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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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Application for production of sexual assault centre records was granted

Accused was charged with sexual offences against his now 38-year-old daughter when she was between ages of two and ten-years old. Complainant initiated charges one year ago explaining that she began to relive abuse at age of 18, in form of nightmares and flashbacks, causing her to seek counselling from sexual assault centre. Complainant also testified that since providing her statement to police, she had number of new memories come back to her, including that abuse started when she was just baby. Crown advised that it intended to call expert evidence at trial related to delayed memory recall in children who had been abused. Accused sought production of sexual assault centre records, pursuant to s. 278.3 of Criminal Code. Application granted. Accused established that records were likely relevant to issue at trial and that their production to court was necessary in interests of justice. Application succeeded at first stage that records be reviewed by court after which decision will be made whether they should be disclosed.
R. v. B. (P.) (Nov. 20, 2015, Ont. S.C.J., Baltman J., CRIMJ (P)890/15) 127 W.C.B. (2d) 87.


Right of appeal

Leave to appeal from dismissal of appeal from conviction for sexual assault was refused

Accused was convicted of sexually assaulting complainant, niece of his common-law wife. Complainant and accused both attended party celebrating complainant’s grandparents’ 50th wedding anniversary. Accused had become highly intoxicated. According to complainant, accused entered her room, began sexually touching her and then performed oral sex on her before she realized what was happening and fled room. Complainant testified that she believed accused thought she was his wife, as they had similar build and his wife was initially supposed to stay in that room. At trial, accused denied having any sort of sexual interactions with complainant or his wife that night. Accused said he entered complainant’s room, thought that person sleeping in bed was his wife, and fell asleep naked beside her in bed. Accused denied that he had engaged in sexual activity with anyone believing that she was his spouse. Accused sought leave to appeal from decision of SCAJ dismissing his appeal from conviction. Leave to appeal denied. Whether there was air of reality to defence did raise question of law. Accused conceded that his appeal did not raise issue of significance to administration of justice generally. There were no clear errors identifiable in reasons of SCAJ. Where accused asserts he had no sexual contact of any kind with complainant, it would be fantasy to speculate that he was lying on that point, but to then attribute to him defence completely incompatible with his evidence, namely that he was assailant but he may have been operating on mistaken belief. Accused had not identified any exceptional circumstances which would justify second appeal.
R. v. H. (A.D.) (Oct. 15, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., G. Pardu J.A., and K.M. Weiler J.A., CA C59604) Leave to appeal decision at 117 W.C.B. (2d) 100 was refused. 127 W.C.B. (2d) 10.

Civil Procedure


Clients entitled to partial indemnity costs after dismissal of counsel’s motion to withdraw mid-trial

Litigation involved lengthy and complex attempt by plaintiffs to recoup significant financial investment that was made as result of acts of deceit and material non-disclosure by defendants. Plaintiffs’ counsel sought permission to withdraw mid-trial for non-payment of outstanding legal fees. Motion was dismissed. Plaintiffs applied for costs. Application granted. Motion was found to be improper and unprofessional and would result in significant prejudice to plaintiffs and to administration of justice, but conduct was not described in egregious terms that might warrant costs on elevated scale. Lawyer continued to vigorously to purse plaintiffs’ interests and achieved stellar result. This was not rare and exceptional circumstances that warranted elevated award of costs. Plaintiffs were entitled to partial indemnity costs fixed at $25,000, inclusive of HST and disbursements. It would be manifestly unjust not to allow counsel to deduct amount of award from outstanding account for legal services, given relationship between law firm’s account and costs award.
Todd Family Holdings Inc. v. Gardiner (Dec. 18, 2015, Ont. S.C.J., McIsaac J., Oshawa CV-76324-11) Additional reasons to decision at 259 A.C.W.S. (3d) 423. 262 A.C.W.S. (3d) 44.


