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Civil Procedure

CLASS ACTIONS

Association of franchisees formed for sole purpose of defeating class action

Plaintiff was franchisee of retail pet food and supply company. Common issue certified was that company had duty to share volume discounts and rebates from suppliers with franchisees. Communication with class members contentious and certain franchisees began campaign to defeat class action resulting in significant spike in opt-out notices. Plaintiff brought successful motion to set aside opt-out notices. Case management judge held that while franchisees had right of association, class members unfairly pressured, singled out and misinformed by actions of association, and opt-out process corrupted. Costs awarded to plaintiff. Motion important as it involved integrity of opt-out process. Association of franchisees formed for sole purpose of defeating class action and took active and inappropriate role in doing so. Company supported position of association of franchisees, and while company was not party to activities of association, company’s CEO clearly aware of what association was doing and let it continue unabated. Plaintiff awarded costs in amount of $60,000, payable by company and association of franchisees jointly and severally.
1250264 Ontario Inc. v. Pet Valu Canada Inc. (Sep. 11, 2012, Ont. S.C.J., Strathy J., File No. CV-09-392962-00CP) Additional reasons to 218 A.C.W.S. (3d) 762. 221 A.C.W.S. (3d) 524.

Charter of Rights

FUNDAMENTAL JUSTICE

Accused’s silence not evidence of guilt

Accused not testifying at joint trial with co-accused. Co-accused’s counsel submitting to jurors accused’s failure to testify evidence of his guilt. Trial judge holding co-accused’s closing remarks prejudiced accused, undermined right to silence. Trial judge declining to give remedial instruction, holding s. 4(6) of Canada Evidence Act precluded reference to accused’s silence. Court of appeal holding trial judge erred, s. 4(6) only prohibited comments prejudicial to accused, not limiting instruction requested. Court of appeal upholding convictions, holding error harmless. Accused’s further appeal dismissed. Section 4(6) of Canada Evidence Act did not preclude affirmation for right to silence, which should be done where realistic concern jury may place evidential weight on accused’s decision not to testify. Jury entitled to take into account evidence uncontradicted in assessing reliability, credibility of Crown’s case. Co-accused’s counsel ought not to have made comment concerning accused’s failure to testify. Co-accused could have relied on fact he testified to argue he was innocent, had nothing to hide but not to invite jury to use accused’s silence as evidence of accused’s guilt. Explicit remedial instruction from trial judge would have been preferable. Trial judge’s charge functionally adequate to impart message Crown could prove accused’s guilt only on evidence, accused’s silence not evidence of guilt.
R. v. Prokofiew (Oct. 12, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33754) Decision at 256 C.C.C. (3d) 355; 88 W.C.B. (2d) 702 was affirmed. 104 W.C.B. (2d) 190.

Immigration

INADMISSIBLE AND REMOVABLE CLASSES

Claimant was personal and knowing participant in international crimes

Application for judicial review of denial of refugee claim. Applicant was citizen of Republic of Congo who voluntarily joined Congolese army in 1991 and served as sergeant until 1998, when he deserted following coup d’etat in Congo. Applicant fled Congo in 2000 and sought refugee protection in United Kingdom, which was eventually denied. Applicant returned to Congo in 2007 and was arrested upon his return. In November 2007, applicant fled to Canada and made claim for protection. Board denied applicant’s refugee claim under s. 98 of Immigration and Refugee Protection Act (Can.), determining that there were serious reasons to believe that applicant had been complicit in war crimes and crimes against humanity by reason of role he played in Congolese army. RPD determined that Congolese army committed crimes against humanity and war crimes over period from 1993 to 1997, time during which applicant was member of army. To consider whether applicant was complicit in crimes army committed board applied six so-called Bahamin factors, i.e. method of applicant’s recruitment, his position in Congolese army, nature of Congolese army, his knowledge of crimes or acts committed by Congolese army, length of his association with Congolese army and opportunity for him to have left army before date he deserted. RPD concluded that there were serious reasons to consider that applicant had been complicit in war crimes and crimes against humanity committed by Congolese army and, accordingly, was disentitled to protection under Act. Applicant contended that rather than focusing on Bahamian factors RPD ought to have considered whether applicant participated in any of Congolese army’s crimes in manner analogous to that of criminal accomplice. Application dismissed. Test applied by board was correct one. It was not error for board to apply Bahamian factors to gauge whether claimant was personal and knowing participant in international crimes committed by organization to which he or she belonged. These factors were meant to assess degree of applicant’s participation, have been often recognized by this court as being appropriate for board to apply and were consistent with case law of Federal Court of Appeal. Board did not commit reviewable error in applying this test. Board’s decision was reasonable, and accordingly application must be dismissed.
Nsika v. Canada (Minister of Citizenship and Immigration) (Aug. 29, 2012, F.C., Gleason J., File No. IMM-8775-11) 221 A.C.W.S. (3d) 685.

