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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


Lack of reliability concerning initial tip increased obligation of officers

Accused sought to exclude evidence regarding his arrest for cocaine trafficking. Police received anonymous tip and put accused under surveillance and observed him have four meetings which police suspected were drug transactions. Accused was long term resident of community, knew lots of people and was observed to meet in place such as department store and hockey game. Application granted, evidence excluded. Court did not find reasonable and probable grounds for arrest, various meetings could be accounted for by other explanations and all of them appeared to be neutral in nature. Lack of any reliability concerning initial tip and accused’s lack of criminal record increased obligation of officers in their investigation to at least observe hand to hand transaction or, where drugs were later found, face to face meeting. It was especially necessary considering fact that accused appeared to have been long time resident of community who knew many people with meetings having possible innocent explanation.
R. v. Biadi (Apr. 22, 2014, Ont. S.C.J., McDermot J., File No. CR-12-00004914-0000) 112 W.C.B. (2d) 771.



Misapprehended evidence relied on to make crucial credibility assessments at trial

Trial judge convicted accused of sexual assault of neighbour’s five-year-old daughter. Complainant testified during horseplay where accused blew on children’s stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Forensic expert testified deposits of accused’s DNA found in complainant’s underwear but not from external vaginal swab. Forensic expert testified secondary transference of DNA to underwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to underwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster credibility of complainant and reject evidence of accused. Appeal allowed and new trial ordered. Trial judge critically misapprehended forensic evidence by stating deposit could only have been through oral sex and wholly ignored negative result of vaginal swab. Misapprehended evidence relied on to make crucial credibility assessments at trial. Correctly apprehended forensic evidence tended to bolster accused’s admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant’s evidence oral sex occurred.
R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788.



Corporate defendants were alter egos of each other and acted as single business

Plaintiff delivered electrical equipment to defendant companies. Plaintiff claimed it was owed $150,950.16. Defendants did not dispute receiving goods from plaintiff for which they had not paid, but disputed amount owing. Plaintiff brought motion for summary judgment for breach of contract and breach of trust under Construction Lien Act (Ont.). Motion granted in part. Plaintiff’s documents were sufficient to establish account balance and were accepted in absence of any probative evidence to contrary. Plaintiff was awarded judgment of $150,950.16 plus interest. Defendant companies were iterations of same business. It was not clear which company ordered and used goods purchased from plaintiff. It was within defendants’ knowledge which company had benefit of supply of plaintiff’s goods. Defendants were deliberately misdirecting liability among themselves. For purposes of supply contracts at issue, corporate defendants were alter egos of each other and acted as single business and were jointly and severally liable. Individual defendant was operating mind of companies and was person plaintiff dealt with. If there was breach of trust then individual would be liable for it. It was for plaintiff to show that there were trust funds and that funds had been disbursed in breach. Information that was relevant to establishing propositions would be in defendants’ possession and had not yet been produced. Individual defendant failed to attend for cross-examination, but there was evidence that failure was inadvertent and individual defendant was given another chance to discharge his obligation before drawing adverse interference of breach of trust. Individual defendant was to provide list of documents.
Rexel Canada Electrical Inc. v. Tron Electric Inc. (Mar. 31, 2014, Ont. S.C.J., D.L. Corbett J., File No. CV-11-433830) 239 A.C.W.S. (3d) 361.

Civil Procedure


No evidence of economic loss or damage as result of sigma of haunted property

Plaintiff purchased commercial property from defendant. Article appeared in newspaper in which director of defendant was quoted as saying that property was haunted. Plaintiff commenced action on basis that there was latent defect in property that defendant knew about and concealed or failed to disclose, namely, death or murder at property. Defendant successfully brought motion for summary judgment and claim was dismissed. Plaintiff appealed. Appeal dismissed. There was no direct evidence of economic loss or damage as result of stigma of haunted property. There was no direct evidence from anyone who observed any strange occurrences at property. Motion judge did not err in concluding that case was proper one for dismissal on summary judgment.
1784773 Ontario Inc. v. K-W Labour Assn. Inc. (Apr. 14, 2014, Ont. C.A., Feldman J.A., Rouleau J.A., and Hourigan J.A., File No. CA C57674) Decision at 234 A.C.W.S. (3d) 1067 was affirmed.  239 A.C.W.S. (3d) 529.



