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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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Trial

ACCUSED NOT REPRESENTED BY COUNSEL

Accused could not afford to retain counsel to extent necessary to ensure fair trial

Accused charged with four counts of trafficking in cocaine and oxycodone and possession of proceeds of crime. Accused applied for appointment of state-funded counsel. Legal Aid had denied funding to accused, as his income of $13,200 per year exceeded its financial cut-off. Accused had grade nine education and had entered workforce as labourer when he was 14 years old. Accused had received disclosure, and said that he could not make much of it. Allegations involved sales of drugs to undercover operators, and issues were potentially defence of entrapment and Charter claims. Crown had indicated to accused that his offences should have attracted four-year sentence in penitentiary. Accused argued that complexity of case arose from tactical decisions involving possibility of calling co-charged individuals as witnesses at trial. Crown argued that accused had means to pay counsel, but refused to allocate his own money properly for that purpose. Application allowed. Although it appeared that accused’s chances for bail on review were low, it could not be said that they were non-existent. Court could not accept that accused should have had to give up everything he had, including his apartment, in order to satisfy court that he was doing everything he could to fund lawyer. There was evidence that accused had, over time, satisfied outstanding accounts owing to Legal Aid, and it could not be said that he had not been mindful of his duty to contribute financially to his own defence when that had been required of him. Given accused’s modest level of education, his working background as labourer, difficulties inherent in mounting entrapment defence, and likelihood of significant sentence of imprisonment upon conviction, case would have been complex for accused to defend, and carried serious consequences for him. For accused not to have counsel at trial would have resulted in trial unfairness, as accused would not have been able sufficiently to understand case he had to meet or to present any defences available to him, and would have been subject to very serious consequences upon conviction. This was rare case where court was satisfied that accused, because of length and complexity of proceedings, or for other reasons, could not afford to retain counsel to extent necessary to ensure fair trial.
R. v. Davidson (Apr. 22, 2015, Ont. S.C.J., A.D. Kurke J., File No. 7483/14) 121 W.C.B. (2d) 97.

Appeal

RIGHT OF APPEAL

Leave to appeal denied where case turned on application of well-established legal test to specific fact situation

Crown applied for leave to appeal judgment dismissing Crown’s appeal from acquittal of accused on charge of driving with excessive alcohol. Leave to appeal denied. Legal test for determining whether breath tests were administered “as soon as practicable” was well established. This case turned on application of that well established test to very specific fact situation. It was far from clear to court that appeal raised question of law alone. However, even if it did, question as framed would not have any significance beyond this case. Neither trial judge, nor Summary Conviction Appeal Court purported to hold that any delay associated with allowing detainee to contact parent would run afoul of “as soon as practicable” requirement. Instead, trial judge and Summary Conviction Appeal Court looked at totality of circumstances in context of “as soon as practicable” requirement in deciding whether officer acted reasonably.
R. v. Crewson (Apr. 17, 2015, Ont. C.A., Doherty J.A., Cronk J.A., and Hourigan J.A., File No. CA C59450) Leave to appeal from 115 W.C.B. (2d) 223 was refused.  121 W.C.B. (2d) 23.

Conflict of Laws

JURISDICTION

Ontario had closest connection to contract action and was appropriate forum

Plaintiff was business incorporated in Ontario with head office in Toronto, and defendant was business incorporated in Wisconsin with head office in Wisconsin. Plaintiff brought action to collect royalty payments it claimed were due and owing under parties’ contract and sought accounting of all of defendant’s net sales, alleging it failed to provide accurate accounting as required by license agreement. Motion by defendant for order dismissing or staying action on basis court lacked jurisdiction simpliciter or was not convenient forum. Motion dismissed. Defendant clearly carried on business in Ontario, where it had actual physical presence, advertised, and sold products directly related to calculation of royalty payments in dispute. Rebuttable presumption of jurisdiction applied and defendant failed to rebut. Subject matter of litigation was directly related to monies made through defendant’s worldwide sales, which included those in Ontario. Ontario had closest connection to action and was appropriate forum. License agreements were signed by parties in Ontario and Wisconsin, plaintiff planned to call Ontario witnesses while defendant did not provided specifics about intended witnesses. There was no ongoing litigation in Wisconsin to which this action could be joined and no evidence in record regarding why Wisconsin law would apply so presumption was court would apply lex fori. While preamble to original agreement stated it was entered pursuant to Wisconsin law, more recent agreement and amendment contained no forum selection clause, and Ontario could apply foreign law anyway. Defendant did not meet burden to displace plaintiff’s choice of forum.
Orthoarm Inc. v. American Orthodontics Corp. (Mar. 30, 2015, Ont. S.C.J., Firestone J., File No. CV-14-511682) 252 A.C.W.S. (3d) 441.

