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Administrative Law


Single judge could dismiss application for delay if case was clear

Motion by respondents to dismiss application for judicial review on grounds of delay. Following death of a chiropractic patient, an inquest was held and jury reached verdict and made recommendations in 2004. Applicant association and college applied for judicial review but had not yet perfected applications. Applicants argued single judge lacked jurisdiction to dismiss application for delay and delay was justified by difficulty obtaining transcripts of inquest. Motion allowed. Case law established single judge could dismiss an application for delay if case was clear. Delay in this case was extremely significant and inordinate. While the applicants had some difficulty in obtaining transcripts, they had received all transcripts of proceedings before jury by 2007 and respondent’s counsel was very co-operative in helping them obtain evidence. By 2008, applicants were fully aware they would not be able to obtain transcripts of submissions made in absence of jury as there was no requirement for recording in such circumstances. From that point on, there was no reasonable explanation for the continued delay. Allowing the application to proceed after delay of this magnitude was prejudicial to family of deceased, parties to proceedings, treating chiropractor and public interest.

Canadian Chiropractic Assn. v. McLellan (Nov. 9, 2011, Ont. S.C.J. (Div. Ct.), Harvison Young J., File No. 606/04) 209 A.C.W.S. (3d) 551 (11 pp.).

Charter Of Rights


Arresting officer’s decision to place accused in cell before breathalyzer tests unjustified

Trial of accused for drinking and driving offences. Accused was bartender. When she completed her shift she remained in bar and she consumed four glasses of wine before she drove home. Police officer pulled her over and he detected small hint of alcohol on her breath. He had her take screening device test and he was surprised when she failed. She was not handcuffed during trip to police station. At station she was placed in cell and she went through process of removing her bra, which was standard procedure. She had breathalyzer test and she gave her samples at 1214 a.m. and 1240 a.m.. She was then returned to her cell to await completion of paperwork. Documents were completed by 200 a.m.. Accused was not released until 500 a.m. because arresting officer had practice of holding charged impaired drivers until they could make good decisions. Officer did not explain to accused why she was being held in cell. Accused acquitted. Arresting officer’s decision to place accused in cell before breathalyzer tests were conducted was unjustified and it violated accused’s right under s. 9 of Canadian Charter of Rights and Freedoms. Based on accused’s rational, polite and co-operative behaviour demand that she surrender her bra violated her s. 8 Charter rights. Because this took place before breathalyzer testing occurred it had temporal and causal connection to test results. It was not reasonable that 26 minutes elapsed between taking of first and second samples and it violated statutory requirement that samples were to be taken as soon as practicable. Evidence was excluded because of improper police conduct in this matter.

R. v. Bouchard
(Nov. 24, 2011, Ont. C.J., Fraser J., File No. 110260) 98 W.C.B. (2d) 318 (8 pp.).



Accused unable to understand nature or object of proceedings

Appeal by accused from finding that he was not criminally responsible on account of mental disorder. Finding as made after accused pleaded guilty to one count of criminal harassment and two counts of failing to comply with his recognizance of bail. Appeal dismissed. Medical evidence addressed accused’s inability to understand nature or object of proceedings, his inability to understand possible consequences of proceedings and his inability to communicate with counsel. Trial judge was alert to and he addressed his mind to issue of fitness. He was entitled to rely upon medical evidence. Accused was represented by counsel at trial and neither Crown or defence raised any challenge or expressed any concern about accused’s fitness to stand trial. There was no error in law by judge and there was no miscarriage of justice.

R. v. Krivicic (Nov. 14, 2011, Ont. C.A., Blair, Juriansz JJ.A. and Pepall J. (ad hoc), File No. C50605) 98 W.C.B. (2d) 279 (15 pp.).

