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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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Evidence

Voluntariness

Confessions rule requires that oppressive conditions be caused or created by state

Accused presented himself at police station and claimed to have burned down his mother’s house. Police gave accused required warnings and advised of right to counsel. On voir dire trial judge held confession to be inadmissible as involuntary as accused, who was homeless, made it in order to be sent to jail. Trial judge held that fact that accused was homeless meant that he was suffering under oppressive conditions. Accused was acquitted. Crown appealed. Appeal allowed and new trial ordered. No nexus between threat or promise and confession as accused came to police detachment with express purpose of confessing to arson. Act of supplying accurate factual information to accused does not constitute inducement. Trial judge found that conduct of police was “unimpeachable” and “blameless” so not possible that oppression was a factor. Under confessions rule oppressive conditions must be caused or created by state.
R. v. Fernandes (2016), 2016 CarswellOnt 16289, 2016 ONCA 772, Doherty J.A., S.E. Pepall J.A., and C.W. Hourigan J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from sentence
Trial judge improperly recorded absence of remorse as aggravating factor

Accused was sentenced to five years and three months imprisonment. Accused appealed from conviction and sentence. Appeal allowed in part. On sentence appeal, accused was entitled to pre-trial custody credit on 1.5:1 basis. Trial judge explicitly, and improperly, recorded absence of remorse as aggravating factor. Credit for 305 days of pre-sentence custody awarded. On remorse issue, sentence reduced by three months, to five years. No issue arose with forfeiture order or order made under s. 161 of Criminal Code. Trial, including sentence, was completed under 30 month ceiling suggested in 2016 Supreme Court of Canada judgment, and did not breach s. 11(b) of Charter of Rights and Freedoms.
R. v. Kidd (2016), 2016 CarswellOnt 15971, 2016 ONCA 757, MacPherson J.A., Epstein J.A., and Lauwers J.A. (Ont. C.A.).


Educational law

Colleges and universities

Student union was not subject to Charter

Applicants were university students who were members of pro-life organization seeking status as “student group.” University’s student union denied organization’s final appeal to be granted “student group” status. Applicants applied for declarative relief quashing student union’s decision. Application dismissed. It was not appropriate to exercise jurisdiction to review student union’s decision. Student union was private corporation with broad powers to act independently. Student union’s decision to grant or deny student group status was private decision by private entity, within its powers to make, and which did not engage principles of administrative law. Student union was not subject to Canadian Charter of Rights and Freedoms. There was no basis for conclusion that student union failed to take into account applicant’s rights to freedom of expression and association. To extent that student union had contractual obligation to consider and decide applicants’ request fairly and in accordance with its own procedures, that obligation was fully discharged. Applicants were free to continue to associate and express themselves on university campus, holding meetings or events and raising funds for their cause.
Grant v. Ryerson Students’ Union (2016), 2016 CarswellOnt 15862, 2016 ONSC 5519, Stewart J. (Ont. S.C.J.).


Business Associations

Legal proceedings involving business associations

Motion to quash appeal for want of jurisdiction was dismissed

Plaintiffs claimed defendants deprived them of their interest in corporations. Claim was subject of bifurcation order whereby determination of plaintiffs’ request for declarations as to their rights was split from their request for remedies related to any declared rights. Declaration was made that plaintiffs had one-third interest in corporations and in all monies, benefits and opportunities withdrawn or diverted directly or indirectly from those corporations. Defendants were ordered to make interim payments to plaintiffs pending later trial to determine what further remedies were available to plaintiffs. Defendants appealed. Plaintiffs brought motion to quash appeal for want of jurisdiction. Motion dismissed. Order under appeal was final. It was not appeal under Ontario Business Corporations Act to which s. 255 applied requiring appeal to Divisional Court. Appeal was not devoid of merit.
Buccilli v. Pillitter (2016), 2016 CarswellOnt 16393, 2016 ONCA 775, E.A. Cronk J.A., Paul Rouleau J.A., and Grant Huscroft J.A. (Ont. C.A.).


Pleadings

Statement of claim

Action was struck as disclosing no reasonable cause of action

Plaintiff D brought action in Federal Court, claiming right not to work while being afforded reasonable standard of living. Action was struck as disclosing no reasonable cause of action, with this finding being upheld on appeal. D appealed from Federal Court judgment. Appeal dismissed. D’s claim on appeal that she owned share of Consolidated Revenue Fund could not succeed. Previous claims were properly dismissed, as there was no basis in law for them.
Doell v. R. (2016), 2016 CarswellNat 4935, 2016 FCA 235, Gauthier J.A., David Stratas J.A., and Gleason J.A. (F.C.A.).


