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Charter of Rights


Accused trying to delay matters by firing counsel on eve of trial

Accused sought counsel be appointed for his upcoming trial that was to be held with or without counsel as he was facing 26 sexually related offences. Accused had fired his Legal Aid counsel on eve of trial on two separate occasions and Legal Aid refused to appoint another lawyer. Accused also sought counsel be appointed for another matter in different court where trial date had not been set. Court had appointed amicus to ensure accused received fair trial. Application dismissed. It was obvious to court that accused was simply trying to delay matters by firing his counsel on eve of trial on two prior appearances. Accused would get fair trial through amicus that was appointed. Court also reasoned that it was premature to consider appointing counsel for court on other matter.
R. v. Richer (Feb. 26, 2013, Ont. S.C.J., Turnbull J., File No. 1773/11) 105 W.C.B. (2d) 217.

Civil Procedure


Plaintiff’s interest in conflict with proposed class

Plaintiff brought action on behalf of all land surveyors in Ontario who created plans of survey. Defendant managed electronic land registry system and made copies of plans of survey and sold them to public for fee. Plaintiff claimed nature of defendant’s business was infringement of copyright of proposed class in plans of survey. Plaintiff sought disgorgement of profits, compensatory damages and statutory damages. Plaintiff sought permanent injunction. Plaintiff’s motion for certification of proposed class action was dismissed. Plaintiff satisfied cause of action requirement except parts of claim for copyright infringement dealing with translation were struck out. Scanning plans to create digital format was not translation within meaning of s. 3(1)(a) of Copyright Act (Can.). Resulting digital plan of survey was not original work because there was no skill and judgment involved in scanning plans of survey. There was no evidence that any other surveyor wished to have copyright infringement complaint determined in class proceeding. Class had to be defined without elements that required determination of merits of claim. Common issues were rejected. Determination of consent was individual issue and had to be decided on individual basis. If defendant were successful in showing class members did not have copyright in plans or that all surveyors consented to defendant’s use of plans, then class would consist of no surveyors and answer to common issues 1 and 2 would bind no one. Common issue was rejected because asking what defendant did would not advance litigation. There was no evidence that common issue 4 could be decided on common basis. Issue of entitlement to damages was not common issue. Issue of interest depended on findings of liabilities and damages which were not amenable to being certified as common issues. Common issue could not be decided on class wide basis and was rejected. Class action was not preferable procedure. Plaintiff was not representative of proposed class because its interests were in conflict with proposed class and it did not provide workable litigation plan.
Keatley Surveying Ltd. v. Teranet Inc. (Dec. 14, 2012, Ont. S.C.J., C. Horkins J., File No. CV-10-414169-00CP) 224 A.C.W.S. (3d) 268.
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Egregious conduct by immigration consultant led to breach of fairness

Applicant came to Canada as farm worker on temporary foreign worker program. Applicant returned to country of origin. Applicant returned to Canada on visa and overstayed visa. Immigration consultant indicated immigration consultant was lawyer and had applicant sign blank forms. Immigration consultant called applicant once only to advise about requirements of pre-removal risk assessment application (“PRRA”). Immigration consultant told applicant it was not necessary to obtain supporting documents. Immigration consultant never showed applicant completed copy of PRRA. Applicant received negative PRRA. Officer determined applicant provided insufficient evidence to establish risk asserted. Officer found it unreasonable for applicant not to make refugee claim while applicant was on valid work permit. Officer found it unreasonable for applicant not to have submitted any supporting documentation. Application for judicial review was allowed. Facts of case presented egregious conduct by immigration consultant that led to breach of procedural fairness. Immigration consultant lacked any degree of professionalism and competence when it came to preparing applicant’s PRRA. PRRA package submitted by immigration consultant was woefully inadequate. Not to allow applicant fair chance to have case assessed would be offensive to Canadian values.
Brown v. Canada (Minister of Citizenship and Immigration) (Nov. 8, 2012, F.C., James Russell J., File No. IMM-3364-12) 224 A.C.W.S. (3d) 427.

