ARCTIC OBITER

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20 | <strong>ARCTIC</strong> <strong>OBITER</strong> the title of the matrimonial home. The parties had a pre-nuptual agreement, and the respondent had registered a caveat against title to the home as a beneficial owner pursuant to that a g r e e m e n t . T h e r e s p o n d e n t ’ s entitlement under the agreement was to one-half the value of the property and not the property itself. The property was registered in the name of the applicant, and control over the disposition of the property was left e x c l usively t o t h e a p p l i c a n t . Application allowed, with an order that the proceeds of sale be paid into court pending determination of whether the respondent is entitled to any of the proceeds. INSURANCE LAW – DUTY TO DEFEND – WAIVER AND ESTOPPEL Personal Insurance Company v Richinger 2012 NWTSC 19 (CanLII) | March 2, 2012 Presiding: Justice V.A. Schuler For the Applicant: G. Holan For the Respondent (Richinger): B. Comba For the Respondent (Osmond): P. Sacha, For the Respondent (Co-operators): D. Shepherd Application by the insurer for a declaration that it has no obligation to defend or indemnify the insured’s estate in respect of an action related to a motor vehicle collision. There was evidence the collission was deliberately caused by the insured, to commit suicide and kill his two young daughters. The respondents argued that because the applicant has already undertaken defence of the actions it has waived its right to deny coverage or is estopped from asserting that right. None of the parties disputed that s. 35 of the Insurance Act applies, subject to waiver and estoppel. Application dismissed - An insurer should be presumed to know both its policy and the laws that govern its business. The applicant had sufficient knowledge of the facts that made s. 35 applicable to this case before it undertook the defence of the estate. It knew or must be deemed to know its rights when it made that election. Had the applicant wanted to reserve itself the right to deny indemnity and defence, it should have taken the steps normally taken in its industry. The applicant did not obtain or attempt to obtain a non-waiver agreement, nor did it provide a reservation of rights letter. In pursuing the defence of the claims, it must be taken to have waived its rights under s 35 of the Act. Unlike waiver, estoppel requires the insured establish prejudice. Prejudice may be inferred from circumstances, such as the inability to control the defence of a claim. Prejudice should be inferred in this case as the issue was raised three years after the action commenced and after examinations for discovery had been completed and one claim partially settled. therefore also applies. FAMILY LAW – CHILD SUPPORT – SETTING ASIDE DOMESTIC AGREEMENT Benwell v Villebrun 2012 NWTSC 20 (CanLII) | March 2, 2012 Presiding: Justice K. Shaner for the Applicant: J. Walsh For the Respondent: self-represented Estoppel Application by the father to have the child support provisions of a domestic agreement set aside and for an order directing child support in accordance with the Child Support Guidelines. In 2007 the respondent initiated proceedings seeking child support in accordance with the Guidelines. That application was adjourned when the parties entered into an agreement including child support provisions. The applicant was not represented by counsel at the time of that agreement. Application allowed - The law recognizes it is important to respect the agreements reached by parents and spouses upon the dissolution of the family unit. To do so encourages settlement outside of court. These agreements will not be set aside without good reason. However the law recognizes that circumstances may change and that sometimes people enter into agreements that are unreasonable or unfair without realizing it at the time. The Act therefore permits the Court to set aside provisions of an agreement in certain circumstances. Under s. 74(4)(b) of the Act, a provision can be set aside where a party did not understand the nature or consequences of the provision. While the applicant understood the nature of the provision it was not clear he understood the consequence that he was paying almost twice what was required by law. Nothing on the face of the agreement indicated the amount of support proposed was nearly double what was required. It was therefore appropriate to set aside the provision in the agreeement. An order for support was made and arrears adjusted in accordance with the Guidelines.
MARCH/APRIL 2012 | 21 CRIMINAL LAW – SENTENCING – BEING UNLAWFULLY IN A DWELLING HOUSE – BREAK & ENTER – BREACH OF UNDERTAKING R v Wedzin 2012 NWTSC 22 | March 12, 2012 Presiding: Justice J.E. Richard For the Crown: M. Johnson For the Accused: J. Bran The offender entered the home of his common-law’s mother through a window to an upstairs bedroom and got into bed with a 12 year old girl. He was intoxicated at the time. He was arrested and released on an undertaking with conditions requiring he not attend at that residence. The following month, the common-law’s mother awoke at 2:30 a.m. to find the offender beside the bed and holding the blanket off her leg. He was intoxicated at the time of the second incident as well. The 25 year old offender had a lengthy criminal record. At the time of these offences, he was on probation as a result of a previous sexual assault conviction. Offender sentenced to 12 months’ imprisonment – The guilty plea and acknowledgement of the trauma caused to the victims acts in mitigation. One of the main purposes of the sentencing process is to provide for a peaceful and safe community, and to achieve that purpose, it is sometimes necessary to separate an offender from society. CRIMINAL LAW – SUMMARY CONVICTION APPEALS – UNREASONABLE CONVICTION – DANGEROUS DRIVING R v Wallbridge 2012 NWTSC 23 (CanLII) | March 27, 2012 Presiding: Justice J.E. Richard For the Appellant: A. Pringle, QC For the Respondent: M. Lecorre In a case of “road rage”, a series of events led to the victim getting out of his vehicle and approaching the appellant’s vehicle. There was a verbal confrontation. As the victim then began to walk back to his vehicle, the appellant drove forward and bumped the victim twice with his vehicle. The victim was not injured. The appellant was convicted of dangerous driving. Appeal from conviction allowed and acquittal entered – The trial judge erroneously concluded that any manner of driving a vehicle to intimidate or scare, or to intentionally nudge or bump a person, is dangerous operation of a motor vehicle. The evidence was that the appellant was driving slowly and had his vehicle under control, and there was little traffic on the street. This was not considered by the trial judge. Section 249 of the Criminal Code requires regard to all the circumstances. The trial judge focused on the intentional hitting of the victim rather than on the manner of driving. unreasonable. The verdict was CRIMINAL LAW – SENTENCING – AGGRAVATED ASSAULT R v Klondike 2012 NWTSC 28 (CanLII) | March 30, 2012 Presiding: Justice K. Shaner For the Crown: B. MacPherson, W. Miller For the Accused: S. Fix Sentencing for aggravated assault following trial by jury. The offender had been drinking with his commonlaw spouse and the victim. The common -law spouse took the victim with her into a bedroom and locked the offender out of the room. The offender then entered the room and stabbed the victim in the back with a steak knife. The wound was serious, causing a collapsed lung, and the victim spent a number of days in hospital. Offender sentenced to 18 months’ imprisonment plus two years’ probation – The fact that the attack was completely unexpected by the victim, and the extent of the injury were aggravating circumstances. This is not a crime for which sanctions other than imprisonment are realistically available. LANDLORD AND TENANT LAW – RESIDENTIAL TENANCIES ACT – EXTENSION OF TIME TO APPEAL Vander Ploeg v Stewart 2012 NWTSC 30 (CanLII) | April 11, 2012 Presiding: Justice K. Shaner For the Applicant/Appellant: S.R. McCardy For the Respondent: self-represented The respondent landlord filed applications with the Rental Officer claiming damages to the rental property and loss of rent. The Rental Officer heard the matters and issued decisions in favour of the landlord. The Act provides that an appeal may be brought within 14 days of the day the party is served with the order and decision. The appellant did not file his appeal until 26 days after the appeal period expired. Application to extend time denied and appeal dismissed – The evidence does not support the conclusion the appellant had a bona fide intention to appeal, nor does it provide an explanation for the delay. There is not an arguable case that the Rental Officer’s decisions should be disturbed.
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