Judgments and Orders

SETTING ASIDE
Giving landlord one last chance would have been collateral attack on prior order
Motion by landlord for order setting aside order striking out statement of defence and counterclaim with prejudice. Landlord had allegedly committed to completing numerous substantial repairs and improvements for tenant. Tenant alleged much work was either not done or was done late or poorly. Tenant also alleged landlord interfered with quiet enjoyment of premises and improperly tried to evict tenant. Tenant commenced action against landlord in March 2009 for damages and injunctive relief for breach of contract. Landlord commenced counterclaim for declaration that written lease was invalid and for damages for, inter alia, wrongful occupation. During examination for discovery in December 2011, landlord provided undertaking to produce relevant documents. Landlord chose not to respond to motion successfully brought by tenant in March 2012 for order requiring landlord to fulfil undertaking. Order permitted tenant to bring ex parte motion for order striking out statement of defence and counterclaim if landlord failed to comply. Landlord failed to comply so tenant successfully brought ex parte motion in April 2012 for order striking out statement of defence and counterclaim with prejudice. Motion dismissed. Landlord failed to establish basis for exercise of discretion in its favour. Since landlord claimed not to have had any notice of motion for order striking out statement of defence and counterclaim, landlord could not rely on Rule 37.14(1)(b) of Rules of Civil Procedure (Ont.). Rule 37.14(1)(b) only applied to accident, mistake, or insufficient notice rather than lack of any notice. Lack of notice fell within Rule 37.14(1)(a). Fact that order requiring landlord to fulfil undertaking permitted ex parte motion did not preclude landlord from pursuing relief under Rule 37.14(1)(a). Rule 37.14(1)(a) was designed to remedy possible injustice resulting from temporary suspension of normal adversarial process. No such injustice was apparent in this case. If landlord had appeared at ex parte motion, landlord’s evidence would have only confirmed non-compliance without good excuse. Giving landlord one last chance would have been collateral attack on prior order permitting ex parte motion. Landlord had deliberately chosen not to appear for motion at which that order had been made and had never appealed. Landlord had repeatedly demonstrated reluctance to address this litigation in prompt and proper way and had to suffer consequences.
Wayne v. 1690416 Ontario Inc. (Sep. 18, 2012, Ont. S.C.J., Leach J., File No. 61476) 221 A.C.W.S. (3d) 449.

Family Law

CHILD WELFARE
Children at risk of physical harm due to prospect of recurrence of domestic violence
Application by Children’s Aid Society (CAS) for Crown wardship of two children for purpose of adoption. Mother had been subjected to physical and emotional abuse as child. Mother had first child at end of abusive relationship with first father. Mother received services from CAS due to inability to provide food. Concerns arose from mother’s failure to follow through with appointments and her use of physical discipline. Mother became involved in abusive relationship with second father and had second child with him. Children were apprehended based on reports of physical discipline while mother and children were living in shelter. Mother eventually lived with friend who was herself subject to CAS involvement. Mother was often late for access visits or cancelled them entirely. Mother declined access visits in foster home where she could have tried to enhance her parenting skills. Access visits revealed emotional detachment on part of mother. First child was resistant to attending access visits for period of time. Comprehensive assessment indicated mother would not be able to care for children on her own. During one access visit, mother chastised first child by saying she would take second child home and leave first child in care. Application granted. Children were in need of protection for several reasons. Older child had suffered physical harm at hands of mother before being apprehended at age of five. Mother’s treatment of older child had exceeded what might have been considered justifiable for disciplinary purposes. Mother’s conduct had resulted from loss of control when she was angry. Older child was at risk of future physical harm since mother’s harsh disciplinary tactics could recur if she was under stress. Nothing indicated younger child had been physically abused but there was risk that he would be subjected to same treatment as he grew older. Prospect of recurrence of domestic violence in mother’s life constituted further reason that children would be at risk of physical harm in her care. Mother was unable to offer anything other than bald assertion that she would not expose children to domestic violence. Mother had not yet obtained necessary counselling. Children were at further risk of serious emotional harm stemming from mother’s actions or omissions. Older child had already been diagnosed with, inter alia, post-traumatic stress disorder and anxiety that impaired his functioning in daily life. Mother’s lack of sensitivity to older child’s needs was well-documented. Younger child was again at risk of same treatment as he grew older.
Catholic Children’s Aid Society of Toronto v. B. (S.S.) (Sep. 7, 2012, Ont. C.J., Murray J., File No. C 49201/09) 221 A.C.W.S. (3d) 357.

