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Judge’s incomplete and unhelpful response to jury’s question compromised trial fairness

Ac  cused was charged with possession of cocaine for purpose of trafficking, and for importing and trafficking cocaine. Accused’s first trial before judge and jury ended in mistrial when jury could not arrive at verdict. Crown re-prosecuted again before judge and jury. At second trial jury convicted accused on possession and importing charges but it failed to arrive at verdict on trafficking charge. During deliberations jury asked, if they found accused guilty of importing cocaine, if they had to find him guilty of trafficking. Trial judge discussed question with both counsel and he then told jury that if they found accused guilty of importing they did not have to find him guilty of trafficking. Jury was entitled to take different views of evidence so that they could convict accused on one charge but not on other charge. Accused appealed conviction. Appeal allowed. Effect of answer was to tell jury, for first time, that evidence could support different verdicts on importing and trafficking charges. This conflicted with judge’s earlier repeated instructions regarding central issue in this case and legal consequences that would flow from jury’s determination of that issue. Judge provided no elaboration or guidance to jury on this alternate and late-breaking theory of case and he did not relate it to evidence or to parties’ positions at trial. Judge also failed to caution jury against engaging in impermissible verdict compromise based on expediency, frustration or desire to resolve case. It was dangerous and inappropriate to leave jury entirely adrift to assess alternate and conflicting bases of culpability on its own, without any reference to evidence and parties’ positions. Of particular concern, judge failed to provide any explanation to jury for conflict between his earlier instructions and his response to their question. New trial was necessary because judge’s incomplete and unhelpful response to question compromised trial fairness and may have led to unsafe verdicts.
R. v. Lapps (Feb. 23, 2016, Ont. C.A., Doherty J.A., E.A. Cronk J.A., and H.S. LaForme J.A., CA C59288) 128 W.C.B. (2d) 315.


Child under 14 years

Accused not permitted to introduce evidence regarding validity of apprehension warrant

It was alleged that accused, without lawful authority, took child out of possession of and against will of children’s aid society, guardian of child, contrary to s. 280 of Criminal Code. Accused were charged with abducting person under age of 16. Accused brought application to be permitted to ask questions and introduce evidence regarding validity of apprehension warrant, to argue that apprehension warrant should be found invalid, and to argue that, if apprehension warrant was found invalid, accused were lawfully entitled to take child. Application dismissed. Child and Family Services Act (Ont.) provided adequate remedial mechanism to party seeking to “undo” ongoing effects of apprehension warrant that was sufficient to validate society’s demand for interim compliance with such judicial order to promote and ensure rule of law. There was no basis for relaxing rule barring collateral attacks on such judicial orders. Doing so in circumstances of this case would be destructive of rule of law insofar as it would jeopardize orderly and functioning administration of justice in relation to child protection matters and bring that system of justice into disrepute.
R. v. Plumstead (Feb. 19, 2016, Ont. S.C.J., I.F. Leach J., 15-552) 128 W.C.B. (2d) 311.



Tax authority not entitled to assess portions of building in which school operated

Applicant owned single building complex that housed both church and school. School was operated by corporation incorporated by church for insurance and liability purposes, but was fully controlled by and financially dependent on church. Respondent tax authority conceded that both church and school would likely be tax-exempt if they operated separately, or church would be tax-exempt if it operated school itself, but submitted school had to be considered separate entity in circumstances, and was taxable because it did not own land or have exclusive lease of it. As a result, respondent sought to assess portions of building in which school operated. Application for judicial review. Application granted. School and church were part of single patrimony, and respondent’s position frustrated operation of Assessment Act (Ont.). There was no dispute that church was church or religious organization within meaning of s. 3(1)(3), and school was non-profit philanthropic, religious or educational seminary of learning with meaning of s. 3(1)(5). Idea that exemptions were to be narrowly construed no longer applied. No doubt primary purpose of occupation of land by church was to house place of worship, and “school” sections, such as classrooms and gym, were also integral part of church. That they were used by school in off hours did not detract from their purpose, so all parts except school administrative areas fell under s. 3(1)(3)(i) exemption. Exemption in s. 3(1)(5) applied to all contested school use areas since they shared common patrimony with church. Decision did not deal with church book store and supply shop, but church could re-apply with better evidence, or to daycare housed in separate area of building.
St. George and St. Rueiss Coptic Orthodox Church v. Municipal Property Assessment Corp. (March 9, 2016, Ont. S.C.J., S.F. Dunphy J., CV-11-442880) 264 A.C.W.S. (3d) 302.

