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Appeal

MOOTNESS

Whether minister could be forced to process permanent residence applications was no longer live controversy

Appellants applied for orders of mandamus to compel minister of citizenship and immigration to process applications for permanent residence under federal immigrant investor program under Immigration and Refugee Protection Act that had not been processed as fast as applicants wanted. Applications were dismissed. Appellants appealed. Appeals dismissed. Appeals were moot. Section 87.5 of act had come into force and its effect was to terminate all of applications of appellants in appeals. Controversy was whether minister could be compelled by mandamus to process applications that were outstanding at time that mandamus applications were made to, and heard by, judges. Enactment of s. 87.5 terminated all of applications under program and issue of whether minister could be forced to process applications was no longer live controversy.
Kearney v. Canada (Minister of Citizenship and Immigration) (Jun. 15, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Rennie J.A., File No. A-117-14) Decision at 237 A.C.W.S. (3d) 744 was affirmed. 254 A.C.W.S. (3d) 919.

Courts

JURISDICTION

Provincial superior courts have jurisdiction to address validity of child support guidelines where doing so is necessary step in resolving case otherwise properly before them

Appellants brought judicial review application in federal court seeking declaration that federal child support guidelines unlawful as not authorized by s. 26.1(2) of Divorce Act. Application judge held that given minor role Federal Court plays in issues under act and breadth of jurisdiction and expertise of provincial superior courts in matters related to divorce and child support, Federal Court was not appropriate forum in which to address validity of guidelines. Federal Court upheld application judge’s decision and appellants’ further appeal dismissed. Provincial superior courts can determine whether guidelines ultra vires and can decline to apply them if doing so is necessary step in resolving matters before them. Judicial review is discretionary; even if applicant makes out case for review on merits, reviewing court retains overriding discretion to refuse relief. Declarations of rights are similarly discretionary. Federal Court judges’ discretion in determining whether judicial review should be undertaken entitled to deference. One of discretionary grounds for refusing to undertake judicial review is that there is adequate alternative. Court should consider suitability and appropriateness of judicial review. Federal Court has discretion to rule on legality of guidelines but it declined to exercise that discretion. Alternative does not need to provide identical procedures or relief to be adequate. Determination of whether guidelines are based, as required to be, on s. 26.1(2) of act, will engage family law expertise in relation to, inter alia, nature and extent of obligation to maintain children and how relative abilities of parents to do so should be assessed, an area of law entrusted to provincial superior courts. It would be curious if legality of central aspect of regime were determined by federal courts which have virtually no jurisdiction with respect to family law matters. In addition, ruling in Federal Court would not be binding on provincial superior courts. Judicial review proceedings exclude direct adversarial participation; adjudicating issue in context of act or child support proceedings would ensure full participation of parties. Judicial review in Federal Court is manifestly inappropriate; provincial superior courts have jurisdiction to address validity of guidelines where doing so is necessary step in resolving case otherwise properly before them.
Strickland v. Canada (Attorney General) (Jul. 9, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35808) Decision at 244 A.C.W.S. (3d) 341 was affirmed. 254 A.C.W.S. (3d) 838.

Taxation

INCOME TAX

Taxpayer had predominant intention to make profit

Taxpayer had been sports journalist who had written sports blogs as part of his employment. After taxpayer’s employment ended in 2011, he started his own sports blog on professional website with view to obtaining advertisement revenue from sponsors. Taxpayer continued to travel to sports team’s games and deducted travel expenses. Taxpayer claimed no gross income and business loss of $26,540 in 2011, and gross income of $7,500 but net business loss of $33,366 in 2012. Minister of National Revenue denied taxpayer’s business losses on ground that taxpayer did not conduct any business activities. Taxpayer appealed. Appeals allowed. While there was commercial aspect of taxpayer’s venture, there was also personal element for sports fan to travel to watch sports team play and blog about it. Taxpayer had over 20 years’ experience as sportswriter but no experience in selling advertising or running media business. Taxpayer did nothing to solicit sponsors but was able to obtain one sponsor. While taxpayer’s intended course of action was poor business judgment, it was not so devoid of commercial reasoning to conclude venture was personal. Taxpayer did not provide evidence to assess venture’s capability to make profit. Given early stage of venture, it was found to go beyond hobby. Taxpayer had predominant intention to make profit and behaved in reasonable businesslike manner to pursue that end, while in start-up phase.
Berger v. R. (Jun. 19, 2015, T.C.C. [Informal Procedure], Campbell J. Miller J., File No. 2014-4251(IT)I) 254 A.C.W.S. (3d) 232.   

