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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

SEARCH AND SEIZURE

Late ticket purchase in cash consistent with behaviour of drug couriers

Accused charged with possession of cocaine for purpose of trafficking. Accused bought one-way plane ticket on day of flight and paid in cash. Accused checked locked suitcase on flight. Police believed that accused’s late ticket purchase in cash was consistent with behaviour of drug couriers. Police accordingly conducted dog sniff search of accused’s suitcase together with other randomly selected bags. Dog indicated presence of drugs in accused’s bag and in nearby cooler. Accused arrested and bag forced open revealing 3 kilograms of cocaine. Trial judge allowed accused’s application to exclude seized cocaine on basis that search violated his right under s. 8 of Canadian Charter of Rights and Freedoms. Court of Appeal found search reasonable and ordered new trial. Appeal dismissed. Police had a reasonable suspicion that accused was drug courier based on totality of circumstances. Sniffer dog was demonstrated to be reliable. Search was not unreasonable.

R. v. Chehil (Sep. 27, 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. 34524) Decision at 97 W.C.B. (2d) 173 was affirmed. 109 W.C.B. (2d) 367.


Appeal

RIGHT OF APPEAL

Intention of statute was to prevent persons from using disabled persons permits

Accused applied for leave to appeal decision which dismissed appeal of his conviction for displaying disabled person permit not in accordance with regulations, contrary to s. 27(1)(b) of Highway Traffic Act (Ont.). Parking officer saw vehicle parked in no parking zone, with disabled person parking permit displayed. Officer saw accused enter vehicle, inspected permit, and discovered that it was issued to accused’s mother, who was not present or in area at time. Accused argued that Crown had to prove that he was person who placed or “displayed” permit in car window, and that it was insufficient to prove only that he returned to and entered vehicle which had disabled permit on dash. Crown conceded that accused raised question of law, but argued that it was neither in public interest nor for due administration of justice that leave be granted. Application dismissed. While decided cases in Ontario Court of Justice did not deal directly with point raised by accused, they did speak to requirements for conviction and there was no conflict in decisions for court to resolve. Word “display” was capable of more than just its active meaning. As intention of statute was to prevent persons other than those to whom permits were issued from using permits, interpreting statute to require officer to actually see violator place permit in window would have defeated this intention. It was neither essential in public interest nor necessary for due administration of justice to grant leave to appeal on facts.

R. v. Ferranti (Sep. 27, 2013, Ont. C.A., MacFarland J.A., In Chambers, File No. CA M42631) 109 W.C.B. (2d) 398.

Appeal

GROUNDS

Since key was in ignition and engine running there was realistic risk of danger

Appeal by accused from his conviction for having care and control of motor vehicle when his blood alcohol level was above legal limit. Accused claimed that there was miscarriage of justice. Police investigated noise complaint at house party. Accused, who was 18, sat in driver’s seat of his car, which was properly parked on road. Girl, who was 15 and who was drunk on vodka, sat in front passenger seat. Two males sat in backseat and one of them was drunk and other was sober. They were sitting in car to avoid altercation. Accused testified that his engine was not running and he waited for police to arrive. He had key turned to accessory to listen to radio. Police officer saw that accused had red, glazed eyes and she detected alcohol on his breath. Accused was slow to respond to questions and it took him some time to find his documents. Officer testified that engine was running. Trial judge did not accept testimony of accused’s friends as being credible since most of them were intoxicated. She did, however, accept officer’s testimony. Appeal dismissed. Since key was in ignition and engine was running there was realistic risk of danger. There was no miscarriage of justice for there was evidentiary basis on which judge could make findings that she did. She detailed her reasons for not accepting defence witnesses as being credible or reliable.

R. v. Summers (Oct. 2, 2013, Ont. S.C.J., M.J. Donohue J., File No. CR12-341-0000AP) 109 W.C.B. (2d) 344.

Civil Procedure

COSTS

Conduct of defendants in dealings with plaintiffs was shabby and high-handed

Defendants sought costs. Action was certified as class proceeding. Plaintiff class consisted of 171 AO pilots and defendant class consisted of 1,617 AC pilots. Plaintiffs alleged that members of defendant class committed torts of conspiracy, intentional interference with economic interests and negligent misrepresentation. They alleged that defendant class owed fiduciary duty to members of plaintiff class, which was breached. Defendants were successful in resisting action. Defendants sought costs of $1.5 million. Application dismissed. This was not test case and it did not involve matter of public interest. Procedural nature of action was unique and action engaged some novel points of law. However, it could not be said that action raised novel point of law for purposes of invoking application of s. 31(1) of Class Proceedings Act, 1992 (Ont.). Award that defendants bear own costs was fair and reasonable in circumstances of case. Defendants were successful and made offers to settle, but their conduct in dealings with plaintiffs was shabby and high-handed. Defendants did not deserve costs award in their favour. Fair and reasonable disposition was for defendants to bear own costs.

Berry v. Pulley (Sep. 3, 2013, Ont. S.C.J., Pepall J., File No. 97-CV-135179 CP) Additional reasons to 218 A.C.W.S. (3d) 993. 232 A.C.W.S. (3d) 46.

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.
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