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Charter of Rights


Detective could rely on summary of information given to him by another officer

Two accused appealed their convictions on trafficking cocaine and possession of cocaine for purposes of trafficking. Both accused were arrested following police observations of what they perceived to be drug transaction between two. Accused was seen to enter residence that was target of drug investigation and seen to leave with shoebox in hand. Confidential informant had told police man who lived at that residence was large scale drug dealer. Police followed accused as he left and about 15 minutes later, stopped his car for second accused who got in his car, then got out of car two minutes later, holding same shoebox, and drove away. Second accused was followed, stopped and arrested at gunpoint. Shoebox was located and contained one kilogram of cocaine. Second accused’s appeal was dismissed as abandoned as he had not surrendered into custody. Accused took issue with trial judge’s failure to exclude evidence and finding police had reasonable grounds to arrest. Appeal dismissed. Detective who ordered second accused’s arrest had received confidential information communicated that surveillance target was significant drug-dealer. Detective could rely on summary of information given to him by another officer in deciding whether he had grounds to make arrest. Target was observed at address where first accused went into and emerged few minutes later with shoebox. Shoebox was later seen in second accused’s possession and took it in his car and then left. Detective who ordered second accused’s arrest, made most of these observations in person, and was informed of arrest by his fellow investigating officers.
R. v. Italiano (Feb. 26, 2015, Ont. C.A., M. Tulloch J.A., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C56934) 120 W.C.B. (2d) 19.



Conviction for assault,
unlawful confinement and breach of recognizance upheld on appeal

Accused appealed convictions for assault, unlawful confinement, and breach of recognizance. Accused and complainant were in intimate relationship from 2001 to 2009. Complainant testified that, during argument, accused grabbed her by throat and threw her down on couch, striking her head on ashtray. Complainant testified that accused prevented her from leaving her apartment to go to hospital. In weeks after incident, complainant gave second statement to police, retracting her allegations against accused. At trial, complainant recanted her earlier recantations, claiming that she made them at accused’s request and because he threatened to distribute explicit photographs of her. Trial judge accepted complainant’s evidence that she had been in “abusive relationship” with accused. Trial judge accepted that, in making allegations against accused, complainant might have been motivated by jealousy arising from recent reappearance of one accused’s previous girlfriend. Trial judge held that Crown had demonstrated that there was direct touching and application of force to complainant’s neck. In subsequent trial on other charges, complainant gave yet another account of incident, where she made no allegation of being choked, nor did she suggest she had been forcibly confined. In subsequent trial, Crown successfully brought application to admit complainant’s prior statements and her testimony at current trial for truth of their contents. Accused was acquitted of charges at subsequent trial, partly due to complainant’s contradictory and confused testimony. Accused argued that verdict was unreasonable. Appeal dismissed. Despite highly problematic nature of complainant’s testimony, there was basis in evidence upon which trial judge could have convicted. Court was not persuaded that trial judge’s ultimate conclusion was tainted by his “abusive relationship” observation. Although other judges may have found inconsistencies in complainant’s evidence to be fatal, court could not say that trial judge erred in approaching evidence in manner that he did.
R. v. Honigan (Mar. 19, 2015, Ont. S.C.J., Trotter J., File No. SCA-13-73-4) 120 W.C.B. (2d) 15.

Human Rights Legislation


Failure to analyze accommodation to point of undue hardship was incorrect and unreasonable

Applicant was seafarer who sought Marine Medical Certificate confirming his physical and mental fitness for purpose of employment. Applicant was examined by Transport Canada marine medical examiner who raised concerns regarding applicant’s fitness for seafaring duty. On August 31, 2010, Transport Canada informed applicant that he was unfit to hold certificate. Decision was based on alcohol dependence, major depression and developmental disorder. Applicant unsuccessfully appealed to Transportation Appeal Tribunal. Thereafter, applicant addressed his alcoholism and was issued three-month restricted certificate in 2011 that found he was fit for duty with specific limitations. In October 2012, applicant was issued unrestricted certificate. Applicant filed human rights complaint in June 2012 alleging discrimination on basis of disability. Canadian Human Rights Commission recommended dismissal of complaint on basis of no adverse differential treatment and bona fide safety justification. Applicant applied for judicial review of commission’s decision. Application allowed. Commission’s investigation report failed to analyze, as was required, whether Transport Canada had accommodated persons with characteristics of applicant without incurring undue hardship. Failure to analyze accommodation to point of undue hardship was both incorrect and unreasonable. Matter was remitted to commission for redetermination of whether Transport Canada accommodated applicant to point of undue hardship.
Walsh v. Canada (Attorney General) (Feb. 23, 2015, F.C., Donald J. Rennie J., File No. T-1207-14) 251 A.C.W.S. (3d) 119.



