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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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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.).

Privacy and Freedom of Information

Provincial privacy legislation

Miscellaneous

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.).


Judges and courts

Jurisdiction

Exchequer and Federal Courts

Federal Court did not have jurisdiction over claim

Applicant, which was incorporated by special Act of Parliament, An Act to incorporate The Canadian Transit Company (“CTC Act”), owned and operated Canadian half of Ambassador Bridge connecting respondent city and Detroit, Michigan. Applicant had purchased more than 100 residential properties in respondent city with intention of eventually demolishing homes and using land to facilitate maintenance and expansion of bridge and its facilities. Respondent city issued repair orders against properties pursuant to municipal bylaw. Applicant applied to Federal Court for declarations to effect that applicant had certain rights under CTC Act which superseded bylaw and any repair orders issued under it. Respondent city brought successful motion to strike applicant’s notice of application on ground that Federal Court lacked jurisdiction to hear application, and applicant successfully appealed. Respondent city appealed. Appeal allowed. Federal Court did not have jurisdiction to decide whether respondent city’s bylaws applied to applicant’s residential properties. In order to decide whether Federal Court had jurisdiction over claim, it was necessary to determine essential nature or character of that claim. Stated generally, issue was whether Federal Court had jurisdiction to decide claim that municipal bylaw was constitutionally inapplicable or inoperative in relation to federal undertaking. First part of three-part test for jurisdiction, which required that federal statute grant jurisdiction to Federal Court, was not met. Applicant was not seeking relief “under an Act of Parliament or otherwise” as required by s. 23(c) of Federal Courts Act, and s. 23(c) of Federal Courts Act therefore did not grant jurisdiction over this application to Federal Court.
Windsor (City) v. Canadian Transit Co. (2016), 2016 CarswellNat 6466, 2016 CarswellNat 6467, 2016 SCC 54, 2016 CSC 54, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellNat 4835, 2015 CarswellNat 816, 2015 FCA 88, 2015 CAF 88, Eleanor R. Dawson J.A., David Stratas J.A., and A.F. Scott J.A. (F.C.A.).


Evidence

Privilege

Privileged communications

Litigation privilege invoked by insurer could be asserted

Litigation privilege. Fire damaged residence and one of insurer’s claims adjusters investigated claim. Syndic of Chambre de l’assurance de dommages later received information to effect that adjuster had made certain errors in managing file. In course of her inquiry, syndic asked insurer to send her complete copy of its claim file. Insurer refused to do so on basis that some of requested documents were protected by litigation privilege. Syndic filed motion for declaratory judgment, arguing that s. 337 of Act respecting the distribution of financial products and services (Que.) created obligation to produce “any (…) document” concerning activities of representative whose professional conduct was being investigated. Syndic further argued that litigation privilege should be applied more flexibly than solicitor-client privilege as it was less important. Trial judge concluded that litigation privilege could not be abrogated absent express provision and syndic appealed. Court of Appeal upheld trial judge’s judgment. Syndic appealed before Supreme Court of Canada. Appeal dismissed. Litigation privilege is fundamental principle of administration of justice . It is class privilege that exempts communications and documents that fall within its scope from compulsory disclosure, except where one of limited exceptions to non-disclosure applies. Any legislative provision capable of interfering with litigation privilege should be read narrowly. Legislature may not abrogate that privilege by inference, but may only do so using clear, explicit and unequivocal language. Because s. 337 of Act provided only for production of “any (…) document” without further precision, it did not have effect of abrogating privilege. It followed that insurer was entitled to assert litigation privilege in this case and to refuse to provide syndic with documents that fell within scope of litigation privilege. None of exceptions to its application justified lifting privilege in this case. Therefore, courts below were right to hold that litigation privilege invoked by insurer could be asserted against syndic.
Lizotte c. Aviva Cie d’assurance du Canada (2016), 2016 CarswellQue 10692, 2016 CarswellQue 10693, 2016 SCC 52, 2016 CSC 52, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 384, 2015 QCCA 152, Bich J.C.A., St-Pierre J.C.A., and Gagnon J.C.A. (C.A. Que.).


Criminal Law

Pre-trial procedure

Search without warrant

Totality of circumstances supported conclusion that arrest was lawful

Officer observed accused’s vehicle speeding and pulled him over. Officer saw police scanner above driver’s-side window visor and noticed that body of vehicle was higher than usual. When asked for his license and registration, accused checked his window visor and advised that he could not locate them. Officer requested that he check glove box, and while accused was leaning over saw money accused appeared to have been sitting on and unsheathed hunting knife next to driver-side door. Accused was arrested for possession of weapon dangerous to public peace and pat down search revealed bag of cocaine. Later strip search revealed more small bags of cocaine. voir dire was held on admissibility of evidence under section 8 and section 9 of the Canadian Charter of Rights and Freedoms. Evidence was admissible and accused was convicted of possession of cocaine for the purposes of trafficking and possession of a weapon dangerous to the public peace. Accused unsuccessfully appealed to Newfoundland and Labrador Court of Appeal, which found that arrest was lawful. Accused appealed. Appeal dismissed. Arrest was lawful since arresting officer had reasonable and probable grounds to believe that accused had committed indictable offence. Totality of the circumstances, not mere presence of knife, supported trial judge’s conclusion that arrest was lawful.