Employment Insurance


Board did not examine facts of case in relation to relevant principles of law

While attending college respondent worked part-time at Canadian Tire store in Winnipeg. When the school term was over in April 2009, he moved to his parents’ home in Minnedosa to find full-time summer employment and save on living expenses. When he returned to Winnipeg as planned in August 2009, he claimed employment insurance benefits. Employment Insurance Commission denied benefits. Board allowed respondent’s appeal from the commission’s decision. Umpire dismissed Crown’s appeal. Crown brought present application for judicial review. Application allowed. Board acknowledged legal test for “just cause” but did not examine facts of respondent’s case in relation to relevant principles of law. Rather than applying the no reasonable alternative test board considered whether respondent’s conduct was reasonable in the circumstances and concluded that his choice qualified as reasonable behaviour. Umpire erred when he failed to address applicable law regarding just cause for leaving employment. While respondent may have had good personal cause to leave employment he did not have just cause for leaving his employment within the meaning of Employment Insurance Act (Can.).

Canada (Attorney General) v. Graham
(Nov. 16, 2011, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-429-10) 209 A.C.W.S. (3d) 566 (7 pp.).

Administrative Law


No practical end served by setting aside Minister’s decision

This was appeal from Federal Court’s decision upholding Minister of National Revenue’s decision. Appellants used common financial representative to make tax filings. For 2000 to 2003 taxation years appellant’s representatives’ were of opinion that they did not need to file T1135 forms, contrary to wording of s. 233.3(3) of Income Tax Act (Can.). Canadian Revenue Agency (“CRA”) alerted appellants to fact that they had not filed forms. Appellants filed forms late and explained misunderstanding. Appellants’ representatives requested relief under s. 220(3.1) of Act against penalty and interest assessed against appellants for late filing of forms. CRA denied request, finding that appellants did not fall within one of three specific situations set out in information circular. Appellants applied for relief to Minister, who reduced interest for six months due to CRA’s delay in replying. Appellants applied for judicial review. Federal Court found that Minister had not fettered discretion and that decision was reasonable. Appeal dismissed. Standard of review of Minister’s decision was reasonableness. Decision that was product of fettering of discretion was unreasonable. In circumstances, Minister did not draw upon law that was source of authority, s. 220(3.1) of Act, but fettered discretion by having regard to only three specific scenarios set out in information circular. Minister’s reasons as set out in decision letter evidenced that Minister restricted consideration to three scenarios in information circular. Record shed no light on grounds for Minister’s decision and decision letter must speak for itself. As Minister did not draw upon law that was source of authority and drew only on information circular, decision was unreasonable. However, there would be no practical end served by setting aside Minister’s decision. Appellants’ excuses and justifications for delay in filing forms and grounds offered in support of relief had no merit. Granting relief under s. 220(3.1) would be unreasonable exercise of discretion.

Stemijon Investments Ltd. v. Canada (Attorney General)
(Oct. 26, 2011, F.C.A., Noel, Trudel and Stratas JJ.A., File No. A-376-10; A374-10; A375-10; A-377-10; A-378-10; A-382-10) Decision at 193 A.C.W.S. (3d) 1016 was affirmed. 209 A.C.W.S. (3d) 721 (30 pp.).

Municipal Law


Imposition of tax need bear no relationship to costs of service being provided

Appellant owned pulp and paper mill in respondent district. Mill had own transportation infrastructure, waste disposal, emergency response systems and water supply and not highly dependent on municipal services. Assessed values of residential properties increased greatly over years, but taxes had not. Ratio between residential and major industry classes dramatically higher than ratio prescribed by statute and highest in British Columbia. Mill encountered severe financial challenges. Appellant concerned it could not sustain unreasonably high property taxes and hired consultants to analyze relationship between services and benefits provided by local municipalities and consumed or available to major industry and proportion of taxes paid by that class. Consultants found that major industry paid disproportionately high percentage of total municipal tax relative to consumption while other classes paid far less in taxes than they consumed in services. Consultants advanced municipal sustainability model but district declined to adopt model, instead passing tax rates by-law that perpetuated very high ratio between residential and major industry classes. Appellant brought petition to set aside by-law on basis it was unreasonable and therefore illegal. Chambers judge found that argument based on model inconsistent with nature of decision-making process contemplated by Community Charter (B.C.). He concluded by-law within range of reasonable and acceptable outcomes and dismissed petition. British Columbia Court of Appeal dismissed appellant’s appeal, finding that municipality had virtually unfettered discretion to consider whatever information it deemed relevant and to allocate tax burden among classes as it saw fit. Appeal to Supreme Court of Canada dismissed. In passing delegated legislation, municipality must make policy choices that fall reasonably within scope of authority granted by legislature. Parties disagreed on what standard of reasonableness required. Case law suggests review of municipal by-laws must reflect broad discretion provincial legislators have traditionally accorded to municipalities. By-laws involve array of social, economic, political and other non-legal considerations. Municipal by-laws will not be overturned unless “no reasonable body could have adopted them”. Reasonableness means substance of by-laws must conform to rationale of statutory regime. Community Charter gives municipalities broad and virtually unfettered legislative discretion to establish property tax rates. Imposition of tax need bear no relationship to costs of service being provided. Municipality not required to formally explain or provide rational basis for by-law. Reasons for by-law traditionally deduced from debate, deliberations and policy statements. Municipal councils entitled to consider broader social, economic and political factors relevant to electorate. Adoption of tax rates by-law did not constitute decision that no reasonable elected municipal council could have made.

