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Aboriginal Peoples


Raising breach of duty to consult and of treaty rights was abuse of process

Crown granted plaintiff company timber sale licences and road permit to log certain land. Defendants, members of family and members of Fort Nelson First Nation (FNFN), were licensed to trap in area within territory of FNFN. Land covered by licences was within defendants’ trapping territory. Defendants impeded company’s access to logging areas. Company brought action against defendants, Crown and FNFN. Defendants maintained they erected lawful camp on family territory pursuant to treaty rights, claiming that licences and road permit granted in breach of Crown’s duty to consult. Company successfully applied to strike out certain paragraphs of statement of defence on grounds that individual members of FNFN did not have standing to advance legal positions because rights asserted were collective rights of aboriginal community and that challenge to instruments constituted impermissible collateral attack. Defendants’ appeal dismissed. Crown has duty to consult aboriginal peoples in context of treaty rights. Duty to consult exists to protect collective rights of Aboriginal peoples and owed to aboriginal group that holds s. 35 Constitution Act, 1982 rights, which are collective in nature. Aboriginal group can authorize individual or organization to represent it for purpose of asserting s. 35 rights but FNFN did not authorize defendants to represent it for purpose of contesting legality of impugned instruments. Defendants not entitled to assert breach of duty to consult on their own as duty owed to aboriginal community. Raising breach of duty to consult and of treaty rights as defence in circumstances was abuse of process. Neither defendants nor FNFN made any attempt to legally challenge instruments when granted. By blocking access to logging sites, defendants put company in position of having to go to court or to forgo harvesting timber pursuant to licences it received after incurring substantial start-up costs. To allow defendants to raise defence based on treaty rights and on breach of duty to consult at this stage would amount to repudiation of duty of mutual good faith and constitute abuse of process.
Moulton Contracting Ltd. v. British Columbia (May. 9, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34404) Decision at 203 A.C.W.S. (3d) 684 was affirmed.  226 A.C.W.S. (3d) 612.

Building Liens


Contractor appropriating funds for its own use inconsistent with trust

Contractor and project owners entered into fixed price construction agreement relating to construction of aircraft hangar. Project owners paid contractor deposit for commencement of fabrication of pre-engineered metal building components for hangar. Contractor retained plaintiff to fabricate and furnish pre-engineered metal building components but failed to make any payments pursuant to plaintiff’s invoice. Plaintiff registered claim for lien on improved property. Project owners made direct partial payment to plaintiff but over $50,000 remained outstanding. Contractor maintained that project owners owe over $120,000 to contractor. Plaintiff applied for summary judgment on basis that moneys received by contractor were subject to trust and against individual defendants for breach of trust committed by contractor. To prove existence of trust, claimant must demonstrate that contractor received moneys on account of contract price for particular project, that claimant supplied services or materials on project and that contractor owes money to claimant for those services or materials. Evidence established that deposit moneys received by contractor were on account of contract with project owners, that plaintiff supplied services and materials to project and that plaintiff was still owed over $50,000 for those services and materials; deposit moneys therefore subject to trust. Obligations of trustee apply to both deposit and monies due and owing. Defendants failed to raise any kind of meaningful defence. Fact that contractor may have right to bring third party proceedings against project owners of no relevance. Contractor appropriated or converted funds for its own use inconsistent with trust; contractor therefore breached its obligation as trustee. Both defendants, as directors or officers, knew or ought to have known that payments were made out of trust funds in contravention of trust; defendants jointly and severally liable for breach of trust.

Varco Pruden Buildings v. Thom Win Construction Ltd. (Feb. 22, 2013, Ont. S.C.J., McCarthy J., File No. Barrie CV-12-0196 SR) 226 A.C.W.S. (3d) 397.