Analysis and reasons so inadequate that they could not be considered reasonable

Refugee claimants were citizens of Croatia of Serbian ethnicity who alleged fear of persecution by reason of their ethnicity. Claimants alleged that they had difficulty in obtaining work, suffered discrimination in workplace, and were verbally harassed. Board found that incessant and repeated acts of discrimination suffered by all members of family by reason of their nationality, particularly their son being beaten and discrimination suffered by female claimant in finding employment, amounted to persecution. Board found that state protection would not be forthcoming as claimants had made several attempts to obtain protection from police authorities and although police responded on every occasion, they consistently failed to provide adequate level of protection to family. Board found that documentary evidence confirmed that discrimination against ethnic Serbs existed throughout Croatia, and that claimants would not likely be able to find gainful employment in all of Croatia. Board concluded that claimants were Convention Refugees and Minister applied for judicial review. Application granted. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable. Board’s finding that incessant and repeated number of acts of discrimination suffered by all members of family amounted to persecution did not accord with evidence before it. Board’s finding that police consistently failed to provide adequate level of protection was not grounded in evidence as board recognized that police responded on every occasion that they were called by claimants and there was no evidence that police failed to follow through on any investigations or failed to provide any services. Board’s treatment of existence of internal flight alternative was deficient and not grounded in evidence before it. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable.
Canada (Minister of Citizenship and Immigration) v. Viljanac (Mar. 21, 2014, F.C., Daniele Tremblay-Lamer J., File No. IMM-3807-13) 239 A.C.W.S. (3d) 458.



Decision based on employer’s intention rather than independent interpretation of agreement

Employer extended appointment of person who was acting as interim team leader, while appointment process was ongoing. Employee filed complaint with Public Service Staffing Tribunal alleging interim team leader was getting unfair advantage of accumulating experience. Complaint was settled by employer agreeing to fill team leader positions from certain pools of candidates. Employer subsequently filled one temporary team leader position with someone from Canada Revenue Agency and filled two others internally. Employee filed grievance alleging employer breached settlement agreement. Employer dismissed grievance on basis that employee misunderstood employer’s intention and that corrective action could not be taken. Employee brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness since interpretation of settlement agreement was taking place within staffing context. Decision was unreasonable since decision was based on employer’s intention rather than independent interpretation of settlement agreement. Additionally, reasons for decision were inadequate with respect to decision-maker’s jurisdiction to consider grievance. Court was not in position to determine whether this part of decision was within range of acceptable outcomes. Finally, decision did not provide any analysis or rationale to support conclusion that corrective action could not be implemented.
Taticek v. Canada (Border Services Agency) (Mar. 21, 2014, F.C., Cecily Y. Strickland J., File No. T-1934-12) 239 A.C.W.S. (3d) 382.

Social Welfare


Board did not ask whether applicant capable of pursuing substantially gainful employment

Applicant was injured in motor vehicle accident and suffered soft tissue injuries, depression and myofascial pain syndrome. Applicant took yoga and was employed on minimal part-time basis as yoga instructor well after time of minimum qualifying period. Applicant’s application for disability pension under Canada Pension Plan was denied. Board dismissed appeal finding applicant’s disability was not severe because she was capable of substantially gainful employment. Applicant sought judicial review. Application granted. Social Security Tribunal was directed to grant appeal and to make order granting application for disability benefits. Decision was unreasonable. Board did not apply legal standards. Board latched onto Review Tribunal’s reasons rather than conducting de novo analysis as required. Board did not ask whether applicant was capable of regularly pursuing substantially gainful employment and did not assess whether applicant had severe and prolonged disability. Board failed to examine applicant’s condition at time of her minimum qualifying period and afterward, and looked only at her more recent condition. Board did not assess whether $75 per week was substantially gainful employment or if applicant could obtain other substantially gainful employment. Case was exceptional in that delay was substantial, record showed prejudice would be caused by further delay, and there was sparse evidence in support of outcome reached by board. Benefits were meant to address serious condition. Record showed applicant’s disability was severe at time of minimum qualifying period.
D’Errico v. Canada (Attorney General) (Apr. 10, 2014, F.C.A., Pierre Blais C.J., K. Sharlow J.A., and David Stratas J.A., File No. A-47-13) 239 A.C.W.S. (3d) 532.