Catalyst Paper Corp. v. North Cowichan (District) (Jan. 20, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33744) Decision at 318 D.L.R. (4th) 350, 188 A.C.W.S. (3d) 548 was affirmed. 209 A.C.W.S. (3d) 697 (22 pp.).

Bankruptcy And Insolvency


Crown became owner of money required before bankruptcy

Crown sent requirement to pay to appellant bank pursuant to s. 317 of Excise Tax Act (Can.) (“ETA”), in relation to debtor. Debtor then made assignment into bankruptcy. Trustee sent notice to bank to stay requirement to pay, but bank did not comply with requirement to pay. Crown then issued notice of assessment to bank. Reassessment was made, which bank appealed. Tax Court Judge dismissed bank’s appeal, concluding that, according to language of s. 317(3) of ETA money subject to requirement to pay immediately relinquished to Crown on bank’s receipt of requirement. Money was no longer part of tax debtor’s patrimony when notice of stay issued under s. 69 of Bankruptcy and Insolvency Act (Can.) (“BIA”), filed. Tax Court Judge found there was no conflict between BIA and requirement to pay, which remained fully applicable. Federal Court of Appeal held that when Crown issued requirement to pay under s. 317(3) of ETA before notice of stay under s. 69 of BIA filed and, on date of that notice, payment owed in respect of requirement to pay had still not been made, s. 70(1) of BIA did not give priority to assignment of tax debtor’s property over Crown’s requirement to pay. Provisions of any enactment must be construed contextually having regard to statute read as whole. Parliament intended that power under s. 317(3) of ETA only be exercised before bankruptcy. Even if requirement to pay issued at a time that coincided with tax debtor’s bankruptcy, there was no conflict possible between BIA and right of ownership conferred upon Crown under s. 317(3) of ETA. Words “other than the Bankruptcy and Insolvency Act” were not inserted in s. 317(3) of ETA to give precedence to BIA in event of conflict since no conflict possible. Purpose of “other than the Bankruptcy and Insolvency Act” to prevent power set out in s. 317(3) from being exercised after bankruptcy. Requirement to pay received by bank before notice of stay filed. Tax Court Judge correctly concluded Crown became owner of money required before bankruptcy. Money not part of tax debtor’s patrimony at time of bankruptcy and bank had obligation to pay amount required. On further appeal to Supreme Court of Canada, held, appeal dismissed for reasons given by Court of Appeal.

Toronto Dominion Bank v. Canada (Jan. 12, 2012, S.C.C., LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33878) Decision at 325 D.L.R. (4th) 174, 193 A.C.W.S. (3d) 1073 was affirmed. 209 A.C.W.S. (3d) 495 (2 pp.).

