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Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.

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Criminal Law

Offences

Murder

Non-direction by trial judge amounted to misdirection

CW and SH were in dispute over relationship and wanted to fight. Accused was CW’s brother. Accused was asked by CW to go to parking lot and watch out for him during fight. When accused arrived in parking lot, he saw CW and SH fighting. Instead of getting out of his vehicle to help his brother, accused drove truck towards both men. Accused accelerated, then applied braked. Truck fishtailed and struck SH and crushed him against wall. Accused then left area without offering any assistance to SH. Accused was convicted of second degree murder. Accused appealed. Appeal dismissed, and conviction of manslaughter substituted in place of conviction of second degree murder. Charge to jury did not adequately equip jury to determine nature and extent of accused’s liability for death of SH. Failure of trial judge to make clear role of accident constituted non-direction amounting to misdirection in circumstances of case.
R. v. Ward (2016), 2016 CarswellOnt 20379, 2016 ONCA 984, R.G. Juriansz J.A., David Watt J.A., and L.B. Roberts J.A. (Ont. C.A.).

Commercial Law

Trade and commerce

Consumer protection

Waiver of liability was read down in accordance with doctrine of notional severance

Plaintiff voluntarily purchased season pass at ski resort and agreed to waiver for recreational use of defendant’s property. Plaintiff brought action for negligence related to injury while skiing at defendant’s ski resort. According to Consumer Protection Act, if consumer signs waiver of liability with supplier that waiver was unenforceable as it related to substantive and procedural rights that were protected by Act. Section 7(1) vitiates waiver of Act rights and returns them to consumer. Plaintiff wanted s. 7 of Act to interpret it in manner so as to vitiate defendant’s entire comprehensive waiver/release of liability which he signed. Plaintiff’s proposed interpretation of s. 7(1) of Act would have effect of eliminating protections afforded to occupiers by virtue of ss. 3(3) and 5(3) of Occupiers Liability Act which allows for waiver of liability for negligence claims. Plaintiff brought motion for judicial determination of question of law concerning application and breadth of s. 7(1) of Consumers Protection Act. Motion granted. Particular right at issue was deemed warranty that consumer shall receive services of reasonably acceptable quality as articulated in s. 9(1) of Consumer Protection Act. By operation of s. 7(1) of Act defendant could not disclaim liability for any breach of deemed warranty contemplated by s. 9(1) of Consumer Protection Act. Defendant’s waiver was read down in accordance with doctrine of notional severance to exclude from its ambit claims that involve protection of substantive and procedural rights contemplated by Act and remainder of waiver remained enforceable. To strike whole waiver, when waiver contemplated more than just consumer protection claims, would be contrary to legislative intent of Consumer Protection Act.
Schnarr v. Blue Mountain Resorts Ltd. (2017), 2017 CarswellOnt 373, 2017 ONSC 114, E.R. Tzimas J. (Ont. S.C.J.).

Civil Practice and Procedure

Costs

Scale and quantum of costs

Corporation’s application for determination of rights was dismissed

Corporation R Inc. and taxpayer K entered into minutes of settlement of taxpayers’ employment action. Corporation concluded that its obligation under Income Tax Act was to withhold and remit to Canada Revenue Agency on account of full $1.5 million settlement amount. Corporation brought application for determination of rights, and taxpayer brought motion for summary judgment for minutes to be enforced. Application judge dismissed corporation’s application and partially granted taxpayer’s motion, and awarded taxpayer costs of $28,565. Court of Appeal allowed corporation’s appeal from judgment granting taxpayer’s motion for summary judgment but dismissed corporation’s appeal of dismissal of its application as moot. Corporation was awarded costs of appeal in amount of $15,000 inclusive of disbursements and taxes. Parties made submissions on costs of original application and motion. Corporation was awarded costs of $28,565 for court below. Corporation’s offer to settle was of no relevance since it was made to settle corporation’s own application, which was dismissed. Result on appeal, and as consequence, in court below, was mixed because appeal was allowed on basis of motion. Amount of $57,031 sought by corporation as partial indemnity costs was excessive. In court below, taxpayer, who had initially been successful on application and motion, received costs of $28,565. Reasonable amount of costs in court below was same amount as originally awarded to taxpayer.
RJM56 Investments Inc. v. Kurnik (2017), 2017 CarswellOnt 197, 2017 ONCA 19, E.A. Cronk J.A., Paul Rouleau J.A., and Grant Huscroft J.A. (Ont. C.A.); additional reasons (2016), 2016 CarswellOnt 17210, 2016 ONCA 821, Cronk J.A., Rouleau J.A., and Huscroft J.A. (Ont. C.A.).

