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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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Criminal Law

Breathalyzer

Automatic Roadside Prohibition scheme not minimally impairing right of driver to be free of unreasonable search and seizure

Automatic Roadside Prohibition (ARP) scheme calling for roadside analysis of drivers’ breath samples using approved screening device (ASD). “Fail” reading and driver’s refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was “driver” and whether ASD registered “fail”, “warn” or driver refused to provide sample. Drivers’ samples registered “fail” except G who refused to provide sample. Chambers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but concluded ARP scheme violates s. 8 only where ASD registers “fail”. Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is licensing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces’ role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create “offence” within meaning of Charter s. 11(d). Scheme concerns licensing drivers, enhancement of traffic safety and deterrence of impaired driving. Nor does scheme impose true penal consequences. While costs and penalties are significant and 90-day licence suspension is meaningful, they do not engage fair-trial rights. While demand to provide breath sample constitutes seizure that infringes individual’s reasonable expectation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of “fail” reading or failure to provide sample are not criminal. Given concerns whether ASD accurately reflects blood-alcohol readings, driver’s ability to challenge accuracy of ASD result is critical to reasonableness of ARP regime. Absence of meaningful review of accuracy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unreasonable search and seizure.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 237 A.C.W.S. (3d) 511 was affirmed.  259 A.C.W.S. (3d) 683.

Public Utilities

RATES

Utilities Commission did not have obligation to conduct analysis using particular methodology

ATCO Utilities applied to recover, in approved rates, certain pension costs related to annual cost of living adjustment. Alberta Utilities Commission denied approval for recovery of adjustment of 100 per cent of annual consumer price index, instead ruling that recovery of 50 per cent of annual consumer price index was reasonable. ATCO Utilities’ appeals to Alberta Court of Appeal and Supreme Court dismissed. Electric Utilities Act and Gas Utilities Act provide that regulated utility must have opportunity to recover costs and expenses so long as they are prudent. Commission tasked with determining whether utility’s costs are reasonable or prudent. Costs and expenses must be wise or sound to be considered reasonable or prudent. Public utilities bear burden of establishing that proposed tariffs are just and reasonable, which necessarily imposes on them burden of establishing that costs are prudent. Commission considers consumer interests by limiting utility’s recovery to what it reasonably or prudently costs to efficiently provide utility service. Consumers only pay for what is reasonably necessary. Commission does not have obligation to conduct analysis using particular methodology; it has discretion to consider variety of analytical tools and evidence so long as ultimate rates it sets are just and reasonable to both consumers and utility. Commission’s decision in applying its expertise to set rates and approve payment amounts is subject to standard of review of reasonableness. It was not unreasonable for Commission to decide, without applying no-hindsight analysis, that 50 per cent of consumer price index (up to maximum cost of living adjustment of three per cent) represented reasonable level for setting cost of living adjustment amount for purposes of determining pension cost amounts. Use of word “prudent” does not impose on Commission a specific no-hindsight methodology. Disallowed costs were forecast costs and it was therefore reasonable for Commission to direct ATCO Utilities to reduce pension costs incorporated into revenue requirements by restricting annual cost of living adjustment.
ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission) (Sep. 25, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Gascon J., File No. 35624) Decision at 233 A.C.W.S. (3d) 491 was affirmed.  257 A.C.W.S. (3d) 728.

Public Utilities

RATES

Given nature of labour costs, Board did not act unreasonably in not applying prudent investment test

Ontario Energy Board disallowed $145 million in labour compensation costs related to Ontario Power Generation’s nuclear operations applied for as part of rate application covering. Board found that labour costs out of step with comparable entities. Majority of Ontario Divisional Court dismissed OPG’s appeal and upheld Board’s decision. Ontario Court of Appeal set aside decisions of Divisional Court and Board and remitted matter to Board for redetermination. Board appealed. OPG argued that Board legally required to compensate it for all prudently committed or incurred costs, that prudence has particular methodological meaning and that OPG should benefit from presumption of prudence. Appeal allowed. It was not improper, in this case, for Board to participate in arguing in favour of reasonableness of its decision. Board was only respondent in initial review and it was exercising regulatory role by setting just and reasonable payment amounts to a utility. Utilities regulation must encourage investment in robust utility infrastructure and protect consumer interests. It would be inconsistent with statutory scheme to presume that utility decisions to incur costs were prudent. Ontario Energy Board Act, 1998 does not prescribe methodology Board must use to determine just and reasonable payment amounts and imposes on applicant utility the burden of establishing that payment amounts are just and reasonable. Board has broad discretion to determine methods it may use; Board not required to use no hindsight, presumption of prudence test. Regulator may make use of variety of analytical tools in assessing justness and reasonableness of utility’s proposed payment amounts. Statute requires only that regulator set “just and reasonable” payments. Impugned labour compensation costs were partly committed, since they resulted from collective agreements, and partly subject to management discretion, since OPG retained some flexibility to manage total staffing levels. Given nature of labour costs, Board did not act unreasonably in not applying prudent investment test. Board’s adoption of mixed approach that did not rely on quantifying exact share of compensation costs that fell into forecast and committed categories was proper exercise of Board’s methodological discretion where disputed costs did not fit easily into one category or the other.
Ontario (Energy Board) v. Ontario Power Generation Inc. (Sep. 25, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Gascon J., File No. 35506) Decision at 228 A.C.W.S. (3d) 1172 was reversed.  257 A.C.W.S. (3d) 252.

