Category Archives: Investigative2017_2

A slip and fall case was dismissed, like most other tort law cases


On July 13, 2017, a case which involved slip and fall claim was dismissed by Supreme Court of Nova Scotia. According to the decision document, the main reason of dismissing was the lack of key evidence.

The case was heard on May 31 and June 1, 2017. However, the incident happened in seven years before.

Halifax was hit with a major winter storm on the night between February 16 and 17, 2010. After the storm, Jean Andrea Flowers visited the Wal-Mart Store in the Halifax Shopping Centre with her partner. Flowers fell down and injured herself when she was leaving the store.

As a result of that, she wanted to sue OPB Realty and Allterrain Contracting Ltd. for liability. OPB Realty is the owner of Shopping Centre, and Allterrain has the responsibility for cleaning maintenance.

In an emailed statement, Michelle Kelly, the defendant’s lawyer pointed out that other than the plaintiff, there was no one who could testify on behalf her client, and there was no video tape of the incident.

In addition, the evidence that Flowers showed to prove that the walkways were not sanded or salted was inconclusive.

“So, there was no liability found on the part of the defendants, i.e. in law they were not responsible for the slip and fall.” Kelly says.

Flowers and her lawyer didn’t reply to requests for interviews.

William Lahey is a law professor of Health Law Institute of Dalhousie University.

William Lahey, law professor of Health Law Institute of Dalhousie, says these cases are difficult to prove.

“The first point is that in a negligence case, the plaintiff has to show that the injury was caused by the carelessness of the defendant,” Lahey says. “And in this case, there’s nobody in court can testify that they filled in the document based on their first-hand knowledge or reliable second hand knowledge of what the condition of the walkway actually was.”

Slip and fall cases are very common in Canada. They are considered as in the field of tort law.

Lahey thinks that in most tort cases, defendants win more than plaintiffs, because finding conclusive evidence is the biggest problem for plaintiffs.”The law puts the burden of proof on the plaintiff, meaning the person who is injured…” Lahey says. “…Defendants don’t have to show anything, the burden is on the plaintiff to show defendants’ carelessness as the injury.”

Interview audio clip:


P.E.I. fisherman challenges charge of possession of illegal female rock crabs


Fishermen might want to double check what’s in their traps before tossing them overboard, as using bait contrary to fishing regulations can lead to some pretty hefty fines.

That’s just what happened to P.E.I. Fisherman Kenneth Griffin, who was charged with possession of female Rock crabs by Department of Fisheries and Oceans (DFO) officers back in October 2015. A regulatory offence, not a Criminal Code offence specified as requirement 53(a) in the Atlantic Fishery Regulations first established in 1985.

Griffin has been a licensed lobster fisherman since 2001, fishing more than 250 traps in West Point Harbour in P.E.I. DFO officers were patrolling Griffin’s fishing area when a trap was found containing two female Rock crabs impaled on a bait spike. The trap was identified as Griffin’s.

Female Rock crabs, along with Dungeness crabs, Snow crabs, and other species depending on the region, must be released if caught in order to protect the population size by allowing the females to reproduce. Size limits are also placed on male crabs, to ensure they are able to reproduce at least once before they are harvested. Female rock crabs can lay up to 2.5 million eggs at a time.

Griffin claimed the crabs he purchased for bait around that time were from Kildaire Bait & Lobster, and he assumed all the crabs within the purchased crate were male without further inspection. However, the female crabs might have also be found within Griffin’s traps themselves and then mistakenly used for baiting.

Two “helpers” of Griffin were the ones that placed them on the bait spike. When questioned about the training they received in regards to discerning males form females, Griffin stated in court, “Just your basic turn it over, if it’s female, throw it over, if it’s a male use it. If it’s not, put it in the crate or just use your judgment.” 

Neither of the two helpers testified at trial that took place in July 2016, wherein Griffin was issued a fine of $1,500.

Although the appeal document states the fine total was $1,200, Griffin's lawyer John Maynard has clarified the total is actually $1,500.

