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Charter of Rights

Right to interpreter

Onus is upon claimant of right seeking not to testify in language of judicial proceeding

At outset of criminal trial, court was advised that Punjabi interpreter would be required for complainant. Punjabi interpreter was provided for complainant without specific inquiries being made about why complainant could not be accommodated in one of Canada’s official languages. As trial progressed, it became evident that complainant understood, and was able to communicate in, English. Parties made submissions about appropriate remedy. Mistrial declared and re-trial ordered. Four factors contributed to mistrial decision. First, trial testimony had only consumed about three and one-half hours. Second, complainant did not visibly experience discomfort while testifying. Third, complainant indicated preparedness to investigating officer to return to testify in English. Fourth, with trial very much about credibility of principal witnesses, interpretation filter materially interfered with trier of fact’s ability to make credibility determinations. Appropriate remedy was for complainant to testify again in English with help of stand-by interpreter if required. Needs assessment ought to have been conducted at outset of trial respecting complainant testifying through interpreter. Section 14 of Canadian Charter of Rights and Freedoms presumes that witness will testify in one of Canada’s official languages absent showing that witness does not understand or speak language of trial proceedings. Onus is upon claimant of right seeking not to testify in language of judicial proceeding.
R. v. Singh (June 3, 2016, Ont. S.C.J., Hill J., Brampton CRIMJ(P) 609/14) 131 W.C.B. (2d) 317.


Proof of offence

Discreditable conduct evidence was relevant to motive

Either residence’s owner or accused started fire in hole in basement stairway wall of owner’s 150-year old farmhouse. Accused and complainant, in romantic relationship at time, were only people at house that day. Crown alleged accused started fire at issue to avoid having to disclose to complainant that she did not have closing funds she claimed she had for property parties were supposed to buy together. That, in turn, would have risked exposing accused’s lies about her marriage, money she claimed to be receiving from her husband’s death and sale of their matrimonial home. Accused appealed her conviction for arson, arguing that trial judge reversed burden of proof, improperly allowed discreditable conduct evidence, and misapprehended evidence. Appeal dismissed. Discreditable conduct evidence was relevant to motive and properly admitted. Trial judge did not reverse burden of proof and impugned statements reflected he was responsive to defence arguments. While complainant had opportunity to set garage fire, trial judge rejected only apparent motive he would have had to start that fire: namely, to collect home insurance. That finding was based on accepting complainant’s evidence that he would not have benefitted from insurance claim, and was entitled to deference. Accused had motive to set house fire as trial judge found and even on her evidence, accused had about two to three minutes of opportunity to start garage fire. Trial judge found that accused was not credible witness on central issues of case such that misapprehension of impugned evidence would not have played central role in trial judge’s reasoning process resulting in conviction.
R. v. Bos (June 7, 2016, Ont. C.A., E.E. Gillese J.A., David Watt J.A., and M. Tulloch J.A., CA C56169) Decision at 103 W.C.B. (2d) 242 was affirmed. 131 W.C.B. (2d) 223.



Promotion and increased salary constituted fresh consideration to make contract valid

Defendant employed plaintiff for two years. Defendant asked if plaintiff would be interested in promotion with salary increase. Plaintiff said yes. Plaintiff later signed employment contract that contained termination clause. Plaintiff was given notice of immediate termination as result of corporate restructuring. Plaintiff was paid for two weeks in lieu of notice. Defendant asserted plaintiff’s employment was terminated with appropriate notice and package in accordance with employment contract. Plaintiff claimed damages for wrongful dismissal. Claim dismissed. Plaintiff was not entitled to any further notice or payment in lieu of notice. Contract and termination clause were enforceable and plaintiff was given notice in accordance with termination clause in employment contract. Verbal conversation was merely inquiry by manager as to whether plaintiff would be interested in new position created by defendant and not acceptance of employment contract. Plaintiff was informed at time of oral conversation that employment contract would be forthcoming with full details. By signing contract plaintiff accepted terms including promotion, salary increase, start date and termination clause. Plaintiff was sufficiently educated and had adequate time to review, consider and understand contract including termination clause. Plaintiff had ample time to ask defendant for any clarification needed and to seek appropriate professional advice. Promotion and increased salary constituted fresh consideration to make contract valid.
Gibbons v. BB Blanc Inc. (May. 24, 2016, Ont. S.C.J., J. Prattas D.J., Toronto SC-14-2070-00) 268 A.C.W.S. (3d) 549.