Civil Practice and Procedure

Class and representative proceedings

Motion for class proceeding certification was dismissed

Plaintiffs were chief and First Nations group, who were subject of treaties made between 1871 and 1921. Members of group received $5 yearly payment, from rate set in 1875. Plaintiffs claimed that lack of adjustment to yearly rate rendered payments meaningless. Plaintiffs moved to have action certified, to include other First Nations under treaties. Motion was dismissed, as Federal Court found there was no common issue. Plaintiffs appealed from dismissal of motion. Appeal dismissed. Federal Court identified proper issues and authorities. Court’s finding that plaintiffs sought relief beyond what was established in caselaw was proper. Different treaties were in place for proposed class members, so that common question was not established. Had scope of action been limited to one treaty, problem would have been avoided.
R. v. Horseman (2016), 2016 CarswellNat 4975, 2016 FCA 238, Johanne Gauthier J.A., David Stratas J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5461, 2015 CarswellNat 9094, 2015 FC 1149, 2015 CF 1149, Russel W. Zinn J. (F.C.).


Judges and courts

Justices, magistrates and provincial courts

Independent review of initial remuneration of judges appointed to new judicial office is necessary

In 2004, government of Quebec reformed its regime of justices of peace by creating two categories of justices of peace. Government set starting remuneration of new category well below the previous levels. In 2008, association of justices of peace and its individual members made application in Superior Court arguing that provisions relating to setting and review of remuneration violated financial security guarantee of judicial independence. Application judge dismissed application, holding that the government’s decision had been validated by a special committee and that candidates applied for the office with full knowledge of the situation. Court of Appeal dismissed appeal brought by association and its members . Court of Appeal considered level of remuneration that was fixed to be high enough to guarantee independence of new justices of the peace. Association and its members appealed. Appeal allowed in part. In order to adequately protect judicial independence, whenever new judicial office is created, independent review of initial remuneration of judges appointed to new office is always necessary. Review by remuneration committee should take place within reasonable time after appointment of the new judges. In present case, reform breached financial security guarantee of judicial independence because remuneration for 2004 to 2007 was not reviewed within reasonable time after new appointments. Indeed, the remuneration for that period has never been reviewed. Since Act created new judicial office, initial remuneration of all judges appointed to this office needed to be reviewed retroactively, within reasonable time after their appointment. As ss. 27, 30 and 32 of Act did not provide for retroactive committee review within reasonable time, these sections infringed institutional financial security guarantee of judicial independence, and were thus contrary to s. 11(d) of Canadian Charter of Rights and Freedoms and preamble to Constitution Act, 1867.
Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General) (2016), 2016 CarswellQue 9318, 2016 CarswellQue 9319, 2016 SCC 39, 2016 CSC 39, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellQue 14611, 2014 CarswellQue 9133, 2014 QCCA 1654, Bouchard J.C.A., Vauclair J.C.A., and Dalphond J.C.A. (C.A. Que.).


