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Case Law
Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.
These cases may be found online in BestCase and other electronic resources from Canada Law Book.
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Ontario Criminal Cases
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PREVENTIVE DETENTION
Sentencing judge did not simply rubber-stamp expert opinions
Appeal by accused from sentence imposed on him after he was convicted of assault causing bodily harm regarding incident that involved his wife and of disobeying lawful court order not to have any contact with his wife. Accused was declared dangerous offender and indeterminate sentence of imprisonment was imposed. He was originally charged with 17 offences. Accused claimed that when trial judge found there was no reasonable possibility that risk he posed to community could be controlled he erred by relying on Crown’s expert evidence, which was premised in part on consideration of circumstances that surrounded counts for which he was acquitted. Appeal dismissed. Judge made it clear, when he fashioned appropriate sentence, that he disregarded other counts, for which accused was acquitted and evidence that related to them. He did not rubber stamp opinions expressed by experts but carefully reviewed their evidence. Judge concluded that accused’s risk could not be controlled in community after he carefully considered whole of evidence and correctly applied controlling legal principles. Sentencing disposition was both eminently reasonable and fully justified.
R. v. Bell (May 17, 2010, Ont. C.A., Moldaver, Cronk and Epstein JJ.A., File No. C48392) 88 W.C.B. (2d) 319 (5 pp.).
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Ontario Civil Cases
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JURISDICTION
Defendant did not displace plaintiff’s choice of forum
Motion by defendant for order staying action brought under Simplified Procedure Rules for damages for breach of contract for non-payment for personal flotation jackets manufactured by plaintiff on basis proper and more convenient forum British Columbia. Defendant luxury fishing lodge in British Columbia and had no assets or any presence in Ontario. Motion dismissed. Facts showed real and substantial connection to Ontario and real question whether court should assume jurisdiction on basis Ontario more convenient forum. Defendant alleged that testimony on complaints relating to late delivery, improper colour and design combinations and malfunctioning of jackets would come from 29 witnesses, half of whom were employees of defendant. Defendant had never set out amount of damages or set-off that it would claim and court left in dark as to how many of its proposed witnesses were key to defence of set-off. Defendant’s complaints about quality and appearance of jackets or their late delivery only began after plaintiff started pressing for payment. Plaintiff small local manufacturer and would suffer financial hardship if Ontario action stayed. No evidence defendant could not afford to bring some or all of witnesses to Ontario. Court not satisfied viva voce evidence of all those witnesses would be necessary to defence given amount of claim and type of proceeding. Court not satisfied defendant had displaced plaintiff’s choice of forum and clearly established British Columbia more appropriate forum.
Salus Marine Wear Inc. v. Queen Charlotte Lodge Ltd. (May 26, 2010, Ont. S.C.J., Flynn J., File No. 09-4655-SR) 189 A.C.W.S. (3d) 82 (6 pp.).
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Federal Court of Appeal
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GOODS AND SERVICES TAX
City not entitled to claim input tax credits
Appeal by Minister from Tax Court of Canada’s allowance of respondent city’s input tax credits. Respondent constructed transit system pursuant to obligations under City Transportation Act (Alta.) (“CTA”), and entered into funding agreements with province. Respondent paid GST on purchases made for construction. Municipal transit services were exempt supplies under Excise Tax Act (Can.) (“ETA”), but respondent claimed input tax credits on basis construction of system was supply to province, pursuant to their agreements. Minister disallowed input tax credits claimed but Tax Court of Canada allowed them, so Minister brought this appeal. Prior to 2003, respondent claimed public service body rebates under s. 259 of ETA and received approximately 56% of GST paid. In 2003, when transit materials purchased, respondent filed GST return and claimed input tax credits while acknowledging rebates. Tax Court Judge found that province was recipient of supplies purchased for purposes of ETA because of agreements between respondent and province that required respondent to build transit system for province. Appeal allowed. CTA imposed obligation on respondent to implement approved transportation plan, but sequencing of work was left up to respondent. Province had statutory authority to provide funding. Agreements between respondent and province stated province would provide 75% of funding and respondent provided warranty of good workmanship. However, agreements did not require respondent to provide province with a transportation system. If respondent had chosen not to apply province’s funding to transit system, it would have still been required to construct a system pursuant to its own obligations under CTA. Tax Court Judge erred in finding respondent had obligation to build transit system for province. Thus, under ss. 169 and 123 of ETA, GST was paid for construction and operation of municipal transit system, an exempt supply, and respondent could not claim input tax credits.
