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Breathalyzer

REFUSAL TO PROVIDE SAMPLE

Judge erred by implying that it was accused’s onus to show device did not work properly

Appeal by accused from her conviction for failing to comply with demand for roadside breath sample. She narrowly avoided hitting a motorcyclist and she came to a stop against highway median. Police officer arrived at scene and smelled alcohol on accused’s breath. She demanded that accused provide breath sample into roadside screening device. Accused made 23 attempts to blow into device. Officer needed to use two devices because after 11 attempts first device displayed low battery message. Trial judge found that accused’s overall conduct clearly demonstrated intention to frustrate taking proper sample. Appeal allowed. New trial ordered. Judge did not properly apply burden of proof for he rejected accused’s evidence but did not properly assess reliability of remaining evidence which was from police officer. He also erred by implying that it was accused’s onus to show that device did not work properly. Rather, it was Crown’s onus to show that device worked properly, especially in this case where accused made unsuccessful attempts to provide breath sample.

R. v. Pinard (Apr. 7, 2011, Ont. S.C.J., Parfett J., File No. 09-2213) 95 W.C.B. (2d) 351 (7 pp.).

Corporations

OPPRESSION

Judgment debtor and director acted in manner that was oppressive

Respondents were directors of three corporate entities. Applicant leased equipment to one of corporations. Corporation defaulted on lease and refused to return equipment. Applicant obtained court order requiring equipment to be returned. Equipment was returned. Amount remained owing. Judgment was granted to applicant. Director of corporation was held in contempt for failing to answer outstanding undertakings. Requested information was produced. New company was incorporated to carry on business of judgment debtor corporation. Applicant sought remedy for oppression. Application was allowed. Director abandoned judgment debtor corporation and transferred operating business from judgment debtor corporation to new corporation controlled by director for purpose of escaping obligations to creditors. Judgment debtor and director acted in manner that was oppressive or unfairly prejudicial to interests of applicant. It was appropriate to grant relief against three companies given entanglement of companies’ affairs. Directors of three corporations were jointly and severally liable to pay judgment obtained by applicant against judgment debtor company.

Pitney Bowes of Canada Ltd. v. Belmonte (June 15, 2011, Ont. S.C.J., Murray J., File No. 3514/10) 203 A.C.W.S. (3d) 524 (10 pp.).

Civil Procedure

SUMMARY JUDGMENT

Determination of factually disputed issues required findings about credibility

Cousins owned common shares in group of closely-held family companies. Eight of eleven cousins decided to monetize value of interests in shopping centres which were two core assets of companies. Cousins entered share redemption transaction with companies. Non-selling cousins brought in equity investor First Capital who purchased 50% stake in shopping centre. Equity investor was public company. Selling cousins found out price paid by equity investor reflected much higher value attributed to shopping centre than that on which share redemption transactions had been negotiated. Selling cousins brought action against non-selling cousins, family companies’ lawyers and accountants, and public company. Ogilvy Renault was corporate counsel to Leikin Group of companies. GGFL was accounting firm. Motion for summary judgment brought by First Capital was allowed. Motions for summary judgment brought by non-selling cousins, Ogilvy Renault defendants and Accounting defendants were dismissed. Evidence disclosed no basis for claim against First Capital. First Capital did not make offer to purchase interest until after shareholders executed letter of intent. First Capital made offer to purchase interest after RBC completed reviews of bids. There was no genuine issue for trial in respect of claim against First Capital. Claim against non-selling shareholders and Leikin Group were for damages for breach of fiduciary duty, oppression, breach of confidence, misuse of confidential information and unjust enrichment. Determination of factually disputed issues required findings about credibility. Non-selling shareholders and Leikin Group did not show there was no genuine issue requiring trial and summary judgment was not granted to them. Ogilvy Renault defendants did not show there was no genuine issue for trial. Court wished to hear viva voce evidence from individual before making final findings about individual’s credibility. Accounting defendants did not show there was no genuine issue for trial. Court needed to hear further argument about nature and scope of GGFL retainer.

Harris v. Leikin Group Inc.
(June 13, 2011, Ont. S.C.J., Brown J., File No. 08-CL-7482) 203 A.C.W.S. (3d) 500 (131 pp.).

Taxation

GOODS AND SERVICES TAX

Work to building not sufficient enough for building to be considered as having been renovated


Appeal from denial by Minister of Revenue for Quebec of application for GST rebate for new residential complex or one that had undergone substantial renovation. Cost of renovation work totalled $45,910. Application denied because interior of existing part of residence before work not renovated. Appeal dismissed. Basement could not be taken into account in determining whether minimum requirement in definition of major renovations had been met because it was only partially completed. Addition of basement even if considered habitable area and entrance hall did not double surface area of habitable areas of residence and more importantly did not create new residential complex because residence remained mostly intact. Work carried out by appellant constituted major renovations within ordinary meaning of expression and for purposes of ecoENERGY program. However, definition of expression substantial renovations in s. 256(2) of Excise Tax Act (Can.), very restrictive since it excludes work that theoretically should be considered major such as work to foundation, exterior walls, interior support walls, floors, roof and stairs. Work to building not sufficient enough for building to be considered as having been renovated or altered to such an extent that all or substantially all of building removed or renovated.

Nadeau v. Canada
(May 6, 2011, T.C.C., Favreau J., File No. 2010-523(GST)I) 203 A.C.W.S. (3d) 666 (7 pp.).

