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Accused not permitted to use inadvertently-disclosed videotape of complainant’s therapy session in support of application for production

 Ruling to address consequences arising from inadvertent disclosure of videotaped therapy session involving eight-year-old sexual assault complainant. Accused charged with four counts each of sexual assault, sexual interference, and sexual exploitation. Soon after abuse was disclosed, complainant began seeing therapist. Therapist forwarded confidential records to Crown, including DVD recording of therapy session, which was mistakenly disclosed to defence. Accused sought to rely on DVD to gain access to rest of complainant’s therapeutic file, pursuant to ss. 278.1 to 278.9 of Criminal Code. Crown argued that defence counsel was in “wrongful possession” of DVD as result of Crown’s negligence. Crown argued that, notwithstanding that DVD had already been disclosed, it was still “record” within meaning of s. 278.1 of Code and thus subject to procedure set out in ss. 278.2 to 278.9 of Code. Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility. Accused argued that he was entitled to use inadvertently-disclosed DVD in support of third-party records application, and to question complainant at trial. Alternatively, accused argued that complainant’s counselling records ought to have been disclosed to him because remaining materials available on application established that they were likely relevant. Accused was not permitted to use DVD in support of his application to obtain complainant’s therapeutic file. Conduct of defence counsel was blameless, but this did not mitigate serious and illegal violation of complainant’s privacy rights. Before any use could be made of DVD, whether at trial or as basis for obtaining further private records, DVD had to be returned and future production determined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of complainant. Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser. Accused was simply being denied that to which he was not entitled in first place, and there was no unfairness in this result. Once improperly-disclosed interview was removed from equation, accused was left to rely upon differences in complainant’s account from police interviews and her evidence at preliminary inquiry. Although allegations of complainant had broadened somewhat since starting therapy, that was not sufficient basis to order production of therapeutic records. It was mere speculation that materials would have been found in complainant’s therapeutic records that would have shed light on why her allegations had become arguably broader since attending therapy sessions. Incremental disclosure was quite common in case like this. Complainant’s expectation of privacy was extremely high.
R. v. Gray (May. 26, 2015, Ont. S.C.J., Trotter J., File No. null) 121 W.C.B. (2d) 553.

Charter of Rights


Request for consent to search not to be deemed commencement of search

Trial judge convicting accused of offences relating to seizure of marijuana from his vehicle. Officer asked accused to consent to search after learning he had connection to drug trafficking. Accused produced bag of marijuana after officer’s initial inquiry and further marijuana uncovered on search incident to arrest. Trial judge held initial request for accused to consent not “search” or s. 8 of Charter as accused voluntarily and unilaterally produced marijuana. Accused’s appeal from conviction dismissed. Trial judge correctly held there was no “search” for purpose of s. 8 of Charter. Any request by officer for consent to search not to be deemed commencement of search. No search for s. 8 purpose took place as no evidence accused felt compelled to consent or that search was inevitable whether consent given.
R. v. Sebben (Apr. 21, 2015, Ont. C.A., G.R. Strathy C.J.O., Doherty J.A., and E.E. Gillese J.A., File No. CA C59397) 121 W.C.B. (2d) 545.

