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Criminal Law

Prisons and prisoners

Regulation

Independent chair reasonably applied modified objective standard for applicant’s conduct

Correctional service officers found and seized four gallons of liquor in applicant’s cell. After discovery of liquor, applicant asked to be placed in administrative segregation for fear of safety. Applicant pleaded not guilty to disciplinary offence and raised defence of duress. Applicant testified that inmates used his cell to manufacture liquor, forcing him to keep it in his cell in exchange for reduction of debts he contracted while in prison and that he saw no other way out but to accept liquor. Applicant was convicted of offence. Applicant’s application for judicial review was granted. Attorney General of Canada appealed. Appeal allowed. Independent chairman did not err in failing to analyze last three criteria in modified objective standard of defence of duress. Independent chair reasonably applied modified objective standard for applicant’s conduct. Applicant knew solution but ignored it when he breached establishment rules by keeping prohibited liquid mixture in his cell. Independent chairman concluded that applicant knew and could seek protection, because that it exactly what he did once seizure was made.
Canada (Procureur général) c. L’Espérance (2016), 2016 CarswellNat 7426, 2016 CAF 306, Noël C.J., Johanne Trudel J.A., and Boivin J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 12, 2016 CarswellNat 1950, 2016 FC 19, 2016 CF 19, Sylvie E. Roussel J. (F.C.).

Commercial Law

Agricultural products

Miscellaneous

Respondent did not transport cows in violation of Health of Animals Regulations (Can.)

Corporate respondent’s employee was charged with transporting cows in violation of s. 138(4) of Health of Animals Regulations. Employee attempted to raise two cows that were lying on side but without success. Inspector found that there was trampling and muscle tremors and that cow was unfit for transport. Canada Agricultural Review Tribunal found that corporate respondent did not transport cows unfit for transport. Attorney General of Canada brought application for judicial review. Application dismissed. Decision was reasonable. Regulations did not retain capacity for cow to rise independently as sole criterion for determining fitness for transportation. It was therefore up to carrier during transport and tribunal to assess whether cow was unfit given context of each case.
Canada (Procureur général) c. L. Bilodeau et Fils Ltée (2017), 2017 CarswellNat 108, 2017 CAF 5, Scott J.A., Richard Boivin J.A., and De Montigny J.A. (F.C.A.).

Public Law

Elections

Advertising

Election Act (B.C.) registration requirement should be imposed only on those paying for advertising services or receiving services

Section 239 of BC’s Election Act (Act) required everyone sponsoring election advertising during campaign to register with province’s Chief Electoral Officer (CEO), regardless of amount spent during writ period. 2010 Report of CEO did not distinguish between sponsors conducting full media campaigns and individuals engaged in such activities as putting bumper stickers on cars, posting handwritten signs in windows, or wearing T-shirts with political messages (individuals). Non-profit association brought unsuccessful application for declaration that registration requirement in respect of sponsors of election advertising spending less than $500 in given campaign period infringed s. 2(b) of Canadian Charter of Rights and Freedoms, was not saved by s. 1, was of no force and effect, and should be read down to include exception for individuals. Trial judge and majority of Court of Appeal found that s. 239 infringed s. 2(b), but that infringement was justified under s. 1. BC Attorney General (A-G) took position that s. 239 did not force individuals to register. Association appealed. Appeal dismissed. Individuals who neither paid others to advertise nor received advertising services without charge were not “sponsors” and could transmit their own points of view by posting handmade signs in windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them, without registering under Act. Act was consistent with position taken by A-G. Courts below did not determine scope and nature of limitation on free expression imposed by s. 239 but accepted CEO’s interpretation as including individuals in definition of “sponsor”. When words of s. 239 were read in entire context and in grammatical and ordinary sense harmoniously with scheme of Act, object of Act, and intention of Parliament, it was clear that provision was directed only at those undertaking organized advertising campaigns who paid for advertising services or received those services without charge as contribution. While definition of “election advertising” in s. 228 was broad enough to cover expressions by individuals, ordinary meaning of “sponsor” was not. Act defined “sponsor” as “individual or organization who pays for election advertising to be conducted”. Interpreting s. 239 as imposing registration requirement only on those who pay for advertising services or receive services from others in undertaking election advertising campaigns was consistent with purpose of Act, intention of legislature, and legislative history.
B.C. Freedom of Information and Privacy Assn. v. British Columbia (Attorney General) (2017), 2017 CarswellBC 161, 2017 CarswellBC 162, 2017 SCC 6, 2017 CSC 6, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1035, 2015 BCCA 172, Newbury J.A., Saunders J.A., and Lowry J.A. (B.C. C.A.).

