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Criminal Law

Narcotic and drug control

Evidence

Reasonable and probable grounds for arrest were objectively established

Following 911 call, dispatch radioed officers with information of person with gun. Dispatch alerted officers that suspects had firearm and were in silver four-door Dodge sedan. Two occupants of vehicle were light-skinned black males who appeared to be under 24 years of age. Officer stopped Dodge sedan at issue and initiated high risk takedown. Officer handcuffed accused and told him that he was under arrest for possession of firearm. Accused was found to have marijuana and cocaine on his person. Accused brought unsuccessful application to have cocaine excluded from evidence. Accused was convicted of possession of cocaine for purpose of trafficking. Accused appealed decision to include evidence of cocaine. Appeal dismissed. When officers first encountered suspect vehicle, it was being driven at high rate of speed. Everything that officers saw was consistent with information that 911 callers had given. There was no reason to discount information. Officers had every reason to believe that occupants of suspect vehicle were in possession of handguns. Reasonable and probable grounds for arrest were objectively established.
R. v. Carelse-Brown (2016), 2016 CarswellOnt 19894, 2016 ONCA 943, K. Feldman J.A., E.E. Gillese J.A., and M.L. Benotto J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Police breached accused’s Charter rights

Accused was convicted of dangerous driving causing bodily harm and assault with weapon, namely motor vehicle. Charges arose out road rage incident involving accused and van driver, who cut accused’s car off, got out of his van, and approached accused. Accused drove forward, striking van driver. Following his arrest for dangerous driving, accused spoke to duty counsel, but after interview officer told him that he was also going to be charged with assault with weapon, accused asked to contact his own lawyers. Interview officer attempted to contact accused’s lawyers, but upon being told that accused had spoken to duty counsel, officer concluded that accused had had opportunity to consult with counsel and continued interview. Accused appealed convictions, alleging that trial judge erred in failing to find that his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were breached and in failing to exclude evidence of police interview under s. 24(2) of Charter. Appeal allowed. In determining whether accused’s jeopardy had changed, trial judge erred in focusing on facts that charges arose from same circumstances, offences carried same maximum penalty, and new charge was hybrid offence. Assault with weapon charge significantly increased accused’s alleged moral blameworthiness as it required proof that he acted intentionally to harm van driver, rather than that his driving constituted marked departure from norm, and it markedly increased potential penalty. It would be speculative to assume that advice from duty counsel, and accused’s reaction to that advice, would necessarily have been same regardless of any advice about additional charge. Trial judge erred in failing to find that police breached accused’s rights under s. 10(b) of Charter, and his s. 24(2) analysis attracted no deference. New trial ordered.
R. v. Moore (2016), 2016 CarswellOnt 19828, 2016 ONCA 964, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Class proceeding was preferable procedure

Plaintiff commenced class action alleging defendants controlled supply of gem grade diamonds in order to increase price, which in turn resulted in sales in retail market at inflated prices. Proceedings were commenced in Ontario, British Columbia, Quebec and Saskatchewan. Plaintiffs reached resolution with defendants. Parties brought motion for order on consent certifying class for settlement purposes and for approval of notices of hearing for court approval of settlement. Motion granted. Cause of action was clearly and plainly disclosed in pleadings, arising from alleged breach of Competition Act and tort of conspiracy. Proposed class was defined objectively and its membership was readily discernible. Claim raised common legal and factual issues about existence, extent and effect of alleged conspiracy. Class proceeding was preferable procedure. Proposed notices and plan of dissemination were acceptable.
Brant v. De Beers Canada Inc. (2016), 2016 CarswellOnt 18869, 2016 ONSC 7515, H.A. Rady J. (Ont. S.C.J.).

Civil Practice and Procedure

Actions involving parties under disability

Mental incompetents

Proposed settlement was approved by court

Court approval of settlement. Insured was elderly man who suffered significant head injury when struck by vehicle while walking across roadway. Insurers paid more than $1.3 million for statutory accident benefits (SABs). Insurers offered to settle insured’s SAB claim by payment of $180,000 for future attendant care, $180,000 for future medical and rehabilitation benefits, $10,000 for costs, and $3,000 for assessable disbursements. Insured’s solicitors would receive total of $53,680 from settlement amount. Insured, through his litigation guardian, applied for order approving proposed full and final settlement of his SAB claim. Application granted. Insured’s solicitors had obtained settlement that was in best interests of insured and that would adequately look after his needs. Resolution of SAB claim on full and final basis would bring end to claim and negate need to participate in dispute resolution process regarding any future denial of benefits requested. Proposed settlement represented fair and appropriate resolution of insured’s claims for SABs having regard to complete factual matrix of case. Proposed legal fees were fair and reasonable.
Kwok (Litigation guardian of) v. State Farm Mutual Automobile Insurance Co. (2016), 2016 CarswellOnt 19083, 2016 ONSC 7339, Firestone J. (Ont. S.C.J.).

