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Criminal Law

General principles

Incomplete crimes

Appeal from conviction for counselling murder was dismissed

Murder. Accused was convicted of two counts of sexual assault causing bodily harm and single counts of breach of recognizance and counselling murder, offence that was not committed. Accused allegedly solicited fellow jail inmate to kill complainant in sexual assault and breach of recognizance counts so that she could not testify against him, but parties did not conclude agreement about how killing was to be carried out at that time. Putative killer, career criminal, testified that accused’s plan was for complainant to die of apparent accidental drug overdose while accused was in jail. Accused appealed conviction for counselling murder. Appeal dismissed. Trial judge did not err in finding that accused “proactively” engaged in conversation about killing complainant in jail yard, or in erroneously relying on evidence of later discussions to confirm evidence of unsavoury prosecution witness. Counselling commission of offence that is not committed is inchoate or preliminary crime complete when solicitation occurs, even if person incited rejects solicitation or merely feigns assent. Trial judge’s findings respecting unrecorded discussion in jail yard established essential elements of counselling offence. Those findings were open to trial judge to make on evidence of principal Crown witness. Trial judge did not misapprehend or err in considering as confirmatory of evidence of putative killer portions of conversations surreptitiously recorded later in jail. He found, as he was entitled to do, that offence was complete when accused and putative killer met, at accused’s invitation, in jail yard.
R. v. Devitt (2016), 2016 CarswellOnt 18092, 2016 ONCA 871, J.C. MacPherson J.A., R.A. Blair J.A., and David Watt J.A. (Ont. C.A.).

Family Law

Domestic contracts and settlements

Effect of contract

Trial judge did not err in interpreting final separation agreement

Parties were married in 1983 and adopted daughter at birth in 1995. Wife left work to become full time homemaker. Parties separated in 2009. In July 2011 parties entered into partial separation agreement under which husband was to pay periodic spousal support of $4,000 per month. In January 2013 parties entered into final separation agreement. Daughter continued to live primarily with husband. Husband, who had been terminated from his employment, agreed to make final spousal support payment of $4,000 for December 2012. Husband began new employment in July 2013. In 2014, wife applied for retroactive spousal support to July 2013 on basis of material change under agreement, also submitting that daughter was no longer child of marriage. Trial judge found husband’s income to be $152,000 and wife’s income to initially be $3,760. Trial judge ordered spousal support of $5,400 monthly retroactive to July 2013; $1,900 monthly from May 2015 to April 2016; $1,930 monthly from May 2016 to April 2017; then $2,068 monthly, indefinitely. Three latter amounts were based on wife making withdrawals from Locked-In Retirement Account ($66,250, $65,221, and $62,167, respectively). Husband appealed. Appeal dismissed. Trial judge did not err in interpreting final separation agreement. Trial judge was entitled to conclude that agreement was not bar to wife’s application for support based on change in circumstances. Agreement acknowledged husband had lost job, effected an equalization of property, stipulated that cessation of spousal support was subject to future material change, required husband to notify wife in event of obtaining future employment, and lacked extensive releases of spousal support. Husband’s argument that his continuing support of daughter meant that he did not have to support wife had to be rejected. Trial judge did not err in concluding that daughter was no longer child of marriage and that wife had no continuing obligation to support her.
Berger v. Berger (2016), 2016 CarswellOnt 18305, 2016 ONCA 884, K.M. Weiler J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.).


Construction and interpretation

Resolving ambiguities

There was no genuine issue for trial

Motion judge granted summary judgment. Defendant appealed. Appeal dismissed. Defendant took position that motion judge should not have granted summary judgment based on written agreement, affidavits and cross-examinations. Defendant took position that he should have found genuine issue for trial based on need to make credibility findings after hearing viva voce evidence, because of ambiguities in agreement. Motion judge interpreted contract based on terms of agreement and of security granted pursuant to agreement. Motion judge rejected position of defendant that he never intended to guarantee principal amount of funds that had been provided by plaintiff. Motion judge considered all of evidence before him in reaching his interpretation. There was no genuine issue for trial that required any further evidence.
1161267 Ontario Ltd. v. Mei (2016), 2016 CarswellOnt 18096, 2016 ONCA 881, Feldman J.A., Lauwers J.A., and Miller J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12399, 2015 ONSC 5146, Coroza J. (Ont. S.C.J.).

Environmental Law

Statutory protection of environment


Trial judge properly considered applicability of privilege

Parties were involved in proceedings under Environmental Protection Act, 1999. Informant in proceedings sought protection of identity under s. 16(2) of Act. At hearing regarding production, order issued which exempted from disclosure any information that might reasonably identify person who applied for investigation. Numbered company appealed. Appeal dismissed. Trial judge properly considered issue of applicability of privilege. Federal Court did not effectively read class privilege of s. 16 into scheme of s. 17 to 21 of Act. Person who believes that investigation should be initiated under s. 17 of Act may also require and request protections afforded by section 16.
876947 Ontario Ltd. v. Canada (Attorney General) (2016), 2016 CarswellNat 5708, 2016 FCA 270, 2016 FC 432, Eleanor R. Dawson J.A., Near J.A., and Woods J.A. (F.C.A.).

