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Criminal Law

Charter of Rights and Freedoms

Right to be tried within reasonable time [s. 11(b)]

Crown appeal from stay of proceedings based on pre-charge delay dismissed.

Crown’s appeal from decision granting accused stay of proceedings based on pre-charge delay was dismissed. Crown appealed. Appeal allowed. Majority agreed substantially with dissenting reasons of appellate level.
R. v. Hunt (2017), 2017 CarswellNfld 171, 2017 CarswellNfld 172, 2017 SCC 25, 2017 CSC 25, Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellNfld 425, 2016 NLCA 61, B.G. Welsh J.A., M.H. Rowe J.A., and L.R. Hoegg J.A. (N.L. C.A.).

Criminal Law

Extraordinary remedies

Habeas corpus with certiorari in aid

Application in nature of habeas corpus with certiorari in aid was dismissed


Accused was convicted on charge of importing cocaine as person charged with offence under s. 6(1) of Controlled Drugs and Substances Act. Accused brought application in nature of habeas corpus with certiorari in aid before judge of Superior Court of Justice which was dismissed. Accused appealed. Appeal dismissed. Limited exception to general unavailability of habeas corpus as remedy against denial of judicial interim release was beyond accused’s grasp. Further, accused has not attempted to comply with notice requirements applicable to challenges under s. 52 of Constitution Act. To permit her to invoke habeas corpus to achieve same result would be to allow her to mount indirect attack on integrity of the legislation, a course that was not open to her. 

R. v. Passera (2017), 2017 CarswellOnt 5311, 2017 ONCA 308, David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.).

Civil Practice and Procedure

Trials

Jury trial

New trial was not justified


Appellant S was driving on two-lane road, when respondent N’s car in opposite lane was struck and pushed into S’s lane. S struck N’s vehicle. N brought action against S for negligence. At trial, N had settled claim against other driver and damages were agreed upon with S. Jury found S to be liable for accident. S claimed that jury’s verdict was unreasonable, as they held S to standard of perfection. S claimed that specifically inappropriate instruction was given, as to S’s speed while driving. S finally claimed that N’s counsel made inappropriate remarks, given that damages were not in issue. S appealed from finding of liability. Appeal dismissed. N’s trial counsel’s comments as to effects of accident on N and family were clearly improper. Trial judge charged jury, and explained that sympathy for N and family were not to play role in verdict. New trial was not justified based on any or all of grounds of appeal. 

Norman (Litigation guardian of) v. van Meppelen Scheppink (2017), 2017 CarswellOnt 3209, 2017 ONCA 192, R.G. Juriansz J.A., David Brown J.A., and B.W. Miller J.A. (Ont. C.A.).

