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Case Law

Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.

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Drug offences

POSSESSION FOR PURPOSE OF TRAFFICKING

Convictions for drug offences were unreasonable

Accused was convicted of drug offences in relation to bag accused was seen handling by police, and which later was found to contain drugs. Accused appealed those convictions. Appeal allowed; conviction quashed; acquittal entered. Verdict was unreasonable and could not stand. Assuming that it was open to trial judge to find that bag that accused placed in second man’s car at about 9:10 a.m. was same bag that police retrieved from another man’s car some three and one-half hours later, court was satisfied there was no evidence upon which reasonable trier of fact could infer that drugs found in bag at about 12:30 were in bag some three and one-half hours earlier when accused placed it in second man’s car. Bag was in motel room for two hours and 20 minutes. Crown led no evidence concerning access to bag while it was in motel room. Crown also led no evidence as to who or what was in motel room when second man and his companion exited motel room and went to car with bag. In absence of any evidence about who had access to bag over that two-hour and 20-minute period, court thought it was unreasonable to conclude that Crown had proved beyond reasonable doubt that contents of bag had not changed between 9:10 a.m. and 12:30 p.m. when police seized bag. Trial judge erred in approaching his task by looking for evidence from which he could infer that contents of bag had changed. Trial judge was required instead to look for evidence that would satisfy him beyond reasonable doubt that contents of bag had not changed. Difference between these two approaches was fundamental to correct application of criminal burden of proof.
R. v. Wu (Nov. 13, 2015, Ont. C.A., Doherty J.A., John Laskin J.A., and M. Tulloch J.A., File No. CA C59564) 126 W.C.B. (2d) 146.


Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT

Provisions of Controlled Drugs and Substances Act violated s. 12 of Canadian Charter of Rights and Freedoms

Accused pleaded guilty to production of marijuana and theft of hydro in relation to large, sophisticated grow operation in home. Crown sought mandatory minimum sentence of three years’ imprisonment, which applied to production of over 500 plants where aggravating factor in s. 7(3)(c) of Controlled Drugs and Substances Act, that production constituted potential public safety hazard in residential area, was established. Accused applied for declaration that mandatory minimum sentences for production were unconstitutional and of no force or effect. Application granted. Crown established aggravating factor in s. 7(3)(c). Three-year sentence would not be grossly disproportionate in accused’s case. Accused involved in operation and not merely gardener. Reasonable hypotheticals established possibility for gross disproportionality in other cases. Section 7(3)(c) violated s. 12 of Canadian Charter of Rights and Freedoms because offender could be subject to mandatory minimum sentence based on circumstances unknown to him or her. Offender’s specific level of moral culpability in relation to potential public safety hazard was irrelevant. Absent proof of knowledge of potential risk, result would be grossly disproportionate sentences. Section 7(2)(b)(i) and (ii) of act violated s. 12 of Charter because offender with medical marijuana production licence could be subject to mandatory minimum sentence for unknowingly exceeding authorized number of plants. Impugned provisions failed minimal impairment and proportionality tests and not be saved by s. 1.
R. v. Vu (Oct. 20, 2015, Ont. S.C.J., Durno J., File No. 74/14) 126 W.C.B. (2d) 178.


Contracts

PARTIES

Dealership had no contractual relationship with purchasers of vehicle

Plaintiffs purchased vehicle from defendant dealership D. D obtained vehicle from another dealership, O, which was managed by defendant B. Vehicle malfunctioned after purchase. Purchasers brought action for damages against both dealerships and B. Purchasers settled their claim with D, receiving full purchase price as well as payment of $7,500 for damages and credit for $1,000. O and B’s motion for summary judgment against purchasers was granted. Trial judge found O and B were not liable. Purchasers appealed. Appeal dismissed. O had no contractual relationship with purchasers. B was not in contact with purchasers before sale and made no representations to them. Damages sustained were amply compensated in settlement. Motion judge made no error.
Mikhail v. Downsview Chrysler Plymouth Ltd. (1964) Ltd. (Nov. 13, 2015, Ont. C.A., E.A. Cronk J.A., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C60446) Decision at 253 A.C.W.S. (3d) 486 was affirmed.  260 A.C.W.S. (3d) 752.