Bankruptcy and Insolvency


Judgment debt survived bankruptcy

Application for declaration that judgment debt survived bankruptcy of respondent. Respondent had been president of applicant company. Applicant obtained summary judgment finding that respondent had misappropriated funds while acting in fiduciary capacity. Respondent had not been declared bankrupt. Application granted. Bankruptcy was not precondition to determination of whether debt was of a nature that brought it within s. 178(1)(d) of Bankruptcy and Insolvency Act (Can.). Judgment debt survived bankruptcy. Declaration not merely hypothetical.

Sunwell Investments Ltd. v. Cheung (Jan. 22, 2013, Ont. S.C.J., Goldstein J., File No. CV-12-464348) 226 A.C.W.S. (3d) 340.



No evidence to support finding that witness involved in murder

Appeal by accused from his conviction for murdering his wife. Identity was central issue at trial for whoever killed victim was guilty of murder. Crown’s case was circumstantial. Accused testified and he denied that he had anything to do with wife’s death. Primary ground of appeal arose out of trial judge’s refusal to allow accused’s counsel to put to accused, on his re-examination, extract from statement that accused gave to police. Counsel had resisted admissibility of that statement and any evidence derived from it throughout trial, which included accused’s cross-examination. After cross-examination was over counsel changed his position and he argued that extract was admissible. Judge held that statement was neither consistent with accused’s trial testimony, nor properly offered to rebut allegation of recent fabrication. Other ground of appeal arose from evidence of Crown witness. Witness was co-worker of accused and his wife and he had affair with wife at time of her death. Accused claimed judge wrongly instructed jury that there was no evidence that witness was involved in murder and she improperly prohibited cross-examination of witness to show his possible connection to homicide. Appeal dismissed. There was no allegation of recent fabrication explicit or implicit in cross-examination of accused so as to permit counsel to adduce prior consistent statement on re-examination. Trial record did not support admissibility of statement. Other ground was rejected for there was no evidence that could support finding that witness was involved in murder. Judge did not improperly prohibit cross-examination of witness but she properly took steps to prevent jury from speculating about witness’s possible involvement in murder.

R. v. Kailayapillai (Apr. 22, 2013, Ont. C.A., Doherty J.A., Alexandra Hoy J.A., and S.E. Pepall J.A., File No. CA C51102) 106 W.C.B. (2d) 270.



Response to question about partial liability incomplete and confusing

Accused charged with two counts of first degree murder. Accused and accomplice carried out home invasion robbery in which two elderly victims were bludgeoned. Accused and accomplice each testified that the other killed the victims contrary to their original plan. Court of Appeal dismissing accused’s appeal from convictions. Appeal allowed and new trial ordered. Trial judge’s response to question about party liability was incomplete and confusing.

R. c. Lévesque (Apr. 16, 2013, S.C.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 34417) 106 W.C.B. (2d) 328.



Defence counsel at trial performed competently

Accused charged with incest and sexual assault. Accused’s 15-year-old daughter testified that accused came into her bedroom at 4:00 a.m. after night of drinking and engaged in cunnilingus and sexual intercourse. Accused testified that on night in question he returned home and passed out on kitchen floor and denied any sexual activity with his daughter. Theory of defence was that complainant invented allegations out of anger that accused and his new wife refused her request to move in with them. Trial judge accepted complainant’s evidence and convicted accused. Accused on appeal alleged that his trial counsel was ineffective and tendered fresh evidence affidavits from witnesses who were not called at trial. Some witnesses offered evidence of complainant’s anger at accused for not allowing her to move in to his house and others gave evidence to contradict accusations made in complainant’s police statement that accused sexually assaulted her on one other date. Majority of Court of Appeal allowed appeal from convictions and ordered new trial. Appeal allowed and convictions restored. Defence counsel at trial performed competently. Proposed fresh evidence could not reasonably be expected to have affected the result at trial.

R. v. M. (G.) (Apr. 25, 2013, S.C.C., McLachlin C.J.C., Fish J., Abella J., Moldaver J., and Karakatsanis J., File No. 34952) Decision at 103 W.C.B. (2d) 11 was reversed.  106 W.C.B. (2d) 266.



