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Self-defence only available if actions were reasonable in circumstances

Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, possession of weapon for purpose dangerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transaction (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complainant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complainant in effort to defend his girlfriend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly admitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered conviction on aggravated assault charge. Defence is only available if actions of accused were reasonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if accused’s evidence was accepted in its entirety, once he wrestled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused’s conduct went far beyond what could be considered reasonable or necessary. No error was seen in trial judge’s consideration of this defence.
R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Decision at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395.


Time element

Demand for alcohol screening device sample was made forthwith

Accused was convicted of driving “over 80.” Accused applied for leave to appeal summary conviction appeal decision upholding his conviction, arguing that trial judge erred in finding that arresting officer’s demand that accused provide sample of breath into alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relating to whether ASD sample has been taken “forthwith” are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to administration of justice beyond four corners of this case. No error was found in summary conviction appeal judge’s conclusion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for accused to consult with counsel during 13-minute delay. Evidence supported arresting officer’s assumption that nearby officer would deliver ASD shortly.
R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325.

Conflict of Laws


Factors supported Ontario as more convenient forum

Parties married in 2010 and separated in 2014. Parties were parents of young child who lived with mother in Ontario. Father was professional hockey player and, following marriage, parties lived in Chicago during hockey season and returned to Ontario for summer. Father was traded to Toronto in 2013 and parties moved to Ontario. In 2014 father signed contract with Florida and parties purchased home in Florida. Mother claimed she only lived in Florida home for two weeks before returning with child to Ontario in September 2014. Father brought petition in Florida for dissolution of marriage, division of property, shared custody, and determination of support. Mother brought application in Ontario for divorce, equalization of net family property, custody, and support. Mother brought motion for order that Ontario had jurisdiction to deal with custody, access and divorce; father brought cross-motion to dismiss application on basis that mother had not met 12-month residency requirement prior to issuance of her application. Motion granted; cross-motion dismissed. Mother was ordinarily resident in Ontario from July 2013 when father was traded to Toronto. Ontario was where mother had settled routine of her life, and where she regularly, normally or customarily lived. Child was born in Ontario and had lived there all of her life except for two weeks in September 2014. Ontario had jurisdiction to deal with support and property issues. Factors supported Ontario as more convenient forum for adjudication of claims.
Bolland v. Bolland (July 6, 2016, Ont. S.C.J., Hood J., FS-15-00404715-0000) 268 A.C.W.S. (3d) 815.

Building Liens


Motion for declaration that lien expired was denied

In September 2013, defendant general contractor retained plaintiff subcontractor to supply labour, materials and equipment for interchange improvements on highway construction project. Although plaintiff began work in 2013, signed subcontract for $9,952.665 plus taxes not returned to it until December 2014. Following dispute in regard to work, delays and payment, plaintiff terminated contract in February 2015. On March 20, 2015, plaintiff served claim for lien (dated March 18, 2015) stating it had last supplied services and/or materials to project on February 6, 2015. Parties agreed, however, plaintiff had not physically been on site of project since prior to winter shut-down scheduled for December 19, 2014. Defendant alleged plaintiff had, therefore, failed to preserve its lien within strict 45-day limitation period prescribed by Construction Lien Act (Ont.) and brought motion for declaration lien expired. Plaintiff claimed it had, between December 19, 2014 and February 6, 2015, been performing off-site work in preparation for spring start-up of project scheduled for April 2015 with result lien preserved within time. Motion denied. Scheduled winter shut-down did not put an end to plaintiff’s ongoing obligations under contract. It had been reasonable for plaintiff to continue to perform off-site work in order to be ready for spring start-up without delay. It would not make any practical or commercial sense to require all subcontractors to register liens with 45 days of last on-site work or supply in event of any extended shut-down (whether for weather, labour dispute, scheduling issues or other reason). On evidence, plaintiff’s off-site preparatory work, including communications with regard to and submission of documentation and shop drawings, and provision of shoring system and concrete forms, constituted lienable supply of services or materials within Act with result claim of lien valid.
Toronto Zenith Contracting Ltd. v. Fermar Paving Ltd. (July 19, 2016, Ont. S.C.J., DiTomaso J., CV-15-495) 268 A.C.W.S. (3d) 724.

