GROUNDS

Judge did not confuse touching with sexual touching

Appeal by accused from his conviction on one count of sexual assault on basis that trial judge misapprehended evidence. Complainant, aged 18, consumed substantial amount of alcohol when she was out with accused and other friends. She spent night at accused’s apartment and fell asleep on couch. She woke up twice to find accused touching her vagina. Complainant did not ask accused to stop because she never fully woke up and she was only half awake for several seconds. When she woke up she was unsure as to whether accused assaulted her but by time she returned home she was certain that she had been violated. Friend of accused and of complainant testified that accused admitted to her that he touched complainant and that there was no excuse for this type of behavior. Accused did not testify. Appeal dismissed. Findings of fact made by trial judge were supported by complainant’s evidence. Judge did not misstate or misapprehend the evidence. He did not make inconsistent or contradictory findings regarding complainant’s memory for he believed everything that she said and he found her to be a candid witness. At the same time, however, he properly held that her evidence had to be approached with caution in light of her intoxicated condition. Judge did not fail to distinguish sexual assaults from other instances of touching that occurred between accused and complainant. He clearly understood what constituted sexual assault and he did not confuse touching with sexual touching. Judge did not err in finding that complainant’s evidence proved allegations. He also did not fail to appreciate weaknesses in Crown’s case.

R. v. Lee (July 15, 2011, Ont. S.C.J., Garton J., File No. 116/09) Decision at 84 W.C.B. (2d) 849 affirmed. 96 W.C.B. (2d) 438 (23 pp.).

PUBLIC SERVICE

Panels relied on outdated job descriptions to make decisions

Plaintiff was employee of defendant governmental agency since 1996. Selection panels appointed for staffing of positions rejected plaintiff’s application for three different positions on basis of lack of experience. They claimed that she did not have experience in international audits of at least eighteen months in past five years. Plaintiff asked for reconsideration but panels maintained initial decisions. Plaintiff sought judicial review. She claimed that decisions were unreasonable and arbitrary. She claimed that panels erred in their assessment of her experience. Application allowed. Determination of whether candidate had sufficient experience was question of fact. Reasonableness standard applied. Plaintiff had provided sufficient evidence of her relevant experience for positions sought. Panels had relied on outdated job descriptions to make their decisions and did not contact plaintiff’s former supervisors to ascertain her experience. Panels made fundamental and dominant error which justified judicial review. Appointment of new panels required to review plaintiff’s candidacy.

Tran v. Agence du Revenu du Canada (Aug. 19, 2011, F.C., Lemieux J., File No. T-493-10; T-494-10; T-503-10) Reasons in French. 206 A.C.W.S. (3d) 79 (28 pp.).

REAL ESTATE AGENTS AND BROKERS

Commission term triggered by qualifyingoffer to purchase

Action by realtor for $8,995 commission plus GST pursuant to listing agreement. Defendant’s property was listed for $199,900. Commission terms of listing agreement stated in consideration of plaintiff listing property, defendant agreed to pay brokerage a commission of 5% of the sale price or 4.5% if sold by plaintiff personally for any valid offer to purchase the property from any source obtained during the listing period and on the terms and conditions set out in agreement or such other terms and conditions as defendant may accept. Plaintiff obtained offer for property at listing price on last day of term of listing agreement, but defendant refused to accept. Defendant argued commission was only payable if he accepted offer and property sold. Defendant further argued that agreement was void because plaintiff was working for him and prospective purchaser and because offer did not meet his conditions of 15-day closing, requirement that buyer install septic tank and well and pay registration fee. Action allowed. There was no doubt defendant began avoiding plaintiff and frustrating his attempts to sell property because he had decided not to sell unless he was able to purchase a farm. “Sale price” in commission clause of listing agreement referred to sale price in offer and did not require a completed sale. Commission term was triggered by qualifying offer to purchase. Offer in question was for listing price. Defendant did not respond to plaintiff’s attempts to contact him about offer until plaintiff advised defendant commission would be payable regardless. Defendant then met plaintiff, refused to sign offer and complained plaintiff was harassing him. Land in question was bare and there was no evidence 15-day closing date and septic tank and well requirement were important terms. Furthermore, defendant had made previous counteroffers that removed these terms. Registration fee was a mere $70, so this was not a material condition. Plaintiff obtained offer matching listing price, so clearly did not breach his duties to defendant. Plaintiff acted in good faith throughout and invested significant work and expense. Defendant changed his mind and turned his back on the contract. Defendant to pay $8,995 commission plus GST. Defendant’s offer to settle for $250 did not impact costs. Trial took two days, with some delay caused by plaintiff’s lawyer’s absence. Defendant to pay $1,225 costs.

T.L. Willaert Realty Ltd. v. Fody (Oct. 4, 2011, Ont. S.C.J. (Sm.Cl.Ct.), Searle D.J., File No. 144/10) 207 A.C.W.S. (3d) 615 (13 pp.).

GROUNDS

No direct evidence accused subjectively knew death was likely

Accused charged with second degree murder and conspiracy to commit arson. Accused alleged to have helped plan burning of building in order to collect fire insurance proceeds. Two arsonists used excessive gasoline and caused explosion that resulted in one’s death and serious injuries to the other. Crown alleged that accused recruited arsonists and gave building’s owner an alibi. Trial judge convicted accused finding that he must have known that fire would likely cause death. Murder conviction set aside and manslaughter conviction substituted. Conviction for murder was unreasonable. No direct evidence accused subjectively knew death was likely. Accused was not at scene of fire and no evidence established that he knew anything about arsonists’ use of accelerants. Accused’s knowledge that death would likely result from fire was not only reasonable inference on evidence.

R. v. Roks (July 20, 2011, Ont. C.A., Feldman, Rouleau and Watt JJ.A., File No. C48418) 96 W.C.B. (2d) 325 (48 pp.).

PUBLIC SERVICE

Analysis generic and akin to rubber stamp

Application for judicial review of three decisions made by Decision Reviewer of CRA. Applicants made allegations of arbitrary treatment after they were unsuccessful in promotional process at CRA. Decision reviewer did not find any evidence of arbitrary treatment in selection process. Application allowed. Reasons inadequate. Analysis conducted by Decision Reviewer confined to sentence in which she expressed that applicants provided insufficient analysis in their Portfolios of Technical Competencies. Analysis generic and akin to rubber stamp. Nothing to suggest that allegations of applicants seriously considered. Notes of Decision Reviewer raised further concerns instead of clarifying reasons or expressing basis for decisions. Notes revealed Decision Reviewer found some of the worksheet comments of the Technical Competency Assessors to be questionable. Several e-mails in which Decision Reviewer expressed that requests for decision review might represent arbitrary decisions. Nothing to indicate how Decision Reviewer resolved issues presented by applicants or uncovered by her own review to come to conclusion TCA’s were reasonable in awarding scores.

D’Urzo v. Canada Revenue Agency (July 28, 2011, F.C., Near J., File No. T-591-10) 205 A.C.W.S. (3d) 979 (19 pp.).