Financial agent not permitted to extend deadline for filing nomination campaign return

Application by financial agent for nominated candidate in next federal election to extend deadline for filing contestant’s nomination campaign return. Under Canada Elections Act, financial agent’s failure to provide nomination campaign return was offence that was punishable by fine and imprisonment. Financial agent stated that her failure to file return was due to inadvertence or honest mistake of fact in that she believed that it would not be required and that only after the filing deadline did she learn that nomination campaign return had to be filed. Motion dismissed. To disregard requirement that application to extend deadline be filed with chief electoral officer, and two-week limitation on making application to court to seek extension of deadline imposed by Act, would be inconsistent with presumption that Parliament avoided superfluous or meaningless words. Both pre-conditions were not intended to be ignored.
D’Agostino v. Elections Canada (Mar. 6, 2015, Ont. S.C.J., M. Faieta J., File No. CV-14-518251) 251 A.C.W.S. (3d) 83.

Civil Procedure


Motion judge erred in setting aside default judgment

Respondents, injured in car accident, applied for statutory accident benefits from own insurer, Intact Insurance. Intact paid most benefits, but claimed that two health service providers, Osler Rehabilitation and Assessment Direct, submitted invoices for excessive amounts and number and frequency of visits could not be justified. Intact settled with respondents. Respondents agreed to release Intact and Intact agreed to hold harmless and indemnify respondents from “any claims” brought by two service providers for outstanding accounts. Osler and Assessment sent demand letters to respondents, but Intact refused to act because neither Osler nor Assessment had commenced action. Respondents nevertheless commenced actions alleging Intact breached hold harmless agreements. Intact delivered notice of intent to defend in each action, but did not deliver statements of defence. Respondents moved promptly to obtain default judgment and noting of default. Intact moved to set aside defaults. Motion judge accepted that Intact moved promptly, had at least arguable defence and that setting aside defaults would not adversely affect integrity of administration of justice but refused to set aside defaults on ground Intact did not have reasonable explanation for default and respondents would be more prejudiced by granting Intact indulgence than Intact would be prejudiced by refusal to set aside defaults. Intact’s appeal allowed. Court has discretion to set aside default “on such terms as are just”. Motion judge considered relevant factors, but erred in refusing to set aside defaults because Intact had reasonable explanation and respondents would not have been prejudiced. Proper interpretation of hold harmless agreements was fundamental to Intact’s submission it had reasonable explanation but motion judge stopped short of interpreting the agreements. On plain wording, agreements did not come into effect until either Osler or Assessment sued respondents. Letters were “demands” for payment, not “claims”. Although Intact ought to have delivered statement of defence, it had reasonable explanation or excuse for not doing so. Setting aside defaults would cause no prejudice to respondents. Intact could not prevent either service provider from suing respondents and was entitled to resist paying full amounts on ground accounts were allegedly unjustified. Intact would be prejudiced if defaults not set aside because it could become liable for outstanding accounts it disputed and may not have obligation to pay. Shortness of period between delivery of statement of claim and noting of default, 45 days, was consideration on question of prejudice.
Intact Insurance Co. v. Kisel (Mar. 26, 2015, Ont. C.A., Laskin J.A., Simmons J.A., and Watt J.A., File No. CA C59338, C59339) Decision at 243 A.C.W.S. (3d) 556 was reversed.  251 A.C.W.S. (3d) 51.