Constitutional Law

Procedure in constitutional challenges

Miscellaneous

Amended statement of claim was struck in its entirety

Plaintiffs, economic think-tank and its members, brought action against Crown defendants with respect to Parliament’s handling of economic and monetary issues, challenging constitutionality of Bank of Canada Act and alleging conspiracy and misfeasance in public office. Crown’s motion to strike statement of claim was granted. On plaintiffs’ appeal, they were granted leave to amend. Plaintiffs’ amended statement of claim abandoned claims under ss. 7 and 15 of Canadian Charter of Rights and Freedoms and instead claims breach of s.3 of Charter. Crown’s motion to strike plaintiffs’ amended statement of claim in its entirety was granted, without leave to further amend, with motion judge ruling that it did not disclose reasonable cause of action as plaintiffs were asking for advisory opinion via declarations. Plaintiffs appealed. Appeal dismissed. Plaintiffs reiterated their arguments, focusing on issue of standing and right to seek declarations of constitutionality. Right to remedy was conditional on existence of justiciable issue. Even on least deferential standard, no error could be detected in motion judge’s ruling. Plaintiff’s arguments had been fully considered and nothing could usefully be added to further explain why their claims were bound to fail. Considering discretionary element in motion judge’s decision that leave to amend should not be granted second time, no error could be detected in that conclusion.
Committee for Monetary and Economic Reform v. R. (2016), 2016 CarswellNat 6635, 2016 FCA 312, Noël C.J., Near J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3751, 2016 CarswellNat 381, 2016 FC 147, 2016 CF 147, James Russell J. (F.C.).

Civil Practice and Procedure

Practice on appeal

Staying of proceedings pending appeal

Board obtained stay of tribunal’s order pending appeal

Toronto Real Estate Board was not-for-profit corporation whose members acted as real estate agents or brokers, and all of its members were also members of Canadian Real Estate Association. Board offered services to its members, including access to MLS database which contained extensive information about listed properties, but members were restricted to what portions of information they could place on their own websites that were made available to members of public. Commissioner of Competition complained that certain of board’s practices violated s. 79 of Competition Act. Competition tribunal found that MLS rules that prohibited board’s members from posting information to their own websites about sold, withdrawn, expired, suspended or terminated listings and about details of pending sold listings constituted abuse of dominant position under s. 79 of Act. Board appealed. Board brought motion for stay of tribunal’s order pending disposition of appeal. Motion granted. Board met threshold of raising at least one serious issue with respect to possibility that tribunal’s order failed to give adequate consideration to property owners’ privacy rights. There was non-frivolous argument that tribunal did not fully consider all relevant potential impacts of its order on third party privacy interests. Board would suffer irreparable harm if requested stay was not granted because there was real possibility that it would lose control over data order required it to permit its members to post on their websites. Once information was available on internet it could be copied, and there was no way to ensure that all copies would be retrieved by board if they were successful on appeal, which would render appeal nugatory. Balance of convenience favoured stay given potential for interference with third party privacy interests and fact that stay would effectively continue status quo. Appeal should be expedited to minimize detriment to public interest in having violation of Act remedied as soon as possible.
Toronto Real Estate Board v. Canada (Commissioner of Competition) (2016), 2016 CarswellNat 6636, 2016 CarswellNat 6637, 2016 FCA 204, 2016 CAF 204, Mary J.L. Gleason J.A. (F.C.A.).

Criminal Law

Post-trial procedure

Detention and release after trial

Continued detention was warranted

Accused, now 63 years old, was found not guilty by reason of insanity of using weapon while committing sexual assault and had been detained under jurisdiction of Ontario Review Board for over 30 years. At his last annual hearing, accused was unrepresented and his request for adjournment to retain counsel was denied because hearing date was marked peremptory. Hospital sought accused’s continued detention but asked Board to transfer him to another hospital because he was unmanageable. Board found that accused’s continued detention was warranted because he remained significant threat to safety of public, but refused to order his transfer to another hospital. Appeal by accused dismissed. Board erred in its approach to accused’s request for adjournment and in not specifically addressing his complaint about sleep deprivation. Peremptory designation did not exhaust Board’s discretion or preclude it from granting adjournment if one was required in interests of justice. Refusing adjournment solely because hearing date had been designated peremptory amounted to error in principle. However, in practical terms, issue was moot. On central issue of whether accused should be transferred to another hospital, Board concluded that evidence of doctors who testified as to ongoing abuse and trauma that accused had allegedly inflicted on numerous hospital staff members was outweighed by dramatic improvements in accused’s condition while at hospital. Accused insisted on being awakened for hourly checks on his condition during night, leading to ongoing sleep deprivation. Board did not address issue in its reasons. Board was obliged to explore what hospital had done to address accused’s sleep problem in more detail than it did at last hearing. Board was urged to explore issue of accused’s sleep deprivation and, if not already done, was directed to obtain independent opinion.
Conway, Re (2016), 2016 CarswellOnt 19061, 2016 ONCA 918, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3966, N.D. McRae Alt. Chair, J. Burnside Member, G. Nexhipi Member, T. Verny Member, and J. Cyr Member (Ont. Review Bd.).

