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Civil Practice and Procedure

Costs

Security For Costs

Company demonstrated it was impecunious

In action for patent infringement defendant brought motion for order requiring plaintiff company to post security for costs. Judge found that company and individual plaintiff, majority shareholder of company, did not have assets that could be used to post security for costs, but that minority shareholder was employed, had some assets and was able to post security for costs. Company was ordered to post security for costs of $195,785.70. Plaintiffs appealed. Appeal allowed. Company did not have sufficient assets in Canada available to pay defendant’s costs if ordered to do so. Company, on its own, was impecunious, and majority shareholder was not able to provide financial assistance to company. In deciding whether company was impecunious it was appropriate to distinguish between shareholders who were manipulating company and those who were not. If company was controlled by one person or group of persons, then it was appropriate to consider financial resources of that person or group in determining whether company was impecunious. If person was minority shareholder and was not part of group controlling company, then circumstances related to that shareholder should be examined to consider whether it was appropriate to take into account his or her financial resources in determining whether company was impecunious. Important factor was percentage of shares held by person, and smaller percentage of shares held, less likely it was that financial resources should be considered in determining whether company was impecunious. Minority shareholder here owned 10 percent of shares, she never had been involved in business and was unwilling to post security for costs. Judge erred in law in considering whether minority shareholder could be sole source of amount that company would be required to post as security for costs. Company demonstrated it was impecunious for purpose of Rule 417 of Federal Court Rules.
Swist v. Meg Energy Corp. (2016), 2016 CarswellNat 6184, 2016 FCA 283, Wyman W. Webb J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.).

Civil Practice and Procedure

Costs

Security for costs

Defendant was prima facie entitled to security for costs

Plaintiff was serving life sentence for murde­­r and, in recent years, commenced 17 actions, applications and appeals against defendant Canada in various courts. These appeals arose from plaintiff’s action for damages and two applications for judicial review of grievance decisions. Plaintiff conceded he was indebted to defendant for unpaid costs, now totaling over $31,000. In light of outstanding costs and R. 416(1)(f) of Federal Court Rules, defendant was prima facie entitled to security for costs, and motions judge found accordingly. R. 417 provided poverty should not be bar to litigation, and security for costs should be denied when it would preclude impecunious plaintiff from advancing otherwise meritorious claim. Motions judge found plaintiff did not meet threshold of impecuniosity as he was able to pay court fees to commence numerous proceedings, and able to pay those litigation disbursements. Plaintiff brought appeal from three orders for security for costs made by motions judge. Appeal dismissed. Plaintiff filed financial documentation that showed he had limited financial means, and motions judge’s inference was questionable, as plaintiff’s ability to pay court fees and disbursements was not indicative of ability to pay much larger amount of costs. Motions judge made decision on basis of one factor rather than assessment of plaintiff’s overall financial situation. Plaintiff also had to establish impracticality of borrowing from third party with robust particularity and failed to discharge his onus. Plaintiff’s family members had helped in in past and affidavits filed were short on particulars to explain change in circumstances. There was no direct evidence plaintiff’s wife was ill and unable to work, medical evidence was not up to date, and there was no information on her financial resources or assets.
Mapara v. Canada (Attorney General) (2016), 2016 CarswellNat 6498, 2016 FCA 305, J.D. Denis Pelletier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).

Criminal Law

Offences

Sexual assault

There was no basis to interfere with sentence

Accused and complainant met at social gathering at mutual friend’s home. Complainant fell asleep on couch. Trial judge found accused engaged in sexual intercourse with complainant while she slept, without her consent, knowing that she was not consenting. Accused was convicted of sexual assault and sentenced to incarceration of 30 months. Accused appealed conviction and sought leave to appeal sentence. Appeal dismissed. Leave to appeal sentence granted. Appeal of sentence dismissed. Trial judge’s credibility analysis was reasonable and supported by evidence, she properly instructed herself, and she did not improperly shift burden of proof onto accused. Forensic evidence was neutral. There was no basis to interfere with sentence, which was within range.
R. v. Sanderson (2016), 2016 CarswellOnt 18094, 2016 ONCA 866, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).

