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Civil Practice and Procedure

Costs

Costs of appeals

Quantum of costs had to reflect divided success

Applicant owners purchased lakefront property, across which ran above-ground pipe drawing water from lake for respondent neighbours’ property pursuant to “water pipe easement” document executed by predecessors in title. Neighbours entered into owners’ property without permission on basis that pipe was leaking and had to be repaired. Owners’ application for declaration that easement was invalid was dismissed and neighbours’ counter-application for declaration of subsisting easement was granted on terms allowing them to bury new water line within boundaries of easement. Owners’ appeal was allowed in part, to vary declaration to limit easement to leaving existing pipeline in present position and allowing neighbours to make only those repairs to which owners agreed in advance. Costs submissions received. Owners awarded costs in amount of $8,000. There were no unusual circumstances justifying departure from usual approach of setting aside order for costs below. As appeal was allowed only in part, it did not automatically follow that owners were entitled to full costs of proceedings below. Quantum of costs had to reflect that there was divided success. Owners enjoyed greater success as they succeeded on issues that drove proceedings below, namely whether neighbours could enter onto their lands without their prior permission to repair pipeline and whether neighbours had right to replace existing pipeline. Owners’ suggestion about neighbours’ conduct, namely that there was no leak in pipeline, was based on correspondence that arose after conclusion of proceedings and which had not been tested in crucible of litigation. Meaning to be taken from correspondence was disputed and record would not support credibility findings necessary to resolve dispute so as to find reprehensible behaviour warranting sanction of costs.
Mihaylov v. 1165996 Ontario Inc. (2017), 2017 CarswellOnt 3741, 2017 ONCA 218, Eileen E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1653, 2017 ONCA 116, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Labour and Employment Law

Labour law

Discipline and termination

Conclusion that workers did not voluntarily leave their employment was reasonable

It was employer’s practice to artificially create seasonal jobs for plant’s operations; two teams of employees would share work over six-month periods. This was embodied in letter of agreement signed in 2001 between union and employer. Fourth clause of agreement provided that, at time of team changes, employees could not exercise their right to displace according to seniority provided for in art. 9.09 of collective agreement. During “rest period”, employees, including workers, claimed and benefited from employment insurance benefits. This practice was uninterrupted for 13 years until in 2012, when Service Canada advised employer that when employee did not exercise seniority right, situation constituted voluntary departure. Record of Employment issued by employer indicated lack of work as cause of departure. Employment Insurance Commission (Commission) denied workers employment insurance benefits on basis of voluntary departure. As soon as workers were informed that letter of agreement was no longer valid as of February 2013, workers asserted their right to displace, returned to work, and appealed Commission’s decision. Board of Referees allowed appeal against Commission’s decision. Commission’s appeals following decision were dismissed by Social Security Tribunal Division Appeal (DA). DA concluded that, light of particular circumstances of case, workers by did not voluntarily leave their employment. Attorney General brought application for judicial review. Application dismissed. DA’s findings of fact were reasonable as they were based on evidence heard and other documentary evidence on record. DA was reasonable to conclude that workers did not choose to refuse to work in order to allow other employees to work in their place, given absence of evidence before Board of Referees that workers we previously notified by their employer, and union of cancellation of letter of agreement signed in 2001. DA did not have to determine whether workers were justified in leaving their jobs. Any employee, who, having regard to his or her seniority, was entitled to work but chose to allow another employee to work, voluntarily left his or her employment and did not establish justification under law.
Canada (Procureur général) c. Joncas (2017), 2017 CarswellNat 1032, 2017 CAF 57, Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).