As long as applicant could not be open about health condition, he was danger to public

Application for judicial review of decision by Citizenship and Immigration Canada (“CIC”), whereby applicant was determined to represent danger to public in Canada pursuant to s. 115 of Immigration and Refugee Protection Act (Can.). Applicant was citizen of Zimbabwe who came to Canada in 2001 with assistance of Canadian woman he had met in Zimbabwe. Applicant subsequently tested positive for HIV in 2001, and subsequently admitted to having been HIV positive since 1995. Applicant entered into succession of relationships with women without disclosing his HIV status. Applicant was convicted on four counts of aggravated sexual assault and was sentenced to ten years of incarceration with credit for time he had spent in custody. Immigration Division issued deportation order against applicant based on his inadmissibility for serious criminality. In October 2009, Canada Border Services Agency issued warrant for applicant’s removal from Canada. In July 2012, officer from CIC determined that applicant had committed serious crime and constituted danger to public in Canada, pursuant to s. 115(2)(a) of Act. CIC concluded that applicant had made habit of hiding his health condition and that as long as he could not be open about it, he constituted danger to public. Application dismissed. Determinations of CIC that applicant presented danger to public in Canada, its risk assessment of applicant’s situation and its analysis of humanitarian and compassionate considerations were reasonable.

Mzite v. Canada (Minister of Citizenship and Immigration) (Mar. 19, 2013, F.C., Simon Noël J., File No. IMM-7797-12) 226 A.C.W.S. (3d) 527.

Customs and Excise


Conveyances at issue are not exempt from seizure

Plaintiffs consisted of 115 individual members of Mohawks of Akwesasne and their elected community government, Mohawk Council of Akwesasne (“MCA”). Mohawks of Akwesasne are recognized as “Indians” under Indian Act (Can.) (“IA”), and group as “aboriginal people” within meaning of s. 35 of Constitution Act, 1982. They have reserve territory that spans across Provinces of Ontario and Quebec (Reserve Nos. 59 and 15, respectively), and into State of New York. Cornwall Island is entirely within Reserve No. 59 in Ontario. Only practical way to cross by land between Reserve Nos. 15 and 59 is by crossing International Bridge into United States. Akwesasne community comprise up to 70% of border traffic at Cornwall Point of Entry (“POE”). Cornwall POE is eleventh busiest land border crossing in Canada in terms of number of people processed annually. It has also been identified by Canada Border Services Agency (“CBSA”) as port with high risk for illegal activities, such as smuggling. On September 18, 2009, CBSA began active enforcement of reporting requirement. This enforcement involved seizing vehicles that had allegedly been used to transport persons into Canada, who then failed to report to POE. Each plaintiff was lawful owner of vehicle seized by CBSA. At all material times, each plaintiff was ordinarily resident of Canadian Reserves. Between September 18, 2009, and April 30, 2010, vehicle owned by each of 115 individual plaintiffs was seized for failing to report to POE, as required by Customs Act (Can.) (“CA”). CBSA subsequently released vehicle when driver or, more frequently, MCA, paid specified amount for its release. In most cases, this amount was set at $1,000. Plaintiffs brought proceedings pertaining to seizure of their vehicles. Joint motion was brought for preliminary determination of question of law: does seizure of vehicles by CBSA at POE at Cornwall constitute unreasonable interference with plaintiffs’ privacy interest; are plaintiff’s vehicle protected from seizure by s. 89 of IA; and does CBSA official who made final determination regarding plaintiff’s appeals (i.e. of finding that vehicle was used in contravention of CA and confirmation of forfeiture of assessed amount held in exchange for release of vehicle) have properly delegated authority to make such a decision?. Seizure of vehicles by CBSA at POE at Cornwall does not engage right to be secure against unreasonable search or seizure under s. 8 of Canadian Charter of Rights and Freedoms, and cannot, therefore, constitute violation thereof. As CA provisions at issue constitute civil proceedings, this case does not meet even basic threshold to engage s. 8 of Charter. Seizures effected under CA are beyond scope of protections in s. 89 of IA, and conveyances at issue are not exempt from seizure. CBSA’s use of civil remedies provided for in CA to enforce border legislation does not fit within scope of s. 89. Such action is distinct from other mechanisms listed in s. 89 of IA, including mortgages, levies and execution of civil judgments. CBSA official who made final determination regarding plaintiffs had properly delegated authority to make such a decision.