Criminal Law

Offences

Criminal negligence causing death


Appeal of conviction for criminal negligence causing death was dismissed

Truck driven by accused drifted into oncoming traffic and collided head-on with mini-van, killing its driver. Accused was convicted of dangerous driving causing death and criminal negligence causing death. Conviction for dangerous driving causing death was stayed in accordance with R. v. Kienapple. Accused appealed conviction for criminal negligence causing death. Appeal dismissed. Accused submitted that trial judge failed to adequately explain to jury elements of criminal negligence causing death and how that offence differs from offence of dangerous driving causing death, and to adequately relate evidence to offence. Trial judge properly instructed jury on elements of criminal negligence causing death and explained difference between that offence and lesser offence of dangerous driving causing death. In response to jury question seeking clarification about difference between dangerous driving causing death and criminal negligence causing death, trial judge repeated relevant portions of his charge and added that for criminal negligence causing death, conduct must be more marked than for dangerous driving in both physical and mental elements of offence. Trial judge reviewed elements of offence of dangerous driving and summarized relevant evidence.
R. v. Bhangal (2016), 2016 CarswellOnt 17933, 2016 ONCA 857, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).

Bankruptcy and Insolvency

Practice and procedure in courts

Appeals

Leave to appeal order approving sale process was dismissed

Company in which G was shareholder went bankrupt. Estate trustee sought offers for company’s assets and arranged auction. Only bidders were G and brother of another shareholder. Auction was unsuccessful. Trustee sought court approval to conduct second auction. G’s request to adjourn motion for approval was denied and order approving sale process granted. G did not participate in second auction and company’s assets were sold to other bidder. G brought motion for leave to appeal order approving sale process. Motion dismissed. Proposed appeal did not satisfy test for leave. Issues raised by G were not of general importance to practice of bankruptcy and insolvency matters or to administration of justice as whole. Motion judge’s decision not to adjourn proceeding and decision to approve sale process were highly fact-specific and were exercise of judge’s discretion. Neither ground of appeal was prima facie meritorious. There was nothing to suggest error in principle or improper exercise of discretion. Proposed appeal would unduly hinder progress of bankruptcy proceedings.
IceGen Inc., Re (2016), 2016 CarswellOnt 18630, 2016 ONCA 907, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Administrative Law

Requirements of natural justice

Right to hearing

Reasons of municipal police services board were inadequate

Applicant taxi company had license to run accessible taxi service revoked, by decision of municipal police services board. Taxi company claimed that decision was made without sufficient reasons. Taxi company applied for judicial review of board’s decision. Application granted. New hearing ordered. There was conflicting evidence as to whether taxi company had vehicles on road without insurance, and whether they had office open at all times. Board’s decision did not resolve conflicts. Reasons were inadequate as whole. Revocation had to remain in interim, before new hearing took place.
Guelph Taxi Inc. v. Guelph Police Service (2016), 2016 CarswellOnt 18684, 2016 ONSC 7383, Dambrot J., Hambly J., and Mew J. (Ont. Div. Ct.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission’s decision was not unreasonable

Complainant alleged that she had been subject to harassment and discrimination on basis of race, national or ethnic origin, and colour in course of her employment with respondent. Investigator concluded that harassment likely did not occur. Canadian Human Rights Commission dismissed complaint, finding that evidence before it did not support complainant’s allegations against her employer and that further inquiry was not warranted. Complainant’s application for judicial review was dismissed. Federal Court judge found that investigator adequately identified various allegations made by complainant and that evidence was insufficient to support them. Judge reviewed both investigator’s report and Commission’s decision, and determined that investigator did not deny complainant procedural fairness and that her allegations were without merit. Judge further found that Commission’s decision was not unreasonable in light of evidence gathered by investigator. Appeal by complainant dismissed. Judge made no reviewable error either in respect of procedural fairness issue or with regard to reasonableness of Commission’s decision. Investigator concluded that complainant had not provided any evidence to support her allegation that she had been treated in differential manner by her three supervisors; and similarly, that she did not provide any evidence to support allegation that she was not provided with harassment-free environment.
Miakanda-Batsika v. Bell Canada (2016), 2016 CarswellNat 5905, 2016 CarswellNat 5906, 2016 FCA 278, 2016 CAF 278, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 6482, 2014 CarswellNat 6483, 2014 FC 840, 2014 CF 840, George R. Locke J. (F.C.).