Building Liens

TRUST

Filing of lien bond has no effect on existence and application of trust remedy

Dominion Construction was hired by BBB as general contractor to construct new football stadium. Dominion entered into subcontract with Structal Heavy Steel for supply and installation of steel for project. Dominion started withholding payment from Structal, advising it was using unpaid amounts for back charges it claimed resulted from delays attributable to Structal. Structal registered builders’ lien against property. Dominion filed lien bond for full amount of builder’s lien. Structal approved bond and vacated its lien. Dominion refused to make further payments, maintaining that it had set-off against monies claimed by Structal, that there was no breach of trust, and that Structal was fully secured by lien bond. At Structal’s request, BBB withheld $3.5 million payment from Dominion. Dominion applied for declaration that it satisfied its Builders’ Lien Act, trust obligations to Structal. Application judge ruled that lien bond secured Structal’s trust claim, which was based on Dominion using BBB’s payment of $4.1 million on account of Structal’s completed and certified work to pay other contractors and itself. Structal paid its subcontractors in full from its own resources and its subcontract was certified for payment. Judge maintained that lien bond stood in place of lien, securing sum of money claimed by Structal and allowing Dominion to disburse funds of progress payment without being in breach of lien act trust provisions. Manitoba Court of Appeal overturned application judge’s decision. Dominion’s appeal dismissed. Right of lien against interest of owner of land or structure is available to persons who do any work, provide any services or supply materials in performance of contract or subcontract. Lien creates charge against land in favour of contractors, suppliers and workers who can prove their claim. Lien act provides for vacating liens, pending resolution of validity of lien claims, if alternate security, typically lien bond, is posted. Money or security paid into court stands in place of land against which lien was registered. Trust provisions of lien act provide that subcontractors to be paid before owner or contractor can appropriate trust funds for own use. Trust and lien provisions of lien act are two separate remedies. Act does not expressly delineate how lien and trust provisions are to interact where both remedies pursued concurrently. Filing of lien bond has no effect on existence and application of trust remedy. Lien bond does not constitute security for trust claim and does not result in protection of actual trust monies.
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel (Sep. 18, 2015, S.C.C., McLachlin C.J.C., Rothstein J., Cromwell J., Moldaver J., Wagner J., Gascon J., and Côté J., File No. 35777) Decision at 236 A.C.W.S. (3d) 823 was affirmed.  256 A.C.W.S. (3d) 776.

Conflict of Laws

FOREIGN JUDGMENTS

Ontario courts had jurisdiction to determine if foreign judgment should be recognized

As result of exploration and extraction activities of global oil companies, Ecuador suffered extensive environmental pollution. Plaintiffs, who represent approximately 30,000 indigenous Ecuadorian villagers, have been seeking legal accountability and financial and environmental reparation for alleged harms caused by Texaco’s former operations. Texaco later merged with Chevron, a U.S. corporation. Ecuadorian courts awarded environmental damages and punitive damages of US$9.51 billion against Chevron but Chevron refused to acknowledge or pay. Plaintiffs commenced action for recognition and enforcement of Ecuadorian judgment in Ontario Superior Court of Justice. Plaintiffs served Chevron at head office in California and Chevron Canada, at extra-provincially registered office in British Columbia and place of business in Ontario. Plaintiffs sought Canadian equivalent of award resulting from Ecuadorian judgment. Chevron and Chevron Canada applied for orders setting aside service ex juris, claiming that court did not have jurisdiction. Motion judge ruled in plaintiffs’ favour with respect to jurisdiction and Court of Appeal upheld finding that Ontario courts had jurisdiction to determine whether foreign judgment should be recognized and enforced in Ontario. Chevron’s appeal dismissed.
Chevron Corp. v. Yaiguaje (Sep. 4, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Gascon J., File No. 35682) Decision at 235 A.C.W.S. (3d) 373 was affirmed.  256 A.C.W.S. (3d) 583.

