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Appeal

FRESH EVIDENCE

Trial judge outlined concerns about implausibility of accused’s testimony

Accused appealed her conviction for importing cocaine. Charge of importing related to accused’s arrest when she returned to Canada from week in Panama. About two pounds of cocaine were discovered in her suitcase. Accused maintained that she had no knowledge that cocaine was in her possession. Accused travelled to Panama with man who paid her $2,000 to accompany and entertain him for week. That man also paid for her airfare and accommodations. According to accused, while in Panama, she and man she was with met up with woman named “Nancy” who spent time with them during their stay there. Prior to accused’s return to Canada, that woman asked accused to carry some clothes and souvenirs for her back to Canada and accused agreed. Accused testified that as she and man were packing their suitcases, he asked her to transport bottles of what appeared to be health care products and accused agreed. Upon arrival in Canada, accused was searched at customs. Cocaine was discovered in health care bottles and accused was arrested. Accused sought to admit fresh evidence, which consisted of photographs of woman said to be “Nancy” taken from camera found in accused’s possession at time of her arrest. Accused asserted that it is relevant because trial judge disbelieved her testimony about Nancy, including fact of Nancy’s existence, and this was significant reason why he rejected her evidence as whole. Application denied. Rather than disbelieving accused on basis that Nancy did not exist, trial judge considered accused’s entire account of her relationship with Nancy. Trial judge outlined his concerns about implausibility of accused’s testimony relating to Nancy: accused made no inquiry and had no knowledge of Nancy’s prior connection to man accused was with in Panama, she was unaware of Nancy’s surname, she gave no thought to effect of taking shoes and other items from Nancy on maximum weight allowance for her luggage, and vagaries of any plan to return items to Nancy. Court agreed with Crown that nature of fresh evidence, photographs of woman only accused could identify as Nancy, related to non-essential aspect of accused’s testimony at trial. Nancy was merely part of accused’s story that trial judge found did not make sense. Photograph of woman purporting to be Nancy would not have rectified implausibility of accused’s testimony. Trial counsel, in cross-examination on her affidavit, said that she made decision not to tender photographs into evidence at trial as it was her view that they were unnecessary and of no value. Trial counsel was correct.
R. v. Harris (Oct. 27, 2014, Ont. C.A., E.A. Cronk J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C55199) Decision at 98 W.C.B. (2d) 706 was affirmed. 117 W.C.B. (2d) 369.

Administrative Law

JUDICIAL REVIEW

Court did not have inherent jurisdiction to require respondent to produce record

Applicant filed complaint of professional misconduct against engineer and his company with respondent association. Respondent’s complaints committee determined there was no evidence of professional misconduct of significant nature and decided not to refer complaint to discipline committee. Applicant commenced application for judicial review and asked respondent to file record of proceedings or, alternatively, provide to him all documents relating to investigation, proceeding and decision so that he could do so. Respondent denied request, claiming no record needed to be filed. Applicant brought motion for order requiring respondent to disclose above-noted documents including complaint summary, response and other documents referred to in decision, all evidence and submissions provided by anyone other than himself, any internal notes and memoranda, all audio recordings, including voicemail, all communications, including letters and e-mails, witness interview notes and any other relevant documents. He claimed court could not conduct proper judicial review of either investigation or decision without those documents. Respondent submitted that if any record was necessary, it should consist only of complaint form and materials filed by applicant, documents before complaints committee at time decision made, and that were not privileged, and reasons for decision itself. Motion denied. Under s. 24(1) of Professional Engineers Act (Ont.) (PEA), complaints committee required to conduct proper investigation of complaints. Under s. 24(2) of Act, it was permitted, not required, to refer complaint to discipline committee. In absence of mandatory language, decision to not refer did not constitute statutory power of decision. Section 10 of Judicial Review Procedure Act (Ont.) (JRPA), did not, therefore, apply to require decision maker to file record of proceedings. Court did not have inherent jurisdiction to require respondent to produce record in absence of statutory power of decision. Respondent should not be required to provide anything more than material already mentioned.
Harrison v. Assn. of Professional Engineers of Ontario (Nov. 12, 2014, Ont. S.C.J., Robert N. Beaudoin J., File No. 14-1999) 247 A.C.W.S. (3d) 2.