Mental Illness

DEFENCE

Accused proved defence of not criminally responsible on balance of probabilities

Accused appealed conviction on two counts of second degree murder. Accused stabbed to death two strangers in parking lot of shopping plaza. Accused was 28 years old, lived with his mother, and had been unemployed for three years. Accused testified that on day in question, he left his house with two knives with intention of committing suicide. Accused engaged in problematic behaviours at mental health institution, including muteness, atrocious personal hygiene, and deliberate collecting and spreading of urine and feces, and, although initially found to be unfit to stand trial, he was eventually found to be fit. Accused was assessed second time just prior to trial to determine whether he qualified for defence of not criminally responsible and, while he displayed negative symptoms, he did not describe any positive symptoms, such as hallucinations. Psychiatrist determined that accused was most likely suffering from schizophrenia, but that there was nothing in his history that would have led to conclusion that accused had s. 16(1) Criminal Code defence available to him. Psychiatrist testified that he could not opine on balance of probabilities that accused’s major mental illness had been so severe and his thought processes so disorganized as to displace presumption of sanity. Defence counsel visited accused at penitentiary to prepare for appeal and formed lay opinion that he was suffering from mental disorder. Forensic psychiatrist subsequently concluded that accused was seriously mentally ill, suffering from schizophrenia, catatonic type. Accused was transferred to mental health centre for 60-day post-conviction assessment. Psychiatrist concluded that accused currently suffered from schizophrenia and that he was severely mentally ill prior to index offences and at time of index offences. Psychiatrists concluded that accused did meet test for s. 16 of Code at time of offences, and that presumption of criminal responsibility at time of offences could have reasonably been displaced. Accused argued that he was not criminally responsible at time of killings, and sought to introduce fresh evidence on appeal. Appeal allowed, convictions set aside, verdict of not criminally responsible substituted. Fresh evidence met Palmer criteria. Evidence was not available prior to trial, bore on accused’s not criminally responsible defence, was credible, cogent, and reliable, and it could reasonably have affected outcome of trial. Although circumstances of offence were horrific, evidentiary record was complete. Evidence of all three psychiatrists was strong, uncontradicted, and consistent. Accused had proved defence of not criminally responsible on balance of probabilities.
R. v. Palmer (May. 12, 2015, Ont. C.A., K. Feldman J.A., Janet Simmons J.A., and S.E. Pepall J.A., File No. CA C53234) 122 W.C.B. (2d) 46.

Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT

Section 745.51 of Criminal Code did not contravene ss. 12 and 7 of Charter

Accused was convicted of two counts of second degree murder. Accused applied for constitutional declaration that s. 745.51 of Criminal Code was null and void because it contravened ss. 12 and 7 of Charter. Application dismissed. Judicial power to impose consecutive periods of parole ineligibility for subsequent murder or murders was discretionary, not mandatory. Judge’s order as to parole ineligibility for multiple murders had to be guided by fundamental principle that sentence had to be proportionate to gravity of offence and degree of responsibility of offender, as well as principle of totality. Assuming that parole ineligibility order was fit and just, by definition, it could not constitute cruel and unusual punishment, which required that order be grossly disproportionate to particular circumstances of offence and offender. It was open to Parliament to arm judiciary with discretionary power to impose consecutive periods of parole ineligibility for multiple murders beyond period of twenty-five years of imprisonment in cases where circumstances of offences and offender merited enhanced period of parole ineligibility. Number of murdered victims was most relevant factor in determining what was fit and just length of imprisonment prior to right to have parole hearing. Issue before court was not whether Parliament made wise policy choice in investing discretionary power with judiciary, but whether legislative provision passed constitutional muster. If order of parole ineligibility for multiple murders was unduly long or harsh, it would have constituted error in sentencing principle subject to correction by appellate court. It was undoubted that period of forty years of parole ineligibility sought by Crown would not have constituted cruel and unusual punishment. Accused had criminal record, was long-time drug dealer, and was facilitator of illegal handguns. Accused executed two victims in discharging 14 shots at them in crowded public food court, and wounded four other victims, including young teenager shot in head. Accused failed to establish s. 12 Charter breach. Question fell to be determined under s. 12 of Charter, which dealt specifically with cruel and unusual punishment, real constitutional issue at hearing, whereas s. 7 of Charter was general provision. Accused failed to establish s. 7 Charter breach.
R. v. Husbands (Apr. 16, 2015, Ont. S.C.J., Ewaschuk J., File No. null) 122 W.C.B. (2d) 21.

