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Charter of Rights


Aspects of officers’ evidence did not accord with common sense

Application by accused to exclude evidence against him because his rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were violated. Evidence consisted of loaded gun. One evening accused left his girlfriend’s apartment and walked out of building, across parking lot, to her car. Before he got inside he opened trunk. Accused said he was looking for his child’s hat in trunk and he did not put anything in it. Two police officers testified that they saw him put into trunk what they concluded was handgun. Officers stopped accused after he left parking lot, while he talked on his cell phone, searched trunk and found gun. Accused was handcuffed before gun was found but he was not told he was under arrest. When gun was discovered accused was forced to ground and he was told he was under arrest. Accused was not told what charge was until he was at police station. Accused said neither he nor his girlfriend owned gun and car had been locked. Application allowed and evidence was excluded. There were serious concerns about officers’ reliability and credibility and aspects of their evidence did not accord with common sense. Regarding s. 8, Crown failed to prove that search was reasonable. Officers’ testimony did not prove that search was reasonable. There were valid grounds under Highway Traffic Act (Ont.) to stop accused, but not to search his car, because he was talking on his cell phone as he drove away. However, that was not why he was stopped. Accused’s detention and being handcuffed before gun was found was unlawful. Stop was arbitrary and s. 9 was breached. Evidence was not admitted for to do so would bring administration of justice into disrepute.
R. v. Sterling-Debney (Jul. 5, 2013, Ont. S.C.J., Durno J., File No. CR-12-2571-00) 108 W.C.B. (2d) 19.

Bankruptcy and Insolvency


No evidence respondent had knowledge of representations and covenants

Application by creditor for declaration pursuant to s. 178 of Bankruptcy and Insolvency Act (Can.), that outstanding debt of respondent would not be released by discharge and order lifting stay to permit applicant to take steps to enforce judgment against respondent. Applicant was insurer of mortgages for approved lenders. Respondent was approached by friend, who asked him to co-sign mortgage in order to help recent immigrant purchase property. Respondent was assured immigrant would make all mortgage payments, assume mortgage and title after one year, and pay him $2,500 for helping. Respondent met with purported mortgage broker and vendor, and executed necessary documents. Respondent and friend purchased property as tenants in common with a $516,370 mortgage, insured by applicant. Mortgage went into default and bank obtained default judgment against respondent and friend for $524,577, took possession, sold house and applied $331,875 net proceeds to debt, and then assigned judgment to applicant, who obtained order to continue action. Respondent’s wages were garnished, leading to his bankruptcy. Application dismissed. While it was established that mortgage arose from fraudulent scheme, s. 178(1)(e) did not apply as respondent did not make fraudulent misrepresentations and had no knowledge of those made by friend with respect to income and property value, nor was he wilfully blind. Respondent was part-owner of property and liable for default, which was exactly what bank bargained for. No specific misrepresentation was made with respect to $2,500 payment respondent was to receive. Respondent did not represent he would occupy property and personally make payments, nor did applicant expressly state it intended Standard Charge Term document to be deemed representation under s. 178. Furthermore, there was no evidence respondent ever received documentation or had actual knowledge of representations or covenants contained within. There was no evidence respondent had knowledge of, or was wilfully blind to scheme. While respondent did not ask to meet immigrant or verify information, he explained he had no prior experience and arrangements seemed normal to him, and he trusted his friend. It was at least probable respondent’s evidence was credible. Friend joined respondent and co-mortgagor and respondent had no reason not to trust him. Mere fact that respondent was bank employee was not sufficient to trigger s. 178(1)(d); respondent was acting in capacity as borrower, not as employee. Respondent awarded $28,000 costs.
Canada Mortgage and Housing Corp. v. Gray (Apr. 30, 2013, Ont. S.C.J., H.J. Wilton-Siegel J., File No. Toronto 31-1594404) 229 A.C.W.S. (3d) 333.