Insurance

Automobile insurance

Underinsured motorist endorsement

Future CPP disability benefits did not reduce amount payable by insurer

Plaintiff’s action against defendant tortfeasor with respect to motor vehicle accident was allowed with award of damages exceeding limits of tortfeasor’s insurance policy. Plaintiff claimed shortfall from his own insurer under SEF 44 Family Protection Endorsement, but insurer took position that Endorsement’s deduction of future disability benefits from “any policy of insurance” applied to Canada Pension Plan (CPP) disability benefits. Trial judge ruled that CPP benefits were not deductible from shortfall owed to plaintiff by insurer. Insurer’s appeal was allowed. Plaintiff appealed. Appeal allowed. Ordinary meaning of words at issue was clear, reading Endorsement as whole. Average person applying for this additional insurance coverage would understand “policy of insurance” to mean optional, private insurance contract and not mandatory statutory scheme such as CPP. Insurer could not rely on its specialized knowledge of jurisprudence to advance interpretation that went beyond clear words of policy. Precedent relied on by insurer and appellate court with respect to meaning of “policy of insurance” was decided in very different interpretive context and did not support alternative reasonable interpretation. Future CPP disability benefits did not reduce amount payable by insurer.
Sabean v. Portage La Prairie Mutual Insurance Co. (2017), 2017 CarswellNS 38, 2017 CarswellNS 39, 2017 SCC 7, 2017 CSC 7, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellNS 472, 2015 NSCA 53, Beveridge J.A., Hamilton J.A., and Scanlan J.A. (N.S. C.A.).

Criminal Law

Extradition proceedings

Extradition from Canada

Application for bail pending appeal of extradition order was dismissed

United States alleged that accused coerced two sisters living in Virginia into performing sadistic sexual acts with each other in front of webcam while accused watched and captured images on his computer for pleasure. Accused was arrested on domestic charges in 2012 and released on bail. Accused was subsequently arrested under Extradition Act and Canadian charges were withdrawn. Accused’s application for bail in relation to extradition proceedings was dismissed and accused was committed for extradition to United States. Accused was ultimately discharged on appeal, based on finding there was insufficient evidence for committal for offence of child luring. United Stated advised they conducted search of accused’s computer and as result, 80 new alleged victims were located, 70 of whom were in United States, and accused was once arrested and once again committed for extradition to United States. Accused commenced appeal of order. Accused brought application under Act for bail pending appeal of order committing him for extradition to United States. Application dismissed. Appeal was not frivolous; however, accused failed to show he was not flight risk. Strength of case against accused increased as was magnitude of accused’s alleged wrongdoing. Accused was well-versed in travel. Detention was necessary in public interest. Evidence against accused demonstrated ongoing systematic pattern of intimidating threatening and exploiting vulnerable children; risk of re-offending was not met by proposed plan of supervision. Accused’s continued detention was necessary to maintain public’s confidence in administration of justice.
United States of America v. Viscomi (2016), 2016 CarswellOnt 20375, 2016 ONCA 980, Eileen E. Gillese J.A., In Chambers (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms
Unreasonable search and seizure [s. 8]

There was reason to question accuracy of information

Two accused, SI and SH, were subject of telewarrant. Both accused were found in separate units of same condo building, with drugs, firearms, and ammunition present. Both accused challenged validity of warrant, with SH testifying that he had no knowledge of items in apartment unit which was not his. SI did not testify. Accused moved unsuccessfully to cross-examine affiant of warrant. SH was found guilty only as to count of firearm possession, with other material not proven to be in his control. SI was found guilty on all counts. SI was sentenced to 10 years’ imprisonment, with SH being sentenced to 6 years imprisonment. Accused claimed that s.8 violation under Charter of Rights and Freedoms should have been found, by trial judge. SI also claimed that sentence was unfit. Both accused appealed from convictions. Appeal allowed. Cross-examination should have been permitted. There was reason to question accuracy of information, with affiant expressing some doubt as to contents. Proper corroboration was not present.
R. v. Shivrattan (2017), 2017 CarswellOnt 329, 2017 ONCA 23, Doherty J.A., C.W. Hourigan J.A., and L.B. Roberts J.A. (Ont. C.A.).

Criminal Law

Prisons and prisoners
Regulation

Corrections Officer’s negligence caused inmate’s injuries

Plaintiff gang member (inmate) was sent to defendant province’s pre-trial detention facility with policy of distributing members of same gang as evenly as possible throughout facility. Corrections Officer (CO), A, applied policy and housed inmate in unit with R, high-level member of rival street gang who was on trial for alleged crimes committed in altercation with inmate’s gang. Inmate requested protective custody on prior occasion, but not on current occasion. Inmate was attacked, dragged to another area, beaten viciously by several people. Inmate brought successful action against province for damages for negligence. Trial judge held that policy fell squarely within category of policy decisions and was not justiciable, that A’s failure to take circumstances into account while fulfilling policy’s distribution requirement amounted to negligent conduct, that inmate compatibility should have formed part of calculus, that inmate’s failure to request protective custody did not absolve province from liability, that A ought to have known R posed risk to rival gang members, that layout of facility allowed prolonged attack to go undetected, and that inmate’s injuries were direct result of A’s negligence. Province appealed. Appeal dismissed. Read holistically, trial judge’s “duty of care” analysis disclosed no legal error. Trial judge’s findings of breach of that duty and causation of damage disclosed neither “palpable and overriding” error of fact nor error concerning “extricable question of law”. Trial judge did not conflate concepts of direct and vicarious liability or otherwise fail to apply principle that province’s liability had to derive from actionable negligence of specific CO. Trial judge did not hold that institution-level conduct of gathering and sharing information could ground liability but considered inter-institutional knowledge and sharing of information about R within government in support of conclusion that A knew or ought to have known of threat posed to inmate. Any liability of province flowing from these facts flowed through A’s negligence in housing inmate with R. Trial judge’s finding that A breached standard of care had sufficient evidentiary basis. Trial judge’s finding that A should have known not to place inmate in same unit as R did not disclose “palpable and overriding error” justifying court’s intervention. Trial judge did not unreasonably conclude that negligence of COs caused inmate’s injuries.
Walters (Litigation guardian of) v. Ontario (2017), 2017 CarswellOnt 574, 2017 ONCA 53, G.R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12001, 2015 ONSC 4855, Gans J. (Ont. S.C.J.).