Powers of appellate court

Appeal judge had no jurisdiction to remit custody matter to trial judge for further hearing

Father appealed trial decision awarding custody of parties’ three-year-old child to mother, allowing mother’s application to relocate from Ontario to England and prescribing access. First appeal judge affirmed custody, relocation and access decisions but remitted final order to trial judge “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with.” He held that trial judge could admit additional oral or affidavit evidence. Father’s further appeal allowed in part. This court can intervene only if judge below erred in law or made material error in appreciation of facts. Deferential approach intensified on second appeal. No basis to interfere with appeal judge’s decision upholding custody and relocation decisions. Trial judge proceeded upon proper legal framework and trial judge’s factual findings were permissible inferences from evidence. Appeal judge, however, had no jurisdiction to remit matter back to trial judge for further hearing. Process to settle order is to ensure that formal order accurately sets out intention of court as reflected in endorsement or reasons. It is not opportunity for parties to re-argue issues already decided. Appeal judge erred to extent he relied on R. 25(19)(c) of Family Law Rules (Ont.) as basis for remitting issues of custody and access back to trial judge. Rule 25(19)(c) only permits court to change order that “needs to be changed to deal with a matter that was before the court but that it did not decide.” Rule 25(19)(c) had no application since trial judge dealt with all matters relating to custody and access. Trial judge’s subsequent custody and access order was of no force or effect. Original custody and access order remained in place.
Chitsabesan v. Yuhendran (Feb. 5, 2016, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and David Brown J.A., CA C59537) Decision at 245 A.C.W.S. (3d) 144 was reversed. 262 A.C.W.S. (3d) 13.



Question was certified with respect to application for extension of temporary residence permit

Foreign nationals were French citizens in Canada on temporary resident permits which expired July 15, 2014. On June 16, 2014 foreign nationals applied for extension of time however application forms and documents were returned to them because they had failed to make sufficient payment and to provide other required documents. Citizenship and Immigration Canada’s covering letter to foreign nationals indicated that their request could not be dealt with unless they returned copy of letter, together with new complete application in proper form accompanied by correct fee and other required documents. On August 25, 2014, foreign nationals purported to comply, however their application forms were again sent back with same form covering letter indicating that certain information was still missing. On April 21, 2015 foreign nationals resubmitted everything and had yet to receive reply. On July 4, 2015, minister’s delegate signed exclusion order pursuant to s. 44(2) of Immigration and Refugee Protection Act (Can.) on grounds that foreign nationals had violated s. 29(2) of Act by failing to leave Canada at expiry of their temporary resident permits. Foreign nationals applied for judicial review, contending that exclusion order was invalid because they had applied for extension of their permits before they had expired, so that they maintained Canadian status under Regulations until their applications were refused on merits. Application dismissed. Decision of minister’s delegate to issue exclusion order was both reasonable and correct. Application within meaning of s. 183 of Immigration and Refugee Protection Regulations (Can.) must be such that decision maker is able to grant extension, or to reject it, on merits. Officer could not have made positive decision on application form submitted before temporary resident permits expired because applications were incomplete. Therefore, foreign nationals were required to depart Canada under s. 183(1) of Regulations and s. 29 of Act. Question certified: When temporary resident has applied for extension of period authorized for his or her stay, but application is returned to applicant, due to incompleteness, in accordance with s. 12 of Regulations, does applicant benefit from implied status until he or she actually submits complete application and that application is either refused or allowed?.
Stanabady v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2015, F.C., Sean Harrington J., IMM-2838-15, IMM-2840-15) 262 A.C.W.S. (3d) 194.

Aboriginal Peoples


Record too sparse to conclude that First Nation fell within definition of ‘Band’ in Indian Act (Can.)

