mt_ignore
Legal Feeds
Canadian Lawyer
jobsinlaw.ca
Supreme Court | Federal Court | Federal Appeal | Ontario Civil | Ontario Criminal | Tax Court

Case Law

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.

These cases may be found online in BestCase and other electronic resources from  Canada Law Book.

To subscribe, please call 1-800-565-6967.

For more Case Law every week, subscribe to Law Times.

Aboriginal Peoples

SELF-GOVERNMENT

Chief not provided with opportunity to address concerns before his suspension was decided

Application for judicial review of resolution adopted by Band Council of respondent First Nation on June 8, 2012, whereby it was decided that applicant chief was not to represent views of Band Council, that his pay and allowance be suspended, and that he be denied access to offices, equipment, e-mail and phones. Reason for sanctions was alleged to have been letter sent by Chief to Prime Minister and Minister of Aboriginal Affairs and Northern Development Canada without the approval of Band Council. Letter highlighted, among other things, mishandling of money by Band Council. Application granted. Decision of Band Council to suspend chief and to strip him of his remuneration, his powers and access to his office until he accepted conditions imposed upon him was unreasonable and went beyond powers granted to Band Council by s. 84 of First Nation’s Election Policy. While one may disagree with tone of his letter, it could not reasonably be said that chief did not perform his responsibilities and leadership by calling for police investigation. There were certainly enough credible allegations of wrongdoing to raise legitimate concerns. Band Council also breached procedural fairness by suspending chief. Chief was not provided with any meaningful opportunity to address concerns of Band Council before his suspension was decided. Band Council resolution suspending chief was quashed, and First Nation was ordered to pay chief remuneration and other benefits he should have been allowed for period between June 11, 2012, and end of his term of elected office.
Tsetta v. Band Council of the Yellowknives Dene First Nation (Apr. 29, 2014, F.C., Yves de Montigny J., File No. T-1922-12) 240 A.C.W.S. (3d) 526.

Aboriginal Peoples

CROWN RELATIONSHIP

Not clear limitation period had begun as agreements still in force

Plaintiffs commenced action against Canada for damages for flooding of reserve lands and loss of land and its use, as well as loss of hunting, fishing and harvesting rights. Flood was caused by building of dam for hydro. Canada, Ontario and Manitoba entered into cost sharing agreements for capital costs related to dam, latter of which added compensation to capital costs. Manitoba made its final payment under agreement in 1980. In response to action, Canada issued third party claim against Ontario and Manitoba. Motion by Manitoba to be removed as third party on basis it had met obligations and been released from further liability and time had run out to add it. Motion dismissed. Not clear Manitoba no longer had obligations under agreement and some compensation had already been treated as capital costs. Not clear any party’s obligations had been discharged and not all losses to band had been settled. As agreements were still in force, it was not clear limitation period had even begun to run yet. No evidence Canada ever acquiesced to Manitoba’s refusal to accept liability or made representations it had been fully discharged. There was genuine issue for trial with respect to Manitoba’s liability, and action was not clearly out of time or barred by estoppel or doctrine of laches.
Southwind v. R. (Mar. 27, 2014, F.C., James W. O’Reilly J., File No. T-2579-91) 240 A.C.W.S. (3d) 525.

