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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

Reasonable justification for late-night, dynamic entry

Police received information from confidential informant that accused was in illegal possession of firearm. Informant’s motivation was monetary compensation but was told that information had to be proven to be reliable and accurate and result in arrest. Informant had criminal history but had provided reliable information to police on two previous occasions. Officer swore Information to Obtain and obtained warrant to search accused’s residence and business. Police executed warrant at residence in early morning and discovered loaded handgun behind dresser in bedroom. Accused charged with four offences. Accused applied to exclude firearm from evidence on basis of breaches of s. 8 of Canadian Charter of Rights and Freedoms. Application dismissed. Issuance of search warrant was not result of any violation of s. 8. Detailed narrative provided by informant was compelling and credible and aspects of information were corroborated. Based on record before issuing justice, as amplified and excised on review, there was sufficient information that could have permitted justice to conclude that there were reasonable grounds to justify issuing warrant. Telewarrant procedure appropriately employed by police. There was reasonable justification for late-night, dynamic entry. Police did not use excessive force in execution of warrant.
R. v. Boussoulas (Sep. 25, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 0206/12) 116 W.C.B. (2d) 474.

Breathalyzer

ADMISSIBILITY OF CERTIFICATE

Judge erred in ruling alcohol standard solution raised doubt

Crown appealed acquittal of accused for over 80 after judge had doubt about certificate based on alcohol solution evidence. There were no Charter motions or objections as to admissibility of certificate nor evidence that Intoxilyzer 8000c had malfunctioned or was operated improperly. Application allowed, guilty verdict entered. Presumptions of s. 258(1)(c) of Criminal Code were applicable due to lack of any objection or evidence of malfunction therefore judge erred in ruling alcohol standard solution raised doubt. Case involved one issue only which made proper verdict guilty.
R. v. Widdis (Jul. 30, 2014, Ont. S.C.J., D. Salmers J., File No. Oshawa 13448/13) 116 W.C.B. (2d) 457.

Employment Insurance

ENTITLEMENT

Violence in workplace cannot be sanctioned by entitlements to benefits

Respondent slapped co-worker after she insulted members of his family. Respondent lost employment. Umpire found that misconduct did not exclude respondent’s entitlement to employment insurance. Arbitrator confirmed decision. Employment Insurance Commission applied for judicial review of arbitrator’s decision. Application granted. Umpire’s decision quashed, and matter remitted for redetermination based on finding that respondent was not entitled to benefits. To constitute misconduct, behaviour had to be willful. Umpire concluded that respondent’s violent act was not deliberate. Fact that respondent acted on impulse was not relevant to decision as to whether there was misconduct. Violence in workplace could not be sanctioned by entitlements to benefits. Purpose of law was to protect workers who lost employment involuntarily, not those who were unemployed because of their fault.
Canada (Procureur général) c. Kaba (Sep. 11, 2013, F.C.A., Noël J.A., Johanne Trudel J.A., and Mainville J.A., File No. A-33-13) 245 A.C.W.S. (3d) 854.

Aboriginal Peoples

CROWN RELATIONSHIP

Appellant’s main duty to distribute estate properly and efficiently

Appellant was appointed administrator of estate of uncle, Indian, who died intestate and whose main assets included two undivided parcels of land on reserve. Sixteen years after appellant’s appointment, estate and land remained undivided among heirs. Minister ordered appellant’s removal under s. 43 of Indian Act (Can.), for failure to fulfill duties. Appellant appealed Minister’s decision. Federal Court judge dismissed appeal. Appellant appealed. Appeal dismissed. Federal Court judge carefully assessed facts of case including right of beneficiaries to be in possession of their share of estate and length of appellant’s administration before his removal. Record supported finding of Federal Court judge that Minister had done his best to assist and support appellant. Minister received several complaints from heirs that appellant was aware of. Appellant’s main duty was to distribute estate properly and efficiently. It was reasonable for Minister to conclude that appellant was not discharging his duties and to order his removal as administrator.
Longboat v. Canada (Attorney General) (Oct. 7, 2014, F.C.A., Johanne Trudel J.A., Webb J.A., and Boivin J.A., File No. A-425-13) Decision at 234 A.C.W.S. (3d) 816 was affirmed.  245 A.C.W.S. (3d) 739.