Communications Law

Regulation of radio and television

Broadcasting licence

Broadcasting licences of aboriginal broadcaster were revoked

Canadian Radio-television and Telecommunications Commission (“CRTC”) revoked broadcasting licences of aboriginal broadcaster because of lack of financial viability. Broadcaster appealed from CRTC order. Appeal dismissed. CRTC adequately considered extent to which CRTC’s Native Radio Policy affected broadcaster. While acknowledging broadcaster had to act as not-for-profit organization under Policy, CRTC found broadcaster was not allocating sufficient resources to vital elements such as programming, sales and marketing. CRTC adequately considered broadcaster’s proposed business plan but found it did not contained type and level of detail necessary to establish viability. CRTC properly found broadcaster failed to report sufficient number of news stories of direct and particular relevance to aboriginal community. Doctrine of legitimate expectations could not act to fetter or restrict power conferred on CRTC to revoke broadcasting licence. Each radio station was found to be non-compliant with conditions of licence.
Aboriginal Voices Radio Inc. v. Canada (Attorney General) (2016), 2016 CarswellNat 5793, 2016 FCA 275, Eleanor R. Dawson J.A., D.G. Near J.A., and Judith M. Woods J.A. (F.C.A.).

Constitutional Law

Charter of Rights and Freedoms

Nature of rights and freedoms

Appeal by teachers’ union was allowed

Defendant Crown in Right of Province amended schools legislation (“Old Act”), barring plaintiff teachers’ union from collectively bargaining certain elements of their working conditions, including class sizes, with school boards. Plaintiffs brought successful application for declaration that Old Act amendments were unconstitutional as they impaired plaintiffs’ right to freedom of association. Crown took no action within mandated one-year period and amendments became inoperative. Legislature enacted substantially identical provisions to ones declared inoperative (“New Act”). New Act provisions were found by trial judge to be unconstitutional and of no force or effect from point of enactment. Crown appealed successfully. Majority of Court of Appeal found that legislation was constitutional. Court of Appeal found that trial judge’s finding that Province did not consult in good faith was based on legal error. Court of Appeal found that pre-legislative consultations were relevant at infringement stage of constitutional analysis in freedom-of-association cases, and that trial judge erred on this issue. Court of Appeal found that pre-legislative consultations were not required to be with government acting as employer, and that trial judge erred in finding otherwise. Court of Appeal found that Province consulted in good faith, and that consultations and collective bargaining undertaken were adequate. Dissenting judge for Court of Appeal found that trial judge’s finding that passage of the bill was unconstitutional should be upheld. Dissenting judge found that trial judge was entitled to consider substantive reasonableness of Province’s negotiating position. Dissenting judge found that pre-legislative consultation could be replacement for traditional collective bargaining process, but only where it was meaningful, and that parties had to negotiate from approximate equality. Dissenting judge found that trial judge made no appealable error in finding that government consulted in bad faith. Plaintiffs appealed decision of Court of Appeal. Appeal allowed, substantially for reasons of dissenting judge in Court of Appeal.
BCTF v. British Columbia (2016), 2016 CarswellBC 3739, 2016 CarswellBC 3740, 2016 SCC 49, 2016 CSC 49, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellBC 1113, 2015 BCCA 184, Bauman C.J.B.C., Donald J.A., Newbury J.A., Saunders J.A., and Harris J.A. (B.C. C.A.).

Criminal Law

Narcotic and drug control

Offences

Sentence at upper end of range was not warranted

Accused delivered one-kilogram brick of cocaine contained in grocery bag to man. Accused was 44-year old first offender who was gainfully employed at time of his arrest. Jury convicted accused of trafficking. Trial judge sentenced accused to eight years’ imprisonment less credit of 24 days for time spent in pre-disposition custody. Accused appealed sentence. Appeal allowed. Sentence was reduced to term of five years. Trial judge erred in making findings of fact that prior transactions between accused and man who supplied him with brick involved cocaine or methamphetamine in absence of evidence to support such conclusion and using that finding as aggravating factor on sentence. Trial judge erred in failing to give effect to principle of parity in light of sentences imposed on two others involved. Trial judge erred in imposing sentence of imprisonment at upper end of range of sentence without taking into account that accused was first offender. Evidence did not warrant sentence at upper end of range of sentence applicable to accused’s offence for first offender. Trial judge did not have benefit of Gladue report which was received as fresh evidence on hearing of appeal. Report and errors warranted reduction in sentence.
R. v. McIntyre (2016), 2016 CarswellOnt 17506, 2016 ONCA 843, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).


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