alberta take five may 2013

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May 2013

ALBERTA EDITION

Inside this Issue:

Family Law; Parenting; Child Support; Payment of Arrears; Interim Costs

Civil Litigation; Offers; Costs; Payment for Work

Civil Procedure; Jurisdiction; Unprofessional Conduct

Police Conduct; Standard of Review; Role of Chief of Police

Aboriginal Law; Métis; Land Distribution and Policy; “Substantial Agreement”

Featured Cases:

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The parties married in

1993 and had two children during their marriage. In July 2009 the parties separated but remained living together in their matrimonial home. In November 2010, with legal representation, both parties entered into a contract that dealt with matrimonial issues and considered a divorce. The respondent moved out of the matrimonial

home in December 2010 and disagreements respecting aspects of the contract erupted, eventually leading to the present litigation over parenting, child support and the costs of enforcing the agreement. The major sources of disagreement over the contract resulted from specifics left out such as a schedule for parenting, and the deferral of establishing child support until a parenting plan could be agreed between the parties. The dispute went to trial where the Court ordered the parties to the Case Management Counsel Pilot Project. Participation in the Project was unsuccessful and only ran up further costs. Both parties continued to blame each other over the failure to resolve the conflict and, as noted by the Court of Appeal, the imprecise and urging language of the contract only intensified their dispute. At trial, the judge made a number of orders, including orders respecting parenting, child support, payment of arrears and interim costs. It is these aspects that are challenged in this appeal.

Durocher v Klementovich, 2013 ABCA 115Areas of Law: Family Law; Parenting; Child Support; Payment of Arrears; Interim Costs

~Ambiguity in family law agreements promotes litigation and unruliness, particularly when the parties might sincerely interpret the agreement differently~

BACKGROUND CLICK HERE TO ACCESS THE JUDGEMENT

Personal InjuryFamily Law

Wills & Estates

403.255.2636www.vogel-llp.ca

http://www.canlii.org/en/ab/abca/doc/2013/2013abca115/2013abca115.pdf


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APPELLATE DECISION

Durocher v Klementovich, (cont.)

The appeal was allowed in part,

with the appellant successful on most issues. The first ground of appeal dealt with the imposition by the trial judge of a Parenting Coordinator with respect to any disputes between the parties arising from the ordered joint decision-making with “major decisions”. The appellant argued that the trial judge did not have jurisdiction to require the parties to use binding arbitration without first obtaining their consent, and pointed to Practice Note 7 which states that the Court can “delegate decision-making to a Parenting Expert . . . where both parties to the action have consented”. The respondent did not take issue. The Court of Appeal agreed with the appellant, noting from

the case law that “it would be extraordinary to decline to decide, much less compel the parties to submit to a private adjudicator”, and set aside the trial judge’s order requiring use of the Parenting Coordinator. The second issue dealt with on appeal concerned the child support payments to be made by the respondent. The Court of Appeal agreed with the appellant’s contention that the trial judge had made a material error in misinterpreting the interim orders and based the payments on incorrect assumptions of the respondent’s income. The trial judge’s order was adjusted to reflect the correct payment amounts and the Court of Appeal added, to avoid uncertainty over the responsibility for child support, that this judgment and all judgments and orders would comply with sections 13(b) and (e) of the Federal Child Support Guidelines and Rule 12.53(b). The appellant also challenged the trial judge’s provision of a 2-for-1 credit as an incentive to the respondent should he be able to pay his arrears in child support. The Court of Appeal agreed with this argument, relying on the rule in Haisman v. Haisman (1994), 22 Alta. L.R. (3d) 56 (C.A.) that where a payor is able to pay arrears, they should not be reduced. It was also emphasized that the law imposes on parents the obligation to support their children in proportion to their income and the duty to discharge that obligation. Lastly, the Court of Appeal dismissed the appellant’s argument that the trial judge granted the respondent “a reduction to the interim costs award”.



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The Defendant , Blaze Energy Ltd.

