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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.

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Charter of Rights


Trial judge linked accused’s silence to finding that accused’s evidence lacked credibility

Accused appealed conviction for refusing to provide breath sample into approved screening device. Officer believed that accused was texting with his smart phone and stopped accused’s vehicle, but he never saw cell phone in accused’s hands. Officer saw nothing remarkable about accused’s driving before he stopped him, but noticed odour of alcohol on accused when he approached vehicle. Officer testified that accused indicated that he understood breath demand, but refused to comply. Accused testified that vehicle had been used for bottle drive and that some of alcoholic content from bottles had spilled inside car and had not yet been cleaned up, leaving strong odour in vehicle. Accused testified that officer questioned him in aggressive manner and that he kept silent when breath sample demand was made because he felt intimidated and felt that he would not be treated fairly. Trial judge held that accused was not arbitrarily detained, but found breach of his s. 9 rights under Canadian Charter of Rights and Freedoms by police over-holding him where there were no indicia of impairment. Accused argued that trial judge erred by linking rejection of his evidence to his right to silence under Charter, particularly his silence regarding reason for interior of car smelling of alcohol. Accused argued that trial judge erred by finding that officer had reasonable and probable grounds to believe that he was texting while driving and by failing to find that initial stop was arbitrary. Appeal allowed, conviction and sentence vacated, stay of proceedings entered. It was clear that trial judge linked accused’s silence regarding smell of alcohol in vehicle to major finding that accused’s evidence lacked credibility. Only two objectively discernible facts were that accused was in front seat of his car with his head illuminated from below, and his head was pointed downward while at red light. There was no evidence of bad or distracted driving or of communication device being used by accused, only appearance of such by officer whose interest was heightened to such behaviour. This was investigation that used initial stop on flimsy grounds to become immediately investigation of drinking and driving offence for which there was not even hint of articulable cause. Stop that detained accused was done on perhaps slightly more than hunch but no more than guess plus assumed facts from subjectively mounted appearance. Initial stop breached accused’s s. 9 Charter rights. This was clear case warranting stay of proceedings. Allowing process to continue in any way, considering less serious nature of charge, would have been seen by informed public as unfair in circumstances.
R. v. Mughal (Dec. 18, 2013, Ont. S.C.J., Howden J., File No. Barrie 13-026) 111 W.C.B. (2d) 59.



Accused’s movements while intentionally assaulting complainant caused gun to discharge

Accused charged with attempted murder, aggravated assault, discharging firearm with intent to endanger life, armed robbery, pointing firearm, knowingly possessing firearm without licence, possession of firearm while prohibited, and failing to comply with probation condition not to possess firearm. It was admitted that both young offender and accused were involved in altercation that took place and that one of those two individuals shot complainant. Crown took position that only reasonable inference available on evidence was that accused was in possession of gun that discharged and shot complainant during physical altercation between accused and complainant after accused had dragged complainant from his car. Defence conceded that accused hit complainant in head with metallic object, but argued that blow inflicted upon complainant’s left temple could have been with metallic object or weapon other than gun. Accused not guilty of attempted murder, discharge firearm with intent to endanger life, point firearm; accused guilty of aggravated assault, robbery while armed with firearm, possession of firearm without licence, possession of firearm while prohibited and failure to comply with probation order. Court found that Crown had proved that accused guilty of aggravated assault as principal, and it was not necessary to rely on party liability either by concessions made by defence, or alternative analysis urged by Crown. Accused clearly intended to apply force to complainant that he knew complainant did not consent to when accused hit complainant over head with firearm while complainant was seated in car, dragged him out of car and started punching him with one or both hands. During this assault, gun discharged, causing injuries that meet definition of wounding, maiming, disfiguring and endangering of complainant’s life. Only reasonable inference was that accused’s movements while he was intentionally assaulting complainant caused gun to discharge. Alternatively, if court was wrong in its conclusion that accused was in possession of firearm that shot complainant, court reached conclusion that accused was liable as party to aggravated assault if young offender was shooter. Court found both that accused struck complainant with handgun and that he was in possession of it and discharged handgun when complainant was struck. Court was not convinced accused ever pointed handgun at complainant when he was hitting him (basis for pointing charge).
R. v. Dawkins (Jun. 14, 2013, Ont. S.C.J., J. Wilson J., File No. CR13-70000371-00) 111 W.C.B. (2d) 74.