A month later Griffin and his attorney John Maynard filed a notice of appeal, questioning the conviction. Maynard says the issue was Griffin’s state of knowledge in the use of the crabs. “I’ve had people plead guilty to using female crab but this is the first one that I’ve fought,” says Maynard. “How the fishermen that I’ve had before that have plead guilty got female crabs is out of their [own] lobster traps.”

John Maynard, Laywer, Summerside & O’Leary Source: Key Murray Law. Maynard has represented clients who have plead guilty to the possession of female rock crabs in the past, but Griffin’s charge is the first one he has contested.

“I don’t think this kind of enforcement is appropriate,” says Maynard. “I think it puts fishermen at risk…”

Communications Advisor for Fisheries and Oceans Canada, Kirsta Petersen, was able to confirm the number of times this charge has been laid out in this area. She says, “In DFO’s Gulf Region a total of 47 charges have been laid under Section 53(a) of the Atlantic Fishery Regulations in the last 10 years.” This includes the use of both Rock crabs and Snow crabs.


Voice of Kenneth Griffin's Lawyer John Maynard on why he is contesting this case with an appeal.

Judge Tracey Clements of the Prince Edward Island Supreme Court dismissed the appeal on June 30, 2017. However Griffin and Maynard plan to bring it forward to the P.E.I. Court of Appeal as well. “This is a summary conviction appeal, so the first appeal is to a judge of the Supreme Court trail division and an appeal from [Judge Clements’] decision is to the Court of Appeal,” says Maynard.

The case could also be taken to the Supreme Court of Canada, but Maynard states since only a fraction of cases are even accepted for a hearing it is very unlikely.

This case can come as a warning to other fishermen in the Atlantic regions, that even if completely unintentional, it might still help to give your traps a second check to make sure female crabs aren’t the bait luring in your next catch.


A former foster child faces a long journey seeking information of his early life


A recent review report in a child custody case that goes back 50 years provides further proof of the difficulty of balancing privacy and the right to ask for personal information according to a privacy law expert.

Nova Scotia has a general privacy law that applies to all government departments including the The Department of Community Services of Nova Scotia Credit: Sofia Ortega

The information former children in care and adopted people  can get when seeking access to their records  is regulated by the Freedom of Information and Protection of Privacy Act.

Back in 2012 a former foster child whose name is not disclosed due privacy regulations, reached the Department of community Services seeking the names of his foster parents and the reasons why he was returned to his biological parents back in 1965.

During four years there was an informal resolution process between the former foster child, the Department of Community Services and the Office of the Information and Privacy Commissioner of Nova Scotia, trying to determine what information should be disclosed.

The Department of Community services released some information but withheld the names of the person´s foster parents, arguing that disclosing those names would result in “unreasonable invasion of third parties´ personal privacy.”

“There´s a fair amount of latitude in determining whether or not something is an unreasonable invasion of somebody´s privacy.” Says David Fraser, privacy and access of information lawyer at McInnes Cooper law firm.

In this case, the fact that it happened more than 50 years ago helped the Privacy Commissioner to determinate that disclosure of the names of the foster parents “wouldn’t be an invasion of their privacy,” says Fraser.

On April, 2017, the Office of the Information and Privacy Commissioner for Nova Scotia issued a review report of the case making some recommendations to the provincial Department of Community Services including to release the names of the foster parents.

In the following clip David Fraser,  privacy and access of information lawyer explains what happen in this case

The Department of Community Services accepted some of the recommendation but they weren’t able to get back to me before deadline.

If the former foster child is not satisfied with the outcome of the review he can appeal to the Supreme Court of Nova Scotia.

For Mike Slayter, an adoption rights advocate the journey of finding truth is very familiar.

“People do not understand the serious impact on adult adoptees who are denied that very fundamental knowledge of knowing who they are.” He says.

A seismic service company fights for protecting its data from releasing by government


A Calgary-based company that owns the only Canadian ship GSI ADMIRAL to perform seismic data collecting offshore, keeps fighting to protect its data from being confiscated by government without compensation for the last 10 years.