Canada v. Calgary (City) (May 21, 2010, F.C.A., Blais C.J., Sharlow and Pelletier JJ.A., File No. A-250-09) 189 A.C.W.S. (3d) 254 (26 pp.).
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Federal Court of Canada
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LIABILITY
Government liable to plaintiffs in negligence and breach of contract in relation to construction of timber processing mill in the Yukon
Action by plaintiffs against federal government for damages for negligence and breach of contract. Plaintiff L Inc. was joint venture participant in plaintiff S Corp.. L Inc. wanted to construct timber processing mill in Yukon Territory. Annual allowable cut for area at that time was 350,000 cubic metres. L Inc. estimated mill would require 200,000 cubic metres of timber per year to be feasible. Government supported L Inc.’s plans and provided assurances that sufficient timber would be available. During particular meeting, government assured L Inc. it would have no problem obtaining 200,000 cubic metres of timber per year. S Corp. was incorporated to construct mill. Government had been issuing small volume commercial timber permits (“CTP’s”) but had not yet established process for issuing high volume timber harvest agreements (“THA’s”). Government experienced problems issuing CTP’s. Government reduced annual allowable cut for area to 128,000 cubic metres. Mill commenced operations in October 1998 but was shut down in December 1998 due to inadequate supply of timber. Internal government documents cast plaintiffs in negative light but government persuaded plaintiffs not to relocate mill. Mill reopened in April 1999 and had sufficient supply of timber for about six months. Mill then faced shortfall in supply of timber due to government’s failure to finalize process for issuing THA’s. Mill was closed for good in August 2000. Action allowed. Government made representation that, when acted upon by plaintiffs, gave rise to contract between parties. Government represented that there was existing commitment and ability to provide long-term adequate volume of timber to whoever built mill. Consideration in this case was construction of mill in exchange for adequate supply of timber. Government was to receive political and financial benefits from construction of mill. Plaintiffs proceeded to construct mill based on government’s representation. Government’s commitment became binding once plaintiff’s completed mill. Government was not entitled to fail to take necessary steps to complete contract. Absence of written agreement was not fatal. Government could not rely on Statute of Frauds, 1677 (Eng.), 29 Car 2, c. 3, where oral contract had been partially performed. Essential elements of agreement could be determined with certainty. Annual volume of timber was to be 200,000 cubic metres. Term was 20 years in light of surrounding circumstances. Other essential terms were supplied by existing legislation, regulations, or government policies. Prudence of government making bargain when certain matters might have been beyond its control was not matter for court to decide. Upon completion of mill, plaintiffs were entitled to be dealt with fairly but were not. Government owed plaintiffs duty of care. Sufficient proximity existed since parties had direct relationship and not merely indirect relationship arising from regulatory context. This was not casual relationship between disinterested government department and mere potential licensee. Parties had close relationship with aligned and intertwined interests. Injury to plaintiffs was foreseeable. Government knew what plaintiff was building as well as when, where, and why. Government was aware mill would require supply of wood substantially greater than had been available. Negligent delays in issuing CTP’s and establishing process for issuing THA’s would have clearly harmed plaintiffs. Actual harm came to light after first mill closure. Government failed to establish any policy reasons for not imposing duty of care. Alleged negligence did not relate to policies themselves but rather implementation of policies. Inordinate delays could not be matter of policy. There was no risk of indeterminate liability in light of very specific nature of specific representation. In any event, government had acted in bad faith. Government was aware supply would be limited but said nothing. One particular government employee unjustifiably maligned plaintiffs and tried to cast blame on them.
South Yukon Forest Corp. v. Canada (May 5, 2010, F.C., Heneghan J., File No. T-2012-01) 189 A.C.W.S. (3d) 105 (397 pp.).
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Federal Court of Canada
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JUDICIAL REVIEW
Notice of application was struck out
Health Canada issued authorization to process dried marihuana for medical purposes to G.. G. was patron of R.’s restaurant. R. alleged G. displayed marijuana to restaurant patrons and offered marijuana to others. G. was barred from restaurant. R. commenced application for judicial review. Prothonotary refused to strike R.’s notice of application. Appeal was allowed. Notice of application was struck out. Prothonotary erred in law by exercising discretion based on misunderstanding of legislative scheme and misapprehension of facts. It was plain and obvious application could not succeed because R. lacked standing. Application was improper. Only benefit of declaration to be derived by R. was to assist in R.’s defence in human rights proceeding against R. and in any future potential proceedings under Ontario liquor laws.