Civil Procedure


Mother aware of process to request bilingual hearing and did not pursue matter

Mother and father separated in 2010, and entered two agreements which provided for joint custody of two children, born 2004 and 2007, equal residential time and no child support. Unfortunately, relations soon deteriorated. By January 2012, mother had not seen children for over one year and father granted interim custody. In March 2012, parties agreed mother should have supervised access up to two hours per week. In May 2012, mother ordered to pay child support of $1,098 per month on income of $74,484 per year. In July 2012, court ordered custody and access assessment, but assessment did not proceed because mother failed to provide one-half of retainer. In January 2013, trial fixed for November 2013 with bilingual judge, reporter and interpreter to accommodate francophone mother. However, shortly before trial, mother applied for adjournment to arrange for assessment or appointment of lawyer to represent children and unsupervised access in interim. Mother also applied to have all previous orders set aside on ground they had been made in violation of her right to bilingual hearing. Applications dismissed. Under ss. 125 and 126 of Courts of Justice Act (Ont.), party could request bilingual proceeding. Pleadings and documents could be in French as of right in specified areas and with consent in others. However, in Family Court of Superior Court of Justice, originating process could be written in French and documents could be filed in French. No question mother could file any future documents in French. However, that did not mean that previous orders should be set aside. Mother aware of process to request bilingual hearing, at least since December 2011, and did not pursue matter. Apparent that mother relatively proficient in English. Situation that led to father`s application for interim custody had nothing to do with language and warranted change whether hearing conducted bilingually or not. Mother would be able to have court consider all evidence afresh in upcoming bilingual trial.
Sera v. Amboise (Nov. 14, 2013, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket FC-10-035725-00) 235 A.C.W.S. (3d) 746.

Bankruptcy and Insolvency


Creditors should not have to rely on fraudulent conveyance claim

Judgment creditors obtained $317,731.17 judgment plus $20,000 costs and $5,000 appeal costs against debtor and were only able to recover $3,700 through garnishment. Debtor and wife lived luxurious lifestyle, but debtor claimed he lost everything in stock market, had no income, was supported by wife and owed money on credit cards and car leases, which were being paid by wife. At time of judgment, debtor was registered owner of 1% of matrimonial home, which he then transferred to wife. Application by judgment creditors for bankruptcy order against debtor. Application allowed. Judgment was continuing demand for payment and debtor conceded he had not met liabilities on it. Under plain meaning of Bankruptcy and Insolvency Act (Can.), debtor had also ceased to meet liabilities on other debts. That wife was voluntarily making payments on debtor’s leases and credit cards did not change fact that he was unable to do so. Even if judgment was only debt to be considered, it so was so large in proportion to assets and income of debtor, had been outstanding for two years with collection efforts unsuccessful, so it alone justified bankruptcy order. There were also suspicious circumstances surrounding funding for matrimonial home and debtor’s actions in trading in car for lower lease payments after judgment had been entered. Creditors should not have to rely on their fraudulent conveyance claim and bankruptcy would allow trustee to exercise buy-out rights on leased vehicles and investigate debtor’s property in Nigeria. Debtor adjudged bankrupt.
Okoakih, Re (Dec. 9, 2013, Ont. S.C.J., Newbould J., File No. 31-OR-207983-T) 235 A.C.W.S. (3d) 604.



