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Charter of Rights

Arbitrary detention or imprisonment

Cumulative effect of officer’s observations amounted to reasonable and probable grounds

Accused was convicted of possession of 48 pounds of marijuana for purpose of trafficking. Accused was driver of vehicle that was pulled over by police officer on highway. In cardboard box in cargo area of vehicle, police located several bags of packaged marijuana. Genesis of traffic stop was report from another police officer about unsafe driving and observations by arresting officer who followed vehicle for several kilometers. Both occupants seemed nervous. Accused kept looking back towards two large black suitcases in rear of vehicle. There were several cell phones on console. Officer detected strong smell of raw marijuana from vehicle. As he walked by vehicle to return to his cruiser, officer noticed cardboard box with Ziploc bags protruding from it containing material of shape and size of marijuana. Officer returned to vehicle driven by accused and arrested accused and her passenger. Accused was convicted of possession of marijuana for purposes of trafficking. Accused appealed her conviction. Appeal dismissed. Traffic stop and demand for documentation was fully justified under s. 216(1) of Highway Traffic Act (Ont.). Trial judge made no error in concluding that investigating officer had reasonable and probable grounds to arrest accused for possession of marijuana. Cumulative effect of officer’s observations amounted to reasonable and probable grounds to arrest accused. It followed that search of vehicle incident to lawful arrest and carried out in reasonable manner was constitutionally valid.
R. v. Pham (Apr. 7, 2016, Ont. C.A., David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A., CA C59824) 129 W.C.B. (2d) 325.


Sentence appeal

Total sentence imposed was not unreasonable

Upon conviction for series of firearms offences accused was sentenced to total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions. Accused was found to have fired several shots from high powered rifle into home of complainant. Accused submitted that trial judge erred in imposing consecutive sentences on count 3 (mischief by willfully damaging dwelling house by discharging firearm into dwelling house and endangering life) and count 1 (intimidating justice system participant in order to impede her in performance of her duties), submitting that same conduct gave rise to both charges and provided factual basis for both convictions and that sentences should have been concurrent. Accused appealed his sentence. With exception of victim surcharge issue appeal dismissed. Trial judge had discretion to impose consecutive sentences on two charges. Whether consecutive or concurrent sentences were to be imposed, totality of sentences imposed was what ultimately mattered. No doubt sentence imposed on charge of intimidating justice system participant (three years) would have been much higher but for concerns over totality of sentences imposed in light of accused’s age and absence of any prior significant criminal involvement. Total sentence imposed was not unreasonable. Although trial judge waived victim fine surcharges, order imposing surcharges was signed by clerk of court. Crown agreed that this order must be quashed.
R. v. Abbasi (Mar. 18, 2016, Ont. C.A., Doherty J.A., Janet Simmons J.A., and K.M. van Rensburg J.A., CA C60162) Decision at 118 W.C.B. (2d) 216 was affirmed. 129 W.C.B. (2d) 411.
Appeal allowed and sentence requested by Crown at trial imposed
Accused was sentenced to effective sentence of 16 months after he pleaded guilty to number of driving offences and possession of stolen property. Crown asked for five months, in addition to seven months pre-trial custody. Trial judge imposed further nine months so that accused could attend Ontario Correctional Institute (“OCI)”, where minimum of nine months was required for admission. Accused then was rejected from OCI. Accused appealed sentence. Appeal allowed; sentence set aside and sentence of five months, in addition to seven months of pre-trial custody, imposed. Despite accused’s lengthy and serious record, he showed genuine remorse before trial judge and court, and was sincere in his desire to straighten out. In light of fact that trial judge imposed sentence four months higher than Crown requested in order to help accused get treatment at OCI, which never materialized, appeal should be allowed and sentence requested by Crown at trial imposed.
R. v. Horgan (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and S.E. Pepall J.A., CA C61747) 129 W.C.B. (2d) 308.

Constitutional Law

Charter of Rights

Application that name “Domestic Violence Court” be deemed invalid dismissed

Applicant was charged with assaulting his son based on allegation made by boy’s mother. One of conditions of applicant’s bail was that applicant not attend mother’s house. Applicant attended house and was charged with breach of recognizance and obstructing police. Breach charges were assigned to Domestic Violence Court, where applicant attended for several pre-trial appearances. Prosecuting Crown realized that matter had been assigned to Domestic Violence Court in error because assault had not been against mother. Charges were transferred to regular Criminal Court in Ontario Court of Justice where applicant was tried and acquitted. Applicant alleged name of court violated his constitutional rights under ss. 7, 12, and 15 of Canadian Charter of Rights and Freedoms. Application for declaration that name “Domestic Violence Court” be deemed invalid and for order that name be changed to “Domestic Court” was dismissed. Trial judge found there was no evidence before court that applicant had personally suffered stigma sufficient to engage his s. 7 security of person interest Trial judge found notwithstanding his claims of stigmatization and prejudice, applicant had positive experience with Children’s Aid Society during time matter was before Domestic Violence Court. Trial judge found applicant was able to fully defend himself, without being prejudiced by his appearances in Domestic Violence Court. Trial judge found no deprivation of fundamental justice. Trial judge found name of court was rationally connected to valid government purpose and scope. Applicant appealed. Appeal dismissed. Trial judge properly applied test. Application risked trivializing important Charter rights.
Foessl v. Ontario (Attorney General) (Apr. 22, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and L.B. Roberts J.A., CA C60986) Decision at 257 A.C.W.S. (3d) 99 was affirmed. 265 A.C.W.S. (3d) 901.