Intellectual Property

Patents

Miscellaneous

Six-year limitation period could not be applied to all acts of infringements

Limitation period. Respondent AC Inc. claimed interest in 693 Patent. 693 Patent was issued on December 3, 1991, thus was subject to application of old Patent Act, which did not have specific section dealing with limitation period applicable to infringement actions. Since 1993, in current version of Patent Act, s. 55.01 provides that six-year time limitation applies to acts of infringement. AC Inc. brought infringement action against appellant A Inc. Federal Court found that five claims, including Claim 1, were valid and had been infringed by A Inc. Federal Court concluded that since 2004, and up to expiration of 693 Patent in 2008, A Inc. directly infringed 693 Patent by making and selling its product in Canada and induced infringement by its customers and by end-users throughout Canada. Federal Court held that six-year limitation applied to all acts of infringements by A Inc. A Inc. challenged time limitation applicable to certain products that were made, sold and delivered in Ontario and to which, in its view, two-year limitation should apply. It also contested that exportation of infringing products meant that six-year limitation applied. Appeal allowed in part. Judgment varied. If Federal Court’s conclusion was based on its reading that words “a cause of action arising otherwise than in a province” in s. 39(2) of Act as though they said “all causes of action, any of which arose otherwise than in a single province”, Federal Court erred in its interpretation. Indeed, having regard to text of s. 39(1) of Act and to provincial jurisdiction over property and civil rights and that each act of infringement constituted distinct cause of action, such interpretation was unreasonable. Where law is set out in statute, court must articulate law as it is defined in that statute. Here, statute requires inquiry into place where each cause of action arose. For purposes of limitation analysis, critical fact was that, following jurisprudence of this Court, cause of action arises in province if all elements of cause of action occur in that province. Hence provincial limitation period would apply to acts of infringement limited to single province. Federal Court could not simply apply six-year limitation set out in s. 39(2) to all infringing activities of A Inc. To that extent, Federal Court’s judgement had to be modified to reflect possibility that some transactions would be subject to applicable provincial limitation period. Decision as to how that determination should be done was best left to Federal Court.
Apotex Inc. v. AstraZeneca Canada Inc. (2017), 2017 CarswellNat 40, 2017 FCA 9, J.D. Pelletier J.A., Johanne Gauthier J.A., and A.F. Scott J.A. (F.C.A.); varied (2015), 2015 CarswellNat 2415, 2015 CarswellNat 5054, 2015 FC 671, 2015 CF 671, R.L. Barnes J. (F.C.).

Human Rights

What constitutes discrimination

Race, ancestry or place of origin

Law and facts before tribunal did not reasonably lead to finding of discrimination

Complainant had worked for many years on term contracts as customs inspector. He had tried twice to secure permanent position but was turned down both times. Complainant filed unsuccessful complaint with Canadian Human Rights Commission alleging discrimination on basis of race, national or ethnic origin, age, and perceived disability of obesity. Decision was set aside on appeal and remitted for reconsideration, where second tribunal found in complainant’s favour. With respect to Vancouver competition, tribunal found that respondent had been wrongly disqualified. Attorney General for Canada (“AG”) successfully sought judicial review of second tribunal’s decision. Complainant appealed. Appeal dismissed. Judge was correct in finding that issue before tribunal was relatively narrow Tribunal’s findings as to witness credibility were due less deference than credibility findings are usually given, because tribunal based its decision on transcript alone without advantage of hearing witnesses directly, but parties agreed that extensive record would be adequate for purposes of reconsideration. Judge was correct in finding that law and facts before tribunal did not reasonably lead to finding of discrimination. Tribunal’s decision was not supported by record, and tribunal substituted its assessment of complainant’s qualifications for that of selection board’s when it held that complainant had been discriminated against. There was no basis for adverse credibility findings made by tribunal in regards to AG’s witnesses. Tribunal’s decision did not fall within range of defensible outcomes based on facts and law.
Turner v. Canada (Attorney General) (2017), 2017 CarswellNat 17, 2017 FCA 2, M. Nadon J.A., A.F. Scott J.A., and J. Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5271, 2015 CarswellNat 9290, 2015 FC 1209, 2015 CF 1209, James W. O’Reilly J. (F.C.).

Administrative Law

Private law remedies

Damages for unlawful administrative action

Any tort claim against board was barred by s. 43 of Energy Resources Conservation Act (Alta.)