Aboriginal Peoples


Not unreasonable to require person seeking membership to have cultural ties to band

Band membership committee revoked applicants’ membership in band because applicants’ names were entered on band list in error under s. 7 of Band Membership Code. Committee found applicants reached age of 18 when names were entered on list under provision of Code that applied only to applicants under age of 18. Application for judicial review was dismissed. Decision was not unreasonable for failing to comply with s. 10 of Indian Act (Can.) (“IA”). Two-part test of s. 7 of Code did not deny applicants right to have names entered on list. Two-part test was not inconsistent with s. 10(4) and (5) of Act. Applying two-part test to children of women whose membership was transferred to another band under s. 14 of former Indian Act (Can.), was not inconsistent with IA and fell within range of possible acceptable outcomes. Decision was not unreasonable in that it required applicants to apply for membership. When read in conjunction with provision for intertribal transfers in s. 10 of Code, two-part test was consistent with objective of maintaining economic stability while preserving cultural integrity and social harmony. It was not unreasonable for band to require person seeking membership under s. 7 of Code to have sufficient cultural ties to band. It was within range of possible acceptable outcomes for band to require such persons to join band while persons were young enough to be raised in order to strengthen cultural ties.
Norris v. Matsqui First Nation (Dec. 12, 2012, F.C., Michel M.J. Shore J., File No. T-654-12) 224 A.C.W.S. (3d) 240.

Extraordinary Measures


Mandamus available to prevent further delay and harm to inmate

Court overturned Minister’s decision denying inmate, Canadian citizen in low security jail in United States transferred to serve sentence in Canada. Minister found inmate was at risk to commit criminal organization offence; court quashed the Minister’s refusal because in his reasons he did not demonstrate weighing of s. 10 of International Transfer of Offenders Act (Can.) factors, as he was required to do. Matter had been returned to Minister, who once again declined transfer; court found Minister paid lip service to appeal judgment, simply reasserted his earlier reasoning, was operating with closed, intransigent mind, and ordered Minister within 45 days to accept inmate’s transfer request and confirm in writing to inmate that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada. Court found Federal Court’s findings that Minister displayed closed mind and intransigency in his re-decision and paid lip service to court’s earlier decision were factual findings supportable on basis of record; only live issue was whether, as matter of law, it was open to Federal Court to make mandatory order, rather than sending matter back for another re-decision. Appeal dismissed with costs. Court did not accept Federal Court restrained as suggested by Minister. Federal Court found Minister’s conclusion that there was significant risk that inmate would commit criminal organization offence to be unsupported by evidence, and Crown did not contest this. With that factor off table, all that remained were factors supporting transfer. In circumstances, it was open to Federal Court to conclude on evidence that only lawful exercise of discretion was granting of transfer: in such circumstances, mandamus lies. In unusual circumstances of case, mandamus was also available to prevent further delay and harm that would be caused to inmate if Minister were given third chance to decide this matter in accordance with law. In circumstances where Minister did not follow court’s earlier decision, paid “lip service” to it, and displayed “closed mind” and “intransigency”. Federal Court’s exercise of discretion in favour of making mandatory order against Minister had foundation in evidentiary record.
Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Feb. 25, 2013, F.C.A., David Stratas J.A., Sharlow J.A., and Webb J.A., File No. A-39-13) Decision at 104 W.C.B. (2d) 769 was reversed in part.  105 W.C.B. (2d) 166.

Charter of Rights


Officer made only passing reference to right to counsel

Application by accused to exclude statements that she gave to police because her right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was violated. Accused was charged with aggravated assault and mischief. At issue were two of four statements she made to police. First statement was made in police cruiser after accused was arrested for assault causing bodily harm and it was made before she was driven to police station. Officer informed accused of her right to counsel but he received no answer when he asked if she understood. When officer arrived at station he did not advise officer-in-charge about problem with determining accused’s comprehension of right to counsel. Second statement was videotaped statement accused gave to officer for almost two hours. That statement was given four hours after she was arrested and by then she was charged with aggravated assault and mischief. There was no evidence that accused was told about these charges before she was interviewed. During interview officer made only passing reference to right to counsel and there was no discussion as to whether she understood it, whether she exercised her rights or waived them. Application allowed. Videotaped statement was given voluntarily. Right to counsel was violated and both statements were excluded.
R. v. Theoret (Feb. 28, 2013, Ont. S.C.J., Durno J., File No. CR-11-1614-00) 105 W.C.B. (2d) 20.



Troubling complainant only went to police after difficulties in obtaining sole custody