Criminal Law

Narcotic and drug control

Offences

New trial was ordered

Evidence. Accused drove transport truck loaded with raspberries from California to Ontario. When Canada Border Services Agency officers opened trailer of accused’s truck at border crossing, they saw two suitcases on top of skids of raspberries, which contained 39 kilograms of cocaine. Accused was charged with importing and possessing cocaine for purpose of trafficking. Accused denied seeing luggage on load in truck. Crown led evidence that accused had considerably under-reported length of his stop in California, and evidence suggesting it was unlikely that luggage was loaded on truck at same time as berries. Accused was acquitted and Crown appealed. Appeal allowed. Trial judge erred by making findings of fact based on speculation, and relied on those findings to conclude that accused was not “only” person who would be in position to retrieve drugs. Significance of that conclusion to trial judge’s ultimate determination was readily apparent when considered in context of defence that accused was “blind courier”. Trial judge also erred by failing to consider all of evidence in relation to ultimate issue of guilt by using piecemeal approach, effectively requiring Crown to prove each individual piece of evidence beyond reasonable doubt. Failure to consider evidence as whole is error of law warranting appellate intervention. Trial judge’s legal errors clearly affected his verdict of acquittal. New trial ordered.
R. v. Knezevic (2016), 2016 CarswellOnt 18886, 2016 ONCA 914, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.).

Business Associations

Legal proceedings involving business associations

Practice and procedure in proceedings involving corporations

Appeal was transferred to Divisional Court

Shareholders commenced action against corporations in negligence for failing to prevent or detect fraud. Corporations moved to strike portions as amended statement of claim. In response, shareholders moved under s. 246 of Ontario Business Corporations Act (Act) for leave to commence derivative action. Motion judge found shareholders’ motion was statute-barred by virtue of s. 4 of Limitations Act, 2002. Shareholders appealed to Ontario Court of Appeal. Appeal transferred to Divisional Court. Order under appeal was order within meaning of s. 255 of Act, and appeal lay to Divisional Court.
1186708 Ontario Inc. v. Gerstein (2016), 2016 CarswellOnt 18627, 2016 ONCA 905, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Bankruptcy and Insolvency

Discharge of bankrupt

Conditional discharge

Condition imposed was not unreasonable

Bankrupt misappropriated over $5 million from clients while employed as investment advisor by creditor. Bankrupt was ordered to pay restitution to creditor but did not do so. Creditor petitioned bankrupt into bankruptcy and filed proof of claim for amount it had reimbursed its clients. During bankruptcy, bankrupt received disability payments of $13,000 to $15,000 per month but paid no surplus income. Master ordered that, as condition of discharge, bankrupt was to pay $284,346 to Trustee as surplus income up to certain date, payable at $5,000 per month. Master also ordered bankrupt to pay additional $5,000 per month to Trustee for further six years, referring to amounts as surplus income payments. Master suspended discharge from bankruptcy for two years, subject to payment of surplus income. Bankrupt appealed, alleging Master erred in ordering him to pay further $5,000 per month of “surplus income” for six years as condition of discharge. Appeal dismissed. When viewed in their entirety, Master’s reasons did not refer to surplus income within meaning in s. 68 of Bankruptcy and Insolvency Act but instead referred to income which is available for payment pursuant to condition of bankrupt’s discharge under s. 172 of Act. Master was clear that further payment was imposed as condition of bankrupt’s discharge without any reference to surplus income under s. 68. Condition imposed was not unreasonable. Duration of payments was not unduly long. Circumstances of case were exceptional, both in terms of breach of trust and fraud that gave rise to creditor’s claim and in terms of amount of claim.
Cole v. RBC Dominion Securities Inc. (2016), 2016 CarswellOnt 19513, 2016 ONSC 7110, H.J. Wilton-Siegel J. (Ont. S.C.J.).
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After the Supreme Court set out a framework to assess the independence of expert witnesses, litigators have different opinions about whether it’s too difficult to exclude expert evidence on the basis of bias. What do you think?
Yes, it remains very hard to get this evidence excluded, but this may change as trial court judges pay more attention to the backgrounds of expert witnesses.
No, it is not hard to get this evidence excluded, as the courts continually refine the role of experts in both criminal and civil litigation.