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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

Exigent circumstances justified warrantless seizure

Application by Crown to retain seized hard drive of laptop computer, pursuant to s. 490(3) of Criminal Code. Accused sought return of hard drive on basis that seizure was warrantless and it breached s. 8 of Canadian Charter of Rights and Freedoms. Police were informed that child pornography images were uploaded into internet account and seven people, who were all from accused’s family, lived at address associated with account. Search warrant was obtained for that home, to permit seizure of all electronic devices found there. Prior to executing warrant, police saw accused leave carrying backpack and they arrested him and seized his backpack, which contained laptop, thumb drive and his iPhone. Addendum to warrant was obtained to permit search of devices seized from accused. Several computers were seized when warrant was executed but they were returned, as were accused’s thumb drive and iPhone, since they contained no child pornography. Accused refused to provide password for hard drive and police retained it as they attempted to crack 26-digit alpha-numeric password, which was very secure. Password was not yet cracked and police were unable to conclude their investigation. Application allowed. Warrant was insufficient to allow accused to be searched and seizure was warrantless. Accused’s arrest was not lawful. However, search was not rendered unlawful merely because it was search incidental to unlawful arrest. Police had reasonable and probable grounds to believe that laptop might contain evidence based on grounds used to obtain original warrant. They knew that laptop had been in home. Police were concerned that if they delayed seizure of laptop while they obtained additional warrant, there was risk that other inhabitants of home would alert accused and he would delete evidence from his hard drive. Once laptop was seized police did not go further until they obtained addendum. There were exigent circumstances that justified warrantless seizure and s. 8 was not violated. Even if s. 8 was violated hard drive would not have been returned. Section 490(3) was satisfied for investigation was complex and retention of hard drive was warranted. Extension of 12 months was granted.
R. v. Seguin (Mar. 24, 2015, Ont. S.C.J., Julianne A. Parfett J., File No. Ottawa 15-13189) 120 W.C.B. (2d) 234.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Officer did not have proper basis to arrest accused for robbery

Application by accused, who was arrested for illegal possession of firearm, to exclude evidence of firearm because his rights under Canadian Charter of Rights and Freedoms were violated. Accused and two friends, who were black, were walking in park when police officer asked to speak to them. Officer told them that he was investigating robbery of iPhone in nearby shopping centre and he told accused and his friends that they matched description that police had of robbers. That description was simply that robbers were three black males. Other officers attended and one of them was female officer named S who was central participant in this incident. Accused produced his iPhone but he resisted showing what was in other pocket. He was subdued and during struggle handgun fell out of his other pocket. Application allowed. Evidence of officers was problematic since they prepared their notes at station in presence of each other and they discussed what happened as they wrote their notes. This collusion undermined credibility and reliability of officers as witnesses to this incident. S could not remember where she made her notes and this detracted from her credibility and reliability. Her evidence was not accepted. S did not have proper basis to arrest accused and there were no reasonable grounds to suspect that accused was involved in robbery. Police description of robbers was meaningless. S only had hunch that accused had handgun and that was not enough either to search accused or to arrest him. Search of accused’s pocket and discovery of gun was unlawful search that violated accused’s rights under s. 8 of Charter. Police also did not have sufficient reason to engage in investigative detention of accused in relation to robbery. To condone unlawful search and improper investigative detention would bring administration of justice into disrepute. Seriousness of offence and reliability of evidence, while important, did not outweigh factors that pointed to exclusion.
R. v. Jinje (Mar. 27, 2015, Ont. S.C.J., Nordheimer J., File No. Toronto 14-40000338-0000) 120 W.C.B. (2d) 226.

