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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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Courts

Jurisdiction

Dispute had sufficient connection to contract made in Ontario

Class action was certified in Ontario on behalf of terminated dealerships by defendant GMCL as result of financial crisis and auto bailout in summer of 2009 as well as against Cassels Brock, who acted as counsel for Canadian Automobile Dealers Assn., for failing to provide appropriate legal advice regarding Winding-Down Agreements (agreements) presented by GMCL. It was found that agreements were sufficiently connected with tortious claim against out of province lawyers to raise presumption of real and substantial connection between subject matter and Ontario and Ontario was most appropriate and convenient forum. Challenge to Ontario’s jurisdiction was dismissed. Quebec law firms appealed to Supreme Court of Canada. Appeal dismissed. Dispute had sufficient connection to contract made in Ontario. Local lawyers’ provision of legal advice brought them within scope of contractual relationship between GMCL and dealers.
Lapointe Rosenstein Mar­chand Melançon LLP v. Cassels Brock & Blackwell LLP (July 15, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Wagner J., Gascon J., and Côté J., 36087) Decision at 242 A.C.W.S. (3d) 88 was affirmed. 267 A.C.W.S. (3d) 340.


Employment

Wrongful dismissal

Labour Code provisions offered statutory alternative to common law of dismissal

Employee was dismissed without cause after four-and-one-half years’ employment, and given six months’ pay. Employee brought successful unjust dismissal complaint under s. 240 of Canada Labour Code. Adjudicator found that, as matter of statutory interpretation, Code only permitted dismissals for just cause. Employer brought successful application for judicial review. Employee’s appeal to Federal Court of Appeal was dismissed. Employee appealed. Appeal allowed. Standard of review was reasonableness, and issue was whether adjudicator’s interpretation of ss. 240 to 246 of Code was reasonable. Purpose of statutory scheme was to ensure that non-unionized federal employees would be entitled to protection from being dismissed without cause under Part III of Code. Provisions offered statutory alternative to common law of dismissals, and to align protection from unjust dismissal for non-unionized federal employees with those available to unionized employees. If employer could dismiss without cause under Code by providing severance pay, no role would exist for plurality of remedies available to adjudicator.
Wilson v. Atomic Energy of Canada Ltd. (July 14, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36354) Decision at 249 A.C.W.S. (3d) 347 was reversed. 267 A.C.W.S. (3d) 349.


Expropriation

Validity

Notice of reserve pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.) was ultra vires province

Pursuant to his powers under Radiocommunication Act (Can.), minister of industry authorized R Inc. to install antenna system on certain property in respondent municipality for purpose of improving its cellular telephone network. Municipality, arguing that health and well-being of people living near such installation would be at risk, adopted municipal resolution authorizing service of notice of establishment of reserve (notice of reserve) that prohibited all construction on property in issue for two years pursuant to Cities and Towns Act (Que.) and Expropriation Act (Que.). Few days before notice was due to lapse, it was renewed for two additional years. R Inc. filed motion to contest notice. Motion judge annulled notice of reserve and its renewal, as well as resolutions on which they were based. Appeal from motion judge’s decision was allowed. R Inc. appealed. Appeal allowed. In light of purpose and effects of notice of reserve, its pith and substance was siting of radiocommunication antenna system, which represented exercise of federal jurisdiction. Notice was ultra vires province. In circumstances, notice impaired core of federal power over radiocommunication in that it compromised orderly development and efficient operation of radiocommunication in Canada. In addition, it was inapplicable to R Inc. by reason of doctrine of interjurisdictional immunity.
Rogers Communications Inc. c. Châteauguay (Ville) (Jun. 16, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36027) Decision at 242 A.C.W.S. (3d) 342 was reversed. 266 A.C.W.S. (3d) 390.


Sexual Offences

Bestiality

Bestiality has well-established legal meaning

Accused put peanut butter on minor complainant’s genitals and took photos while dog licked it off. Accused was convicted of bestiality. Court of Appeal concluded penetration is essential element of bestiality and overturned conviction. Crown appealed to Supreme Court of Canada. Appeal dismissed. Bestiality has well-established legal meaning and refers to sexual intercourse between human and animal. Penetration has always been understood to be essential element of bestiality. Parliament adopted term without adding definition of it. Legislative history and evolution of relevant provisions showed no intent to depart from well-understood legal meaning of term. Courts should not, by development of common law, broaden scope of liability for offence as trial judge did. Any expansion of criminal liability for bestiality was within Parliament’s domain.
R. v. W. (D.L.) (Jun. 9, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Côté J., and Brown J., 36450) Decision at 122 W.C.B. (2d) 508 was affirmed. 129 W.C.B. (2d) 514.


