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Administrative Law

BOARDS AND TRIBUNALS

Agency failed to consider and decide central issues including settlement agreement

Agency determined that it could adjudicate complaint concerning noise and vibration arising from operations at Rail Yard notwithstanding that parties previously entered settlement agreement with respect to same complaint. Appeal was allowed. Where parties finally resolved complaint in settlement agreement, practical effect of agency decision to ignore settlement agreement and adjudicate issues previously resolved would be to denude collaborative measures of any effect. Submission that parties did not present settlement agreement as final and binding agreement that would bar adjudication of second complaint was untenable. Agency failed to consider and decide central issues by parties including effect of settlement agreement. Decision was unreasonable.

BNSF Railway Co. v. Canadian Transportation Agency (Sep. 28, 2011, F.C.A., Noel, Pelletier and Dawson JJ.A., File No. A-25-11) 207 A.C.W.S. (3d) 183 (15 pp.).

Appeal

NO SUBSTANTIAL WRONG

Trial judge erred in failing to leave attempted murder

Accused charged with second degree murder. Accused alleged to have shot deceased in abdomen with sawed-off shotgun. Deceased died of a blood clot more than a month later and five days after being released from hospital. One expert witness testified that blood clot could have been caused by cocaine ingestion rather than by complications from the gunshot wound. Trial judge declined to leave attempted murder as available verdict and told jury they must acquit if they had reasonable doubt on causation. Accused convicted of second degree murder. Majority of Court of Appeal allowed accuseds’ appeal and ordered new trial. Crown’s appeal dismissed. Trial judge erred in failing to leave attempted murder. Curative proviso should not be applied. Availability of verdict of attempted murder may have affected jury’s determination on causation issue. Crown’s case on causation was not overwhelming.

R. v. Sarrazin (Nov. 4, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33917) Decision at 90 W.C.B. (2d) 308 affirmed. 97 W.C.B. (2d) 192 (35 pp.).

Administrative Law

BOARDS AND TRIBUNALS

No authority in tribunal to award legal costs

Complainant filed human rights complaint alleging the Canadian Forces discriminated against her on ground of sex, contrary to provisions of Canadian Human Rights Act. Canadian Human Rights Tribunal concluded sexual harassment complaint substantiated and awarded complainant $4,000 for suffering in respect of feeling or self-respect. Complainant applied for legal costs. Tribunal decided it had authority to award legal costs pursuant to s. 53(2) of Act, and awarded complainant $47,000 for legal costs. Attorney General of Canada’s application for judicial review of tribunal’s costs decision unsuccessful. Federal Court of Appeal allowed Attorney General’s appeal, concluding tribunal had no authority to make costs award. Appeal to Supreme Court of Canada dismissed. Tribunal’s decision to award legal costs reviewable on standard of reasonableness. Precise interpretative question before tribunal was whether words of s. 53(2)(c) and (d), which authorize tribunal to “compensate the victim . . . for any expenses incurred by the victim as a result of the discriminatory practice”, permit award of legal costs. Tribunal’s decision they did not reasonable. While words “any expenses incurred by the victim”, taken on their own, wide enough to include legal costs, when words read in statutory context, clear they cannot reasonably be interpreted as creating stand-alone category of compensation capable of supporting any type of disbursement causally connected to discrimination. Phrase appears twice and each reference to expenses preceded by specific, but different, wording. Expenses referred to in each paragraph take character from sort of compensation contemplated by surrounding words of each paragraph. Text, context and purpose of legislation clearly show that no authority in tribunal to award legal costs and no other reasonable interpretation of relevant provisions.

Canada (Attorney General) v. Mowat
(Oct. 28, 2011, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ., File No. 33507) Decision at 312 D.L.R. (4th) 294, 182 A.C.W.S. (3d) 419 was affirmed. 207 A.C.W.S. (3d) 185 (43 pp.).

Assault

ASSAULTING PEACE OFFICER

Accused was entitled to resist officer

In course of robbery investigation, officers went to accused young person’s house to get his side of story. Officers were invited into house by accused’s mother. When officer entered accused’s bedroom, accused took step to follow him. In attempt to stop accused from entering bedroom second officer put his arm in front of accused. Accused pushed officer’s arm away, knocking officer off balance. Third officer intervened and accused attempted to swat him away. Officers wrestled accused to ground and placed him under arrest. Charges dismissed. No interpretation other than that officer conducted search of accused’s bedroom without consent or search warrant. No exigent circumstances existed to justify search. Officer engaged in unauthorized search of accused’s bedroom. Second officer’s attempt to prevent accused from entering bedroom was unlawful interference with accused’s liberty and property. Accused was entitled to resist officer. Resistance by accused was mild and no more than what was required to proceed past officers blocking his path. Accused’s resistance did not involve unreasonable force. Accused’s resistance to unauthorized search without using unreasonable force did not attract criminal liability.