Employment Law

WRONGFUL DISMISSAL

Defendant did not establish that disclosure of memoranda was departure from established standards of business ethics

Plaintiff was investment professional and was employed by defendant for eight years. Plaintiff was director in defendant’s capital division at time of termination. In performance review plaintiff was rated consistently as above average. Plaintiff had unblemished record of achievement with defendant. Plaintiff provided specific precedents for private placement memoranda (“PPMs”) for distressed debt funds to friend. Plaintiff attended half hour meeting with defendant. Plaintiff had no notice of meeting. At meeting plaintiff was summarily dismissed from his employment with defendant allegedly for cause. Defendant asserted plaintiff breached written Code of Conduct and principles of ethical business dealings in disclosing PPM. Defendant advised team of plaintiff’s departure and told team plaintiff disclosed confidential information memorandum (“CIM”). Defendant considered CIM and PPM to be interchangeable. CIMs and PPMs were marketing documents designed to promote investment interest. Most of information in PPM could be pieced together from other sources and market research, but most of sensitive information in CIM was not available in public domain and could not be obtained through legitimate market research. Plaintiff did not consider PPM confidential. Plaintiff asserted defendant never treated PPMs as private confidential documents; never signed confidentiality agreements in respect to PPMs; and treated them much like prospectus, which was publicly filed document. Plaintiff sought damages. Claim allowed. Plaintiff’s employment was terminated without cause and appropriate notice period was 15 months. Defendant did not establish that PPM was confidential. Defendant did not establish that plaintiff breached Code of Conduct in providing PPM to friend. Defendant did not establish that disclosure of PPM was departure from established standards of business ethics. There was no legal cause to termination of plaintiff’s employment without notice. It was not appropriate to sanction defendant with award of aggravated damages. Defendant made it more difficult for plaintiff to find alternative employment, delayed his re-employment and contributed to conditions that led plaintiff to take employment in China. Plaintiff discharged his duty to mitigate damages.
Lin v. Ontario Teachers’ Pension Plan Board (Jun. 1, 2015, Ont. S.C.J., D.L. Corbett J., File No. CV-11-430085) 254 A.C.W.S. (3d) 113.

Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY

Insofar as by-law gave city control over installation of community mailboxes, it was invalid or inoperative

Applicant, federal Crown corporation, decided to convert to community mailboxes. Respondent city passed by-law that effectively stopped applicant’s implementation of transition from mail delivery to private homes to that of community mailboxes. Applicant maintained that, insofar as by-law gave city control over installation of community mailboxes, it was invalid or inoperative. Application granted. By virtue of its vagueness and uncertainty, by-law was inapplicable, inoperative or otherwise without effect in respect of community mailboxes. Community mailbox was within ambit of Mail Receptacle Regulation (Ont.). By-law would give city final say of location of community mailboxes after permit application process that had no relationship to temporal exigencies that faced applicant. Insofar as by-law sought to create permit application process determining location of community mailboxes, it was of no effect. By bringing in location of community mailboxes within permit application process, pith and substance of by-law was encroaching upon exclusive domain of applicant and was ultra vires city’s jurisdiction. By-law was significant serious restriction of applicant’s federal power to locate receptacles where it deemed appropriate, as part of mandate to receive, store and distribute mail. By-law was inapplicable and inoperative or without effect in respect of applicant’s community mailboxes.
Canada Post Corp. v. Hamilton (City) (Jun. 11, 2015, Ont. S.C.J., Whitten J., File No. 15-52723) 254 A.C.W.S. (3d) 205.

Admiralty

JURISDICTION

Court had jurisdiction over port authority’s denial of container truck licenses

Respondent port authority was established pursuant to Canada Marine Act (“CMA”). Respondent created and implemented new Trucking Licensing System (“TLS”) in response to recent work stoppages. Governments of British Columbia and Canada also introduced/amended legislation to regulate container trucking industry in response to turbulent history at port. Container Trucking Act (B.C.) contained licensing and rate regime for container trucks and s. 31.1 of Port Authorities Operators Regulations (Can.) provided respondent not permit truck to access port for transporting containers unless it was acting for person with authorization from respondent and provincial license. With advent of new scheme, respondent gave notice that all authorizations were terminated and those unsuccessful under new TLS process would no longer have access to port. Respondent published handbook with instructions on applying under TLS and criteria for assessment. Applicants received letters stating their applications had been denied and applied for judicial review. Motion by respondent to dismiss judicial review application on basis Federal Court lacked jurisdiction and applications were out of time. Motion dismissed. Respondent was exercising its authority under s. 28(2)(a) of CMA, namely port activities related to supply, transportation, handling and storage of goods. By denying or granting licenses, respondent was denying applicants access to port to transport goods in and out, so was acting as Federal Board, Tribunal or Commission within meaning of ss. 2, 18, 18.1 of Federal Courts Act (Can.). Letters sent to applicants stated applications had been reviewed and rejected, which was sufficient to find reviewable decision had been made. Applicants were challenging decisions to deny licenses, and brought application for judicial review within 30 days of decisions; while decisions were based on earlier-issued handbook, applicants were not challenging handbook itself.
ATL Trucking Ltd. v. Vancouver Fraser Port Authority (Apr. 8, 2015, F.C., Russel W. Zinn J., File No. T-196-15, T-192-15) 254 A.C.W.S. (3d) 8.