Administrative Law

Duty to act fairly

Imposition of sanctions on basketball officials set aside

CG was voluntary head coach of high school basketball team while JG and N were voluntary assistant coaches. Association was voluntary not-for-profit organization for basketball officials in province. CG and JG were members of association in their capacity as officials. Team coached by CG, JG, and N lost playoff game in final seconds, resulting in team’s elimination from playoffs. CG, JG, and N blamed referees for calling disproportionate number of penalties against team in last 90 seconds of game. Committee of association conducted hearing by conference call after providing CG, JG, and N with copies of reports from game officials but not initial complaint. N and official H were not able to participate. Committee considered information from H that had not been disclosed. Association imposed sanctions on CG, JG, and N based on committee’s findings. CG and JG appealed, and all sanction periods were reduced by one-half. CG, JG, and N nonetheless brought application for judicial review. Application granted. Association’s decision imposing sanctions on CG, JG, and N was set aside. Association’s disciplinary procedure had to afford CG, JG, and N natural justice and procedural fairness in order to be valid. Authorities indicated proceedings that involved loss of person’s ability to earn income attracted highest level of fairness. In case of CG and JG, sanctions deprived them of opportunity to earn income by officiating basketball games for significant periods of time. Association’s notice of hearing had not communicated seriousness of matter. Even minutes of conference call did not indicate that seriousness of matter had been communicated. N had not received notice of hearing directly. CG, JG, and N had never been provided with initial complaint or full contents of one report. Proceeding with hearing in absence of N and H was inappropriate, as was reliance on undisclosed oral statement of H. CG had not been given notice that Twitter postings would be considered, and they were mischaracterized as occurring over several days rather than just one. No explanation was provided as to how length of sanctions was arrived at. Given seriousness of some of these errors, appellate process was not sufficient to cure procedural defects in original hearing.
Gymnopoulos v. Ontario Assn. of Basketball Officials (March 2, 2016, Ont. S.C.J., L. Bird J., DC-15-898-00) 264 A.C.W.S. (3d) 281.

Constitutional Law

Charter of Rights

Claims of economic “think tank” against Crown disclosed no reasonable cause of action

Plaintiff Committee for Monetary and Economic Reform (COMER) was economic “think tank” and individual plaintiffs were members of COMER. Amended statement of claim sought declarations relating to assertions that Bank of Canada Act (BCA) provided for interest-free loans to governments for purposes of “human capital expenditures,” and defendants failed to fulfill their legal duties to ensure such loans were made, resulting in lower human capital expenditures by governments to detriment of all Canadians. Plaintiffs asserted that these harms were result of Canadian fiscal and monetary policy. Plaintiff sought declaration that taxes imposed to pay for interest on deficit and debt to private bankers were illegal and unconstitutional. Plaintiffs asserted defendants breached Constitution Act, 1867 (Can.) and s. 3 of Canadian Charter of Rights and Freedoms. Plaintiffs sought damages. Defendants brought motion to strike amended statement of claim. Motion granted. It was plain and obvious that claims disclosed no reasonable cause of action and had no reasonable prospect of success. Taxation issues raised were not justiciable. No constitutional principle was breached or principle of taxation without representation. No facts were pleaded to support allegation that MPs were voting blind and were hoodwinked by Minister of Finance. There was nothing in facts as pleaded in amended claim to suggest that Parliament was not fully aware of criticisms levelled by plaintiffs against Minister of Finance and that parliamentarians were not free to question and debate any budget presented from perspective of those criticisms. Plaintiffs were attacking Parliamentary process and jurisprudence was clear that court could not interfere with way Parliament went about its business. COMER as unincorporated association had no electoral rights. There were no material facts in amended claim that linked impugned legislative scheme embodied in BCA to effect on plaintiffs. Plaintiffs were asking court for advisory opinion in form of declarations that their view of way BCA and Constitution should be read was correct. Court was not to declare law generally or to give advisory opinion, but was to decide and declare contested legal rights.
Committee for Monetary and Economic Reform (COMER) v. R. (Feb. 8, 2016, F.C., James Russell J., T-2010-11) 264 A.C.W.S. (3d) 381.