Immigration

PERSON IN NEED OF PROTECTION

Decision was unreasonable as process of critical analysis not followed

Refugee claimant was Roman Catholic Christian citizen of Bangladesh who alleged fear of persecution by Muslim extremists. Claimant alleged that on way home from church he had been accosted by five Muslim men, one of whom had extorted money from him previous year. Claimant alleged that men identified themselves as being members of Muslim extremist group and that they threatened him and berated him for promoting Christianity and denigrating Islam. RPD found that men were only interested in extorting money from claimant, and that claimant lacked credibility because he had not sought advice or assistance from priest. RPD denied claim. Claimant applied for judicial review. Application granted; decision under review set aside and matter referred back for redetermination by differently constituted panel. Claimant had given clear, direct evidence that he did not seek assistance from priest because priests had suffered from getting involved in these disputes. RPD’s implausibility finding was unsupported speculation, and therefore decision under review was made in reviewable error that rendered it unreasonable. RPD was required to find what might reasonably be expected of Christian in Bangladesh who suffered incident of religious persecution and extortion by extremist Muslim men, make findings of fact about claimant’s response and conclude whether response conformed with what might be reasonably expected. As this process of critical analysis was not followed, decision was unreasonable.
Rozario v. Canada (Minister of Citizenship and Immigration) (Nov. 4, 2014, F.C., Douglas R. Campbell J., File No. IMM-4349-13) 247 A.C.W.S. (3d) 178.

Courts

JURISDICTION

Absence of formal order should not be impediment to right to have findings reviewed

Court had to determine if it had jurisdiction to hear appeal from Further Reasons in light of fact that no formal order was rendered by judge. In 2007, Canadian Security Intelligence Service (CSIS) applied to Federal Court to obtain warrant to assist in investigation of threat-related activities CSIS believed individuals would engage in while travelling outside of Canada. Justice dismissed warrant application on basis that Federal Court did not have jurisdiction to authorize CSIS employees to conduct intrusive investigative activities outside of Canada in circumstances where activities authorized by warrant were likely to constitute violation of foreign law. In 2009, CSIS asked Federal Court to revisit and distinguish justice’s 2007 decision. Another judge was persuaded to issue warrant authorizing CSIS to intercept foreign telecommunications and conduct searches from within Canada. Judge reached this conclusion based upon legal argument different from that before first justice and upon description of facts concerning methods of interception and seizure of information different from that put before first justice. Another judge issued order requiring counsel for both Communications Security Establishment Canada and CSIS to appear before him. Judge was of view that information that had been before justice in 2007 application was not presented to Federal Court in 2009 application or in any subsequent application for Domestic Interception of Foreign Telecommunications and Search (DIFTS) warrant. Judge concluded that CSIS breached its duty of candour by failing to disclose to Federal Court in DIFTS warrant applications that it intended to make requests to foreign agencies to intercept telecommunications of Canadians abroad and that CSIS had no lawful authority under s. 12 of Canadian Security Intelligence Service Act to make such requests and s. 21 of Act did not allow court to authorize CSIS to request that foreign agencies intercept communications of Canadians travelling abroad. Judge made going forward directions of disclosure to courts. No order was issued by judge and he denied request by Attorney General that order issue reflecting judge’s views. Court determined it had jurisdiction to hear appeal. Proceeding before judge had character of generalized inquiry as opposed to continuation of warrant application. Given this and significance of judge’s finding that CSIS had repeatedly failed in its duty of candour, absence of formal order should not be impediment to appellant’s right to have judge’s findings of fact and law reviewed. Findings were declaratory in nature. They were of such importance that they could not be immunized from review.
X, Re (Jul. 31, 2014, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and Robert M. Mainville J.A., File No. A-145-14) Decision at 111 W.C.B. (2d) 847 was affirmed. 117 W.C.B. (2d) 364.

Motor Vehicles

SPEEDING

Offence notice failed to describe manner in which notice was to be delivered

Accused applied for leave to appeal judgment dismissing his appeal from conviction for speeding. Accused was served with offence form on January 30. Accused applicant’s notice was received on February 18, but conviction was entered by justice of peace on that date. On Feb. 28, 2014, accused received letter dated Feb. 24, 2013, which stated that his request for trial date was received after 15 day period had lapsed and conviction had been registered. Central issue concerned calculation of period of time for him to file his notice of intention to appear in court, before he could be “deemed not to dispute” charge. Accused argued his conviction was premature based on application of R. 4 of Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings (“Regulation 200”). Provincial Offences Appeal judge rejected applicability of R. 4. Judge found that person issued speeding ticket is strictly responsible for effecting delivery of “exercise of option” within 15 days. Leave to appeal granted; conviction stayed pending appeal. It was arguable that period of “at least” 15 days under s. 9(1)(a) of Provincial Offences Act (Ont.) should have excluded January 30, day of service, and February 14, 15th day. February 15, 16 and 17 should have also been excluded from calculation of “at least 15 days” from date of service. Accordingly, last day for delivery of Offence Notice was arguably Tuesday, February 18, day of accused’s conviction. It appeared therefore, that accused’s appeal on this ground may have had some merit. Offence Notice received by accused, which appeared to have been standard form, did not specify manner of delivery, other than to identify address of court office. Arguably, Offence Notice did not comply with statute because it failed to describe manner in which notice was to be delivered, if it was sent by mail. Appeal raised issues concerning application of Regulation 200 and calculation of time limits there under, and compliance of prescribed form with Act. Based on its plain and unambiguous meaning, R. 5 merely allowed individuals to safely assume receipt date of notices delivered by mail. It did not affect notice deadline: accused’s argument on R. 5 rejected.
R. v. Hicks (Oct. 29, 2014, Ont. C.A., G.R. Strathy C.J.O., In Chambers, File No. CA M44141) Leave to appeal from 115 W.C.B. (2d) 611 was allowed.  117 W.C.B. (2d) 284.

