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TOPApril 2017

Supreme Court of Canada Releases Judgment on Defence of Officially Induced Error

By: Jack D. Coop, Fogler, Rubinoff LLP

In an oral judgment released on January 27, 2017 in the case of R. v. Bedard, the Supreme Court of Canada confirmed the elements of the defense of officially induced error, as set out in its 2006 decision in Lévis (City) v. Tétreault.

Elements of the Defence

It may be recalled that in Lévis, the Supreme Court repeated and adopted the six elements of the defence of officially induced error established by it in its 1995 decision R. v. Jorgensen:

(1) that an error of law or of mixed law and fact was made;
(2) that the person who committed the act considered the legal consequences of his or her actions;
(3) that the advice obtained came from an appropriate official;
(4) that the advice was reasonable;
(5) that the advice was erroneous; and
(6) that the person relied on the advice in committing the act.

The Supreme Court's judgment in Bedard, therefore, confirms a line of Supreme Court authority concerning this defense which is more than 20 years old.

Use of the Defence by a Government Official

The unusual wrinkle to Bedard is that the case concerned an attempt by Quebec wildlife and fisheries peace officers to employ the defence of officially induced error to defend themselves from charges that they criminally assaulted the complainant, an individual whom they were attempting to arrest for violating the Fisheries Act. The peace officers were planning to attend at the complainant's home without a warrant to demand that he produce identification, so they could lay charges against him under the Fisheries Act. Prior to attending on the home, they sought out the advice of a police officer regarding what they could do if the complainant refused to provide identification. They were told by the police officer that they could arrest him. The peace officers argued, in their defence, that they were officially induced (by the police officer's advice) to arrest the complainant, and in so doing to apply the physical force which formed the basis for their assault charges.


Ledcor v. Northbridge: the Supreme Court of Canada Clarifies the "Faulty Workmanship" Exclusion

By: Josiah MacQuarrie, Dutton Brock LLP

The Supreme Court of Canada recently released one of the more important insurance law decisions in recent memory. In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. the Supreme Court weighed in on the distinction between "faulty workmanship", which is typically excluded under a builder's risk policy, or "resultant damage", which is typically covered.

Ledcor was a general contractor hired to construct the EPCOR building in Edmonton, Alberta. As the general contractor, they hired a window cleaner to clean the exterior windows of the building near the end of the project. The insurer, Northbridge, had issued an "all-risks" builder's risk policy for the project. The insuring agreement read:

1. Property Insured

(a) Property undergoing site preparation, demolition, construction, reconstruction, fabrication, installation, erection, repair or testing (hereinafter called the "Construction Operations") while at the risk of the insured and while at the location of the insured project(s), provided the value thereof is included in the declared estimated value of construction operations;
. . .

2. Perils Insured and Territorial Limits

This policy section insures against "All Risks" of direct physical loss or damage except as hereinafter provided.

Ledcor and the developer, Station Lands, submitted a claim to Northbridge seeking indemnity under the policy for the $2.5 million in damage to the windows. Northbridge denied, and relied on the faulty workmanship exclusion, which read:

4(A) Exclusions

This policy section does not insure:

(a) Any loss of use or occupancy or consequential loss of any nature howsoever caused including penalties for non-completion of or delay in completion of contract or non-compliance with contract conditions;

(b) The cost of making good faulty workmanship, construction materials or design unless physical damage not otherwise excluded by this policy results, in which event this policy shall insure such resulting damage.

The trial judge initially found in favor of Ledcor, but the decision was overturned by the Alberta Court of Appeal. On appeal, it was held that the cleaning service was "faulty workmanship" as defined by the policy, and that the cost to repair the windows was not "resultant damage", but rather the direct result of the faulty work.  



Doyle v. Zochem Inc.: A good example of an employer's many overlapping duties and obligations in the workplace

By: Tim Lawson, McCarthy Tétrault LLP 

Doyle v. Zochem Inc., 2017 ONCA 130, a recent decision of the Ontario Court of Appeal, is a good example of how courts are supervising conduct and slapping offending employers with multiple statutory and common law offences and claims. Employers must navigate a web of overlapping obligations - human rights, occupational health and safety, employment standards and common law. These obligations can converge and create liability under separate heads of damages. The Court in Zochem found that the same conduct of the employer served as the basis for several types of damages under a human rights statute and under the common law. The Court went on to explain how moral damages are distinct from human rights damages.


The facts in Zochem represent a wish list for how not to treat an employee. The plaintiff worked for the employer for nine years, and was a plant supervisor and health and safety coordinator at the time that her employment was terminated. She was the only female employee at the plant. Another plant maintenance manager, whom the employer considered to be "irreplaceable", sexually harassed the plaintiff. He made references to sexual activity, and generally objectified her in the workplace. The manager became aware that the plaintiff was to be terminated, and belittled her during a meeting with coworkers. Unaware of her upcoming termination, she made a sexual harassment complaint to her employer.

The employer conducted a cursory investigation without input from the plaintiff. The plaintiff was then terminated on a without cause basis. Her termination was described by the Court as "cold and brusque". The employer stated "we don't need you here anymore", and she was told that she was "being irresponsible" by complaining about the harasser, as his reputation was at stake. Also, during the termination meeting, the plaintiff's car keys were taken from her purse and her car was brought around without her permission. The trial judge stated that the employer had "mangled the termination process". Among other things, it recruited employees to "dig up dirt" to discredit the plaintiff in order to justify her termination, and created performance reviews to bootstrap the pre-existing determination to terminate her employment.


Suing for Defamation - A Call for Restraint

By:  Howard Winkler, Winkler Dispute Resolution

The law of Defamation continues to be one of the most technical areas of law, with special limitation periods, notice pre-conditions to the commencement of proceedings, special rules of pleading and evidence, and reverse onuses of proof. It is an area of law that requires great expertise and more importantly experience. A lawyer who provides advice and proceeds with a claim based solely on a review of the relevant legislation may do a great disservice to his or her client.

Absent the existence of special damages, defamation actions should rarely be brought for monetary reasons alone. It is an unfortunate reality for plaintiffs with legitimate claims that the unreimbursed costs of the litigation may well exceed both the damages and a partial indemnity costs award. After a careful consideration of the monetary pitfalls of proceeding with an action, experienced lawyers will often advise clients to proceed only where there is a compelling need to prevent further reputational harm or achieve judicial vindication of a harmed reputation.
An effective strategy to redress a perceived attack on reputation requires more than a legal analysis: It requires a risk/benefit analysis that extends beyond the consideration of only the prospects of success or the financial risks. A client's decision to proceed with an action for defamation is difficult and comes with often unanticipated risks: An ill-conceived defamation action may, in fact, risk causing more harm to the client. This is particularly the case where a client may face further negative media exposure through the reporting of court proceedings. In this scenario, the decision to proceed with a claim may very well result in the self-infliction of new harm to the client's reputation and greater financial loss. Sometimes an alternative strategy is the most prudent and least damaging course of action.
The relatively recent enactment of the Protection of Public Participation Act, 2015 ("PPPA"), adds another layer of risk to consider when proceeding with a defamation claim. The Act added sections 137.1 to 137.5 to the Courts of Justice Act ("CJA"), providing, among other things, a fast-track mechanism for the Court to dismiss a proceeding on a motion by a defendant where the Court is satisfied that the proceeding arises from an expression that relates to a matter of public interest.  


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