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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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Bankruptcy and Insolvency

DISCHARGE

Bankrupt did not make complete disclosure to former trustee and trustee

Bankruptcy was principally result of failure of bankrupt’s corporation. Bankrupt did not show size of assets relative to liabilities arose from circumstances for which bankrupt could not justly be held responsible. Bankrupt transferred home to wife several months prior to bankruptcy for no consideration. Bankrupt withdrew $125,000 from R.R.S.P.s without advising former trustee of action. Bankrupt received loan from father which was placed in account of numbered company of which daughter was stated to be sole shareholder. Bankrupt had complete control over money loaned by father. Bankrupt had substantial unpaid taxes owing to CRA and incurred post-bankruptcy liability to CRA. Bankrupt twice changed residence without informing trustee. There was no evidence bankrupt sought employment since date of bankruptcy. Bankrupt sought absolute discharge from bankruptcy. Circumstance contemplated by s. 173(1)(a) and (j) of Bankruptcy and Insolvency Act (Can.), were established and possibility of absolute discharge was excluded. Bankrupt did not make complete disclosure to former trustee and trustee. Bankrupt was entitled to conditional discharge on terms set out.

Wagner, Re (Aug. 30, 2013, Ont. S.C.J., Wilton-Siegel J., File No. Estate No. 31-1440148) 232 A.C.W.S. (3d) 35.

Aboriginal Peoples

BANDS

Proceedings not related to any public duty that might be incumbent on Crown

This was appeal from judge’s decision summarily dismissing appellants’ claim on basis that limitation period expired pursuant to Public Officers’ Protection Act (Sask.) (“POPA”). In 1874, Crown entered into treaty with certain Aboriginal peoples. Pursuant to treaty, reserve was set apart for benefit of appellant band. In 1901, Indian agent developed scheme of colonization. Under scheme best farming sections of reserve were surveyed into lots in order to settle ex-pupils from various Indian schools who were not members of band. For purpose of achieving scheme of colonization, band membership of pupils settling on reserve had to be transferred to band. Consent of band was required but there was opposition. In 1911, Indian agent devised scheme by which band would enter into agreement with Crown. Pursuant to scheme of colonization and agreement entered into in 1911, numerous pupils were settled into reserve. Overall size of reserve remained unchanged and reduced reserve land base available to original band members and descendants. Large increase in band membership led to conclusion in 1945 that investigation into band membership was indicated. In 1948, certain original members of band called for investigation into band membership. In 1955, Ministerial committee provided report on subject of band membership. Indian Act (Can.) (“IA”), was substantially revised in 1951, which introduced new system of registration for Indians governed by Act. New system allowed for protests and there were number of band membership protests. In 1956, judge found that all residents of reserve whose membership in band had been protested were entitled to be registered as Indian members of band. In 1982, Government of Canada adopted specific claims policy, which expanded scope of federal government’s policy on matter of claims for mismanagement of Indian land, money or assets. Within context of specific claims policy, band started to work toward establishing treaty entitlement based on Crown’s failure to provide volume of land consistent with terms of treaty. Band filed claim in 1992, which was held in abeyance pending outcome of claim process provided for under specific claims policy. In 2004, Minister found that judge’s 1956 decision applied to issues raised by claim and matter was res judicata. Litigation started in 1991 was reactivated in 2010. Judge found that essential facts underlying claim were widely known to community and band members by 1956 at latest. Judge found that claim involved exercise by Crown of public power or duty and protection provided in POPA extended to Crown. Judge refused to extend time limitation provided under POPA. Judge also found that limitation periods in Limitation of Actions Act (Sask.) (“LAA”), applied. Appeal dismissed. It appeared that as result of 1911 agreement Crown assumed discretionary power over management of land situated on reserve. Fundamental issue in lawsuit was whether 1911 agreement constituted exploitative bargain reached in breach of Crown’s fiduciary duty with respect to management of reserve land. Such issue did not raise public law duty on part of Crown. Duty was sui generis obligation incumbent on Crown that was in nature of private law duty. Judge erred in finding that Crown was acting pursuant to public duty. Proceedings were not related to any public duty that might be incumbent on Crown with respect to band membership under IA. POPA did not apply and judge erred in finding it applied. LAA applied to claim. There was no concealment of material fact by Crown. Claim was barred statutory limitation period.

