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Civil Procedure


Trial judge did not err in refusing adjournment

Trial judge found appellants fraudulently submitted false information to respondent bank in order to obtain loans and found them liable for over $10 million in damages for fraudulent misrepresentation, negligent misrepresentation, conversion and conspiracy. Events giving rise to litigation occurred in 2007. Appellants commenced action claiming declarations they were not liable on guarantees. Bank counterclaimed. Three weeks before trial, appellants served notices of intention to act in person. They stated they would not be pursuing their claim and trial to proceed on counterclaim. Days before trial, however, appellants advised bank’s counsel they would be seeking adjournment to retain new counsel, explaining that they hoped to settle up to last minute. Appellant P produced doctor’s letter stating he was being treated for depression and could not participate in legal proceedings until his condition improved. His condition was long-standing but he obtained letter on day he filed notice of intention to act in person. Bank opposed adjournment. Trial judge refused adjournment, finding that trial had been scheduled for a year, it was appellants’ obligation to proceed expeditiously, it would likely be another year before another trial could be scheduled, appellants signified intention to act in person and had not taken any steps to consult with counsel in interim and P’s medical condition not raised until adjournment sought. Appellants did not call any evidence. Trial judge gave lengthy reasons for judgment. Appellants appealed, arguing trial judge erred in refusing adjournment by failing to consider all relevant circumstances. Appeal dismissed. Trial judge has discretion to decide whether adjournment request ought to be allowed or denied. Factors considered by trial judge justified her decision. Appellants gave notice of intention to act in person and had ample time to retain new counsel. Appellants were self-represented due to own decision to put off trial preparation in hope of settlement. Trial judge clearly considered nature of case, matters in dispute, appellants’ familiarity with issues and their relative sophistication. Issues were not complex and defence was entirely within appellants’ personal knowledge. Trial judge could reasonably conclude appellants would be capable of defending claim without assistance of counsel. Bank would be prejudiced by further delay of case already five years old. There was also public interest in efficient use of scarce judicial resources and in timely, efficient and fair resolution of trials. Trial judge properly took these factors into account.
Turbo Logistics Canada Inc. v. HSBC Bank Canada (Mar. 23, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C58073) Decision at 234 A.C.W.S. (3d) 800 was affirmed. 264 A.C.W.S. (3d) 85.


Opinion evidence

First Nations granted leave to file expert report and call expert as witness

First Nations commenced action against federal government in 1992 for relief for breach of fiduciary duty in making certain treaties in 1923. Federal government commenced third-party claim against provincial government. Parties engaged in negotiations until 2000. First Nations hired expert S to interview First Nations’ members to assist in identifying potential witnesses. Expert S interviewed 174 members of First Nations and began drafting expert report on First Nations’ oral history of treaties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations’ oral history of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S’s work. First Nations brought motion for leave to file expert M’s report and to call him as expert witness. Motion granted on terms. Comprehensive order was made regarding conduct of trial, including how expert M’s evidence was to be addressed. First Nations’ oral narratives recorded by expert S and analysed by expert M constituted both oral history evidence and hearsay evidence on treaties. Expert M was anthropologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M’s report was not. Expert M’s report was relevant and necessary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S engaged in research using academically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S’s work could be assessed through expert M’s expert testimony. Some First Nation interviewees would be available to testify and be cross-examined. In addition, federal and provincial governments identified archival oral history recordings that were also available for comparison. Various mitigative measures would adequately address much prejudice arising from late filing of expert M’s report.
Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1.


Income tax

Subsection 242(1) of Business Corporations Act (Ont.) does not authorize dissolved corporation to initiate civil proceeding.

