Month: November 2008 Page 2 of 3

Torts, Tasers and Causation

On November 13, 2008

Cases Considered: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458 Snell v. Farrell, [1990] 2 S.C.R. 311.

PDF Version: Torts, Tasers and Causation

The recent deaths that occurred in Calgary and Edmonton following the use of a conducted energy weapon (generically referred to here as a “taser”) have once again raised the issue of the appropriate use of tasers in policing. In fact, there have been at least 20 deaths in Canada following the use of tasers. The British Columbia Civil Liberties Association and Amnesty International Canada have called for a moratorium on their use. The RCMP Public Complaints Commissioner called for a moratorium on their use if the RCMP cannot properly instruct its members to appropriately deploy the taser in an operational setting. It is in this context that the Alberta Solicitor General, Fred Lindsay, and the Premier of Alberta, Ed Stelmach, downplayed the possibility that the use of a taser can cause death. This post argues that, notwithstanding the opinions of these elected officials regarding causation, it is possible for police officers to be found liable in negligence as a result of using a taser.

The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities

By Brett Code, Q.C.

On November 13, 2008

In Civil Procedure, Supreme Court of Canada

Cases Considered: F.H. v. McDougall, 2008 SCC 53

PDF Version: The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities

* Brett Code acknowledges the able assistance of Shankar Kamath, a student-at-law at Bennett Jones LLP.

In F.H. v. McDougall, released October 2, 2008, the Supreme Court of Canada has confirmed that there is only one standard of proof in a civil case: proof on a balance of probabilities. A mixed series of cases over the last 50 years had caused uncertainty as to the applicable standard of proof when trying allegations of morally blameworthy conduct, for example, of fraud, of sexual assault in the civil context or of dishonesty in the context of professional conduct by lawyers (see for example Bater v. Bater, [1950] 2 All E.R. 458 at 459 (C.A., Lord Denning); H.F. v. Canada (Attorney General), [2002] B.C.J. No. 436, 2002 BCSC 325 at para 154; R. v. Oakes, [1986] 1 S.C.R. 103 at 138; Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164 at 169-171). What had evolved was an apparently sliding scale, sometimes requiring plaintiffs to meet a higher standard of proof, a standard often said to be commensurate with the occasion. That uncertainty is now resolved, perhaps finally.

A case of Disablement and Deference under the Workers’ Compensation Act

By Shaun Fluker

On November 10, 2008

In Administrative Law

Cases Considered: Schneider v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2008 ABQB 662.

PDF Version: A case of Disablement and Deference under the Workers’ Compensation Act

Maurice Schneider was exposed to asbestos at work in the late 1960s and subsequently developed asbestosis, a drastic reduction in lung capacity whose primary symptom is severe shortness of breath. The disease has a long incubation period before symptoms become apparent (see http://en.wikipedia.org/wiki/Asbestosis). On March 10, 2003 Schneider underwent studies that confirmed he suffers from a mild pulmonary impairment (asbestosis), and in September 2004 the Alberta Workers’ Compensation Board accepted that Schneider’s asbestosis was the result of workplace exposure. Schneider was accordingly entitled to benefits under the Workers Compensation Act, R.S.A. 2000, c. W-15.

Comments on the Interim Report of the Alberta Carbon Capture and Storage Development Council, Accelerating Carbon Capture and Storage in Alberta

By Nigel Bankes

On November 7, 2008

In Carbon Capture and Storage, Climate Change

By: Nigel Bankes & Jenette Poschwatta

PDF Version: Comments on the Interim Report of the Alberta Carbon Capture and Storage Development Council, Accelerating Carbon Capture and Storage in Alberta

Report Commented On: Accelerating Carbon Capture and Storage in Alberta, dated September 30, 2008, released October 22, 2008; now Final Report released March 2009

In these comments we focus on three aspects of the interim report: (1) the treatment of the ownership of pore space, (2) the design of a provincial tenure system for geological sequestration, and (3) the treatment of liability issues. In each case we provide our understanding of what it is that the Council proposes and then we provide our comments. While we welcome the report and agree with the need to accelerate the adoption of Carbon Capture and Storage (CCS) in Alberta, we think that these sections of the report require further clarification before the Council issues its final report. In particular, we think that the report needs to do a much better job of, identifying the problems and providing reasoned arguments for the solutions that it advances.

Use of a corporate name or registered trade name does not prevent liability for passing off

By Greg Hagen

On November 6, 2008

In Intellectual Property

Cases Considered: Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618

PDF Version: Use of a corporate name or registered trade name does not prevent liability for passing off

Charisma Snyder registered a trade name “Divine Doggies Grooming & Boutique” on July 27, 2007 and “Divine Doggies Spa & Boutique” on August 14, 2007. A later name search did not reveal “Divine Pet Spa”, either as part of a corporate name or a trade-mark, so she incorporated Divine Doggies Spa & Boutique Inc. on September 8, 2007. It commenced dog grooming services in June, 2008. As early as 2006, however, Divine Pet Spa Ltd. had engaged in significant marketing of its cat and dog grooming business in order to create goodwill in the Calgary marketplace. In Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618, Madam Justice C.L. Kenny of the Alberta Court of Queen’s Bench granted Divine Pet Spa Ltd. an interlocutory injunction against Divine Doggies Spa & Boutique Inc., restraining it from using and advertising the name “Divine Doggies Spa”. This decision is a reminder that, by using its corporate name or registered trade name, a business can be liable in tort law for passing off its products or services as those of another business.