Administrative Law


Application to compel processing of permanent residence applications under federal skilled workers class was dismissed

Applicants’ applications for permanent residence under foreign skilled workers (FSW) class were terminated by s. 87.4 of Immigration and Refugee Protection Act (Can.), which eliminated backlog of FSW applications by cancelling those made prior to specified date where no selection decision was made before set date. Protocol was prepared under lead case to promote expediency and better organize litigation. Applicants brought application to compel respondent to process applicants’ permanent residence applications under FSW class. Application dismissed. There was no basis on which court could order mandamus based on Protocol alone. Applicants had no vested rights to enforce. Protocol clearly contemplated that disposition of their applicants might not be possible. Protocol said nothing specific about what was to happen if law applicable to applicants’ FSW applications changed before they could be dealt with. Undertaking to be “guided by” decisions in representative cases did not include promise to process applications even if they were validly terminated by Parliament. Section 87.4(2) did not exempt applicants from s. 87.4(1). Applications were terminated by operation of law and court could not order mandamus. Protocol was not final determination of application and it contemplated possible disposition of remaining cases. There was nothing to suggest that Bill C-38 or Jobs, Growth and Long-term Prosperity Act (Can.) were not enacted in accordance with normal legislative procedures and safeguards. Doctrine of legitimate expectations did not arise. Language of s. 87.4 clearly displaced any legitimate expectation that applications would be processed to completion. Protocol contemplated that it might not be possible to process applications to completion. Public policy considerations were not humanitarian and compassionate considerations and court was in no position to second guess or order minister to do anything on basis of public policy. Applicants’ arguments with respect to breach of constitutional rights were already dealt with. Applicants’ constitutional and judicial independence arguments were masking their real arguments, which were that, in deciding these mandamus applications, court was to ignore impact of s. 87.4. Much of what applicants alleged as abuse of process was no more than assertion that protocol should prevail over s. 87.4, humanitarian and compassionate factors should have been applied to avoid impact of s. 87.4 in their FSW applications, and that overall result was simply unfair to them.
Gong v. Canada (Minister of Citizenship and Immigration) (Feb. 29, 2016, F.C., James Russell J., IMM-6828-12, IMM-1-13) 264 A.C.W.S. (3d) 471.

Industrial and Intellectual Property


Federal Court erred in relying on lack of evidence about American law as basis for dismissal of copyright claim

Plaintiff owned and published Indian Punjabi-language daily newspaper called “Ajit Daily.” Bains defendants owned and published Canadian Pubjabi-language newspaper called “Ajit Weekly.” There was litigation between parties over use of Ajit name and partial settlement agreement was reached (PSA). PSA provided for limited license to Bains defendants to use Ajit Daily logo from specified date and for further license to use approved variation of logo under conditions. New York law was to govern PSA. Plaintiff claimed Bains defendants infringed its copyright in Ajit Daily logo. Plaintiff’s claims of copyright infringement were dismissed because of lack of evidence about American law. Plaintiff appealed and sought to set aside part of judgment dismissing claims against Bains defendants. Appeal allowed. Federal Court made legal and reviewable factual errors that were central to its decision to dismiss claims against Bains defendants. Claims against Bains defendants were remitted back to Federal Court for re-determination. Federal Court erred in law in relying on lack of evidence about American law as providing basis for dismissal of copyright claim. Lack of evidence about American law was not impediment to Federal Court interpreting PSA to adjudicate copyright claim. Canadian conflict law principles provide that court faced with interpreting contract that contained choice of foreign law clause should apply domestic law if it had no evidence as to content of foreign law. Fact Bains Defendants’ masthead complied with PSA at time of summary trial did not provide basis for dismissal of copyright claim in its entirety. PSA provided only for license to Bains Defendants to use Ajit Daily logo, or variation of it from specified date onwards and contained no release for acts of infringement that pre-dated that specified date. Choice of forum provision contained in PSA did not provide basis for dismissal of copyright claim because parties attorned to jurisdiction of Federal Court for adjudication of copyright claim through their pleadings and no party objected to Federal Court’s jurisdiction by reason of choice of forum clause in PSA. Federal Court erred in deferring dispute to New York courts on its own motion because court could not of its own motion decline to hear dispute that fell within its jurisdiction based on its belief that another forum was more appropriate.
Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. (March 2, 2016, F.C.A., J.D. Denis Pelletier J.A., David Stratas J.A., and Mary J.L. Gleason J.A., A-570-14) Decision at 248 A.C.W.S. (3d) 179 was varied. 264 A.C.W.S. (3d) 478.