Established 1930, Geophysical Service Inc. could earn millions of dollars by selling exclusive seismic data to oil or energy companies. The 2D and 3D marine seismic data, gravity and magnetic data off the coasts can help locate oil and other energy. However, once this data was opened to the public, no buyer is willing to pay for this seismic information. Geophysical Service Inc. believe that this is because government required their seismic data be submitted for regulatory purpose.

Geophysical Service Inc. used to employ 250 people and operated two ships for prospecting and mapping offshore seismic data on the East Coast, which was used by energy companies for exploration. Now, they only have one small office and a few employees, as they battle to get recognition for their research.

Paul Einarsson, Chief Operating Officer and Chairman of Geophysical Service Inc., says in an open video, “This policy, is really destructive, it is the wrong way to do things, it is wrong direction to this country and it will get the economy worse.”

“In many of the cases Geophysical Service Inc. is attempting to enforce copyright on data they collected,” says Cameron Grant, a lawyer who specializes in Maritime Law, from an emailed interview.

In 2009, Antrim Energy Inc. wanted to buy some data from Geophysical Service Inc. But in light of the cost, either $150,000 or applying a licence with certain terms and conditions, it did not proceed. Then, Antrim Energy Inc. copied some data that was kept by an offshore regulatory board, an independent joint agency of the Governments of Canada and Nova Scotia responsible for the regulation of petroleum activities in the Nova Scotia Offshore Area, including some from Geophysical Service Inc. Though the copies were blurry and as Antrim says, “useless”, Geophysical Service Inc. sued Antrim for infringement of copyright.

“Everyone who pirates a movie or music had likely previously determined he or she would not pay for it,” says J.B. Hanebury, Master of Chambers, in the court decision in 2009.

In 2016, Geophysical Service Inc. alleged that an Italian-flagged seismic ship, OGS EXPLORA, was paid more than $7 million to perform seismic surveys off the shore of Labrador by the Department of Public Works and Government Services Canada. Under section 3 (1) of the Coasting Trade Act, no foreign ship is allowed to serve offshore in Canada without a license. But Geophysical Service Inc.’s claim was dismissed as “unsustainable” by the Supreme Court in Nova Scotia.

According to the rules of the regulatory board, the information supplied by Geophysical Service Inc. is no longer confidential.

An Italian ship was at Halifax waterfront. Photo: Sixian Zuo

“Usually a company like Geophysical Service Inc. who has proprietary data, to which copyright seems not to apply, will seek to vigorously protect the data,” says Grant from an emailed interview.

“They will sell licenses to access the data but will prevent copies from being distributed, ” Grant explains, “they protect their product through contract law and restricting access rather than copyright.”

Geophysical Service Inc. owns approximately 4,800 square kilometers of 3D data in Canadian waters. In Nova Scotia, it owns 33,897.4 KMS of acquired data.

In July 26, Geophysical Service Inc. ’s latest claim for $4 million in damages from Suncor for licence fees is dismissed.

Class action lawsuit against Canadian Armed Forces could be put on hold


Lawyers in a Nova Scotia class action lawsuit against the Canadian military will seek to put a hold on the case while they join a class action filed in Federal Court against the Canadian Armed Forces.

According to Kate Boyle, one of the lawyers in the Nova Scotia case, plaintiffs in four provinces are seeking permission to sue the CAF together for discrimination.

Boyle represents Glynis Rogers, the lead plaintiff in a sexual discrimination lawsuit filed against the Canadian Forces in November 2016. She said it made sense that her firm join with others on the case in Federal Court, which was filed after Rogers’ case. The proposed class action would combine suits from Nova Scotia, Ontario, Quebec, and British Colombia.

The amalgamated class action includes the case of Sherry Heyder, a Thunder Bay, Ont. reservist who first joined the military in 1988. According to her statement of claim, Heyder was discriminated against based on her gender and removed from basic training because she is a woman.