Charter of Rights

ENFORCEMENT OF RIGHTS

Inducements made to accused to get her to provide statement

Application by Crown to admit two statements made by accused to police. Accused was charged with second degree murder. Accused’s first statement was made to one of two police officers who responded to 9-1-1 call at accused’s building. In parking garage officers found accused, witness who made 9-1-1 call and deceased who was not breathing. One officer had brief conversation with accused and asked her for her name and if she was from specific apartment. Accused provided her name and she said she was from that apartment. She also told officer that deceased attacked her and she defended herself. Officer testified that accused was hysterical and distraught and he calmed her down, by telling her she was not in trouble and by placing his hand on her shoulder to reassure her and he was able to obtain information from her. He also testified that accused was not suspect when he questioned her. Second statement was lengthy statement that was videoed and audiotaped at police station. Crown applied for ruling on voluntariness of first statement and statement made at station. It conceded that second half of statement made at station could not be proven to be voluntary and Crown did not seek to introduce it. Accused claimed that entire statement at station was involuntary and that both statements should be excluded on basis that accused’s rights under Canadian Charter of Rights and Freedoms were infringed. Application allowed in part. First statement was admissible as it was given voluntarily. Her Charter rights were not breached when she gave that statement because she was not detained when she provided it. Statement taken at station was not proven to have been given voluntary and it was inadmissible. Inducements were also made to accused to get her to provide statement. Prior to interview accused was left in cold room with inadequate clothing for 10 hours before interview and she was given water and no food. At that interview accused was questioned in aggressive manner and she repeatedly told interviewing officers that she did not want to answer any questions and she had been advised by counsel not to do so. Officers ignored her and they continued with interview. If conclusion on voluntariness was wrong, statement at station was still inadmissible because several of accused’s Charter rights were violated and admission of statement would bring administration of justice into disrepute.
R. v. Dupuis (May. 2, 2014, Ont. S.C.J., M. Forestell J., File No. 13-40000614-0000) 113 W.C.B. (2d) 433.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Constellation of facts provided ample grounds for accused’s arrest

Accused appealed conviction. Issue was constitutionality of arrest that took place at door to accused’s apartment. Appeal dismissed. Despite some confusion in trial judge’s terminology between grounds for detention and grounds for arrest, findings of fact by trial judge, including marijuana smoke, accused’s suspicious conduct, and visible drug paraphernalia, provided ample grounds for accused’s arrest. Constellation of facts, viewed reasonably and cumulatively by someone with experience of officer in question, provided ample grounds for accused’s arrest. As arrest was lawful and, therefore, not breach of s. 9 of Charter, subsequent conduct of police, although clearly improper, could not have impacted on admissibility of evidence in question.
R. v. Meiz (Mar. 17, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55769) 113 W.C.B. (2d) 406.

Civil Procedure

SETTLEMENT

Plaintiff had change of heart, which was not basis to set aside settlement

Plaintiff was injured in motor vehicle accident and commenced action for insurance benefits and damages. Parties attended mediation and plaintiff entered settlement with two insurers, but subsequently resiled from settlement. Motion by insurer S. for summary judgment enforcing settlement for $110,000 payment in exchange for full and final release. Motion by insurer T., to whom plaintiff agreed in settlement to assign action against uninsured driver and owner, for default judgment against uninsured driver and owner for $288,996.19 in accordance with settlement. Motions granted. It was common ground long-term disability and tort claims were settled and minutes of settlement and releases were executed by all parties. Parties were independently represented by counsel and there was no evidence of duress, lack of capacity or unconscionability. Plaintiff chose not to file her own affidavit and simply put forth her position settlement was not in her best interests through her counsel’s affidavit, but counsel did not assert he believed these facts to be true, which reduced weight. Plaintiff simply had change of heart, which was not basis to set aside settlement.
Morant v. Sun Life Assurance Co. of Canada (May. 23, 2014, Ont. S.C.J., Daley J., File No. CV-12-1009-00, CV-12-0208-00) 240 A.C.W.S. (3d) 594.

Civil Procedure

PLEADINGS

Failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction

On Dec. 26, 2005, two groups of men started shooting at each other on sidewalk in Toronto. Three of combatants were shot, two innocent bystanders were injured and one innocent 15-year-old was killed. There was police investigation and criminal charges were laid against nine accused, two of whom were youths. Plaintiff was young person and he elected to be tried by judge alone. However, attorney general decided to have plaintiff’s election overridden. Notwithstanding attorney general’s direction, judge refused to change mode of trial to jury trial. Judge found that attorney general’s conduct was abuse of process. Judge admitted video surveillance evidence. Plaintiff was acquitted of charge of manslaughter. Plaintiff sued Attorney General for malicious prosecution. Attorney general brought motion to strike out amended statement of claim or dismiss action. Motion granted. As matter of private law, malicious prosecution regulated prosecutorial discretion, but as matter of public law, prosecutorial discretion was also regulated by criminal law doctrine of abuse of process. Attorney general’s decision to override plaintiff’s choice of judge alone was exercise of non-core element of prosecutorial discretion that was outside ambit of private law tort of malicious prosecution. Plaintiff argued that case against him was based on part on video surveillance evidence that judges had refused to admit in parallel cases. However, it was not unreasonable for attorney general to continue trial where video surveillance evidence was admitted. It did not logically follow from inability to use surveillance evidence in jury trials that attorney general had no reasonable prospect of conviction at trial where surveillance evidence was admitted, but was ultimately ruled unpersuasive. Attorney general did not continue prosecution knowing he had no reasonable prospect of conviction. Judge’s conclusion that evidence ultimately did not persuade her that plaintiff was involved in wrongdoing did not necessitate inference that attorney general had purpose other than carrying law into effect and that it was unreasonable for attorney general to continue prosecution. Attorney general’s failure to connect plaintiff to crime did not establish absence of reasonable prospect of conviction and did not show purpose outside of prosecution of case. Plaintiff failed to plead tenable action for malicious prosecution.
C. (G.) v. Ontario (Attorney General) (Jan. 20, 2014, Ont. S.C.J., Perell J., File No. 12-CV-449178) 240 A.C.W.S. (3d) 775.