Civil Procedure

Want of prosecution

Motion judge erred in assessment of prejudice

Plaintiffs brought action related to slip and fall of plaintiff at border crossing plaza. After plaintiffs’ counsel’s staff inadvertently failed to request status hearing from court registrar dismissed action. More than two years went by before plaintiffs brought motion to set aside registrar’s dismissal order. Motion judge refused to set aside dismissal order, finding that defendants were significantly prejudiced by plaintiffs’ delay. Plaintiffs appealed. Appeal allowed; action reinstated. Motion judge erred in her assessment of prejudice, which was at heart of her decision to dismiss plaintiffs’ motion. Motion judge’s findings of prejudice to defendants did not arise from plaintiffs’ delay but from factors either pre-dating any delay or stemming from defendants’ failure to take appropriate steps to alleviate prejudice. Motion judge’s error concerning prejudice played essential part in reasoning process that led her to dismissal of plaintiffs’ motion. Without finding of prejudice, contextual analysis resulted in conclusion that order be set aside. Factor of delay by itself was not sufficient in circumstances to deny plaintiffs’ request to reinstate action. There was no evidence that delay was product of deliberate decision not to take steps in proceedings. Present case was not instance where finality must trump preference of having action heard on its merits.
Labelle v. Canada (Border Services Agency) (Mar. 7, 2016, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60307) Decision at 254 A.C.W.S. (3d) 558 was reversed. 264 A.C.W.S. (3d) 86.

Civil Procedure


Trial judge did not err in refusing adjournment

Trial judge found appellants fraudulently submitted false information to respondent bank in order to obtain loans and found them liable for over $10 million in damages for fraudulent misrepresentation, negligent misrepresentation, conversion and conspiracy. Events giving rise to litigation occurred in 2007. Appellants commenced action claiming declarations they were not liable on guarantees. Bank counterclaimed. Three weeks before trial, appellants served notices of intention to act in person. They stated they would not be pursuing their claim and trial to proceed on counterclaim. Days before trial, however, appellants advised bank’s counsel they would be seeking adjournment to retain new counsel, explaining that they hoped to settle up to last minute. Appellant P produced doctor’s letter stating he was being treated for depression and could not participate in legal proceedings until his condition improved. His condition was long-standing but he obtained letter on day he filed notice of intention to act in person. Bank opposed adjournment. Trial judge refused adjournment, finding that trial had been scheduled for a year, it was appellants’ obligation to proceed expeditiously, it would likely be another year before another trial could be scheduled, appellants signified intention to act in person and had not taken any steps to consult with counsel in interim and P’s medical condition not raised until adjournment sought. Appellants did not call any evidence. Trial judge gave lengthy reasons for judgment. Appellants appealed, arguing trial judge erred in refusing adjournment by failing to consider all relevant circumstances. Appeal dismissed. Trial judge has discretion to decide whether adjournment request ought to be allowed or denied. Factors considered by trial judge justified her decision. Appellants gave notice of intention to act in person and had ample time to retain new counsel. Appellants were self-represented due to own decision to put off trial preparation in hope of settlement. Trial judge clearly considered nature of case, matters in dispute, appellants’ familiarity with issues and their relative sophistication. Issues were not complex and defence was entirely within appellants’ personal knowledge. Trial judge could reasonably conclude appellants would be capable of defending claim without assistance of counsel. Bank would be prejudiced by further delay of case already five years old. There was also public interest in efficient use of scarce judicial resources and in timely, efficient and fair resolution of trials. Trial judge properly took these factors into account.
Turbo Logistics Canada Inc. v. HSBC Bank Canada (Mar. 23, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C58073) Decision at 234 A.C.W.S. (3d) 800 was affirmed. 264 A.C.W.S. (3d) 85.


Opinion evidence

First Nations granted leave to file expert report and call expert as witness

First Nations commenced action against federal government in 1992 for relief for breach of fiduciary duty in making certain treaties in 1923. Federal government commenced third-party claim against provincial government. Parties engaged in negotiations until 2000. First Nations hired expert S to interview First Nations’ members to assist in identifying potential witnesses. Expert S interviewed 174 members of First Nations and began drafting expert report on First Nations’ oral history of treaties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations’ oral history of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S’s work. First Nations brought motion for leave to file expert M’s report and to call him as expert witness. Motion granted on terms. Comprehensive order was made regarding conduct of trial, including how expert M’s evidence was to be addressed. First Nations’ oral narratives recorded by expert S and analysed by expert M constituted both oral history evidence and hearsay evidence on treaties. Expert M was anthropologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M’s report was not. Expert M’s report was relevant and necessary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S engaged in research using academically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S’s work could be assessed through expert M’s expert testimony. Some First Nation interviewees would be available to testify and be cross-examined. In addition, federal and provincial governments identified archival oral history recordings that were also available for comparison. Various mitigative measures would adequately address much prejudice arising from late filing of expert M’s report.
Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1.

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