Delegate of Minister of Aboriginal Affairs and Northern Development Canada refused applicant First Nation’s request for $5,000 to be paid to it from trust money held by Government of Canada. Funds were sought to assist First Nation in paying for research to be used in negotiations with Department of Fisheries and Oceans. Refusal was based on fact that First Nation was not recognized Band pursuant to Indian Act (Can.). First Nation applied for judicial review of minister’s delegate’s decision. Application dismissed. In order to make declaration that applicant sought, namely that Minister of Indian Affairs and Northern Development held funds for its benefit, court would first have to find that First Nation was entitled to claim money on basis that land in New Brunswick that was set aside as reserve land in 1881 was set aside for Passamaquoddy people. Court would then have to find that members of First Nation were successors to Passamaquoddy people for whom reserve was created. Effect of such findings would be that First Nation would then come within definition of Band in s. 2 of Act, and would be entitled to social programs and other benefits. However, record before court was far too sparse to make findings First Nation sought. Delegate’s decision was not incorrect or unreasonable, based on limited record before him when decision was made. Delegate did not apply wrong standard of proof in rejecting First Nation’s request for fund.
Schoodic Band v. Canada (Attorney General) (Dec. 21, 2015, F.C., Anne L. Mactavish J., T-1183-14) 262 A.C.W.S. (3d) 4.

Civil Procedure

Preliminary question of law

Open to court to decline to consider correctness of judge’s answer to questions not properly falling within R. 220(1)(a)

Corporations commenced action against the Society of Composers, Authors and Music Publishers of Canada seeking to recover amounts paid in relation to ringtones downloaded onto mobile devices. SOCAN, acting on behalf of Canadian music creators, counterclaimed for ringtone royalties. Copyright Board certified tariff 24 authorizing SOCAN to collect royalties on ringtone downloads on ground downloads constituted communication to public within meaning of Copyright Act (Can.). FCA dismissed application for judicial review and leave to appeal to SCC denied. Pursuant to consent agreement, proposed replacement tariff 24 was certified for 2006-13, pursuant to which Corporations paid over $12 million. In separate proceedings, Copyright Board certified tariff 22.A, which set royalties for downloading musical work over Internet or mobile network. FCA dismissed application for judicial review but SCC heard two appeals, majority determining that musical works not communicated by telecommunication when downloaded. Copyright Board declined Corporations’ application to vary tariff 24 certification decisions, finding that power to vary did not include power to rescind. Corporations brought action against SOCAN, claiming SOCAN was unjustly enriched. On preliminary determination of questions of law, judge held that Corporations’ claim not finally decided and they were not prevented by consent agreement from claiming relief. Judge concluded that internet transmission of ringtone file not constituting communication to public (not under appeal) and Copyright Board had jurisdiction to certify tariff 24. He also concluded, however, that SOCAN not unjustly enriched and Corporations not entitled to order tracing distribution of tariff 24 royalties. Corporations’ appeal and SOCAN’s cross-appeal allowed in part. Determination of questions arose out of R. 220(1)(a) of Federal Courts Rules (Can.) which authorizes determination of questions of law. Although made on consent, open to court to decline to consider correctness of judge’s answer to questions not properly falling within R. 220(1)(a). Whether consent agreement provided basis upon which Corporations’ claim could be precluded was not pure question of law and should not have been decided. Judge should have declined to determine whether SOCAN unjustly enriched as this was not pure question of law and was central issue to be tried. Whether Corporations were entitled to order tracing distribution of tariff 24 royalties was also not pure question of law.
Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada (Jan. 27, 2016, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and D.G. Near J.A., A-141-15) Decision at 250 A.C.W.S. (3d) 417 was reversed. 262 A.C.W.S. (3d) 71.