Civil Procedure


There was plausible excuse for failure of defendants to defend claim

CM Inc. hired corporate defendant to install paving stones at plaza at price of $140,000. Work was completed by defendant’s subcontractors in November 2009. All rights and interests in plaza were transferred from CM Inc. to plaintiff pursuant to court order. Plaintiff commenced action against defendants for breach of contract and negligence. Plaintiff claimed $200,000 for cost of removing and re-installing paving stones as it alleged that many areas began heaving during winter of 2010-2011 as result of improper installation. Defendants were served with claim on August 29, 2011. Plaintiff agreed to waive filing of statement of defence pending investigation by defendants’ insurer. Defendants were noted in default on November 1, 2011. Order dismissing action as abandoned dated June 18, 2012 was received by defendants on or near June 18, 2012. Default judgment was issued on October 25, 2013 in amount of $119,030.41. Notice of garnishment was issued on October 2, 2014. Defendants brought motion to set aside noting in default, default judgment and stay notice of garnishment. Motion granted. Defendants brought motion without delay upon learning of default judgment. There was plausible excuse for failure of defendants to defend claim. They believed that action was being defended by their insurer. Defendants had arguable defence that damages occurred outside one year warranty provided for work performed. Prejudice of defendants being held liable for damages and costs in excess of $120,000 based on alleged breach of contract for which there was arguable defence greatly outweighed prejudice, if any, to plaintiff. Noting in default and default judgment were set aside. Defendant was to deliver statement of defence within two weeks. Funds seized pursuant to notice of garnishment were to be returned to defendants.
Foremost Cranberry Mews Limited Partnership v. Ferreri (Apr. 30, 2015, Ont. S.C.J., M. Faieta J., File No. CV-11-433182) 253 A.C.W.S. (3d) 790.



Applicants’ motives in requisitioning meeting were not “clearly” of personal nature

Applicants were members of respondent non-profit corporation. They requisitioned directors of respondent to call meeting of members to vote on reinstatement of suspended provincial section members and removal of named directors. Directors refused, saying that primary purpose of motions submitted in requisition was to enforce personal claim or address personal grievance. Applicants decided to call their own meeting and requested list of members from directors, who did not comply with request. Respondent applied under Canada Not-for-Profit Corporations Act for exemption from requirement to provide requested shareholder list. Director was currently reviewing application but had not issued requested exemption. Applicants applied for order that respondent call meeting of members. Application allowed. Right to call special meeting was substantive one and was not lightly to be interfered with. Applicants’ motives in requisitioning meeting were not “clearly” of personal nature. To contrary, it appeared there were profound policy and direction disagreements of sort that membership was best suited to assess and decide. Respondent had not right under Act to stay of proceeding pending determination of their exemption application. Respondent was ordered to call meeting of members.
Saskatchewan WTF Taekwondo Assn. Inc. v. Taekwondo Canada (May. 5, 2015, Ont. S.C.J., Sean F. Dunphy J., File No. CV-15-526240) 253 A.C.W.S. (3d) 762.



Determination of inadmissibility could not be re-litigated by parties or re-determined by officer

Foreign national was citizen of Sri Lanka and United Kingdom who had applied for permanent resident visa. In 2010 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act (Can.) as officer found that foreign national had been member of Liberation Tigers of Tamil Eelam. Application for judicial review of that decision was dismissed. Foreign national submitted another application for permanent residence in Canada in August 2011, in which he denied having previously made permanent residence applications which were refused. Officer sent foreign national fairness letter as result of misrepresentation. In 2013 officer found foreign national inadmissible pursuant to s. 34(1)(f) of Immigration and Refugee Protection Act and found insufficient humanitarian and compassionate grounds to overcome his inadmissibility. Officer refused application and foreign national applied for judicial review. Application dismissed. Determination of inadmissibility in 2010 stood and could not be re-litigated by parties or re-determined by officer. Three preconditions to operation of doctrine of issue estoppel are that same question has previously been decided, prior judicial decision was final, and parties to both proceedings are same. As all three pre-conditions to operation of issue estoppel were present in this case, officer erred by not considering doctrine of issue estoppel with respect to 2010 decision of Federal Court.  Federal Court denied leave to foreign national in respect of 2010 refusal of his permanent residency application pursuant to s. 34(1)(f) of Act and that decision was final one. It would not be appropriate to send this matter back for re-determination in circumstances of this case because officer could not have come to different conclusion. While court has discretion to relieve against harsh effects of issue estoppel where usual operation of doctrine would work injustice, it is not clear that administrative tribunal has same discretion to override normal operation of issue estoppel in respect of prior court decision. Assuming that administrative tribunals have discretion to override issue estoppel in respect of prior court decisions, this discretion would be even more restricted than court’s discretion to do so, which itself is very limited in application and only occurs in the rarest of cases.
Balasingham v. Canada (Minister of Citizenship and Immigration) (Apr. 14, 2015, F.C., Danièle Tremblay-Lamer J., File No. IMM-2616-14) 253 A.C.W.S. (3d) 909.