Evidence

Opinion

Experts

Affidavit did not properly fall within exception afforded to experts

Applicant Members of Parliament (MPs) applied to challenge decisions by Board of Internal Economy about their large-volume mailings and use of Parliamentary resources for expenses. Respondent Board and Speaker of House of Commons brought motion to strike out applications on basis that matters were within exclusive purview of House of Commons protected by doctrine of parliamentary privilege. MPs served affidavit of law professor, opining on international global trend of construing parliamentary privilege narrowly. Respondents’ motion to strike out affidavit was dismissed, and their appeal dismissed. Respondents appealed. Appeal allowed. Law professor’s affidavit did not provide evidence that was necessary to enable judge to appreciate matters in issue due to their technical nature as foreign laws and authorities referred to were not factual issues requiring proof. Courts routinely relied on foreign case law and doctrine without need for their introduction by way of affidavit. Affidavit’s essential character was not to offer historical perspective into concept of parliamentary privilege but to suggest restrictive interpretation on basis of legal analysis of foreign constitutional provisions and authorities. Affidavit advocated for more restrictive interpretation of that privilege in light of recent developments in foreign law and practice. Affidavit was inadmissible and did not properly fall within exception afforded to experts. While discretion to strike out affidavits should be exercised sparingly, affidavit was not properly accepted for filing. Affidavit was so clearly inadmissible there was no need to have full record before coming to final assessment of its merits. It was in interests of justice to intervene at this early stage. Respondents would be materially prejudiced and orderly hearing of application would be impaired if affidavit was not struck immediately. Delay in bringing motion to strike out affidavit was not fatal as court should not decline to strike out affidavit that was clearly inadmissible merely because motion to that effect was not brought as quickly as it should have been.
Canada (Board of Internal Economy) v. Canada (Attorney General) (2017), 2017 CarswellNat 660, 2017 FCA 43, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 2996, 2016 FC 745, George R. Locke J. (F.C.).

Motor Vehicles

Accident claims funds
Practice and procedure

Civil action against third parties barred by application of Automobile Insurance Act (Que.)

Availability of civil liability remedies. Victims, injured in automobile accidents, also suffered aggravated or separate injuries due to subsequent faults attributable to third parties. Civil action against third parties barred by application of public compensation scheme under Automobile Insurance Act (Que.). Compensation scheme limiting compensation exclusively to amounts paid pursuant to scheme in circumstances where sufficiently close link between bodily injury and automobile accident is established. In such cases, the scheme covers the whole of the injury and confers civil immunity on everyone in respect of those injuries. Fact that compensation was claimed and received pursuant to compensation scheme, however, not constituting waiver of any civil action.
Godbout c. Pagé (2017), 2017 CarswellQue 1646, 2017 CarswellQue 1647, 2017 SCC 18, 2017 CSC 18, McLachlin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 646, 2015 QCCA 225, (C.A. Que.)

Criminal Law

Post-trial procedure

Appeal from conviction or acquittal

Considerable deference was owed to trial judge’s assessment of evidence

40 years ago, accused sexually abused his nephews and niece, but latter did not report him to the police until 2009. Accused was charged with indecent assault and gross indecency. Trial judge found victims’ evidence to be reliable and credible and found accused’s evidence to be not reliable. Accused was convicted as charged. Accused appealed, arguing that trial judge made several errors and rendered unreasonable verdict. Majority at Court of Appeal noted that to be successful, accused had to show that verdict was not verdict that properly instructed jury, acting judicially, could reasonably have rendered or that trial judge’s reasoning process was so irrational, or so at odds with evidence, that it vitiated verdict. In present case, considerable deference was owed to trial judge’s assessment of evidence. In particular, trial judge did not err in finding that accused was not credible. Trial judge did not err by relying on testimony of victims, albeit given 40 years after fact. His findings were well explained and appeal was dismissed. Accused appealed to Supreme Court of Canada. Appeal dismissed. Appeal should be dismissed for reasons of majority of Court of Appeal.
R. c. Savard (2017), 2017 CarswellQue 2095, 2017 CarswellQue 2096, 2017 SCC 21, 2017 CSC 21, Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellQue 1699, 2016 QCCA 380, Chamberland J.C.A., Morin J.C.A., and Dutil J.C.A. (C.A. Que.).

