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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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Aboriginal Peoples

Appeal tribunal usurped its role to observe and oversee election
In 2010 applicant was candidate for chief and he lost election by two votes. Appeal tribunal dismissed applicant’s appeal but judge allowed application for judicial review. Second election was to be held in March 2013 and applicant was again candidate for chief. On date of election chief electoral officer posted notice that indicated that applicant owed Band money and was disqualified from being candidate in election. All votes cast for applicant were placed in envelope and marked as disqualified. Applicants appealed. Appeal tribunal upheld decision to disqualify applicant and dismissed appeal. Applicants applied for judicial review of appeal tribunal’s decision. Application granted. Appeal tribunal usurped its role according to Sturgeon Lake First Nations Election Act, 2009 and it usurped its role according to custom to observe and oversee election. Appeal tribunal actively participated in decision to disqualify F as candidate in election. Appeal tribunal did not merely observe and oversee election. Informed person could reach no other conclusion than that there was reasonable apprehension of bias. Appeal tribunal violated procedural fairness and decision was quashed on that basis. Matter was remitted to appeal tribunal for re-determination.
Felix v. Sturgeon Lake First Nation (Sep. 23, 2014, F.C., Catherine M. Kane J., File No. T-927-13) 244 A.C.W.S. (3d) 754.

Civil Procedure

Judge erred in finding that undisclosed documents were subject to litigation brief privilege
During protracted discovery process, plaintiffs came into possession of documents that defendant Canada alleged were privileged. Canada sought order for return of all privileged documents while plaintiffs sought order requiring Canada to produce other documents over which Canada claimed privilege and had not produced. Plaintiffs’ motion was dismissed and Canada’s motion was allowed in part. Prothonotary found that Canada failed to establish litigation brief or settlement privilege but found that documents were subject to solicitor-client privilege and were to be returned to Canada. Prothonotary found there was no waiver of privilege. Plaintiffs appealed prothonotary’s decision. Appeal was dismissed. Judge upheld Canada’s claim that certain documents were protected from disclosure on basis that they were subject to litigation brief privilege and upheld Canada’s claim to solicitor-client privilege over documents Canada itself disclosed to plaintiffs. Plaintiffs appealed. Appeal allowed. Judge erred in finding that Canada established that undisclosed documents were subject to litigation brief privilege. Contents of documents did not establish that it was more likely than not that each document was prepared for dominant purpose of seeking legal advice or aiding in conduct of litigation. Claim to litigation privilege was disallowed. Evidence did not support judge’s finding that all of allegedly privileged documents were inadvertently disclosed in context where there was no intention to waive privilege. Evidence fell short of establishing that disclosure was inadvertent. There was no direct evidence that Canada did not intend to waive claim to privilege. Canada’s claim to solicitor-client privilege had been waived in respect of all documents at issue that were disclosed to plaintiffs.
Chemawawin First Nation v. R. (Sep. 12, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-350-12, A-351-12, A-358-12) Decision at 220 A.C.W.S. (3d) 505 was reversed.  244 A.C.W.S. (3d) 809.

Criminal Law


Mandatory for prohibition order to be issued after two convictions

Applicant’s owner was charged with selling cigarettes to minor and pled guilty and paid fine. Applicant received notice of non-compliance that made it clear two convictions in five years could lead to automatic prohibition from selling tobacco products. Weeks later, applicant’s employee was charged with, and pled guilty to, selling cigarettes to minor. As a result, applicant was charged under s. 3(1) of Smoke-Free Ontario Act and sent notice of non-compliance. Applicant pled guilty and paid fine. Appeal periods for three charges were long expired. Minister issued prohibition order to applicant, which prohibited it from selling tobacco products for six months. Motion by applicant for stay of prohibition order pending appeal and application for judicial review. Motion dismissed. There was no serious issue to be tried. Section 16(2) of Act made it mandatory for Minister to issue prohibition order after two convictions; there was no discretion and thus, no decision. Applicant had right to hearing and appeal upon being charged. Section 7 of Canadian Charter of Rights and Freedoms did not apply to corporations and economic rights. Applicant was expected to know Regulations and chose to proceed without legal advice, despite notice of consequences. Sale of tobacco to minors was serious issue and six-month prohibition after two convictions was not arbitrary, overbroad or grossly disproportionate, nor was it cruel and unusual punishment or a secondary sentence.
1251553 Ontario Inc. v. Ontario (Minister of Health and Long-Term Care) (Aug. 19, 2014, Ont. S.C.J., H.S. Arrell J., File No. St. Catharines 55240/14) 244 A.C.W.S. (3d) 270.



