Today's Report

APPEAL Back to top CONTRACTS/TORTS: TENDERS Design Services Ltd. v. Canada (Fed. C.A., July 21, 2006)(31618) "Public Works (PW) launched a 'design-build' tendering process for the construction of a building. The tendering documents indicated that proponents could bid on the contract alone or in conjunction with other entities as a joint venture. PW awarded the contract to a non-compliant bidder. O, the contractor which should have been awarded the contract, and the subcontractors associated with it, sued. No partnership or joint venture had been entered into between O and the subcontractors. O settled with PW, but the subcontractors continued with the litigation. The trial judge found that PW owed a duty in tort, but not in contract, to the subcontractors. The Court of Appeal set aside the decision, concluding that a new duty of care should not be recognized in these circumstances." The Supreme Court of Canada held (unanimously) that the appeal is dismissed. Justice Rothstein wrote the following (at pp. 22-24, 27): "The fact that the appellants had the opportunity to form a joint venture, and thereby be parties to the 'Contract A' made between PW and Olympic, is an overriding policy reason that tort liability should not be recognized in these circumstances.  Allowing the appellants to sidestep the circumstances they participated in creating and make a claim in tort would be to ignore and circumvent the contractual rights and obligations that were, and were not, intended by PW, Olympic and the appellants. In essence, the appellants are attempting, after the fact, to substitute a claim in tort law for their inability to claim under 'Contract A'.  After all, the obligations the appellants seek to enforce through tort exist only because of 'Contract A' to which the appellants are not parties.  In my view, the observation of Professor Lewis N. Klar (Tort Law (3rd ed. 2003), at p. 201) - that the ordering of commercial relationships is usually in the bailiwick of the law of contract - is particularly apt in this type of case.  To conclude that an action in tort is appropriate when commercial parties have deliberately arranged their affairs in contract would be to allow for an unjustifiable encroachment of tort law into the realm of contract. There are certainly factors that indicate a close relationship between PW and the appellants, such as the appellants' expectation that PW was choosing a design-build team at the SOQ stage and the reliance of the appellants on a fair selection methodology in the tendering process. Nonetheless, the appellants' ability to foresee and protect themselves from the economic loss in question is an overriding policy reason why tort liability should not be recognized in these circumstances.  The appellants had the opportunity to arrange their affairs in such a way as to be in privity of contract with PW relative to 'Contract A', but they chose not to do so and they are now trying to claim through tort law for lack of a contractual relationship with PW.  Tort law should not be used as an after-the-fact insurer. I conclude that the appellants have failed to satisfy the first stage of the Anns test justifying a finding of a prima facie duty of care. Having found no prima facie duty of care at the first stage of the Anns test, it is unnecessary to continue with the second stage of examining residual policy concerns that could negate the creation of a new duty of care.  However, it may be useful to comment on one residual policy concern - indeterminate liability. ... That the facts here suggest indeterminacy is, I think, symptomatic of a more general concern in the construction contract field.  Even where subcontractors are named and known by an owner, those subcontractors will have employees and suppliers and perhaps their own subcontractors who also could suffer economic loss.  And these suppliers and subcontractors will have their own employees and suppliers who might claim for economic loss due to the wrongful failure of the owner to award the contract to the general contractor upon which they were all dependant.  The construction contract context is one in which the indeterminancy of the class of plaintiffs can readily be seen. Even if a prima facie duty of care had been found at the first stage of the Anns test, in my view, it would have been negated at the second stage because of indeterminate liability concerns." Click here for the full text of case LEAVES TO APPEAL DISMISSED Back to top EXTRADITION Lake v. Canada (Minister of Justice) (Ont. C.A., September 1, 2006)(31631) "In 1997, the appellant committed a number of offences in Canada related to trafficking crack cocaine and also sold crack cocaine to an undercover Ontario Provincial Police officer in Detroit, Michigan.  The appellant was charged in Canada with six offences, including conspiracy to traffic in crack cocaine, but he was not charged with trafficking cocaine in relation to the Detroit transaction.  The appellant pled guilty to the charges against him.  At the sentencing hearing, Crown counsel indicated that he agreed with the joint recommendation for a sentence at the low end of the range with respect to these types of offences because the appellant faced a strong likelihood of additional conviction and sentencing in the U.S.  The appellant had received concurrent sentences of one to three years of imprisonment.  After the appellant served his Canadian jail sentences, the U.S. requested his extradition to stand trial in that country in relation to the Detroit transaction.  The appellant was committed for extradition and, in 2005, the Minister of Justice ordered his surrender.  