconduct as he had children of his own.HELD: The accused was found not guilty. The court held that it foundthat it had a reasonable doubt based upon the accused’s evidence andon the totality of the evidence offered at trial.


Stuckel v. Lozinsky, 2016 SKQB 181

Zarzeczny, May 19, 2016 (QB16177)





Wills and Estates – Proof of Will in Solemn FormWills and Estates – Testamentary Capacity – Undue Influence

The applicant, R.S., applied to be appointed as administrator of theestate of her late common law spouse, D.L. He had made a holographwill, which had been witnessed in 2009. The son of the deceased, J.L.,filed a caveat and applied for an order directing that the holograph willbe proven in solemn form pursuant to Queen’s Bench rule 16-46 anddirecting issues to be tried as to whether the will had been made underundue duress or influence of R.S. The applicant, J.L., indicated that heand R.S. had fallen out just before the will was made, resulting insuspicious circumstances surrounding the making of the will.HELD: The application for an order to have the will proven in solemnform was dismissed and the application for letters of administration toissue in favour of R.S. was granted. The court found that J.L. had notpresented evidence that would be accepted at trial to invalidate thedeceased’s will based upon undue influence by R.S. upon him. Thecourt noted that the deceased had not only made the will but previousto making it, had also transferred his home and his farmland into jointownership with R.S. and designated her as his beneficiary in his lifeinsurance policy and RRSP.


Farm Credit Canada v. Gherasim, 2016 SKQB 182

Ball, May 19, 2016 (QB16170)

Real Property – Mortgage – DischargeLand Titles – Registration – Indefeasibility

The applicant registered a mortgage against the respondents’ title inFebruary 2016. It applied for an order pursuant to s. 109 of The LandTitles Act, 2000, directing the Registrar of Titles to backdate theregistration to April 2009. The applicant had loaned funds to therespondents in 2009. As security, they had granted the applicant amortgage on the surface parcel and mineral parcel, and it wasregistered against the title. In 2010, the representative of a mineralleasing company contacted the applicant to request a discharge of itsmortgage against the mineral parcel in order to enable the respondentmortgagors to lease their interest in the mines and minerals. Theapplicant agreed and signed a discharge of mortgage form thatmistakenly included the mortgage against the surface parcel too. Thedischarge was registered. In 2012, the applicant granted therespondents a second loan to be secured by what was intended to be asecond mortgage against the surface parcel. This mortgage wasregistered and appeared as a first mortgage against the title. In 2015 theBank of Nova Scotia obtained a judgment against the respondent in the




amount of $382,000 and it was registered as an enforcement chargeagainst the surface parcel. The respondent then filed an assignment inbankruptcy. The applicant then discovered the mistake and re-registered the 2009 mortgage indicating that the full amount of theprinciple under it remained unpaid by the mortgagors. The purposewas to preserve the third priority position of interest on title for theland.HELD: The application was dismissed. The court found that to permitthe applicant to backdate the registration of its mortgage because itdiscovered its mistake would be inconsistent with the principle ofindefeasibility of title. It would elevate a subsequent registered interestto a priority position over an earlier registered interest of the Bank ofNova Scotia, which would be inconsistent with the principle ofcompulsory registration.


Fourney v. Fourney, 2016 SKQB 183

Goebel, May 20, 2016 (QB16178)

Family Law – Custody and Access – Person of Sufficient Interest

The petitioner was the grandmother of three children aged eight, fourand one. The respondents were the son and daughter-in-law of thepetitioner. The petitioner had always been involved in the care of herolder grandchildren, who were born of her son’s first marriage. In thecase of the children from his second marriage, she had not had theopportunity to be as engaged and had not had contact with childrensince February 2014. The petitioner deposed that this was due to amisunderstanding between her and the respondents. She requested anorder designating her a person of sufficient interest (PSI) with respect toher three grandsons and that she have access to them for two hours perweek. The respondents opposed the application on the ground that theapplicant did not meet the legal definition of a PSI as she had norelationship with the children. Further, if she were found to be a PSI, itwould not be in the children’s best interest to have contact with her.The applicant’s son deposed to a long-standing strained relationshipbetween her and his family wherein she failed to respect boundariesand had made unwelcome comments about his parenting. Therespondents admitted that the fact that the applicant had no contactwith their children was not due to her lack of interest or effort.HELD: The application was granted in part. The court found thepetitioner to be a PSI pursuant to s. 6 of The Children’s Law Act, 1997.The decision was based on the fact that the petitioner had demonstratedher care and attention to her grandchildren from her son’s firstmarriage and there was no reason to believe that she would not have




the same attitude towards her three grandsons. The court adjourned thepetitioner’s application regarding specific access until the partiesparticipated in counselling. The court ordered that they should choose amutually acceptable counsellor and participate in four joint sessions. Ifthe issues could not be resolved, the parties were given permission toschedule a hearing.


case mail v. 18 no. 18 - law society of saskatchewan · stewart v. keating, 2016 skca 59 richards...

Documents