Alberta Take Five September 2012

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Sept 2012

ALBERTA EDITION

Inside this Issue:

Motor Vehicle Accidents; Minor Injury Regulation; Medical Examinations; Limitation Periods

Contracts; Building Contracts; Certainty of Terms

Family Law; Child Protection; Leave to Appeal

Extradition; Committal for Trial; Leave to Appeal

Workers’ Compensation; Federal Employees; Statutory Interpretation

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The respondent Krystyna Benc

(“Benc”) brought suit for damages in personal injury over a motor vehicle accident which occurred on May 21, 2008. Benc sued appellant Laura Parker (“Parker”) and other parties. Parker requested that Benc attend for a certified medical examination pursuant to the Minor Injury Regulation, Alta. Reg. 123/2004 (“Regulation”). The Regulation provides for a scheme which caps minor injuries at $4,000. Under the minor injury

scheme, a certified examiner must prepare and provide each of the parties with a copy of an opinion as to whether the plaintiff’s injury was a “minor injury”. That opinion becomes prima facie evidence that the injury was or was not a minor injury. Under s. 9(1) of the Regulation, a certified medical examiner must make reasonable efforts to see the plaintiff within 30 days of referral. The certified medical examiner did not examine Benc within 30 days despite efforts on the part of Benc’s counsel and the medical examiner to schedule an appointment. Parker applied before a master in chambers for a Regulation examination date. The master held that Parker retained the right to order Benc to attend on a Regulation examination. Benc appealed to a chambers judge, who ruled that the certified medical examiner had failed to make a reasonable effort to schedule an appointment within the 30-day period. However, the chambers judge declined to determine whether Parker had a right to order Benc to undergo an examination. Parker appealed.

Benc v. Parker, 2012 ABCA 249Areas of Law: Motor Vehicle Accidents; Minor Injury Regulation; Medical Examinations; Limitation Periods

Court provides guidelines on “reasonable effort” to schedule certified medical examination under Minor Injury Regulation

BACKGROUNDCLICK HERE TO ACCESS

THE JUDGMENT

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APPELLATE DECISION

Benc v. Parker, (cont.)

The appeal was allowed in part. A court may

make orders to facilitate the procedural operation of the Regulation where the Regulation was silent on the topic, in a fashion consistent with the object and spirit of the Regulation, including the ability to order the plaintiff to attend a rescheduled certified examination even where the plaintiff had a reasonable excuse for failing to attend the initially scheduled examination. The chambers judge made a palpable and overriding error in determining that the certified medical

examiner had not made reasonable efforts to schedule an examination. What constituted a “reasonable effort” under s. 9(1) of the Regulation should be given a fair, large and liberal interpretation, since a restrictive interpretation would defeat the rights of both litigants to request an assessment of minor injury damages early in the litigation. The 30-day limitation period did not reflect the reality of a busy medical practice and the scheduling conflicts inherent in litigation. There was no suggestion of bad faith on the part of the certified medical examiner. Taking the parties out of the Regulation by declaring the period for medical examination time-barred would unduly benefit Benc, permitting her to circumvent the minor injury cap. The Court of Appeal ordered that either Benc or Parker may apply under s. 10(3) of the Regulation to determine whether Benc had reasonable excuses for failing to participate in the scheduling process. If Benc had a reasonable excuse, either party may then reschedule her examination.

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The respondent Seong Yun Ko (“Ko”) was a licensed realtor, and the appellant Hillview Homes Ltd. (“Hillview”) was a registered home builder. Ko as purchaser and Hillview as builder-vendor entered into a contract to sell a house to be built, along with the lot, for $1,200,000. The contract contained an “entire agreement” clause. The house to be built was Hillview’s existing standard plan “Los Cabos II”, a 2834-square-foot house. A one-page “Addendum A” listed 16 extra items with prices. One item on the addendum was “add 1666` x $80`”, meaning the

house was to contain 1660 more square feet, costed at $80 per square foot. The addition of 1660 more square feet meant the house would be 59% bigger than “Los Cabos II”. No part of the signed agreement provided any guidance as to the nature or location of the extra 59%. Neither party ever tried to prepare any plans or sketches on that subject. No part of the agreement was ever performed. Ko sued Hillview, obtaining, inter alia, a ruling that the contract was valid and enforceable.

The trial judge stated: “I find that the subject matter of the contract here was ascertained. That is, there was a contract for the purchase of a lot and the design and construction of a semi-customized home where the builder had design obligations pursuant to the terms of the contract and the essential elements of the contract, being parties, price and preliminary drawings and specifications were agreed upon.” Hillview appealed, arguing that the agreement was too uncertain to be enforceable.

BACKGROUND

Ko v. Hillview Homes Ltd., 2012 ABCA 245Areas of Law: Contracts; Building Contracts; Certainty of Terms

Agreement to build house on lot failing for lack of certainty of contract termsCLICK HERE TO ACCESS

THE JUDGMENT



Sept 2012


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Ko v. Hillview Homes Ltd., (cont.)