Extraordinary Remedies

MANDAMUS

Justice had absolutely no business or jurisdiction to quash this certificate of offence

Regional Municipality applied for order of mandamus and certiorari against order of justice of peace quashing Certificate of Offence for failure to specify section of Highway Traffic Act (Ont.) (HTA) prohibiting offence of speeding. Certificate did allege offence of speeding 70 kms in 60 kms zone and that it was contrary to HTA. Justice of peace quashed Certificate of Offence because it failed to include section of HTA for speeding. No reasons for this disposition were recorded other than “no section number for offence.” Application allowed. Cursory internet or library search would have quickly cured this defect and accused was deemed not to dispute charge. Because justice of peace was dealing with this Certificate of Offence pursuant to s. 9(2) of Provincial Offences Act (Ont.) (POA) as result of this ademption, she was required to determine in her office without benefit of submissions from either side whether it was complete and regular on its face. Without benefit of any reasons, justice concluded that it was not. Despite this deficiency, it was evident that justice did so in face of not only compelling, but binding, authority to contrary. If justice was not aware of this authority, she should have been. Justice had absolutely no business or jurisdiction to quash this “perfectly good certificate of offence”. Case was yet another in long line of hyperactive and inappropriate interventions by justice of peace in this region and elsewhere in province that continually permitted form to trump over substance. These inappropriate interventions had not only created certain degree of chaos in Provincial Offences Court, they also displayed profound misunderstanding of role of stare decisis in our legal system. Once Superior Court has spoken on issue, lower courts are bound to follow those dictates whether they like them or not. This, of course, includes justices of peace of this province, especially so in context of their extraordinary ex parte deliberations exercised pursuant to s. 9(2) of POA where they enjoyed ungoverned and unobserved scope to quash proceedings.
York (Regional Municipality) v. Martinez (Oct. 29, 2014, Ont. S.C.J., McIsaac J., File No. Newmarket CV-14-117733-00) 117 W.C.B. (2d) 285.

Agency

EXISTENCE OF RELATIONSHIP

Parties intended for defendant to be personally liable for obligation

Plaintiff hired defendant and agreed to help him buy a house where he would be working. Plaintiff advanced funds. Defendant signed agreement to be personally liable to repay majority of funds if he did not stay in plaintiff’s employ for five years. Defendant left plaintiff before five years ended. Defendant gave plaintiff post-dated cheques to repay amount advanced but bank returned one of cheques NSF. Plaintiff sued for balance owed. Defendant asserted he signed loan agreement as witness for his holding company, shielding him from liability to repay money. Plaintiff brought motion for summary judgment. Motion granted. Nature and content of loan agreement and circumstances in which it was signed established that defendant in signing below name of his corporation showed that parties intended for him to be personally liable for obligation agreement entailed. Where person’s signature appeared immediately above or below name of his corporation without another signature on document, and without clear indication that person was signing in representative capacity only, instrument was deemed to be ambiguous and court was to look to other evidence from nature and content of document and circumstances in which it was signed to determine whether parties intended signer to have personal liability for obligations in it. Defendant additionally assumed personal liability by authorizing corporation as his agent to enter into loan agreement on his behalf and to undertake that he would be personally liable to repay balance of funds he received. Defendant represented to plaintiff that corporation had authority to enter loan agreement on his behalf. Plaintiff was induced to advance funds to defendant by his representation that corporation was authorized to enter into loan agreement on his behalf and his acknowledgement that he would be liable to repay balance of funds advanced. Defendant was estopped from denying his personal liability having regard to fact that plaintiff relied on his promise to its detriment and to his benefit by advancing funds to him.
H.S.C. Aggregates Ltd. v. McCallum (Oct. 31, 2014, Ont. S.C.J., Price J., File No. Owen Sound CV-112-SR) 246 A.C.W.S. (3d) 819.