In her original statement of claim, Rogers alleges she experienced harassment and sexual assault by other members of the military while at the Royal Military College (RMC), in Kingston, Ont., and while stationed at Canadian Forces Base (CFB) Borden. In her statement of claim, she alleges that belittling comments were made about her when she won an award at RMC and she was raped by a male CF member at CFB Borden in 2012. The male member was initially court-martialled, but appealed the decision and was later acquitted by a military tribunal.

Boyle said the decision to put a stay on proceedings on the Rogers case in Nova Scotia ensures there won’t be overlap with the case in Federal Court. Combining the cases will also ensure they don’t get bogged down trying to decide which one can proceed and move the issue forward.

She said they have informed the judge in the Rogers case they would be seeking the stay two weeks ago, but it has not been confirmed yet. The case would remain in the court system but not move forward for the duration of the stay.

Jonathan Shapiro, a law professor at Dalhousie University, said it is uncommon for class action lawsuits to amalgamate into larger ones, but in this case it makes sense as it will put increased pressure on the government to settle rather than go to trial. He said this case follows a recent string of lawsuits filed against the CAF having to do with gender issues.

“There’s some smoke because everyone understands the military has traditionally treated women very badly,” he said. “There’s definitely something there, but whether or not the class action will succeed, impossible to say.”

In a statement, a spokesperson for the CAF said the military does not tolerate discrimination or harassment. They said the Department of National Defence is responding to the lawsuit and and the issue of harassment continues to be an ongoing priority.

Shapiro said the military is an environment where abuses are prone to take place because it has traditionally been male-dominated. Despite this, he said it is hard to pin down a specific incident, which is what a class action lawsuit needs to succeed.

Shapiro said it is unlikely that the case will make it all the way to trial. He said the majority of class actions settle out of court, but that process could take up to 10 years. The amount of evidence and moving parts means the cases do not move quickly.

A certification hearing will be held in July 2018 to determine whether the four separate cases can be combined into a single class action.




A controversial Halifax landlord is in trouble, again: this time, facing allegations of assault, which she denies


A controversial Halifax landlord is in trouble, again: this time, facing allegations of assault, which she denies.

Qun Liao, the owner of three different properties in Halifax is facing assault charges. She pleaded not guilty before hearing the charge against her.

The trial is set on  October 24.

This is not the first time she’s been in the news as a landlord. In fact, CBC reported that another one of her properties was under city inspection which was opened last year after a public complaint.

The Tenant’s story

It was around nine pm on 10, April when Gene Ge, an international student tenant, was evicted from her own place, luggage on the street, shaking in the dark.

Ge, who alleges that she was “pushed” and “scratched” and threatened with words, called the police.

She didn’t have a written lease with her landlord, yet she and her roommate had paid two months rent.

Qun Liao also owns two other rental properties close to Dalhousie university which she rents mainly to international students.

“I was so scared and out of breath,” during an interview that was conducted in Chinese, Ge’s mother tougue.

The landlord had expressed that she didn’t want the girl to live there anymore in written text prior to that night. When Ge finally informed Liao that she would be moving out, Liao kicked her out immediately and refused to return her deposit of $500.

When the police asked her whether she wanted to put the landlord behind the bars Ge said no.

“I wasn’t able to think straight at the time and from a Chinese perspective to send someone to prison is such a serious matter.” Ge said she just wanted all this to go away.

Yet it didn’t go away as Ge had wished. The following morning she found her luggage had disappeared again and she said Liao tried to throw a plate at her.

Ge called the police again. Although Ge insisted her luggage was in the landlord’s possession, the police were not entitled to break into Liao’s room and locate her luggage.

Is a written lease a must?

One of the concerns Ge was having is that Liao doesn’t have a written lease with her. She was worried that since the house belongs to Liao and they don’t have a lease, she is entailed to force her out.

However, that is not true according to Billy Sparks, a lawyer at Dalhousie Legal Aid clinic. Sparks have been dealing with tenancy right cases at Dal legal Aid for three years. He said there should be a written lease but if there is not a written lease, if the tenant can show that they have been paying rent they are also legally a tenant.

But Sparks does advise the tenants to have “everything in writing”

“What will happen is that the landlord will say she never told us there was a problem; we never knew that. But if you have copies of emails then they can’t say that.”