Plaintiff brought action against three defendants; energy corporation, conservation board and province. Claim against corporation was for alleged damage to water well which was source of fresh water for plaintiff’s home. Claim against board was for negligence in administration of regime and failure to respond to plaintiff’s concerns. Claim against province was based on resource development board’s alleged failure to protect plaintiff’s water supply or respond to complaints. Portions of statement of claim were struck. Plaintiff’s appeal was dismissed. Appellate court found case management judge correctly applied test for determining whether board owed private law duty of care. Appellate court found forcing board to consider extent to which it must balance interests of specific individuals while attempting to regulate overall public interest would be unworkable in fact and bad policy in law. Appellate court found case management judge correctly concluded that any tort claim was barred by s. 43 of Energy Resources Conservation Act. Appellate court found interpreting section so that board and its members would only be protected for about half of their conduct would be absurd Appellate court found case management judge correctly concluded that s. 43 of Act barred Canadian Charter of Rights and Freedoms claim. Plaintiff appealed. Appeal dismissed. Plaintiff did not successfully challenge constitutionality of s. 43 of Act. Damages were not appropriate and just remedy for Charter violations by board. Judicial review was appropriate remedy. Board had public duty of balancing several potentially competing rights, interests and objectives. Allowing claims for damages against board had potential to deplete board’s resources of money and time, and could result in defensive actions by board. Allowing Charter damages claims to be brought for board’s actions and decisions had potential to distort appeal and review process. Requiring case-by-case examination of particular claims undermined purpose of immunity.
Ernst v. Alberta Energy Regulator (2017), 2017 CarswellAlta 32, 2017 CarswellAlta 33, 2017 SCC 1, 2017 CSC 1, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanisn J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellAlta 1588, 2014 ABCA 285, Jean Côté J.A., Jack Watson J.A., and Frans Slatter J.A. (Alta. C.A.).

Criminal Law

Charter of Rights and Freedoms

Life, liberty and security of person [s. 7]

Trial judge erred in holding that s. 7 of Charter was infringed

Detective pretending to be 15 arranged to meet accused after replying to accused’s Craig’s List ad seeking men under 35 wanting fellatio. At lead investigator’s request, documents from accused’s vehicle indicating he was HIV positive were used to prepare media release (release) with accused’s name, address, occupation, church affiliation and HIV status. At trial, accused admitted luring but sought stay under s. 24(1) of Canadian Charter of Rights and Freedoms on basis of, among other things, breach of rights under s. 7. Trial judge found accused guilty of luring and held, among other things, that release violated s. 7 because disclosure of medical information was not authorized or permitted by Municipal Freedom of Information and Protection of Privacy Act or Police Services Act (PSA). Trial judge dismissed application for stay, finding no evidence release aggravated consequences of accused being charged with luring, no evidence to support conclusion that indiscriminate and unlawful disclosure was ongoing institutional problem, and that prejudice suffered by accused could be addressed by stern rebuke and reduction of sentence. Accused appealed dismissal of stay application; Crown appealed sentence. Appeal from conviction dismissed; appeal from sentence allowed. Trial judge erred in holding that disclosure of HIV status in release engaged and infringed s. 7. Section 7 protection against deprivations of or intrusions upon personal security was not absolute. State conduct had to have serious and profound effect on psychological integrity. Trial judge’s holding that s. 7 was engaged and infringed anytime police violated individual’s reasonable expectation of privacy by unlawfully circulating individual’s private medical data did not reflect controlling standard. Finding was at odds with factual conclusion that release would have no effect on accused’s career independent of effect of luring charge. Real issue was not whether actions of police were authorized or prohibited by statute but whether release met threshold of serious and profound effect on accused’s psychological integrity. There was no evidence chief or designate authorized disclosure or reasonably believed accused posed risk of harm to others and that disclosure would reduce risk. Disclosure of HIV status in release about arrest was not so disconnected from law enforcement concerns over existence of potential victims as to render disclosure unreasonable violation of accused’s security of person or informational privacy.
R. v. Gowdy (2016), 2016 CarswellOnt 20589, 2016 ONCA 989, David Watt J.A., G.J. Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 15706, 2014 ONCJ 592, M.S. Block J. (Ont. C.J.). (Ont. C.A.); varied (2014), 2014 CarswellOnt 18004, 2014 ONCJ 696, M.S. Block J. (Ont. C.J.).