Mohawk Council of Akwesasne v. Canada (Minister of Public Safety and Emergency Preparedness) (Dec. 6, 2012, F.C., D.G. Near J., File No. T-859-12) 226 A.C.W.S. (3d) 416.

Administrative Law


Tribunal had no authority to compel negotiations

Applicant reversed bargaining position and refused to bargain minimum fees for right to use existing works with respondent after having done so for many months. Tribunal found applicant failed to bargain in good faith. Tribunal refused to exercise discretion in declaring copyright could be subject matter of scale agreement under Status of the Artist Act (Can.) (“SAA”). Application for judicial review was allowed. Tribunal had no authority to compel negotiations or deal with such negotiations. Jurisdiction could not be conferred by consent. Matters relating to copyright including imposition of minimum fees for use of existing works did not fall within SAA. Applicant could not agree to scale agreement affecting copyrights and applicant’s refusal to pursue negotiations relating to matters could not be attributed to failure to negotiate in good faith. Pelletier dissented and would have dismissed application for judicial review finding conclusion that applicant failed to bargain in good faith was reasonable and interpretation even to “provision of services” by tribunal did not create conflict between SAA and Copyright Act (Can.).

National Gallery of Canada v. Canadian Artists’ Representation (Mar. 4, 2013, F.C.A., Marc Noël J.A., Johanne Trudel J.A., and J.D. Denis Pelletier J.A., File No. A-84-12) 226 A.C.W.S. (3d) 557.



Trial judge has jurisdiction to conduct post-verdict inquiry into extrinsic matters

Motion for mistrial or stay of proceedings. Two accused charged with possession of heroin for purpose of trafficking. Jury reached verdict that accused were both guilty; jury was discharged and accused were remanded for sentencing. Shortly afterward Court Services Officer assigned to jury found document in jury room in plain view when cleaning up. Document was sitting on top of binder used by one juror for notes. Document contained excerpt from online article criticizing American jury’s acquittal of Casey Anthony of murder of her daughter, accusing juries of “ignorance, failure to use common sense, and inability, or disinclination to properly weigh evidence”. Subsequent paragraphs were taken from model jury instructions published by Canadian Judicial Council online. Charge to jury which court delivered to jury in writing, was based upon Ontario Specimen Jury Instructions (Criminal) as modified by trial judge. One accused sought mistrial; other sought inquiry to create record in timely fashion for consideration on appeal. Trial judge generally has no jurisdiction to hear motion for mistrial once jury has been discharged, or to enter stay of proceedings. But even if functus trial judge could not interfere with verdict, inquiry would create a record for court’s consideration on appeal. Trial judge does have jurisdiction to conduct post-verdict inquiry into extrinsic matters but not on matters intrinsic to jury’s deliberative process. Whether case rose to level of miscarriage of justice would be for Court of Appeal to decide. Given that at least one juror was conducting independent legal research and bringing it into jury room, inquiry warranted into whether other extrinsic research was undertaken, and if so, whether it was shared with other jurors. Questions for jurors could be formulated to avoid violating jury secrecy rule. It was necessary to proceed with an inquiry.
R. v. Bains (Feb. 12, 2013, Ont. S.C.J., F. Dawson J., File No. CRIM J(F) 1423/11) 105 W.C.B. (2d) 728.
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