Bankruptcy and Insolvency

Avoidance of transactions prior to bankruptcy

Recovery of proceeds or property

Bankrupt was engaged in effort to defraud


Bankrupt re-sold telephone equipment. In May 2012, bankrupt began paying consultant, C, and C’s company $10,000 per month. In November 2013, bankrupt began receiving loans from new lender it reported as revenue. In March 2015, bankrupt’s old lender brought application for bankrupt’s receivership. In April 2015, receiver and manager were appointed. In July 2015, bankrupt was assigned into bankruptcy. At October 2015 examination under s. 163 of BIA, C testified he had no contact with and could not name any of bankrupt’s customers or suppliers. Trustee in bankruptcy brought motion for order requiring C and C’s company to repay $159,330 transferred during year prior to March 2014 (relevant period) to estate of bankrupt under s. 96 of Bankruptcy and Insolvency Act (BIA). Motion granted; C and C’s company ordered to pay estate $159,330. Payments to numbered company during relevant period fell within s. 96(1)(b)(i) of BIA. Although applications were generally to be brought as motions, judge had discretion to order trial or use summary process if it would yield fair result. No trial was necessary as issue was narrow, parties’ complete evidence was before court, protagonists had been cross-examined, and there was relatively small amount of money in issue. Section 96 did not require trustee to prove bankrupt was engaged in scheme to defeat its creditors generally or as group. C’s affidavit evidence from his knowledge of bankrupt’s customers to how he brought bankrupt millions of dollars in sales was contradictory. Value of consideration C and C’s company gave to bankrupt were presumptively what trustee opined, which was zero. There was no legal or persuasive burden on C or C’s company but, in absence of credible evidence to contrary, trustee proved on balance of probabilities that C and C’s company provided no services of any value to bankrupt during relevant period and that all payments bankrupt made to C or C’s company from that date were “payments at undervalue.” It was clear and undisputed that during relevant period, bankrupt was engaged in effort to defraud and delay bank from learning it was insolvent and borrowing from different lender. Three badges of fraud were found and gave rise to presumption that bankrupt intended to defraud, defeat, or delay old lender. There was no evidence of bona fide value flowing from C or C’s company to bankrupt even before relevant period. While solvent company was entitled to make payments for non-commercial or uneconomic motivations, insolvent company making such payments for no consideration while actively defrauding its principal lender could not be said to be acting in ordinary course of business.
National Telecommunications Inc., Re (2017), 2017 CarswellOnt 3184, 2017 ONSC 1475, F.L. Myers J. (Ont. S.C.J. [Commercial List]).

Tax

Income tax

Administration and enforcement

Combination of errors led Tax Court judge to strike affidavit absent justification


C Co made settlement offer which included schedule of C Co’s losses. Counsel communicated over period of approximately eight months in course of which various matters were finalized. They concluded minutes of settlement which incorporated schedule. In January 2015, counsel advised Tax Court of Canada that they had reached settlement and were awaiting issuance of notices of reassessment to implement settlement agreement. Shortly thereafter, counsel for Minister of National Revenue advised that Minister was having difficulty implementing minutes of settlement and in February 2015, Minister’s counsel advised that Minister determined that there were no non-capital losses available to C Co and that Minister could not issue reassessment that was contrary to provisions of Income Tax Act. Following case management proceedings in Tax Court of Canada, counsel for C Co filed notice of motion and supporting affidavit seeking to have settlement enforced. Deponent was lawyer in C Co’s counsel’s firm and affidavit set out events leading up to filing of motion by reference to series of documents which were made exhibits to the affidavit, together with references to small number of contacts between counsel. Counsel for Minister cross-examined lawyer on her affidavit and lawyer and counsel for C Co took position that lawyer was not at liberty to disclose any information on basis of privilege. Lawyer would not confirm or deny existence of losses claimed in schedule or whether or not she was counsel for C Co. Minister moved successfully to have affidavit struck. C Co appealed. Appeal allowed. Tax Court judge erred in principle in concluding prematurely that contents of affidavit were tendered in proof of their contents. This error led to further errors as to scope of cross-examination of lawyer on her affidavit and appropriateness of her affirming her affidavit. Combination of errors led Tax Court judge to strike affidavit absent justification, which was palpable and overriding error.

CBS Canada Holdings Co. v. R. (2017), 2017 CarswellNat 1315, 2017 FCA 65, J.D. Denis Pelletier J.A., Donald J. Rennie J.A., and J. Woods J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1104, 2016 TCC 85, K. Lyons J. (T.C.C. [General Procedure]).

Tax

Income tax

Administration and enforcement

Judge held that Rule 58 hearing should not be used as substitute for full hearing


Determination of question. Minister of National Revenue issued reassessments against taxpayer for taxation years 2000 through 2007 outside normal reassessment periods in relation to taxpayer’s reporting of income and loss from foreign currency trading activities. Taxpayer’s appeal involved issue relating to possibility of reassessments being statute-barred. Taxpayer brought motion, pursuant to R. 58 of Tax Court of Canada Rules (General Procedure), for determination of question of whether taxpayer’s reporting was attributable to neglect, carelessness, or wilful default within meaning of s. 152(4)(a)(i) of Income Tax Act. Tax Court judge dismissed motion and concluded that issue of whether reassessments were statute-barred (statute-barred issue) should be decided in course of trial and not on preliminary basis. Judge found that it would be difficult to address question of misrepresentation in returns, and whether it was attributable to neglect, carelessness or wilful default, without full hearing that addressed all issues raised in pleadings. Judge held that Rule 58 hearing should not be used as substitute for full hearing simply because evidentiary issues could be addressed in order. Taxpayer appealed. Appeal dismissed. Judge made no reversible error in dismissing motion. There was no palpable and overriding error in concluding that taxpayer’s suggested approach to evidence would not provide fair and just adjudication of statute-barred issue. It was open to judge to conclude that proceeding under R. 58 of Rules would not be appropriate. 