Civil Procedure

DISCOVERY

Examination of second representative would not avoid further undertakings

Plaintiffs were hedge fund and customer of defendant’s prime brokerage unit. In absence of plaintiffs being able to meet margin requirements for accounts, defendant seized them and subsequently liquidated them. Plaintiffs alleged that defendant’s actions resulted in significant loss and they brought this action. Plaintiffs examined representative of defendant. Plaintiffs sought order granting them leave to examine for discovery second representative of defendant. Motion dismissed. Plaintiffs had not met test for leave to examine second representative. Court was not satisfied that plaintiffs had not been able to obtain satisfactory answers through undertakings. Fact that there were numerous undertakings did not establish that first representative failed to properly inform himself of issues. Defendant took long time to answer undertakings but there were many undertakings that involved many individuals. Examination of second representative would not avoid further undertakings. Examination of second representative would not expedite action.
Silvercreek II Ltd. v. Royal Bank of Canada (Oct. 24, 2014, Ont. S.C.J. [Commercial List], L.A. Pattillo J., File No. CV-11-9538-00CL) 245 A.C.W.S. (3d) 799.

Civil Procedure

CONSOLIDATION

Consolidation would result in delay where plaintiff in serious financial need

Plaintiff suffered injuries in motor vehicle accident and alleged that individual was responsible for accident. At time of accident plaintiff was insured by defendant. Plaintiff commenced action against individual seeking damages for personal injuries and economic loss. Plaintiff brought this action against defendant seeking same damages as in action against individual but based on uninsured, unidentified and underinsured coverage provisions of policy. Defendant applied to consolidate proceedings. Application dismissed. Actions shared common questions of fact and law and relief claimed arose out of same occurrence. Factors in favour of consolidation order and militating against order were considered. On balance, it was not appropriate for court to exercise its discretion and order consolidation. First action was scheduled for trial next month and consolidation would result in delay in circumstances where plaintiff was in serious financial need and should be permitted to pursue relief.
Da Costa v. TD Home and Auto Insurance Co. (Oct. 17, 2014, Ont. S.C.J., Douglas J., File No. Bracebridge CV-14-0265) 245 A.C.W.S. (3d) 782.

Immigration

OFFENCES

Citizen tried to use fake passport to aid his sister in entering Canada illegally

Canadian citizen originally from Sri Lanka was employed as flight attendant. Citizen’s sister in Sri Lanka called citizen saying that she was running from police there and needed his help. Citizen flew to Malaysia where he learned sister had fake Canadian passport. Citizen met sister in Laos and flew with her to Tokyo. When sister attempted to get boarding pass in Tokyo to fly to Canada, ticket agent reported suspicious passport to officials and passport was confirmed to be fake. Sister was deported from Japan to Sri Lanka. Director of Investigations Division Passport Integrity Branch found that citizen committed indictable offence outside of Canada by facilitating or aiding entry of his sister without proper documentation. Director revoked citizen’s passport for three year period pursuant to s. 10(2)(b) of Canadian Passport Order. Director did not identify exact section number in reasons but did state what offence was and facts used when Director found citizen had committed offence. Citizen applied for judicial review, contending that decision was not reasonable as reasons were vague and specific offence that he was found to have committed was not identified by section number in reasons and as result until judicial review he did not know exact offence that he was found to have committed. Application dismissed. There was no breach of principles of natural justice as citizen was given opportunity to respond to all facts gathered in investigation, and he did respond. Director considered citizen’s submissions before decision was made. There was no disagreement citizen tried to use fake passport to aid his sister in entering Canada illegally. It would have been preferable if actual number of section had been used by Director but it was not fatal in this case.
De Hoedt v. Canada (Minister of Citizenship and Immigration) (Aug. 29, 2014, F.C., Glennys L. McVeigh J., File No. T-1859-13) 245 A.C.W.S. (3d) 911.

