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Evidence

HEARSAY

Trial judge did not err in finding that interview statement was spontaneous

Accused’s boyfriend, L, killed complainant in his bedroom with knife while accused was standing outside residence with friend. Thirteen hours after complainant was killed, police interviewed accused about killing. Nearly six hours into interview, police informed accused that she was being charged with first degree murder, and she replied that she was innocent (“interview statement”). At accused’s trial, trial judge admitted interview statement as spontaneous out-of-court statement made when first confronted with accusation of crime. Accused was acquitted. Crown appealed. Appeal dismissed. Trial judge did not err in finding that accused was first confronted with accusation of committing crime during her police interview. Members of accused’s family confronted L and accused about what had happened to complainant and asked accused if he had killed her, but they did not accuse L of participating in murder. Trial judge did not err in finding that interview statement was spontaneous. Considerations supporting this finding included that trial judge expressly considered 13-hour gap between offence and interview statement and that he had advantage of comparing accused’s trial testimony to her police interview. Trial judge did not rely on presumption of innocence to wrongly assume that presumptively innocent person can never anticipate being confronted with charge of premeditated murder. Trial judge only said that in assessing whether interview statement was spontaneous, he could not presume that accused and L planned and executed murder and thus had time to concoct story. Appellate cases relied on by Crown on issue of spontaneity were distinguishable, since in those cases issue of spontaneous statement was not raised at trial. Trial judge did not err by failing to excise part of accused’s police interview before it was shown to jury. Editing out and isolating part of accused’s police interview would likely have undermined jury’s ability to assess probative value of interview statement.
R. v. Liard (Jun. 9, 2015, Ont. C.A., John Laskin J.A., Gloria Epstein J.A., and K. van Rensburg J.A., File No. CA C55410) 123 W.C.B. (2d) 550.

Municipal Law

ACTIONS AGAINST MUNICIPALITY

Section 398(1) of City of Toronto Act, 2006 did not require that claim against city be struck

Plaintiff was struck by streetcar while attempting to cross road at median planted with trees, and onto fixed rails. Plaintiff commenced action against operator of streetcar, transit agency, and city. Transit agency brought motion for summary judgment. Motion sought dismissal of action against city. Transit agency admitted legal responsibility for maintenance and structure of trees on median. Motion dismissed. Agency and city had different view regarding responsibility for trees and mediation. Transit agency’s admission could not bind another party. Section 398(1) of City of Toronto Act, 2006 did not require that claim against city be struck. To apply, s. 398(1) required that claim relate to transit agency’s property. Median and trees were owned by city. Agreement between transit agency and city to share costs and responsibility of maintenance did not alter result. Transit agency’s wish to assume all liability did not automatically remove city as co-defendant. Plaintiff was entitled to continue action against potentially liable city.
Agarwal v. Lee (Jul. 3, 2015, Ont. S.C.J., Hood J., File No. CV-08-00356047) 256 A.C.W.S. (3d) 711.

Civil Procedure

COMMENCEMENT OF PROCEEDINGS

Libel and Slander Act notices did not sufficiently specify matter

Action arose out of two publications, one broadcast and other printed. Plaintiff alleged that defamatory statements were made that created link between it and Hamas supporters that attended pro-Palestinian rally. Defendants brought motion under R. 21.01(1)(a) of Rules of Civil Procedure to determine whether plaintiff complied with notice requirements under s. 5 of Libel and Slander Act prior to bringing action. Motion granted; action dismissed. Sufficiency of notice under act was question of law and was properly before court on R. 21 motion. Notice requirement was mandatory and failure to provide sufficient notice was absolute bar to proceeding. Notice had to sufficiently identify matter complained of. Notice must be specific enough to provide defendants with opportunity to correct or limit harm. Notices here identified matter complained of but they did not sufficiently specify matter complained of, as was possible given specificity of statement of claim. Notices provided were in nature of plaintiff’s interpretation of words spoken and published than they were direct references to them. Notices provided here did not meet requirements of s. 5(1) of act.
CUPW v. Quebecor Media Inc. (Jul. 15, 2015, Ont. S.C.J., Pelletier J., File No. 14-62129) 256 A.C.W.S. (3d) 738.