The appeal was allowed. A supposed contract with

an uncertain material term is not a contract, and not even an agreement, and is usually impossible to perform or enforce.

The terms given by the parties must be such as show with a reasonable degree of certainty what the parties meant. Where the thing to be sold does not exist yet, and the vendor must create it, a category in

an agreement such as “house” or “ship” is not enough. In the present case, the extra 59% has no description whatever. The parties’ intentions to create a binding contractual relationship was not relevant to consideration of whether their negotiations resulted in a binding legal contract. The impugned agreement was not a design-build contract, but a construction and sale contract. A design-build contract has warranties of suitability by the designer, restrictions on any variations by the owner, and permissions for variations by the builder, to ensure suitability and safety. The impugned agreement has none of these specifications.

APPELLATE DECISION

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G.L. v N.A.H., 2012 ABCA 247Areas of Law: Family Law; Child Protection; Leave to Appeal

No presumption in favour of blood ties in guardianship proceedings under the Family Law Act

BACKGROUND

The applicant NAH was the maternal grandmother

of JF, a child whose mother died on November 29, 2007. Pursuant to the Child, Youth and Family Enhancement Act, RSA 2000, c. C-12 (“CYFEA”), the Director of Child, Youth and Family Enhancement (“Director”) apprehended JF at the hospital following his birth on October

19, 2006. On November 21, 2006, the Director placed JF with the respondents GL and SL under a Director’s temporary guardianship order under the CYFEA. The guardianship became permanent on July 19, 2007. NAH and GL and SL contested guardianship of JF under the Family Law Act, S.A. 2003, c. F-4.5 (“FLA”). At the end of the proceedings, Miller PCJ granted guardianship to GL and SL. NAH’s appeal to the Court of Queen’s Bench was dismissed and the decision of Miller PCJ was affirmed. NAH applied for leave to appeal the decision of the Court of Queen’s Bench under Rule 12.71 in Part 12, Division 11, Subdivision 2 of the Alberta Rules of Court, AR 124/2010.

CLICK HERE TO ACCESSTHE JUDGMENT

The application was dismissed. The test for leave to appeal under Rule 12.71 is that the applicant must show that there is an important question of law or of precedent, that there is a reasonable chance of success on appeal, and that the delay will not unduly hinder the progress of the action or cause undue prejudice. NAH contended that the biological relationship between grandmother and child should trump the guardianship claim of non-relations GL and SL, and that the Court of Queen’s Bench erred in not applying a presumption in favour of NAH. NAH further contended that the presumption in favour of a kin was applicable whether the notion of “best interests of the child”

was contemplated under s. 2 of the CYFEA or s. 18 of the FLA. However, the guardianship proceedings before Miller PCJ, and before the Court of Queen’s Bench, concerned the “best interests of the child” as contemplated under s. 18 of the FLA. There was no reason for Miller CPJ or the Court of Queen’s Bench to compare and “best interest” provisions of the CYFEA and FLA, much less to make a finding that these provisions differed to a significant extent. Miller PCJ and the Court of Queen’s Bench correctly found that NAH’s insistence on the primacy of blood relations was so predominant in her arguments that she lost sight of a more well-rounded consideration of the best interests of JF. Kinship as one factor in guardianship proceedings cannot fetter the court’s discretion to consider all the necessary factors in determining the best interests of the child. The ruling of Miller PCJ, as affirmed by the Court of Queen’s Bench, took a holistic view of the JF’s interests and came to the reasonable conclusion that his life would be more stable under the guardianship of GL and SL. NAH had no reasonable prospect of overturning the decisions of the lower courts.

APPELLATE DECISION



Sept 2012


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United States of America v. Sosa, 2012 ABCA 242Areas of Law: Extradition; Committal for Trial; Leave to Appeal

Extradition to US on perjury charges sufficiently grounded in fact and law; leave to appeal denied

The applicant, Jorge Sosa (“Sosa”) was committed

into custody by Chief Justice Wittmann to await surrender for extradition to the US to face perjury charge. The US had accused Sosa of knowingly making false statements under oath to US immigration authorities while applying for permanent residency, naturalization and, ultimately, for US citizenship. The extradition

judge found that Sosa made false statements under oath to US immigration authorities, denying that he had ever committed a crime for which he had been arrested. Allegedly, Sosa was charged with the massacre of unarmed civilians in a Guatemalan village in 1982. Sosa sought to appeal Chief Justice Wittmann’s committal order. As a preliminary matter, Sosa was required to apply for two orders of the Court of Appeal. Sosa required an order extending the time for giving notice of his appeal. Furthermore, he required an order giving him leave or permission to appeal.

