Common use of HELD Clause in Contracts

HELD. Appeal allowed in part. There was uncontradicted evidence that some level of fishing on the creek could have been permitted and conservation goals still achieved, which suggested the variation order might have been overboard. The government did have a clear duty to consult on issues affecting Aboriginal rights. However, this was a collective duty owed to the Band, not a duty owed specifically to the appellant. The duty was outlined in Mikisew Cree First Nation v. Canada, which the trial judge did misapply by finding that Xxxxxxx only applied to taking of land. However, this error did not have an effect on the end result. While the government may not have met its duty to consult before passing the variation, the first step of analysis under X. x. Xxxxxxx was whether or not there had been a prima facie infringement of the appellant's Treaty rights. Since the appellant did not have a personal right to consultation, if any of his rights were infringed upon, it was his right to fish for food. Therefore, a breach of the duty to consult could not go to establishing a prima facie infringement, though it would be relevant in the second stage of analysis on the justification for the infringement. The trial judge did commit a reversible error in finding that the appellant could have easily fished elsewhere. The creek was on reserve lands with readily available pickerel, the appellant's preferred catch, and was within five minutes of his home. The only other fishing location within half an hour was a lake. However, to reach readily available fish on the lake, one required a boat, which the appellant did not have. The appellant did not have easily accessible fishing for food at another location, so he had established prima facie infringement. Since the trial judge did not find infringement, he never considered the issue of justification. The conviction was set aside and the parties were directed to re-attend to argue justification. Statutes, Regulations and Rules Cited: Alberta Fishing Regulations, 1998, SOR/98-246, Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, Constitution Act, 1930, s. 35(1) Fisheries Act, R.S.C. 1985, c. F-14, Natural Resources Transfer Agreement, S.A. 1930, c. 21, s. 12 Counsel: Xxxxx Xxxxx, Q.C., for the Respondent. Xxxxxxx X.X. Xxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxx and Company, for the Appellant. [Editor's note: A corrigendum was released by the Court on August 19, 2010; the corrections have been made to the text and the corrigendum is appended to this document.] Reasons for Judgment X.X. XXXXXXXX X.:-- Background 1 Xx. Xxxxxxx appeals his conviction on January 11, 2006 for unlawfully fishing on closed waters contrary to the Alberta Fisheries Regulations, 1998 (SOR 98-246). He was fined $200.00. 2 Conviction followed a lengthy trial, written argument and oral argument. Xxxxxxxx P.C.J. delivered written reasons for the conviction. Provincial Court Decision 3 The trial focused on the rights of Treaty 8 Indians to fish for food. It also focused on the rights of Government to regulate hunting and fishing rights as part of a bona fide scheme of management and conservation of the game stocks.

HELD. Appeal allowed in partNothing wrong with employee contacting former clients after she had left employment. There However judge did order former employee to give back her ‘address book’ to XX Xxxxxx. Xxxxx said that if the ‘address book’ was uncontradicted evidence that some level of fishing on kept by the creek could have been permitted and conservation goals still achievedformer employee, which suggested the variation order might have been overboardrent roll would not be protected. The government did have rent roll had been compiled over many years by employees working for LJ. It was effectively a clear duty to consult on issues affecting Aboriginal rightscustomer list. However, former employee was allowed to keep her ‘diary’ even though it contained some information relating to previous clients. this was because the ‘diary’ was considered to be part and parcel of the employee’s personal knowledge and know-how or personal ‘stock-in-trade’. The common law will not restrict a collective duty owed former employee in using their own skills to earn money after employment • Even where an employer can show some confidential material has been taken, this does not guarantee that a remedy will be forthcoming from a court: o No injunctions are granted unless the employer can specify the precise material that is to be covered by the order: Secton Pty Ltd v Delawood (1991) • To claim damage in respect of breach, the employer must be able to show: o that any loss of business it has suffered to a rival firm that now includes the ex- employee is properly attributable to the Bandinformation that was misused, not a duty owed specifically rather than the personal expertise of the ex-employee or other in the rival business: Universal Thermonsensors Ltd v Hibben 1992 • Ansell Rubber v Allied Rubber [1967] VR 37 o Ansell used machines to the appellant. The duty was outlined in Mikisew Cree First Nation v. Canada, which the trial judge did misapply by finding that Xxxxxxx only applied to taking of