Human Rights Legislation

HUMAN RIGHTS COMMISSION/TRIBUNAL

Commission’s decision did not respond to applicant’s submissions

Applicant worked for respondent bank as assistant product manager. In July 2009 she commenced period of disability leave after she was diagnosed with anxiety and depression. No date was set for her return. In July 2010, bank permanently staffed applicant’s position with another employee. In August or September 2010 applicant was found to be medically fit to return to work without restriction, and informed bank. She returned to work on part-time basis, but in different role at different location. In June, 2011, bank notified applicant that her new position would be eliminated without cause due to corporate restructuring. Applicant’s employment with bank ended in August 2011. She filed complaint with Canadian Human Rights Commission alleging discrimination on grounds of disability. Commission adopted investigator’s report that there was insufficient evidence that bank’s decision to end applicant’ employment was related to her disability and dismissed complaint. Applicant applied for judicial review on basis that Commission failed to address her complaint that bank failed to accommodate her disability and that investigator had failed to obtain evidence from two key witnesses. Application allowed in part. There was nothing to indicate that applicant’s concerns regarding failure of investigator’s report to address bank’s duty to accommodate were considered by commission. Commission’s decision did not respond to applicant’s submissions and it appeared that they were simply ignored. That constituted breach of procedural fairness and matter must be remitted to commission for reconsideration. Investigator made reasonable efforts to establish why bank decided to permanently staff applicant’s position while she was on disability leave, and manner in which bank assisted applicant in finding another position within organization. Evidence of alleged key witnesses was not required.
Brosnan v. Bank of Montreal (Jul. 29, 2015, F.C., Simon Fothergill J., File No. T-1332-14) 256 A.C.W.S. (3d) 664.

Charter of Rights

FREEDOM OF EXPRESSION

Denial of inmate’s grievance regarding cancellation of television channels violated applicant’s right of freedom of expression

Application by 46-year old prison inmate for judicial review of decision of acting senior deputy commissioner of Correctional Service Canada that denied applicant’s grievance over cancelling of two television channels included in package subscribed for by group of inmates. These channels aired sexually explicit conduct. They were cancelled because female correctional officers expressed degraded sense of personal dignity and they alleged that their safety was being undermined from their exposure to sexually explicit material on regular basis in workplace. Claim for denial of procedural fairness was only raised for first time on judicial review application. Application allowed. File was sent back to different commissioner for new determination. Claim for denial of procedural fairness was denied because applicant waived it. He was aware of this claim and he failed to raise it earlier in proceedings. Decision, however, was not reasonable because of lack of evidence on key issues. There was also no evidence of any connection between inmates watching sexually explicit content on television and sexual harassment of correctional officers. Applicant provided evidence that female officers were not at risk from inmates who watched pornographic movies. Decision under review violated applicant’s right of freedom of expression.
Naraine v. Canada (Attorney General) (Jul. 30, 2015, F.C., Jocelyne Gagné J., File No. T-1108-14) 123 W.C.B. (2d) 476.

Customs and Excise

DUMPING

President did not err in failing to find targeted dumping

Applicants manufactured power transformers in Canada. Applicants alleged that power transformers originating in or exported from Korea were being dumped into Canada and had caused and were threatening to cause material injury to production of like goods in Canada. Following investigation, president of Canada Border Services Agency made affirmative final determination of dumping under s. 41(1)(a) of Special Import Measures Act. Respondents applied for judicial review, disputing amount of profit president used in determining export price of power transformers for purposes of s. 25 of act. Respondents contested inclusion of profit data from applicants in calculation. In Hyundai Heavy Industries Co. v. ABB Inc. (2013), 235 A.C.W.S. (3d) 956 (F.C.A.), final determination was set aside and matter was referred back to president for re-determination. President re-opened investigation and made new final determination of dumping. Both applicants and respondents applied for judicial review. Applications dismissed. In first final determination, president gave no explanation for using profit data of two Canadian manufacturers, applicants. Court directed president to take care in determining whether or not Canadian manufacturers were at substantially same level as subject importer-distributor and if so, to provide further explanation to support conclusion. Court did not direct specific result. Care was taken in determining whether it was appropriate for president to use profit data of Canadian manufacturers in accordance with court’s directions in Hyundai. President did not fail to provide further explanation that court required as to why it was appropriate in circumstances to include data. President complied with court’s directions and trade level determination was reasonable. Respondents failed to establish that there was reasonable apprehension of bias on part of president. President did not err in calculating deductive export price by using respondents’ profit data. Language of act and Special Import Measures Regulations, supported propriety of president’s methodology and decision to use profit data of respondents was reasonable. President did not err in failing to find targeted dumping. Variation in individual transaction prices were found but they were not viewed as significant and president was not satisfied that they constituted evidence of targeted dumping. Section 30.2(2) of act was not engaged.
ABB Inc. v. Hyundai Heavy Industries Co. (Jul. 2, 2015, F.C.A., Johanne Gauthier J.A., Ryer J.A., and D.G. Near J.A., File No. A-189-14, A-195-14) 256 A.C.W.S. (3d) 595.