(“Blaze”), required a sour gas well to be drilled in approximately two-weeks. It hired Roll’n Oilfield Industries, Ltd. (“Roll’n”) and Horizon Resources Management Ltd. (“Horizon”) to service the operations and to provide

supervisory services accordingly. In order to complete the project, several steps needed to be completed in order to abandon an existing well before the new well could be drilled. Roll’n and Horizon began operations on October 27, 2005 and the abandonment of the old well was completed on November 11, 2005. It was not until seven weeks after the commencement of operations that drilling of the new well was completed. During this time many problems arose, including Horizon’s two sub-contractors

BACKGROUND

Horizon Resource Management Ltd. v. Blaze Energy Ltd., 2013 ABCA 139Areas of Law: Civil Litigation; Offers; Costs; Payment for Work

~Offers made that do not comply with the Rules of Court can still have an impact on cost awards~

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Horizon Resource Management Ltd., (cont.)

APPELLATE DECISION

On appeal, Blaze contended that the

trial judge erred in his rulings with respect to: an alleged admission in Horizon’s pleading; Blaze’s nonsuit application; pre-contractual misrepresentations; whether Blaze’s Drilling Program formed part of the main contract between Blaze and Roll’n; the dismissal of Blaze’s counterclaim; allowing Roll’n’s counterclaim for an unqualified rig manager; and a double costs award to Horizon. Roll’n cross-appealed with respect to the applicable

leaving, crew leaving due to safety concerns, citations being given by an Occupational Health and Safety officer, a mud pipe quitting and becoming stuck and, on December 9, 2005, operations being shut down by the Alberta Energy and Utility Board as some of

interest rate and costs. Blaze’s grounds of appeal were dismissed and the cross-appeal was allowed respecting costs. Most of the arguments were based on the trial judge’s findings of fact in which the Court of Appeal found had been based on sufficient supporting evidence without any reviewable error demonstrated by the Appellant. Roll’n’s appeal was dismissed that sought the Court of Appeal to imply a term into an interest provision where a date had been left blank. The Court of Appeal applied the legal test set out in Bhasin v. Hyrnew, 2013 ABCA 98 with respect to implying terms in contracts to conclude that the trial judge correctly found that the fact no date had been set was consistent with the intention of Blaze to not pay an 18% interest rate. However, Roll’n was successful in overturning the trial judge’s failure to award enhanced costs after finding that a bona fide Calderbank offer had been made. The Court of Appeal had difficulty with the trial judge declining to consider the offer on the basis that it had not been made under the Rules. Relying on the legal principles

the equipment and employees had failed to meet the appropriate standards and certification. On November 21, 2005 Blaze replaced Horizon and on December 17, 2005 Blaze released Roll’n from the project. Horizon and Roll’n each brought an action against Blaze for payment for their work. These actions were consolidated and Blaze counterclaimed arguing that the actions brought by Horizon and Roll’n caused damages. After a very lengthy trial, the trial judge found in favour of Horizon and Roll’n and dismissed Blaze’s counterclaim.



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Horizon Resource Management Ltd., (cont.)

that courts should not restrict the methods in which parties use to settle with cost consequences, that a Calderbank offer was one option available to counsel, and that the Rules do not specify a specific form of offer in order to invoke cost consequences, the Court of Appeal concluded

that offers that do not rely on the Rules can still have an effect on costs.

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Erdmann v Complaints Inquiry Committee, 2013 ABCA 147Areas of Law: Civil Procedure; Jurisdiction; Unprofessional Conduct

~Unprofessional conduct can arise from actions performed in a personal capacity~

BACKGROUND

The Appellant is a chartered

accountant registered under the Institute of Chartered Accountants of Alberta (the “Institute”). In 2008 she was involved in personal disputes regarding a large crack that had formed in her residential condominium. At issue were two threatening emails the Appellant had sent related to these disputes, one to a salesperson for the builder of her condominium and the other to a representative of the property management company of the condominium board.

