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Criminal Law

Offences

Dangerous driving causing death

Judge did not misunderstand or misapply legal standard for dangerous driving

Accused’s vehicle crashed into front entrance of department store when she was reversing out of parking spot. Two people were injured, and two children lost their lives. Trial was held of accused charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. Trial judge convicted accused of lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm. Judge held that accused’s manner of driving was marked and substantial departure from what was expected of reasonable driver. Judge found that accused intended to slam on brakes, but applied pressure to gas pedal to point it was compressed right to floor, and did not take any corrective measures. Accused appealed. Appeal dismissed. Judge did not misunderstand or misapply legal standard for dangerous driving and found that accused’s failure to take corrective action was marked departure from standard of care. Judge did not misapprehend evidence regarding accused’s driving behaviour and corrective action. Judge’s finding that accused’s foot could not have become caught in pedal as described by accused was reached by applying common sense and considering all evidence. Verdict was not unreasonable.
R. v. Burger (2017), 2017 CarswellOnt 1350, 2017 ONCA 101, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9492, 2015 ONCJ 349, Jonathon C. George J. (Ont. C.J.

Criminal Law

Family law

Support


Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).

Conflict of Laws

Family law

Support

Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).

Evidence

Examination of witnesses

Rebuttal

Recalling expert witness to testify amounted to case-splitting

Plaintiffs’ expert witness L supplied report and testimony on effect of use of lake as reservoir for hydroelectric generation and water control purposes on First Nation. Crown provided report from expert witness R. After R was qualified as expert, Crown sought to have additional documents entered as exhibits. Plaintiffs objected on grounds documents did not form part of R’s report. R was permitted to testify on additional documents. At conclusion of R’s testimony, plaintiffs renewed objection to additional documents and indicated wish to recall L to testify. Plaintiffs were directed to have L prepare supplementary report outlining evidence to be tendered. Plaintiffs brought motion for order permitting recall of L as witness. Motion dismissed. Recalling L to testify amounted to case-splitting. L’s proposed testimony addressed matters not currently in evidence or addressed matters L had every opportunity to address in initial reports or oral evidence. Alleged inaccuracies in data presented by R or in additional documents could be addressed by counsel. Certain proposed corrections were irrelevant and unnecessary. R’s report was delivered years ago and L previously responded to it.
Lac Seul Band of Indians v. Canada (2017), 2017 CarswellNat 213, 2017 FC 75, Russel W. Zinn J. (F.C.).

Tax

Income tax

Administration and enforcement

It was not unjust to order taxpayer to pay security for costs

Security for costs. Taxpayer was resident outside of Canada and appealed assessment. Minister of National Revenue brought motion for order requiring taxpayer to pay security for costs. Tax Court judge granted motion and ordered taxpayer to pay $9,000 as security for costs without providing separate reasons. Taxpayer appealed. Appeal allowed. Order was set aside, Minister’s motion was granted, and taxpayer was ordered to pay $13,850 as security for costs. Reasons fell short of standard. Examining order in light of record, basis for order could not be discerned. Matter was considered de novo. Since taxpayer did not reside in Canada, it would be difficult for Minister to enforce any costs award it might receive. Evidence offered by taxpayer concerning his financial condition was too narrow and general to be given much weight, so Minister was entitled to order requiring taxpayer to provide security for costs. Minister’s estimates for discoveries and hearings were reasonable. It was not unjust to order taxpayer to pay $13,850 as security for costs in three installments, even though taxpayer ended up in worse position after his appeal.
Mathias v. R. (2017), 2017 CarswellNat 377, 2017 FCA 19, David Stratas J.A., Webb J.A., and Scott J.A. (F.C.A.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission had discretion to refuse to investigate complaint