Constitutional Law


Human rights did not include right not to pay tax

Corporation wholly owned by taxpayer paid taxpayer certain amounts in 2007 through 2010 taxation years. Taxpayer reported some amounts as employment income, and other amounts were reported by corporation and taxpayer as subcontract payments. Canada Revenue Agency treated difference between what was reported by taxpayer and what was paid to him by corporation as income for 2007 through 2010. Taxpayer appealed. Appeal dismissed. Human rights as advanced in Canadian Constitution, Canadian Charter of Rights and Freedoms and international human rights treaties did not extend to not paying tax and did not include right not to pay tax. Taxpayer acknowledged that if his arguments did not succeed, amounts reassessed and penalties imposed would be properly payable.
R. v. Davis (Mar. 17, 2015, T.C.C. [Informal Procedure], Patrick Boyle J., File No. 2014-3081(IT)I) 251 A.C.W.S. (3d) 170.



Reasonable for employer to request further medical information from worker upon return to work

Appellant worker was employed by respondent employer as operator of grain terminal for approximately 20 years. Worker left work ill and was hospitalized. Worker filed claim with Workplace Safety and Insurance Board (WSIB) claiming that symptoms he experienced were possible result of toxic allergic reaction to grain dust. Worker notified employer that his doctor advised him he could not return to work due to health concerns. WSIB informed worker that evidence did not establish occupational disease. Worker presented two-line note from family doctor to employer that stated that he was capable of returning to his job. Employer told worker he could not return to work until he presented better doctor’s note. Employer placed worker on temporary layoff. Seasonal lay-offs occurred every year. Worker filed complaint of unjust dismissal. Adjudicator determined that employer had constructively dismissed worker and that dismissal was unjust. Employer applied for judicial review. Judge found that it was clear that worker’s claim only related to conversation he had with employer that he could not return to work until he provided better doctor’s note and not to seasonal lay-off notice. Judge found that adjudicator’s decision was unreasonable because it had nothing to do with conversation. Adjudicator’s decision was set aside. Worker appealed. Appeal dismissed. Judge properly selected reasonableness as standard of review. Judge properly found that worker’s complaint related to conversation he had with employer concerning providing better doctor’s note. Adjudicator properly outlined test for constructive dismissal, but there was no basis upon which he could have reasonably concluded that employer constructively dismissed worker. Conversation that occurred between parties did not amount to change in fundamental term of worker’s employment. It was clear that worker continued to have substantial health problems. In circumstances, it was reasonable for employer, who had obligation to ensure safety of its employees, to request further medical information from worker upon his return to work. Two-line doctor’s note worker provided did not contain enough information for employer to satisfactorily conclude that worker could safely return to work.
Donaldson v. Western Grain By-Products Storage Ltd. (Mar. 4, 2015, F.C.A., Johanne Gauthier J.A., David G. Near J.A., and A.F. Scott J.A., File No. A-360-12) Decision at 218 A.C.W.S. (3d) 855 was affirmed.  251 A.C.W.S. (3d) 143.

Charter of Rights


Overholding detention to accommodate shift scheduling breached s. 9 of Charter

Accused, charged in seven-count indictment with offences relating to robbery, applied to exclude in-custody statements to police and stolen wallet he possessed when arrested. Accused was charged with one count of possession of weapon, two counts of uttering threats, two counts of forcible confinement, one count of being unlawfully in dwelling house and one count of conspiracy to commit indictable offence. Accused alleged he was over held during period immediately following his arrest and until his first statement; that he was not taken before justice within 24 hours, and was over held again after his statement to detective. Accused submitted delay in processing him was unreasonable. Accused was interrogated through noon hour next day of his arrest and interrogating detective decided not to charge accused with regards to marijuana charges on which he was originally arrested. Accused was detained on those drug charges according to Crown for 16.5 hours. Application allowed; statement and wallet excluded from evidence. Court accepted that from police perspective, circumstances of offences were not urgent and services of drug unit detective in middle of night served little purpose. It was relatively minor drug arrest. Officer in charge should have released accused on his recognizance. Possession of marijuana for purpose of trafficking is not crime that, of itself, merits continued detention. Instant circumstances fell into paradigm for timely release in accordance with legislation. Accused was detained overnight to accommodate combination of police service policy and unavailability of detective. Policy was laudable so long as resources were in place to honour Charter and Criminal Code requirements. Investigation was essentially done. Overholding detention to accommodate shift scheduling is unreasonable and breached accused’s s. 9 right to not be arbitrarily detained. Accused was not taken before justice of peace pursuant to s. 503 of Code or within 24 hours of arrest. That too was arbitrary detention. But for arbitrary detention, accused would not have been exposed to seizure and tracing of wallet and inculpatory statement under interrogation with detective. There was direct cause and effect. Cumulative breaches weighed balance in favour of exclusion.
R. v. Mohammed (Feb. 9, 2015, Ont. S.C.J., Rick Leroy J., File No. Ottawa 11-10307) 119 W.C.B. (2d) 484.