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Challenge to validity of search warrants was dismissed

Accused was convicted of several offences involving possession of firearm and dangerous weapon. Accused’s applications under ss. 7, 8, and 9 of Canadian Charter of Rights and Freedoms, including his s. 8 application to exclude evidence obtained pursuant to search warrants obtained under Criminal Code and Controlled Drugs and Substances Act, were dismissed. Warrants were based on information provided by confidential informant (CI), computer checks of police databases, and surveillance. Crown conceded that judicial summary of redacted information to obtain (ITO) could not support authorization of warrants. Crown’s application to have judge consider unredacted ITO was granted, accused’s s. 8 application was dismissed, evidence obtained in searches was admitted, and accused was convicted. Accused appealed convictions, challenging validity of search warrants on basis that they violated his s. 8 Charter rights. Appeal dismissed. Application judge did not err by not permitting accused to challenge sub-facial validity of redacted portions of ITO. Read as whole, application judge’s reasons made it clear that accused was permitted to make, and did make, sub-facial challenge to warrant. Application judge dismissed accused’s sub-facial challenge, finding that ITO did not omit any material facts concerning surveillance or that information provided was misleading. Application judge found that ITO was not misleading and that police conducted adequate investigation to corroborate CI’s tip. He dismissed accused’s request for additional information on basis that further disclosure could disclose CI’s identity. Judicial summary explained nature of redacted information and was sufficient to permit accused to challenge credibility of CI, whether information provided by CI was compelling, and whether CI’s information was corroborated.
R. v. Thompson (2017), 2017 CarswellOnt 3240, 2017 ONCA 204, J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Challenge to validity of search warrants was dismissed

Accused was convicted of several offences involving possession of firearm and dangerous weapon. Accused’s applications under ss. 7, 8, and 9 of Canadian Charter of Rights and Freedoms, including his s. 8 application to exclude evidence obtained pursuant to search warrants obtained under Criminal Code and Controlled Drugs and Substances Act, were dismissed. Warrants were based on information provided by confidential informant (CI), computer checks of police databases, and surveillance. Crown conceded that judicial summary of redacted information to obtain (ITO) could not support authorization of warrants. Crown’s application to have judge consider unredacted ITO was granted, accused’s s. 8 application was dismissed, evidence obtained in searches was admitted, and accused was convicted. Accused appealed convictions, challenging validity of search warrants on basis that they violated his s. 8 Charter rights. Appeal dismissed. Application judge did not err by not permitting accused to challenge sub-facial validity of redacted portions of ITO. Read as whole, application judge’s reasons made it clear that accused was permitted to make, and did make, sub-facial challenge to warrant. Application judge dismissed accused’s sub-facial challenge, finding that ITO did not omit any material facts concerning surveillance or that information provided was misleading. Application judge found that ITO was not misleading and that police conducted adequate investigation to corroborate CI’s tip. He dismissed accused’s request for additional information on basis that further disclosure could disclose CI’s identity. Judicial summary explained nature of redacted information and was sufficient to permit accused to challenge credibility of CI, whether information provided by CI was compelling, and whether CI’s information was corroborated.
R. v. Thompson (2017), 2017 CarswellOnt 3240, 2017 ONCA 204, J. MacFarland J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.).

Aboriginal Law

Reserves and real property

Leases

Plaintiff and Band entered into private leasing contract regarding hunting grounds

Plaintiff was member of defendant Band and he agreed to lease hunting grounds from Band for purposes of operating hunt club business pursuant to series of lease or land use agreements between plaintiff and Band. Plaintiff sought approval from Band to make capital improvements to buildings and lands of hunt club, and he sought credit for cost of capital improvements against rent he was required to pay. Plaintiff claimed that credit of $532,500 was agreed upon, and plaintiff did not pay rent for five years on the basis that he was drawing down capital improvement credit. There was change in Band council and plaintiff was evicted after 15 years of leasing land, right at start of hunting season, and plaintiff lost money, he was humiliated and his reputation suffered greatly. When council voted to evict plaintiff, they refused to count vote of one council member because they did not want there to be tie. Plaintiff brought action seeking damages, claiming that eviction constituted breach of agreement he had with Band; Band counterclaimed for unpaid rent due and owing. Action allowed; counterclaim allowed. Parties agreed that plaintiff would lease land from Band for $84,000 per year. Plaintiff and Band had agreement that plaintiff could proceed with construction and renovations, Band agreed to reimburse plaintiff for improvements by way of capital improvement credit to his rent, and plaintiff was entitled to capital improvement credit of $532,500. Band allowed and encouraged work to be completed knowing that plaintiff expected to be reimbursed. Band took no steps to collect rent for five years that plaintiff did not pay. Band knew that plaintiff did not keep receipts for cost of improvements, as much of work was done by plaintiff and his men on cash basis and receipts were not available. Procedure followed by Band council at meeting where they voted to evict plaintiff was completely improper. Parties entered into private contract and it could not be said that Band owed duty of fairness to plaintiff, but giving effect to intention of parties, justice required plaintiff to be given capital improvement credit of $532,500 against rent. Taking into account capital improvement credit, rent owing, and deposit plaintiff had paid, plaintiff was entitled to judgment of $142,500.
Sands v. Walpole Island First Nations Band Council (2016), 2016 CarswellOnt 21492, 2016 ONSC 7983, Pamela L. Hebner J. (Ont. S.C.J.).

