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Immigration

Refugee status

Minister’s position would work against clearly stated policy of family unity

Foreign national was citizen of Iran who became permanent resident of Canada upon her arrival in country on June 13, 2006. Foreign national was dependent of her husband, who was determined to be Convention refugee by visa officer overseas as he had well-founded fear of persecution based on political opinion. Under policy of family unity, foreign national, her husband, and their son became members of Convention Refugees Abroad class and were accepted without assessment. Foreign national returned to Iran on two occasions and minister sought cessation of her Convention refugee status on basis of s. 108(1)(a) of Immigration and Refugee Protection Act for voluntarily re-availing herself of protection of Iran. Refugee Protection Division panel concluded that it did not have jurisdiction to consider minister’s application to cessate refugee status of respondent pursuant to s. 108 of protection act because panel found that foreign national was not Convention refugee as contemplated in s. 95(1)(a) of act. Minister applied for judicial review on threshold jurisdiction issue of whether phrase “has been determined to be Convention refugee” in s. 95(1)(a) of act applied to foreign national as only then would RPD have jurisdiction to cessate her refugee status under s. 108(1) of act. Minister contended that foreign national was deemed to have been so determined by virtue of her acceptance in Convention Refugee Abroad class. Application dismissed. Chapter 10.2 of Citizenship and Immigration Canada processing manual OP 5 states that family members accompanying principal applicant who has been determined to be Convention refugee “derive their refugee status” from principal applicant. However, OP 5 does not have force of law and merely suggests that foreign national has refugee status, and does not say she “has been determined to be Convention refugee” as required by s. 95(1)(a) of act. It would be nonsensical to consider change to foreign national’s status in Canada simply because she visited a country in which her husband was found to be in danger, but in which she never claimed to be in danger. If foreign national’s refugee status were cessated, she would face loss of her permanent resident status under s. 46(1)(c.1) of act with all of the consequences that could have on her and her family. Applicable statutory and regulatory provisions would have to be clearer in order for minister’s position to prevail. Minister’s position would work against clearly stated policy of family unity.
Canada (Minister of Citizenship and Immigration) v. Esfand (Oct. 21, 2015, F.C., George R. Locke J., File No. IMM-1133-15) 259 A.C.W.S. (3d) 738.

Taxation

Goods and Services Tax

Services provided by facilities were “personal services” falling within definition of “homemaker services”

CH Ltd. and CT Ltd. were for-profit operators of residences for seniors (facilities). CH Ltd. and CT Ltd. entered into agreements with health authority for provision of services to facility residents. On assessment, claims by CH Ltd. and CT Ltd. for refunds of GST paid in error were denied. CH Ltd. and CT Ltd. claimed for refunds of GST paid in error on supplies of homemaker services provided by third-party contractors in course of operating facilities. Appeals allowed in part. Plain and ordinary meaning of “personal service” would clearly encompass services assistance with activities of daily living such as were provided to residents of both facilities due to their age, infirmity or disability. There was little ambiguity in words “personal service” and ordinary meaning of those words must play dominant role in their interpretation. “Personal service” in definition of “homemaker service” was not restricted to services similar in nature to examples that followed term “household or personal service” in definition provided in Excise Tax Act. Use of specific examples after general term in legislation does not restrict meaning of general term to cases similar to specific examples. Presumption is that in using specific examples, Parliament intended extension of meaning of general term to things that would ordinarily have been seen as not falling within general term. Use of word “or” between “household” and “personal” in term “household or personal service” supports view that Parliament intended to distinguish between household and personal services and intended to include services beyond those ordinarily considered household services. Fact that exemption for homemaker services falls within Part II of Schedule V of Act, which deals with health care services, is further contextual support for conclusion that assistance provided to elderly or infirm persons with activities of daily living would be included in concept of “personal service”, and would support conclusion that examples used in definition of “homemaker service” were included because they might not otherwise be considered as health care services. Contracts between third-party contractors and facilities clearly provided for supply of services including care services, hospitality services and housekeeping services. Services in issue were provided to residents in their place of residence, regardless of whether they were provided inside their units or rooms in other areas of premises. Since services provided by facilities were “personal services” falling within definition of “homemaker services”, it would follow that program under which health authority paid for those personal care services would be program in respect to homemaker services. Subparagraph 13(1)(b)(ii) of Act does not require that sole purpose of program under which funding is provided to fund homemaker services. It was only necessary to show connection between provincial continuing care program and provision of homemaker services by third-party contractors. Personal care services at facilities were funded as part of continuing care program partly administered by health authority. Health authority was administering government program in respect of homemaker services.
Courtyard Terrace Assisted Living Residence Ltd. v. R. (Nov. 5, 2015, T.C.C. [General Procedure], B. Paris J., File No. 2011-3419(GST)G, 2011-3420(GST)G) 259 A.C.W.S. (3d) 788.