Administrative Law

Natural justice

Endorsement of motions judge failed to meet minimum standards

Dispute between parties involved liability for basic structural consulting services provided by respondent to appellants. Summary judgment was granted in favour of respondent. Appellant’s counterclaim was dismissed. Appellant appealed. Appeal allowed. Judgment was set aside. Reasons of motions judge were deficient. Motions judge gave no meaningful reasons for decision. Endorsement of motions judge failed to meet minimum standards and amounted to failure by motion judge to give any reasons. Court could not conduct meaningful review of endorsement of motion judge given its inadequacy. It was not fair to decide claim and counterclaim on record before court.
Read Jones Christoffersen Ltd. v. Neilas Inc. (Apr. 28, 2016, Ont. C.A., John Laskin J.A., S.E. Pepall J.A., and David Brown J.A., CA C60909) 265 A.C.W.S. (3d) 830.

Customs and Excise


Canadian International Trade Tribunal’s reasons were transparent, intelligible, and justified

Canadian International Trade Tribunal (CITT) found that seven models of B’s washers and dryers, were not entitled to duty-free treatment under tariff item No. 9979.00.00 because they were not goods specifically designed to assist persons with disabilities. B appealed. Appeal dismissed. CITT did not adopt test not authorized by law in referring to U.S. legislation as B submitted that U.S. standards were relevant to CITT’s assessment of design characteristics of goods. CITT did not substitute U.S. standards for “specifically designed” test mandated by Tariff. Assuming Tribunal erred in its interpretation of the high forward reach and high side reach standards, this did not render decision unreasonable. Without pedestal lower door height standard was not met. Any incorrect inference drawn by CITT did not undermine analysis that goods were not U.S. standard compliant. Section 68(1) of Customs Act (Can.) restricts appeals from CITT to Federal Court to appeals on question of law and drawing of unsound inference not an error of law. CITT did not base its decision on standard practice without considering facts of case so no fettering of discretion. Once B failed to demonstrate full compliance, CITT not required to consider partial compliance. Jurisprudence well-settled that an administrative decision-maker need not address every argument raised by parties. CITT’s reasons were transparent and intelligible and justified on record before it. Decision fell within range of possible acceptable outcomes defensible in light of evidence and law.
BSH Home Appliances Ltd. v. Canada (Border Services Agency) (Apr. 29, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Yves de Montigny J.A., A-32-15) 265 A.C.W.S. (3d) 921.



Motions for leave to intervene in appeal dismissed

AMI and TTA brought motions for leave to intervene in appeal. Motions dismissed. Proposed interveners were not directly affected by outcome. Absence of interveners would not stop court from deciding appeal. AI’s submissions on international law issues were not sufficiently relevant and material to issue in appeal. Proposed intervener would not assist court on central issue in appeal. If intervention were permitted there would be further delay exposing applicants to more of sort of harm they allege in their motion. TTA would not offer different perspective on issues in appeal and proposed submissions would substantially duplicate those of appellants.
Prophet River First Nation v. Canada (Attorney General) (Apr. 20, 2016, F.C.A., David Stratas J.A., A-435-15) 265 A.C.W.S. (3d) 833.


Income tax

Clients must be notified when court considering order requiring disclosure

Canada Revenue Agency sent requirement pursuant to s. 231.2(1) of Income Tax Act (Can.) to taxpayer lawyer, requesting documents regarding income and expenses. Taxpayer claimed that details such as clients’ names in accounts receivable listing were protected by solicitor-client privilege. Federal Court granted Minister of National Revenue’s application for compliance order. Federal Court of Appeal allowed taxpayer’s appeal in part, dismissed taxpayer’s arguments based on s. 8 of Canadian Charter of Rights and Freedoms and sent matter back to Federal Court. Minister appealed. Appeal allowed. Federal Court of Appeal’s order was set aside and Minister’s application for compliance order was dismissed, given holding in companion case that accounting records exception in s. 232(1) of Act was constitutionally invalid. Definition of “solicitor-client privilege” in s. 232(1) of Act was clearly intended to permit Minister to have access to lawyers’ accounting records even if they contained otherwise privileged information. While taxpayer’s challenge was based on argument that definition of “solicitor-client privilege” in s. 232(1) of Act did not satisfy jurisprudential criteria, in companion case, s. 232(1) of Act was found to be constitutionally invalid. In companion case, Act’s requirement scheme as it applied to lawyers and notaries unjustifiably infringed s. 8 of Charter, which meant that request made to taxpayer under scheme was now foreclosed. To properly safeguard clients’ right to solicitor-client privilege, clients must be notified when court considered making order requiring disclosure of possibly privileged information, and be given opportunity to contest disclosure of information.
Minister of National Revenue v. Thompson (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., 35590) Decision at 230 A.C.W.S. (3d) 736 was reversed. 265 A.C.W.S. (3d) 1083.