Breach of Trust by Public Official


Police officer committed breach of trust by submitting false accident reports

Trial of accused, who was suspended police officer, for 46 offences related to fraud, making false documents, breach of trust and obstruction of justice. Charges related to nine motor vehicle accident reports (MVAR) prepared by accused in 2010. MVARs resulted in insurers paying claims and incurring costs that totalled over $1 million. Accused joined police force in 1992 and prior to 2010 he never prepared MVAR without attending at scene. Accused did not attend at scene before he prepared MVARs that were subject of charges. He relied on information received from tow truck driver and from childhood friend. In seven cases he did not speak to any of drivers or passengers. In some cases MVAR indicated that traffic ticket was to be issued to at fault driver and these tickets were basis of obstruction charges. Crown claimed that accused was paid $6,000 per MVAR and accused understood that MVARs were for fake accidents and were to be used to defraud insurers. Accused claimed that he prepared MVARs as favours for friends and he believed accidents to be real and that information was accurate. At no time was he paid for MVAR. Accused convicted of all offences, with exception of four charges of attempting to obstruct justice, because no ticket showed up in system for accused never put them in basket to be processed. For each MVAR accused was charged with being party to offence by fraudulent means by obtaining funds in excess of $5,000. He made false document, knowing that it was false and he intended them to be acted upon. Accused further committed breach of trust by creating and submitting false MVAR. He prepared nine MVARs without attending scene or speaking to drivers and passengers. His notes were intentionally deceptive in that they indicated that he was on scene and that he dealt directly with drivers. Accused intentionally provided misleading information to dispatch and this resulted in unit history being inaccurate as to his location at time of purported accidents. At fault driver was charged in order to avoid detection by senior officers. He failed to submit tickets to be processed in court system to facilitate fraudulent scheme and to lessen risk of detection.
R. v. Watson (Feb. 13, 2015, Ont. S.C.J., Sproat J., File No. CR (P) 13-0097) 119 W.C.B. (2d) 594.

Civil Procedure


Order under s. 25 of Class Proceedings Act, 1992 (Ont.) was required

Plaintiffs were passengers on train that derailed. Action was certified as class action and had 45 class members. Defendant confessed judgment for four of five common issues. Parties participated in mediation, but it was not successful. Defendant made offers to settle. Class counsel refused to communicate offers to settle to class members on basis that it was premature to do so. Parties were not able to agree on how to proceed. Plaintiffs brought motion for order granting judgment on common issues; order appointing adjudicator; order setting terms of order under which adjudication would be conducted; and awarding plaintiffs costs of certification motion and of action. Motion granted. Common issues that defendant confessed to were not dispositive of action and action was about to enter individual issues stage. Order under s. 25 of Class Proceedings Act, 1992 (Ont.), was required. Section 25 of Act required court to define issues to be resolved in further hearing that would constitute individual issues stage of class action; determine who would decide issues; give necessary directions relating to procedures for individual issues stage; and set reasonable time limit for individual claims. Before resort could be made to s. 25 of Act, common issues stage must formally be brought to end and parties agreed judgment should issue for four common issues. With grant of judgment and entry into individual issues stage, there should be assessment of costs of class action up to completion of common issues stage. Class counsel was correct not to disseminate offers to settle until common issues stage had formally concluded. Before offers could be disseminated, common issues stage of class action had to be formally completed by judgment ordered; individual issues litigation plan needed to be negotiated and settled; offers to settle needed to be amended to undifferentiated lump sums; and notice to class members under s. 18 of Act had to be prepared.
Lundy v. VIA Rail Canada Inc. (Mar. 23, 2015, Ont. S.C.J., Perell J., File No. CV-12-447653-00CP) 250 A.C.W.S. (3d) 563
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