Criminal Law

Breathalyzer

Automatic Roadside Prohibition scheme not minimally impairing right of driver to be free of unreasonable search and seizure

Automatic Roadside Prohibition (ARP) scheme calling for roadside analysis of drivers’ breath samples using approved screening device (ASD). “Fail” reading and driver’s refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was “driver” and whether ASD registered “fail”, “warn” or driver refused to provide sample. Drivers’ samples registered “fail” except G who refused to provide sample. Chambers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but concluded ARP scheme violates s. 8 only where ASD registers “fail”. Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is licensing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces’ role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create “offence” within meaning of Charter s. 11(d). Scheme concerns licensing drivers, enhancement of traffic safety and deterrence of impaired driving. Nor does scheme impose true penal consequences. While costs and penalties are significant and 90-day licence suspension is meaningful, they do not engage fair-trial rights. While demand to provide breath sample constitutes seizure that infringes individual’s reasonable expectation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of “fail” reading or failure to provide sample are not criminal. Given concerns whether ASD accurately reflects blood-alcohol readings, driver’s ability to challenge accuracy of ASD result is critical to reasonableness of ARP regime. Absence of meaningful review of accuracy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unreasonable search and seizure.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 237 A.C.W.S. (3d) 511 was affirmed.  259 A.C.W.S. (3d) 683.

Defences

INSANITY

Accused suffered from major mental disorder but knew act of killing was morally wrong

Accused stabbed two deceased women and attempted suicide as part of ritualistic suicide pact formed between three parties. Deceased and accused had formed and executed plan to obtain supplies and hotel lodging to carry out pact. Accused made statement to police following deaths describing pact and his role in killings of deceased. Accused claimed he was not criminally responsible on account of mental disorder for unlawful killings. Accused found criminally responsible and convictions registered for two counts of first degree murder. Accused had established he suffered from major mental disorder likely to be schizophrenia at time of killings. Cogent evidence of careful plan specifically designed to cause death belied assertion accused unable to appreciate nature and quality of act of killing deceased. Accused knew act was morally wrong in eyes of community as steps taken to conceal pact and accused admitted act was legally wrong. Appropriate to enter convictions for first degree murder given evidence of careful planning and deliberation to intentionally kill deceased.
R. v. Dobson (Jan. 15, 2015, Ont. S.C.J., D. Watt J., File No. Barrie 13-165) 125 W.C.B. (2d) 283.

Civil Procedure

CHANGE OF SOLICITOR

Counsel denied permission to withdraw mid-trial

Plaintiffs invested in defendant. Investment was failure due to failure to conduct due diligence and on defendant’s misrepresentation and oppressive conduct. Plaintiff sought to recover investment from defendant. Pursuant to engagement defendant undertook to become lawyers of record for plaintiffs in action and to prepare for and conduct trial of action. There was no suggestion of limited retainer in documentation. Plaintiffs failed to pay down retainer indebtedness. Defendant accepted security on two properties in amount of $250,000 during course of first stage of trial. Amount owing to defendant net of any unbilled time was just short of $250,000. Plaintiffs’ counsel sought permission to withdraw mid-trial. Motion dismissed. It was not feasible for plaintiff to properly advance issues in complex commercial litigation on his own. It was doubtful plaintiffs could retain alternative representation. Defendant failed to establish there was no or insufficient equity in security given. Permitting counsel to withdraw at this stage of proceedings would not only cause significant prejudice to clients but would bring administration of justice into serious disrepute. Complaints against defendant were well-founded in that its proposed retirement mid-trial on basis of non-payment of legal fees was improper and unprofessional.
Todd Family Holdings Inc. v. Gardiner (Oct. 23, 2015, Ont. S.C.J., McIsaac J., File No. Oshawa CV-11-76324) 259 A.C.W.S. (3d) 423.