Constitutional Law

Charter of Rights

Exception for lawyer’s accounting records in s. 232(1) of Income Tax Act (Can.) unconstitutional

Canada Revenue Agency (CRA) sent notaries practising law in Quebec requirements under s. 231.2 of Income Tax Act (Can.) to obtain information or documents relating to notaries’ clients for tax collection or audit purposes. Notaries’ association brought action against Attorney General of Canada and CRA (Crown) to have ss. 231.2 and 231.7 of Act and accounting records exception in s. 232(1) of Act declared to be unconstitutional with respect to notaries. Trial judge allowed action. Court of Appeal allowed Crown’s appeal but solely to make clarifications. Crown appealed. Appeal dismissed. Requirement scheme in ss. 231.2(1) and 231.7 of Act violated s. 8 of Canadian Charter of Rights and Freedoms and was of no force and effect for notaries and lawyers. Exception for lawyer’s accounting records set out in definition of “solicitor-client privilege” in s. 232(1) of Act was unconstitutional and invalid. There were defects in requirement scheme relating to information protected by professional secrecy that violated s. 8 of Charter. Exclusion of accounting records of notaries and lawyers from protection of professional secrecy as set out in definition of “solicitor-client privilege” in s. 232(1) of Act infringed s. 8 of Charter. Infringement of s. 8 of Charter was not justified by s. 1 of Charter. Act had pressing and substantial objective of collection of taxes. There was logical and direct connection between collection of taxes and requirement scheme. Sections 231.2(1), 231.7 and 232(1) of Act, in relation to notaries and lawyers, did not minimally impair right to professional secrecy.
Canada (Procureur général) c. Chambre des notaires du Québec (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35892) Decision at 242 A.C.W.S. (3d) 225 was affirmed. 265 A.C.W.S. (3d) 1082.



Insurance policy cancelled prior to motor vehicle accident

Defendant driver had been insured by insurance company S Co. prior to motor vehicle accident with plaintiff injured person C who was insured by insurance company E Group. There was coverage dispute between insurance companies on ground that defendant had cancelled her insurance policy prior to accident. Motion judge granted S Co.’s motion for summary judgment and dismissed E Group’s cross-motion for summary judgment. Judge was not convinced that s. 22(2) of Insurance Act (Ont.) imposed elevated onus on E Group to prove that cancellation was “clear and unequivocal”, but if there were such elevated onus, S Co. had satisfied it. Judge held that plaintiff was entitled to uninsured motorist coverage under plaintiff’s policy with E Group. E Group appealed. Appeal dismissed. Judge relied on evidence of records, which showed that before accident occurred, defendant requested that her policy be cancelled and received Acknowledgment of Cancellation Request. To extent that this evidence amounted to hearsay, it was admissible via business records exception. Judge’s conclusion was supported by record.
Candito v. Nmezi (April 19, 2016, Ont. C.A., Alexandra Hoy A.C.J.O., R.A. Blair J.A., and L.B. Roberts J.A., CA C61046) 265 A.C.W.S. (3d) 757.



Offer-back obligation pursuant to Expropriations Act (Ont.) not triggered

School board expropriated property from numbered company for purposes of construction and operation of school and related amenities. Board authorized its staff to implement land swap with city by which much of property would be exchanged for city lands. Company’s application alleging that board’s authorization triggered s. 41(1) of Expropriations Act (Ont.), obliging board to offer to re-convey property to it, was dismissed. Company appealed. Appeal dismissed. School board’s action did not trigger offer-back obligation in s. 41(1) of Act. Board did not abandon property when it authorized land swap with city and did not change its purposes for expropriating property. Board did not act as agent for city in expropriating property. Court undertook purposive approach to interpretation of Act. It was not court’s function to micromanage board’s actual use of property, so long as it was used as part of school site or related amenities owned by board. Application judge erred to extent of awarding full indemnity costs of board. Company’s appeal was allowed in terms of costs and award was set aside and substituted for amount of $14,000 all-inclusive.
1739061 Ontario Inc. v. Hamilton-Wentworth District School Board (March 15, 2016, Ont. C.A., K. Feldman J.A., P. Lauwers J.A., and M.L. Benotto J.A., CA C60267) Decision at 251 A.C.W.S. (3d) 262 was affirmed. 265 A.C.W.S. (3d) 673.

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