Trial of accused for one count of assault and for two counts of sexual assault. Complainant was accused’s wife. Assault was alleged to have occurred on April 30, 2009 after parties’ adopted child hit complainant. Sexual assaults were alleged to have occurred on January 31 and October 10, 2010. Incidents were reported to police in early January 2011 and accused was charged shortly thereafter. Accused denied all allegations against him. Parties met in July 1998 and they became engaged in July 1999. They married in August 2001 and they eventually moved to home in neighbourhood where their neighbours were extremely friendly. For two years after they married complainant unsuccessfully tried to get pregnant. Parties adopted six-year old boy and adoption was finalized in March 2010. They then had to adjust to addition of child to their lives, which resulted in stress. Complainant developed intense friendship with male neighbour and accused left matrimonial home on November 11, 2010 as he realized that his marriage was finished. She went to police in January 2011 after she was unable to obtain sole custody order. Accused acquitted of all offences. Case turned almost exclusively on credibility of accused and complainant. Court had reasonable doubt that accused assaulted complainant and it accepted that he was trying to calm her down after child hit her. Regarding first sexual assault accused’s evidence that it did not happen was accepted. Court also believed accused’s testimony about second sexual assault. Complainant’s evidence was problematic, particularly since she provided three versions of this incident. It was also troubling that complainant only went to police after she ran into difficulties when she applied for sole custody.
R. v. L. (R.) (Feb. 27, 2013, Ont. S.C.J., E. Ria Tzimas J., File No. 1603/11) 105 W.C.B. (2d) 12.



Assessment arbitrary as licence agreement between parties not reviewed

Applicant held non-exclusive licence from Greater Toronto Airport Authority (“GTAA”) to common areas at airport under which applicant was authorized to install and maintain advertising displays. GTAA controlled all aspects of applicant’s business. Applicant was never assessed as taxable. Municipal Property Assessment Corporation (“MPAC”) unilaterally and retroactively assessed GTAA’s advertising displays to applicant as part of overall assessment of airport. Applicant argued applicant was not tenant of Crown. Assessment was quashed. Applicant was not liable for taxable assessment. Applicant was not occupant or tenant or person in possession. Applicant was service provider for GTAA. GTAA maintained total control over premises all advertising was controlled by GTAA. Applicant paid no rent and GTAA received vast majority of gross revenues from advertising revenue. Applicant paid all of operating expenses out of remaining funds before applicant received any income. GTAA’s business use of premises was paramount and applicant’s use was subordinate. MPAC did not assess indoor signs anywhere else and MPAC’s actions were discriminatory, unfair and unequal. Assessment was arbitrary on MPAC’s part in that MPAC never reviewed licence agreement between parties before issuing taxation assessment.
Clear Channel Outdoor Co. Canada v. Municipal Property Assessment Corp. (Dec. 10, 2012, Ont. S.C.J., Snowie J., File No. CV-11-5011-00) 224 A.C.W.S. (3d) 18.
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No obligation on part of defendant to pay commission

Defendant had home for sale and had it on MLS through Property Guys. Sales representative saw home on MLS system and sent it to clients. Clients did not respond to sales representative. Clients went to open house for home on own. Sales representative drafted offer to purchase and sent it to defendant which contained 2.5 per cent commission rate. Property sold on basis of agreement drawn up using materials from Property Guys. Clients submitted offer though Property Guys website. Effective agreement of purchase and sale did not provide for commission. Plaintiff sought to recover real estate commission owing on sale of defendant’s home. Judge retired to consider decision. Judge realized she conducted judicial pre-trial of matter previously. Judge declared mistrial. Parties consented to Superior Court Judge giving judgment based on transcript evidence. Action was dismissed. There was no obligation on part of defendant to pay commission. Efforts expended to try to obtain contract for sale of property were insufficient to generate payment if no agreement for sale of property was ever reached.
Sutton Group Innovative Reality Inc. v. Turner (Dec. 6, 2012, Ont. S.C.J., C.S. Glithero J., File No. SC-11-10715-00) 224 A.C.W.S. (3d) 2.
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Charter of Rights


Seizure of keys from accused valid exercise of power of search incident to arrest

Accused, charged with producing marijuana and possessing same substance for purpose of trafficking, applied for stay of proceedings or exclusion of evidence. Accused was arrested subsequent execution of search warrants on his home and two industrial units when he returned with his family to his residence while police were searching it. Police used keys found on accused to open industrial units where large 10,000 plus plant marijuana grow operations were found. Crown conceded that marijuana and oxycondone found in accused’s vehicle were found in violation of his Charter rights. Application dismissed. About 30 minutes before arrest, arresting officer saw three signed search warrants and, based on
those presumptively valid court orders, formed reasonable belief that accused had committed offence of producing marijuana. Before making arrest, officer searched main floor office in residence and found bills for place he believed contained marijuana grow lab. During pre-execution briefing, officer learned that target, accused, lived in house with his wife and child before accused entered home, officer did not hear doorbell or sound of knocking on door; when he heard noise, he looked over and saw accused at front door with woman and child. Seizure of keys from accused’s pocket was valid exercise of power of search incident to arrest.
R. v. Farrugia (Sep. 7, 2012, Ont. C.J., Kelly J., File No. 11-2516) 104 W.C.B. (2d) 1251.
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