Charter Of Rights


Accused failed to provide that racial profiling influenced officers

Application by accused to exclude evidence against him because his rights under Canadian Charter of Rights and Freedoms were violated. Accused was charged after he was found in possession of loaded shotgun in public park. He claimed that police did not have reasonable and probable grounds to arrest him and that he was target of racial profiling. Two police officers noticed accused riding his bicycle on sidewalk. He did not appear to have destination and he was looking at officers. He was not carrying anything. Officers followed him and when they saw him near tennis court they saw that he had duffle bag slung on his back. Officers believed that he stole bag and they arrested him for possession of stolen property. One officer searched him and found two shotgun shells in his pocket. Bag was half open and officer could see shotgun that was partially wrapped in T-shirts. Application dismissed. Accused failed to prove that racial profiling influenced officers’ action and that it resulted in arbitrary detention. Even though accused was black he was not improperly targeted. Accused’s actions rose to the point of appropriate police curiosity that gave them reason to follow him and what they saw next gave them reason to arrest him. Officers had both subjective and objective reasons to arrest accused. Arrest was lawful and search was lawful as incident to that arrest. Even if Charter was violated evidence was admissible because admitting it would not bring administration of justice into disrepute.

R. v. Rainford (Nov. 25, 2011, Ont. S.C.J., Lemon J., File No. CRIMNJ(P) 932/11) 98 W.C.B. (2d) 100 (14 pp.).



Judge’s ultimate findings not compromised by problematic comments

Appeal by accused from his conviction on charges of sexual interference and uttering death threat. Accused committed these offences against 8-year-old daughter of his partner. Complainant was 16 at time of trial. Accused was 44-years old at time of trial and he denied allegations against him. He claimed that trial judge failed to assess reliability of complainant’s evidence, he relied on irrelevant considerations in assessing complainant’s credibility and he applied different standards to evidence of complainant and appellant. Appeal dismissed. Judge’s reasons were thorough, detailed and thoughtful. They were responsive to live issues that arose from evidence. They met test for sufficiency. Judge did not fail to properly assess both credibility and reliability of complainant’s evidence. He adequately addressed concerns that arose from her testimony. Regarding reliance on irrelevant factors, judge made some comments that might be regarded as unhelpful or out of place in proper assessment of credibility. However, considering evidence as a whole and judge’s reasons in their entirety integrity of his ultimate findings were not compromised by problematic comments. Judge did not hold accused’s evidence to higher standard than complainant’s evidence.

R. v. C. (F.)
(Nov. 30, 2011, Ont. S.C.J., Trotter J., File No. 218/09) 98 W.C.B. (2d) 81 (11 pp.).

Family Law


Exchange of correspondence sufficient to indicate intention to be bound

Parties were not married. Applicant sought payment out of proceeds of sale of home parties lived in. Applicant purchased home with own funds. Title was put in joint names. Cohabitation in house was brief. Respondent claimed one-half share based on unjust enrichment. Costs were ordered against respondent for litigation misconduct. Respondent’s counsel proposed settlement. Applicant’s counsel counter-offered and respondent’s counsel conveyed draft agreement and statutory declaration in terms proposed by applicant. Respondent argued counsel did not have authority to accept offer. Applicant brought motion to dismiss all claims for failure to pay costs. Applicant sought summary judgment. Judgment was granted in terms of agreement that applicant pay respondent $6,000 in full satisfaction of any interest in home. Motion date plea of poverty lacked credibility by lateness and lack of support by evidence of real inability to work or reasonable effort to prioritize costs payment. Analysis of deprivation experienced showed little connection to purchase of home. Respondent showed no unjust enrichment to applicant against which to assert corresponding deprivation. Summary judgment was proper approach to claim for unjust enrichment and that ground for claim against home proceeds was dismissed. Summary judgment was granted on claim of gift. Presumption of resulting trust was not set aside and operated to hold that respondent held title in trust for applicant. There was binding settlement resulting arising from correspondence between counsel. Contract was formed. Exchange of correspondence sufficed to indicate intention to be bound. Payout provisions were about implementation and were not essential terms. Subject to payment according to terms of agreement applicant was entitled to proceeds of sale free and clear of any interest of respondent.

Oliver v. Racette (Oct. 5, 2011, Ont. S.C.J., Eberhard J., File No. FC 10-92) 208 A.C.W.S. (3d) 698 (12 pp.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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