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Administrative Law

JUDICIAL REVIEW

Standard of review of tribunal’s interpretation of “family status” was reasonable

Complainant, who worked as border services officer on rotating shifts, filed complaint alleging discrimination in employment on basis of family status. Complainant alleged Canadian Border Services Agency (“CBSA”) discriminated by limiting fixed day shifts to part-time employment and complainant, who required fixed day shifts to arrange childcare, not eligible for benefits available to full-time employees. At time of Canadian Human Rights Tribunal hearing, complainant on unpaid leave, intending to return to full-time work when children reached school age. Tribunal found complainant proved prima facie employment discrimination and CBSA did not prove hardship. Tribunal held family status should be interpreted broadly, including needs and obligations naturally flowing from identifying one as parent, including parental childcare responsibilities. Tribunal ordered CBSA to cease discriminatory practices and that complainant be compensated for lost wages and benefits. Attorney General of Canada’s application for judicial review dismissed except in relation to certain remedial orders. Standard of review of tribunal’s interpretation of “family status” in Canadian Human Rights Act reasonableness. While Tribunal interpreting home statute and adjudicating within area of expertise, question did not relate to jurisdictional boundaries nor did interpretation raise constitutional question. Standard of review applicable to tribunal’s finding of prima facie discrimination and remedial orders reasonableness as these matters involved questions of mixed law and fact.
Johnstone v. Canada (Border Services Agency) (Jan. 31, 2013, F.C., Mandamin J., File No. T-1418-10) 223 A.C.W.S. (3d) 1003.

Assault

ASSAULT CAUSING BODILY HARM

Accused involved in group assault of overpowered complainant

Two accused appealed their convictions for assault causing bodily harm. Injuries complainant ultimately suffered were significant including lacerated liver, blackened eyes and broken nose. Complainant and his female passenger found themselves in fast food drive through behind car occupied by four males and one female. Complainant apparently became impatient with time that car was taking and words were exchanged. After leaving drive through complainant confronted occupants of other car and trial judge found that soon thereafter those occupants exited their vehicle; trial judge found complainant was quickly overpowered and that all four male occupants of vehicle punched complainant while they knew he was overpowered and continued to punch and kick him while he was on ground. Trial judge found that all involved were under influence of alcohol to some degree. Counsel for one of accused submitted trial judge erred in dismissing accused’s claim of self defence even though he had found that complainant initiated altercation that resulted in ultimate assault. Appeal dismissed. Evidence presented reasonably supported trial judge’s finding that, while complainant unwisely initiated confrontation with four males, and while evidence was unclear as to who made first physical contact, there was no question that complainant was quickly overpowered by choke hold by one of assailants and fell to ground. Based on evidence of independent eyewitnesses, trial judge could reasonably find that even after complainant was overpowered, all four males were observed to be punching complainant. Defence lost any air of reality when trial judge found accused was involved in group assault of overpowered complainant and that accused must have known that complainant was defenceless and overpowered.
R. v. Derochie (Jan. 16, 2013, Ont. S.C.J., de Sousa J., File No. 11-109AP; 11-114AP) 104 W.C.B. (2d) 1172.

Appeal

GROUNDS

Fact that panel characterized witness’ breach of Order as technical was exercise of judgment