Charter of Rights

FUNDAMENTAL JUSTICE

Merger provisions regarding youth and adult sentences did not offend Charter

Accused was inmate who had committed offence as youth, was convicted for it, and received sentence under youth offenders’ regime. Accused also committed offence as adult, was convicted for it, and received sentence to be served consecutively under adult offenders’ regime. To ensure that offender is subject to only one regime, Parliament had passed merger provisions. Together, two merger provisions converted remaining portion of youth sentence into adult sentence and merged two sentences together. When he was 17-and-half years old, accused committed second degree murder. Accused received seven-year youth sentence for murder: four years in custody with regular reviews, and three years in community under supervision. Roughly two-and-half years into custodial portion of his youth sentence, accused pleaded guilty to charge of conspiracy to commit robbery and received four-year consecutive adult sentence. Sentence manager at Institution calculated accused’s period of incarceration and times when he was eligible for various forms of conditional release from prison. Accused sought judicial review of that decision, submitting that merger provisions offended his rights under Canadian Charter of Rights and Freedoms and, thus, were of no force or effect. Federal Court dismissed accused’s application for judicial review and accused appealed. Appeal dismissed. Merger provisions did not offend Charter. Merger provisions made accused eligible for unescorted temporary absences from prison three weeks earlier than his release under supervision in community for youth sentence. To extent merger provisions disadvantaged accused, disadvantage was triggered by his own misconduct as adult. Only most important, basic values rooted in our time-honoured practices and understandings can possibly qualify as principles of fundamental justice. Unfairness in colloquial sense, freestanding policy views, or generalized views of what is proper, all matters in eye of beholder, cannot qualify as principles of fundamental justice, nor can they perform any part in their discernment or application. Today’s merger provisions created certainty and order by applying one clear rule to all. Accused’s seven-year sentence as youth offender remained at seven years. Only conditions of sentence changed and changes in conditions of sentence do not implicate principles of fundamental justice. Merger provisions created certain disincentives, applying only when person commits offence as adult and is sentenced for it while serving youth sentence. In many circumstances mitigation may be possible at time of adult sentencing.
Erasmo v. Canada (Attorney General) (May. 20, 2015, F.C.A., David Stratas J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-518-14) Decision at 118 W.C.B. (2d) 549 was affirmed.  122 W.C.B. (2d) 24.

Sale of Land

AGREEMENT OF PURCHASE AND SALE

No agreement to sell immovable was concluded, brokerage enterprise not entitled to commission

Sellers signed standard form exclusive brokerage contract giving brokerage enterprise a mandate to sell their immovable. Contract provided that obligation to pay brokerage enterprise’s commission would be triggered, inter alia, when “agreement to sell the immovable” was concluded during term of contract or if “the seller voluntarily prevents the free performance of the contract”. Promise to purchase initially accepted by sellers gave buyer a right to withdraw promise if not completely satisfied with due diligence results. When it was discovered that immovable might be affected by environmental contamination, buyer attempted to impose condition that sellers decontaminate immovable at their expense. Sellers refused and sale did not go through. Sellers refused to pay commission to brokerage enterprise. Superior Court dismissed brokerage enterprise’s action but Court of Appeal allowed brokerage enterprise’s appeal. Sellers appealed. Appeal allowed. Promise to purchase is binding on parties as soon as it is concluded but until it is possible for one party to bring action to compel transfer of title, there is no “agreement to sell the immovable” within meaning of brokerage contract. Once environmental assessment disclosed that soil was contaminated, buyer clearly expressed intention not to conclude sale until property decontaminated at sellers’ expense. Buyer therefore repudiated initial promise and submitted new offer to purchase. No agreement to sell immovable was concluded and brokerage enterprise not entitled to commission. Nor was payment of commission triggered by sellers voluntarily preventing free performance of brokerage contract. Under contract, sellers did not have obligation to decontaminate property or renegotiate terms of initial promise to purchase. Although brokerage contract contained sellers’ declaration that immovable was in accordance with environmental protection laws and regulations, declaration could not, on its own and in absence of bad faith, serve as basis to argue that sellers voluntarily prevented free performance of contract. Accepted promise to purchase is not a sale and does not produce any of effects of a sale. Sellers committed no fault in relation to obligations under promise to purchase or brokerage contract.
Société en commandite Place Mullins c. Services immobiliers Diane Bisson inc. (Mar. 18, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Wagner J., Gascon J., and Côté J., File No. 35461) Decision at 236 A.C.W.S. (3d) 779 was reversed.  254 A.C.W.S. (3d) 87.
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