Criminal Law

Charter of Rights and Freedoms

Charter remedies [s. 24]

Trial judge erred in invoking s. 24(1) of Charter

Accused edited 74 child pornography films during three years working for co-accused employer. Accused was kept for three days due to adjournment Crown obtained to prevent destruction of evidence on computer although concern was eliminated before three days passed. Accused claimed he was not given his OCD medication on first or second day in custody, was tripped and hit on back of head, was kept in cell overnight dressed only in boxer shorts with no mattress or covers, was given little to drink or eat, and that guards told other inmates of reason for his arrest. Trial judge held that loss of three days’ liberty due to adjournment was arbitrary detention violating accused’s rights under s. 9 of Canadian Charter of Rights and Freedoms and that state agents’ treatment of accused infringed accused’s rights under s. 7 of Charter but declined to enter stay of proceedings. After accused pleaded guilty and was convicted of making child pornography, trial judge sentenced accused to conditional sentence of 21 months to be served in community. Trial judge noted that accused had no criminal record, that nature of charge was at lower end of spectrum, that term of imprisonment would not be proportionate to accused’s role, that accused’s risk of suicide in jail was very high, and held that this was exceptional case requiring override of mandatory one-year prison term for offence. Crown appealed. Appeal allowed; sentence set aside and substituted with 21-month imprisonment sentence, operation of which was to be stayed given accused’s completion of conditional sentence and absence of penological principle or state interest in his re-incarceration. Trial judge erred in finding that accused’s rights under ss. 7 and 9 of Charter were infringed. Trial judge erred in invoking s. 24(1) of Charter to impose sentence outside statutory limits for offence. Trial judge assessed state-imposed psychological stress subjectively based on effects on accused who was susceptible to anxiety and stress due to OCD, rather than on objective basis as required by s. 24(1). Trial judge could have fashioned effective remedy for state conduct within confines of Part XXIII of Criminal Code. If significant bodily harm and repeated assaults on accused in Supreme Court of Canada case did not meet threshold of “exceptional case” for application of s. 24(1) to reduce sentence to outside statutory limits, this case clearly fell short of that threshold.
R. v. Donnelly (2016), 2016 CarswellOnt 20585, 2016 ONCA 988, David Watt J.A., Gloria Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 15683, 2014 ONSC 6472, Nordheimer J. (Ont. S.C.J.).

Construction Law

Statutory regulation

Building permits

Municipality was liable for damages for negligence and negligent misrepresentation

Plaintiffs purchased former group home in defendant municipality with intention of opening tourist oufitting business serving Algonquin Park. Plaintiffs intended to convert home into business with overnight residential space for tourists using their services. Municipality was supportive and Chief Building Officer (“CBO”) S issued building permit requiring new windows, doors, and fire escape signage. New CBO H replaced S and made substantial additional demands for upgrades and lowered permitted occupancy rates to below economically viable level. Plaintiffs attempted to list property for sale but H’s replacement was told by municipality not to inspect property so it could not be sold. Plaintiffs successfully brought action for damages for negligence and negligent misrepresentation. Municipality appealed. Appeal dismissed. Duty to mitigate required that plaintiffs take reasonable steps to mitigate damages. Duty to mitigate, however, did not require injured party to spend money that it did not have, especially when it was conduct of tortfeasor that has left injured party without funds. Court would not interfere with damages award.
Carson v. Kearney (Town) (2016), 2016 CarswellOnt 20128, 2016 ONCA 975, Doherty J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.); leave to appeal refused (2016), 2016 CarswellOnt 6693, 2016 ONSC 2836, E.J. Koke J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 6694, 2016 ONSC 1940, E.J. Koke J. (Ont. S.C.J.).

Business Associations

Specific matters of corporate organization

Shares

Application to enforce arbitral awards against shares was dismissed

Applicants holding foreign arbitral awards against respondent Kyrgyz Republic, and claiming Republic owning shares in respondent Canadian company, registered in name of respondent Kyrgyz corporation, which was wholly owned by Republic. Applicants seeking to enforce arbitral awards against shares in Canadian company, and applying for declaration that Republic owned shares. Applications judge focusing on agreement on new terms between Republic, Kyrgyz corporation, Canadian company and subsidiaries (“ANT”) to find that Republic did not own shares. Applicants appealed. Appeal dismissed. Applications judge’s decision to focus on ANT was entirely reasonable, as it was only document capable of proving that there had been transfer. ANT did not establish that Republic had any ownership interest in shares. Restated shareholders’ agreement was expressly contemplated by ANT, Republic was not party to it, and it explicitly referred to Kyrgyz corporation as registered and beneficial owner of shares. All parties intended Kyrgyz corporation to be beneficial owner of shares.
Belokon v. Kyrgyz Republic (2016), 2016 CarswellOnt 20453, 2016 ONCA 981, E.A. Cronk J.A., R.G. Juriansz J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 10918, 2016 ONSC 4506, Conway J. (Ont. S.C.J. [Commercial List]).
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