land. However, this error did not have an effect on the end result. While the government may not have met its duty to consult before passing the variationdevelop rubber gloves, the first step design of analysis under X. x. Xxxxxxx those machines was whether or not there a secret and employees were obliged to keep people away from the factory. Xxxxxxxx was an engineer and established a competing business using a machine to make rubber based on a machine he had been a prima facie infringement of the appellant's Treaty rightsused and was experienced using whilst working for Xxxxxx. Since the appellant did not have a personal right Was assisted by another Xxxxxx employee who later resigned. Found to consultation, if any of his rights were infringed upon, it was his right to fish for food. Therefore, a be in breach of the duty of confidence, and the liability also attached to consult the competing company they had set up. They used tightly held, secret information that was being guarded. One of the orders the court made was that they had to dismantle the machine they had created and bring it to Xxxxxx so they were satisfied the machine never existed. ▪ Compare this to general know how- the kind of information you could not go pick up from an employer and a competitor. • Del Xxxxxx and Ors v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 o In Del Xxxxxx the question was the source of a building stone which accounted for 30% of A’s business. D was terminated and he and another collegue set up another business, in doing so they travelled to establishing Italy to source the stone. They were able to do so and set up a prima facie infringement, though it would be relevant in rival company to import the second stage of analysis on the justification for the infringementstone. The trial judge question is did commit D breach the equitable duty of confidence by going to Italy and finding the source of the stone. The court held it was not a reversible error in finding breach was not that the appellant type of information and was general know how. Anyone could have easily fished elsewheregone to ital and took the time to find the stone could have found it with general know how. The creek was on reserve lands with readily available pickerel‘Whisleblowers’ disclosure At common law, the appellant's preferred catchit is a breach of confidentiality and loyalty for an employee to disclose information about her employer. Corporations Act 2001 (Cth): • s 183 states that they must not improperly use any information acquired in their capacity as an employee (or as a director or officer) to gain an advantage for themselves or someone else, and was within five minutes of his home. The only other fishing location within half an hour was a lake. However, or to reach readily available fish on the lake, one required a boat, which the appellant did not have. The appellant did not have easily accessible fishing for food at another location, so he had established prima facie infringement. Since the trial judge did not find infringement, he never considered the issue of justification. The conviction was set aside and the parties were directed to re-attend to argue justification. Statutes, Regulations and Rules Cited: Alberta Fishing Regulations, 1998, SOR/98-246, Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, Constitution Act, 1930, s. 35(1) Fisheries Act, R.S.C. 1985, c. F-14, Natural Resources Transfer Agreement, S.A. 1930, c. 21, s. 12 Counsel: Xxxxx Xxxxx, Q.C., for the Respondent. Xxxxxxx X.X. Xxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxx and Company, for the Appellant. [Editor's note: A corrigendum was released by the Court on August 19, 2010; the corrections have been made cause detriment to the text corporation • s 184 imposes a criminal penalty for dishonest use of information or position Intellectual Property In The Employment Relationship/Inventions • Creations, inventions or product improvements by employees that are developed within the course and scope of employment are the corrigendum property of the employer, unless there is appended express agreement to the contrary: Xxxxxxx x Xxxxxx Partners Group Ltd 1989 • Independent contractors are generally not subject to this document.] Reasons for Judgment X.X. XXXXXXXX X.:-- Background 1 Xx. Xxxxxxx appeals his conviction on January 11, 2006 for unlawfully fishing on closed waters contrary to the Alberta Fisheries Regulations, 1998 (SOR 98-246). He was fined $200.00. 2 Conviction followed unless they expressly agree otherwise in a lengthy trial, written argument and oral argument. Xxxxxxxx P.C.J. delivered written reasons for the conviction. Provincial Court Decision 3 The trial focused on the rights of Treaty 8 Indians to fish for food. It also focused on the rights of Government to regulate hunting and fishing rights as part of a bona fide scheme of management and conservation of the game stocks.contract