Accused appealed decision of Ontario Securities Commission dismissing his application to set aside earlier order of commission approving settlement he had made with staff of commission. Accused argued that earlier order should have been set aside because of non-disclosure of material information by commission staff prior to settlement and also argued that there was bias because of participation of one member of commission in revocation hearing. Accused had been Managing Director in Mergers and Acquisitions Department of Securities firm when he was charged with ten counts of insider trading and ten counts of tipping under it was alleged that he had given confidential information to individual with whom he had had close personal relationship since secondary school, and that individual used this information in purchasing securities. Accused tried to have settlement order revoked on basis his counsel did not inform him that Crown witness, individual who had traded on accused’s information, was charged with regards to breach of his own cease trade order. Commission found that oral disclosure of witness’ breach to accused’s lawyer was sufficient, and in any event, characterized breach of Cease Trade Order as unintentional and concluded that information would not have further substantially impaired witness’ credibility in administrative or criminal proceedings. Commission noted that granting application would lead to “perverse outcome”, because new quasi-criminal charges or administrative proceedings were barred by six year limitation period. Appeal dismissed. Commission decision was reasonable and there was no evidence to support finding of bias. No reasonable person would have run risk of second criminal trial or administrative proceeding on basis of information disclosed in second interview with witness or on basis of his subsequent sanction. Accused had been informed of option to file motion to recuse commission member who had been involved in revocation hearing, but did not contest that member’s participation. Detailed reasons for decision showed careful consideration of arguments made on behalf of accused; fact that panel characterized witness’ breach of Cease Trade Order as technical breach was exercise of their judgment, based on facts presented to them. There was dissenting opinion.
Rankin, Re (Jan. 11, 2013, Ont. S.C.J. (Div. Ct.), Brown R.S.J., Swinton and Matlow JJ., File No. 590/11) 104 W.C.B. (2d) 1164.

Immigration

INADMISSIBLE AND REMOVABLE CLASSES

Rehabilitation of claimant after committing crime irrelevant

This was appeal of dismissal of application for judicial review. Appellant was national of Albania. Greek court found that appellant fatally stabbed another Albanian while living in Greece during fight. Appellant was convicted and released. He could no longer live in Albania because killing provoked blood feud between his family and deceased’s family. Appellant came to Canada and claimed refugee protection. Delegate of respondent Minister refused to provide opinion that appellant was dangerous. Claim for refugee protection was not ineligible to be referred to the Refugee Protection Division (“RPD”). Minister of Public Safety and Emergency Preparedness (“MPSEP”) intervened. RPD rejected appellant’s claim for refugee protection on ground that he was excluded from definition of refugee by Article 1F(B) of United Nations Convention relating to the Status of Refugees. Application judge dismissed application for judicial review. Appeal dismissed. Claimant’s dangerousness was not relevant to determination of whether claim was excluded from refugee definition by Article 1F(b). Fact that respondent declined to provide opinion that appellant was danger to public in Canada did not estop MPSEP from intervening before RPD to argue for exclusion. Issues at eligibility and exclusion stages were different. MPSEP did not unreasonably exercise discretion to intervene. Rehabilitation of claimant after committing crime and current dangerousness were irrelevant at exclusion stage. Appellant’s crime was presumptively serious because if he had been found guilty in Canada of equivalent crime of manslaughter, he could have been sentenced to maximum of at least ten years’ imprisonment. RPD’s overall conclusion on material before it that there were serious reasons for considering that appellant committed serious crime was not unreasonable.
Feimi v. Canada (Minister of Citizenship and Immigration) (Dec. 7, 2012, F.C.A., Evans, Sharlow and Stratas JJ.A., File No. A-90-12) Decision at 216 A.C.W.S. (3d) 989 was affirmed. 223 A.C.W.S. (3d) 851.

Arbitration

STAY OF PROCEEDINGS

No basis to conclude that claims could not be determined by arbitration

Appellant appealed Federal Court Judge’s decision staying action. Appellant was a small business owner registered as independent business owner under umbrella of respondent. Appellant signed registration agreement that included arbitration agreement where parties agreed to submit any possible claims to arbitration. Appellant commenced proceedings in Federal Court of Canada pursuant to s. 36 of Competition Act (Can.) (“CA”). Appellant began proposed class action against respondent claiming that business practices were in violation of ss. 52, 55 and 55.1 of CA. Respondent filed motion to dismiss or stay action and to compel arbitration. Judge first determined that substantive issue raised by motion had to be determined by Federal Court and not by arbitrator. Federal Court Judge concluded that arbitration agreement was applicable, enforceable and served to bar initiation of class proceeding for any amount exceeding $1,000. Appellants class proceeding was stayed. Appeal dismissed. Appeal from judge’s decision lay to Federal Court of Appeal. By incorporating the Arbitration Act, 1991 (Ont.), into their bargain parties could not oust Federal Court of Appeal’s jurisdiction found in s. 27(2) of Federal Courts Act (Can.). Private claim for damages brought under s. 36 of CA was arbitrable. Supreme Court of Canada made it clear that express legislative language was required before courts would refuse to give effect to terms of arbitration agreement. CA did not contain language that would indicate that Parliament intended that arbitration clauses were to be restricted or prohibited. There was no basis to conclude that claims brought under s. 36 of CA could not be determined by arbitration. Appellant’s claim under s. 36 of CA must be sent to arbitration as parties intended when they entered into arbitration agreement.
Rhodes v. Cie Amway Corp. (Feb. 14, 2013, F.C.A., Nadon, Gauthier and Trudel JJ.A., File No. A-487-11) 223 A.C.W.S. (3d) 770.