Students are vulnerable tenants

Sparks thinks students are vulnerable tenants mainly because they don’t know their rights. But for international students, it’s more than that.

“They just heard the word police and they (got) scared.” Jass Singh the former vice president of Dalhousie International Student Union says. Singh has been helping a number of tenants solve their challenges with living in Halifax.

He thinks a lot of international students try to stay away from any legal activities because they are always worried to get deported if something goes wrong.

“So what they normally do is they end up paying as much as the landlord asks, get out of their apartment and get into another new apartment.”

Qun Liao did not respond the reporter’s inquiry for an interview.

Bank of Montreal did not inadvertently become a tenant, court finds


In a court decision from last year, a trailer park that served as a filming location for The Trailer Park Boys was denied approximately a year’s worth of rent for one of its lots. Woodbine Park Land Lease Community lost out on that money when the court ruled the Bank of Montreal (BMO) did not inadvertently become Woodbine’s tenant.

This is a scene from the first season of The Trailer Park Boys, which was filmed at Woodbine Park Land Lease Community.

BMO had previously been ordered to pay Woodbine more than $3,000 by the Director of Residential Tenancies. BMO appealed that ruling in the Small Claims Court, and adjudicator Eric K. Slone overturned it. He found that BMO was not a residential tenant, so the verdict from the Residential Tenancies Board did not apply.

“The decision I wrote, it’s a 14 page decision,” said Slone, whose average decision is only five to eight pages. “I am a frequent writer of decisions, but that was a little more involved and I put in a little more time because I did find it to be an interesting legal question.”

That “interesting legal question” is whether a bank can even become a residential tenant. Tenancies for corporations such as BMO are typically commercial, not residential.

Jamie Baxter, a professor at Dalhousie’s Schulich School of Law who specializes in land use and property law, also finds the issue fascinating.

“The adjudicator in this case is trying to struggle with… figuring out what the legislators were trying to tell us,” said Baxter.

The Facts

On Dec. 12, 2011, a man named Gordon MacDonald rented a lot from Woodbine to keep his mobile home there. He took out a loan from BMO around the same time – and used his mobile home as collateral.

A screenshot of Google Maps Streetview, taken in July of 2012, of Mr. MacDonald’s home at 1615 Frankie Drive in Woodbine Park Land Lease Community

In early 2015 MacDonald both abandoned his mobile home at Woodbine and defaulted on his loan to BMO, meaning the bank took possession of the home. After 45 days Woodbine would have been permitted to seize the trailer, so on Mar. 1, 2015, BMO paid off MacDonald’s back rent to Woodbine to keep control of the home. BMO continued paying rent for three more months, at which point it decided to stop paying, presumably because the cost wasn’t worth it.

Even though BMO stopped paying, Woodbine believed that the bank had become responsible for MacDonald’s rent payments. That’s when BMO was ordered to pay the money by the Director of Residential Tenancies, and where Slone’s ruling comes in.

The Ruling

Through a close reading of the language in the Residential Tenancies Act, Slone found that banks could not be residential tenants except in very rare circumstances. Therefore, the act did not apply in this situation, and the ruling from the board was void.

Slone’s judgement did not rule out the possibility of BMO paying Woodbine some or all of the money, only that BMO could not be compelled to pay under the Residential Tenancies Act; Woodbine would need to take its dispute with BMO somewhere else if it wished to continue pursuing the money.

A screenshot of the most recent Google Earth photo of 1615 Frankie Drive, from July 17, 2016, shows MacDonald’s trailer was still in place over a month after Slone’s ruling

Baxter said that Slone’s ruling was sufficient, but there were other ways Slone could have gone about the verdict.

“Look at the broader purposes of the act,” said Baxter. “What the court doesn’t say but could say here is ‘You shouldn’t be clogging up the works of what is meant to be a regime of access and justice for generally disempowered individuals,’” said Baxter.

Although Slone didn’t use that kind of language in his decision, he does seem to agree with Baxter.