Admiralty

SHIPS

Defendant’s actions in reselling vessel to third party was high-handed act

Plaintiff wished to purchase boat from defendants. Offer to purchase was signed by plaintiff and personal defendant who used his own initials without indicating he was acting on behalf of corporate defendant. Offer was conditional on plaintiff being satisfied with inspection and sea trial. Personal defendant had same rights as regards plaintiff’s trade-in vessel. Plaintiff completed inspection and provided acknowledgement of acceptance of vessel. Personal defendant did not conduct inspection or provide acknowledgement. Personal defendant indicated he did not wish to proceed with sale because he was unable to obtain necessary financing. Personal defendant asserted value of trade-in vessel was far less than amount indicated in offer to purchase. Purchase did not close. Vessel was sold to another purchaser for better price two days prior to personal defendant signing rejection of trade-in vessel. Plaintiff sold his trade-in vessel and found comparable vessel to purchase that cost much more. Plaintiff asserted defendants breached contract by failing to conduct inspection and by failing to close purchase and sale due to financing difficulties although such was not condition of contract. Plaintiff asserted that personal defendant signed contracts and not corporate defendant and personal defendant was liable for damages. Personal defendant was owner of corporate defendant. Plaintiff was entitled to damages of $212,536 and to punitive damages of $25,000. There was binding enforceable contract that was breached by defendants. Parties agreed to their bargain and there was offer, acceptance and consideration. Personal defendant did not satisfy condition of inspecting trade-in vessel and to act in good faith in so doing. Contract was not subject to defendant’s financing needs and such provision could not be now imported or implied into contract. Values of vessels were already agreed upon in written contract and only inspection remained. Defendants failed to act pursuant to contract, failed to satisfy condition and did not act reasonably or in good faith. Plaintiff took reasonable steps to mitigate damages. Defendants’ actions in reselling vessel to third party prior to advising plaintiff that contract in defendants’ mind was terminated was high-handed act.
Proulx v. Canadian Cove Inc. (Nov. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-11-434847) 246 A.C.W.S. (3d) 740.

Customs and Excise Offences

GENERAL

Actual possession restricted to physical possession

Plaintiff and wife were catching flight to St. Martin when they were stopped by Canadian Border Services Agency officer. They told officer they did not have cash in amount of $10,000 CAD or more. Search revealed that plaintiff was carrying currency worth $13,820.69 CAD. Officer seized funds and penalized plaintiff $2,500 before letting him leave with balance of funds. Plaintiff believed that he did not need to report money since he and his wife jointly owned it. Plaintiff appealed. Minister’s delegate affirmed officer’s decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) had been violated and penalty was appropriate. Plaintiff appealed. Appeal dismissed. Term “actual possession” in s. 12 of Act did not imply ownership. Word “actual” excluded constructive possession and restricted meaning of phrase to physical possession. Plaintiff held money and wife could only access funds if he handed them to her so only he had actual possession of funds and had to report funds pursuant to s. 12(3)(a) of Act. There was no reason to depart from plain language of s. 12(3)(a) and read into it exception for joint owners travelling together. Section 12(1) of Act was strict liability offence and plaintiff’s subjective intention was not relevant. Plaintiff did not make any attempt to clarify how much money he could carry given he was travelling with wife. Officer did not give advice to plaintiff.
Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2014, F.C., John A. O’Keefe J., File No. T-145-10) 117 W.C.B. (2d) 261.

Crown

ARMED FORCES

Critical issue was whether veteran had been exposed to Agent Orange

Veteran started serving in Canadian Armed Forces around 1955. Veteran was allegedly exposed to herbicide known as “Agent Orange” in 1967. Veteran retired in 1975 when he was 43 years old. Veteran was diagnosed with prostate cancer when he was 63 years old. Veteran unsuccessfully applied for pension entitlement for prostate cancer. Veteran unsuccessfully appealed to Veterans Review and Appeal Board and unsuccessfully sought reconsideration. All decisions concluded there was no evidence that veteran had been exposed to Agent Orange. Veteran unsuccessfully sought further reconsideration based on new evidence. Veteran brought application for judicial review. Application granted; matter remitted for re-determination. Standard of review was reasonableness in light of prior authorities, and decision was not reasonable. Critical issue was whether veteran had been exposed to Agent Orange. Board chose to prefer findings of particular report that use of Agent Orange was limited over statements of veteran and his comrades that they had been exposed. Board read more into report than it actually stated. In particular, there was no clear finding in report that ordinary soldiers were restricted from spray sites and did not have access to these sites. Author of report acknowledged degree of exposure of individual to any chemical sprayed was indeterminable. Veteran should have been entitled to benefit of doubt pursuant to s. 39 of Veterans Review and Appeal Board Act (Can.). Nonetheless, determination of whether veteran was exposed to Agent Orange and extent of any exposure was better left to board.
McAllister v. Canada (Attorney General) (Oct. 17, 2014, F.C., Yves de Montigny J., File No. T-470-14) 246 A.C.W.S. (3d) 829.
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