Employment Insurance

CONTRIBUTIONS

Underlying entrepreneurial independence in way intervener conducted himself

Appeals from decision of Minister of National Revenue that employment of intervener was insurable under Employment Insurance Act (Can.), and pensionable under Canada Pension Plan. Appellant operated three enclosed trucks in which carpet cleaning units had been installed. Truck mounts provided power supply to cleaning equipment mounted in truck itself. Appellant paid for all cleaning supplies and paid for maintenance of truck mounts. Intervener would prepare invoice to calculate percentage after job complete and appellant would pay him as independent contractor. Remuneration paid to subcontractors including intervener determined by appellant. Appeal allowed and decision of Minister varied to find that intervener was not engaged in insurable and pensionable employment with appellant. Intervener worked when he wanted to work. Intervener free to turn down work. There was a business being engaged in by intervener. Underlying entrepreneurial independence in way intervener conducted himself. Mutual intention of parties not to engage in contract of service. Intervener intended to take full advantage of independent contractor status.

Alert Carpet Cleaning (Niagara) Inc. v. M.N.R.
(June 24, 2011, T.C.C., Hershfield J., File No. 2010-1506(EI); 2010-1505(CPP)) 203 A.C.W.S. (3d) 549 (25 pp.).

Immigration

GENERAL

Accused not a danger to public and therefore detention unnecessary

Petitioner sought revision of decision that granted release from custody of accused. Accused was permanent resident in Canada and was facing proceedings on inadmissibility following condemnation on several counts of sexual assault, assault with weapon, causing bodily harm and threatening to cause death. Victim was ex-wife of accused. Petitioner claimed that decision failed to assess danger to public of accused and risk of evasion, accentuated by imminent decision on inadmissibility. Application not allowed. Court affirmed that accused was co-operative with authorities and underwent several sessions on anger management. Court affirmed that decision was supported by facts and took into account all aspects of file of accused concluding that he was not a danger to public and therefore his detention was unnecessary.

Canada (Ministre de la Securite Publique et de la Protection Civile) v. Sall
(June 13, 2011, F.C., de Montigny J., File No. IMM-3081-11) Reasons in French. 95 W.C.B. (2d) 400 (26 pp.).

Crown

ARMED FORCES

Unreasonable to find letter filed in support of reconsideration did not meet due diligence test

Applicant served in Regular Force of Canadian Forces. Applicant’s lumbar disc lesion was recognized as being result of service. Applicant underwent surgery. Applicant aggravated condition while trying to change position in bed. Applicant filed for disability benefits. Board found doctor’s medical opinion did not constitute credible evidence for purpose of granting disability award because of lack of reasoning and analysis on issue of causation. Appeal panel sitting in reconsideration did not admit doctor’s letter into evidence. Letter was filed as additional information in reply to appeal panel’s findings on insufficiency of reasons and vagueness of report. Application for judicial review was allowed. It was unreasonable to find letter filed in support of reconsideration did not meet due diligence test. Additional information could not have been filed before applicant learned of appeal panel’s criticism of expert. Letter provided precision sought that was essential to determinative issue.

Cossette v. Canada (Procureur General) (Apr. 14, 2011, F.C., Scott J., File No. T-1147-10) 203 A.C.W.S. (3d) 531 (16 pp.).

Indictment And Information

AMENDMENT

Variance in date specified did not prejudice accused

Accused charged with sexual interference against his daughter in April or May 2002. Complainant testifying offence took place in summer of 2001. Accused denied offence occurred and testified he had not moved into apartment identified by complainant as crime scene until September 2002. Trial judge acceding to Crown’s request to amend information after defence presented case. Trial judge found offence occurred as described by complainant, but after September 2002. Court of Appeal allowing accused’s appeal and ordering new trial. Crown appeal to S.C.C. allowed and conviction restored. Variance in date specified in information and date arising from evidence did not prejudice accused as defence was based entirely on credibility.

R. v. D. (S.)
(Mar. 21, 2011, S.C.C., Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ., File No. 33842) Decision at 95 W.C.B. (2d) 145 reversed. Facts taken from lower court decision. 95 W.C.B. (2d) 144 (3 pp.).

Drug Offences

POSSESSION FOR PURPOSE OF TRAFFICKING

Much of evidence pointed to accused being visitor in the home

Accused charged with possession for purpose of trafficking. Accused and several others were arrested during execution of search warrant. Various articles that showed accused presence in the apartment had been found including his fingerprints on a bag of marijuana. Not enough evidence existed to convict accused beyond a reasonable doubt. Much of the evidence pointed to accused being a visitor in the home. There are a number of other reasonable possibilities beyond that accused had control of drugs.

R. v. Ngo (May 12, 2011, Ont. C.J., Shamai J.) 95 W.C.B. (2d) 134 (7 pp.).

Charter Of Rights

EQUALITY RIGHTS

Law did not operate in way that undermined accused’s human dignity

Accused appealed conviction for failing to wear approved helmet while operating motorcycle, contrary to s. 104(1) of Highway Traffic Act (Ont.) (“HTA”). Accused was practicing Sikh and did not dispute that he operated motorcycle on highway without helmet. Trial judge concluded that helmets markedly reduced deaths and head injuries experienced by motorcycle riders. Trial judge found nothing in purpose or effect of legislation which was in conflict with s. 15 of Charter. Accused argued trial judge erred in failing to grant application challenging validity and Human Rights Code (Ont.) compliance of s. 104(1) of HTA, which he alleged contravened s. 15 Charter rights. Appeal dismissed. Rational and informed person would understand that law did not operate in way that undermined accused’s human dignity, that it reflected stereotypical approach toward accused for group to which he belonged, or that such individuals were less worthy of recognition or value. No breach of s. 15(1) of Charter.

R. v. Badesha
(May 20, 2011, Ont. C.J., Takach J., File No. 83382604) 95 W.C.B. (2d) 122 (42 pp.).
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