HELD. Appeal allowed Accused convicted. The evidence was clear that the accused was in part. There was uncontradicted evidence that some level possession of fishing on the creek could have been permitted and conservation goals still achieveda loaded firearm, which suggested he concealed in his pocket. Walking around the variation order might have been overboardcommunity with a loaded firearm in one's pocket was not only a careless use of a firearm, but was dangerous. Furthermore, at the time of the offences, the accused did not possess a licence permitting him to possess a firearm and he was ordered by a court, on two prior occasions, not to possess a firearm. In addition, the accused as- saulted a police officer when he punched an officer while trying to escape. As there was no evi- dence of where the accused obtained the firearm, it could not be concluded that he knew that the firearm was obtained by the commission of an offence. None of the accused's Charter rights were breached. The government officers' decision to stop and talk to the accused and his acquaintance was a sponta- neous decision and not racial profiling. The force used by the police to restrain the accused once the gun was discovered was reasonable and necessary in the circumstances and did have a clear duty not result in injuries to consult on issues affecting Aboriginal the accused. Consequently, there was no breach of the accused's s. 7 Charter rights. HoweverAdditionally, this the accused was a collective duty owed not arbitrarily detained. Prior to the Band, not a duty owed specifically to the appellant. The duty was outlined in Mikisew Cree First Nation v. Canada, which the trial judge did misapply by finding that Xxxxxxx only applied to taking of land. However, this error did not have an effect on the end result. While the government may not have met its duty to consult before passing the variationpat-down search, the first step accused was not detained, and by the point where the police conducted the pat-down search, they had reasonable grounds to suspect that the accused had a gun and detain him. Furthermore, the accused was not subjected to an unlawful search and seizure as he had no reasonable expectation of analysis under X. x. Xxxxxxx privacy over the information the police discovered when they checked his name with dispatch and the pat-down search was whether or not lawful given the officers reasonably believed their safety was at risk, and the search was brief. Finally, there had been a prima facie infringement was no breach of the appellantaccused's Treaty rights. Since the appellant did not have a personal right to consultation, if any s. 10 Charter rights as he was advised of his rights were infringed upon, it as soon as he was his right to fish for food. Therefore, a breach of the duty to consult could not go to establishing a prima facie infringement, though it would be relevant secured and placed in the second stage of analysis on the justification for the infringement. The trial judge did commit a reversible error in finding that the appellant could have easily fished elsewhere. The creek was on reserve lands with readily available pickerel, the appellant's preferred catch, and was within five minutes of his home. The only other fishing location within half an hour was a lake. However, to reach readily available fish on the lake, one required a boat, which the appellant did not have. The appellant did not have easily accessible fishing for food at another location, so he had established prima facie infringement. Since the trial judge did not find infringement, he never considered the issue of justification. The conviction was set aside and the parties were directed to re-attend to argue justificationpolice vehicle. Statutes, Regulations and Rules Cited: Alberta Fishing Regulations, 1998, SOR/98-246, Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, Constitution Acts. 0, 1930x. 8, s. 35(19, s. 10, s. 10(b), s. 11, s. 15, s. 24(2) Fisheries ActCriminal Code, R.S.C. 1985, c. F-14C-46, Natural Resources Transfer Agreements. 86(3), S.A. 1930s. 90(2), s. 92(3), s. 95(2), s. 96(1), s. 117.01, s. 270(2) Highway Traffic Act, R.S.O. 1990, c. 21H.8, s. 12 Counsel: Xxxxx XxxxxXxxxxx Xxxxxxx, Q.C., Esq.: for the RespondentCrown. Xxxxxxx X.X. XxxxXxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxx and Company, Esq.: for the AppellantAccused. [Editor's note: A corrigendum was released by the Court on August 19, 2010; the corrections have been made to the text and the corrigendum is appended to this document.] Reasons for Judgment REASONS FOR JUDGMENT X.X. XXXXXXXX X.:-- Background 1 Xx. Xxxxxxx appeals his conviction on January 11, 2006 for unlawfully fishing on closed waters contrary to the Alberta Fisheries Regulations, 1998 (SOR 98-246). He was fined $200.00. 2 Conviction followed a lengthy trial, written argument and oral argument. Xxxxxxxx P.C.J. delivered written reasons for the conviction. Provincial Court Decision 3 The trial focused on the rights of Treaty 8 Indians to fish for food. It also focused on the rights of Government to regulate hunting and fishing rights as part of a bona fide scheme of management and conservation of the game stocks.XXXXXXX J.:-- INTRODUCTION