R. v. R. (T.)
(Aug. 23, 2011, Ont. C.J., Jones J., File No. YO 22900-00) 96 W.C.B. (2d) 444 (8 pp.).

Appeal

GROUNDS

Judge did not confuse touching with sexual touching

Appeal by accused from his conviction on one count of sexual assault on basis that trial judge misapprehended evidence. Complainant, aged 18, consumed substantial amount of alcohol when she was out with accused and other friends. She spent night at accused’s apartment and fell asleep on couch. She woke up twice to find accused touching her vagina. Complainant did not ask accused to stop because she never fully woke up and she was only half awake for several seconds. When she woke up she was unsure as to whether accused assaulted her but by time she returned home she was certain that she had been violated. Friend of accused and of complainant testified that accused admitted to her that he touched complainant and that there was no excuse for this type of behavior. Accused did not testify. Appeal dismissed. Findings of fact made by trial judge were supported by complainant’s evidence. Judge did not misstate or misapprehend the evidence. He did not make inconsistent or contradictory findings regarding complainant’s memory for he believed everything that she said and he found her to be a candid witness. At the same time, however, he properly held that her evidence had to be approached with caution in light of her intoxicated condition. Judge did not fail to distinguish sexual assaults from other instances of touching that occurred between accused and complainant. He clearly understood what constituted sexual assault and he did not confuse touching with sexual touching. Judge did not err in finding that complainant’s evidence proved allegations. He also did not fail to appreciate weaknesses in Crown’s case.

R. v. Lee
(July 15, 2011, Ont. S.C.J., Garton J., File No. 116/09) Decision at 84 W.C.B. (2d) 849 affirmed. 96 W.C.B. (2d) 438 (23 pp.).

Taxation

INCOME TAX

Rebates received by appellant were shareholder benefits and were taxable

Appellant worked for company belonging to his father. Appellant and his brothers were sole directors and shareholders of company. During taxation years at issue company purchased life insurance for father of appellant as well as for appellant and his three brothers. Appellant received cheque by insurance company in 2000 for amount of $15,000 representing insurance rebate. Appellant did not claim amount of $15,000 on his income tax return. Appellant also received cheques from insurance company in 2002 for amounts of $8,430 and $34,630. Minister reassessed appellant and added to appellant’s income for 2000 and 2002 taxation year’s amounts of $15,000 and $43,060, respectively. Minister also assessed penalties in amounts of $1,816 and $4,972 for 2000 and 2002 taxation years. Appellant appealed. Appeal dismissed. Rebates received by appellant were shareholder benefits and were taxable. Rebates were too important to be considered a gift. There was gross negligence on part of appellant and penalties were justified in the circumstances.

Lapalme v. Canada (Aug. 25, 2011, T.C.C., Favreau J., File No. 2008-4008(IT)G) Reasons in French. 206 A.C.W.S. (3d) 628 (22 pp.).

Torts

LIBEL AND SLANDER

Insert of hyperlinks could not amount to publication

Appellant claimed he had been defamed in various articles that appeared on Internet. Respondent operated web site and authored article that hyperlinked alleged defamatory articles. Appellant took position that when hyperlinks created, respondent became publisher of impugned articles found at hyperlinked sites. Trial judge dismissed appellant’s action for defamation on basis that appellant failed to prove publication of defamatory material. He found that hyperlinking did not amount to publication. Majority of Court of Appeal dismissed appellant’s appeal, finding no basis for presumption of publication of hyperlinked articles and mere fact that respondent hyperlinked impugned sites did not make him publisher. Appeal to Supreme Court of Canada dismissed. To prove publication element of defamation, plaintiff must establish defendant has, by any act, conveyed defamatory meaning to single third party who has received it. Form defendant’s act takes and manner in which it assists in causing defamatory content to reach third party are, traditionally, irrelevant. Breadth of activity captured by traditional publication rule vast and recent jurisprudence suggested some acts so passive they should not be held to be publication. Question is whether simple reference, like hyperlink, to defamatory information is type of act that can constitute publication. Reference to other content fundamentally different from other acts involved in publication as does not involve exerting control over content. Communicating something distinguished from merely communicating that something exists. Hyperlinks are, essentially, references. Content of secondary article often produced by someone other than person who inserted hyperlink in primary article. Inserting hyperlink gives primary author no control over content in secondary article. When person follows link they are leaving one source and moving to another. Ease with which referenced content can be accessed does not change fact that, by hyperlinking, individual referring reader to other content. Individuals may attract liability for hyperlinking, however, if manner in which they have referred to content conveys defamatory meaning. Nothing on defendant’s page itself alleged to be defamatory. Insertion of hyperlinks, by itself, could not amount to publication.