Applicant was immigration officer for Citizenship and Immigration Canada. Applicant alleged he was discriminated against as part of selection and hiring process for job position. Applicant sent letter to Human Rights Commission, informing it that he wanted to file complaint of discrimination against his employer. Commission decided not to rule on complaint because complaint was inadmissible under s. 41(1)(e) of Canadian Human Rights Act as complaint was filed after one-year expiration period. Applicant’s application for judicial review was dismissed. Judge concluded Commission had discretion to refuse to investigate complaint and that decision was not unreasonable. Judge found there was no breach of procedural fairness in limiting applicant to 10 pages in order to make his written submissions. Judge found that procedure established by Commission did not constitute violation of applicant’s freedom of expression. Applicant appealed. Appeal dismissed. Judge did not make any reviewable error by adopting and applying standard of reasonableness to Commission’s decision and dismissing complaint under Act, and standard of correctness on issue of procedural fairness. Even if Commission would have taken May 25, 2012 as date of last discriminatory event, filing of complain on July 9, 2013 would have nevertheless been outside permitted period. Commission did not commit any breach of procedural fairness in applying its procedure of limiting written submissions to 10 pages. Commission did not err in concluding applicant did not submit sufficient evidence to establish that his mental state prevented him from filing his complaint within prescribed time limit.
Jean Pierre c. Canada (Citoyenneté et Immigration) (2017), 2017 CarswellNat 252, 2017 CAF 26, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10840, 2015 CarswellNat 7384, 2015 FC 1423, 2015 CF 1423, Denis Gascon J. (F.C.).

Criminal Law

Trial procedure

Charging jury or self–instruction

Re-examination of law was not warranted

Accused, who fathered child of complainant’s daughter and had acrimonious custody battle, was charged with arson and mischief with respect to complainant’s garage being set on fire and trees in his orchard destroyed. Trial judge considered evidence that, when contacted by police, accused disclaimed any interest in arson investigation and claimed to have spent weekend in another province when cell phone evidence indicated he was in town, as establishing accused had lied to police. Accused was convicted of arson and mischief. Accused unsuccessfully appealed with majority finding that it was open to trial judge to draw inference that accused knew what had happened on complainant’s property when he spoke to police, that his alibi was deliberate lie and deliberate lie could be relied upon as some evidence of guilt. Accused appealed. Appeal dismissed. Appeal was dismissed substantially for majority reasons in appeal decision. Re-examination of law was not warranted, particularly where neither party had asked to depart from jurisprudence.
R. v. Clifford (2017), 2017 CarswellBC 436, 2017 CarswellBC 437, 2017 SCC 9, 2017 CSC 9, Abella J., Moldaver J., Karakatsanis J., Wagner J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellBC 2150, 2016 BCCA 336, Newbury J.A., Willcock J.A., and Fenlon J.A. (B.C. C.A.).

Criminal Law

Extraordinary remedies

Habeas corpus

Habeas corpus hearing adjourned pending outcome of bail review

Accused was detained awaiting trial on number of counts under Immigration and Refugee Protection Act in respect of advising on immigration matters as non-lawyer without authorization to do so. She was originally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015 she was arrested and charged with breaching bail and committing further offences under Act. Following revocation hearing, her bail was cancelled in November 2015 and she was detained on all charges on December 8, 2015 following show-cause hearing. Preliminary hearing was commenced for each of May 2014 charges and September 2015 charges. Before receiving decision on preliminary hearings, Crown preferred direct indictment on December 11, 2016, with respect to all charges under Act. Direct indictment was filed under s. 577 of Criminal Code. Original charges, including breach of bail charges, were stayed on January 5, 2017. While detained, accused initiated multiple proceedings including two-part habeas corpus application. Proceedings commenced by accused were dismissed and she remained in custody pending trial under new indictment. Accused appealed denial of habeas corpus relief. Decision of application judge was set aside for failure to give adequate reasons and new bail review hearing was to be held forthwith. New habeas corpus hearing adjourned pending outcome of bail review. Under s. 523(1.2) of Code, previous detention order continued to apply in respect of new indictment. Purpose and effect of s. 523(1.2) of Code are to continue previous detention order and make it apply to new indictment. Any stay of original charges has no effect on ongoing status of original detention order. Accused had now spent 18 months in custody. Over 16 months had passed since her re-arrest on charges that she breached her bail. While new charges she allegedly committed while on bail were proceeding, charges that she failed to comply with bail had been stayed. Maximum sentence for five of counts with which accused was charged was two years and five years for sixth count. Accused had been in custody for further six months since dismissal of habeas corpus application and had two further bail reviews. Serious liberty issue now existed and this issue was best addressed in context of bail review. Although accused had argued issue before it did not appear to have been fully considered. More time had passed and breach of bail charges had now been stayed, and these were new factors that may well affect considerations of judge when determining issues on bail review.
R. v. Codina (2017), 2017 CarswellOnt 1109, 2017 ONCA 93, K. Feldman J.A., Paul Rouleau J.A., and K. van Rensburg J.A. (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Trial judge erred in holding that accused’s Charter rights were breached