Sufficient evidence that applicant attempted to organize, induce, aid or abet coming into Canada of imposter

Applicant was Canadian citizen. In 2010, he took business trip to Belgium and Germany with his friend and business partner, L. Their travel was routed through Istanbul, Turkey. Turkish authorities did not allow L to board plane due to a belief he was imposter. L was returned to Germany. Citizenship and Immigration Canada (“CIC”) investigated and concluded that L was being impersonated by another individual using L’s Canadian passport. In 2012, CIC revoked applicant’s passport and denied him access to another passport until 2015, after concluding applicant had used his passport while acting as escort to assist unidentified individual unlawfully using L’s passport to board flight to Canada. Applicant sought judicial review of CIC decision. Application dismissed. CIC had jurisdiction to revoke applicant’s passport and deny him passport services on basis that he committed act that would constitute indictable offence if committed in Canada. Under s. 10(2)(b) of Canadian Passport Order, meaning of word “committed” did not require conviction as precondition to revocation of passport, as mere commission of act that constituted offence was sufficient. There was sufficient evidence for CIC to reach conclusion that applicant attempted to organize, induce, aid or abet coming into Canada of imposter. CIC made no reviewable error in its assessment of evidence. Applicant was accorded procedural fairness. Evidence disclosed to applicant was information CIC relied on to make its decision and that information was sufficient to support CIC’s conclusion.
Gomravi v. Canada (Attorney General) (Apr. 17, 2015, F.C., Martine St-Louis J., File No. T-499-14) 253 A.C.W.S. (3d) 774.



Request for particulars was fishing expedition

Plaintiff sued defendants for infringement of certain industrial designs related to floor heating grates. Defendants sought particulars with respect to three categories: store outlets and locations where plaintiff’s products were sold; scope and nature of its products; and timeline of sale of its products. Defendants submitted particulars were relevant to its defences of whether plaintiff was proprietor for purposes of Industrial Design Act (Can.), and whether it had registered its designs in timely fashion. Motion judge denied request for particulars on basis that defendants had embarked upon impermissible fishing expedition in respect of matters that were not relevant to plaintiff’s claim, and/or were within defendants’ own knowledge. Defendants appealed. Appeal dismissed. Purpose of particulars was to facilitate ability to plead. Defendants’ request for particulars related to matters relevant to propriety of information sought on discovery rather than information they required in order to plead. No palpable and overriding error was made in concluding defendants were engaged upon fishing expedition. Finding that some particulars sought were within knowledge of defendant HD was fact-based finding that did not give rise to any error.
Imperial Manufacturing Group Inc. v. Decor Grates Inc. (Apr. 20, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., File No. A-415-13) 253 A.C.W.S. (3d) 799.