Monthly care benefit not calculated based on number of hours caregiver unable to work

Applicant rendered paraplegic in motor vehicle accident. Applicant’s mother took unpaid leave of absence from job in order to care for applicant full-time. Pursuant to Statutory Accident Benefits Schedule (“SABS”), insurers required to provide certain no-fault benefits, including reasonable and necessary expenses incurred by or on behalf of insured for attendant care. Insurer took position that amount payable for attendant care benefits would be pro-rated based on 8 hours per day since mother had foregone only 40 hours per week paid work to care for applicant. Application judge held that insurer’s obligation not limited to care provided during 40 hours per week of paid work foregone by mother, concluding that insurer must pay attendant care benefits for entire 24 hours per day applicant required. Insurer’s appeal dismissed. Section 3 of SABS provides that expense in respect of attendant care costs not “incurred” unless insured received such care and person who provided care sustained economic loss as result of providing care. Issue was whether expense was incurred by insured with respect to attendant care services provided by mother outside of normal work hours. SABS incorporated in every standard insurance policy so principles applicable to construction of insurance coverage provisions applicable. Insurance coverage provisions to be interpreted broadly whereas coverage exclusions or restrictions to be construed narrowly. To extent “incurred” restricts coverage, it must be interpreted narrowly. Economic loss serves as threshold for entitlement to attendant care benefits. Amount of monthly care benefit to be calculated based on number of hours of each type of attendant care insured requires, subject to maximums. Monthly care benefit not calculated based upon number of hours family caregiver unable to work or quantum of economic loss sustained by caregiver.
Henry v. Gore Mutual Insurance Co. (Jul. 16, 2013, Ont. C.A., Janet Simmons J.A., Alexandra Hoy J.A., and G.R. Strathy J.A., File No. CA C55845) Decision at 216 A.C.W.S. (3d) 224 was affirmed.  229 A.C.W.S. (3d) 545.



Fact that decision-maker preoccupied with time not prejudicial to foreign national

Application by foreign national for judicial review of decision of Immigration Appeal Division (“IAD”) of Immigration and Refugee Board refusing appeal from removal order. Foreign national, aged 50, was citizen of Jamaica who had first come to Canada in 1983. Foreign national accumulated significant criminal record from about 1986 to 1995. Foreign national was convicted of uttering forged document after deliberately using wrong date of birth on driver’s licence application in 2007. Removal order was issued against foreign national on basis of serious criminality. Foreign national unsuccessfully appealed to IAD. Appeal had been heard by videoconference. Decision-maker had repeatedly mentioned need to finish hearing on time. Application dismissed. Fact that decision-maker had been preoccupied with time was not shown to have been prejudicial to foreign national. Foreign national provided no evidence or specifics about anything he was not able to present at hearing. Foreign national and his counsel would have known immediately if they had not been allowed to present case adequately in time available. Foreign national had not raised issue before decision-maker and so could not do so now. There was no evidence of failure of communication during videoconference that had led to some material omission or mistake in decision.
McCurvie v. Canada (Minister of Citizenship and Immigration) (Jun. 18, 2013, F.C., James Russell J., File No. IMM-8546-12) 229 A.C.W.S. (3d) 529.



Certain documents suggested veteran could have been exposed to Agent Orange

Application by veteran for judicial review of decision of Veteran’s Review and Appeal Board refusing to reconsider prior decision upholding denial of entitlement to pension. Veteran had served in Canadian Armed Forces from December 30, 1954 to January 1, 1975. Veteran had spent much of this time working at base at which Agent Orange had been sprayed in 1966 and 1967. Veteran was diagnosed with prostate cancer in 1994 at age of 62. In 2005, veteran unsuccessfully applied to Department of Veterans Affairs for disability benefits. Department cited lack of evidence establishing veteran’s exposure to Agent Orange. Veteran unsuccessfully appealed to board and unsuccessfully applied for reconsideration. Veteran unsuccessfully applied for another reconsideration on basis of new evidence from witnesses indicating veteran had been exposed to Agent Orange. Application granted; matter remitted for re-determination. Board had erred in finding proposed new evidence was not credible because of apparent contradiction with report claiming no possibility of direct exposure to Agent Orange. Report itself had not been in record before board. Other documents before board did not refer to report’s claim of no possibility of direct exposure to Agent Orange. Certain documents actually suggested veteran could have been directly exposed to Agent Orange. Proposed new evidence was relevant and, if believed, could reasonably have been expected to have affected result.
McAllister v. Canada (Attorney General) (Jun. 19, 2013, F.C., Cecily Y. Strickland J., File No. T-1421-12) 229 A.C.W.S. (3d) 430.