Rigorous physical presence test for determination of citizenship residency requirements 

Foreign national of Pakistan became permanent resident of Canada, spent four days in Canada, then returned to college in California. Three years later, foreign national applied for citizenship. Foreign national had spent either 143 days or 159 days, as stated alternatively in her documents, being physically present in Canada in preceding four years. Citizenship judge granted citizenship on ground foreign national had centralized her mode of residence in Canada, and met requirements of s. 5(1)(c) of Citizenship Act (Can.), even though she fell short of Act’s requirement of 1,095 days of physical presence in Canada in four years preceding her application. Minister brought application to appeal and set aside decision of citizenship judge. Application granted. Decision of citizenship judge set aside, to be disposed of by different panel in accordance with directions concluding that foreign national had not met residency requirements of Act. Report of Standing Committee on Citizenship and Immigration made in 1994 considered s. 5(1)(c) of Act, and appropriateness of Federal Court’s decisions truncating requirements of physical presence to establish residency committee concluded that definition of residency in new Act should require significant degree of physical presence preceding citizenship application. While its recommendations did not lead to legislation changing residency test, committee did unanimously endorse rigorous physical presence test for determination of citizenship residency requirements. Extrinsic evidence endorsed continuing legislative purpose of s. 5(1)(c) that would impose either significant physical residency requirement very nearly approaching three years, or, as exception to rule, some other truly analogous circumstance that can stand in for Canadianization.
Canada (Minister of Citizenship and Immigration) v. Naveen (Oct. 18, 2013, F.C., Peter Annis J., File No. T-1959-12) 235 A.C.W.S. (3d) 608.

Customs and Excise


Traveller did not have documentation that justified importation of fried chicken

On entering Canada via air from El Salvador, traveller completed Canada Border Services Agency (“CBSA”) declaration card on which he indicated he was not importing food, plant, animal or plant products into country. Upon secondary inspection, $18 worth of fried chicken was found in traveller’s luggage. Traveller received $800 penalty with option of reducing it to $400 by paying within 15 days. At hearing before Canadian Agricultural Review Tribunal, traveller admitted he owned luggage, but denied knowing about chicken. Traveller claimed his mother packed it without his knowledge. Parties agreed CBSA officer was not satisfied on reasonable grounds that chicken was processed in way that would prevent disease from coming into Canada and that no exemptions from Part IV of Health of Animals Regulations (Can.), assisted traveller. However, tribunal found that since traveller had not been given opportunity to justify importation of chicken after it had been discovered, he was not liable for penalty. CBSA brought application for judicial review of tribunal’s decision. Application granted. Clear intention of Parliament in Regulations was to provide for absolute liability regime for violations. Traveller did not have documentation that justified importation of chicken pursuant to exemptions in Part IV of Regulations. Therefore, decision by tribunal that traveller was to have been provided with reasonable opportunity to justify his importation of animal products beyond provisions of Part IV after they were discovered was error of law. Matter was remitted to tribunal for fresh determination.
Canada (Border Services Agency) v. Castillo (Nov. 20, 2013, F.C.A., K. Sharlow J.A., Robert M. Mainville J.A., and David G. Near J.A., File No. A-55-13) 235 A.C.W.S. (3d) 696.



Appellant could not benefit from subsequent changes in law having not appealed order

Appellant brought motion for order requiring respondent to produce documents and to cross-examine respondent’s officials for pending judicial review. Motion was dismissed. Deputy judge was over age 75 at time of order. Appellant’s motion for reconsideration of order was dismissed. As result of court’s decision deputy judges over 75 years of age could no longer determine matters. Appellant resumed motion for reconsideration claiming deputy judge had no power to make order. Appellant never appealed order. Motion was dismissed because court did not have legal authority to grant relief sought under Rule 397 of Federal Court Rules (Can.), and order was to be taken as valid because it was never appealed. Appeal dismissed. Federal Court had no ability to set aside order using reconsideration power under Rule 397, which was limited to correction of small oversights and clerical mistakes. Matter became res judicata on expiry of deadline for filing notice of appeal. Order was presumed to be valid absent proof of fraud. Appellant could not benefit from subsequent changes in law having not appealed order. Yeager v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 5, 2013, F.C.A., Blais C.J., Sharlow J.A., and David Stratas J.A., File No. A-435-12) 235 A.C.W.S. (3d) 802.