Constitutional Law

CHARTER OF RIGHTS

Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter

Section 163.2 of Income Tax Act imposes monetary penalties on every person who makes false statement that could be used by another person for purpose of act. Appellant was assessed substantial penalties under s. 163.2(4) in respect of false statements made by her in donation receipts issued by her on behalf of charity. Minister of National Revenue claimed appellant knew or would reasonably be expected to have known statements could be used by taxpayers to claim unwarranted tax credit. Appellant argued she was person “charged with an offence” because penalty imposed under s. 163.2(4) is criminal. She claimed she was therefore entitled to procedural safeguards provided for in s. 11 of Canadian Charter of Rights and Freedoms. Her appeal of Minister’s assessment to Tax Court of Canada was allowed despite fact she did not raise any Charter issue in her notice of appeal nor did she provide notice of constitutional question to attorneys general as required by s. 19.2 of act. Federal Court of Appeal set aside Tax Court’s decision and restored assessment. Appellant’s appeal dismissed. This court has narrow discretion to address merits of constitutional issue when it receives proper notice of constitutional questions even though issue was not properly raised in courts below. Discretion ought to be exercised in this case. Proceedings under s. 163.2 of act are not criminal in nature and do not lead to imposition of true penal consequences. Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter. Proceedings under s. 163.2 are of administrative nature. Process does not bear traditional hallmarks of criminal proceeding. True penal consequence is imprisonment or fine. Monetary penalty may be true penal consequence when it is, in purpose or effect, punitive. Penalties assessed against appellant, however, reflect objective of deterring conduct of type she engaged in. In signing charitable tax receipts, she chose to rely on her own legal opinion which she knew to be incomplete. Tax Court found her conduct was indicative either of complete disregard of law or of wilful blindness.
Guindon v. R. (Jul. 31, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35519) Decision at 228 A.C.W.S. (3d) 94 was affirmed.  256 A.C.W.S. (3d) 78.

Human Rights Legislation

DISCRIMINATION

It was not open to tribunal to conclude that refusal to train pilot constituted prima facie discrimination under Quebec Charter of human rights and freedoms

Bombardier operates training facilities for licensed pilots in Montreal and Dallas. Appellant, Canadian citizen born in Pakistan and holding Canadian and U.S. licences, registered for training in Dallas. Request for security clearance from U.S. authorities was denied and appellant unable to receive training in Dallas.
Bombardier also refused to train appellant in Montreal under Canadian licence. Appellant filed complaint with Commission des droits de la personne et des droits de la jeunesse (Commission), claiming that Bombardier’s refusal constituted discrimination. Commission instituted proceedings in Human Rights Tribunal alleging Bombardier impaired appellant’s right to avail himself of services ordinarily offered to public and his right to safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to Quebec Charter of Human Rights and Freedoms. Tribunal ordered Bombardier to pay damages and to cease applying or considering standards and decisions of U.S. authorities in national security matters when dealing with applications for training pilots under Canadian pilot’s licences.
Court of Appeal set aside tribunal’s decision, finding that tribunal could not find that Bombardier discriminated without proof that U.S. authorities’ decision was itself based on ground prohibited under charter. Appellant’s appeal dismissed. Complaint under charter involves two-step process. First, plaintiff must prove, on balance of probabilities: (1) distinction, exclusion or preference; (2) based on one of grounds listed; and (3) which has effect of nullifying or impairing right to full and equal recognition and exercise of human right or freedom. If these elements are established, there is prima facie discrimination. Quebec charter does not protect right to equality per se; right to non-discrimination must necessarily be attached to another human right or freedom recognized by law. Second, defendant can justify decision or conduct on basis of exemptions provided for in applicable human rights legislation or those developed by courts. Tribunal’s decision was not supported by evidence; it was unreasonable and had to be set aside. Commission did not demonstrate that appellant’s ethnic or national origin played any role in U.S. authorities’ unfavourable reply to his security screening request. Rather, Bombardier’s decision to deny appellant’s request for training was based solely on U.S. authorities’ refusal to issue him a security clearance. It was not open to Tribunal to conclude that Bombardier’s decision constituted prima facie discrimination under the charter.
Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Jul. 23, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Côté J., File No. 35625) Decision at 237 A.C.W.S. (3d) 181 was affirmed.  255 A.C.W.S. (3d) 79.
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