Taxation

Income tax

Clients must be notified when court considering order requiring disclosure

Canada Revenue Agency sent requirement pursuant to s. 231.2(1) of Income Tax Act (Can.) to taxpayer lawyer, requesting documents regarding income and expenses. Taxpayer claimed that details such as clients’ names in accounts receivable listing were protected by solicitor-client privilege. Federal Court granted Minister of National Revenue’s application for compliance order. Federal Court of Appeal allowed taxpayer’s appeal in part, dismissed taxpayer’s arguments based on s. 8 of Canadian Charter of Rights and Freedoms and sent matter back to Federal Court. Minister appealed. Appeal allowed. Federal Court of Appeal’s order was set aside and Minister’s application for compliance order was dismissed, given holding in companion case that accounting records exception in s. 232(1) of Act was constitutionally invalid. Definition of “solicitor-client privilege” in s. 232(1) of Act was clearly intended to permit Minister to have access to lawyers’ accounting records even if they contained otherwise privileged information. While taxpayer’s challenge was based on argument that definition of “solicitor-client privilege” in s. 232(1) of Act did not satisfy jurisprudential criteria, in companion case, s. 232(1) of Act was found to be constitutionally invalid. In companion case, Act’s requirement scheme as it applied to lawyers and notaries unjustifiably infringed s. 8 of Charter, which meant that request made to taxpayer under scheme was now foreclosed. To properly safeguard clients’ right to solicitor-client privilege, clients must be notified when court considered making order requiring disclosure of possibly privileged information, and be given opportunity to contest disclosure of information.
Minister of National Revenue v. Thompson (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., 35590) Decision at 230 A.C.W.S. (3d) 736 was reversed. 265 A.C.W.S. (3d) 1083.


Constitutional Law

Charter of Rights

Exception for lawyer’s accounting records in s. 232(1) of Income Tax Act (Can.) unconstitutional

Canada Revenue Agency (CRA) sent notaries practising law in Quebec requirements under s. 231.2 of Income Tax Act (Can.) to obtain information or documents relating to notaries’ clients for tax collection or audit purposes. Notaries’ association brought action against Attorney General of Canada and CRA (Crown) to have ss. 231.2 and 231.7 of Act and accounting records exception in s. 232(1) of Act declared to be unconstitutional with respect to notaries. Trial judge allowed action. Court of Appeal allowed Crown’s appeal but solely to make clarifications. Crown appealed. Appeal dismissed. Requirement scheme in ss. 231.2(1) and 231.7 of Act violated s. 8 of Canadian Charter of Rights and Freedoms and was of no force and effect for notaries and lawyers. Exception for lawyer’s accounting records set out in definition of “solicitor-client privilege” in s. 232(1) of Act was unconstitutional and invalid. There were defects in requirement scheme relating to information protected by professional secrecy that violated s. 8 of Charter. Exclusion of accounting records of notaries and lawyers from protection of professional secrecy as set out in definition of “solicitor-client privilege” in s. 232(1) of Act infringed s. 8 of Charter. Infringement of s. 8 of Charter was not justified by s. 1 of Charter. Act had pressing and substantial objective of collection of taxes. There was logical and direct connection between collection of taxes and requirement scheme. Sections 231.2(1), 231.7 and 232(1) of Act, in relation to notaries and lawyers, did not minimally impair right to professional secrecy.
Canada (Procureur général) c. Chambre des notaires du Québec (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35892) Decision at 242 A.C.W.S. (3d) 225 was affirmed. 265 A.C.W.S. (3d) 1082.


Drug offences

Trafficking

Convictions entered for trafficking in cocaine

Accused were members of biker gang providing protection to cocaine trafficking organization. Trial judge convicted accused of conspiracy to traffic in cocaine in association with criminal organization but acquitted accused of trafficking. Trial judge held no evidence accused’s activities aided or abetted actual trafficking activities. Crown’s appeal allowed and convictions for trafficking in cocaine entered. Further appeal to Supreme Court of Canada dismissed. Trial judge erred in law by failing to conclude on facts as found that accused liable for trafficking as aiders and abettors. Accused’s acts of providing protection assisted and encouraged actual trafficking activity.
R. v. Knapczyk (March 22, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J., 36612, 36613) Decision at 124 W.C.B. (2d) 487 was affirmed. 129 W.C.B. (2d) 254.


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