Ridgeview Restaurant Ltd. v. Canada (Attorney General) (May 10, 2010, F.C., Mactavish J., File No. T-561-09) 189 A.C.W.S. (3d) 5 (26 pp.).
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Ontario Criminal Cases
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IN CONTRAVENTION OF CUSTODY ORDER
Conviction for abducting child under age 14 in contravention of provisions of custody order upheld on appeal
Accused and M had child, G. When relationship ended and M moved out accused remained custodial parent. Court ordered accused to consult M on all major parenting decisions. Order also included that accused not move G from 50 km radius without prior written consent and to provide 90 days’ written notice if she intended to move on permanent basis. There were number of disputes over access and allegations of mistreatment made by accused. Accused informed M that she intended to move G to Vancouver without requisite notice. M obtained emergency ex parte order preventing removal. Accused made it clear to court-ordered assessor that she did not think she had to consult with M, notwithstanding any court orders. Final report from assessor recommended joint custody. As next significant court appearance approached, accused and her mother began to set aside money and make preparations for abducting child. During Christmas accused took G and drove to Texas, where they lived in hiding until private investigator tracked them down. Accused convicted of abducting child under age of 14 in contravention of provisions of custody order. Appeal from conviction dismissed. Trial judge held that there were at least three other reasonable legal alternatives, but instead, many months before critical court date, accused had decided to abandon proceedings and abduct child. Trial judge was correct to withdraw defence from jury.
R. v. K. (E.) (May 18, 2010, Ont. C.A., Rosenberg, Feldman and Watt JJ.A., File No. C48972) 88 W.C.B. (2d) 311 (6 pp.).
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Federal Court of Appeal
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JURISDICTION
Appeal doomed to fail as federal courts have no jurisdiction over action in tort between individual and municipal agency
Motion for extension of time to file appeal from decision of Federal Court. Applicant filed statement of claim against municipal transit system and six of its employees for damages suffered when he was allegedly assaulted by employees of transit system. Federal Court dismissed claim on ground that Federal Court lacked jurisdiction over defendants and subject matter. Applicant appealed from that decision in time provided by Federal Court Rules (Can.). In response to notice of status review applicant brought motion for extension of time to file appeal. Applicant had neither set out reasons for delay in appeal or proposed timetable for remaining steps to be taken in appeal. Nor had he settled contents of appeal book, either by agreement or motion. Motion dismissed. Rule 382.4(2) provides that if judge is not satisfied that proceeding should continue, he or she may dismiss proceeding. Here, appeal was doomed to fail as Federal Courts have no jurisdiction over action in tort between individual and municipal agency. Defendant was not Crown in right of Canada nor was it in any way agent of Crown. Consequently right of action against Crown found at s. 17 of Federal Courts Act (Can.), and enabling provisions of Crown Liability and Proceedings Act (Can.), were of no assistance to applicant. He had sued in wrong court. Accordingly, motion for extension of time to file notice of appeal dismissed and appeal dismissed for delay.
Xu v. Murphy (May 28, 2010, F.C.A., Letourneau, Pelletier and Trudel JJ.A., File No. A-41-09) 189 A.C.W.S. (3d) 11 (5 pp.).
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Ontario Civil Cases
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CLASS ACTIONS
Class counsel fees of $1,487,195 were approved
Motion was brought for approval of fees and disbursements of class counsel with respect to partial settlements reached in action. Fee agreement complied with s. 32(1) of Class Proceedings Act, 1992 (Ont.). Fee represented 25% of portion of settlement amount allocated to Ontario and British Columbia settlement classes and was less than 30% permitted by retainer agreement entered into with plaintiffs in Ontario action and British Columbia action. There was jurisdiction to make interim fee award and it was appropriate to do so. It was permitted by retainer agreement. Partial settlement was excellent result for class. It was legally and factually complex litigation. Issues raised concerns of public importance. There was no opposition from class. Class counsel fees in amount of $1,487,195 were approved.
Osmun v. Cadbury Adams Canada Inc. (May 13, 2010, Ont. S.C.J., Strathy J., File No. 08-CV-347263PD2) 189 A.C.W.S. (3d) 33 (10 pp.).
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