Civil Practice and Procedure

Class and representative proceedings

Class proceedings acts gave judges power to sit outside of province

Three separate class actions took place on behalf of individuals infected with hepatitis C, as result of tainted blood supply between 1986 and 1990. B.C. and Quebec courts oversaw actions involving those provinces’ residents, while Ontario action involved Ontario residents and those from all other provinces. Settlement agreement was made in 1999, authorizing three provincial courts to supervise claims and requiring agreement among courts for settlement to take effect. In 2012, class counsel made motions relating to settlement agreement, proposing that judges from all 3 provinces hear motion sitting in one location. Provincial governments opposed motion, stating that judges lacked jurisdiction to sit outside own province. On motions for directions, motions judges in all 3 provinces rules that they could sit outside province for purpose of settlement agreement motions. Ontario and B.C. appealed from judgment. Court of Appeal in both provinces found that it was permissible for provincial judges to conduct hearing, with use of video or telephone link. Representative plaintiffs appealed to Supreme Court, stating that link was not necessary for judges to hear matter outside of province. Ontario cross-appealed from judgment, claiming that there was no power for judges to hear matter outside of province. Parties agreed before Supreme Court hearing that judges had discretion to hear matter. Source of discretionary power and conditions of its use were still live issues. Appeal allowed; cross-appeal dismissed. Judge had discretion in national class action, to hold hearing in conjunction with other judges in related class actions. Discretion could be used as long as court’s coercive powers were not necessary, and hearing was not contrary to law of governing jurisdiction. Class proceedings acts in both Ontario and B.C. gave judges power to sit outside of province. Relevant law gave judges inherent jurisdiction to control own processes. Video link was not requirement. Court was to be guided by principles, including whether sitting outside province would impinge on sovereignty of another province. Court was to take into accounts benefits and costs of out-of-province proceeding. Court was to determine whether terms such as video link or extraordinary costs were necessary.
Endean v. British Columbia (2016), 2016 CarswellBC 2891, 2016 CarswellBC 2892, 2016 SCC 42, 2016 CSC 42, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellBC 363, 2014 BCCA 61, Saunders J.A., Tysoe J.A., and Goepel J.A. (B.C. C.A.). (S.C.C.); reversed (2015), 2015 CarswellOnt 3336, 2015 ONCA 158, R.G. Juriansz J.A., H.S. LaForme J.A., and P. Lauwers J.A. (Ont. C.A.).


Appeal

Summary conviction appeals

Appeal had no apparent merit

Accused was found in driver’s seat of vehicle from which steam or smoke was emanating, with her head down. Responding police officer detected strong odour of alcohol coming from accused as she walked away, as well as slurred speech and red and bloodshot eyes. Accused was convicted of impaired driving. Her appeal from conviction was dismissed. Accused applied for leave to appeal. Application dismissed. Leave should be granted sparingly in such circumstances. Appeal had no apparent merit. Trial judge’s factual finding that accused’s conduct created realistic risk of danger to persons or property was amply supported by evidence. Accused admitted that she entered her vehicle with intention of driving it. She drank alcohol while in driver’s seat, with keys in ignition and car turned on. Passer-by found her at wheel and unresponsive. Accused had not identified any error of law by summary conviction appeal judge.
R. v. Stacey (Jul. 6, 2016, Ont. C.A., Paul Rouleau J.A., C.W. Hourigan J.A., and G. Pardu J.A., C61653) Leave to appeal decision at 127 W.C.B. (2d) 536 was refused. 132 W.C.B. (2d) 580.

Debtor and Creditor

Fraudulent transactions

Claim to set aside transfer of land as fraudulent conveyance was dismissed

Plaintiffs obtained judgment against defendants. SM made payments subsequent to judgment. One of plaintiffs signed release with regard to debt owed. Plaintiffs asserted defendants represented that plaintiffs would be paid notwithstanding bankruptcy. Plaintiffs brought claim seeking to set aside transfer of land as fraudulent conveyance based on allegation that SM at time of transfer was indebted to plaintiff pursuant to unpaid judgment debt. Defendants asserted SM was released from any liability by assignment in bankruptcy and subsequent discharge from bankruptcy. Defendants asserted that SM acquired his interest in land after date of his discharge and transfer of land was made more than 10 years after his discharge from bankruptcy. Defendants brought motion for summary judgment to dismiss plaintiffs’ action. Motion granted. There was no genuine issue requiring trial. Defendants made out prima facie case . Claim was based on SM being indebted to plaintiffs at time of transfer in 2010, but at time of transfer SM was released from his obligation under judgment as result of discharge from bankruptcy. There was no basis on which to set aside transfer of lands made by SM 10 years after his discharge from bankruptcy and where he acquired lands three years after discharge from bankruptcy. Release and confirmation of financial settlement, and payment were sufficient to release SM from all further payments traceable to judgment, or any alleged agreement to pay judgment notwithstanding SM’s discharge from bankruptcy. Evidence failed to establish that plaintiff who did not sign release was aware of agreement to withhold filing proof of bankruptcy in exchange for promise by defendants to pay judgment. Failure of SM to list plaintiff as creditor when making assignment in bankruptcy had no effect on validity of SM’s discharge from bankruptcy. Pleadings could not be interpreted as basis of claim in contract or detrimental reliance arising out of alleged representations by defendants at time of SM’s assignment in bankruptcy.
Youssef v. Meddaoui (Aug. 31, 2016, Ont. S.C.J., Victor Mitrow J., 5261/11) 270 A.C.W.S. (3d) 770.


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