Bankruptcy and Insolvency

PROPERTY

Tax obligations were given no special protection under Bankruptcy and Insolvency Act (Can.)

Applicant sought declarations that transaction between EFG and TFI was bulk sale; that transaction was void for failure to comply with Bulk Sales Act (Ont.) (“BSA”); that respondent was liable to account to trustee for value of property purchased in transaction; and for order requiring respondent to pay trustee consideration paid for transaction. Sale was found to be bulk sale and did not comply with BSA. Sale was declared void in part. Sale proceeds were used to pay secured creditor and TFI was not liable to any creditors for that amount. Parties could not agree on terms of formal order. Disagreement arose from fact that reasons failed to deal with disputed point. Plain and ordinary meaning of “value of stock in bulk” did not include HST exigible on goods sold. Principal meaning of value was worth, and there was no evidence that stock acquired by TFI was worth anything other than what it agreed to pay in arms’ length transaction. TFI had an offset for tax. Tax obligations and HST obligations were given no special protection under Bankruptcy and Insolvency Act (Can.), in bankruptcy situation. CRA might qualify as creditor under BSA, but that did not mean that HST owed to CRA qualified as part of value of stock in bulk that TFI acquired.
Ellen’s Food Group Inc. (Trustee of) v. TFI Foods Ltd. (Apr. 7, 2015, Ont. S.C.J., Penny J., File No. CV-14-10628-00CL) 252 A.C.W.S. (3d) 402.

Civil Procedure

COSTS

Delay in provision of redacted documents to citizenship applicant did not justify solicitor-client costs

Citizenship judge rejected application as permanent resident did not meet residency test. Permanent resident applied for judicial review which was dismissed. Permanent resident’s File Preparation and Analysis Template (FPAT), document was originally redacted from Certified Tribunal Record and then confidentially disclosed to permanent resident’s counsel. Minister had argued against disclosure of FPAT as disclosure of FPAT document could lead to individuals learning methods of fraud detection used by government. Permanent resident requested costs on solicitor-client basis regardless of outcome of judicial review. Request for costs denied. There was no evidence before court that Minister’s refusal to disclose redacted documents unnecessarily lengthened proceedings. Permanent resident’s basis for requesting solicitor-client costs was that he asked for redacted documents to be disclosed and Minister defended redactions. This was not basis for solicitor-client costs. Minister was entitled to object to disclosure of certain information pursuant to R. 318(2) of Federal Court Rules (Can.), and to defend his position in good faith. Minister did not unduly lengthen or delay proceedings. It took approximately three months before counsel for permanent resident was able to view redacted documents. This delay hardly rose to level of “reprehensible, scandalous or outrageous conduct” that was necessary to justify costs on solicitor-client basis.
Boland v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2015, F.C., Yves de Montigny J., File No. T-1090-14) 252 A.C.W.S. (3d) 405.

Administrative Law

JUDICIAL REVIEW

Press release was not decision and had no legal effect

So-called “decision” was made public in press release by Canadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to review all issues and submit report to Canadian Judicial Council. Applicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, because it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee.
Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT

Minimum sentence legislation did not minimally impair rights

Accused convicted of carrying loaded prohibited firearms. Crown proceeded by indictment. Accused N subject to three-year minimum sentence. Accused C subject to five-year minimum sentence as repeat offender. N and C challenged constitutionality of the minimum sentences. Court of Appeal held that minimum sentences under s. 95(2) of Criminal Code violated s. 12 of Charter. Crown appeals dismissed. Section 95 covers wide spectrum of conduct including minor violations of gun licences. Minimum sentences will impose grossly disproportionate punishment in reasonably imaginable situations. Legislation does not minimally impair rights. Parliament could have drafted minimum sentence capturing only offences with significant moral blameworthiness.
R. v. Nur (Apr. 14, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35678, 35684) Decisions at 110 W.C.B. (2d) 264 and 110 W.C.B. (2d) 479 were affirmed.  121 W.C.B. (2d) 117.

Evidence

ADMISSIBILITY

Evidence of strikingly similar offence committed while accused in custody was admissible

Accused charged with second degree murder. Accused alleged to have abducted and killed school girl. Accused applied to introduce evidence of strikingly similar abduction of school girl that took place nine months later while he was in custody. Trial judge rejected proposed evidence on basis that he was not satisfied on balance of probabilities other abduction even took place. Court of Appeal allowed appeal from acquittal and ordered new trial. Appeal dismissed. Trial judge erred in putting burden on accused to show that similar offence took place. Proposed evidence raised air of reality to possibility that subsequent crime occurred and was committed by same perpetrator as murder for which accused was charged.
R. v. Grant (Mar. 5, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35664) Decision at 110 W.C.B. (2d) 133 was affirmed.  121 W.C.B. (2d) 139.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second-degree murder upheld

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second-degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.
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