Accused incapable of planning and deliberation required to tell convincing lie

Trial of accused for attempting to obstruct justice. Individual attended at police station on April 5, 2011 and he informed officer that he was responsible for large marijuana grow-op that police discovered in October 2010. Owner of property was arrested at site and he was charged. Owner was released from custody pursuant to recognizance. Accused was owner’s younger brother and he was named as surety on recognizance for $50,000. Owner lived with accused after his release. Several hours after individual confessed to crime he admitted that he was not involved in grow-op and he was promised $25,000 by owner if he confessed to being person who used property for growing marijuana. He only visited property once, on March 27, 2011, to familiarize himself with property before he confessed to police. Individual claimed that he was accompanied and driven to property by accused. Owner could not accompany him because his recognizance did not permit him to visit property. Accused denied knowing that marijuana was grown on property and he denied meeting individual prior to court proceedings in this matter. Accused convicted. Individual’s evidence had internal consistency that underscored its reliability. It was supported by facts and other evidence and it was credible and truthful. Court would not make adverse finding of credibility against individual solely because he had criminal record. Individual was simple man who lacked ability to set up and operate sophisticated grow-op and it would not have taken two officers who interviewed him too long to come to that realization. He was incapable of planning and deliberation that was required to tell convincing lie.
R. v. Yeung (Sep. 4, 2014, Ont. S.C.J., E.J. Koke J., File No. CR-12-26-0000) 115 W.C.B. (2d) 435.



Conditions of release required and proportional to danger identified

Foreign national was first detained under security certificate in 2000. Foreign national was released under strict conditions after nearly seven years. Foreign national was named in second security certificate in 2008. In January 2013, some of foreign national’s conditions of release were repealed and others were softened considerably. No changes were made when matter was last considered in December 2013. Second security certificate was found to be reasonable around that time. Foreign national subsequently agreed to provide various passwords to authorities. Foreign national brought application for order repealing most release conditions. Application dismissed. Conditions of release were required and proportional to danger identified. Foreign national’s record regarding his most recent conditions of release had not been exemplary. Foreign national had breached his conditions of release by, inter alia, not giving proper notice of acquisition and use of telephone and fax services. Foreign national’s recent attitude, action, and behaviour were also indicative of unwillingness to collaborate and co-operate with supervisors. Foreign national’s conduct could give impression that he had something to hide. Fact that underlying proceedings were long and complex did not in itself support less strict conditions of release. Report from psychiatrist was given little weight due to inaccuracies. Foreign national’s proposed questions for certification were not certifiable.
Mahjoub, Re (Jul. 18, 2014, F.C., Simon Noel J., File No. DES-7-08) 244 A.C.W.S. (3d) 407.



