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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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Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Ample grounds upon which to make intoxilyzer breath demand

Accused appealed her convictions for impaired driving and refusing to give breath sample. Citizen testified that accused side-swiped his car. After speaking to him and providing half of her information that was scribbled on piece of paper, accused left scene before police arrived. Officer happened to drive by accident scene, saw accused leave collision and followed her to find out what had happened. Despite officer putting on his siren and emergency flashing lights, accused did not pull over for roughly 500 metres. Officer noted indicia of impairment and arrested accused. Accused was driven to station where she was given numerous opportunities to provide suitable breath sample into intoxilyzer, but failed to do so. Accused contended that at its highest, officer had reasonable suspicion accused had alcohol in her body which would justify demand for breath sample into approved screening device; he did not have reasonable and probable grounds to make demand. Trial judge found following factors provided adequate basis for arresting officer to have reasonable and probable grounds to conclude accused’s ability to operate motor vehicle was impaired by consumption of alcohol: time of day (approximately 1:00 a.m.), accused’s abrupt departure from collision scene, her obnoxious and aggressive demeanour, her purple lips, her red and sleepy eyes, smell of alcohol on her breath and her attempt to avoid breathing directly at officer. Appeal dismissed. Fact officer did not say “magic words” of accused’s ability to operate motor vehicle being impaired by consumption of alcohol was not fatal. It was implicit in officer’s evidence that he had requisite reasonable and probable grounds to make intoxilyzer breath demand and arrest accused. There was ample evidence upon which trial judge could reach conclusion he did. While some of those indicia might be explained by factors unrelated to consumption of alcohol, combination of indicators provided sound basis upon which officer reasonably concluded there were reasonable and probable grounds to believe that her ability to operate motor vehicle was impaired by consumption of alcohol. In addition, while not mentioned by trial judge, objectively officer could also have considered accused’s slurred speech, her refusal to blow into officer’s face and failure to stop for 500 metres after officer activated his siren and emergency lights. When considered together, there were ample grounds upon which to make intoxilyzer breath demand.
R. v. Grant (Mar. 11, 2014, Ont. S.C.J., Durno J., File No. 1848/12) Decision at 100 W.C.B. (2d) 51 was affirmed.  112 W.C.B. (2d) 540.

Appeal

GROUNDS

No evidence that accident was caused by mechanical failure

Appeal by accused from his convictions for impaired and dangerous driving. Accused drove large 18-wheel tractor trailer in residential neighborhood above speed limit and, after he went through red light and made turn, truck tipped over on its side. Police officer, who followed truck, saw accused emerge from it and he staggered on his feet and smelled strongly of alcohol. Other officers who arrived made similar observations. Accused did not challenge trial judge’s findings regarding impaired and dangerous driving. Only alleged error was correctness of judge’s ruling that accused’s application under s. 7 of Canadian Charter of Rights and Freedoms should be dismissed. Charter issue concerned failure of police to preserve accused’s vehicle. Truck should have been preserved so that it could be tested to determine whether defective brakes or steering were contributing causes of accident. Judge did not rely on accident itself, or make any findings as to cause of accident, as indicia of impaired or dangerous driving. After police completed their investigation they handed custody of truck over to towing company. Truck was scrapped because owner of truck and insurance company did not want to pay storage fees. Appeal dismissed. Section 7 application was based on alleged breaches of right to disclosure and right to fair trial. Judge’s conclusion, that there was no unacceptable negligence and, therefore, no breach of s. 7 right to disclosure was based on six considerations. These considerations were relevant to fault analysis that had to be conducted on s. 7 Charter application that concerned unacceptable negligence by state actors. There was no evidence that mechanical failure caused accident and, even if there was some failure, it would not have dismissed alcohol as contributing cause of accident. Accused’s employer, who owned truck, had been given timely notice that it would be sold as scrap, and accused and his counsel had notice, before truck was sold, where it was located. Judge made reasonable findings of fact and they supported his conclusion that there was no unacceptable negligence by police. Accused’s right to fair trial was not violated since there was no evidence that accident was caused by mechanical failure, and stay of proceedings, which was only remedy sought by accused, was not appropriate in this case. Judge, therefore, did not err in dismissing Charter application.
R. v. Hassan (Mar. 3, 2014, Ont. S.C.J., M.A. Code J., File No. CR-12-70000132-00AP) 112 W.C.B. (2d) 534.