Defendants’ actions designed to defeat plaintiffs’ claim for commission

Plaintiffs were real estate brokerage and real estate agent. Defendants were vendors and purchasers of home. Plaintiffs alleged defendant cancelled listing agreement to defeat their claim for real estate commission. Plaintiffs had represented vendors with respect to sale of their home. Purchasers had put in offer on home for $525,000. Offer was rejected by vendors. Vendors then cancelled listing agreement and took home off market. Vendors then re-listed home with new agent and put home back on market. Purchasers then purchased home for $530,000. Plaintiffs brought motion for summary judgment. Motion granted. Defendants re-listed property with new agent five days after cancelling prior listing agreement with plaintiffs. New agent only charged them commission of $1,500 instead of 5% of sale price. Defendants’ actions were designed to defeat plaintiffs’ claim for commission. Judgment was granted in amount of $29,945.
Homelife Professional Realty Inc. v. Moondi (Nov. 19, 2013, Ont. S.C.J., H.S. Arrell J., File No. 12-37464SR) 235 A.C.W.S. (3d) 294.



Plaintiff had no right to have monkey returned to her

Plaintiff had monkey. Plaintiff went shopping and left monkey in double locked crate inside locked car. Monkey escaped from crate and car and ran away. Monkey entered store and was picked up by Toronto Animal Services (TAS). Plaintiff arrived at shelter to claim monkey. TAS would not give monkey to plaintiff, as it was concerned that monkey could contain diseases that were fatal to humans. After plaintiff consulted with husband and friend she signed document that stated “I surrender/sign over the animal”. TAS took animal to defendant sanctuary where sanctuary signed adoption form. Sanctuary refused to give monkey to plaintiff. Plaintiff brought action to recover monkey. Action dismissed. Monkey was not domestic animal. Monkey was wild animal by virtue of behaviour and qualities. Concept of habit of returning home did not apply, as monkey had not previously escaped so it was not possible to know whether it might have returned home. Concept of immediate pursuit did not apply. Although plaintiff immediately pursued monkey once she learned it had escaped, monkey was not stolen. Provisions of city’s bylaw did not oust common law qualified property rights in wild animals. When monkey ran away from plaintiff and she lost possession of him, she also lost ownership of him. Plaintiff had no right to have monkey returned to her. Sanctuary was owner of monkey.
Nakhuda v. Story Book Farm Primate Sanctuary (Sep. 13, 2013, Ont. S.C.J., M.E. Vallee J., File No. Oshawa 81654/12) 235 A.C.W.S. (3d) 297.



All documents filed must be considered before coming to conclusion

Foreign national was alleged citizen of Democratic Republic of Congo (“DRC”) who claimed refugee protection on basis of his political opinion and risk of torture if returned to DRC. Foreign national fled DRC, and came to Canada using false British passport, on which he had inserted his photo. University letter and transcript submitted by foreign national contained numerous spelling errors. Foreign national also submitted driver’s licence and voter card, which included photograph and also submitted arrest warrant, all of which board concluded were not genuine documents. Board rejected claim on ground foreign national had not established his identity. Application granted. Board failed to deal with applicant’s original voter card, which was national identity card in DRC, and his driver’s licence. Board could not come to reasonable assessment of applicant’s identity by only focusing on those documents where authenticity appeared doubtful and ignoring those documents which appeared to be trustworthy. All documents filed and explanations provided by applicant must be considered before coming to conclusion. Board erred in determining that applicant had not established his identity.
Kabongo v. Canada (Minister of Citizenship and Immigration) (Oct. 25, 2013, F.C., Yves de Montigny J., File No. IMM-8204-12) 235 A.C.W.S. (3d) 475
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