The Court of Appeal dismissed an application for judicial review of the Minister's decision." The Supreme Court of Canada held (unanimously) that the appeal is dismissed. Justice LeBel wrote the following (at pp. 14-16, 23-25): "... the considerations, now known as the 'Cotroni factors', that will generally be considered in determining whether to prosecute in this country or to allow authorities in a foreign jurisdiction to seek extradition. These factors include: where was the impact of the offence felt or likely to be felt, which jurisdiction has the greater interest in prosecuting the offence, which police force played the major role in the development of the case, which jurisdiction has laid charges, which jurisdiction is ready to proceed to trial, where is the evidence located, whether the evidence is mobile, the number of accused involved and whether they can be gathered together in one place for trial, in what jurisdiction were most of the acts in furtherance of the crime committed, the nationality and residence of the accused, the severity of the sentence the accused is likely to receive in each jurisdiction. How relevant each of these factors is to the determination of the appropriate jurisdiction for prosecution may vary from case to case.  Nothing in Cotroni suggests  that these factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. The list merely identifies some of the factors that will tend to favour either extradition or prosecution in Canada. To instruct prosecutorial authorities on how to decide whether to prosecute would deprive the concept of prosecutorial discretion of all meaning. The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight the relevant factors. The exercise of prosecutorial discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives. Absent such evidence, the infringement of an individual's s. 6(1) mobility rights upon surrender will not be unjustified merely because the Minister has decided, rather than prosecuting the individual in Canada, to defer to the foreign authorities seeking extradition. The Minister is also often asked to consider whether surrender would violate an individual's rights under s. 7 of the Charter.  The test that has been applied is whether ordering extradition would 'shock the conscience'(Schmidt,at p. 522), or whether the fugitive faces 'a situation that is simply unacceptable' (Allard, at p. 572). In Schmidt , La Forest J. emphasized that deference is owed to the Minister's assessment: The courts have the duty to uphold the Constitution. Nonetheless, this is an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. In a word, judicial intervention must be limited to cases of real substance. [p. 523] ...In my view, the Minister's conclusion was not unreasonable. The appellant was not charged with the substantive offence of trafficking in relation to the transaction of September 22, 1997. Although it is true that he was charged with conspiracy to traffic in narcotics on dates that included September 22, 1997, a charge of conspiracy does not subsume the substantive offence. An individual may be convicted both of conspiracy and of the substantive offence that was the object of that conspiracy: Sheppe v. The Queen , [1980] 2 S.C.R. 22.  If an accused is convicted on both charges, the usual order is that the sentences be served concurrently. However, even if an accused is charged only with conspiracy, evidence that he or she actually committed the substantive offence will generally lead to a harsher sentence than if the accused had conspired to commit it but had not actually done so. The Minister was of the view that the Canadian sentence did not reflect the fact that the appellant had committed the substantive offence. After reviewing the transcript of the sentencing hearing and the agreed statement of facts, the Minister noted that the sentencing judge had made no reference to the U.S. indictment and that Crown counsel had advised the court that he was seeking a reduced sentence in light of that indictment. Although the agreed statement of facts does make reference to the transaction of September 22, 1997, the clear implication of Crown counsel's words at the sentencing hearing was that he was not seeking to punish the appellant for the Detroit transaction precisely because he expected the appellant to be punished for that offence in the United States. The relevant part of the transcript reads as follows: What Mr. Lake faces is prosecution with respect to this charge in the United States, in which the evidence is compelling. And the likelihood of him being convicted in the United States as a result of the events of September 22, 1997, are high. The crown has taken that into account with respect to looking at the entire situation. And that was a motivating factor as far as the crown was concerned with respect to this sentence which I acknowledge is on the low end of the range with respect to these types of offences. [A.R., at p. 85] In my view, it was reasonable for the Minister to conclude, relying upon the transcript of the sentencing hearing, that the appellant had not already been punished for the conduct underlying the U.S. indictment. As for the adequacy of the Minister's reasons, while I agree that the Minister has a duty to provide reasons for his decision, those reasons need not be comprehensive. The purpose of providing reasons is twofold:  to allow the individual to understand why the decision was made; and to allow the reviewing court to assess the validity of the decision. The Minister's reasons must make it clear that he considered the individual's submissions against extradition and must provide some basis for understanding why those submissions were rejected. Though the Minister's Cotroni analysis was brief in the instant case, it was in my view sufficient. The Minister is not required to provide a detailed analysis for every factor. An explanation based on what the Minister considers the most persuasive factors will be sufficient for a reviewing court to determine whether  his conclusion was reasonable. In the case at bar, the Minister stated that he had considered the Cotroni factors, and in reaching his conclusion he emphasized that the alleged conduct had occurred in the United States: ... I would yield to the superior interest of the United States of America in prosecuting this matter. The evidence alleges that Mr. Lake trafficked cocaine within the boundaries of the United States of America. The United States of America is entitled to seek to protect its own public and maintain public confidence in its laws and criminal justice system through prosecution. [A.R., at p. 17]." Click here for the full text of case ABORIGINAL LAW, CRIMINAL LAW: DISCLOSURE The Applicants were aboriginal and charged with offences under the Quebec Act respecting the conservation and development of wildlife, and the federal Fisheries Act.  