Aboriginal Peoples

CROWN RELATIONSHIP

No error in conclusion that duty to consult extended to duty to meet, hear, discuss, take First Nations’ concerns into meaningful consideration

Respondents brought application for judicial review to set aside decision by Canada to transfer Kapyong Barracks to non-agent Crown corporation which disposes of surplus property for federal government. Barracks located on lands respondents claimed to have right to purchase in priority to other potential purchasers. Respondents expressed interest in Barracks, but Canada proceeded with “strategic disposal process”. Respondents alleged Canada thereby breached its duty to consult. Federal Court agreed and granted order restraining sale until Canada demonstrated it had fulfilled that duty. Canada appealed. Federal Court held that Canada did not owe duty to consult to Sagkeeng and Sandy Bay Ojibway First Nations; they cross-appealed. Appeal allowed with respect to remedy only; cross-appeals dismissed. Canada did not owe duties to consult Sagkeeng and Sandy Bay Ojibway First Nations; no evidence to support that either had land claim or unfulfilled per capita reserve land entitlement. Canada conceded it had duty to consult other respondents. No error in conclusion that duty to consult entailed not just minimal aspects of obligation but extended to duty to meet, to hear and discuss, to take First Nations’ concerns into meaningful consideration and to advise as to course of action taken and why. Federal Court properly recognized that scope and nature of duty affected by entire factual matrix, guided by treaty land entitlement agreements and jurisprudence as well as concepts of honour, reconciliation and fair dealing. Honour of Crown in its dealings with Aboriginal peoples of paramount importance and history of dealings between parties relevant. In lieu of full satisfaction of unfulfilled right to receive lands under Treaty No. 1, respondents had rights under treaty land entitlement agreements concerning lands that may come available. Canada committed to that purpose by signing agreements and required to engage with respondents in close and meaningful communication. It was required to give respondents relevant information in timely way, respond to relevant questions, consider carefully concerns, representations and proposals and advise as to ultimate course of action and why. Ultimate decision must, at minimum, be acceptable and defensible. Canada could not transfer Barracks until duty to consult fulfilled. Canada did not fulfil its duty, failing to notify respondents when it closed Barracks, failing to respond to expressions of interest, failing to consult despite knowing of respondents’ interest, failing to provide information and making decision to sell without responding to respondents in meaningful way.
Canada (Attorney General) v. Long Plain First Nation (Aug. 14, 2015, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-34-13) Decision at 225 A.C.W.S. (3d) 1 was reversed in part.  256 A.C.W.S. (3d) 502.

Conflict of Laws

FOREIGN JUDGMENTS

Ontario courts had jurisdiction to determine if foreign judgment should be recognized

As result of exploration and extraction activities of global oil companies, Ecuador suffered extensive environmental pollution. Plaintiffs, who represent approximately 30,000 indigenous Ecuadorian villagers, have been seeking legal accountability and financial and environmental reparation for alleged harms caused by Texaco’s former operations. Texaco later merged with Chevron, a U.S. corporation. Ecuadorian courts awarded environmental damages and punitive damages of US$9.51 billion against Chevron but Chevron refused to acknowledge or pay. Plaintiffs commenced action for recognition and enforcement of Ecuadorian judgment in Ontario Superior Court of Justice. Plaintiffs served Chevron at head office in California and Chevron Canada, at extra-provincially registered office in British Columbia and place of business in Ontario. Plaintiffs sought Canadian equivalent of award resulting from Ecuadorian judgment. Chevron and Chevron Canada applied for orders setting aside service ex juris, claiming that court did not have jurisdiction. Motion judge ruled in plaintiffs’ favour with respect to jurisdiction and Court of Appeal upheld finding that Ontario courts had jurisdiction to determine whether foreign judgment should be recognized and enforced in Ontario. Chevron’s appeal dismissed.
Chevron Corp. v. Yaiguaje (Sep. 4, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., File No. 35682) Decision at 235 A.C.W.S. (3d) 373 was affirmed.  256 A.C.W.S. (3d) 583.