Conflict of Laws

Enforcement of foreign judgments

Defences

Foreign judgments are not exempt from limitation period under Limitations Act (Ont.)

Plaintiff obtained judgment in United States against defendant, and defendant’s appeal was dismissed. Plaintiff’s application in Ontario to enforce foreign judgment was granted, with dismissal of defendant’s defence arguing that limitation period commenced from date of first-instance judgment and not from dismissal of appeal. Defendant appealed. Appeal dismissed. Class of claims subject to no limitation period under s. 16 of Limitations Act, including in s. 16(1)(b) of Act to enforce order of court, did not include to proceeding on foreign judgment. Debt obligation created by foreign judgment could not be directly enforced as proceeding within province had to be brought first. Term “order of court” referred to order of domestic court, which could only be obtained if underlying cause of action was not time-barred whereas proceeding underlying foreign judgment had not passed any Ontario limitations hurdle. Other claims grouped together in s. 16 of Act were those considered so important that would be no limitation period. It would contrary to purpose of Act to exempt foreign judgments from limitation period, since problems associated with preservation and reliability of evidence were especially pronounced for foreign judgment debtors. Applicable limitation period was basic two-year period from when claim was discovered meaning that commencing proceeding was “appropriate” which meant “legally appropriate”. It was not legally appropriate to commence legal proceeding in Ontario on foreign judgment until time to appeal foreign judgment had expired or all appeal remedies had been exhausted. Plaintiff’s claim based on foreign judgment was discoverable when appeal was dismissed and so proceeding was commenced within limitation period.
Independence Plaza 1 Associates, L.L.C. v. Figliolini (2017), 2017 CarswellOnt 374, 2017 ONCA 44, George R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.).

Immigration and Citizenship

Admission

Temporary entry (visitors)

It was not understandably clear why visa officer denied study permit

Applicant previously studied in Canada and was honour student at college. Same college had accepted applicant’s application for resumption of his studies. Applicant applied for study permit pursuant to s. 11(1) of Immigration and Refugee Protection Act, which was denied by visa officer based on overall unreasonableness of applicant’s plan of studies, strong personal ties to Canada, and previous immigration history. Applicant applied for judicial review. Application granted. Applicant provided evidence of establishment of his parents in Greece. Applicant’s family resided in Greece, his ties there remained strong, and only former friends were living in Canada. Applicant’s study plans encompassed logical trajectory for study permit. It was not understandably clear why visa officer denied study permit, and without more specific clarification, officer’s decision was not reasonable.
Tsaraosi v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 55, 2017 FC 59, Michel M.J. Shore J. (F.C.).

Tax

Income tax

Losses

Taxpayer’s losses were denied in their entirety

Taxpayer L-M deducted against his employment income of $70,000 to $80,000 aggregate business and rental losses of $52,748 for 2006, $61,625 for 2007, and $67,768 for 2008. L-M claimed significant losses from arrangement with P Ltd.. Taxpayer L reported small amount of business income and deducted business losses from purported business carried on in common with L-M, being $3,846 in 2006, $336 in 2007, and $11,188 in 2008. Taxpayers reported losses as 80/20 partners in partnership that was distributor for MA business. Minister reassessed taxpayers to deny losses in their entirety. Tax Court judge dismissed taxpayers’ appeals. Judge found that losses claimed with respect to P Ltd. were not substantiated. L-M appealed. Appeal dismissed. Judge did not misunderstand issue that was before her. Net effect of judge’s decision would be same regardless of whether it was determined that L-M did not have source of business or property income in relation to P Ltd. or MA activity or that expenses in dispute were not incurred by him for purpose of gaining income from business or property, with result that revenue for each activity would be equal to expenses allowed for each activity. Judge did not make any error by focusing on issue of whether L-M had substantiated amounts claimed as losses. Judge did not err in finding that L-M had not substantiated that he had incurred amounts as expenses for purpose of gaining income from business or property. Judge did not err in determining that L-M’s testimony was so vague and conflicting as to be unreliable except to extent it was supported by other evidence.
Lubega-Matovu v. R. (2016), 2016 CarswellNat 7427, 2016 FCA 315, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Richard Boivin J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2214, 2015 TCC 147, Judith M. Woods J. (T.C.C. [Informal Procedure]).
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