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Appeal

GENERAL

No reference to accused’s mental illness throughout all of proceedings

Accused was convicted of four counts of driving motor vehicles without insurance, contrary to Compulsory Automobile Insurance Act (Ont.). Accused applied for extension of time in which to appeal and for leave to appeal under Provincial Offences Act (Ont.). Accused suffered from, and was being treated for, serious mental illness. Judge held that accused had not learned from his previous fine, but did not notice that previous conviction and fine was imposed for offence that occurred after offence for which accused was being sentenced, which was arguable error of law with respect to sentence. Accused’s motion before provincial judge to extend time in which to appeal his first three convictions was dismissed. Accused applied to provincial judge to extend time in which to appeal all four of his convictions, but matter was treated as appeal on merits on fourth conviction, and appeal from sentence was granted. Accused tried again to bring motion to extend time in which to appeal before provincial judge, having apparently been redirected to do so by court staff, but motion was dismissed for lack of jurisdiction because it had already been dismissed. Accused’s fines cumulatively totalled over $20,000. Application allowed, leave to appeal granted. Throughout all of proceedings, there was no reference to accused’s mental illness or any significant reference to his ability to pay substantial fines imposed upon him. There was important public interest in case, and there was arguable issue that related to due administration of justice. Although offences were relatively serious, accused faced very significant amount of fines, surcharges, and costs that was draconian in its impact on him personally. It was in public interest to determine whether some accommodation should have been made for individuals with significant personal disabilities. It was at least arguable that lower court did not consider appropriate factors in determining issues before it, and, perhaps more importantly, closed off any opportunity for broader public interest issue to be raised. It was at least arguable that provincial judge did not appear to take some factors into account, as accused was prevented from having appeal court consider totality of fines and surcharges. In particular circumstances of case, due administration of justice was implicated, and broader public interest issues involved were not considered.
R. v. E. (A.) (Nov. 21, 2013, Ont. C.A., P. Lauwers J.A., In Chambers, File No. CA M41972, M41973) 110 W.C.B. (2d) 282.

Civil Procedure

COSTS

If party could not legally accept offer then costs should not be imposed

Taxpayer appealed assessment that denied deductions of share and cash bonuses. Appeal was allowed. Taxpayer made settlement offer, but Minister of National Revenue rejected offer. Taxpayer brought motion for substantial indemnity costs. Judge accepted submission that Minister was prevented from accepting settlement offer and that he did not need to provide reasons for refusal. Minister could not accept offer because of application of concept of legal disability. Taxpayer’s motion was dismissed. Taxpayer appealed. Appeal dismissed. Only offers that, as matter of law, could have been accepted could trigger costs consequences. If, due to legal disability, party could not accept offer then adverse costs consequences should not be imposed on that party. There was no principled basis on which Minister could have accepted that cash bonuses were non-deductible in exchange for treating share bonuses as deductible. Judge correctly ruled that Minister could not concede share bonus issue and that alone was sufficient to conclude that Crown could not accept settlement offer. Judge did not make reviewable error in concluding that Minister was justified in rejecting settlement offer. Judge did not err in law, fail to consider relevant factors, consider irrelevant factors or reach unreasonable conclusion. Judge exercised discretion appropriately.
Transalta Corp. v. R. (Dec. 6, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and James W. O’Reilly J.A. (ex officio), File No. A-486-12) Decision at 221 A.C.W.S. (3d) 797 was affirmed.  234 A.C.W.S. (3d) 288.