Environmental Law

ENFORCEMENT
No public trust duty requiring Crown to take positive steps to protect environment
Motion by federal government for summary judgment dismissing action brought by public interest group. Public interest group was non-profit society dedicated to preserving large peat bog and raising public awareness of its ecological significance. At least part of bog had been purchased by municipalities and provincial government for conservation purposes. Municipalities and provincial government entered into conservation covenant requiring them to refrain from altering bog. Several years later, municipalities and provincial government finalized management plan for protecting at least 5,000 acres of bog. Provincial government intended to construct road adjacent to bog. Federal government agreed to contribute funding. Environmental assessment indicated no adverse environmental effects if certain mitigating measures were followed. Public interest group commenced action against federal government for order compelling it to protect bog. Motion granted; action dismissed. There were no contested facts that needed to be resolved in order to determine action had no chance of success. Central issue was whether construction of road adjacent to bog might impact ecology of bog. Related issue was whether federal government had duty to ensure construction of road did not impact ecological integrity of bog. Public interest group provided little evidence or authority in support of its claims. There was no evidence at all of federal government having legal obligation to prevent provincial government from constructing road in manner that might compromise bog’s ecological integrity. Public interest group simply asserted legal duties in abstract and made no effort to show how such duties could arise on facts of this case. Public interest group had not even provided factual underpinning showing what alleged dangers to bog were. Federal government did not have duty to protect bog’s ecological integrity. Federal government did not own bog. Conservation covenant and management plan did not impose any obligations on federal government. No Canadian courts had yet recognized public trust duty requiring Crown to take positive steps to protect environment. Circumstances did not give rise to any fiduciary or statutory duties.
Burns Bog Conservation Society v. Canada (Attorney General) (Aug. 29, 2012, F.C., Russell J., File No. T-1963-10) 221 A.C.W.S. (3d) 356.

Employment

PUBLIC SERVICE
Requirement that employee retire not modified by extensions of agreement
Application by employee for judicial review of decision of assistant commissioner of Canada Revenue Agency (CRA) dismissing grievance. Employee worked for predecessor of CRA as director of human resources (Pacific region). In May 2004, employee signed initial agreement accepting another position until her retirement in October 2007. In June 2005, employee signed second agreement allowing her to be placed temporarily with Public Service Human Resources Management Agency of Canada. Second agreement was extended number of times with latest extension covering up to December 2007. In March 2007, CRA asked employee to sign third agreement extending initial agreement up to December 2007. Employee refused to sign third agreement due to requirement to resign in December 2007. Second agreement was extended to June 2008. CRA terminated employee in June 2008. Employee unsuccessfully grieved to one of CRA’s assistant commissioners. Application dismissed. Assistant commissioner had applied correct legal principles despite not expressly considering them, and her decision was reasonable. Employee had clearly signed initial agreement despite any misgivings. Assistant commissioner could reasonably conclude employee had not been subjected to kind of pressure that would make initial agreement void or voidable. Record before assistant commissioner indicated employee had not raised concerns for some two and one-half years after signing first agreement. Assistant commissioner was entitled to take employee’s silence into account. Assistant commissioner reasonably concluded that requirement in initial agreement that employee retire had not been modified by extensions of second agreement. Persons with whom employee had dealt when extending second agreement had no authority to vary initial agreement. CRA had acquiesced in extensions but this in itself did not amount to waiver of requirement to retire. Assistant commissioner reasonably concluded there had been no mutual agreement to vary requirement to retire.
Lawton v. Canada Revenue Agency (Sep. 11, 2012, F.C., Hughes J., File No. T-456-11) 221 A.C.W.S. (3d) 352.