Civil Procedure

PLEADINGS

Amendments proposed new cause of action based on new set of facts

Plaintiffs’ business was destroyed by fire. Plaintiffs claimed they were insured under policy with defendant. Plaintiffs claimed they were not adequately indemnified under insurance policy for losses they sustained. Plaintiffs brought motion for leave to amend statement of claim to add paragraph setting out particulars of negligence, breach of contract and breach of fiduciary duty. Defendant brought cross-motion for summary dismissal of claim based on admissions plaintiffs made during examinations for discovery. Motion dismissed. Cross-motion granted. Claim was dismissed. Amendments proposed new cause of action based on new set of facts and were barred by expiry of limitation period. Claim related to adequacy of limits of coverage placed and all of facts pleaded in support of claim related to failures alleged to have occurred before loss and not after. Proposed amendment would create cause of action in negligence for failing to properly assess plaintiffs’ loss under policy after fire occurred, and not for failing to put in place proper policy of insurance beforehand. Plaintiffs conceded that if plaintiffs’
motion failed, defendant’s cross-motion should succeed.
Lauzon v. Dominion of Canada General Insurance Co. (Mar. 27, 2014, Ont. S.C.J., Ellies J., File No. CV-10-4812) 238 A.C.W.S. (3d) 845.

Bankruptcy and Insolvency

BANKRUPTS

Bankrupt not aware of friend’s misrepresentations or mortgage fraud

Bankrupt was employee of bank and was asked by friend if he would be willing to co-sign mortgage application to assist new immigrant who lacked sufficient credit history in Canada to obtain mortgage. Bankrupt and friend signed separate mortgage applications at different times in different places. Bankrupt provided accurate information about his income and employer while friend misrepresented income and employment and submitted inflated property valuation. Bankrupt was not aware of misrepresentations. Bank investigated what it believed to be fraud. Mortgage went into default. Bank sued and obtained default judgment against bankrupt and friend and judgment was assigned to Canada Mortgage and Housing Corporation (CMHC). Bankrupt made assignment in bankruptcy. CMHC applied for declaration that outstanding amount of bankrupt’s debt would not be released under s. 178(1)(e) of Bankruptcy and Insolvency Act (Can.). Judge determined that bankrupt’s debt would not survive his discharge from bankruptcy. CMHC appealed. Appeal dismissed. Section 178(1)(e) required finding that bankrupt obtained property by fraudulent misrepresentation or false pretences. Causal connection was required between bankrupt’s wrongdoing and creation of debt. Mortgage was obtained by friend’s fraudulent misrepresentations and not as result of anything bankrupt said or failed to disclose. Bankrupt was not aware of friend’s misrepresentations or mortgage fraud. Trial judge did not err in failing to find that bankrupt was not wilfully blind. Decision did not condone straw man debtor scenario.
Canada Mortgage and Housing Corp. v. Gray (Mar. 28, 2014, Ont. C.A., John Laskin J.A., K. van Rensburg J.A., and C.W. Hourigan J.A., File No. CA C57109) Decision at 229 A.C.W.S. (3d) 333 was affirmed.  238 A.C.W.S. (3d) 807.

