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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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Preliminary Inquiry

DISCHARGE OF ACCUSED

Dismissal of charges against nurse and doctor quashed on application for certiorari

Application by Crown for certiorari to quash decision of preliminary inquiry judge. Judge dismissed five charges against accused and committed them to trial on five other offences. Female accused was registered nurse and male accused who was her husband, was doctor licensed to practice medicine in Ontario. Together, accused operated medical clinic. Police alleged that accused held “clinics” in various provinces and for cash payment of $250 patients received documentation signed by male accused that entitled them to apply to Health Canada to receive licence to possess and grow marijuana. People were also seen in clinic for sole purpose of having their documents signed by male accused. These individuals were charged $100 and, in addition, OHIP was billed. To qualify for licence person had to have specified condition and must have seen specialist for this condition, and specialist must have tried other treatments and that such treatments failed. Specialist had to agree that marijuana should be used. None of specialists referred to in documentation recommended use of marijuana. Five charges were dismissed because documents were not considered to be forged documents as defined in s. 366 of Criminal Code. Application allowed. Judge did not assess whole of evidence against correct elements of offence of forgery and he committed jurisdictional error. Had he considered elements argued by Crown he may have reached different conclusion. Dismissal of five charges was quashed and matter was remitted to judge to consider law and all of evidence.
R. v. Kamermans (Jun. 26, 2015, Ont. S.C.J., J.M. Johnston J., File No. CR 14-0046-00) 122 W.C.B. (2d) 367.   

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Trial judge did not err in finding that police had objectively reasonable grounds for arrest for drug offence

Accused appealed from his conviction for possession of heroin for purpose of trafficking. Police received tip from confidential source that accused was trafficking in heroin from particular vehicle with particular licence plate number. Three police officers subsequently conducted surveillance of accused as he drove or rode in vehicle described in tip and made various stops and had various interactions over period of two days. In their evidence, one or more of officers described observing accused as he engaged in what relevant officer viewed as hand-to-hand transaction at address of known heroin user; as other individuals entered vehicle and then got out shortly after entering; and as accused approached entrances of other residences and then soon walked away. At end of surveillance period, police arrested accused and search incident to arrest revealed he was in possession of 7.3 grams of heroin in 10 individually wrapped pieces along with $1,215 in cash and digital scale. In reasons on pretrial Charter application, trial judge was not satisfied that police had established that accused attended residence of known heroin user or that they observed hand-to-hand transaction at that address. Nonetheless, in trial judge’s view, accused’s attendance at residence formed part of pattern of conduct that removed possibility of innocent coincidence. Accordingly, trial judge found police officers subjectively believed they had reasonable grounds to arrest accused without warrant and those grounds were objectively reasonable. On appeal, accused argued that, in light of findings of fact concerning police evidence, trial judge erred in finding that police had objectively reasonable grounds for arrest and further erred in failing to exclude evidence discovered on search incident to arrest. Appeal dismissed. Trial judge acknowledged that tip received by police was “bare bones” and that it required robust corroboration then carefully catalogued police observations of accused’s movements and stops over two-day period. Trial judge recognized that some of these observations could not reasonably be said to corroborate information received from tipster. After eliminating those observations from his list, trial judge was left with series of eight “stops” by accused during which either someone was seen briefly entering vehicle in which accused was riding or driving (which was subject of tip), or accused was seen approaching residence for brief period. Trial judge found pattern of conduct emerged from those observations, giving rise to reasonable grounds for arrest and court agreed.
R. v. Dezainde (Jun. 25, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. LaForme J.A., File No. CA C59374) 122 W.C.B. (2d) 332

Civil Procedure

CLASS ACTIONS

Motion respecting distribution phase of class proceeding dismissed on terms

Ontario lawyer acting for five class members advised class counsel that distribution plan that had been approved by courts in Ontario, British Columbia, and Quebec contravened s. 1 and 3 of Human Rights Code. Ontario lawyer told class counsel that his clients intended to request damages and amendment to distribution plan. After negotiations class counsel and Ontario lawyer signed letter agreement in action and in companion actions in Quebec and British Columbia. Ontario lawyer was satisfied that problems with code could be resolved by giving claims administrator instruction to be posted on claims website for duration of claims process. Motion was brought with respect to distribution phase of class proceeding. Motion dismissed on terms. Class counsel was directed to file notice of motion and supporting affidavit material for motion for directions and motion was scheduled. Proposed instruction may or may not be adequate to address what may or may not have been problem, raised by persons who may or may not have standing to challenge approved settlement distribution scheme. Court could not endorse whatever it was at whim of class counsel and Ontario lawyer without ruling on merits of underlying dispute. Court could not indirectly endorse anti-suit injunction prohibiting clients of Ontario lawyer from taking administrative proceedings that may or may not be available to them assuming that they were entitled to make claims notwithstanding releases that were part of court approved settlement.
Eidoo v. Infineon Technologies AG (Jun. 8, 2015, Ont. S.C.J., Perell J., File No. 05-CV-4340, 10-CV-15178CP) 254 A.C.W.S. (3d) 779.