Higher courts would benefit from practical expertise of provincial superior courts

Applicant fathers brought application alleging that Federal Child Support Guidelines (Can.), contradicted provisions of Divorce Act (Can.), under which they were enacted. Fathers sought to have Federal Court declare that Guidelines were ultra vires DA. Attorney General applied to have application dismissed. Federal Court Judge dismissed application. Judge found that four fathers lacked standing and did not meet test for public interest standing. Judge found that one father’s application was impermissible collateral attack and abuse of process. Judge found that one father had standing but court should decline to exercise jurisdiction to hear application because issues would be more appropriately dealt with in provincial superior court. Father appealed. Appeal dismissed. Judge did not err in law in concluding that provincial superior courts had jurisdiction to determine vires of Guidelines in context of proceedings for which they had jurisdiction under Act and to decline to apply them if found to be ultra vires. Judge erred in principle in applying and describing third factor to be considered in determining public interest standing. Appeal should be determined on issue of whether or not judge erred in declining to exercise jurisdiction and it was assumed fathers could have some standing. Judge’s discretion not to hear matter should be respected. Vires of Guidelines should be determined by court that developed particular expertise to properly assess argument in factual context. It would be more appropriate to adjudicate issues in context of divorce proceedings because it would ensure full participation of spouse seeking support. Higher courts would benefit from practical expertise provincial superior courts had. While declaration of invalidity could not be granted by provincial superior court, fathers could obtain ultimate goal of reduction of child support.
Strickland v. Canada (Attorney General) (Feb. 5, 2014, F.C.A., Blais C.J., Sharlow J.A., and Johanne Gauthier J.A., File No. A-199-13) Decision at 228 A.C.W.S. (3d) 705 was affirmed.  244 A.C.W.S. (3d) 341.

Constitutional Law


Hearing fees unconstitutional when they cause undue hardship to litigant

To obtain trial date in custody dispute, mother undertook to pay court hearing fee. Trial judge reserved decision on mother’s request to relieve her from hearing fee until end of trial. After legal fees, mother could not afford hearing fee. Trial judge invited submissions and interventions on constitutionality of hearing fees. British Columbia branch of Canadian Bar Association (CBA), Trial Lawyers Association of British Columbia and Attorney General of British Columbia intervened. Hearing fees escalate from zero for first three days of trial, to $500 for days four to ten, to $800 for each day over ten. Supreme Court Civil Rules (B.C.), provide exemption for persons “impoverished”. Previous Supreme Court Rules, in place at time this case began, provided exemption for persons “indigent”. Trial judge held that hearing fee provision unconstitutional. Court of Appeal held provision would pass constitutional muster if exemption expanded by reading in words “or in need”. Trial Lawyers and CBA appealed remedy. Province cross-appealed on issue of constitutionality of hearing fee. Appeal allowed; cross-appeal dismissed. Power to levy hearing fees, permissible exercise of Province’s jurisdiction, must be exercised in manner consistent with s. 96 of Constitution Act, 1867, and requirements that flow by necessary implication from s. 96. Measures that prevent people from coming to courts are at odds with historic task of superior courts to resolve disputes and decide questions of private and public law. Hearing fees that deny people access to courts infringe core jurisdiction of superior courts and impermissibly infringe s. 96 which provides constitutional protection for access to justice, which is fundamental to rule of law. Section 92(14) not giving provinces power to administer justice in way that denies access to courts. Hearing fees unconstitutional when they cause undue hardship to litigant. Fees that require litigants who are not impoverished to sacrifice reasonable expenses in order to bring claim may be unconstitutional as causing undue hardship. Hearing fees must be coupled with exemptions that allow judges to waive fees for people unable, by reason of financial situation, to bring non-frivolous or non-vexatious litigation to court. Hearing fee scheme in this case places undue hardship on litigants, impedes access to justice and unconstitutional. Trial judges not having sufficient discretion to exempt litigants in appropriate circumstances. Mother excused from paying hearing fee. Hearing fee scheme declared unconstitutional. “Reading in” to be used sparingly and not applicable; Legislature left to enact new provisions if it chooses to do so.
Vilardell v. Dunham (Oct. 2, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35315) Decision at 223 A.C.W.S. (3d) 797 was reversed.  244 A.C.W.S. (3d) 327.