Crown

ACTIONS AGAINST CROWN

Precondition to passport revocation that holder be convicted of indictable offence

Applicant and daughter attempted to check-in for flight from Lima to Toronto. Applicant and daughter’s passports had substituted bio-data page that had deficiencies compared to legitimate bio-data page. Passports were seized. Daughter stated that she altered passports one day before flight because she did not want to return to Canada. Respondent decided to revoke applicant’s passport and impose period of refusal of passport services for four years. Respondent determined applicant was aware of damage to passports yet attempted to travel with them away. Applicant sought judicial review. Application granted. It was precondition to passport revocation under s. 10(2)(b) of Canadian Passport Order, that passport holder be convicted of indictable offence. Applicant was never charged or convicted of indictable offence and decision to revoke her passport was made without authority. Revocation was invalid because passport expired by time it was purportedly revoked and Minister could only revoke unexpired passport.
Siska v. Passport Canada (Mar. 28, 2014, F.C., Russel W. Zinn J., File No. T-1180-13) 238 A.C.W.S. (3d) 878.

Administrative Law

FREEDOM OF INFORMATION

Claimed extension of time did not constitute deemed refusal of access

Department of National Defence (DND) had unspecified involvement in contract with company and sale of surplus military assets to Uruguay. Requester filed request under Access to Information Act (Can.), to obtain information from DND relating to these matters. In March 2011, DND informed requester that 30-day period in s. 7 of Act was being extended by 1,110 days pursuant to s. 9 of Act. Information Commissioner of Canada conducted investigation into length of extension and concluded in October 2012 that extension was invalid. DND provided requested records with some redactions in September 2013. Commissioner brought application for declaration that DND was deemed to have refused request by not responding within 30-day period in s. 7 of Act. Application dismissed. Commissioner’s authority to pursue judicial review was limited to refusals to disclose or to provide access to requested record. Court had to respect language of Act and could not redraft or reinterpret provisions to reach its own view of how its purpose could be better served. Claimed extension of time did not constitute deemed refusal of access even though commissioner had found it to be unreasonable. Prior authorities clearly stated there could be no deemed refusal under Act until time period had expired. Parliament’s clear intention was that requesters could complain about claimed extensions and commissioner could investigate, but that was extent of recourse. Since court had no jurisdiction to consider application pursuant to ss. 41 or 42 of Act, court did not need to consider whether extension claimed was reasonable.
Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2014, F.C., Catherine M. Kane J., File No. T-92-13) 238 A.C.W.S. (3d) 789.

Immigration

REFUGEE STATUS

No evidence board would have proceeded with hearing two hours late

Applicant made refugee claim that was to be heard on merits at 1:00 p.m. on October 10, 2012. Applicant’s car broke down that day at 11:15 a.m.. Applicant’s counsel appeared and explained that applicant was not able to attend. Second hearing was ordered where applicant explained earlier absence and provided service station repair invoice. Applicant testified by time he had vehicle towed to garage it was 2:00 p.m. and he would not have made it to board’s office until 3:00 p.m. using public transit. Board concluded that applicant had not been diligent in pursuing claim because he did not take public transit and arrive two hours late for first hearing. Board decided that refugee claim had been abandoned and it was dismissed. Applicant sought judicial review of board’s decision. Application granted. Board’s decision was unreasonable. There was no evidence that applicant or counsel had any reason to believe that board would have proceeded with first hearing at 3:00 p.m. when it was scheduled to start at 1:00 p.m.
Gromer v. Canada (Minister of Citizenship and Immigration) (Mar. 4, 2014, F.C., Sandra J. Simpson J., File No. IMM-12831-12) 238 A.C.W.S. (3d) 713.

Courts

ABUSE OF PROCESS

Unreasonable for tribunal to find applicant’s complaints raised essentially same issues