Appellant was incorporated in 2000 pursuant to Business Corporations Act (Ont.) and dissolved in 2007. In 2010, Minister of National Revenue issued notice of assessment against appellant in respect of tax indebtedness of related corporation. Minister confirmed assessment when appellant objected. Appellant filed notice of appeal in Tax Court. Tax Court held that appellant lacked capacity to initiate appeal and adjourned appellant’s pending appeal to allow appellant to revive its corporate status. Appellant instead appealed Tax Court’s order. Section 242(1) of Act provides that civil, criminal or administrative actions or proceedings may be brought against corporation as if corporation had not been dissolved. Tax Court distinguished previous decisions on basis that Act was subsequently amended. Appeal dismissed. No distinction of substance between words “in the same manner and to the same extent as if it had not been dissolved” and “shall be deemed for all purposes to have never been dissolved”. Previous decisions, however, were no longer good law. Procedure differed significantly from that now in place and in place at time of decisions. It was no longer correct to say that filing of notice of appeal in Tax Court does not constitute initiation of legal proceeding. Fact that legal proceeding is directed against Minister’s assessment does not detract from conclusion that by filing notice of appeal in Tax Court, one institutes legal proceeding. Subsection 242(1) of Act does not authorize dissolved corporation to initiate civil proceeding. Tax Court did not err by adjourning appeal and requiring appellant to revive its corporate status so it could continue the appeal.
1455257 Ontario Inc. v. R. (Mar. 30, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Richard Boivin J.A., A-319-15) Decision at 254 A.C.W.S. (3d) 975 was affirmed. 264 A.C.W.S. (3d) 255.

Industrial and Intellectual Property


Appellants would not be prejudiced if respondents elected accounting of profits

Court allowed respondents’ appeal in part, finding that there was likelihood of confusion between appellants’ no-name cigarettes and respondents’ MARLBORO, especially in “dark market”, and therefore infringement of respondents’ trademark. Matter was referred back to judge, who allowed respondents to elect accounting of profits. Appellants appealed. Appeal dismissed. Judge turned his mind to restitutionary purpose of remedy as he weighed relevant factors. Judge clearly considered all of issues and evidence in concluding that calculation of damages was likely to be as complex as accounting of profits. Causal link had been established between damages suffered and use of their property by appellants. Court had determined that there was confusion and infringement, which was source of appellants’ unjust enrichment. Appellants would not be prejudiced if respondents elected accounting of profits in view of parallel litigation that had been initiated by respondents alleging infringement of their MARLBORO trademark. When either infringement proceeding or reference was ready to be heard, other proceeding could be stayed until decision was rendered.
Philip Morris Products S.A. v. Marlboro Canada Ltd. (Feb. 17, 2016, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Richard Boivin J.A., A-187-15) 264 A.C.W.S. (3d) 186.



Admitting evidence would not greatly undermine public confidence in rule of law

When police intercepted car driven by accused, latter attempted to flee police. Police rapidly got out of their car and asked several questions to accused who admitted that he did not have driver’s licence. Accused was arrested and charged with driving while prohibited by court order and with failure to comply with probation order. Accused unsuccessfully brought motion seeking to exclude evidence and was found guilty as charged. Accused appealed to Court of Appeal. Majority at Court of Appeal agreed with trial judge that evidence should not be excluded. Police officers were justified to take rapid actions when accused attempted to flee on foot. Admitting evidence would not greatly undermine public confidence in rule of law. Impact of breach on accused’s protected interest in informed choice was less significant. Evidence should not be excluded to preserve integrity of justice system. Rule against multiple convictions was inapplicable here because there were two separate criminal offences. Court of Appeal dismissed appeal. Accused appealed. Appeal was dismissed. Reasons given by majority at Court of Appeal were agreed with. Therefore, appeal should be dismissed.
R. c. Gagnon (Feb. 23, 2016, S.C.C., Cromwell J., Wagner J., Gascon J., Côté J., and Brown J., 36581) Decision at 124 W.C.B. (2d) 122 was affirmed. 128 W.C.B. (2d) 250.

Charter of Rights

Fundamental justice

Section 117 of Immigration and Refugee Protection Act (Can.) declared overbroad

Accused charged with human smuggling under s. 117 of Immigration and Refugee Protection Act. Section 117 prohibits organizing, inducing, aiding, or abetting persons to illegally enter Canada. Attorney General must authorize prosecutions pursuant to s. 117(4). Trial judge found that section was unconstitutionally overbroad. Court of Appeal allowed Crown’s appeal and found section constitutionally compliant. Appeal allowed. Section is overbroad in permitting prosecution of persons aiding family members or providing humanitarian aid. Ministerial discretion not to prosecute did not cure overbreadth. Crown had not shown that overbreadth was demonstrably justified. Appropriate remedy was to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance.
R. v. Appulonappa (Nov. 27, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35958) Decision at 113 W.C.B. (2d) 108 was reversed. 128 W.C.B. (2d) 236.