R. v. Diamond (2016), 2016 CarswellNfld 422, 2016 CarswellNfld 423, 2016 SCC 46, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellNfld 518, 2015 NLCA 60, B.G. Welsh J.A., M.F. Harrington J.A., and C.W. White J.A. (N.L. C.A.).


Privacy and Freedom of Information

Collection of personal information

Mortgagee was compelled to disclose discharge statement

Creditor loaned homeowners $35,000. Homeowners defaulted on loan. Creditor obtained judgment against homeowners but required discharge statement (statement) from bank holding mortgage on homeowners’ property (mortgagee). Mortgagee refused to provide statement without homeowners’ consent under Personal Information Protection and Electronic Documents Act (PIPEDA). Creditor obtained orders to examine homeowners in aid of execution. Motion judge refused both of creditor’s motions to compel mortgagee to disclose statement, considering himself bound by 2011 appellate decision. Majority of Court of Appeal dismissed creditor’s appeal, holding that s. 7(3)(c) exception did not apply, that statement was “personal information” homeowners did not impliedly consent to disclosure of, and that creditor could obtain statement by obtaining examination order under R. 60.18(6)(a) of Rules of Civil Procedure. Dissenting judge would have ordered mortgagee to provide statement. Creditor appealed. Appeal allowed; statement was ordered disclosed. Order sought by creditor was “order made by court” under s. 7(3)(c), statement fell within s. 7(3)(b) exception to consent requirement, and homeowners impliedly consented to statement’s disclosure. PIPEDA did not interfere with courts’ ability to make orders or with rules regarding record production or debt collection disclosure. Requiring creditor to bring another motion flew in face of increasing concerns about access to justice. Judgment creditor who served debtor with motion to obtain disclosure was entitled to order for disclosure and should not be required to undergo further procedure to realize debt. Homeowners also impliedly consented to disclosure to creditor when they gave mortgage. Information in statement was less sensitive than other financial information and was generally available to public except that statement disclosed current balance at single point in time. In determining individual’s reasonable expectations under PIPEDA, whole context was important, including legitimate business interests of other creditors. Statement was not just private matter between mortgagee and mortgagor. Finally, disclosure to person requiring information to exercise established legal right was different from disclosure to curious party with no legal interest in property.
Royal Bank of Canada v. Trang (2016), 2016 CarswellOnt 18044, 2016 CarswellOnt 18045, 2016 SCC 50, 2016 CSC 50, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellOnt 17254, 2014 ONCA 883, Alexandra Hoy A.C.J.O., John Laskin J.A., Robert J. Sharpe J.A., E.A. Cronk J.A., and R.A. Blair J.A. (Ont. C.A.).

Business Associations

Shareholders

Oppression claim was properly dismissed

R and M incorporated company but rarely complied with requirements of Canada Business Corporations Act. In May 2005, M resigned as officer and director of corporation. Corporation alleged M had also resigned as shareholder and accordingly transferred his shares to R. M applied for oppression remedy under s. 241 of Act, alleging he was still shareholder. Trial judge dismissed M’s claim, rejecting M’s version of events and finding that as of May 2005, M did not wish to be shareholder and asked to be removed. Court of Appeal dismissed M’s appeal. M appealed to Supreme Court of Canada. Appeal dismissed. Oppression claim was properly dismissed. Trial judge’s factual findings were not reviewable because no palpable and overriding error had been made. Fact that corporation fails to comply with requirements of Act does not, on its own, constitute oppression. M could have had no reasonable expectation of being treated as shareholder: he no longer was and expressly demanded not to be so treated. Corporation’s failure to observe corporate formalities in removing M as shareholder in accordance with his wishes could not be characterized as unfairly prejudicial to extent that omission deprived him of shareholder status.
Mennillo v. Intramodal inc (2016), 2016 CarswellQue 10615, 2016 CarswellQue 10616, 2016 SCC 51, 2016 CSC 51, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2014), 2014 CarswellQue 10625, 2014 QCCA 1515, Gagnon J.C.A., Vézina J.C.A., and St-Pierre J.C.A. (C.A. Que.).

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After the Supreme Court set out a framework to assess the independence of expert witnesses, litigators have different opinions about whether it’s too difficult to exclude expert evidence on the basis of bias. What do you think?
Yes, it remains very hard to get this evidence excluded, but this may change as trial court judges pay more attention to the backgrounds of expert witnesses.
No, it is not hard to get this evidence excluded, as the courts continually refine the role of experts in both criminal and civil litigation.