Paletta v. R. (2017), 2017 CarswellNat 567, 2017 FCA 33, Pelletier J.A., Rennie J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3148, 2016 TCC 171, John R. Owen J. (T.C.C. [General Procedure])

Criminal Law

Post-trial procedure

Release pending appeal

Bail pending appeal for person convicted of murder was not restricted by Parliament


Accused was convicted of second degree murder of his father. Appeal judge dismissed accused’s application for release pending his appeal under public interest criterion in s. 679(3)(c) of Criminal Code. Court of Appeal review panel dismissed accused’s application for review under s. 680(1) of Code and found no material error or unreasonableness in appeal judge’s decision. Accused appealed. Appeal allowed. Appeal was heard on merits despite mootness. Guidance was given on public interest criterion and on standard of review by review panel. Detaining accused on public interest criterion was unwarranted in circumstances. Appeal judge made material legal error that affected outcome, and review panel erred in failing to intervene. Aside from seriousness of offence, accused presented as ideal candidate for bail. Parliament did not restrict availability of bail pending appeal for persons convicted of murder. Appeal judge found that there were no public safety or flight risk concerns and that grounds of appeal were arguable. Appeal judge overlooked important finding made by trial judge, that accused’s crime gravitated toward offence of manslaughter, which reduced his degree of moral blameworthiness, attenuating seriousness of crime and enforceability interest. Cumulative effect of considerations favoured release. Appeal judge erred by not applying correct test of “not frivolous” in assessing strength of accused’s appeal by wanting something more than clearly arguable grounds of appeal. 

R. v. Oland (2017), 2017 CarswellNB 115, 2017 CarswellNB 116, 2017 SCC 17, 2017 CSC 17, 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 (2016), 2016 CarswellNB 126, 2016 CarswellNB 127, 2016 NBCA 15, J. Ernest Drapeau C.J.N.B., M.E.L. Larlee J.A., and Kathleen A. Quigg J.A. (N.B. C.A.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Police entry into accused’s residence was not justified by exigent circumstances


Officers saw handguns and drugs in plain view after being invited into apartment, and obtained search warrant. Trial judge concluded that police had grounds to obtain search warrant and since it was impracticable to obtain search warrant exigent circumstances under s. 11(7) of Controlled Drugs and Substances Act existed. Accused was convicted of possession of drugs, possession for purpose of trafficking, and unlawful possession of firearms. Accused’s appeal on ground that trial judge erred in admitting evidence was dismissed. Accused appealed to Supreme Court of Canada. Appeal allowed. Police entry into the accused’s residence not justified by exigent circumstances making it impracticable to obtain warrant. Nature of Charter-infringing state conduct was sufficiently serious to favour exclusion of evidence obtained as a result. Importance of ensuring that such conduct is not condoned by court favoured exclusion. If situation was not serious enough to arrest and apply for warrant, then not serious enough to intrude into private residence without warrant. 

R. v. Paterson (2017), 2017 CarswellBC 687, 2017 CarswellBC 688, 2017 SCC 15, 2017 CSC 15, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellBC 1256, 2015 BCCA 205, Lowry J.A., Frankel J.A., and Bennett J.A. (B.C. C.A.).