Police

LIABILITY IN TORT

Breach of informer privilege gave rise to private right of action

Plaintiff MS passed story from neighbour W that another neighbour’s son, P had stolen guns from W’s house and had taken them to school indirectly to police via friend R. R yielded to officer’s insistence that he needed MS’s name. Officer contacted MS, who eventually agreed to go to police station to provide statement. As part of Crown disclosure on prosecution of P, video recording of MS’s statement was provided. P’s father E began harassing MS and plaintiff family, including incident in which he drove truck at MS. Plaintiffs moved away from neighbourhood. Plaintiffs brought action against police services board and certain police officers. Action allowed. On its face, privilege gave rise to duty to informer to protect identity from disclosure and from reprisals. While informer privilege had overarching public purpose, breach of it, resulting in harm, gave rise to private right of action. There was sufficient proximity between parties to recognize private law duty to plaintiffs, taking into account any relevant policy considerations. There was no spectre of indeterminate liability, given uniqueness of this case in jurisprudence. Effect that police might be required to be more careful in what they promised potential informers was no reason to not recognize private law duty to informer. Evidence, including testimony of MS and R, as well as MS’s conduct after disclosure of identity and surrounding circumstances, established on balance of probabilities that MS only provided statement because she was given promise of anonymity. Brief and casual discussion of anonymity at end of recording of statement suggested that this was culmination of earlier discussion. Promise of anonymity given before MS made statement was clearly done to persuade her to tell what she knew. Officer did not qualify promise of anonymity in exchange for provision of information in any way. MS was entitled to informer privilege such that police should have taken steps to protect her identity from disclosure in P’s prosecution. MS’s consultation with R about conveying information to police did not constitute waiver of privilege.
Nissen v. Durham Regional Police Services Board (Feb. 26, 2015, Ont. S.C.J., Gray J., File No. 2602/02) 251 A.C.W.S. (3d) 514

Bankruptcy and Insolvency

DISCHARGE

Damages award for battery survived bankruptcy

Defendant punched plaintiff in jaw during recreational hockey game. Plaintiff broke jaw in three places. Defendant was found liable in damages for battery on basis that punch exceeded scope of plaintiff’s consent to application of force. Defendant went bankrupt before satisfying damages award. Plaintiff brought motion for declaration under s. 178(1)(a.1)(i) of Bankruptcy and Insolvency Act (Can.) that defendant was not released from obligation to pay damages. Motion judge held that damages award did not survive defendant’s bankruptcy. Plaintiff appealed. Appeal allowed. Fact that punch was intentional did not bring damage award within s. 178(1)(a.1)(i) of Act. Defendant must also have intended for punch to cause bodily harm. Inference that defendant wanted to cause significant bodily harm was inescapable. Defendant pulled off plaintiff’s helmet during recreational hockey game. Force of punch broke plaintiff’s jaw in three places. Punch was delivered in retaliation for high stick by plaintiff that was not deliberate. Fact that there was only one punch did not preclude finding that defendant intended to and did cause bodily harm to plaintiff. Motion judge erred in concluding that there was no intent to inflict bodily harm. Damages, interest and costs awarded survived defendant’s bankruptcy pursuant to s. 178(1)(a.1)(i) of Act.
Leighton v. Best (Mar. 18, 2015, Ont. C.A., P. Lauwers J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59426) 251 A.C.W.S. (3d) 385.

Taxation

INCOME TAX

Auditor did not take into account fair market value of donated wine bottles on international level

Taxpayer was wine aficionado who donated bottles of wine to charities. Wine bottles were auctioned off and proceeds were donated to registered charity in Gatineau, Quebec. In 2009, taxpayer donated three bottles of wine valued at amount of $350 each. In 2010, taxpayer donated three bottles of wine valued at total amount of $1,100. In 2011, taxpayer donated seven bottles of wine valued at total amount of $8,550. Minister reduced total amount of evaluation to $328, $344, and $2,672 for 2009-2011 taxation years respectively. Taxpayer appealed Minister’s assessments. Appeal allowed. Auditor did not take into account fair market value of wine bottles on international level. Auditor erroneously calculated capital investment, custom fees, transportation, sales tax, and insurances. Taxpayer provided sufficient documentary evidence. Auditor did not contradict taxpayer’s evidence.
De Santis c. R. (Apr. 17, 2015, T.C.C. [Informal Procedure], Robert J. Hogan J., File No. 2014-670(IT)I) 251 A.C.W.S. (3d) 529.

Taxation

GOODS AND SERVICES TAX

Proposed guarantor was not required to comply with rebate conditions

Purchaser entered into agreement of purchase and sale with builder to purchase home to be built. HZ was proposed guarantor of mortgage to finance purchase of house, and signed purchase of agreement and sale for that reason, but backed out before closing. FR became guarantor, but his replacement of HZ was not reflected in agreement of purchase and sale. Minister of National Revenue denied purchaser’s claim for new housing rebate under Excise Tax Act (Can.), on ground that purchaser and HZ did not satisfy condition of having intention that property be their primary place of residence. Purchaser appealed. Appeal allowed. HZ was not “particular individual” for purposes of s. 254(2)(a) of Act and was not required to comply with rebate conditions. HZ was only acting in capacity as agent in signing agreement of purchase and sale. Agent was not “recipient” as defined in s. 123(1) of Act. At commencement of hearing, Crown raised issue of whether purchaser intended property to be used as his primary place of residence. It was not fair for Crown to raise issue at such late stage and it was not considered.
Javaid v. R. (Apr. 17, 2015, T.C.C. [Informal Procedure], Judith M. Woods J., File No. 2014-1802(GST)I) 251 A.C.W.S. (3d) 525.