Crookes v. Wikimedia Foundation Inc. (Oct. 19, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33412) Decision at 311 D.L.R. (4th) 647, 181 A.C.W.S. (3d) 389 was affirmed. 206 A.C.W.S. (3d) 640 (71 pp.).

Highways

REPAIR

No evidence that would lead county to know of problems at curve

Defendant operated loaded tractor trailer that tipped over and slid into oncoming traffic. Plaintiffs suffered injuries and losses. Plaintiff’s claims against defendants were settled. Defendants third partied the corporation of the county. Defendants claimed losses were caused or contributed by negligence of county in failing to keep highway in good state of repair. Claim was dismissed. County did nothing that contributed to accident. County may not have complied with parts of Manual of Uniform Traffic Control Devices, but failure to do so did not cause or contribute to accident. Defendant failed to show cause of accident. Cause of accident must have been result of shifting of truck’s load that was not properly secured. Cause was not defendant’s speed and was not nature of curve. Cause of accident was not lack of warning. There were sufficient signs to warn defendant of circumstances of curve. Defendant led no evidence that load was safe. Defendant’s guilty plea to offence under Highway Traffic Act (Ont.) was prima facie evidence that load was unsafe. County had system in place to monitor state of roads and signage in place. There was no evidence of disrepair and no evidence that would lead county to know of problems at curve. County was not in breach of duty.

Lancaster (Litigation Guardian of) v. Santos (Aug. 16, 2011, Ont. S.C.J., Lemon J., File No. 603/09; 510/09; 585/09) 206 A.C.W.S. (3d) 609 (65 pp.).

Appeal

STAY PENDING APPEAL

Reason to doubt whether appellant could be required to secure support obligation that no longer existed

Parties were married 19 years and had five children. Appellant lost employment. Ongoing child and spousal support payable by appellant were suspended. Appellant was required to reinstate life insurance of $400,000 naming respondent as beneficiary. Arrears of support were fixed at $56,253. In event appellant took position appellant could not afford premiums because appellant could not work, appellant was to attend medical examination arranged by respondent. Leave to appeal was granted. Decision was open to serious debate. There was reason to doubt correctness of order. There was reason to doubt whether appellant could be required to secure support obligation that no longer existed. There was basis to doubt correctness of requirement appellant travel to Ontario to attend medical examination. Orders were stayed pending appeal given there was serious issue to be tried and irreparable harm to appellant.

Feinstat v. Feinstat (Aug. 19, 2011, Ont. S.C.J., Gilmore J., File No. DC-11-00331-ML) 206 A.C.W.S. (3d) 459 (7 pp.).

Aboriginal Peoples

APPLICATION OF PROVINCIAL LAW

Parties could have been spared cost of litigation had sensible course of action been taken

Determination of costs following successful application for judicial review. Court had found that applicants were deprived of their voting rights and denied procedural fairness by respondents in violation of First Nation custom. In granting judgment court set aside decision of former Chief and Council to extend their terms of office, removed Chief and Council from office and ordered that election be held within 60 days. Applicants sought lump sum award giving them full indemnity on solicitor client basis for legal fees in amount of $258,850. Respondents contended that applicants should not be entitled to elevated costs as conduct of respondents or their counsel had not been reprehensible, scandalous or outrageous such as to justify exceptional award of solicitor-and-client costs. Respondents contended that issues were needlessly complicated in this proceeding by fact that applicants raised grounds from Canadian Charter of Rights and Freedoms when it was clear that such grounds had no foundation in law or facts. Relevant factors were that application was brought in interests of all of members of community, issues were complex and included conflicting evidence as to what constituted First Nation custom, conduct of respondent Chief and Councilors and their legal counsel tended to unnecessarily lengthen duration of proceedings, steps taken by respondent Chief and Councilors in proceeding were improper, vexatious or unnecessary, amount of work required to prepare for hearing, that written offer to settle was disregarded and that application was wholly successful. Applicants awarded costs on solicitor-client basis for application and for matters relating to this order for costs, fixed at a total of $285,000. Proceeding would not have been necessary had Chief and Council of First Nation put question of extension of their terms of office to membership as part of scheduled December 2010 election. All of parties could have been spared expense of costly litigation had that sensible course of action been taken. Failure of respondents to do so was blatant attempt to remain in power.

Shotclose v. Stoney First Nation
(Sep. 7, 2011, F.C., Mosley J., File No. T-2085-10) 206 A.C.W.S. (3d) 445 (11 pp.).
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