Tuesday, December 1, 2015

Drinking and Christmas

It's nearly Christmas and it's a time for parties and happy times with friends and family.

Unfortunately it's also a time when people tend to overindulge and drink too much. And when people drink too much they sometimes do very foolish things.

Having parties with drinking raises some legal issues – all of which are easy to deal with if you plan ahead.

If you are drinking yourself you have a responsibility to make sure you do not do anything stupid.

If you know drinking makes you mean and violent you shouldn't drink at parties at all. If you must drink stay home by yourself. Getting charged with assault or worse hurting someone you love is not a good way to spend the holidays.

Beyond that, if you can otherwise handle your liquor you have to think about drinking and driving.

The obvious point being if you are going to be drinking you should not drive.

Don't say "I'll only have one" and then decide you are fit to drive.

The alcohol limit for operating a motor vehicle is quite low and even a single drink can take you to the legal limit depending on your weight and size. Regardless winter driving is often more challenging that driving in the summer and you need all your wits about you.

One point that people sometimes forget is that driving any motor vehicle is not allowed if you are intoxicated. That means more than just cars; it includes snow machines, motorcycles, boats and pretty well any powered means of transport. I once had an impaired case from a man who was very drunk and driving a riding lawnmower.

Bottom line, plan ahead and get a ride, grab a taxi or stay the night but don't drink and drive.

What if you are already at home and having a party – you are not going to drink and drive – do you have any legal responsibility? That short answer is you do – you have to take reasonable steps to make sure your guests get home safe and don't hurt anyone else because they are drunk.

This means that you must take reasonable steps to stop people who have been drinking from driving. Offer to let them sleep on the chesterfield. Give them cab fare home. If you are quite sober drive them home yourself. If necessary take away their car keys. You will be helping your friends avoid a criminal charge but more important making sure they don't get themselves or someone else killed in an accident.

Beyond stopping people from driving you should also make sure they will get home safe even if they are not driving. Someone who is intoxicated might wander out into the road and get hit by a car. Or they might stumble and fall and freeze to death – this is Canada and it is the winter. You need to make sure they will get home in one piece or let them spend the night.

All these things seem to be less that holiday spirited – but in fact they are the height of Christmas spirit. All the law asks is that you look after yourself and be a good host and protect your guests. It's just common sense.

Monday, November 30, 2015

Need a break!!!

Brevity of reasons not problematic if record supports decision

Roffey v. Hunter Corporation, 2015 ONCA 824:

 [8] The brevity of the motion judge’s reasons does not cause us any concern. A failure to specifically refer to the factors to be considered in striking a pleading may be excused if the record supports the decision: Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487. Here, the order to strike the defence was an obvious result, given all the circumstances. The appellants’ answers to undertakings were long overdue and breached multiple court orders.

Friday, November 27, 2015

Overbroad Legislation

R. v. Appulonappa, 2015 SCC 59:

[26]                          A law is said to violate our basic values by being overbroad when "the law goes too far and interferes with some conduct that bears no connection to its objective":  Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101.  As stated in Bedford, "[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others":  at para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.

[27]                          The first step in the overbreadth inquiry is to determine the object of the impugned law.  The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object.  To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.

Of the Law Societies of Upper Canada and Nunavut 

Damages for injury to property to be based on restoration cost

Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819:

[61]       At common law, the traditional view was that damages for any type of injury to property should be measured by the diminution in value caused by the injury: see Hosking v. Phillips (1848), 154 E.R. 801, 3 Exch. Rep. 168 (Eng. Ex. Ct.). More recently, courts have awarded damages based on restoration costs, even if those costs exceed the amount of the decrease in property value: see Katherine M. van Rensburg, "Deconstructing Tridan: A Litigator's Perspective" (2004) 15 J. Envtl. L. & Prac. 85, at p. 89; see e.g. Jens v. Mannix Co. (1978), 89 D.L.R. (3d) 351 (B.C.S.C.); Horne v. New Glasgow, [1954] 1 D.L.R. 832 (N.S.S.C.). 

[62]       The restoration approach is superior, from an environmental perspective, to the diminution in value approach. Since the cost of restoration may exceed the value of the property, an award based on diminution of value may not adequately fund clean-up: Bruce Pardy, Environmental Law: A Guide to Concepts (Markham, ON: Butterworths, 1996), at p. 223.

[63]       In its Report on Damages for Environmental Harm, the Ontario Law Reform Commission canvassed a number of methods for calculating damages. Ultimately, it recommended the adoption of methodologies, like the restoration approach, that "best ensure that the environment is returned to its pre-contaminated condition": Ontario Law Reform Commission, Report on Damages for Environmental Harm (Toronto: Ontario Law Reform Commission, 1990), at p. 56. The Commission concluded, at p. 55, that "the ultimate goal of the courts should be to ensure that the environment is put in the same position after the mishap as it was before the injury."

[64]       Two relatively recent cases reflect the trend toward awarding remediation damages. In Tridan Developments Ltd. v. Shell Canada Products Ltd. (2000), 35 R.P.R. (3d) 141 (S.C.), aff'd (2002), 57 O.R. (3d) 503 (C.A.), leave to appeal refused, 177 O.A.C. 399 (note), a property neighbouring a gas station was contaminated with gasoline after a leak in a fuel line. Since the defendant polluter admitted liability, the only issue at trial was the assessment of damages. The plaintiff sought to recover the cost of returning its property to "pristine" condition. It also claimed "stigma" damages measured as the diminution in the value of its property. The defendant argued that the plaintiff had suffered no damages due to the spill, or that alternatively, its damages should be limited to the cost of remediating the property to the MOE's minimum standards. The trial judge awarded damages as requested by the plaintiff. On appeal, this court overturned the stigma damage award but upheld the trial judge's decision to order damages for the cost of future remediation.

[65]       The respondents argue Tridan does not apply because the defendant in that case admitted it was liable. There is no merit in this argument. The damages analysis in Tridan is relevant regardless of whether liability was admitted or found by the court.

[66]       The second case is Canadian Tire Real Estate Ltd. v. Huron Concrete Supply Ltd., 2014 ONSC 288, 88 C.E.L.R. (3d) 93. It also involved PHC contamination by a neighbour. Justice Leitch ordered the defendant to pay $3.6 million, which was the estimated cost for future remediation, as damages for nuisance, negligence, trespass and strict liability. She found that this award would place the plaintiff in the position it was in prior to the tortious conduct.

[67]       Neither Tridan nor Canadian Tire involved a claim under s. 99(2) of the EPA. There is no reported case where a court has awarded damages for the cost of future remediation under this section. Nonetheless, in my view, awarding damages under s. 99(2) based on restoration cost rather than diminution in property value is more consistent with the objectives of environmental protection and remediation that underlie this provision.

[68]       This approach to damages reflects the "polluter pays" principle, which provides that whenever possible, the party that causes pollution should pay for remediation, compensation, and prevention: see Pardy, at p. 187. As the Supreme Court has noted, the polluter pays principle "has become firmly entrenched in environmental law in Canada": Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624, at para. 23. In imposing strict liability on polluters by focusing on only the issues of who owns and controls the pollutant, Part X of the EPA, which includes s. 99(2), is effectively a statutory codification of this principle.

Of the Law Societies of Upper Canada and Nunavut