Assessment

EXEMPTIONS

Rail lands were not exempt from taxation by municipalities

Municipality was sole shareholder of corporation that owned railway that ran through municipality and three other municipalities. Operation of railway was left to operator who paid nominal amount of $1 as rent annually. Various other terms regarding railway were specified in agreements between municipality, users’ group, and operator. Municipality’s rights under one agreement were assigned to corporation. Corporation paid municipal taxes to all four municipalities for rail line. Corporation brought application for declaration that it was exempt from payment of municipal taxes pursuant to s. 315(1)1 of Municipal Act, 2001, and for order that municipal taxes paid be refunded. Application dismissed. Rail lands owned by corporation were not exempt from taxation by municipalities pursuant to s. 315(1)1 of act. Exemption in s. 315(1)1 of act applied to “land leased by the railway company to another person for rent or other valuable consideration”. Collection of agreements did not grant quiet possession of rail lands to users’ group. Corporation retained rights that owner in possession might exercise. Rail lands were therefore not lands “leased” to users’ group within meaning of s. 315(1)1 of act. Collection of agreements, when read as whole, created business relationship that most resembled joint venture. Further, users’ group did not pay rent or other valuable consideration to corporation as those terms were used and intended under s. 315(1)1 of act. Arrangements between corporation and users’ group were implemented to ensure rail users had benefit of rail line to keep their business operations in municipality.
Orangeville Railway Development Corp. v. Mississauga (City) (Sep. 14, 2015, Ont. S.C.J., Emery J., File No. Orangeville 281/13) 259 A.C.W.S. (3d) 414.


Industrial and Intellectual Property

PUBLIC HEALTH

Minister implemented import ban motivated by improper purpose

Main applicant was largest pharmaceutical manufacturer in Canada and it purchased and imported into Canada active pharmaceutical ingredients and finished dosage form pharmaceutical products from other applicants, affiliated Indian companies. United States Food and Drug Administration inspected Indian applicants’ facilities and found they were non-compliant with good manufacturing practices requirements and it issued import alert on all products coming from Indian applicants except for products that were medically necessary. Newspaper began publishing articles and editorials that were critical of Health Canada and respondent Minister of Health. Minister imposed import ban preventing importation of drug products into Canada from Indian applicants’ manufacturing facilities and it also amended main applicant’s establishment licences to prohibit import of all products except those deemed medically necessary. Applicants applied for judicial review. Application granted. Minister acted for improper purpose and did not act in accordance with duty of procedural fairness when import ban was implemented and establishment licences were amended. There was no evidence that minister was concerned with immediate health risks posed by products subject to ban or that situation was highly urgent such that level of procedural fairness should be less. Regulatory regime and circumstances suggested that procedural fairness should have been given prior to import ban being implemented. Minister failed to provide any notice and denied main applicant opportunity to be heard before unilaterally imposing import ban. Minister did not act in accordance with natural justice. Applicants had not met burden of proving that minister demonstrated reasonable apprehension of bias from lack of independence or impartiality. Minister’s actions were ultra vires. Minister used proper statutory provision to add terms and conditions to main applicant’s establishment licences but in circumstances provision should include procedural fairness granted to establishment licence holders throughout rest of regulatory scheme, which required notice and reasons for addition of terms and conditions. Section 2(e) of Canadian Bill of Rights did not apply in circumstances. As minister implemented import ban that was motivated by improper purpose and without providing main applicant with procedural protections required by law, decision was not reasonable or correct and it must be quashed. Minister acted without jurisdiction in releasing statements to media and statements were to be retracted.
Apotex Inc. v. Canada (Minister of Health) (Oct. 14, 2015, F.C., M.D. Manson J., File No. T-2223-14) 259 A.C.W.S. (3d) 580.