Aboriginal Law

Family law

Children in need of protection

Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement

Plaintiff brought class action against Canada, with respect to “scoop” of aboriginal children who were removed from their families on reserves in Ontario by child welfare authorities and were placed with or adopted by non-aboriginal parents. Plaintiff brought motion for summary judgment on certified common issue of whether Canada breached fiduciary or common law duties to take reasonable steps to prevent class members’ loss of aboriginal identity after they were placed in foster and adoptive parents. Motion granted. While rudimentary child welfare services were extended to some reserves, with minimal federal funding, Canada’s agreement with Ontario extended whole range of child welfare services and other provincial welfare programs to Indians with significant federal funding. Key component of agreement was Canada’s obligation to consult with Indian Bands, which plainly and unambiguously applied to each of 18 extended programs including child welfare services. No Indian Bands were ever consulted before child welfare services were extended and no Bands provided their concurrence. Language and context of provision at issue implicitly obligated Canada to actually undertake referred-to consultations and so, as Canada failed to consult with Indian Bands as it had undertaken to do, it breached agreement. If Canada had consulted with Bands, they clearly would have provided ideas and advice that could have prevented thousands of scooped children from losing their aboriginal identity. Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement by, at minimum, failing to provide parents with information on apprehended children’s aboriginal heritage and entitlement to various federal benefits. Obligation to consult under agreement created common law duty of care that provided basis in tort for class members’ claims. Agreement was analogous to third-party beneficiary agreement as Canada undertook obligation to consult to benefit Indian Bands who were not parties to agreement.
Brown v. Canada (Attorney General) (2017), 2017 CarswellOnt 1758, 2017 ONSC 251, Edward P. Belobaba J. (Ont. S.C.J.).

Aboriginal Law

Government of Aboriginal people

Councils

Process that resulted in passage of resolution breached procedural fairness

Respondents, purporting to act as chief and council of First Nation, passed resolution that purported to vest responsibility for First Nation school board in chief and council and to invalidate decisions made by board that were not supported by quorum of council and/or required ratification of such decisions by majority of council. Effect of resolution could include invalidating board’s decision to restructure and to dismiss Director of Education. Applicants maintained that resolution was not valid because it was passed at meeting of council that was not duly convened and without notice to chief and council, and resolution was beyond jurisdiction of chief and council. Applicants applied for judicial review of resolution. Application granted. Process that resulted in passage of resolution breached procedural fairness. Meeting was called for only one purpose, which was to discuss forensic audit, and it was not regular meeting of council but was more akin to special meeting. Respondents could not opportunistically spring resolution on chief at meeting called for different purpose. Although all councillors were present at meeting and chief was aware of concern of some councillors regarding school board, applicants had no advance warning that resolution would be tabled, or of its wording, and they had no opportunity to prepare and to make submissions. Respondents’ actions in passing resolution without sufficient notice to chief and to all councillors and without providing all councillors with opportunity to make representations was breach of procedural fairness, and resolution was invalid. Resolution failed to recognize that school board was separate entity that was accountable to Band and not directly to chief and council, that school board election procedures could not be unilaterally amended by chief and council, and that resolution that established band must be respected.
Peguis First Nation v. Bear (2017), 2017 CarswellNat 356, 2017 FC 179, Catherine M. Kane J. (F.C.).
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