In both emails the Appellant identified herself has a chartered accountant and threatened to file complaints to various agencies, including the Canada Revenue Agency, despite no connection between those agencies and the dispute. As a result of these emails, complaints were made to the Institute, an investigation was carried out and the Appellant was found guilty of unprofessional conduct under the Regulated Accounting Profession Act, R.S.A. 2000, c R-12 (the “RAPA”) by the Disciple Tribunal. The Disciple Tribunal ordered the Appellant to undergo counselling, pay a $10,000 fine and, because of the many groundless arguments made by the Appellant, to pay the full costs of the investigation and hearing on an indemnity basis. The Appellant appealed to an Appeal Tribunal arguing, amongst other things, that the Institute and the Discipline Tribunal had no jurisdiction since the emails were made in a private capacity and that the sanctions ordered were inappropriate and excessive. The Appeal Tribunal upheld the finding of unprofessional conduct but reduced the costs order by 25 percent and quashed the counselling order.






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Erdmann v Complaints Inquiry Committee, (cont.)

APPELLATE DECISION

In accordance with the RAPA, the Appellant brought her

appeal of the Appeal Tribunal’s decision to the Alberta Court of Appeal. She raised numerous jurisdictional and procedural issues, arguing that the emails were sent in her capacity as a private citizen, and that the penalty imposed by the Appeal Tribunal was excessive. The Court of Appeal considered the balance between the private and professional aspects of a chartered accountant’s life and found that “a chartered accountant must ensure that her conduct is above reproach in the view of reasonable, fair-minded

and informed persons”. It followed that a determination of whether the Appellant’s conduct was unprofessional was clearly within the jurisdiction of the Institute and both Discipline and Appeal Tribunals. The test for professional misconduct was applied as set out in Ratsoy v Architectural Institute of British Columbia (1980), 113 D.L.R. (3d) 439 at para. 11:

reprehensible conduct outside actual practice of the profession may render a professional person liable to disciplinary action if it can be said to be significantly more reprehensible in someone of his particular profession than in the case of others.

The appeal was dismissed. The above test was met with respect to both emails as there was no connection between the agencies the Appellant threatened to file complaints with and the nature of the disputes respecting her condominium.

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Calgary (Police Service) v Alberta (Law Enforcement Review Board), 2013 ABCA 124Areas of Law: Police Conduct; Standard of Review; Role of Chief of Police

~Reasonableness standard of review applied to decisions of chief of police; Role of chief of police limited to screening complaints for hearing and not to determine whether complaints proven~

This appeal was brought by the chief

of police (the “Chief”) and two constables, Strand and Newell, with respect to a decision of the Law Enforcement Review Board (the “Board”). In August 2008, the mother of Michael Cody’s daughter brought their child to his house for overnight access. On her arrival a dispute arose between them resulting in two police officers being called to the scene. The following day the child’s mother laid an assault complaint against Mr. Cody, which led to an investigation by Strand and Newell. After their investigation, Strand and Newell concluded that they had sufficient grounds to lay a change of assault and did so against Mr. Cody. Strand and the

child’s mother went before a Justice of the Peace to obtain an Emergency Protection Order where Strand made several sworn statements in support of the order. The Crown prosecutor subsequently determined that there was no reasonable prospect of a conviction and stayed the charge of aggravated assault. Mr. Cody filed a complaint with the Chief against Strand and Newell, arguing that: a) they failed to conduct a thorough and unbiased investigation; b) Strand deceived the Justice of the Peace by making false statements; and c) Strand and Newell laid the criminal charge of aggravated assault against Mr. Cody without sufficient grounds to do so. The Chief held an investigation into Mr. Cody’s complaints and concluded that the second and third allegations were “not sustained”. As to the first allegation that Strand and Newell failed to conduct a thorough and unbiased investigation, he determined that it was “sustained”, but that since it was “not of a serious nature,” a hearing was not required. Mr. Cody appealed the Chief ’s decision to the Board where they concluded that the appropriate standard of review to apply to appeals from a chief of police was one of “robust reasonableness” where its civilian mandate would be engaged. The Board determined that the Chief ’s conclusions on the second and third allegations were unreasonable and ordered a hearing on these two counts. The only issue on appeal is a determination of the appropriate standard of review for the Board to use in this case and whether it had been applied.