“I didn’t think [the Residential Tenancies Board] was really the place for where corporate entities should be resolving their disputes. I think it really does serve as a place for individuals, and not corporations, to be litigating their issues,” said Slone.

Number of plaintiffs grows B.C. Sixties Scoop class action


The number of people who wish to join a class action lawsuit involving thousands of children who were placed in foster care in B.C. is so high that one of Canada’s leading class action law firms can’t answer them all.

“We have to transfer people to a hotline that gives the most recent updates and explains the qualifications and steps that have to be taken to apply”, says a receptionist at Klein Lawyers, a personal injury and class action law firm in Vancouver. She said she did not know the exact number of people enrolled in the class action at the moment.

The Government of Canada is trying to reach a national settlement with victims of the Sixties Scoop, which means all class action lawsuits are currently under hold while discussions for an agreement are undergoing.

The Sixties Scoop class action alleges that the Government of Canada failed “to take steps to prevent Indian children from losing their Aboriginal identity and the opportunity to exercise their Aboriginal and treaty rights, causing ongoing harm to Indian children in care.”

Thousands of Indigenous people across Canada continue to join the different Sixties Scoop lawsuits in the country, seeking justice for the actions done by the Government of Canada.

During the Sixties Scoop, First Nations, Métis and Inuit children across Canada were taken away from their homes by child-welfare agencies between 1960s and 1980s. The majority of children were placed in non-Indigenous homes by agencies without taking steps to preserve their culture and identity, according to the B.C. class action lawsuit. Some children were sent to live in other provinces, other countries and other continents.

“The Government of Canada went beyond treating us wrong and should have never done that”, says lead plaintiff in B.C. Sixties Scoop class action, Catriona Charlie. Credit: Radio-Canada

In February 2017 an Ontario Superior Court judge ruled in favour of Sixties Scoop survivors, stating that the Government of Canada breached its “duty of care” to the children, and ignored the damaging effects of the Ontario-led program.

Summary Court (Text)

Since the February decision, “18 new claims started across Canada, but Ontario is still the only claim that has been certified and successful in establishing liability”, says Jessica Braude, one of the lawyers in the Ontario class action that involved 16,000 people. 

The Minister of Indigenous and Northern Affairs announced in February that negotiation, rather than litigation was the government’s preferred route to settle differences, and right historical wrongs.

According to the Truth and Reconciliation Commission of Canada, the legacy of the Sixties Scoop lives to this day. “Today, the effects of the residential school experience and the Sixties Scoop have adversely affected parenting skills and the success of many Aboriginal families”, it reads.

Klein law firm says that reaching settlement can take between six to 12 months. Both lawyers in the B.C. class action lawsuit were contacted at multiple times but have ignored many interview requests.

B.C lawsuit
Catriona Charlie, 49, is the lead plaintiff in a class action lawsuit against the Government of Canada for the practice of removing large numbers of Indigenous children from their families and placing them in the care of non-Indigenous adoptive homes.

“The Government of Canada went beyond treating us wrong and should have never done that, she says. It’s about time people in Canada and across the world start to know my story and hopefully encourage other natives to start speaking about their stories.”

Adopted by a non-Indigenous Scottish family at birth, Charlie was deprived of her Aboriginal rights, such as customs, traditions and culture, leaving her with unanswered questions.

She said she missed out on her Indigenous identity while growing up. To this day, she says her adoptive mother rejected her because she was of different race and culture.

“Unfortunately, my dad’s ex would rather sweep me under the carpet and forget she ever adopted me.”

Her adoptive parents separated when she was 10 years old. Charlie moved with her father and four non-Indigenous sisters to Edinburgh, Scotland, shortly after the breakup.

“I vaguely remember my dad telling me to be proud of who I am”, she says. “On my dad’s side, all family members were really nice, accepted me and didn’t treat me any different.”

Despite the love of her adoptive family in Scotland, Charlie was completely isolated from her Nagmis community, culture and heritage, a feeling she says many Indigenous share.

“We need justice for what has been done to us, and we need to be assured this won’t happen again.”