Conflict of Laws

Forum selection clause in escrow agreement was enforced
Real estate transaction contemplated plaintiff purchasing and then leasing back number of properties in Andorra to defendant CA. Agreement of purchase and sale required defendants to enter into escrow agreement and make deposit to be held in escrow. Agreement did not contain either choice of law or forum selection provision. Escrow agreement was executed and deposit was made by defendants. Sale did not close. Plaintiff brought action for damages for breach of contract in amount of deposit in escrow account. Defendants brought motion to stay action on basis that Ontario lacks jurisdiction simpliciter, or on basis that Ontario was not convenient forum. Motion dismissed. Essential nature of claim was entitlement to funds under escrow agreement. Escrow agreement gave Ontario jurisdiction simpliciter, and also contractually named Ontario as convenient forum for disputes. There was no evidence that enforcing forum selection clause in escrow agreement in favour of Ontario would frustrate some clear public policy. Defendants failed to meet burden to show Andorra would clearly be more convenient forum. Action was to proceed in Ontario.
Terracap Investments Inc. v. Credit Capital Immobilliari, S.A. (July 14, 2016, Ont. S.C.J. [Commercial List], Mesbur J., CV-15-11016-00CL) 268 A.C.W.S. (3d) 544.


Income tax

Explanation by decision-maker contained interpretive errors

Plaintiff, having no income tax product for 2009 fiscal year, was subject of first arbitrary tax assessment. Canada Revenue Agency has taken recovery action against plaintiff for 2009 and 2010 years. In 2013, plaintiff’s accountant tried to send tax return electronically but during attempt he received error message. In response to plaintiff’s complaint as to deceptive nature of error message, Canada Revenue Agency sent letter maintaining position of not accepting statement submitted for 2009 fiscal year. Plaintiff brought application for judicial review against decision by Canada Revenue Agency not to accept statement. Prothonotary found that there was no jurisdiction to grant remedy sought as it would force Canada Revenue Agency to act in contravention of law. Plaintiff brought motion to quash order of prothonotary ordering cancellation of judicial review application. Motion granted in part. Motion dismissed as related to decision of prothonotary to strike paragraphs of notice of application concluding that minister could reassess in respect to statement of claim after three-year limitation period when it was not permitted by law. Motion granted as related relation to striking of paragraphs related to electronic issues. It was not plain and obvious that plaintiff’s notice of application did not disclose cause of action in relation to error message. It was unclear under what legal authority electronic statement, which was produced within limitation period of three years, was dismissed. Explanation by decision-maker contained interpretive errors with regard to what constituted statement.
6075240 Canada Inc. c. Ministre du Revenu national (June 27, 2016, F.C., Peter Annis J., T-387-16) 268 A.C.W.S. (3d) 684.



Plaintiffs’ claim was in pith and substance based on federal law

Plaintiff RD was status Indian and partner of plaintiff R partnership that had federal licence to sell tobacco products on reserve and to First Nations on different reserves across Canada. RD was charged with violations of Ontario and Alberta Tobacco Tax Acts for failing to possess provincial tobacco permits and federal tobacco licence was not renewed. Plaintiffs brought action against federal Crown, Attorney General of Canada, Minister of National Revenue, RCMP, Commissioner of RCMP, Canada Revenue Agency (CRA) employees, and RCMP officers. Prothonotary granted federal Crown’s motion and struck statement of claim against all defendants except federal Crown. Plaintiffs appealed in respect of CRA employees and RCMP officers (individual defendants). Appeal allowed. Individual defendants were re-added to style of cause. Prothonotary’s order was clearly wrong by incorporating new requirement of defendants’ presence being vital to final issue of case in test to support finding of jurisdiction in Federal Court. It was not plain and obvious that Federal Court lacked jurisdiction to entertain claims against individual defendants, as three-part test in jurisprudence was met. Section 17(5)(b) of Federal Courts Act (Can.) conferred jurisdiction to Federal Court over acts and omissions of officers, agents or servants of Crown. Federal legislation, being Excise Act, 2001 (Can.) (EA) and Indian Act (Can.) (IA), provided sufficiently detailed framework to nourish Federal Court’s jurisdiction. Plaintiffs’ claim was in pith and substance based on federal law and was governed by detailed federal statutory framework essential to outcome of case. EA and IA were federal legislation and clearly constituted “law of Canada” as used in s. 101 of Constitution Act, 1867 (Can.).
Dickson v. Canada (July 20, 2016, F.C., Sylvie E. Roussel J., T-2547-14) 268 A.C.W.S. (3d) 538.

Labour Relations

Bargaining unit
Board found that employees should be included in first unit for purposes of ballot
Canada Industrial Relations Board made decision in context of revising structure of bargaining units covering employees of French network regarding representation vote. Board found that employees were employees within meaning of Canada Labour Code and should be included in first unit for purposes of ballot. Broadcasting corporation brought application for judicial review. Application dismissed. Decision was made for sole purpose of getting things done quickly so that ballot could take place without delay. Application for judicial review was moot and declaration sought would have no practical use if granted.
Société Radio-Canada c. Syndicat des communications de Radio-Canada (FNC-CSN) (July 19, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-334-15) 268 A.C.W.S. (3d) 652.