Administrative Law

REMEDIES

Fact that passports issued to applicant not determinative of citizenship

Applicant was born in Canada in October 1989 to parents who had come to Canada in 1985 to work as domestic helpers to Indian High Commissioner to Canada. Parents’ employment with High Commission terminated in 1989 but exact date was unclear. Applicant had Ontario birth certificate and had been issued two Canadian passports on strength of Ontario birth certificate. In December 2010 applicant was sentenced to three years in prison for weapons trafficking and cocaine importation. While in prison, Citizenship and Immigration Canada determined that despite his Canadian passport, applicant had never been Canadian citizen. Admissibility report was prepared and applicant was declared inadmissible on basis of serious criminality pursuant to s. 4 of Immigration and Refugee Protection Act (Can.). IRB Member was not satisfied that applicant was Canadian citizen and issued deportation order against him. Decision was upheld on judicial review. Applicant applied for declaration of citizenship. Issue whether foreign national’s parents were on applicant’s birthdate of Oct. 17, 1989, employees in service of diplomatic officer in accordance with s 3(2)(b) of Citizenship Act (Can.). Application dismissed. This declaration proceeding was collateral attack on IRB decision and “end run” on decision on judicial review. Issue of citizenship was central to those decisions, facts pleaded were same and evidence tendered was similar to this declaration proceeding. Issue of citizenship was dealt with and court ought not to revisit matter under subsequent but parallel proceeding. Evidence did not justify relief sought as applicant’s case was significantly undermined by documentary evidence and internal inconsistency which indicated parents worked at High Commission until December 1989 and included applicant on their permanent residence application in 1992, which would have been inconsistent with applicant having citizenship status. Fact that passports had been issued to applicant not determinative of citizenship.
Budlakoti v. Canada (Minister of Citizenship and Immigration) (Sep. 9, 2014, F.C., Michael L. Phelan J., File No. T-1564-13) 245 A.C.W.S. (3d) 772.

Charter of Rights

ENFORCEMENT OF RIGHTS

Tenuous cause connection between breach and confession undermined significance of relationship

Evidence obtained in manner violating Charter. Accused charged with first degree murder. Accused confessed to undercover police officers that he killed deceased and burned his body. During undercover operation police obtained wiretap authorization and intercepted accused’s phone calls. At trial Crown conceded that interceptions violated accused’s s. 8 right. Accused sought to exclude confessions on basis that undercover operation was closely linked to s. 8 breach. Trial judge found that confessions were not obtained in manner violating Charter. Court of Appeal dismissed accused’s appeal from conviction. Appeal dismissed. Tenuous causal connection between breach and confessions undermined significance of their temporal relationship.
R. v. Mack (Sep. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35093) Decision at 99 W.C.B. (2d) 863 was affirmed.  116 W.C.B. (2d) 461.

Drug Offences

POSSESSION FOR PURPOSE OF TRAFFICKING

Defied logic that accused would have left contraband in fridge

Accused charged with possession of cocaine for purpose of trafficking. Accused signed tenancy agreement for apartment unit as sole occupant. For two weeks following signing of agreement, repairs were made to unit. Number of workers had access to unit, and landlord was not present during entirety of time that workers were inside unit. When landlord entered apartment with worker who was going to repair fridge, he found empty BlackBerry box located on shelf in freezer and 75 dime bags of cocaine inside. Accused testified that she did rent apartment and that she had moved certain personal items into it on day of discovery. Accused denied that she had any knowledge or control over cocaine located in freezer. Accused acquitted. Accused’s evidence was not rejected and left court with reasonable doubt. Accused did not hesitate in response to questions and was logical in her explanation of sequence of events. There were no inconsistencies in accused’s evidence and no meaningful contradictions with other evidence. Whether or not accused stayed overnight in unit was of no moment, as she had plenty of opportunity to store cocaine in freezer if she was inclined to do so. There was no evidence that groceries had been purchased and placed in freezer portion of fridge to demonstrate that accused had accessed it. It was not unusual that accused testified that she did not open freezer to determine if it was working, as she was in process of moving in to unit. Accused’s denial that she had either knowledge or control over contents of BlackBerry box was consistent with her conduct. It defied logic that accused would have left contraband, all on its own, in fridge knowing that it would have been observed by appliance repair person who was attending to seal it. Accused did not hesitate in turning over her key to landlord, and there was no attempt to return to unit to remove contraband from freezer, as one might have expected if accused knew it was there. Found during search were four BlackBerry boxes and two BlackBerry phones, but no other evidence that would have led to inference that accused was involved in drug trafficking was found. There were number of people who had access to unit from date that accused agreed to rent unit to date of discovery of cocaine. While it was true that accused was often in unit where cocaine was found, there was no evidence that she knew that she had it in her physical possession.
R. v. Mitchell (Oct. 1, 2014, Ont. S.C.J., Kelly J., File No. CR/13/90000/6410000) 116 W.C.B. (2d) 378.
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