Peepeekisis Band v. Canada (Minister of Indian Affairs and Northern Development) (Aug. 12, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J.A., and D.G. Near J.A., File No. A-417-12) Decision at 222 A.C.W.S. (3d) 914 was affirmed. 232 A.C.W.S. (3d) 1.

Admiralty

GENERAL

Issue of enforcement of foreign judgment was central to claim

Plaintiff sought summary judgment. Plaintiff was American banking institution. Plaintiff claimed that rights over vessel were uncontested. It sought to execute on its in rem rights and dispose of vessel in prompt manner. Motion dismissed. Plaintiff referred to contracts entered into and judgment obtained in foreign jurisdiction under laws foreign to this jurisdiction and affecting parties other than defendants who had owned and had been in possession of vessel. Plaintiff sought to introduce instruments through affidavit of vice-president, which it could not do. They must be proved. There was lack of evidence before court. Court was not satisfied there was no genuine issue for trial. Full hearing with evidence that was properly presented and tested needed to take place. Not only was there no proper evidence before court but issue of enforcement of foreign judgment was central to claim. Matter was not fit for summary judgment as there were genuine issues that needed to be tried.
Lakeland Bank v. “Never E Nuff” (The) (Aug. 12, 2013, F.C., Yvan Roy J., File No. T-1106-12) 231 A.C.W.S. (3d) 944.    LT

Constitutional Law

CONSTITUTIONAL LITIGATION

Rules of succession not subject  to Charter scrutiny

Applicant brought application for declaration that Constitution Act, 1982, prevented Canada from consenting to legislation passed by Parliament in United Kingdom to change rules of succession for Crown. At meeting in Australia, Prime Ministers of 16 commonwealth nations that recognized Queen as head of state, including Canada, agreed in principle that they would work to bring forward necessary measures to give effect to two changes to rules governing succession to throne. First, was to end system of male preference where younger son could displace older daughter in line of succession. Second, was to remove legal provision that anyone who married Roman Catholic should be ineligible to succeed to Crown. United Kingdom government drafted bill and government of Canada confirmed it was in agreement with bill. Bill was passed and received royal assent. Succession to the Throne Act, 2013 (Can.), would be proclaimed. Applicant relied on Canadian Charter of Rights and Freedoms, to challenge long-standing rule that prohibited Catholics and those married to Catholics from becoming monarchs. Applicant objected to proposed changes to royal succession rules that left rule in place. Applicant sought declaration that all legislative provisions or rules that prohibited Catholics and those married to Catholics from ascending to Crown of Canada were of no force and effect. Application dismissed. Court was bound by O’Donohue v. Canada (2003), 124 A.C.W.S. (3d) 63 (Ont. S.C.J.), aff’d (2005), 137 A.C.W.S. (3d) 1131 (Ont. C.A.), which held that rules of succession and requirements that they be same as Great Britain were necessary for proper functioning of constitutional monarchy. Rules of succession were not subject to Charter scrutiny and were not justiciable in sense that they were beyond review jurisdiction of court. Applicant also lacked standing.
Teskey v. Canada (Attorney General) (Aug. 9, 2013, Ont. S.C.J., Charles T. Hackland R.S.J., File No. Ottawa 13-56569) 231 A.C.W.S. (3d) 950.

Civil Procedure

DISCOVERY

Documents requested relevant to issue of damages

Plaintiff brought motion for order requiring Ministry of Attorney General to produce Crown’s brief and investigation file with respect to charges against defendant relating to motor vehicle accident that resulted in death of plaintiff’s father for which defendant was charged and convicted. Defendant admitted liability for accident, but denied causing damage to plaintiff. Motion granted. Documents requested were relevant to issue of damages and it would be unfair to require plaintiff to proceed to trial without them. It was reasonable to assume that Crown file would contain statements from several witnesses to accident and police investigation notes. There was little or no prejudice to defendant by allowing plaintiff to receive and review Crown file. Objection regarding relevance or admissibility could be brought before trial judge. Taking into account that Crown consented and potential relevance of information sought, on balance, it was fair and reasonable to order production of Crown file.
Vachon v. Titley (Aug. 20, 2013, Ont. S.C.J., Patrick Smith J., File No. 12-53361) 231 A.C.W.S. (3d) 921.