Criminal Law

Pre-trial procedure

Disclosure of evidence

Temporary publication ban over certain material was appropriate

Justice issued production order directing media company and reporter to produce certain documents and data pertaining to communications with or concerning accused, individual charged but not arrested yet for six terrorism offences and who was believed to have left Canada to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media company about accused’s involvement with ISIS. Articles were based in large part on communications between reporter and accused through text messaging service. Applicants’ application for order setting aside sealing order was dismissed. Trial judge found sealing order to remain in force for two weeks to permit parties to exercise right of appeal after which access would be permitted to copy of Information to Obtain (ITO) that had been redacted to prevent disclosure of information that was subject to national security claims, information that could disclose identity of specific person and information contained in paragraphs relating to investigative procedures. Trial judge found accused knew before he left Canada that he was under investigation by Canadian security authorities such that there was little risk accused would alter his behaviour on social media. Trial judge found police ought not to be required, as part of price of obtaining production order, to publicly disclose investigative steps that they proposed to take in future. Trial judge found information regarding two individuals was not redacted as those individuals were already well known to media and because far from suggesting that these two persons had any kind of connection to, involvement with or sympathy for terrorists or terrorism, contents of relevant paragraphs clearly demonstrated opposite. Trial judge found information regarding another individual was redacted as they were in different position and had told officer that if they had known that their identity would be made public at this stage of process, they would not have talked to police. Trial judge found that person’s implicit concern for safety was reasonable concern. Trial judge found publication of portions of the ITO concerning accused’s alleged involvement with ISIS and setting forth statements he was alleged to have made would put his right to fair trial in jeopardy, not only because of potential impact of that information on impartiality of jury but also because of its capacity to stigmatize him. Trial judge found based on binding jurisprudence it was not open to accept that as matter of principle allowing access but prohibiting publication was not reasonable alternative. Applicants appealed. Appeal allowed in part. Reasonableness was proper test when considering constitutionality of order. More interventionist standard of review should not be applied when media is target of order. Trial judge made no misapprehension of evidence, considered relevant factors, and made no extractable legal error. Balancing of competing interests favoured making production order. Trial judge took into account possible chilling effect and noted that source did not request confidentiality. Crown not required to show that material sought essential to prosecution. When production orders or search warrants are issued, often there is no prosecution underway and investigation is in formative stage, so that what is necessary to prove case is not known. Reasons for redacting identity of specific individual were reasonable. Certain matters of police procedure should not have been redacted as they steps were obvious. Temporary publication ban over certain materials was appropriate, and parties invited to make further submissions regarding which material should be subject to ban. Temporary order had less deleterious effect on open court principle.
R. v. Vice Media Canada Inc. (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 4901, 2016 ONSC 1961, MacDonnell J. (Ont. S.C.J.).

Criminal Law

Post-trial procedure
Appeal from conviction or acquittal

Accused’s appeal from conviction for forgery and fraud was dismissed

Accused was bookkeeper/accountant for large company. In eight-week period 97 cheques, totalling over one million dollars, were issued with forged signature of company’s vice president. Accused was convicted of forgery and fraud. Accused appealed conviction on basis, inter alia, that verdict was unreasonable. Appeal dismissed. Basis of grounds of appeal was complainant’s evidence that he agreed he signed some cheques to fraudulent payees during period when forged cheques were all signed. Accused submitted that trial judge was not entitled to discount that evidence and explain why he did not accept it, but had to treat it as raising reasonable doubt and require Crown to rebut defence of complicity. Trial judge thoroughly reviewed evidence and analyzed in particular accused’s credibility in light of that testimony. He concluded that in light of rest of complainant’s evidence and whole of evidence, evidence could be explained by passage of time, witness’ anger at being defrauded, and language difficulties. There was no error in trial judge’s approach. He was entitled to accept all or some of witness’ evidence. He gave clear reasons for his conclusions. His findings were accorded deference. There was no basis on which to set aside verdict.
R. v. Atwal (2017), 2017 CarswellOnt 3919, 2017 ONCA 228, K. Feldman J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 10648, 2015 ONSC 4425, Hill J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 9515, 2016 ONSC 3668, Hill J. (Ont. S.C.J.).
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