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Aboriginal Peoples


Unreasonable for committee to call new elections for positions of councillors

This was appeal of application judge’s decision. Various appeals challenging result of 2012 elections were submitted to First Nation election appeal committee. Committee prepared written report of its findings. Committee concluded that election process overall appeared to have been fairly conducted. Nevertheless, it recommended that elections be set aside and new elections be held. First Nation brought application for judicial review that it later discontinued. Respondent, who had unsuccessfully run against appellant in election for office of chief, initiated own judicial review application. Application judge treated application as primarily seeking to enforce decision of committee calling for new elections. Application judge declared that election appeal committee made final and binding decision that required new elections for offices of chief and all councillors. Appeal allowed in part. Election appeal committee had power to compel new elections under article 17 of Long Plain First Nation Election Act. Applying contextual and purposive approach to matter, when recommendation to hold new election was made by committee, recommendation should be treated as decision that was irrevocable, binding and final. When committee issued report with recommendation that new elections be held, it could not have intended that its conclusion would simply be advisory without any effect. Allegations of candidate misconduct affecting result of election primarily concerned elected chief. There was no evidence of candidate misconduct on part of elected councillors. Committee should not have called for new elections for positions of councillors in light of evidence before it. Taking into account all circumstances and applicable legal principles, it was unreasonable for committee to call new elections for elected positions of councillors. Committee did not breach rules of procedural fairness such as to vitiate its decision concerning election for position of chief.
Meeches v. Meeches (Jul. 5, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J.A., and D.G. Near J.A., File No. A-102-13, A-101-13) Decision at 226 A.C.W.S. (3d) 615 was reversed in part.  230 A.C.W.S. (3d) 3.



Trial judge may not express opinion that will influence jury on verdict

Accused’s conviction for second degree murder set aside and new trial ordered. Trial judge may express opinion on question of fact when warranted so long as circumstances permit but judge may not express opinion that will influence jury on verdict. Trial judge committed error by failing to simply outline defence theory, instead attempting to demonstrate its implausibility and by failing to repeat caution regarding own opinion. Summary of defence theory should be presented objectively.
R. c. Mailhot (Mar. 28, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Moldaver J., and Wagner J., File No. 34881) 108 W.C.B. (2d) 407.

Bankruptcy and Insolvency


Owners ought to be placed in position to prove entitlement to insurance

Motion by property owners for order lifting stay of proceedings flowing from bankrupt’s bankruptcy. Bankrupt was land use consulting company. Owners engaged bankrupt to provide services concerning proposed redevelopment. Owners contended bankrupt provided negligent advice that caused them losses. Owners commenced action against bankrupt in May 2010 for damages for negligence. Successful claim would be covered by insurance policy held by bankrupt. Bankrupt assigned itself into bankruptcy in July 2012. Owners’ action was consequently stayed pursuant to s. 69.3 of Bankruptcy and Insolvency Act (Can.). Motion granted on terms. Stay of proceedings was lifted with expectation that owners would amend statement of claim to change claim from one of damages to one of declaration that bankrupt was trustee of chose in action represented by insurance policy for benefit of owners. Unless good reason was established to contrary, rights of bankrupt under insurance policy were to be assigned to owners by trustee in bankruptcy on notice to other creditors, and only owners could pursue those rights. Owners ought to be placed in position to endeavour to prove their entitlement to insurance that was purchased by bankrupt specifically to provide recovery in event of proven negligent act. This approach was in keeping with expectation of parties prior to bankruptcy. This approach was also consistent with approach taken in other provinces. Commercial reality and justice dictated that refusing to lift stay would be contrary to principles of equity.
Iplan Corp., Re (Jun. 28, 2013, Ont. S.C.J., Reg. D.E. Short, File No. Newmarket 31-1643308) 229 A.C.W.S. (3d) 942.