Administrative Law

Prerogative remedies


Filing of notice of application was premature

Applicant filed notice of application seeking stay of certain administrative proceedings before Canadian Transportation Agency. Applicant did not ask agency to suspend proceedings, and instead relied on s. 50 of Federal Courts Act to come directly to court. This was ruling, as requested by registry, on whether notice of application should be removed from court file and file ordered closed. Pursuant to authority under R. 74.1 of Federal Court Rules, notice of application was ordered removed from court file and file was ordered closed. Applicant was actually seeking prohibition of administrative proceedings, so standards had to be same. Prohibition was administrative law remedy not to be pursued where there was adequate alternative remedy and lack of extraordinary circumstances or unusual urgency, so same requirements applied here. Canadian Transportation Act gave agency full power over its proceedings, including determining whether to suspend or adjourn proceedings. To allow applicant to bypass agency and go directly to court would offend statutory scheme. Notice of application revealed no unusual urgency or exceptional reason that immediate access to court was necessary. Filing of notice of application was premature and thus contrary to Canada Transportation Act. Decision was without prejudice to applicant’s ability to bring motion for stay of pending appeal of interlocutory decision for which applicant had applied for leave to appeal.
Canadian National Railway v. BNSF Railway (2016), 2016 CarswellNat 5738, 2016 FCA 284, David Stratas J.A. (F.C.A.).

Privacy and Freedom of Information

Provincial privacy legislation


Commissioner could not compel production of records over which solicitor-client privilege asserted

Solicitor-client privilege. In context of constructive dismissal claim, delegate of Information and Privacy Commissioner of Alberta ordered production of records over which University had claimed solicitor-client privilege. Delegate issued Notice of Inquiry instructing University to provide copy of records at issue or two copies of affidavit or unsworn evidence verifying solicitor-client privilege over records. University declined to provide copy of withheld records, and instead provided list of documents identified by page number only and affidavit indicating solicitor-client privilege had been asserted over records. Delegate issued Notice to Produce Records under s. 56(3) of Freedom of Information and Protection of Privacy Act (FOIPP) requiring University to produce documents for review. University again did not comply, and sought judicial review of delegate’s decision to issue the Notice to Produce Record. Application judge found that s. 56(3) of FOIPP permitted Commissioner to compel production of disputed records to verify claims of solicitor-client privilege. Application judge also found that provisions of FOIPP did not work together effectively unless Commissioner had power to compel production of information over which privilege was alleged since FOIPP provided no other mechanism to review that type of claim. Application judge found that delegate had correctly issued notice, noting that University had refused to substantiate in any other way its claims of solicitor-client privilege. Court of Appeal allowed University’s appeal, concluding that Commissioner did not have statutory authority to compel production of records over which solicitor-client privilege was asserted. Commissioner appealed with Supreme Court of Canada. Appeal dismissed. Under FOIPP, solicitor-client privilege was no longer merely privilege of law of evidence, but substantive right that was fundamental to proper functioning of legal system. Disclosure of documents pursuant to statutorily established access to information regime, separate from judicial proceeding, engaged solicitor-client privilege in its substantive, rather than evidentiary context. Reading s. 56(3) of FOIPP in context of statute as whole supported conclusion that legislature did not intend to set aside solicitor-client privilege.
Alberta (Information and Privacy Commissioner) v. University of Calgary (2016), 2016 CarswellAlta 2247, 2016 CarswellAlta 2248, 2016 SCC 53, 2016 CSC 53, Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); affirmed (2015), 2015 CarswellAlta 574, 2015 ABCA 118, Patricia Rowbotham J.A., Myra Bielby J.A., and Russell Brown J.A. (Alta. C.A.).

Civil Practice and Procedure

Judgments and Orders

Final or interlocutory

Trial judge declared mistrial

Conduct of two jurors gave trial judge concern about appearance of trial’s fairness, but did not find there was reasonable apprehension of bias. Trial judge declared mistrial and discharged jury and ordered that he would remain seized of matter and it would be placed on list of jury trials commencing in September 2016. Defendant appealed. Plaintiffs brought motion to quash appeal. Motion granted. Order under appeal was interlocutory. Court expressly retained jurisdiction.
Williams v. Grand River Hospital (2016), 2016 Carswell­Ont 16447, 2016 ONCA 793, G.R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.).

Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Plaintiff had no cause of action against Public Guardian and Trustee

Plaintiff’s action was dismissed under R. 2.1 of Rules of Civil Procedure. Motion judge determined that Divisional Court was not suable entity and that claim against province for allegedly wrong decision of that court was frivolous and vexatious. He also held that there was no merit in plaintiff’s action against Public Guardian and Trustee for its conduct in settling prior actions on plaintiff’s behalf as settlements were approved by Divisional Court. In addition, he found that plaintiff had no cause of action against Public Guardian and Trustee for solicitor’s negligence because it did not act in capacity of plaintiff’s solicitor. Similarly, he concluded that Public Guardian and Trustee’s counsel owed its duties to Public Guardian and Trustee and not to plaintiff. Plaintiff appealed. Appeal dismissed. No error was seen in motion judge’s conclusion that plaintiff’s claim was devoid of merit or in his reliance on history of prior proceedings to address R. 2.1 issue. Prior proceedings formed subject matter of plaintiff’s action and were incorporated by reference into his statement of claim.
Kavuru v. Ontario (Public Guardian and Trustee) (2016), 2016 CarswellOnt 16562, 2016 ONCA 758, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 18765, 2015 ONSC 7697, F.L. Myers J. (Ont. S.C.J.).



Federal regulatory boards

There was no basis to interfere with agency’s determination

Canada Transportation Act provided for maximum revenue entitlements (MREs) for movement of western grain by prescribed railway companies. Sections 150 and 151 of Act provided for assessment of MREs by Canadian Transportation Agency for each crop year. Agency’s approach to calculating MREs had been disadvantageous to railway since 2001. Agency’s MRE determination for railway for 2013-2014 crop year resulted in railway being required to pay $4,981,915 that it received in excess of its MRE, plus $249,096 penalty, to Western Grains Research Foundation. Agency changed its approach to calculating MREs starting in 2014-2015 crop year. Railway appealed from MRE determination for 2013-2014 crop year. Appeal dismissed. Railway failed to establish agency’s interpretation and application of Act were unreasonable. Despite fact that agency’s interpretation and application of Act had withstood court’s scrutiny in past, counsel for railway devoted significant time to this issue. There was no convincing basis given to interfere with agency’s determination. Agency’s interpretation and application of its own statute was possible and acceptable outcome in light of facts and law. Railway failed to establish any violation of procedural fairness in agency’s consultation process and in agency not considering in its MRE determination railway’s late submission made in that consultation process.
Canadian National Railway v. Canadian Transportation Agency (2016), 2016 CarswellNat 5676, 2016 FCA 266, Johanne Trudel J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.).

Environmental Law

Statutory protection of environment

Environmental assessment

Environmental Protection Act conferred significant discretion on Minister

Genetically engineered organisms. Biotechnology company A Inc. owned rights to genetically engineered Atlantic salmon which grew to market size significantly more rapidly than wild or farmed salmon. A Inc. proposed to produce sterile, all-female salmon eggs for export to facility in Panama. Ministers of Environment and Health determined A Inc.’s salmon was not toxic or capable of becoming toxic and granted A Inc. waiver from obligation to provide certain information under Environmental Protection Act. Minister of Environment issued notice in Canada Gazette indicating scope of activities permitted and advising that any other activities would require separate consideration. Federal Court dismissed public interest group’s application for judicial review. Federal Court determined that Ministers’ decisions were made in manner prescribed by Act and were reasonable, that Ministers reasonably decided A Inc.’s salmon was not toxic or capable of becoming toxic, and that Ministers considered information with respect to potential uses and locations of introduction of A Inc.’s salmon. Federal Court held that publication of notice of waiver occurred within reasonable time, that Act did not provide for public participation in toxicity assessments, that Minister of Environment’s publication of notice of permitted activities was reasonable, that Notice was not overbroad, and that anyone seeking to engage in same activities in another location would still have to file notice and undergo new assessment. Public interest group appealed. Appeal dismissed. Federal Court committed no error warranting court’s intervention. Act conferred significant discretion on Minister and decision was entitled to deference. Group failed to show it was unreasonable for Minister to conclude that potential for exposure to environment could be prevented. Scope of SNAc Notice could not be said to be overly broad or unreasonable. There was no absurdity or unreasonableness in Minister issuing SNAc Notice permitting wider range of uses of AAS than that permitted by s. 106(10). Finally, Federal Court did not breach duty of procedural fairness by arriving at own interpretation of legislation. Procedural fairness required that parties be able to make submissions about issues of statutory interpretation, but court’s ability to decide issues correctly was not constrained by parties’ submissions.
Ecology Action Centre v. Canada (Minister of the Environment and Climate Change) (2016), 2016 CarswellNat 5289, 2016 FCA 258, Nadon J.A., Eleanor R. Dawson J.A., and Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10968, 2015 CarswellNat 7756, 2015 FC 1412, 2015 CF 1412, Russel W. Zinn J. (F.C.).

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