Constitutional Law


Historic trade-off of compensation in lieu of right to sue

Ship capsized while returning from fishing expedition. Dependants (Estates) of brothers killed in capsize received Workplace Health, Safety and Compensation Act (Nfld. & Lab.) (“WHSCA”), compensation but commenced proceedings under federal Maritime Liability Act (Can.) (“MLA”), against University Marine, Marine Services International and employee, and against Attorney General of Canada, alleging negligence in design and construction of ship and inspection. Workplace Health, Safety and Compensation Commission held action prohibited by statutory bar in s. 44 of WHSCA, but Supreme Court, Trial Division, overturned decision. Majority of Court of Appeal upheld trial judgment. Appeal to Supreme Court of Canada allowed. WHSCA provides no-fault compensation to workers and dependants arising from workplace accidents, replacing tort action for negligence with compensation. Section 44 of WHSCA provides statutory bar; right to compensation instead of rights of action to which worker or dependants entitled due to workplace injury. Workers’ compensation schemes generally fall within provincial jurisdiction over property and civil rights. Historic trade-off of compensation in lieu of right to sue at heart of workers’ compensation schemes, distinct from and do not interact with tort regimes. Statutory bar applied. No direct employment relationship between brothers and Marine Services but any employer contributing to scheme benefits from statutory bar. No dispute brothers injured in course of employment, that Marine Services employer under WHSCA. Commission’s finding that injury that led to brothers’ death occurred in conduct of operations usual in industry carried on by Marine Services reasonable. Constitutional issue was whether statutory bar in provincial workers’ compensation scheme could preclude federal maritime negligence action. Interjurisdictional immunity protects core of exclusive classes of subject created by Constitution Act, 1867 but has limited application. Prior case law favoured application but while maritime negligence law at core of federal power over navigation and shipping and s. 44 of WHSCA trenches on that core, level of intrusion insufficient to trigger interjurisdictional immunity. Federal paramountcy applies where inconsistency between valid federal and provincial legislative enactments but not where inconsistency between common law and legislative enactment. Under proper interpretation of MLA, federal paramountcy does not apply. Section 6(2) of MLA, which provides that if person dies by fault or neglect of another under circumstances that would have entitled person, if not deceased, to recover damages, dependants of deceased may maintain action for loss resulting from death against person from whom deceased person would have been entitled to recover, accommodates s. 44 of WHSCA. Estates received compensation and became subject to statutory bar because brothers succumbed to injury for which they would have received compensation had they lived. No conflict between two statutes distinct in purpose and nature.
Newfoundland (Workplace Health, Safety & Compensation Commission) v. Ryan Estate (Aug. 2, 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. 34429) Decision at 214 A.C.W.S. (3d) 426 was reversed.  229 A.C.W.S. (3d) 404.

Civil Procedure


Litigation not contemplated as dominant purpose in commissioning investigation

Motion by plaintiff for production of documents. Plaintiff contracted with defendant for various items of electrical work from 1980 to 2001 on basis of contracts that were awarded according to process set out in unilateral bidding contracts. Plaintiff claimed that from 2005 on, it was excluded from projects, except for two minor ones, in spite of having been asked to bid. Plaintiff said it was excluded corruptly and in breach of bidding contract, and that defendant agents libelled plaintiff by publishing defamatory comments to persons in industry. In examination for discovery of defendant’s representative, plaintiff asked for production of reports of investigations commissioned by defendant. Defendant refused to produce reports on basis of litigation privilege and solicitor-client privilege. Motion granted. One report was commissioned to determine merits of allegations and whether any internal action was required. It had nothing to do with litigation. Second report was result of independent investigation by external body with relevant expertise. Litigation was not contemplated as dominant purpose in commissioning investigation. Solicitor-client privilege did not apply. Retainer of investigator was not essential to existence or operation of solicitor-client relationship. Both reports were to be produced within 30 days.
Weinmann Electric Ltd. v. Niagara Falls Bridge Commission (May. 15, 2013, Ont. S.C.J., J.A. Ramsay J., File No. St Catharines 53868/12) 228 A.C.W.S. (3d) 657.