Evidence

CREDIBILITY

Nothing to suggest uneven scrutiny of evidence

Accused appealed conviction for several offences, including possession of loaded prohibited weapon. Accused argued that trial judge failed to consider third branch of test in R. v. W.D., reversed burden of proof, and exposed defence evidence to higher degree of scrutiny than Crown’s evidence. Appeal dismissed. Nothing in trial judge’s reasons supported accused’s arguments. Trial judge addressed evidence by reference to several specific factual issues that arose in evidence. Trial judge thoroughly reviewed evidence, clearly appreciated where defence and Crown evidence conflicted, and gave various reasons for accepting Crown evidence in relation to those factual issues. Trial judge considered inconsistencies in evidence of various police officers who described melee that occurred, but explained in detail why those inconsistencies did not undermine credibility of witnesses. There was nothing to suggest uneven scrutiny of evidence. Several parts of accused’s evidence were, on their face, incredible, and it hardly took any unwarranted degree of scrutiny to reject that evidence.
R. v. Francois (Mar. 27, 2014, Ont. C.A., Doherty J.A., John Laskin J.A., and K. Feldman J.A., File No. CA C55431) 113 W.C.B. (2d) 326

Charter of Rights

FREEDOM OF EXPRESSION

Purpose of activity in question was not simply to communicate political idea or voice protest

Accused individuals appealed conviction for attempting to commit mischief. Accused individuals were engaged in series of demonstrations and attempted to block cattle trucks from removing herd of cattle from institution after cancellation of prison farm program. Trial judge found that while demonstration was peaceful and was clearly political, objective was not simply to express displeasure but to stop removal of cattle, which institution was legally entitled to do. Accused individuals argued that trial judge erred in finding that their actions constituted attempted mischief and erred in finding that it was not within “limits of tolerance in democratic society”, such that it did not constitute criminal wrongdoing. Accused individuals argued that they were engaged in peaceful expression of protest and that their conduct was protected pursuant to s. 2(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Trial judge’s decision was supported given findings of fact. Accused individuals’ conduct was not Charter-protected. Purpose of activity in question was not simply to communicate political idea or to voice protest, but to halt removal of cattle. Evidence before trial judge was sufficient to allow him to conclude that conduct of accused individuals crossed line and constituted criminal wrongdoing. Trial judge was entitled to conclude that conduct of accused individuals was to block cattle trucks and stop closure of prison farm, as opposed to expressing idea. Trial judge did not directly address s. 2(b) Charter argument largely because accused individuals at trial argued de minimis and necessity. Full reading of trial judge’s decision indicated that he did turn his mind to constitutional right of freedom of expression pursuant to s. 2(b) of Charter, and that he made specific findings of fact sufficient to conclude that actions of accused individuals were not protected by s. 2(b) of Charter. Trial judge’s decision was correct and supported by evidence.
R. v. McCann (May. 13, 2014, Ont. S.C.J., John M. Johnston J., File No. CR-12-15, 12-153, 12-152) 113 W.C.B. (2d) 345.