Applicant was black African Canadian who worked at Immigration and Refugee Board. In 2004, applicant filed complaint with Canadian Human Rights Commission. Core of complaint related to incident that occurred in April 2003, during which racist comments were allegedly made. Complaint also included allegations of systemic discrimination, poisoned work environment and harassment. In 2007, applicant filed two complaints before Public Service Staffing Tribunal alleging that board’s decision to use non-advertised appointment process to staff new tribunal officers discriminated against him on basis of race. Applicant alleged that decision to use non-advertised process was tainted by systemic discrimination and constituted abuse of authority. Tribunal dismissed applicant’s complaints on grounds that he had not established prima facie case of discrimination. Commission forwarded applicant’s human rights complaint to tribunal for inquiry. Board brought motion to dismiss complaint. Tribunal found that subject matter of complaint had been previously adjudicated by tribunal, and that adjudicating complaint would amount to abuse of process. Applicant applied for judicial review. Application granted. Tribunal’s decision did not fall within acceptable outcomes. It was unreasonable for tribunal to conclude that tribunal had decided essentially same issues as those raised in human rights complaint. Having regard to both proceedings, issues raised in complaints could not be found to be essentially same. Fact that in both complaints applicant based allegations on systemic discrimination was insufficient to conclude that tribunal had already dealt with core of applicant’s allegations in human rights complaint. Allegations of systemic discrimination at board for period 2003-2004 were not central to issues raised in tribunal complaints related to choice of non-advertised appointment process in 2007. It was unreasonable for tribunal to find that applicant’s complaints before tribunal and tribunal raised essentially same issues. If tribunal’s finding that pre-conditions for applying doctrines of issue estoppel and abuse of process were met then it erred by not asking whether it would be fair to apply doctrines in specific circumstances of case and prevent applicant from having human rights complaint investigated.
Murray v. Immigration and Refugee Board (Feb. 11, 2014, F.C., Marie-Josee Bedard J., File No. T-229-13) 238 A.C.W.S. (3d) 709.

Civil Procedure

COSTS

Applicant awarded $35,387.63 as respondents sought to increase applicant’s legal costs

Applicant sold business publishing magazine to respondent company. Individual respondent provided most of acquisition funding. Part of purchase plan was deferred and respondent company executed general subordinated security agreement in favour of applicant to secure deferred payment. Applicant executed subordination agreement with respondents that provided that respondent company had borrowed money from individual respondent and applicant agreed to subordinate payment of deferred payment to respondent company’s obligations to individual respondent. Respondent company did not pay deferred payment. Applicant made requests for information from respondents, which they ignored. Applicant brought application seeking several kinds of relief. Order was made for respondents to satisfy undertakings. Applicant applied for costs. Application granted. Applicant made legitimate request for information from respondents, which they ignored. Respondents’ refusal to provide information was done as stall tactic. Respondents ignored legal obligations to disclose requested information and they sought to increase applicant’s legal costs. Respondents’ conduct was reprehensible and warranted award of substantial indemnity costs. Applicant was awarded costs of $35,387.63.
Markplan Inc. v. Magazine Acquisition Corp. (Mar. 18, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10315-00CL) 238 A.C.W.S. (3d) 559.

Arbitration

STAY OF PROCEEDINGS

Arguable that claims fell within terms of very broad arbitration clause

Plaintiff was Italian corporation that provided commissary, or meal delivery, services for defendant corporation in Afghanistan pursuant to March 2013 services agreement. Corporation was Ontario corporation. Corporation terminated services agreement on June 7, 2013. On July 17, 2013, plaintiff commenced action in Ontario against corporation and certain of its directors, officers and employees, seeking damages for termination of services agreement and other relief. Plaintiff then commenced application against corporation for order that arbitration clause contained in services agreement did not survive termination of services agreement. Corporation moved for order staying action pending arbitration of dispute between parties. Motion granted. Review of amended statement of claim disclosed that it was certainly arguable that claims asserted by plaintiff against corporation in action fell within terms of very broad arbitration clause, which covered any dispute or controversy between parties arising under, out of, in connection with or relation to services agreement. Under services agreement, it was unclear whether termination affected or impaired party’s right to enforce rights and remedies contained in agreement. That issue was best left to arbitrator. Claims against personal defendants concerned performance and termination of services agreement. Action was stayed against all defendants pending arbitration between plaintiff and corporation. Plaintiff’s application was dismissed.
Ciano Trading & Services C.T. &. S.R.L. v. Skylink Aviation Inc. (Mar. 17, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10273-00CL, CV-13-484963) 238 A.C.W.S. (3d) 539.
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