Civil Procedure

CLASS ACTIONS

Additional fee made class counsel’s compensation manifestly disproportionate to results achieved

Appellant appealed motion judge’s decision to award class counsel additional fee. This was class proceeding that alleged that appellant knowingly sent travellers to group of resorts in Dominican Republic while there was outbreak of norovirus at resorts. Parties reached settlement agreement that created settlement fund of $2.25 million for class of approximately 4,000 members. Appellant agreed to pay initial counsel fee of $600,000. Settlement was approved, including initial counsel fee. After settlement was fully administered $333,307 had been paid to 354 class members who submitted eligible claims, which represented take-up rate of 8.85% of class members or 16.7% of settlement fund. Additional class counsel fee of $395,000 was approved. Appeal dismissed. Motion judge’s analysis minimized significance of actual recovery to class and led him to award fee that was grossly disproportionate to results achieved and risk undertaken. In context of case take-up rate had heightened significance that was not adequately recognized by motion judge in his analysis of value of settlement. When it was uncertain how many class members would make claims under settlement, it was when take-up rate was known that information relevant to assessing results achieved was present and it was then that connection between efforts of counsel and what was achieved for class could be assessed. Take-up rate was appropriate measure of results achieved, as it reflected actual benefit to class. Risk taken on by class counsel had already been recognized and rewarded. Result achieved was that approximately 9% of class received compensation through efforts of class counsel and compensation amounted to one-sixth of total negotiated fund. Addition of the $395,000 fee resulted in total class counsel fee of almost $1 million, which was nearly three times value of settlement to class. Approval of additional fee made class counsel’s compensation manifestly disproportionate to results achieved for class. Fee of $600,000 was fair and reasonable compensation in circumstances and additional fee of $395,000 to class counsel was set aside.
Lavier v. MyTravel Canada Holidays Inc. (Feb. 14, 2013, Ont. C.A., Laskin, MacPherson and Gillese JJ.A., File No. C55662) Decision at 212 A.C.W.S. (3d) 637 was reversed. 223 A.C.W.S. (3d) 778.

Administrative Law

JUDICIAL REVIEW

Director obligated to file record of proceedings

Motion by complainant for order requiring Independent Police Review Director to file record of proceedings. Complainant was involved in incident with municipal police and provincial police. Complainant filed separate complaints against both police forces with director. Director concluded it did not have jurisdiction to deal with either matter due to absence of apparent breach of Police Services Act (Ont.) (“PSA”), or its Code of Conduct. Complainant commenced application for judicial review. Director took position that it was not obligated to file record of proceedings. Motion granted. Director had exercised statutory power of decision within meaning of s. 1 of Judicial Review Procedure Act (Ont.) (“JRPA”). Consequently, director was obligated to file record of proceedings pursuant to s. 10 of JRPA. Any member of public could make complaint against police force pursuant to s. 58 of PSA. Ability to make such complaint was statutory right. Director had corresponding statutory duty to review every complaint and determine whether it was about policies of or services provided by police. Director’s decision at that stage was to screen complaints out, not to screen complaints in.
Endicott v. Ontario (Director, Office of the Independent Police Review) (Nov. 2, 2012, Ont. S.C.J. (Div. Ct.), Kiteley J., File No. 42/12) 223 A.C.W.S. (3d) 742.