HELD. Appeal Application dismissed. Reporters were allowed in partto bring audio recording devices into the trial only to verify their notes. There was uncontradicted evidence that some level No portion of fishing on the creek recordings could have been permitted and conservation goals still achieved, which suggested the variation order might have been overboardbe used for any media broadcast or for any other purpose. Tape recorders could only be used if they did not become disruptive. The government did have media was to provide a clear duty list of reporters who wished to consult on issues affecting Aboriginal rights. However, this was a collective duty owed to bring the Band, not a duty owed specifically to the appellantrecorders into court so that they could be provided with an authorization letter. The duty was outlined in Mikisew Cree First Nation v. Canada, which court had the trial judge did misapply by finding that Xxxxxxx only applied inherent power to taking make any order or policy regarding the publicity of landthe proceedings. However, this error That order or policy had to be consistent with constitutional requirements. It also had to take into account the facts of the case and comply with the common law. The policy did not have the force of law. The common law also had to comply with the Charter. The onus was on the applicants to show that the Charter was violated. The common law rule was that cameras could not be brought into a courtroom during a trial or other proceeding. The Charter right of freedom of the press did not provide absolute protection to all expressive activities. The gathering of information on film, video or audiotape was not an expressive activity that was protected by the Charter. The Charter right of freedom of the press did not give the media any rights beyond those enjoyed by the Canadian public. Even if the gathering of information by film, video or audiotape was a protected expressive activity, the Charter was not violated by the common law or the policy. It was not appropriate to have this type of activity in a courtroom. The presence of such devices would have a negative effect on the end resultparties, on witnesses, on counsel and on the triers of fact. While the government may not have met its duty to consult before passing the variationEven if there was a violation, the first step of analysis under X. x. Xxxxxxx common law and the policy was whether or not there had been a prima facie infringement reasonable limit on the application of the appellant's Treaty rightsCharter. Since The common law and the appellant did policy sought to promote the right of an accused to a fair trial, the maintenance of dignity and decorum and the ability of trial participants to have some degree of privacy. Expanded media coverage would harm these interests. The media was not have a personal denied the right to consultation, if any of his rights were infringed upon, it was his attend the trial. The right to fish for food. Therefore, a breach freedom of expression was minimally impaired by the duty to consult could not go to establishing a prima facie infringement, though it would be relevant in the second stage exclusion of analysis on the justification for the infringement. The trial judge did commit a reversible error in finding that the appellant could have easily fished elsewhere. The creek was on reserve lands with readily available pickerel, the appellant's preferred catch, cameras and was within five minutes of his home. The only other fishing location within half an hour was a lake. However, to reach readily available fish on the lake, one required a boat, which the appellant did not have. The appellant did not have easily accessible fishing for food at another location, so he had established prima facie infringement. Since the trial judge did not find infringement, he never considered the issue of justification. The conviction was set aside and the parties were directed to re-attend to argue justificationaudio recording devices. Statutes, Regulations and Rules Cited: Alberta Fishing Regulations, 1998, SOR/98-246, Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985ss. 1, App2, 2(b). II, No. 44, Schedule B, Constitution Constitutional Question Act, 1930R.S.B.C. 1979, c. 63, s. 35(1) Fisheries 8. Courts of Justice Act, R.S.C. 1985, c. F-14, Natural Resources Transfer Agreement, S.A. 1930, c. 21R.S.O., s. 12 136, 136(1). Criminal Code, ss. 121, 122, 341, 397, 486. Judicature Act, R.S.O., s. 67. Court Note: On application for expanded media coverage. Counsel: Xxxxx X.X. Xxxxx, Q.C., for the Respondent. Xxxxxxx X.X. Xxxx, Xxxxxxxx and X. Xxxxx, Xxxxxxx Xxxx, Xxxx and Company, for the Appellant. [Editor's note: A corrigendum was released by the Court on August 19, 2010; the corrections have been made to the text and the corrigendum is appended to this documentCrown.] Reasons for Judgment X.X. XXXXXXXX X.:-- Background 1 Xx. Xxxxxxx appeals his conviction on January 11, 2006 for unlawfully fishing on closed waters contrary to the Alberta Fisheries Regulations, 1998 (SOR 98-246). He was fined $200.00. 2 Conviction followed a lengthy trial, written argument and oral argument. Xxxxxxxx P.C.J. delivered written reasons for the conviction. Provincial Court Decision 3 The trial focused on the rights of Treaty 8 Indians to fish for food. It also focused on the rights of Government to regulate hunting and fishing rights as part of a bona fide scheme of management and conservation of the game stocks.