Proceedings were instituted under both the Criminal Code and the Code of Penal Procedure .  The Crown sent the Applicants the evidence that would normally be disclosed in such cases.  The Applicants then pleaded not guilty to the charges and indicated they intended to assert their Aboriginal right to engage in the impugned activities on the lands where the offences were allegedly committed.  Arguing that the Crown had a duty to disclose, before a trial date was scheduled, any evidence in its possession that might tend to support or undermine their claim to Aboriginal rights, the Applicants filed various motions for either a stay of proceedings or disclosure of evidence.  The motions were heard, and dismissed, by judges of the Court of Québec other than the judges who had been designated to preside at the trials. The Applicants' motions in "evocation" and for certiorari were allowed in part, and disclosure of evidence ordered in part. The C.A. allowed the appeal. Charles Commanda v. R. - and - Donald Tenascon, et al.  v. Attorney General of Quebec (Que. C.A., June 29, 2007)(32279) ABORIGINAL LAW, CRIMINAL LAW: DISCLOSURE The Applicant was an aboriginal charged with offences under the federal Fisheries Act. Proceedings were instituted under the Criminal Code .  The Crown sent the Applicant the evidence that would normally be disclosed in such cases.  The Applicant then indicated that he intended to assert an Aboriginal right to engage in the impugned activities on the lands where the offences were allegedly committed.  Arguing that the Crown had a duty to disclose, before a trial date was scheduled, any evidence in its possession that might tend to support or undermine his claim to the Aboriginal right, the Applicant filed various motions for either a stay of proceedings or disclosure of evidence.  The motions were heard by a judge of the Court of Québec other than the judge who had been designated to preside at the trial.  He ordered, among other things, the disclosure of certain evidence in the Crown's possession that might be used to show that the infringement of the Applicant's right was unjustified. The C.A. dismissed the appeals by the Applicant, allowed the Respondent's appeal, and set aside the judgments of the Court of Quebec. Gérald Chaput v. Attorney General of Quebec (Que. C.A., June 29, 2007)(32278) ABORIGINAL LAW: HUNTING AT NIGHT WITH A LIGHT The Applicants were members of the Maliseet Nation in N.B. At approximately 1:50 a.m., the Applicants were observed by game wardens driving a van along a forest road and shining a bright floodlight into the forest in a wildlife management area with a substantial deer population.  The wardens stopped the van and found firearms and ammunition. The Applicants were charged with hunting wildlife by means of or with the assistance of a light or lights contrary to s. 33(1)(b) of the N.B. Fish and Wildlife Act .  At trial, the Applicants denied they were hunting and testified they were only observing the wildlife in their natural habitat out of educational curiosity, for amusement, and to pass the time. They further testified they were going to hunt moose later that morning at a location 12 miles from where they were observed.  The trial judge accepted the Applicants' testimony and the Applicants were acquitted of the charges. The acquittals were upheld on appeal before the Court of Queen's Bench.  The C.A. subsequently allowed the Crown's appeal and entered convictions against the Applicants.  The S.C.C. issued a remand order pursuant to s. 43(1.1) of the Supreme Court Act, and the matter was returned to the C.A. for reconsideration, where the Court affirmed its earlier decision. Richard Polches, et al. v. R. (N.B.)(31495) "The motion to adduce new evidence and the application for leave to appeal...are dismissed." CIVIL PROCEDURE: CONTEMPT OF COURT There is a publication ban in this case, which involves the mandatory taking of a sample of a bodily substance for paternity purposes. G.S. v. G.G. (Que. C.A., November 12, 2007)(32385) "with costs." CRIMINAL LAW: (SUB-)CONTRACT KILLING According to the evidence, the Applicant Monique Fournier, through her lover, a man named Lagacé, hired a hitman to kill her husband and the hitman subcontracted the hit to another hitman.  Less than two hours before the planned time, Fournier called Lagacé to cancel the murder, using only the word [translation] "cancel".  However, the message apparently never reached the killer.  The Applicant was with the victim when he was killed at the agreed place and time, and she witnessed his death.  Following the murder, she also paid the agreed amount, partly out of the insurance benefits she received in respect of the victim's death, and she remained in contact with Lagacé and another accomplice, Chénier, several months after the murder.  The accomplices pleaded guilty to charges of manslaughter and second degree murder, respectively.  The Applicant was convicted before a judge and jury of first degree murder. The C.A. dismissed the appeal. Monique Fournier v. R. (Que. C.A., December 21, 2007)(32490) REAL PROPERTY: LAND TITLES SYSTEM; CAVEAT The Applicant sued for an alleged breach of a purchase and sale agreement and filed a caveat.  The chambers judge directed the caveat be discharged.  The C.A., in a majority decision, dismissed the Applicant's appeal.  The majority concluded that if specific performance is not available, there was no interest in the land and the caveat must be struck. 1244034 Alberta Ltd. v. Walton International Group Inc. and Brent Bailey (Alta. C.A., November 22, 2007)(32454) "The application for an extension of time is granted and the application for leave to appeal...is dismissed with costs to the respondents."