Lexpert Magazine

LEXPERT MAGAZINE | JANUARY/FEBRUARY 2017 43 resented the Canadian Labour Congress. "What it did, however, was set the world back to the normal place in which most people thought it was." e upshot is that employees dismissed without just cause may complain under sec- tion 240 of the Canadian Labour Code, and seek reinstatement, with or without back pay or damages, or compensation with pay in lieu of reinstatement plus damages. 9 Eastern Regional Integrated Health Authority v. Association of Registered Nurses (NLCA) Like Newfoundland, many Canadian jurisdictions have laws that give regulatory bodies and professional associations statu- tory powers to demand evidence when con- ducting investigations. But most of them also share the prohibition that Newfound- land's Evidence Act features regarding the re- lease of quality-assurance information com- piled pursuant to an adverse incident review. "ese reviews oen involve peer re- views by doctors and nurses along with the sharing of other sensitive informa- tion — all with the goal of improving the delivery of health services in the future," writes Trent Skanes of McInnes Cooper in St. John's, who represented the Eastern Regional Integrated Health Authority, in a firm bulletin. "But there's been uncertainty around healthcare authorities protecting this information and sharing it." As the Newfoundland Court of Ap- peal saw it, the Health Authority's powers under the Public Inquiries Act overrode the prohibition in the Evidence Act. "e decision signals an underlying policy deci- sion favouring disclosure of information relating to adverse incidents in the right circumstances over shielding such infor- mation, and sheds some light on courts' preferred approach," Skanes writes. Skanes recommends health-care stake- holders throughout the country, where the topic remains controversial, evaluate the decision carefully. "Although the decision is primarily grounded in the specific statu- tory provisions in the Newfoundland & Labrador Public Inquiries Act and Evidence Act, it may impact a number of provinces and territories with similar laws granting similar investigatory powers, and similar prohibitions or privileges designed to pro- tect quality assurance information." 10 Keough v. Sandfire Capital (NBCA) New Brunswick's mortgagors and mort- gagees have long been frustrated by con- flicting jurisprudence over lender's rights to recover post-mortgage sale expenses. "Ke- ough provides welcome clarity not only on the subject of whether a lender is entitled to recover post-mortgage sale expenses in a deficiency action but also on how courts should calculate lenders' damages in such cases," says Romain Viel of McInnes Coo- per in Fredericton. Viel says that four principles emerge from the decision: (1) a lender may be subject to a claim for damages if it exercises its power of sale improperly, but the duty doesn't apply when lenders exercise their right to buy-in or resell, in which cases they benefit from the unrestricted immunity given by the statutory regime; (2) purchasing a property for a nominal amount at a mortgage sale is an improper exercise of the power of sale; (3) if the lender acts improperly, the defi- ciency will be the unpaid mortgage balance less the property's market value at the date of the sale; (4) a lender who purchases a property at a mortgage sale owns the prop- erty for its own benefit and use and can sell it as it sees fit. ROMAIN VIEL MCINNES COOPER The decision will definitely affect mortgage sale strategies and resale processes. But it's also the first time that mortgagors have potential claims against mortgagees who exercise powers of sale." " "e decision will definitely affect mort- gage sale strategies and resale processes," Viel says. "But it's also the first time that mortgagors have potential claims against mortgagees who exercise powers of sale." Julius Melnitzer is a freelance legal-affairs writer in Toronto. | TOP DECISIONS |

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