Appeal

FINAL OR INTERLOCUTORY ORDER

Order dismissing motion to strike and declaring that respondent had status to bring application was final

Respondent was lawyer licensed to practice law in Ontario. Respondent was undischarged bankrupt. Respondent was being sued for professional negligence in class action in Colorado. Respondent sought declaration that his professional liability insurer was required to indemnify him for any judgment in Colorado action including reimbursement for defence costs. Appellant asserted respondent lacked capacity to bring application. Appellant brought motion to strike application. Motion was dismissed and order contained declaration that respondent had status to bring application against appellant. Appellant appealed. Respondent disputed jurisdiction of court to entertain appeal on basis that motion judge’s order was interlocutory and leave to appeal to Divisional Court was required. Appeal allowed. Order was final and appeal was properly brought before court. Declaration deprived appellant of substantive defence that application was nullity because respondent lacked standing as undischarged bankrupt to bring action. That defence, if successful, would be determinative of entire action. Motion judge erred in holding that respondent had standing to bring application. Application for declaration that appellant had to indemnify him under his insurance policy was claim in breach of contract that was solely about money and vested in trustee. Right to claim indemnity and to enforce claim by bringing action was right of trustee in bankruptcy, and belonged to trustee whether indemnity was payable directly to insured bankrupt or to third party. Proceeds of insurance policy did not form part of estate of bankrupt that vested in trustee, but right to bring action to enforce terms of policy vested in trustee and could be assigned by trustee.
Meisels v. Lawyers Professional Indemnity Co. (Jun. 8, 2015, Ont. C.A., K.M. Weiler J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C59723) 254 A.C.W.S. (3d) 759.

Employment Insurance

CONTRIBUTIONS

Taxpayer was independent contractor

Minister determined that A was engaged by appellant business owner in insurable and pensionable employment from Jan. 1 until Nov. 14, 2012. Owner brought appeal. Appeal allowed. Subjective intention of parties not determinative on its own, but owner’s intention clear from actions, notably not taking source deductions, issuing cheques that were sometimes marked “contract” and issue of tax slips on subcontractor basis. A’s testimony self-serving as he wished to claim employment insurance benefits. A worked under conditions for many years without questioning status. A deducted business expenses on his tax returns. A was experienced painter who did not require supervision. A had considerable freedom to take time off in middle of a job and refused to work overtime. Control factor favoured interpretation that A was independent contractor. A chose to use own tools, although owner’s tools available. Lack of assumption of risk and opportunity for profit favoured employment. Key factor was loose relationship between parties.
Abhar v. Minister of National Revenue (Jun. 26, 2015, T.C.C. [Employment Insurance], Judith M. Woods J., File No. 2014-1926(CPP), 2014-1927(EI)) 254 A.C.W.S. (3d) 854.

Employment

WRONGFUL DISMISSAL

Decision terminating unjust dismissal claim set aside on judicial review

Adjudicator’s March 2014 decision terminated applicant’s unjust dismissal claim. Adjudicator had been advised that parties had reached settlement. Applicant applied for judicial review of March 2014 decision. Applicant denied agreeing to terms of alleged settlement between counsel and employer. Application granted. Evidence as to whether parties reached agreement was contradictory. Counsel did not inform applicant clearly of what would be included in agreement. Applicant refused to sign settlement documents because they did not reflect terms he agreed to. Applicant’s affidavit specifically stated that he never agreed to proposed terms. Counsel’s affidavit was not specific enough to displace that evidence. Possible that counsel misunderstood what applicant was prepared to accept. Adjudicator’s decision was based on settlement that never occurred. Decision was set aside.
Baptiste v. 3903214 Canada Inc. (GT Group) (May. 19, 2015, F.C., George R. Locke J., File No. T-880-14) 254 A.C.W.S. (3d) 852.

Industrial and Intellectual Property

TRADEMARKS

Judge did not err in finding that board could reasonably find likelihood of confusion

Appellant was Chinese bakery and food products company that applied to register trademarks. Respondent opposed applications on grounds of confusion with its registered trademarks. Trademarks opposition board determined that appellant had not discharged burden of demonstrating, on balance of probabilities, that there was no reasonable likelihood of confusion with respondent’s trademarks. Board allowed grounds of opposition raised by respondent based on s. 12(1)(d) of Trademarks Act for overlapping wares only. Board found that appellant failed to meet burden under s. 16(3) of act to establish no likelihood of confusion with respondent’s trademarks. Board found that respondent met its burden under s. 38(2)(d) in establishing that its trademarks had become sufficiently known to negate distinctiveness of appellant’s trademarks. Appellant appealed. Judge determined that new evidence filed by appellant in form of affidavit was inadmissible on basis that when it was sworn it was not accompanied by certificate acknowledging that expert had read code of conduct for expert witnesses. Judge found that appellant had not discharged burden to show, on balance of probabilities, that there would be no confusion with existing registered trademarks of respondent. Judge concluded that board’s decisions were both reasonable and correct. Appellant appealed. Appeal dismissed. Judge erred in finding affidavit to be inadmissible in circumstances. However, affidavit was not sufficient to overcome evidence put forward by respondent before board. Affidavit was not significant and would not have materially affected board’s decisions. Affidavit should be given little weight and de novo analysis was not warranted. As affidavit would not have materially changed board’s decisions, appellant’s arguments remained unsupported by evidence. Appellant had not identified any basis upon which judge’s conclusion should be disturbed. Judge did not err in finding that board could reasonably conclude that there was likelihood of confusion in circumstances. Appellant was not entitled to register trademarks, as they were not distinctive.
Saint Honore Cake Shop Ltd. v. Cheung’s Bakery Products Ltd. (Jan. 20, 2015, F.C.A., M. Nadon J.A., Wyman W. Webb J.A., and Richard Boivin J.A., File No. A-344-13) Decision at 232 A.C.W.S. (3d) 767 was affirmed. 254 A.C.W.S. (3d) 859.

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.   
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