Parties should be governed by language of contract

Motion by plaintiff for stay of proceedings pending arbitration. Plaintiff was general contractor who entered into building contract with defendant for renovation and expansion of its headquarters. Work commenced when agreement was signed in November 2007, but there were delays because of layout and asbestos problems that added 17 weeks to project. After problems were discovered, plaintiff retained counsel to advance its damages claim under dispute resolution provisions of contract. Steps were taken under process, but time passed. To prompt more efficient responses from defendant, plaintiff commenced action on July 29, 2011. Defendant claimed action was out of time and brought motion for partial summary judgment to dismiss delay claim. Plaintiff brought motion to compel defendant’s return to arbitral process to resolve delay claim. Motion granted. Pursuant to contract, disputes were to be resolved by binding arbitration. Court had discretion to stay proceedings under s. 106 of Courts of Justice Act (Ont.). Defendant’s complaints of delay and non-compliance with time-limits set out contract were at best mixed questions of fact and law which were matters for arbitrator. Parties should be governed by language of contract and their submission to dispute resolution process which included arbitration. Action was stayed.
Bondfield Construction Co. v. London Police Services (Jul. 12, 2013, Ont. S.C.J., P.B. Hockin J., File No. 4804-11A1) 229 A.C.W.S. (3d) 938.

Administrative Law


Officer failed to put credibility concerns to applicant

Applicant holds Master’s Degree in civil engineering and listed occupation as construction manager found by immigration officer “not eligible for processing in this category”. Officer found that fact that duties described by employment letter either copied or closely paraphrased from occupational descriptions of National Occupation Classification diminished overall credibility of employment letter and dismissed applicant’s permanent residence application. Application for judicial review granted. Where application provides evidence sufficient to establish they meet requirements of Immigration and Refugee Protection Act (Can.), or Immigration and Refugee Protection Regulations (Can.), and officer doubts credibility, accuracy or genuine nature of information provided, and wishes to deny application based on those concerns, duty of fairness invoked. Officer denied applicant fairness by failing to put credibility concerns to applicant.
Madadi v. Canada (Minister of Citizenship and Immigration) (Jun. 27, 2013, F.C., Russel W. Zinn J., File No. IMM-7043-12) 229 A.C.W.S. (3d) 1145.

Administrative Law


Nothing untoward in member questioning and challenging submissions

Applicant born in Eritrea, but used different name on false Ethiopian passport he purchased. Applicant fled Eritrea, but deported back to Ethiopia. Applicant’s claims for refugee status rejected in United Kingdom and Norway. On advice of Ethiopian translator, applicant did not mention prior unsuccessful refugee claims in Canadian PIF. Immigration and Refugee Board Member continued hearing despite applicant’s claim of breach of natural justice in relation to translation, but re-commenced hearing de novo out of abundance of caution. Translator at hearing same translator who allegedly lied to applicant. Applicant also alleged bias on member’s part by virtue of member’s frequent interruptions. Member found no breach of natural justice because translation not tainted or inaccurate. Member concluded applicant not refugee due, in large part, to lack of identity documents. Application for judicial review dismissed. Applicant’s adjournment request not for mere adjournment, but rather to terminate proceedings due to translation issue; member provided adequate reasons for continuing hearing. Interaction between applicant’s counsel and member may have been sharp, but were directed at clarifying counsel’s submissions; nothing untoward in member questioning and challenging submissions. Member was not tainted by proceeding de novo after having heard first day of evidence; this was bare allegation without support.
Endemikael v. Canada (Minister of Citizenship and Immigration) (Jun. 18, 2013, F.C., Michael L. Phelan J., File No. IMM-11191-12) 229 A.C.W.S. (3d) 922.



Setting of rates for amici curiae by courts did not respect institutional roles

Trial judges appointing amici curiae in four criminal proceedings and amici refusing legal aid rates offered by Attorney General . Court setting higher rates of remuneration than offered by Attorney General. Court of appeal dismissing Attorney General’s appeal. Court of appeal holding superior and statutory courts had jurisdiction to appoint amici to ensure serious cases could proceed without difficulty. Court of appeal holding ability to fix rates of compensation for amici linked to capacity to appoint them and should not be left to Attorney General. Attorney General’s appeal to Supreme Court of Canada allowed. Courts of inherent jurisdiction had power to appoint amici exceptionally where necessary for just adjudicate of proceeding. Inherent jurisdiction of superior courts permitted them to make orders necessary for protection of judicial process and rule of law and fulfill judicial function of administering justice. Jurisdiction to appoint did not necessarily imply authority to set rate of compensation. Absent authority flowing from constitutional challenge or statutory provision setting for rates by courts did not respect institutional roles and capacities of legislature, executive and judiciary. Order that Attorney General must provide compensation at particular rate order directing payment of specific money out of public funds. Attorney General and amici appointed should meet to set rates and modes of payment. If matter cannot be resolved judge’s only recourse may be to impose stay until amicus could be found.
R. v. Imona-Russell (Aug. 1, 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. 34317) 108 W.C.B. (2d) 211.