BACKGROUNDCLICK HERE TO ACCESS

THE JUDGEMENT





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The Court of Appeal determined that the

Board had applied an incorrect standard of review. The standard of review for reviewing a decision of a chief of police is one of reasonableness and not “robust reasonableness” as suggested by the Board. Further, the Board’s civilian oversight is not necessarily to be engaged in every case just because a police officer’s conduct is in question. The Chief had misunderstood his role when it came to complaints of Mr. Cody’s nature. The role of a chief of

police is to screen complaints to determine whether a hearing is required, denying a hearing when there is no reasonable prospect of a conviction or when there are other policy reasons why a prosecution is not in the public interest. However, this role does not extend to determine whether the complaint has been proven or not proven, or in the words used by the Chief, “sustained” or “not sustained”. As the Board had erred in its statement of the applicable standard of review, the Court of Appeal exercised its remedial powers to set aside the Board’s decision and send the matter back to the Chief to reconsider whether a hearing should be held into the second and third allegations.

APPELLATE DECISION

Calgary (Police Service) v Alberta, (cont.)

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May 2013


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Kikino Métis Settlement v Métis Settlements Appeal Tribunal, 2013 ABCA 151Areas of Law: Aboriginal Law; Métis; Land Distribution and Policy; “Substantial Agreement”

~An agreement between a majority of heirs at the exclusion of a minority of those heirs does not constitute a “substantial agreement”~

BACKGROUND

Willie Pruden died in 2009 without

leaving estate instructions to distribute land he owned on the Kikino Métis Settlement. Having left no instructions, the Métis Settlements General Council Land Policy, GC-9201 (the “Land Policy”) applied which provided a sequential analysis to determine distribution of the land. Since Mr. Pruden’s wishes were unknown and he had died without a spouse, the guiding principles in the Land Policy directed the land to be distributed in accordance with the agreement of all living adult heirs, or if an agreement was not possible, to distribute the land based on a substantial agreement of the heirs. Mr. Pruden had seven children who were the potential heirs

to his estate with six making a claim to the land. The Kikino Settlement Council (the “Council”) ordered that the farmed quarter section be given to one of his sons, Ernest, and that the home quarter be subdivided such that one of his other sons received 120 acres, including the house, and other 40 acres were to be divided amongst the four remaining heirs with a claim. Three of the heirs appealed the Council’s decision to the Appeal Tribunal (the “Tribunal”). By the time the appeal was heard, four of the heirs had agreed that the farmed quarter should be split between two of the heirs and the home quarter between two of the other heirs. The Tribunal considered this to be a “substantial agreement” in accordance with the Land Policy but found that it was impractical to implement. As a result, the Tribunal ordered that the land should be distributed based on the “principles underlying the agreement” such that each sibling be treated “equitably/fairly”, that cooperation be promoted between the heirs and that the farming and ranching purposes of the land be respected. The land quarter was then directed to Ernest and the home quarter to one of the other heirs, Sheila. The only land at issue in this appeal is the home quarter distributed to Sheila.






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It was unreasonable for the Tribunal to interpret the

phrase “substantial agreement” in the Land Policy to mean the agreement of a majority of the heirs that excluded a minority of the heirs from the estate all together. In order for a “substantial agreement” to exist, there needed to be “an agreement between something approaching all of the beneficiaries, on

something approaching all of the issues in the distribution”. Despite finding that a “substantial agreement” existed, the Tribunal failed to implement it and instead purported to distribute the estate based on what it considered to be Mr. Pruden’s wishes, which it had no authority to do. Further, the distribution ordered by the Tribunal was neither fair nor equitable as it completely excluded some of the heirs. Accordingly, the decision of the Tribunal was reversed and sent back for a re-hearing.

APPELLATE DECISION

Kikino Métis Settlement v Métis Settlements Appeal Tribunal, (cont.)

http://www.tvsbarristers.com