Constitutional Law

CHARTER OF RIGHTS

“No trespass” notice violated applicant’s right to freedom of expression

As result of applicant’s videotaping of respondent regional municipality’s council meeting in December 2013, initially objected to but later permitted, and applicant’s questioning of certain council member about her legal action against him prior to meeting in June 2014, chief administrative officer (CAO) of municipality issued no trespass notice prohibiting applicant from attending further meetings for period of one year. CAO advised members of council that notice issued on basis of obligation to ensure everyone felt free and safe from harassment in municipal facilities and numerous concerns expressed by members of council, staff and public about applicant’s confrontational behaviour. Notice issued with support of chairman of council, but never considered or authorized by council as whole. Applicant applied for declaration notice violated his rights under ss. 2 and 7 of Canadian Charter of Rights and Freedoms and therefore, unconstitutional. Applicant objected to characterization of his behaviour as confrontational. Application allowed. Applicant’s right to freedom of expression gave him right to enter council chambers unless his exercise of that right interfered with other’s use of property. On evidence, applicant had not engaged in violence or any threat of violence that would exclude him from protection of s. 2(b). While some found applicant’s conduct disrespectful or uncomfortable, there was nothing to support CAO’s claim he had been disruptive or made members of council or staff concerned for their safety. Evidence did not establish applicant’s attendance at council meetings would serious interfere with other’s use of public property. No trespass notice violated applicant’s right to freedom of expression. In absence of evidence more limited prohibition had even been considered, violation could not be justified under s. 1 of Charter. No trespass notice invalid and of no force and effect.
Bracken v. Niagara Corp. (Regional Municipality) (Nov. 12, 2015, Ont. S.C.J., R.J. Nightingale J., File No. 10408/15) 260 A.C.W.S. (3d) 745.


Administrative Law

FREEDOM OF INFORMATION

Interests and administration of justice better served if applicant’s personal health information kept confidential

In 1998, applicant sought judicial review of administrative decision in respect of his entitlement to certain employment related disability benefits. In 2000, judicial review was dismissed. In 2002, applicant noticed that reasons for decision were posted on Federal Court website. Reasons included personal health information about applicant that he wanted to keep private. His request that Internet version of decision be amended to exclude his personal health information was granted. In 2004, applicant was appointed Ombudsman at the Internet Corporation for Assigned Names and Numbers (ICANN), which administered domain names for the Internet. In 2004, K lodged complaint with ICANN respecting Universal Domain Name Resolution Policy adjudication. Applicant determined that he did not have jurisdiction to hear complaint as K was not person affected by decision. In February 2011, K found information on the Internet concerning applicant’s 1998 judicial review application. He posted link to Federal Court docket and reasons in two separate tweets on his Twitter account. K also posted tweet which contained personal health information about applicant. After protest by applicant, tweet was taken down. At that time applicant realized that, despite direction from court, his personal health information had not been removed from Internet versions of decision. In May 2012, applicant filed a motion requesting confidentiality order over underlying file in matter, which was granted. K brought motion to set aside confidentiality order. Motion granted in part. Confidentiality order was unnecessarily broad. In order to ensure that court proceedings remained presumptively open and accessible to public and media, reasons for decision shall be made public and material related applicant’s file shall no longer be kept confidential. However, interests and administration of justice were better served if applicant’s personal health information was kept confidential. Allowing applicant’s health information to be publicly available would cause objectively discernible harm to his privacy and professional reputational interests. Redaction of reference to applicant’s health information did not alter decision in any way.
Fowlie v. R. (Apr. 24, 2015, F.C., Donald J. Rennie J., File No. T-1971-98) 260 A.C.W.S. (3d)