Condominiums

REAL PROPERTY

Conveyance obligation did not constitute executory contract 

Appellant condominium corporations were part of large condominium complex comprising dwelling units, recreational facilities and clubhouse, all developed by Blue Shores. Blue Shores gave purchasers disclosure statement providing for conveyance of clubhouse to appellants within 120 days after date Blue Shores no longer owned any lands within project (conveyance obligation). From outset, Blue Shores owned and operated clubhouse. Pursuant to easement and cost sharing agreement, each condominium corporation required to submit clubhouse membership fees collected from unit owners which Blue Shores used for its own purposes and refused to account. Although conveyance obligation had not yet been triggered, appellants registered notice of unregistered estate, right, interest or equity against title to clubhouse and applied for declaration that they owned clubhouse and that mortgage over it granted to respondent, Duca Financial Services, was void or subordinate to their interests. Application judge dismissed application. Appellants' appeal dismissed. Conveyance obligation did not constitute executory contract. One purpose of disclosure statement is to enable potential purchasers to have full understanding of rights and obligations but it does not, of itself, constitute enforceable contract. Disclosure statement expressly indicated that interest in clubhouse was not being conveyed. Since disclosure statement did not constitute executory contract, appellants did not have equitable interest in clubhouse and had no rights capable of registration under Land Titles Act. As owner, Blue Shores was entitled to mortgage the clubhouse. There was no prohibition and so long as Blue Shore could comply with terms of conveyance obligation, it was entitled to deal with clubhouse as it saw fit. In condominium documents, Blue Shores preserved for itself the right to operate clubhouse almost entirely free of constraint. In particular, Blue Shores had right to permit members of public, on user-fee basis, to use clubhouse and had no obligation to account to condominium corporation. Condominium Act, 1998, permits court to make order to rectify conduct that is or threatens to be oppressive or unconscionably prejudicial. Blue Shores did not breach this standard. It did not violate appellants' contractual or property rights nor did appellants demonstrate any unfair conduct that undermined their reasonable expectations. 
Simcoe Vacant Land Condominium Corp. No. 272 v. Blue Shores Developments Ltd. (May. 27, 2015, Ont. C.A., J. MacFarland J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C58302) Decision at 237 A.C.W.S. (3d) 801 was affirmed.  256 A.C.W.S. (3d) 467.

 

 

 

 

 

Tort

LIMITATIONS

Action by plaintiff arising from wife’s transmission of HIV was statute-barred

Plaintiff's wife came to Canada from Thailand on work visa. Plaintiff claimed wife was aware that she had HIV when she came to Canada and failed to disclose her HIV status to him in intentional fraud orchestrated to secure immigration sponsorship into Canada by marriage. Plaintiff claimed Attorney General of Canada knew or ought to have known wife was HIV-positive and negligently or intentionally failed to warn plaintiff prior to accepting application for sponsorship and was vicariously liable for alleged negligent actions of defendant doctor. Plaintiff claimed defendant club was vicariously liable for actions of employees by allowing wife to work as exotic dancer without imposing restrictions on her with respect to goal of guarding against spread of HIV. Plaintiff was diagnosed as HIV-positive. Wife was deported after being convicted of assault causing bodily harm for transmitting HIV to plaintiff without advising him that she tested positive for HIV in Thailand. Husband brought action four years after he discovered he was HIV-positive. Defendants brought motion for summary judgment. Motion was granted. Motion judge concluded that action was statute-barred pursuant to ss. 4 and 5 of Limitations Act, 2002. Plaintiff appealed. Appeal dismissed. Plaintiff raised ss. 10 and 16(1)(h) of act for first time on appeal. Plaintiff's argument that he was incapable of commencing proceeding within meaning of s. 10 of act was foreclosed by motion judge's finding that plaintiff had sufficient facts upon which to base claim by March 2004 or July 2004 at latest. Finding was reasonable on evidence. It would be contrary to interests of justice to entertain plaintiff's argument for first time on appeal respecting possible application of s. 16(1)(h) of act. There was no causal link established between plaintiff's sponsorship undertaking given to government of Canada or decision to grant wife permanent resident status and his infection with HIV.
Whiteman v. Iamkhong (Jun. 22, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and David Brown J.A., File No. CA C57975) Decision at 235 A.C.W.S. (3d) 803 was affirmed.  256 A.C.W.S. (3d) 435.

 

 

 

 

 

 

 

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