Police were at stage of ‘reasonable grounds to suspect’

Accused appealed convictions for refusing to provide breath sample, assault with intent to resist arrest, four counts of assaulting police officer, and one count of carrying concealed weapon. Officers testified that accused was stopped for speeding and became uncooperative when officer called for approved screening device. According to officers, accused was belligerent and assaulted then when they tried to make arrest. Accused testified that he fully cooperated with police but refused to provide breath sample until he contacted his lawyer. Accused testified that officers hit him. Trial judge did not believe accused’s evidence that he told officers that he agreed to provide breath sample but wanted to speak to lawyer first. Accused argued that trial judge erred in finding that police had grounds to demand breath sample. Appeal dismissed. Accused had been driving at very high speed and made “rolling stop” at stop sign. Officer noticed strong smell of alcohol on accused’s breath, glossy eyes, and accused had admitted that he had consumed alcohol. Police were only at stage of “reasonable grounds to suspect”, not higher standard. There was ample evidence to support finding of trial judge that there were reasonable grounds to suspect presence of alcohol in accused’s body.
R. v. Marriott (Aug. 19, 2014, Ont. S.C.J., R.F. Goldstein J., File No. 81/12) 115 W.C.B. (2d) 341.



Legislation did not allow judges to avoid consequences imposed on accused

Crown appealed four decisions in which sentencing judges made exemptions to accused and did not order them to pay victim fine surcharges. Crown’s four appeals were granted and four rulings by trial judges as to victim fine surcharge were set aside; accused ordered to pay victim fine surcharges. In absence of constitutional issue having been raised before trial court, Crown and all defence counsel essentially agreed that there was no alternative but to allow appeals. Each ruling demonstrated effort by trial judge to avoid consequences imposed on accused by new legislation in s. 737 of Criminal Code mandating imposition of victim fine surcharge. Each of trial judges obviously viewed new legislation as detracting from fair application of sentencing principles. Problem was that applicable legislation did not allow them this discretion. Each of rulings, as consequence, amounted to legal error.
R. v. Nicholson (May. 15, 2014, Ont. S.C.J., L. Ratushny J., File No. Ottawa 13-13183, 13-13506, 13-12947, 13-12990) Decision at 113 W.C.B. (2d) 590 was varied.  115 W.C.B. (2d) 318.

Civil Procedure


Affidavit did not support cause of action against employees as proposed defendants

Plaintiff brought motion to add two lawyers and law firm as additional defendants and to add two employees of doctor as defendants. Plaintiff sought to add estate as additional plaintiff and to claim wrongful death of deceased. Plaintiff sought to convert action to class action. Plaintiff sought leave to increase amount of her claim from $1 million to $100 million. Plaintiff sought permanent injunction restraining doctor or his staff or any person at law firm from having contact with plaintiff. Plaintiff sought order against doctor enjoining him from practising medicine. Plaintiff’s request for order that she be heard by teleconferencing or Skype was considered and order was made for all parties to appear in person when motion was heard. Plaintiff did not appear in person. Plaintiff’s written request for adjournment was dismissed. Plaintiff was deemed to have abandoned motion. Parts of motion would have been dismissed in any event for lack of evidence or for reasons that relief requested was contrary to law or Rules of Civil Procedure (Ont.). It was premature to seek leave with respect to testimony of experts for any reason in action. Plaintiff did not attach amended statement of claim to her materials containing precise allegations or showing how any claim could be made against proposed defendants. Affidavit material did not support any cause of action against employees as proposed defendants. There was no evidence that estate trustee consented to add estate as plaintiff. Plaintiff was sole plaintiff and Class Proceeding Act, 1992 (Ont.), did not apply. Plaintiff provided no evidence as basis for increasing amount of damages claimed. Supporting affidavit did not establish serious question to be tried in action that would support claim for injunctive relief. Court had no jurisdiction to make order for injunction prohibiting doctor from practising medicine.
Miller v. Turliuk (Aug. 25, 2014, Ont. S.C.J., Emery J., File No. 2598/13) 244 A.C.W.S. (3d) 46.
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