Aboriginal Peoples

CROWN RELATIONSHIP

Department of Fisheries and Oceans met duty to consult

Authorization was issued pursuant to ss. 32(2)(c) and 35(2)(b) of Fisheries Act and permitted impacts to fish and fish habitat arising from construction of hydro-electric generating station proposed by NE. Applicant members of First Nation community council brought application for judicial review to challenge decision of Minister of Department of Fisheries and Oceans (DFO) to issue authorization to NE. Application dismissed. Duty to consult was met and minister’s decision to issue authorization was reasonable. Process set out in Regulatory Phase Protocol was adequate to meet Canada’s duty to consult, was reasonable and was followed by DFO. While DFO’s response may have been less than perfect, perfection was not required so long as reasonable efforts have been made to consult and accommodate and if result was within range of possible, acceptable outcomes which were defensible in respect of facts and law, there would be no basis to intervene. While applicants were not satisfied with many of Canada’s responses, Minister’s decision to issue authorization was ultimately reasonable.
Nunatukavut Community Council Inc. v. Canada (Attorney General) (Aug. 18, 2015, F.C., Cecily Y. Strickland J., File No. T-1339-13) 260 A.C.W.S. (3d) 651.


Labour Relations

COLLECTIVE AGREEMENT

Breastfeeding during working hours was not legal obligation towards child under employee’s care

Employer refused grievor’s request to telework five days per week following maternity leave in order to continue breastfeeding. Union brought unsuccessful grievance alleging failure to accommodate and discrimination on grounds of sex and family status, contrary to collective agreement and Canadian Human Rights Act. Employee brought application for judicial review. Application dismissed. Employee did not make case of prima facie discrimination and board’s application of facts to Johnstone factors was reasonable. Employee did not meet burden on second and third factors of Johnstone test, which were that she has legal obligation to care for child and that she had made reasonable efforts to meet her obligation through reasonable alternative solutions. Breastfeeding during working hours was not legal obligation towards child under employee’s care, it was personal choice. Employee made no reasonable effort to find viable solution as she never addressed employer’s reasonable concerns with her proposal to leave office twice a day for 45 minutes to breastfeed her child during paid hours.
Flatt v. Canada (Attorney General) (Nov. 10, 2015, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Mary J.L. Gleason J.A., File No. A-557-14) 260 A.C.W.S. (3d) 846.


Industrial and Intellectual Property

PATENTS

No error in trial judge’s construction of patent or assessment of expert evidence

Plaintiffs owned ‘781 patent, relating to window on switchgear assembly with line of sight to grounding switch, to verify position and confirm grounding of circuit breaker, and ‘772 patent, dealing with dimensions and positions of gas-insulated compartment and grounding switches. Plaintiffs’ action against defendant competitor for patent infringement was dismissed and defendant’s counterclaim for declarations of patent invalidity was allowed, with defendants awarded costs in amount of $350,000. Appeals dismissed. Trial judge found that phrase “moveable switch contact element” in ‘781 patent claim covered both “sliding contact switches” and knife blade switches such that it did not differ from prior art disclosing use of viewing windows to determine position of “knife blade switches”. Trial judge was right to avoid construing ‘781 patent in manner that would unduly neglect its wording, as principle of purposive construction only applied to language that could bear more than one equally plausible meaning. Plaintiffs failed to establish any palpable and overriding error in trial judge’s assessment of expert evidence informing reading of patents. It was open to trial judge to reject plaintiffs’ submissions that purpose of ‘781 patent was to address problem unique to linear-travel switches and that its figures showing only linear-travel switch were only exemplary and not embodiments of all switches covered. Trial judge was entitled to accept defendant’s expert evidence that inspection windows were well-known in prior art and to reject plaintiff’s expert evidence that placement of window was inventive. Trial judge’s infelicitous paraphrasing of expert’s testimony on inventiveness did not indicate he misconstrued that testimony. Trial judge’s conclusions on obviousness were not vitiated by palpable and overriding error. Plaintiffs failed to establish any reviewable error in finding that presence of second switch was essential element in ‘772 patent’s claim, which construction supported trial judge’s finding that all claims were obvious. Plaintiff’s submissions went mainly to weight that should have been placed on expert reports, which was matter for trial judge. Trial judge’s finding that invention path was neither complex nor time consuming did not involve palpable and overriding error.
ABB Technology AG v. Hyundai Heavy Industries Co. (Aug. 18, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-346-13, A-379-13) Decision at 233 A.C.W.S. (3d) 229 and 234 A.C.W.S. (3d) 577 were affirmed.  260 A.C.W.S. (3d) 838.