Aboriginal Peoples

Exemption from taxation

Taxpayer did not qualify for exemption with respect to bonuses

Taxpayer and her spouse owned and operated construction company. During relevant period, taxpayer was status Indian and was entitled to tax exemption under Indian Act (Can.) in respect of personal property situation on reserve. Her spouse was not, and was not entitled to tax exemption. Construction company employed up to 50 individuals on various construction sites, and almost none of sites were located on reserves. Spouse worked on construction sites and taxpayer worked in company office which was located on reserve. Company paid regular remuneration to taxpayer and spouse and paid balance of its annual income to taxpayer in form of year end bonuses. For income purposes, company claimed deductions for regular pay and bonuses and these deductions were allowed by Minister. Taxpayer claimed tax exemptions with respect to her regular pay and bonuses and Minister allowed exemption with respect to regular pay and disallowed exemption with respect to bonuses. Taxpayer appealed. Taxpayer did not qualify for exemption with respect to bonuses. Appeal allowed only with respect to issues agreed between parties. For purposes of appeal property at issue was remuneration from employment. Taxpayer already received adequate compensation for her employment in form of biweekly pay. Bonuses were not entitlement from reserve land by virtue of taxpayer’s employment because there was no substantive connection between land and bonuses. It was abusive of exemption to allow taxpayer to receive bonuses exceeding reasonable remuneration. Company undertook transaction having appearance of strong connection between bonuses and employment. In reality, there was no substantive connection. There was no evidence to support that bonuses were reasonable remuneration or that bonuses were intended by parties to reasonably compensate taxpayer for her duties of employment. Taxpayer received remuneration through her bi-weekly pay that was roughly equivalent to spouse’s remuneration except for 2008 when her pay exceeded that of her spouse. In order for bonuses to be reasonable, taxpayer should have made greater contribution to company than her spouse but evidence did not support this. Taxpayer played administrative role with respect to construction contracts with limited exceptions. Taxpayer’s employment was not strong connecting factor for bonuses. It was not abusive to move company’s office to reserve. Office was substantial and Minister’s argument in this regard attempted to read business purpose test into Act exemption.
Bell v. R. (July 27, 2016, T.C.C. [General Procedure], Judith Woods J., 2013-1806(IT)G) 268 A.C.W.S. (3d) 701.

Human Rights Legislation

Human Rights Commission/Tribunal

Investigator failed to conduct sufficiently thorough investigation

Employee filed complaint with Canadian Human Rights Commission (CHRC) alleging she was harassed and discriminated against in workplace by employer’s chief of staff on basis of her age, sex, and marital status. Investigator found alleged harassment had occurred based on inappropriate behavior by chief of staff. CHRC released investigation report recommending that Tribunal commence inquiry into complaint. Employer brought application for judicial review of decision of CHRC to request inquiry into complaint. Application granted. Investigator failed to conduct sufficiently thorough investigation, rendering it clearly deficient. Investigator failed to interview chief of staff or any other employees who were still working for employer, or interview individuals present at meeting involving employee and chief of staff at which it was alleged harassment took place. Investigator did not turn mind to question of whether harassment had been reported by employee to her supervisors, or whether employee’s anxiety and emotional distress resulted from alleged harassment, or if there were adverse consequences of unrelated issues. Matter was to be returned to investigator for redetermination.
Southern Chiefs Organization Inc. v. Dumas (July 20, 2016, F.C., Alan S. Diner J., T-1612-15) 268 A.C.W.S. (3d) 831.


Public service

Grievance procedure provided only forum in which plaintiff could seek relief

Plaintiff was former federal public servant. During his employment plaintiff complained about his performance rating. Plaintiff asserted he and Assistant Deputy Minister (ADM), Human Resources verbally agreed that his performance rating would be changed for better and he would receive same performance rating for next year if he received positive reviews. In return plaintiff was to resign from public service by specified date. ADM, Human Resources denied agreeing to terms. Plaintiff’s performance rating did not change. Plaintiff’s grievance was denied. Plaintiff referred grievance to Public Service Labour Relations Board. Board denied grievance and rejected allegation that plaintiff’s treatment amount to bad faith or disguised discipline. Plaintiff’s application for judicial review was granted and redetermination of grievance resulted in favourable decision. Plaintiff filed application for judicial review asserting that decision-maker failed to deal with allegations of bad faith and damage to his reputation. Plaintiff claimed damages asserting actions of official in processing his grievance constituted misfeasance in public office. Defendant asserted court did not have jurisdiction to adjudicate claim. Defendant brought motion to strike statement of claim. Motion granted. Claim was struck in its entirety without leave to amend. Grievance procedure in Public Service Labour Relations Act (Can.) provided only forum in which plaintiff could seek relief. Plaintiff’s bald allegations of bad faith, malice and corruption did not bring his claim outside scope of grievance process.
Price v. Canada (Attorney General) (June 10, 2016, F.C., Simon Fothergill J., T-87-16) 268 A.C.W.S. (3d) 866.