Phrase “including GST” did not imply discount to appellant

Appellant appealed application judge’s interpretation of contract. Appellant was Indian Band. Respondent provided fundraising services to clients such as appellant. Respondent contracted with appellant to solicit donations. Contract provided that respondent would be paid fee equal to 15%, including GST of gross amount of donations raised for appellant. Appellant was exempted from paying GST on services provided to it. Service provider to appellant was not required to collect GST from it. Dispute arose. Appellant argued that GST constituted deduction from 15% it was required to pay while respondent claimed that “including GST” meant that GST payable on services to appellant was zero because of exemption. Application judge agreed with respondent’s interpretation. Appeal dismissed. Phrase “including GST” referred to GST that client had to pay for services, which given appellant’s tax exempt status was zero. Phrase “including GST” did not imply discount to appellant. Application judge was correct to find that language of contract was clear and that respondent read it correctly.
Global Learning Group Inc. v. Eskasoni First Nation (May. 16, 2013, Ont. C.A., M. Rosenberg J.A., S.T. Goudge J.A., and M. Tulloch J.A., File No. CA C56153) 228 A.C.W.S. (3d) 693.



Insufficient to tax taxpayer solely because person under audit pointed to them

Appeal by taxpayer. In payroll audit of group of related companies, companies provided list of subcontractors that included taxpayer’s misspelled name and address. Apart from confirming that taxpayer lived at address provided, CRA did no other verification that taxpayer received any amounts from audited group of companies before assessing him to add $28,000 in income. Appeal allowed. Taxpayer, who spoke only Russian, consistently maintained that he had never heard of any of these companies or their principals, never worked for any of them, and never received any money from them. Taxpayer’s position was plausible prima facie while Minister did not adduce credible evidence to support assessing position. It was simply insufficient to tax taxpayer solely because person under audit pointed to them and provided their name and address. Names and addresses were readily available publicly, and audited companies did not provide social insurance numbers or any other evidence to support amounts allegedly paid to those on list. No reconciliation of taxpayer’s banking records or net worth assessment was conducted. Principal of one company testified that she hired taxpayer as driver but that her company did not pay him. It was entirely possible that taxpayer did work for and got paid by these companies, but evidence fell very short of establishing that conclusion on balance of probabilities.
Gorfain v. R. (Apr. 10, 2013, T.C.C. [Informal Procedure], Patrick Boyle J., File No. 2012-1331(IT)I) 228 A.C.W.S. (3d) 871.



Public college may have credit against tax applied retroactively

Appeal by registrant from assessment by Minister under Excise Tax Act (Can.). Registrant was public college. Registrant purchased three properties on which it paid GST. Registrant was entitled to partial rebate of GST under s. 259 of Act, but failed to report purchases and pay net amount due in timely manner. Registrant noted failure to pay and made late payment, claiming rebate. Minister assessed interest on purchases as of payment due date but credited rebates only as of date they were claimed, so that interest on GST payable was assessed rather than on net amount due for period between payment due date and date of actual payment. Appeal allowed. Section 280 of Act only imposed interest on after-rebate amount owing by registrant. Provisions governing transaction could be read literally to impose tax on gross GST, but this was not purposive or contextual approach. Effect of s. 296(2.1) of Act is that public college may have credit against tax applied retroactively so that no interest arises on full amount of GST prior to rebate, when three conditions are met, and s. 296(2.1)(b) simply presumes that college applying for rebate would have retroactive treatment. Wording of rebate provided in s. 259(3) and (5) supported conclusion that registrant was entitled to rebate. Absurdity would result if sections were interpreted differently so that college that did not apply for rebate would get retroactive treatment, while college that did apply for rebate would not. Allowing rebate where error was discovered by Canada Revenue Agency or late GST return was filed without claiming rebate, but not allowing rebate where late return claiming rebate was filed, was improper. Portion of s. 296(2.1)(b) requiring that no claim for rebate be made could not be ignored in circumstances where claim had not been made at time of reassessment resulting in same rebate.
Humber College Institute of Technology & Advanced Learning v. R. (May. 7, 2013, T.C.C. [Informal Procedure], Campbell J. Miller J., File No. 2012-1721(GST)I) 228 A.C.W.S. (3d) 869.
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