Failure to produce indictment may prevent accused from obtaining benefits in U.S. prosecution

Accused was to be extradited for money laundering and international drug trafficking that was alleged to have taken place nine years ago. Accused sought order requiring Attorney General of Canada provide her with U.S. indictment that charges her with those criminal offences. Minister has indictment in his possession but to date has refused that request and Attorney General has vigorously sought to defeat this application. Application allowed. Failure to produce indictment at this time may prevent her from obtaining potential benefits in U.S. prosecution against her from early and informed exercise of those statutory rights. It would deny her rights to fundamental justice under s. 7 of Charter and in that way cause her rights to fair extradition proceeding in Canada in all of its potential aspects and particulars to be violated, including in particular right to exercise ss. 70-72 rights to consent to committal, or surrender, or to waive extradition on informed basis. Court concluded that it would frustrate Parliament’s intent to provide incomplete disclosure to expedite extradition process to put persons sought in position where they may not be able to make meaningful and informed decisions to consent to committal, to consent to surrender, or to waive extradition under ss. 70 to 72 of Extradition Act (Can.).
United States of America v. Nguyen (Jul. 19, 2013, Ont. S.C.J., Michael G. Quigley J., File No. Toronto E 17/13) 108 W.C.B. (2d) 132.

Charter of Rights


Accused had no extra right to privacy being passenger in vehicle

Accused was passenger in vehicle that was stopped by police pursuant to drug investigation and sought to exclude drugs found in vehicle and in satchel he was carrying. Police used confidential information, recorded conversations, text messages and surveillance evidence that accused and others were in possession of crystal methamphetamine, heroin and other drugs for purpose of trafficking them to another person. Evidence admissible. Accused had no extra right to privacy being passenger in vehicle. Police had ample evidence to make arrest and search of vehicle and satchel was lawful search pursuant to arrest. Court found as well that even if Charter breach was found it would not have excluded evidence considering all evidence that police had against accused breach of his rights would not be serious. Crystal methamphetamine was addictive drug, having corrosive effect on community. Police investigation was very professional and competent and public rightly expects to be protected by police and courts.
R. v. Panagos (Jul. 18, 2013, Ont. S.C.J., P.B. Hambly J., File No. CJ 7473) 108 W.C.B. (2d) 122.

Conflict of Laws


Court may transfer proceedings to “most substantially connected” jurisdiction

Father applied to vary October 2009 consent order respecting primary residence of parties’ daughter, aged six. Mother moved to transfer variation application from Ontario to Manitoba. Mother had moved to Manitoba with child shortly after separation. She commenced divorce proceedings in Ontario because she did not meet residency requirements to proceed in Manitoba. If child was “most substantially connected” to proposed jurisdiction, court may consider exercising its discretion to transfer proceedings to that jurisdiction. Question was whether transfer was in best interests of child and whether transfer would impede proper administration of justice. Application granted. Child was most substantially connected to Manitoba. Child had lived in Manitoba for almost her entire life. Her mother, her mother’s family, her teachers, her healthcare professionals and her friends lived there. It was in child’s best interests if application were transferred to Manitoba. While Ontario courts had history with family, Manitoba courts could verse themselves in this history as easily as fresh judge in Ontario. It would not impede proper administration of justice to transfer case to Manitoba.
Agnew v. Violo (Jun. 26, 2013, Ont. S.C.J., D.L. Corbett J., File No. Brampton FS-06-56958-00) 229 A.C.W.S. (3d) 779.
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