Accused’s son was under investigation for murder. Police obtained wiretap authorization naming four “principal known persons” including accused and his son. Accused was believed to have knowledge of his son’s involvement in murder and to have blocked police access to his son during initial investigation. As result of intercepted communications, police formed belief accused was involved in drug trafficking. On arresting him, police discovered large quantity of cash and heroin in car in which accused was travelling. At trial on drug charges, accused challenged validity of wiretap authorization. Trial judge granted application, ordered exclusion of seized heroin and cash, and accused was acquitted. Crown appealed. Appeal allowed. Acquittal was set aside and new trial was ordered. Test which reviewing judge was to apply was whether, in light of record amplified on review, ITO contained sufficient reliable evidence that might reasonably be believed on basis of which authorizing justice could have concluded that conditions precedent required to be established were met. Threshold for naming person in affidavit and authorization as “known person”, within meaning of s. 185(1)(e) of Criminal Code, was not onerous. Trial judge’s ultimate conclusion that “all we have is the simple fact of a father and son relationship and nothing else” resulted from his assessment of evidence in piecemeal fashion. When evidence was assessed cumulatively, taking into account larger context, it went much further: (i) accused’s son was prime suspect in murder; (ii) son lived with accused; (iii) son worked at his father’s pizza business and continued to do so after murder; (iv) information obtained by police led them to believe two of son’s friends were present with him at time of murder; (v) day after murder, at least one of those friends visited pizza shop when son was not there, but accused was; (vi) accused was less than candid in what he told officers who visited his pizza store; and (vii) accused’s driving on two occasions strongly suggested he was aware he was under police surveillance. Trial judge erred in holding that accused Charter rights were breached because ITO did not contain sufficient evidence to meet “may assist” standard.
R. v. Hafizi (2016), 2016 CarswellOnt 19469, 2016 ONCA 933, E.E. Gillese J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); reversed (2014), 2014 CarswellOnt 8547, 2014 ONSC 3547, Robert N. Beaudoin J. (Ont. S.C.J.)

Bankruptcy and Insolvency

Companies’ Creditors Arrangement Act

Arrangements

Canadian debtors’ plan of compromise and arrangement was sanctioned

Global telecommunications company with corporate entities in many jurisdictions (debtors) became insolvent. Canadian debtors were granted Companies’ Creditors Arrangement Act protection. Dispute arose regarding $7.3 billion held in escrow after sale of debtors’ assets (allocation dispute), which involved protracted litigation in Canada and U.S. with various parties from multiple jurisdictions. Parties executed settlement and support agreement (Agreement). Monitor brought motion to sanction Canadian debtors’ plan of compromise and arrangement (Plan) and to release escrowed sale proceeds in accordance with Agreement. Motion granted. Plan sanctioned. Release of sale proceeds authorized in manner set out in Agreement. Plan was fair and reasonable. Plan received approval from 99.7 percent of creditors and called for payment to creditors on pari passu basis, which was bedrock of Canadian insolvency law. Objections to approval of Plan by long-term disability (LTD) beneficiaries were dismissed. LTD claimants were bound to prior agreement that their claims were to rank as unsecured claims that shared pari passu with other unsecured claims against Canadian debtors and that any claim for priority treatment had been released. Plan was not contrary to ss. 7 and 15 of Charter of Rights and Freedoms with respect to LTD claimants.
Nortel Networks Corp., Re (2017), 2017 CarswellOnt 1120, 2017 ONSC 700, Newbould J. (Ont. S.C.J. [Commercial List]).
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