Evidence

OPINION EVIDENCE

Expert’s credibility affected by close personal relationship with taxpayer

Ruling on admissibility of expert evidence. Taxpayer received shares in company from her spouse. Minister of National Revenue initially determined fair market value of these shares to be $708,155 for purposes of s. 160(1)(e) of Income Tax Act (Can.). Taxpayer requested reassessment. Minister determined fair market value of shares transferred for no consideration to be $546,835. Taxpayer appealed and called expert witness to opine on whether selling large blocks of shares affected share price. Expert had been self-employed as corporate development and investor relations consultant for 27 years. Evidence inadmissible. Expert was not credible witness, and for this reason alone his evidence was given no weight. Further, expert lacked expertise and impartiality required to provide court with opinion on fair market value of shares. Expert’s credibility was affected by close personal relationship with taxpayer and her spouse as well as expert’s failure to be forthcoming in his testimony. Expert lacked expertise in valuation since his services were in realm of corporate development and dealing with investors in client companies. Expert was not chartered business valuator, chartered accountant, chartered financial analyst, or certified general accountant. Expert had not even taken any valuation courses. Expert’s experience had not caused him to acquire skills of valuator. Expert’s objectivity was affected by fact that he was close friends with taxpayer’s spouse. Great deal of expert’s testimony was in nature of advocacy.
Shulkov v. Canada (Dec. 31, 2012, T.C.C., D’Arcy J., File No. 2008-1842(IT)G) 223 A.C.W.S. (3d) 896.

Courts

JURISDICTION

Federal Court had jurisdiction to review decisions of First Nation councils

Application by member of First Nation for declaration that one resolution prepared by First Nation was void ab initio and for order quashing second resolution passed by First Nation’s band council purporting to ratify first resolution. First Nation wanted provincial hydro company to pay present value of sum payable over 17 years. First Nation prepared first resolution formally approving receipt of accelerated lump sum payment and authorizing First Nation to provide full and final release. First resolution and release were signed by chief and four band councillors. Hydro company made lump sum payment. Band council subsequently passed second resolution ratifying first resolution. Application dismissed on other grounds. Federal Court had jurisdiction to hear matter. First Nation was “federal board, commission or other tribunal” that had exercised or purported to exercise jurisdiction or powers encompassed by s. 18.1 of Federal Courts Act (Can.). Jurisprudence held Federal Court had jurisdiction to judicially review decisions of custom First Nation councils and related agencies. Band council’s decisions had not been “private law” decisions. First Nation derived its jurisdiction from both federal common law of aboriginal rights and its capacity to exercise federal statutory powers conferred on council of Indian band by federal Indian Act (Can.). Nature of jurisdiction exercised by band council was in relation to governance of First Nation and was matter of public interest given history that had led to entitlement to payments. Application had been brought in timely manner after second resolution had been passed to ratify first resolution.
Gamblin v. Norway House Cree Nation Band Council (Dec. 20, 2012, F.C., Mandamin J., File No. T-434-06) 223 A.C.W.S. (3d) 807.

Building Liens

ACTION

No indication plaintiff was foregoing discovery process

Plaintiff asserted lien under Construction Lien Act (Ont.), for $18,353. Defendant counterclaimed for $298,299. Plaintiff filed trial record. Plaintiff’s motion for leave to examine defendant for discovery despite having filed trial record; amendment of pre-trial timetable; and site inspection. Plaintiff’s position trial record filed only to prevent expiry of lien under s. 37, and without abandoning right to examine for discovery. Defendant objected discoveries and site inspection unnecessary. Defendant’s cross-motion for order representative of plaintiff attend examination for discovery; and order plaintiff pay costs of copying defendant’s productions. Examinations permitted. No indication plaintiff was foregoing discovery process. Trial record filed only to maintain timely lien claim. Rule 48.04 of Rules of Civil Procedure (Ont.), not requiring denial of leave to initiate discoveries. Site inspection permitted. Not established that inspection unnecessary, unhelpful or prejudicial. Not clear that photographs provided by defendant were properly characterized as being “before” and “after” remedial work. No order for costs of production appropriate until documents firmly settled or ascertained. Timetable established.
Eurodale Developments Inc. v. Rimgate Holdings Ltd. (Oct. 29, 2012, Ont. S.C.J., MacKenzie J., File No. CV-10-1977-00) 223 A.C.W.S. (3d) 333.
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