Addison & Leyen Ltd v Fraser Milner Casgrain LLP: An Illustration of Restitution


In Addison & Leyen Ltd v Fraser Milner Casgrain LLP, 2014 ABCA 230 [Addison & Leyen], the Alberta Court of Appeal (“ABCA”) handed down a short but significant decision. Fraser Milner Casgrain was forced to defend an action predicated on a legal opinion drafted in 1989 by a predecessor firm. According to the plaintiffs, the opinion was written negligently and exposed them to $490,000 in tax liability twelve years after the letter was written.

The plaintiffs applied the law of restitution and brought a claim for common law implied indemnity. The law of negligence was inapplicable because of the 10 year ultimate time bar in the Alberta Limitations Act, RSA 2000, c L-12 [Limitations Act]. This case derives its significance from the ABCA’s discussion of the cause of action in implied indemnity.

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[filed: Contracts Restitution and Unjust Enrichment Torts]

Alberta Has No Constitutional Obligation to Publish Its Legislation in French: R v Caron

In 2003, Mr. Caron was issued a traffic ticket for making an illegal left hand turn. Rather than simply paying the fine, Mr. Caron sought to challenge the ticket on the ground that the ticket was issued in English only, and thus violated the province of Alberta’s constitutional obligation to publish its legislation in both English and French. He also argued that the Languages Act, RSA 2000, which allows Alberta to legislate in English only, was ultra vires. Mr. Caron was unsuccessful and the Alberta Court of Appeal found that the province of Alberta has no obligation to print its legislation in French, despite “the rich history of the use of the French language in Alberta” (para 2).

This case has a long judicial history and has resulted in a series of decisions on costs, which have been covered in detail in previous postings on TheCourt. This particular case is worth watching as Mr. Caron and his lawyers plan on seeking leave to the Supreme Court of Canada.

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[filed: Charter Official Languages]

Prison Transfers Must Be Fair, Supreme Court Rules: Mission Institution v Khela

Earlier this year, in late March, the Supreme Court of Canada (SCC) sent a resounding message to federal prison wardens across the country that inmates’ freedoms cannot be limited lightly. In Mission Institution v Khela, 2014 SCC 24, a unanimous ruling of eight judges, the SCC made it clear that if you decide to further limit the freedoms of an inmate, you must justify your decision with reasons or invoke a special provision of the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA). Failing to carry out one of those actions undermines the procedural fairness owed to prisoners. The SCC also affirmed the importance of providing access to justice by refusing to limit remedial avenues for prisoners.

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[filed: Charter Criminal Law]

Ontario Court of Appeal Strikes Down Federal “Tough-On-Crime” Legislation: R v Safazadeh-Markhali

In R v Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario struck down the legislative scheme surrounding sentencing and the credits granted for pre-sentence custody.

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[filed: Charter Criminal Law]

The Ontario Human Rights Tribunal and the Provincial Implications of Moore v British Columbia

It has been nearly two years since the Supreme Court of Canada (“SCC”) released its unanimous decision in Moore v British Columbia (Ministry of Education), [2012] 3 SCR 360 [Moore]. That decision considered the applicability of human rights legislation within the context of public services delivered to students with disabilities. At the time, commentators questioned the extent to which the decision would be applied in Ontario. This issue was addressed last summer by the Ontario Human Rights Tribunal (“OHRT”) in RB v Keewatin-Patricia District School Board, 2013 HRTO 1436 [RB]. This comment details the Moore and RB decisions and the effect they have had on special education services.

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[filed: Human Rights]

A Case about Complete Denial of Access to Counsel: R v Taylor

In R v Taylor, 2014 SCC 50, Abella J. declared that section 10(b) Canadian Charter of Rights and Freedoms had been violated, which resulted in Jamie Kenneth Taylor’s “inability to exercise a meaningful and informed choice as to whether he should or should not consent to the taking of blood samples at the hospital” (at para 19). As such, the Supreme Court of Canada upheld the Court of Appeal’s decision to exclude the blood samples and acquit Mr. Taylor of all charges (Taylor, at para 19).

By ruling in favour of the preservation of Mr. Taylor’s Charter rights, the Supreme Court of Canada made two interesting and important assertions about section 10(b) of the Charter and the boundaries of police powers.

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[filed: Charter Constitutional Law Criminal Law]

A New Standard for “Mr. Big” Confessions: R v Hart  

R v Hart, 2014 SCC 52 [Hart], is about the admissibility of confessions elicited during “Mr. Big” operations, a relatively common sting tactic used by police across the country. The Supreme Court of Canada (SCC) found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.

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[filed: Criminal Law Criminal Procedure Evidence Law]

Clarifying the Role of the Refugee Appeal Division: Huruglica v Canada

In Huruglica v Canada (Minister of Citizenship and Immigration), [2014] FCJ No 845, a decision released on August 22, 2014, the Federal Court clarified that the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) serves an appellate, rather than a judicial review, function.

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[filed: Administrative Law]

Access to Information and Advice: Interpreting the Freedom of Information and Protection of Privacy Act

In John Doe v Ontario (Finance), 2014 SCC 36 [John Doe], the Supreme Court of Canada (SCC) provided a comprehensive explanation of a key provision of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 [FIPPA]. FIPPA is a mechanism that enables individuals to request disclosure of information from government officials (information on making a request can be found here). Within the statute, s. 13(1) permits the denial of a request “where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution” (John Doe, at para 7).

In this case, the SCC clarified s. 13(1) in two respects:

1) The Court decided whether records that contain a discussion of policy options constitute “advice” for the purposes of s. 13(1).

2) The Court decided whether s. 13(1) requires the advice or recommendations under consideration to be communicated to a decision maker to qualify for protection.

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[filed: Access to Information Administrative Law]

The Supreme Court Clarifies Sentencing Rules: R v Summers

In 2009, the Conservative government introduced legislation called the Truth in Sentencing Act, SC 2009, c 29 (the “Act”). The Act, which came into force in 2010, amended the Criminal Code by capping the amount of credit judges were allowed to give prisoners for time served before the prisoners’ trials. While it had been routine for judges to credit prisoners with two days for every pre-trial day, the Act set a cap at 1.5 days. According to Justice Minister Rob Nicholson, the Act sought to disallow any credit at all for prisoners who had been denied bail.

The Act is part of Prime Minister Stephen Harper’s tough-on-crime platform, which has sought to put limits on judicial discretion in the courts. It was tested at Supreme Court of Canada this past April in the case R v Summers, 2014 SCC 26 [Summers]. In a 7-0 decision written by Justice Karakatsanis, the Court ruled that judges continue to have discretion to grant credit to prisoners, including those denied bail. It stressed the importance of treating prisoners fairly, emphasizing that individuals who have had their liberty taken away from them are vulnerable and deserve to be treated with human dignity.

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[filed: Criminal Law]