Assault

ASSAULT CAUSING BODILY HARM

No realistic suggestion that complainant consented to being slapped or stabbed

Accused charged with assault causing bodily harm, uttering death threat, aggravated assault by wounding, forcible confinement, possession of cocaine for purposes of trafficking, simple possession of cocaine, and possession of proceeds of crime. Main issue was whether force was applied by complainant intentionally, due to anger and animosity over unpaid debt, or whether use of force was part of consensual play-fighting or was accidental. There was dispute as to whether complainant was ever confined on night in question or was ever threatened with death. Complainant and accused were casual friends who had number of other common friends who would all party together on occasion. Complainant owed accused small $200 debt which he admittedly had not repaid in full. Accused and complainant were all at mutual friend’s flat when acts of violence and threatening and confinement alleged were all said to have occurred. Later following morning, complainant returned home and his parents called police and ambulance and he was treated at hospital for various injuries. Complainant testified that he did not want to go, but did not want scene made in front of his father, so he went with accused but not before telling his father to call police if he did not come home by dark. Complainant’s father and his then girlfriend testified to background circumstances. Accused guilty of assault causing bodily harm and aggravated assault by wounding. Complainant’s injuries conformed perfectly to his version of events. Accused admitted backhand slap to face early in evening and he admitted it could have caused cut to inside of complainant’s lip. Accused admitted poking knife at complainant, and puncturing his skin, once in hand and once in thigh. Admitted acts constituted all essential elements of two separate counts of assault causing bodily harm. There could be no realistic suggestion that complainant consented to being slapped in face or to being stabbed with knife, as these acts were sudden and unannounced, they caused bodily harm and complainant was admittedly upset when he was stabbed. Accused’s self-induced intoxication was not available as defence. Court satisfied that complainant was credible witness and that assaults happened in manner that he described and his evidence was corroborated by several witnesses. Accused was found to be not credible and his version of events lacked sense. Court satisfied that half-inch long cut to complainant’s left thigh, which bled and caused him to limp and which required two stitches to close it at hospital, met definitions of “wounding”.
R. v. Khalili-Arabi (Sep. 19, 2013, Ont. S.C.J., M.A. Code J., File No. 13-50000051-0000) 109 W.C.B. (2d) 257.

Appeal

GROUNDS

Trial judge effectively stopped accused from mounting defence

Appeal by accused from his convictions for assault, mischief under $5,000 and uttering threats. When trial commenced on April 19, 2011 accused’s request for adjournment to retain counsel was denied. On first day of trial accused was unrepresented but on second day, which occurred on May 31, 2011 he had benefit of counsel. On appeal accused applied for leave to introduce fresh evidence. Appeal allowed. Fresh evidence, which consisted of prior inconsistent statements, was not admitted because it could have been adduced at trial if accused exercised due diligence; evidence was not decisively relevant to trial; it was not reasonably capable of belief; and evidence could not have reasonably affected result. Trial judge did not err in not granting adjournment for accused was represented for remainder of trial and any deficiencies in first day of trial were cured when accused’s counsel appeared at continuation of trial. However, judge prevented accused, when he was unrepresented, from mounting what could have been meritorious attack on complainant’s credibility. While some intervention and assistance was obviously appropriate in case of unrepresented accused, judge went far beyond bounds of propriety and he effectively stopped accused from mounting defence. On this ground of appeal, in which judge impaired accused’s ability to present his case, convictions were set aside and new trial was ordered. Appeal was also allowed and new trial was ordered because judge failed to address major inconsistencies in witnesses’ evidence. Judge did not meet his duty to assess whole of evidence and this made it incumbent on appellate court to intervene.
R. v. McQuillan (Aug. 26, 2013, Ont. S.C.J., J.E. Ferguson J., File No. Cobourg 915/11) 109 W.C.B. (2d) 255.