Federal Court has jurisdiction to rule upon whether a proceeding subsists

Allergan brought action in Federal Court against Apotex for patent infringement. Parties disagreed on whether settlement reached. Allergan’s motion for order enforcing settlement was granted. Federal Court relied on initial exchange between the parties, suggesting that agreement was essentially in place following these communications. Following initial exchange, there was 23-month exchange of emails, including number of draft Minutes of Settlement. Discussions broke off but Federal Court found that email sent by counsel for Allergan on February 24, 2014 accepted terms contained in draft Minutes of Settlement sent by Apotex on January 13, 2014. Federal Court concluded that although parties did not place signatures on formal agreement, they had reached agreement on all essential terms. Apotex’s appeal was allowed. Federal Court has jurisdiction to determine whether patent infringement action has been settled and, if so, to enforce the settlement agreement. When contract law issue before the Court is part and parcel of matter over which Federal Court has statutory jurisdiction, Federal Court has jurisdiction over the contract. Federal Court also has, as part of its plenary power, jurisdiction to rule upon whether or not a proceeding subsists. Existence or non-existence of settlement agreement affects status of proceedings before the court.
Apotex Inc. v. Allergan, Inc. (May. 18, 2016, F.C.A., M. Nadon J.A., Johanne Trudel J.A., and David Stratas J.A., A-204-15) Decision at 252 A.C.W.S. (3d) 433 was reversed. 268 A.C.W.S. (3d) 548.


Demand for breath (blood) sample

There was no breach of s. 8 of Charter in breath sample demand

Accused was charged with impaired driving offences, stemming from car accident which injured three occupants of another vehicle. Other charges were stayed or dismissed, leaving three counts of impaired driving causing bodily harm. Accused was convicted at trial of these charges. Accused claimed that statements he made to police at scene should not have been admitted as evidence. Accused claimed he was compelled to make statements before being able to consult with counsel. Accused claimed that no proper breath sample demand was made, and that breath sample results should not be admitted. Accused appealed from conviction on this basis. Appeal dismissed. Accused was under no reasonable belief at time of statement that he was compelled to report accident. Accused was not told by officer he had to make statement. Accused did not apply at trial to exclude statements under applicable sections of Canadian Charter of Rights and Freedoms. This ground of appeal failed as result. Third officer inadvertently failed to read breath sample demand to accused at scene. Demand was only made after technician reminded officer of need to do so, at police station. Technician’s demand for breath sample was based on reasonably formed grounds, and was done within three-hour time limit from offence. As technician had no prior notice of what had taken place, demand was made as soon as practicable. There was no breach of s. 8 of Charter in demand that was made.
R. v. Guenter (July 19, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C55574) 131 W.C.B. (2d) 129.


Sentence appeal

Trial judge’s determination of credit for pre-trial custody was entitled to deference

Accused was engaged with his son in criminal joint venture that involved large amount of cocaine and was arrested pursuant to major police operation. While on judicial interim release, accused was arrested and charged with new offences and was detained in custody on new charges and charges currently before court for total of 608 days. Accused was convicted of trafficking in cocaine. At sentencing hearing, accused brought application that s. 719(3.1) of Criminal Code violated s. 7 of Canadian Charter of Rights and Freedoms. Accused’s Charter application was granted; accused was sentenced to 5.5 years’ imprisonment, less credit of 730 days. Portion of s. 719(3.1) of Code that removed ability to determine credit for pre-sentence custody violated s. 7 of Charter and was of no force and effect in this proceeding only. Accused was given some credit for his pre-sentence custody as he might have lost eligibility for early release and parole, but not at rate of 1.5-to-1. Accused had extensive criminal record, he did not avail himself of any available programs while in remand, and he was sanctioned for violent assault on another prisoner while in jail. Accused was given 730 days’ credit for pre-sentence credit, which was approximately 1.2 days’ credit for each day of pre-sentence custody. Accused appealed. Appeal dismissed. While sentence was clearly at high end of range, there was no error in principle. Trial judge considered circumstances of accused including his very lengthy criminal record and aggravating fact that offence was committed with his son. Trial judge’s determination of credit for pre-trial custody was entitled to deference.
R. v. Jupiter (June 1, 2016, Ont. C.A., J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A., CA C61092) Decision at 123 W.C.B. (2d) 287 was affirmed. 131 W.C.B. (2d) 185.

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