Defence established that child protection records were likely relevant to credibility and reliability of children

Two accused charged with allegedly abusing, physically, their two children. Charges included assaults with weapons including wooden type kitchen utensil, black leather belt, mustard bottle and wooden spoon. Records in question had been deposited with court and remained sealed. Accused alleged that records in question were likely relevant to issue at trial, namely, credibility and reliability of children complainants. Records would show, submitted accused, that children had history of making false allegations of abuse. Accused, represented by different counsel, jointly applied to court for disclosure of records in possession of Bruce Grey Child and Family Services (BGCFS), both before and after alleged offences dates, related to allegations made by children that they were abused by other persons. Court to unseal records and review them then give to counsel judicial summary of those records before reassembling to address second stage of application, namely, whether all or some of records ought to be disclosed to defence. Court rejected defence assertion that records were likely relevant to competence of children, or either of them, to testify. Defence was confusing issue of competence with those of credibility and reliability. Defence had established on balance of probabilities that records were likely relevant to credibility and reliability of children and had potential impeachment value, regardless of fact that some of records had already been disclosed to counsel for one of accused in ongoing child protection proceeding. It was clear from evidence that children had made similar allegations against other persons, including foster parents and another individual. There was case specific evidence that those similar allegations against other persons had been recanted, at least partially, by children. There was case specific evidence that those similar allegations against other persons were false, or at least they were investigated and determined to be unfounded.
R. v. C. (J.) (Dec. 15, 2015, Ont. S.C.J., Conlan J., File No. CR-14-265-0000) 126 W.C.B. (2d) 548.



Accused should have received enhanced credit for pre-trial custody

Accused was convicted of three counts related to his possession of unauthorized prohibited firearm and cartridge magazine. Accused was sentenced to global term of imprisonment of four years, less credit for 402 days, allowed on 1.25 times’ basis as 500 days. Accused appealed sentence. Appeal allowed. Parties agreed that accused should have received credit of 603 days for 402 days of his pre-trial custody on 1.5 times’ basis based on Supreme Court of Canada decision that was released after imposition of sentence. Sentence was otherwise fit. Trial judge properly considered that principles of denunciation and deterrence had to be given substantial weight in sentencing accused for his gun-related offences, especially in light of his aggravating prior gun-related convictions.
R. v. Bediako (Nov. 19, 2015, Ont. C.A., David Watt J.A., David Brown J.A., and L.B. Roberts J.A., File No. CA C59029) 126 W.C.B. (2d) 525.

Civil Procedure


Defendants’ motion to change venue from Windsor to Toronto was granted

Plaintiffs brought class action on behalf of two classes of investors who had purchased shares in defendant company W Inc, either on basis of prospectus or in secondary market, and held those shares at close of trading on TXS on November 12, 2014. Plaintiffs sought, among other things, declarations defendants had breached s. 130 of Securities Act and been negligent. Defendants brought motion pursuant to R. 13.1.02 of Rules of Civil Procedure to change venue of proceeding from Windsor, Ont. to Toronto, Ont. Motion granted. Plaintiffs had prima facie right to choose venue. They were not required to establish any rational connection or that choice reasonable. Defendants seeking change of venue required to establish change in interests of justice. Where plaintiffs’ choice unreasonable and defendants’ choice reasonable, change likely to be granted as matter of common sense. Where both choices reasonable, defendants required to establish theirs was “significantly better”. Issue had to be considered as holistic exercise with no enumerated factor entitled to greater weight. In this case, while one original representative plaintiff resided in Windsor, neither current representative plaintiff did. Windsor, where plaintiffs’ counsel located, was, however, recognized as centre for class actions. Comparison of two venues required. Events or omissions allegedly giving rise to claim had taken place in Vancouver, BC or Toronto, not Windsor. Substantial part of alleged damages had been sustained in Toronto. Subject matter of claim was in Toronto. Toronto would be more convenient to parties, most counsel and witnesses. Judicial resources appeared to be reasonably available in Toronto. Since only meaningful factor weighing in favour of Windsor was location of plaintiffs’ counsel, Toronto was significantly better choice. Change was in interests of justice.
Cass v. WesternOne Inc. (Nov. 24, 2015, Ont. S.C.J., Christopher M. Bondy J., File No. CV-14-00021629-00CP) 261 A.C.W.S. (3d) 581.

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