Charter of Rights

LANGUAGE RIGHTS

Interpreter fully captured meaning of words conveyed to and by accused

Three accused charged with kidnapping, extortion and assault. Throughout trial, first and third accused used Punjabi interpreter and second accused used Tamil interpreter. On any given day of trial, two Punjabi and two Tamil interpreters provided interpretation to accused. Punjabi interpreters came into courtroom when Punjabi speaking witness testified. In that situation, jury was in position to hear questions and answers being interpreted into Punjabi language. Interpreter at issue was fully accredited. At end of day juror forwarded hand written note advising that translator had poor translation ability and requested to get another person. Accused brought application for mistrial. Application for mistrial was premature request and court preferred there to be audit of testimony by another interpreter instead and so ordered. After reviewing audited material, all three accused alleged breach of their s. 14 Charter rights and requested mistrial. Application dismissed. Guaranteed standard involved continuity, precision, impartiality, competency, and contemporaneousness. Translation at issue was not perfect. Often imperfections in translation related to immaterial concerns. There was almost nothing in transcript that indicated that meaning of what was being communicated by either witness or examiner was in any way distorted or altered; at least not in any meaningful way. Questions and answers clearly indicated that accused understood what was being said and examiner understood his responses. To extent that interpretations were not word-for-word accurate, meaning was accurate almost entirely throughout. When interpreter did not understand question, he asked for clarification and did this several times towards end: fact court believed may have influenced juror’s note. Overall, while court found that interpreter was not 100 per cent accurate, he nonetheless fully captured meaning of words conveyed to and by accused. There was no need or basis to conclude that full audit of other portions of trial was required. Juror had alerted court to potential problem. Court reviewed sufficient sample of interpretation and was satisfied that translator’s interpretation was sufficient and that he was performing his function competently. Counsel’s request that court audit other aspects of trial because there was danger that same translator was not interpreting properly for other witnesses was speculation.
R. v. Singh (Nov. 12, 2015, Ont. S.C.J., Coroza J., File No. CR-12-2328) 126 W.C.B. (2d) 102.

Appeal

GROUNDS

It was not court’s role to grade counsel’s professional conduct outside of courtroom

Accused was convicted of refusing breathalyzer after he failed to give proper sample after 14 to 16 attempts. Accused alleged he had ineffective counsel after counsel abandoned Charter s. 11(b) application with his consent and failed to call medical expert. Trial counsel was ready to call medical expert, however, expert became available at last moment and counsel claimed that accused agreed to abandon calling expert, which accused disputed. Trial counsel did not obtain written instructions from accused regarding those appellate issues. Trial judge also did not believe version of events as described by accused. Accused appealed his conviction. Appeal dismissed. Judge expressly disbelieved evidence of accused regarding alleged effects of being stopped by police and any expert reports would have to be based on acceptance of accused’s version of events. It was not court’s role to grade counsel’s professional conduct outside of courtroom. If accused was unhappy with manner in which his trial counsel conducted his trial, his remedy lay with Law Society of Upper Canada and its complaint procedures.
R. v. Namasivayam (Nov. 24, 2015, Ont. S.C.J., Nordheimer J., File No. 134/13) 126 W.C.B. (2d) 9.
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