Taxation

INCOME TAX

Revocation of registration would cause irreparable harm to school

Applicant was registered charity. Applicant operated school. CRA determined applicant failed to comply with requirements incumbent on registered charity. Minister proposed to revoke registration of applicant as charity. Applicant sought order prohibiting Minister from giving effect to proposal by publishing copy of notice in Canada Gazette. Applicant argued that without orderly liquidation of assets and ability to collect tuition fees and to issue donation receipts for religious instruction component of curriculum, school might be left without sufficient funds to operate resulting in closure or in serious disruption of activities affecting students and staff of school. Applicant was allowed. Period during which Minister was precluded from publishing copy of notice was extended on one-time basis to specified date. Order allowed applicant to pursue operations of school without major disruptions for fall semester. During period applicant was expected to proceed with orderly liquidation of large part of assets in kind and was expected to develop alternative plan to continue operations of school after specified date without status of registered charity. Applicant was to notify parents forthwith. Minister accepted there was serious issue to be determined resulting from applicant’s notice of objection. Applicant showed that revocation of registration would cause irreparable harm. Balance of convenience required that orderly solution be crafted that took into account both interests of students and general public interest in integrity of charitable sector.
Chabad v. Minister of National Revenue (Aug. 23, 2013, F.C.A., Robert M. Mainville J.A., File No. A-276-13) 231 A.C.W.S. (3d) 1110.

Charter of Rights

SEARCH AND SEIZURE

Accused had no reasonable expectation of privacy in his licence plate

Accused, charged with impaired driving, driving over .08, and breach of recognizance by being in care or control of vehicle, applied for exclusion of evidence. Police were patrolling through privately owned commercial parking lot and were conducting random queries of licence plates. One of those queries revealed that vehicle in parking lot was owned by accused. That accused was out on bail for other charges, and that one of his release conditions was that he not operate or have care or control of motor vehicle. Police stopped accused’s motor vehicle as it was about to exit parking lot. Accused was arrested for breach of recognizance and later for impaired operation of motor vehicle. Accused provided two breath samples which recorded 150. Application dismissed; accused convicted. Accused had no reasonable expectation of privacy in his licence plate or in information that police received following query of licence plate. There was no evidence that accused had subjective expectation of privacy and no cause to conclude that objectively reasonable person would have expectation of privacy. Licence plate was affixed to vehicle for all persons to plainly see. Information revealed by query was limited to who owned vehicle as well as accused’s outstanding charges and bail conditions. Accused had no control over that information and no authority or ability to restrict other person’s access to that information.
R. v. McGill (Sep. 11, 2013, Ont. S.C.J., Conlan J., File No. CR-13-31) 109 W.C.B. (2d) 161.

Appeal

PROCEDURE

Summary conviction appeal judge had no jurisdiction to order fresh sentencing hearing

Accused was convicted of sexual assault and sexual touching and sentenced to total of six months’ imprisonment. Complainants were 12 and 16 years old at time of offences and were friends of accused’s stepdaughter. At sentencing hearing, trial judge refused to permit accused’s counsel to cross-examine complainants on their victim impact statements. Summary conviction appeal judge dismissed appeal from conviction but allowed appeal from sentence on ground that trial judge had erred by refusing to permit cross-examination on victim impact statements and remitted matter to trial court to hold fresh sentencing hearing. Crown sought leave to appeal on ground that summary conviction appeal judge had no jurisdiction to remit matter for fresh sentencing hearing and that he also erred in finding that trial judge should have permitted cross-examination on victim impact statements. Leave to appeal granted; appeal allowed; original sentence restored. It was conceded that summary conviction appeal judge erred in remitting matter to trial judge to hold fresh sentencing hearing: summary conviction appeal judge had no jurisdiction pursuant to relevant provisions of Criminal Code governing summary conviction appeals to make such order. Appeal judge erred in finding err on part of trial judge. Counsel for accused failed to identify with sufficient clarity fact or facts contained in victim impact statements that were disputable and that request to cross-examine was not specious or empty as required. Trial judge did not appear to have placed any significant reliance on victim impact statements when determining appropriate sentence. Sentence was within appropriate range.
R. v. T. (B.) (Aug. 26, 2013, Ont. C.A., Robert J. Sharpe J.A., Gloria Epstein J.A., and P. Lauwers J.A., File No. CA C56434) Decision at 104 W.C.B. (2d) 896 was reversed.  109 W.C.B. (2d) 143.
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