In exercising royal prerogative of mercy, Minister has broad discretion

Appellant granted parole after serving third of 15-year sentence. Appellant’s three applications for mercy to federal Minister of Justice and application for pardon denied. Following investigation, Commission de police du Quebec stated it hoped Attorney General of Quebec (AGQ) would intervene. In response to fourth application for mercy, Minister stated appellant should seek relief in Quebec Court of Appeal. Quebec Court of Appeal allowed appeal but directed stay. Supreme Court of Canada acquitted appellant. Appellant commenced action against AGQ, Attorney General of Canada (AGC) and town of Mont-Laurier. Town and AGQ settled out of court and action continued against AGC. Superior Court ordered AGC to pay almost $5.8 million, finding simple fault sufficient for Crown liability. Trial judge concluded federal government committed “institutional indifference” and that sustained and extensive review would have uncovered errors. Court of Appeal reversed judgment, finding that Minister’s power of mercy protected by immunity analogous to that applying to Crown prosecutor in case of malicious prosecution. It also found that AGC’s conduct at trial amounted to abuse of process and ordered AGC to pay appellant’s legal fees even though appellant’s lawyer took case pro bono. In absence of intentional or gross fault, or even simple fault, by Minister, appellant’s action dismissed. Appellant’s appeal dismissed. Federal Crown generally subject to rules of civil liability; only true policy decisions are protected by Crown immunity. Power of mercy derives from royal prerogative of mercy. In exercising royal prerogative of mercy, Minister has broad discretion. Minister must assess and weigh public policy considerations on basis of social, political and economic factors; it is true core policy act. Inappropriate to import malice standard. In Quebec civil law, concept of bad faith is flexible, encompassing serious recklessness. At minimum, Minister must conduct meaningful review which entails duty to make decision in good faith on basis of evidence uncovered by that review. Documentary evidence negated trial judge’s inference there had been no review of appellant’s initial application. Circumstances did not support conclusion that any Ministers acted in bad faith or with serious recklessness on any applications. Even if Minister had conducted more extensive investigation, there was no evidence Minister would probably have discovered key evidence uncovered by investigator of Commission de police 20 years later. Appellant failed to prove failure to conduct meaningful review or to conduct one more expeditiously was probable cause of failure to discover miscarriage of justice.  Not appropriate to award punitive damages given that Minister’s conduct could not be equated with bad faith or serious recklessness nor could it be said he intended to harm appellant. Only abuse of process can justify awarding extrajudicial fees as damages. Trial judge erred in finding abuse of process; AGC’s conduct did not amount to abuse of process. It was reasonable and appropriate for AGC to contest action given that law on federal Crown’s liability for fault committed by Minister in exercising power of mercy was far from clear. Appellant not entitled to extrajudicial fees.
Hinse v. Canada (Attorney General) (Jun. 19, 2015, S.C.C., McLachlin C.J.C., Lebel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35613) 253 A.C.W.S. (3d) 822.

Contempt of Court


Respondent demonstrated intention to carry out and satisfy order

Applicants purchased two new adjoining townhouses. Applicants noticed extensive water penetration at properties and made claim to respondent. Respondent investigated and denied applicant’s claim for water penetration. On appeal, tribunal directed respondent to carry out necessary steps to determine cause of water penetration and to ensure that necessary repairs were completed. Applicants brought motion for order finding respondent in contempt of tribunal’s order. Motion dismissed. Order was clear on its face. However, there was no evidence that respondent willfully and deliberately disobeyed tribunal’s order. Respondent had taken numerous steps to identify cause of water penetration and repair leakage. There was no evidence that showed contempt beyond reasonable doubt. Respondent demonstrated intention to carry out and satisfy order.
Cheng v. Tarrion Warranty Corp. (Mar. 10, 2015, Ont. S.C.J., Carole J. Brown J., File No. CV-14-514780) 252 A.C.W.S. (3d) 699.

Civil Procedure


Defendant failed to show why additional medical records relevant to issues on certification

Plaintiff commenced class action on behalf of all persons who were implanted in Canada with defendant’s metal-on-metal hip products. Plaintiff had filed six affidavits, including his personal affidavit describing his experiences with defendant’s metal-on-metal hip implants. Attached to personal affidavit were six pages of medical records that were generated at time of his third surgery that also included brief synopsis of plaintiff’s first two surgeries and his experience with implants that were installed. In response to request from defendant, plaintiff had provided some additional medical information such as product code labels for hip implant components that were allegedly used in plaintiff’s first and second hip surgeries. Certification motion was scheduled to proceed in September 2015. Defendant had filed motion for summary judgment asking that action be dismissed in its entirety. Defendant brought motion for all of plaintiff’s medical records relating to his hips, his hip surgeries, and their outcomes and consequences. Motion dismissed. Bald assertions aside, defendant failed to show how or why additional medical records would assist the court or were in any way relevant to issues on certification. Dismissal of motion was without prejudice to defendant’s right to pursue records again on cross-examination. If they were refused and if defendant could show they were indeed relevant to certification, matter could be revisited on proper refusals motion.
Dine v. Biomet Inc. (Apr. 15, 2015, Ont. S.C.J., Edward P. Belobaba J., File No. CV-13-490112-CP) 252 A.C.W.S. (3d) 652.
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