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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


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


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


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.).



Balance of convenience was in favour of completing inquest

Application to stay inquest pending determination of judicial review of decision by coroner refusing to expand scope of inquest or to grant leave for certain witnesses to be called. Mother and her two children died in fire in their home. Apartment that deceased lived in was owned and operated by community housing corporation. Fire was determined to have been caused by children who were playing with lighter. Mother was asleep at time. Mother’s body was found to have high blood alcohol content, and it was determined that she had consumed both cocaine and marijuana at earlier time. Provincial Advocate and deceased’s family’s application to expand scope of inquest to examine services provided to family was dismissed. Provincial Advocate’s request to call certain witnesses was refused. Motion dismissed. Test for stay was not met. Judicial reviews did not raise serious issue. No irreparable harm would result if stay was denied. Balance of convenience was in favour of completing inquest.

Ontario (Provincial Advocate for Children and Youth) v. Ontario (Coroner)
(June 3, 2011, Ont. S.C.J. (Div. Ct.), Lederer J., File No. 255/11; 257/11) 203 A.C.W.S. (3d) 64 (13 pp.).

Civil Procedure


Information sought only relevant to merits of claim, not to certification motion

Motion by plaintiff for disclosure of information on motion for certification of proposed class under Class Proceedings Act, 1992 (Ont.). Plaintiff commenced action against city for various relief because on-street parking machines use by city allegedly malfunctioned during winter ice storms. Parking machines were owned by corporation owned by city. Plaintiff sought production of information from manufacturer and corporation. Motion dismissed. Information sought was not relevant to certification motion. Information sought was only relevant to merits of claim.

Arenson v. Toronto (City) (May 31, 2011, Ont. S.C.J., Perell J., File No. 08-CV-348329CP) 203 A.C.W.S. (3d) 16 (5 pp.).

Human Rights Legislation


Employee failed to establish either incompetence or miscarriage of justice

Application by employee for judicial review of decision of Canadian Human Rights Tribunal awarding employee modest damages and costs. Employee was federal civil servant who applied for administrative position with Royal Canadian Mounted Police (“RCMP”). Employee was initially told she was successful candidate. Employee authorized RCMP to access her personnel leave file, which documented significant leave due to two motor vehicle accidents. Employee was then informed she was no longer being considered for position. Employee suffered panic attack and went on long-term disability. Employee filed complaint of discrimination. RCMP admitted liability and offered employee position. Employee accepted position and was awarded $4,000 for damages plus $5,814 for costs. Application dismissed. Employee failed to establish any reviewable errors. Allegation that tribunal unreasonably refused to postpone hearing could not be considered due to lack of evidence. Employee could have brought motion for order compelling tribunal to produce transcript but failed to do so. Tribunal had not erred in focusing on remedy rather than conducting complete hearing. Employee had not raised any concerns at hearing while represented by counsel. More importantly, RCMP had admitted liability so there was no need to address liability. Employee provided no evidence in support of allegation that her counsel was incompetent. Employee failed to establish either incompetence or miscarriage of justice. Tribunal provided clear and intelligible reasons for its assessment of damages and its decision was reasonable.

Berberi v. Canada (Human Rights Tribunal) (Apr. 21, 2011, F.C., Heneghan J., File No. T-1433-09) 203 A.C.W.S. (3d) 143 (22 pp.).



Citizenship judge failed to indicate method and criterion used

Appellant sought revision of decision that granted citizenship to respondent. Appellant claimed that judge erred in considering that respondent fulfilled his obligation of residence. Appeal allowed. Court affirmed that citizenship judge failed to indicate method and criterion used to determine whether respondent had fulfilled obligation to reside. Court reversed decision on the grounds that decision was not sufficiently motivated and lacked transparency.

Canada (Ministre de la Citoyennete et de L’immigration) v. Baron
(Apr. 20, 2011, F.C., Bedard J., File No. T-1500-10) Reasons in French. 203 A.C.W.S. (3d) 14 (12 pp.).
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