Courts

JURISDICTION

Federal Court did not have jurisdiction to grant interlocutory relief

Application was filed with National Energy Board pursuant to s. 52 of National Energy Board Act (Can.), to obtain certificate of public convenience and necessity for constructing and operating 4,500 km long pipeline system between Alberta and New Brunswick. More than 1,500 km of new pipeline would be constructed. Project was subject to board’s approval process. This was motion for interlocutory injunction before commencement of proceeding before board until publication of official languages’ report or inclusion of French version of essential documents of application on board’s website. Motion dismissed. Parliament’s clear intention was to make Federal Court of Appeal only court that had jurisdiction to hear applications for judicial review or appeals against rulings made by board. Purpose of interlocutory injunction motion was to challenge ruling of board. Federal Court was not appropriate forum. Appropriate way for moving parties to request stay of proceedings before board was to challenge board’s ruling before Federal Court of Appeal. Federal Court did not have jurisdiction with respect to main proceeding so therefore, it could not have jurisdiction to grant interlocutory relief. Federal Court had no jurisdiction to hear motion.
Centre québécois du droit de l’environnement c. Québec (Office national de l’Énergie) (Feb. 16, 2015, F.C., Yves de Montigny J., File No. T-167-15) 251 A.C.W.S. (3d) 444.

Employment

PUBLIC SERVICE

Matter was referred back to Veterans Review and Appeal Board for reconsideration of retroactivity of pension in light of breach of duty to inform

Veteran had fought for Canada during Second World War. In 1996, veteran filed application for disability pension for stomach ulcers. Veteran passed away in 2005, and his daughter continued proceedings on his behalf. Minister rendered decision whereby pension application was denied because veteran’s condition did not arise from military service. That decision was confirmed by review panel of Veterans Review and Appeal Board (VRAB) in 2007. However, appeal panel of VRAB held that daughter and surviving spouse were entitled to pension and established effective date of pension retroactively to November 9, 2005, but no additional award was granted. In 2009, reconsideration panel of VRAB established effective date of pension as October 30, 2004, and granted additional award of 24 months, taking into consideration administrative difficulties experienced by daughter. In 2010, VRAB rejected new application for review, finding that that Department of Veterans Affairs of Canada (VAC) did not breach duty to provide counselling service under s. 81(3) of Pension Act (Can.), when processing disability pension application and that disability pension payment date of October 30, 2004 should be confirmed. On application for judicial review, judge concluded that VAC breached duty to inform under s. 81(3) of Act, which caused delay in paying pension. Application for judicial review was allowed and matter was referred back to VRAB for reconsideration of retroactivity of pension in light of breach of duty to inform. VRAB confirmed maximum retroactivity period that set pension’s effective date at October 30, 2004, and maximum additional award equivalent to two years’ pension. VRAB rejected argument that case should be remitted back to Minister for additional award. Surviving spouse and daughter unsuccessfully brought motion seeking judicial review of VRAB’s decision. Federal Court Judge found that VRAB correctly refused to remit matter back to Minister and decision was reasonable. Surviving spouse and daughter appealed. Appeal dismissed. Federal Court Judge did not err with respect to relevant standard of review of reasonableness. Federal Court Judge did not err in finding that VRAB’s decision not to remit matter to Minister was reasonable. Record showed that surviving spouse and daughter had already been granted maximum compensation. Reviewing judge’s refusal to order matter be remitted to Minister was necessarily reasonable because even if had done so, surviving spouse and daughter could not have received additional compensation.
Arial c. Canada (Procureur général) (Sep. 30, 2014, F.C.A., Marc Noël J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-290-13) Decision at 230 A.C.W.S. (3d) 1073 was affirmed.  251 A.C.W.S. (3d) 511.