Charter of Rights

Right to counsel

Statutory compulsion to answer questions at border does not constitute detention

Border services officer was suspicious when accused told her that she had brought fruit juice into Canada and upon observing unusual behaviour of accused as she removed cans of fruit juice from her luggage. Officer conducted more intrusive inquiry and tested juice cans for drugs. Cans tested positive for cocaine. Accused was arrested for importing cocaine and officer gave accused caution and right to counsel. Accused sought to exclude statements to officer on basis that they were obtained in violation of ss. 7 and 10 of Charter. Statements admissible. There was no Charter breach. Statutory compulsion to answer questions at border does not constitute detention under s. 10(b) of Charter. Person is not detained when border official asks routine questions and conducts routine searches. Accused was not detained simply because of her look-out status and was subjected to same routine questioning and searches as anyone else referred for secondary inspection. Officer had strong particularized suspicion to warrant more intrusive form of inquiry after showing accused X-ray images of cans and accused asked “What’s in it?.” Only at that point was accused was detained and ss. 7 and 10(b) rights were engaged.
R. v. Sinclair (Feb. 3, 2016, Ont. S.C.J., Barnes J., CRIMJ(F)354/10) 128 W.C.B. (2d) 140.



Subjective and objective components of test for reasonable and probable grounds for arrest were established

Accused was convicted of possession of cocaine for purpose of trafficking, possession of marijuana for purpose of trafficking, and two counts of possession of proceeds of crime. Accused’s arrest was part of police investigation undertaken as result of information received from confidential informants that P, whose employee W lived in condominium building, was high-level drug dealer. Police entered building three times without search warrant. Information obtained during three entries was excluded under Canadian Charter of Rights and Freedoms. When P exited building on third occasion, he had blue and white box which surveillance team observed accused take from P’s vehicle. Accused unsuccessfully applied to exclude evidence of marihuana and cocaine found in box. Accused appealed convictions. Appeal dismissed. Police did not lack reasonable and probable grounds for accused’s arrest independent of evidence illegally obtained in building. Trial judge properly concluded that, even after excluding information gathered during warrantless entries into building, combined information from informants, totality of investigation, collective observations by police of accused’s vehicle and location, and interaction between accused and P, satisfied both subjective and objective components of test for reasonable and probable grounds for arrest.
R. v. Labelle (Feb. 8, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C58138) 128 W.C.B. (2d) 136.

Constitutional Law

Charter of Rights

Applicant was granted constitutional exemption from prohibition against physician-assisted death

Applicant, 81 years old with advanced-stage aggressive lymphoma, granted declaration that he satisfied criteria for constitutional exemption from prohibition against physician-assisted death. He was also granted declaration that circumstances of his death would not require notification to coroner under Coroners Act (Ont.). Applicant established he was competent adult person, had grievous and irremediable medical condition that was causing him to endure intolerable suffering which could not be alleviated by any treatment and he clearly consented to termination of life. Coroner need not be notified of applicant’s death because death would not be from a cause other than by disease nor would his death be circumstance that required investigation under Act.
B. (A.) v. Canada (Attorney General) (Mar. 17, 2016, Ont. S.C.J., Perell J., CV-16-00AD001-00ES) 263 A.C.W.S. (3d) 919.

Civil Procedure

Case management

Court could do nothing further to help self-represented plaintiff

Actions had long history and arose from 2000 motor vehicle accident. Plaintiff commenced actions against defendant driver and Statutory Accident Benefits action against her insurer. Plaintiff had been represented by many different lawyers throughout and actions had been subject to many motions throughout years. Capacity assessment was conducted and found plaintiff capable, though psychiatric disorders were identified. Tentative settlement was reached but plaintiff refused to conclude. Plaintiff’s counsel had withdrawn and plaintiff was now self-represented. Trial date was vacated to find amicus curiae, given court’s concerns with plaintiff’s ability to defend herself, but plaintiff’s relationship with amicus curiae had also irreparably broken down. Given plaintiff’s resolve to continue self-represented, court could do nothing further to help her, so matter was to proceed to scheduling trial, and defendant’s motion to dismiss for delay and plaintiff’s former lawyers’ motion for charging order, which had been adjourned, would also be scheduled.
Huang v. Braga (Feb. 11, 2016, Ont. S.C.J., T. McEwen J., 02-CV-223298 CM3, 06-CV-316408 PD1) 263 A.C.W.S. (3d) 902.

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