Administrative Law

DUTY TO ACT FAIRLY

No legitimate expectation of oral hearing before recommendation to revoke appointment

Applicant was advised that respondent proposed to review his appointment to order in light of criminal conviction in United States for fraud and obstruction of justice. Applicant requested in person oral hearing before respondent, but request was refused. Applicant asked respondent to reconsider decision, but it refused. Applicant applied for judicial review. Federal Court Judge found that applicant did not have legitimate expectation that oral hearing would be held prior to recommendation to Governor General that appointment should be revoked. Federal Court Judge found that applicant’s procedural entitlement fell toward low end of scale. Federal Court Judge dismissed application. Applicant appealed. Appeal dismissed. In circumstances, respondent was not required to give applicant oral hearing in order to ensure that he was afforded procedural fairness. Since it was not function of respondent to determine whether applicant’s conviction in United States was proper, respondent’s recommendation would not turn primarily on assessment of applicant’s credibility.
Black v. Advisory Council for the Order of Canada (Nov. 18, 2013, F.C.A., John M. Evans J.A., Trudel J.A., and Webb J.A., File No. A-462-12) Decision at 222 A.C.W.S. (3d) 290 was affirmed.  234 A.C.W.S. (3d) 246.

Bankruptcy and Insolvency

CREDITORS

Nothing supported assertion that receivership order would jeopardize ongoing business

Creditor was financial institution. Debtors were four related corporate debtors and two married individual debtors. Two corporate debtors opened corporate operating accounts with creditor. Accounts went into overdraft in amount of approximately $2.15 million when certain electronic fund transfers were reversed. Creditor demanded repayment, but debtors were not able to repay. Creditor accepted various receivables and mortgage over individual debtors’ home as security. Debtors only paid $352,715.10 by deadline. Creditor brought motion for appointment of receiver over corporate debtors’ receivables and individual debtors’ home. Motion granted. Creditor satisfied just and convenient test for appointment of receiver under s. 243(1) of Bankruptcy and Insolvency Act (Can.), and s. 101 of Courts of Justice Act (Ont.). Debtors were involved in business dealings that were, to say the least, suspect. Nothing of substance supported debtors’ assertion that receivership order would jeopardize their ongoing business activities. Credibility of one individual debtor was seriously open to question. Balance of convenience clearly favoured creditor. Debtors failed to establish any triable issues.
Caisse Desjardins des Bois-Francs v. River Rock Financial Canada Corp. (Oct. 31, 2013, Ont. S.C.J., J.R. McCarthy J., File No. CV-13-0742) 234 A.C.W.S. (3d) 268

Agency

REAL ESTATE AGENTS AND BROKERS

Listing agreement contemplated payment of commission upon presentation of offer

Vendor executed listing agreement with realtor to list his property for sale. Realtor received full price offer from purchaser and took various steps to present offer to vendor but vendor was unresponsive. Vendor did not accept offer. Realtor brought action for commission. Deputy judge found that listing agreement was sufficient to hold vendor liable to pay commission to realtor on basis of qualifying offer to purchase that was presented. Deputy judge awarded realtor damages of $8,995.50 plus GST. Vendor appealed. Appeal dismissed. Offer was presented to vendor within prescribed timelines required by listing agreement. Vendor acted in bad faith and attempted to frustrate efforts of realtor in presenting final order. Realtor did not breach fiduciary duty to vendor in bringing offer for full asking price. There was no evidence that best possible price might have been greater than asking price. Listing agreement was binding contract. Acceptance of offer was not required, as listing agreement clearly contemplated payment of commission upon presentation of offer at full listing price. Terms of listing agreement were clear and unambiguous. Trial judge made no error in findings of fact.
T.L. Willaert Realty Ltd. v. Fody (Dec. 12, 2013, Ont. S.C.J., M.A. Garson J., File No. CV-11-178) Decision at 207 A.C.W.S. (3d) 615 was affirmed.  234 A.C.W.S. (3d) 249.

Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT

Mandatory sentence could rise to level of gross disproportionality

Accused pleading guilty to s. 95(1) of Criminal Code and other firearms offences. Police entering residence occupied by accused and seizing semi-automatic handgun and ammunition from accused’s residence. Section 95(2)(a)(ii) providing for five year mandatory minimum sentence where accused had been convicted and sentenced of second or subsequent offence enumerated in s. 84(5)(a). Accused having been convicted and sentenced of s. 85(4)(a) offences on two prior occasions. Accused having been previously convicted of firearms offences in relation to serious robbery of employment agency using imitating firearm. Accused having been convicted of breaching s. 117.01(1) prohibition order by possessing ammunition. Crown having proceeded by indictment for current and prior offences thus triggering five year mandatory minimum. Sentencing judge dismissing accused’s ss. 7, 9 and 12 Charter claims that five years was grossly disproportionate with reference to gravity of accused’s offences. Sentencing judge arriving at global sentence of seven years. Accused appealing sentence and reasserting Charter claims that mandatory sentence at issue violated ss. 7 and 12 of Charter. Appeal dismissed and s. 95(2)(a)(ii) declared of no force and effect for violating s. 12 of Charter in manner not saved by s. 1. Mandatory sentence of five years did not amount to cruel and unusual punishment in accused’s circumstances given gravity of offences. Mandatory sentence could rise to level of gross disproportionality applying reasonable hypothetical circumstance. Hypothetical circumstance would involve offender where s. 95(1) offence best characterized as regulatory breach with no unlawful or criminal purpose. Previously held that mandatory three year sentence for first s. 95(1) offence breached s. 12 in hypothetical case of “regulatory” offender with low moral blameworthiness. “Regulatory” breach would entail offender who lawfully possessed firearm but stored or placed it in unauthorized manner but with no unlawful or criminal purpose. Thus five year mandatory sentence also breached s. 12 in modified hypothetical where offender had dated prior offence.
R. v. Charles (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C54111) Decision at 102 W.C.B. (2d) 441 was affirmed.  110 W.C.B. (2d) 264.

Breathalyzer

APPROVED SCREENING DEVICE

Stay not justified at law because effect of breach was minimal

Appeal by Crown from decision of trial judge who stayed proceedings against accused. Accused was charged with driving with blood alcohol level above legal limit. Police officers stopped accused’s vehicle after it did not stay within its lane and accused was found to exhibit signs of impairment. He failed roadside screening test and he was transported to police station where his breath readings were both 220. At 1:33 a.m. accused was returned by breath technician to one of officers who arrested him. Accused was given opportunity to phone his father and he was lodged in cell at 1:40 a.m.. He was not released until 9:15 a.m.. Judge found that charge was proven. She also found that accused had been held overly long in custody and granted stay because there was overholding in breach of s. 9 of Canadian Charter of Rights and Freedoms. Appeal allowed. Judge’s reasons for finding overholding and breach of s. 9 were sufficient for meaningful appellate review and judge did not err when she found that accused’s s. 9 rights were infringed by delay in releasing him. However, judge did not provide reasons for imposing stay and effective appellate review could not occur. Appeal succeeded on this ground. Judge did not err when she found that accused’s s. 9 rights were infringed by delay in releasing him. She erred, however, when she found that appropriate remedy for s. 9 breach was stay. Stay was not justified at law because effect of s. 9 breach on accused was minimal. Judge did not err when she accepted evidence of roadside screening device and s. 8 was not breached for officer had reasonable and probable grounds to request breath sample. Information available to officer at time that accused provided roadside sample was sufficient to ground both his subjective and objective belief that device worked properly. There was no evidence that it was unreliable and even though he later learned that device was not calibrated within 14 days did not change this conclusion. Officer had reasonable and probable grounds to request breath sample. Accused was convicted but due to s. 9 breach fine was reduced from $1,000 to $500. He was also subject to one-year driving prohibition.
R. v. Coyle (Nov. 7, 2013, Ont. S.C.J., J.A.S. Wilcox J., File No. CR-13-01 AP) 110 W.C.B. (2d) 192.