BACKGROUND

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The application was dismissed. While Sosa

filed his notice of appeal beyond the 30-day period prescribed by s. 50(1) of the Extradition Act, SC 1999, c. 18 (“Act”), he may rely on s. 50(2) of the Act for an extension given his lack of counsel and unfamiliarity with court procedures during his committal hearing. Section 49(b) of the Act governs leave to appeal, and provides that leave or permission to appeal is required if the grounds of appeal involve a question of fact or a question of mixed fact and law. The function of a judge conducting an extradition hearing is to determine whether there is evidence of conduct that, had it occurred in Canada, would have justified committing the accused for trial. The extradition judge does not have to be convinced that the accused is guilty of the

charges. He must simply be satisfied that there is some evidence upon which a court could convict. The evidence in an extradition hearing is usually contained in a document known as the “record of the case” which s. 32 of the Act states must be admitted into evidence by the judge conducting the extradition hearing. The Attorney General for Canada, on behalf of the United States Government, adduced evidence that indicated that Sosa made statements under oath that appeared to be false or misleading. Sufficient evidence of the constituent elements of perjury was put before the extradition judge such that a reasonable, properly instructed jury could reach a guilty verdict. The evidence, circumstantial or otherwise, linking Sosa to the murders perpetrated in Guatemala was not relevant to the committal hearing. The issue to be tried was whether Sosa had lied to US immigration authorities, not whether he had committed the underlying act. Sosa’s evidence that he had not been at the massacre site when the massacre took place was not put before the extradition judge. However, even if such evidence had been put before the extradition judge, it would not have been sufficient to avoid committal for trial in the US.

APPELLATE DECISION

United States of America v. Sosa, (cont.)

Sept 2012


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Martin v. Alberta (Workers’ Compensation Board), 2012 ABCA 248Areas of Law: Workers’ Compensation; Federal Employees; Statutory Interpretation

Federal worker’s claim under workers’ compensation legislation to be assessed by same policies as provincial worker’s claim

BACKGROUND

Respondent Douglas Martin (“Martin”)

worked for Parks Canada in Banff, and was a member of the Public Service Alliance of Canada. By letter dated December 8, 2006 (“disclosure letter”), Parks Canada instructed Martin to disclose information relating to data on his work computer so that Parks Canada might comply with a request that it had received under the Access to Information Act. Martin claimed that the disclosure letter triggered a psychological/emotional condition leading to Martin’s taking leave and, ultimately, to his making a claim to the Alberta Workers’ Compensation Board (“Board”) on January 25, 2007, for compensation for work-related chronic stress. The Board adjudicator,

applying Board policy, found that Martin’s labour relations issues with Parks Canada were not excessive or unusual compared to the normal pressures and tensions of an average worker in a similar occupation. Martin sought a review by the Appeal Commission (“Commission”) of the Board, claiming that the policy did not apply to determine his eligibility for compensation. The governing provision, Martin contended, was s. 4(1)(a)(i) of the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (“GECA”), which provides for compensation arising from an “accident”. The Commission held that the definition of “accident” under s. 2 and s. 4(1) of GECA was the same or effectively the same as the definition under s. 1(1)(a) and s. 24(1) of the Workers’ Compensation Act, R.S.A. 2000, c. W-15 (“WCA”). Accordingly, the relevant provisions of the WCA and the Board policies developed pursuant to the WCA, could be applied to Martin’s case. The Commission found that Martin failed to satisfy the Board policy criteria for work-related stress. Martin applied for judicial review. The chambers judge held that s. 4(1)(a)(i) of GECA provided the sole basis for determining a federal employee’s entitlement to workers’ compensation in Alberta for psychological injury arising from stress at work. The Commission and the Department of Justice Canada appealed.


http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2012/2012abca0248.pdf

http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2012/2012abca0248.pdf



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The appeal was allowed, the judgment of the

chambers judge was set aside, and the decision of the Commission was restored. The standard of review for the chambers judge’s review of the Commission decision, and for the chambers judge’s interpretation of the WCA and the GECA, was correctness. There was no indication in s. 2 and s. 4(1)(a)(i) of the GECA that Parliament intended to override the application of eligibility criteria established by provinces under their

jurisdiction as reflected by the WCA. Where multiple legal aspects of a topic were addressed by the legislation of both levels of government, courts should seek to ensure all the statutes were able to operate as intended by their respective legislators, and to do so effectively as a co-ordinated whole to best serve the common aims of both sets of legislation. The Commission correctly stated that the provisions of both GECA and the WCA and the terms and conditions set out in WCB policies applied to the adjudication of Martin’s claim. It would be contrary to judicial policy to read the GECA and the WCA as imposing different legislative standards and administrative policies for federal and provincial workers.

APPELLATE DECISION

Martin v. Alberta (Workers’ Compensation Board), (cont.)

Sept 2012


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Alberta Take Five September 2012

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