Charter of Rights

ENFORCEMENT OF RIGHTS
Searches neither reasonable nor authorized by law
Application by Crown for ruling regarding voluntariness of accused’s videotaped statement. Application by accused for stay of charge or for exclusion of certain evidence because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged with sexual assault. When he was arrested on evening of April 19, 2010, he was handcuffed, searched incident to arrest and he was informed of his right to counsel. Accused stated that he understood and he wished to speak to lawyer and to call legal aid. He was given opportunity to speak to duty counsel and he spoke to him for seven minutes. Officer in charge of investigation seized accused’s clothing and obtained penile swab in order to determine whether complainant’s DNA was on accused’s clothes or penis. At that time officer was not trained sexual assault investigator and he did not consult with more experienced officers. Officer did not obtain search warrant because he thought DNA evidence would be compromised if he waited for warrant and he thought he could seize clothing and obtain swab as part of search incidental to arrest. To obtain clothing and swab accused had to remove his clothing in presence of two male officers. Crown’s application allowed and accused’s application allowed in part. Accused was subjected to strip search. That search and penile swab violated s. 8 of Charter. Such searches were neither reasonable nor authorized by law as they were not searches incidental to arrest. Searches were not authorized by law because they were not conducted in reasonable manner and without properly articulated grounds. Sections 7 and 12 of Charter were also violated. Accused’s right to counsel was breached because he should have been re-informed of his right to counsel prior to strip search and swab. Despite breaches accused was not entitled to stay because police conduct would not shock public. Penile swab evidence was inadmissible due to Charter breaches. Blood sample that was taken from accused in February 2012 was admissible because there was insufficient causal or temporal connection between taking of sample and breach of accused’s rights that occurred on April 19. Videotaped statement was given voluntarily and Crown could cross-examine on it if accused chose to testify. There was no police trickery.
R. v. Pun (Sep. 20, 2012, Ont. S.C.J., Gilmore J., File No. 10-03774G) 103 W.C.B. (2d) 983.

Appeal

GROUNDS
Trial judge erred in ruling daughter’s proposed testimony not relevant
Accused appealed his conviction for criminal harassment. Accused submitted that trial judge was in error not to re-open evidence and allow proposed evidence from complainant’s daughter that went to issue of whether complainant felt threatened. Charges arose amidst highly charged domestic split up during which complainant had been convicted of assaulting accused. Appeal allowed, new trial ordered. Trial judge erred in her ruling that daughter’s proposed testimony was not relevant to issue whether accused’s conduct caused complainant to fear for her safety. Error arose due to trial judge’s failure to fully consider important evidence described by complainant. Trial judge also erred in requiring accused to demonstrate due diligence as factor of test used to govern court’s exercise of discretion to reopen evidence by finding that accused should have attempted to speak to daughter after being charged because her evidence would have been foreseeable as being relevant. Trial judge was required to consider whether accused could have had honest belief that prohibition on communication was implied from terms of release. Daughter’s evidence as to her state of fear was highly relevant as complainant testified that daughter was target of accused’s conduct, and in particular, shared experience of accused’s harassment.
R. v. Orlik (Sep. 6, 2012, Ont. S.C.J., Annis J., File No. 07-16570) 103 W.C.B. (2d) 919.

Bankruptcy and Insolvency

ARRANGEMENTS
Orders issued by regulatory bodies may be provable claims in insolvency proceedings even if not quantified
Pulp and paper company carried on industrial activities at several locations in province between 1905 and 2008. In December 2008, company announced closure of last remaining mill operation. Company experienced financial difficulties and placed itself under protection of Companies’ Creditors Arrangement Act (Can.) (CCAA). Initial order extended and claims procedure order (CPO) issued for purpose of setting up claims procedure for company’s creditors. Province, acting pursuant to Environmental Protection Act (Nfld. & Lab.), issued five Ministerial orders requiring company to perform, at its own expense, remediation actions with respect to sites where company previously carried on industrial activities. Province brought motion seeking declaration that orders affected by neither CPO nor CCAA proceedings. Company contested motion, asserting that orders stayed by initial order. Motion judge held that orders were financial in nature, should be treated as claims in CCAA proceedings and should be subject to compromise. Province’s motion dismissed and application for leave to appeal dismissed. Province’s appeal to Supreme Court of Canadadismissed. Orders issued by regulatory bodies may be provable claims in insolvency proceeding even if amounts involved not quantified at outset. Inenvironmental context, CCAA court must determine whether there exists environmental duty that will ripen into financial liability owed to regulatory body that issued order. Form of order not determinative; CCAA court must determine whether claim will be subject to claims process. To be considered claims that may be subject to insolvency process, there must be debt, liability or obligation to creditor incurred as of specific time to which it must be possible to attach monetary value. Province identified itself as creditor by resorting to environmental protection enforcement mechanisms and environmental damage occurred before CCAA proceedings commenced. Real issue was whether orders not expressed in monetary terms could be translated into such terms. In context of environmental protection order, to determine whether contingent claim will be included in insolvency process, there must be sufficient certainty that regulatory body that triggered enforcement mechanism will ultimately perform remediation work and assert monetary claim. CCAA court’sassessment of facts indicated sufficient certainty that province would perform remediation work, particularly finding that orders were first step towards performance of remediation work by province.
AbitibiBowater inc. (Arrangement relatif a) (Re) (Dec. 7, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33797) Decision at 190 A.C.W.S. (3d) 9 was affirmed. 221 A.C.W.S. (3d) 264.
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