Insurance

AUTOMOBILE INSURANCE

Applying established ‘nexus’ test, first insurance company to receive completed SABS application was obliged to pay while disputing coverage

Pursuant to Statutory Accident Benefits regulatory scheme, first insurer to receive application for statutory accident benefits (SABS) following accident pays them, provided there is some connection between claimant and insurer. If insurer takes position another insurer is responsible for SABS, it must give notice within 90 days; insurers then follow statutory scheme of arbitration to determine which insurer should pay. SS rented vehicle from “Wheels 4 Rent” insured pursuant to motor vehicle liability policy issued by Zurich. Chubb issued accident policy to Wheels 4 Rent which provided optional death and dismemberment insurance to Wheels 4 Rent customers, but contained no coverage for motor vehicle accident liability. SS did not purchase Chubb’s optional coverage. Following single vehicle motor vehicle accident, she submitted SABS claim to Chubb, having received pamphlet from Wheels 4 Rent. Chubb refused to pay. Zurich paid SABS and insurers submitted dispute to arbitration, agreeing that liability depended on whether Chubb was insurer within meaning of s. 268 of Insurance Act (Ont.). Arbitrator held Chubb not “insurer” for purposes of priority dispute settlement statutory regime as insufficient nexus between Chubb and SS since Chubb never issued motor vehicle liability policy to either Wheels 4 Rent or SS. Zurich’s appeal allowed, but Chubb’s appeal to Ontario Court of Appeal also allowed. Majority of Court of Appeal held application judge erred in concluding Chubb policy was motor vehicle liability policy as no element of that policy insured against liability to others arising out of damage or injury caused by automobile or use or operation thereof. Justice Juriansz in dissent, held that applying established “nexus” test, Chubb, as first insurance company to receive completed SABS application, was obliged to pay while disputing coverage. Legislature could not have intended regulation would apply to insurers that do not offer motor vehicle liability policies to public but Chubb regularly writes motor vehicle liability policies and not “non-motor vehicle liability insurer” in broad sense. SS’s choice to send application to Chubb not random or arbitrary. Public policy to provide timely delivery of benefits would be seriously eroded by allowing insurance company that writes motor vehicle liability policies to argue, in case in which nexus test satisfied, that it is non-motor vehicle liability insurer. Zurich’s appeal to Supreme Court of Canada allowed. Supreme Court of Canada agreed with dissenting reasons of Justice Juriansz.
Zurich Insurance Co. v. Chubb Insurance Co. of Canada (Apr. 17, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 36002) Decision at 239 A.C.W.S. (3d) 997 was reversed.  251 A.C.W.S. (3d) 488.

Constitutional Law

COURTS

‘Courts of Quebec’ contemplated by s. 98 of Constitution Act, 1867 are Superior Court and Court of Appeal of Quebec

Governor General of Canada appointed judge to Quebec Court of Appeal. Prior to appointment, judge was member of Barreau du Quebec, judge of Federal Court and then Federal Court of Appeal Judge. Quebec solicited opinion of court on two constitutional questions: which Quebec courts are covered by s. 98 of Constitution Act, 1867, and what conditions for appointing judges to Quebec courts are required under s. 98 and, specifically, whether s. 98 permits appointment of persons who are members of federal courts. Historic context takes on particular importance in determining purpose of s. 98 in almost total absence of case law or learned commentary. Important fundamental distinction between compromise of 1867 that permitted civil law tradition to flourish in Quebec and creation of general court of appeal for Canada. In matters of constitutional interpretation, provision that embodies historic compromise must be interpreted in manner to preserve compromise. Section 3 of Judges Act (Can.) (JA), lists conditions of appointment of judiciary more detailed than those in s. 98. Section 3 requires link to Bar of province from which judge named, but addresses both advocates or barristers who performed duties and functions of judicial nature on full-time basis after admission to Bar and contemplates promotions from inferior provincial or federal courts to superior trial or appellate court. Practice of appointing judges to superior courts who are jurists with substantial degree of skill in local law, whether acquired by practice or by exercise of judicial functions, followed in Canada for almost 175 years. Section 98 is constitutional provision made subject to legislative interpretation via s. 3 of JA. Nothing in s. 3 incompatible with s. 98. “Courts of Quebec” contemplated by s. 98 are Superior Court and Court of Appeal of Quebec. Candidate for appointment to judiciary in accordance with s. 98 must belong or have belonged to Bar of Province of Quebec. Judge of federal courts who was member of Barreau du Quebec prior to becoming judge may be appointed to Court of Appeal of Quebec of Superior Court of Quebec. Appeal by AGQ, LSUC and CRC dismissed. Supreme Court of Canada agreed with reasons of Quebec Court of Appeal.
Quebec (Attorney General) v. Canada (Attorney General) (Apr. 24, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 36231) 251 A.C.W.S. (3d) 442.
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