Civil Procedure

Class actions

Judge ordered there must be at least one publicly identified class representative

Federal government department, HC, sent plaintiffs and other participants in Marijuana Medical Access Program information in envelope marked, “Marijuana Medical Access Program.” Two anonymous plaintiffs brought action against HC alleging breach of contract, negligence, breach of confidence, intrusion on seclusion, publicity to private life, and breach of right to privacy under ss. 7 and 8 of Canadian Charter of Rights and Freedoms. Plaintiffs brought motion for order certifying action as class proceeding on behalf of all participants who received envelopes. Motion judge granted certification, subject to amendment of Charter-based claim and naming of at least one, publicly-identified class representative, holding that plaintiffs had pleaded more than sufficiently to raise matter of bad faith and malice, that class was not overly broad, that common issues would move litigation forward, and that class action was preferable procedure. HC appealed; plaintiffs cross-appealed. Appeal allowed in part; certification order confirmed with respect to negligence and breach of confidence only; all other causes of action dismissed; cross-appeal dismissed. Motions judge made no palpable and overriding error in ordering that there be at least one named plaintiff in addition to anonymous ones. Anonymity of class representatives was at odds with their responsibilities to represent class members’ interests under R. 334.16(1)(e)(i) of Federal Courts Rules (Can.). Ability to communicate with representative plaintiffs was crucial to class members’ ability to decide whether or not to opt out and to decide whether representative plaintiffs were suitable. There was no evidence that there was nobody willing to identify himself or herself publicly as representative of class; several class members appeared in media self-identifying as medical marihuana users and/or producers.
R. v. John Doe (June 24, 2016, F.C.A., C. Michael Ryer J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-343-15) Decision at 257 A.C.W.S. (3d) 528 was reversed. 268 A.C.W.S. (3d) 753.

Charter of Rights

Right to interpreter

Onus is upon claimant of right seeking not to testify in language of judicial proceeding

At outset of criminal trial, court was advised that Punjabi interpreter would be required for complainant. Punjabi interpreter was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada’s official languages. As trial progressed, it became evident that complainant understood, and was able to communicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one-half hours. Second, complainant did not visibly experience discomfort while testifying. Third, complainant indicated preparedness to investigating officer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact’s ability to make credibility determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if required. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms presumes that witness will testify in one of Canada’s official languages absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding.
R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317.


Proof of offence

Discreditable conduct evidence was relevant to motive

Either residence’s owner or accused started fire in hole in basement stairway wall of owner’s 150-year old farmhouse. Accused and complainant, in romantic relationship at time, were only people at house that day. Crown alleged accused started fire at issue to avoid having to disclose to complainant that she did not have closing funds she claimed she had for property parties were supposed to buy together. That, in turn, would have risked exposing accused’s lies about her marriage, money she claimed to be receiving from her husband’s death and sale of their matrimonial home. Accused appealed her conviction for arson, arguing that trial judge reversed burden of proof, improperly allowed discreditable conduct evidence, and misapprehended evidence. Appeal dismissed. Discreditable conduct evidence was relevant to motive and properly admitted. Trial judge did not reverse burden of proof and impugned statements reflected he was responsive to defence arguments. While complainant had opportunity to set garage fire, trial judge rejected only apparent motive he would have had to start that fire: namely, to collect home insurance. That finding was based on accepting complainant’s evidence that he would not have benefitted from insurance claim, and was entitled to deference. Accused had motive to set house fire as trial judge found and even on her evidence, accused had about two to three minutes of opportunity to start garage fire. Trial judge found that accused was not credible witness on central issues of case such that misapprehension of impugned evidence would not have played central role in trial judge’s reasoning process resulting in conviction.
R. v. Bos (June 7, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C56169) Decision at 103 W.C.B. (2d) 242 was affirmed. 131 W.C.B. (2d) 223.

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