Human Rights Legislation

HUMAN RIGHTS COMMISSION/TRIBUNAL

Tribunal had no jurisdiction to consider settlement between parties

In 2003, employee filed complaint with Canadian Human Rights Commission arguing Canadian International Development Agency’s practices regarding employment and harassment in workplace were discriminatory and violated s. 7 of Canadian Human Rights Act. In 2006, settlement occurred and hearing before tribunal was postponed indefinitely. In early 2007, commission sent letter to tribunal indicating that terms of settlement had been approved by commission pursuant to s. 48(1) of act. Tribunal then informed parties that file was closed. In 2010, commission applied to tribunal to start new mediation process as parties disagreed on interpretation to be given to settlement. In 2012, decision rendered by Federal Court held settlement was deemed to be order of Federal Court. Employee unsuccessfully brought motion before tribunal requesting that file be re-opened. Employee brought application for judicial review. Application dismissed. There was no jurisdiction. Employee wished to resolve ambiguity in settlement by statutory tribunal which was not party to settlement approved by commission, and was not party to order. Tribunal was statutory creature that had no jurisdiction to consider settlement between parties as administrative tribunal had no inherent jurisdiction, taking its existence and jurisdiction from act.
Rameau c. Canada (Procureur général) (Oct. 19, 2015, F.C., Yvan Roy J., File No. T-1992-14) 259 A.C.W.S. (3d) 534.


Taxation

TOBACCO TAX

Dismissal of application for judicial review of surcharge upheld on appeal

Store owner was member of First Nations band and lived on reserve where he operated store which sold tax-exempt cigarettes. Band imposed surcharge on cigarettes distributed through tobacco retailer agreement with province. Store owner’s application for judicial review of surcharge was dismissed. Trial judge found Federal Court did not have jurisdiction to consider application. Trial judge found band was not empowered by any federal legislation, rather, it made decision to allocate quota of tax-exempt cigarettes based on authority provided by Tobacco Tax Act. Trial judge found band’s imposition of surcharge was directly related to authority to administer and allocate quota of tax-exempt cigarettes under tax act and retailer agreement. Trial judge found imposition of surcharge had nothing to do with Indian Act. Decision to impose surcharge was not made by federal board, commission or tribunal as contemplated by s. 2(1) of Federal Courts Act. Store owner appealed. Appeal dismissed. No reviewable error in construing relationship between tobacco retailers and First Nation as one governed by private contract, and that as such, First Nation was not acting by or under federal law.
Des Roches v. Wasauksing First Nation (Oct. 28, 2015, F.C.A., Dawson J.A., Stratas J.A., and Yves de Montigny J.A., File No. A-573-14) Decision at 247 A.C.W.S. (3d) 724 was affirmed.  259 A.C.W.S. (3d) 593.


Charter of Rights

RIGHT TO COUNSEL

No basis to interfere with finding accused did not invoke his right to speak to counsel

Crown appealed decision overturning trial judge’s decision to dismiss accused’s application to exclude breath sample evidence on basis of breach of right to counsel and acquitting accused. Accused was sitting in his parked pick-up truck, out of gas at side of highway, when he was approached by two police officers, responding to earlier 911 call alerting them to accused’s erratic driving. Police formed reasonable suspicion that accused had been drinking and demanded he provide breath sample. Accused did so, and screening device registered fail. Upon arrest, police advised accused of his right to counsel using standard language from OPP issued card. Arresting officer asked accused: “Do you understand?” and accused answered: “Yes”. Arresting officer then asked accused if he wished to call lawyer now and accused replied: “No, not right now”. Accused was then taken to police station where he provided readings of 160. When accused was returned to arresting officer, that officer again asked whether accused wished to speak to counsel. Accused replied: “No, I have nothing to hide”. Accused did not ask to speak to lawyer at any point while in police custody. Appeal judge found that accused’s s. 10(b) rights had been breached because there was no unequivocal waiver of right to counsel, excluded breath sample evidence pursuant to s. 24(2) of Charter, and entered acquittal. Appeal allowed; conviction restored. Appeal judge erred in law by failing to first consider whether accused had invoked his s. 10(b) rights, because it is only in circumstances where detainee has invoked his rights that issue of waiver arises. Trial judge found as fact accused did not invoke his right to speak to counsel. This finding was open to trial judge on evidence and as result there was no basis for appellate interference. While arresting officer asked accused second time whether he wished to contact counsel, officer testified that it was his standard practice to ask more than once, and at no point did he believe accused wished to speak with lawyer. Trial judge indicated she did not believe accused’s explanation for why he declined to contact counsel when he was asked at police station. Further, trial judge found interactions between police and accused were polite and non-confrontational, that arresting officer did not mislead accused as to his rights, and accused was not confused.
R. v. Owens (Sep. 28, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59914) Decision at 118 W.C.B. (2d) 256 was reversed.  125 W.C.B. (2d) 150.
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