Criminal Law

CIVIL FORFEITURE

Despite errors, still manifestly harsh and inequitable to order forfeiture

Civil Remedies Act, 2001 (Ont.), establishes civil forfeiture scheme providing for forfeiture of property used to engage in unlawful activity (s. 8(1)). Forfeiture subject to “Responsible Owner Exception”, where party seeking to avoid forfeiture establishes he is “responsible owner”, and “Interest of Justice Exception”, which grants courts discretion to relieve against forfeiture if order clearly not in interest of justice. Attorney General of Ontario applied for s. 8(1) forfeiture of single-family, private residence used to engage in unlawful activity. Owner rented residence to son who had long-standing and serious addiction to drugs and lengthy criminal record. While son lived in residence, he was convicted of various drug and trafficking offences. Application judge dismissed application, finding that Responsible Owner Exception did not apply, but that Interest of Justice Exception did apply because Attorney General inexplicably delayed, thereby prejudicing owner and rendering forfeiture order unfair. Attorney General’s appeal dismissed. Evidentiary record did not support finding of delay attributable to Attorney General. Forfeiture proceeding commenced within five months of initial police referral and three months of submission to Attorney General. Application judge erred by failing to assess undue delay claim in context of full record and by failing to give effect to s. 8(5) Act which provides there is no limitation period for s. 8(1) forfeiture proceeding. Application judge improperly substituted own discretion. Despite errors, still manifestly harsh and inequitable and clearly not in interests of justice to order forfeiture. Connection between property and son’s illegal activities neither consistent nor overwhelming; forfeiture order would not promote deterrence and crime prevention goals. Application judge failed to consider evidence as whole regarding reasonableness of owner’s conduct in relation to property and son’s activities when addressing Interest of Justice Exception. Owner entirely innocent of any involvement in and derived no benefit from unlawful activities and attempted to assist son in overcoming drug addiction. Owner made diligent efforts to monitor activities at property. Court justified in exercising discretion to refuse forfeiture.
Ontario (Attorney General) v. 20 Strike Avenue (May. 16, 2014, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C57014) Decision at 228 A.C.W.S. (3d) 420 was affirmed.  240 A.C.W.S. (3d) 378.

Civil Procedure

DISCOVERY

Names of students not privileged when they originated in other documents

Plaintiff was teacher at defendant school. It was alleged that plaintiff assaulted one of students who was son of another teacher and her husband. Parents complained to school and reported incident to police. Police contacted Children’s Aid Society. Police and society conducted separate investigations. School held meeting of parents and others in community. It was alleged that husband defamed plaintiff at meeting. Plaintiff was not present at meeting. Society and police found that allegations were unfounded. Plaintiff’s employed was ended. Plaintiff sued school and parents. Plaintiff brought motion for order that representative of defendant answer certain questions put to him on examination for discovery. School claimed it was prevented from answering outstanding questions and making related production by virtue of privilege established by s. 266(2) of Education Act (Ont.). Motion was dismissed. Plaintiff appealed. Appeal allowed. Information as to who was invited and attended meeting reflected on whether there was defamation or libel and if so, how damaging it might have been to plaintiff. Name of parent who had some information as to society’s investigation indicated possibility that there was someone who could contribute some understanding as to how investigation was undertaken and substance behind its conclusions. Nothing in material suggested that any of this would or could improve instruction or education of any student. None of information belonged in Ontario Student Record (OSR) and was not subject of privilege. Question as to who attended meeting was about parents, not students. To disallow information from other sources to be released because it also happened to be in OSR, particularly information that reflected nothing more than identity of student, would extend privilege in manner that was contrary to public interest. Names of students were in OSR to assist individuals referred to in s. 266(2) of Act for improvement of instruction and other education of pupil. Names of students were not privileged when they originated in other documents where they were used for other purposes.
Robinson v. Northmount School for Boys (May. 2, 2014, Ont. S.C.J., Lederer J., File No. CV-09-378776) Decision at 226 A.C.W.S. (3d) 76 was reversed.  240 A.C.W.S. (3d) 328.
<< Start < Prev 1 2 3 4 5 6 7 8 9 10 Next > End >>
Page 1 of 81

More Law Times TV...

Law Times poll

Will you be signing up for a dot-lawyer domain name for your web site?
Yes, it's a great tool to get my name out there.
No, it's a cash grab that won't do much for lawyers.