Employment Insurance


Applicant’s decision to leave employment was personal and did not constitute just cause

Applicant was journeyman electrician who resided in Lockport, Manitoba. Applicant took employment in Weskwatim, Manitoba, from January to March 2012, and then left that employment. Applicant claimed he left employment due to family problems that resulted from him being out of town for work and only able to return home once per month. Employment insurance commission denied applicant’s claim for employment insurance benefits on basis that he voluntarily left his employment without just cause. Board of referees dismissed applicant’s appeal and umpire upheld board’s decision. Applicant applied for judicial review. Application dismissed. Record showed that applicant did not have alternative offer of employment when he left his employment. Umpire did not err in concluding that applicant’s decision to leave employment and return home was personal and that personal decision did not constitute just cause.
Andrade v. Canada (Attorney General) (Apr. 7, 2014, F.C.A., Marc Noël J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-56-13) 239 A.C.W.S. (3d) 388.

Administrative Law


Evaluating education and qualification of aspiring pharmacists was provincial matter

All provinces had licensing boards to determine if someone could practice pharmacy within the province, and all provinces except Quebec required applicants to pass the Pharmacy Examining Board of Canada (PEBC) qualifying examination. Under Regulations to Pharmacy Act, 1991 (Ont.), applicants had three tries to pass the exam and could request a fourth attempt upon completion of remedial assistance. After four unsuccessful attempts, Regulations required an applicant to obtain a new Bachelor’s Degree and try again. Applicant failed test three times, did remedial work, and then made fourth attempt but failed again. Applicant requested fifth attempt, but PEBC refused. Application for judicial review of PEBC’s decision refusing to grant applicant fifth attempt at exam. Application dismissed. Evaluating education and qualification of aspiring pharmacists was provincial matter, and each province had Regulations. Section 12(1) of An Act to Incorporate the Pharmacy Examining Board of Canada, only amounted to limited authority to allow judicial review by Federal Court of certain removals from PEBC’s Pharmacy Register due to quasi-criminal allegations. This was not sufficient body of federal law to nourish grant of jurisdiction. Federal court lacked jurisdiction to hear application.
Aljawhiri v. Canada (Pharmacy Examining Board) (Mar. 31, 2014, F.C., Glennys L. McVeigh J., File No. T-718-13) 239 A.C.W.S. (3d) 245.

Aboriginal Peoples


Band council to reconsider decision including giving farmer opportunity to be heard

First Nation allowed non-Aboriginal farmers to farm on reserve lands under permits. Farmer had been allowed to farm on reserve since 1981. Farmer’s latest permits would expire on March 31, 2016. First Nation’s band council alleged various types of impropriety against farmer. Band council notified farmer in December 2013 that he would no longer be allowed to farm on reserve land as of March 31, 2014. Farmer brought application for judicial review. Application granted; matter remitted for reconsideration. Band council was to reconsider decision in accordance with directions that included giving farmer opportunity to be heard. Farmer was entitled to procedural fairness before decision was made to terminate permits before they expired. There was no authority suggesting procedural fairness should not apply to band council’s decision. Decision was of immense importance to farmer’s business. Farmer had legitimate expectations that band council would secure permits he needed until March 31, 2016. Whole history of farmer’s long association with First Nation required band council to provide farmer with adequate notice of case he had to answer before decision was made to terminate relationship with him.
Hengerer v. Blood Indians on the Blood Indian Reserve No. 148 (Mar. 6, 2014, F.C., James Russell J., File No. T-284-14) 239 A.C.W.S. (3d) 6.
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