Contracts

DAMAGES

Plaintiff’s business plan too general, didn’t consider possibilities

Plaintiff commenced purchase of minor league hockey team. League in which team played was independent league not sanctioned by governing body for organized hockey. Hockey arenas generally did not deal with independent league since it was frowned upon by sanctioned leagues. Defendant was hockey arena that agreed to rent ice time to plaintiff despite knowing her team was in independent league. Ice time was to be provided for three-day spring camp, summer camp, and regular winter league purposes. Plaintiff completed purchase of team. Defendant cancelled contracts after being pressured by people involved with sanctioned leagues. Plaintiff sold team. Plaintiff brought action against defendant for damages for breach of contract. Action allowed in part. Plaintiff was awarded $2,216.05 for special damages and $1,000 for nominal damages for future losses. Plaintiff had big plans but evidence indicated her profit expectations were not realistic. Only four out of desired 40 players had showed up at spring camp. No commitments had been made for summer camp and plaintiff’s plans had been too ambitious. Nothing indicated plaintiff would have earned profit. Profits for winter league were speculative. Plaintiff had no scout for locating players. Plaintiff’s business plan was so general that realities had not been considered. Plaintiff was not experienced business person. There was no evidence of how profitable other teams had been.
Park v. Wave Hockey Inc. (Sep. 25, 2013, Ont. S.C.J., M.J. Donohue J., File No. CV-11-2356-00) 233 A.C.W.S. (3d) 832.

Civil Procedure

CLASS ACTIONS

Objections by potential class members did not affect fairness and reasonableness of settlement

Investors were advised by financial advisors to borrow money to invest. Investors commenced action against financial advisors and lender for damages for unspecified causes of action. Investors successfully brought motion certifying action as class proceeding. Parties reached settlement consisting of $8.2 million for claims, $1.5 million inclusive of HST for counsel fees, $100,000 for disbursements, and $200,000 for administration expenses. Any potential class member had opportunity to challenge ultimate amount that administrator determined was to be awarded to any potential class member. Investors brought motion for order approving settlement and additional $1.39 million for counsel fees plus disbursements and HST. Motion adjourned on terms. Settlement amounts and counsel fees were acceptable, but challenge process needed to be made more transparent. Net amount available for distribution to class was about $6.81 million plus accruing interest. About 756 eligible class members would receive net return of about 21 per cent of their losses, though certain investors would receive somewhat more. Objections by 43 potential class members did not affect fairness and reasonableness of settlement for class as whole. Litigation risks had been high. Settlement had been reached by experienced class counsel through experienced mediators.
French v. Investia Financial Services Inc. (Aug. 16, 2013, Ont. S.C.J., M.L. Edwards J., File No. Barrie 10-0690, 11-0234) 233 A.C.W.S. (3d) 792.

Immigration

REFUGEE STATUS

Applicant’s sworn evidence should have been presumed true

Mother and child (“applicants”) claimed refugee protection based on well-founded fear of persecution in Vietnam as Catholic Christians. Refugee Protection Division of Immigration and refugee Board (“RPD”) denied applicants’ claims finding there was no credible basis for claims. RPD rejected applicants’ identity documents on basis they were copies, had no security features other than stamps and were faxes without evidence as to when and how they were faxes. Applicants sought judicial review. Application allowed. RPD member was preoccupied with expectation that applicant for refugee protection had to present acceptable documentation to prove identity. Based on RPD’s documentation expectations, applicant’s sworn evidence was rejected as unbelievable. Applicant’s sworn evidence was to be presumed true unless there were reasons to doubt its truthfulness in reaching conclusion on identity. There were no clear reasons provided for not accepting applicant’s sworn evidence in support of claim. Fact RPD found applicant to be native speaker of Vietnamese was not taken into consideration in resolving applicant’s nationality. RPD’s failure to reasonably consider this fact as critical in determining applicant’s identity rendered decision unreasonable.
Tran v. Canada (Minister of Citizenship and Immigration) (Oct. 28, 2013, F.C., Douglas R. Campbell J., File No. IMM-11045-12) 233 A.C.W.S. (3d) 972.
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