Wednesday, June 29, 2011

Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482

In Rasouli v. Sunnybrook Health Sciences Centre, the Ontario Court of Appeal held that the removal of life support when it is no longer medically indicated is a form of "treatment" requiring the consent of the patient under the Health Care Consent Act.

The respondent (represented by his litigation guardian) developed bacterial meningitis after surgery to remove a benign brain tumour, which left him reliant on life support for survival. According to medical consensus, there was no hope for recovery, and the life support measures were no longer medically beneficial or indicated. The appellants, the respondent's attending physicians, sought to remove the respondent from life support and begin palliative care. They argued that a patient's consent is not required when a doctor withdraws treatment that is not medically indicated or necessary, because such withdrawal does not constitute "treatment".

The Court held that the removal of life support constitutes "treatment" under the Act, and therefore requires the consent of the substitute decision maker, or of the Consent and Capacity Board. The Court reasoned that, in this case, the withdrawal of life support would necessitate the immediate administration of palliative care, in contrast to other situations involving the removal of treatment and future administration of pallitaive care, in which there may be a time gap of indeterminate length, such as the withdrawal of chemotherapy that has failed to benefit a cancer patient. Thus, the Court analyzed the withdrawal of life support and subsequent administration of palliative care as one "treatment package" or one “plan of treatment” under Section 2.1 of Act. Treating physicians must therefore obtain consent to the entire treatment package, either from the substitute decision-maker as per s.21 of the Act, or from the Board, as per s.37.

June 29, 2011
Link to Decision

Webnesh Haile

Elgner v. Elgner, 2011 ONCA 483

In Elgner v. Elgner, the Ontario Court of Appeal addressed the issue of whether an interim spousal support order issued under the federal Divorce Act can be appealed as a right or only with leave, as is the case with other interlocutory orders issued by Ontario Superior Courts. The Court held that in Ontario, unlike in BC, Saskatchewan and Quebec, such appeals do require leave.


At issue were ss. 21(1) and 21(6) of the federal Divorce Act and s 19(1) of the Ontario Courts of Justice Act. Section 21(1) of the Divorce Act states that “an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act”, which Mr. Elgner argued gives him a right to appeal. However, s 19(1) of the Ontario Courts of Justice Act provides that an appeal to the Divisional Court from an interlocutory order by a judge at the Superior Court of Justice is permitted only with leave. Mr. Elgner argued that these two issues are in direct conflict and that federal paramountcy must apply. Gillese J.A., however, ruled that the two sections were not in conflict because Section 21 (6) of the Divorce Act provides that the right to appeal must be asserted according to the usual provincial procedures.

June 29, 2011
Link to Decision

Mary Phan

Monday, June 20, 2011

Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460

In Agribrands Purina Canada Inc. v. Kasamekas, Goudge J.A. ruled that
breach of contract does not qualify as "unlawful conduct" necessary for the
tort of unlawful conduct conspiracy, and deceitful actions are sufficient
grounds for punitive damages.


Following a series of agreements, Purina supplied feed to two distributors
in the same area, violating its exclusivity agreement with one of the
distributors.  The trial judge found Purina liable for the tort of unlawful
conduct conspiracy. In an attempt to define what qualified as "unlawful
conduct," the trial judge applied jurisprudence relating to the tort of
intentional interference with economic relations, under which conduct making
the defendant liable can include conduct prohibited by law, contract,
convention, or understanding. The Court disagreed with this analysis,
holding that for an action to constitute "unlawful conduct" for the tort of
intentional interference, the conduct must be actionable; it must be wrong
in law. Breach of contract, convention, or understanding, on the other hand,
are not "unlawful" for purposes of unlawful conduct conspiracy. Goudge J.A.
also noted that the two torts have evolved separately and judges should
avoid ignoring the different historical paths torts have travelled in an
attempt to create a "unified theory of economic torts."


This case also deals with the matter of punitive damages. The Court
disagreed with the trial court's reason for allowing punitive damages that
breach of contract should be discouraged. Instead, they allowed
the punitive damages by finding that Agribrands Purina's deceitful action of
supplying a competitor with merchandise when it had expressly said it would
not do so constituted a marked departure from ordinary standards of decency
and an "independently actionable" claim.

June 20, 2011
http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0460.htm

Leonard Elias & Dominik Swierad

Thursday, June 16, 2011

Evans v. Jensen, 2011 BCCA 279

In Evans v. Jensen, the British Columbia Court of Appeal held that, where a costs rule provides specified alternatives for an award of costs, it is not open to the court to make an award other than as expressly set out in the rule.

Prior to the trial, the defendant made an offer to settle. The plaintiff rejected the offer and went to trial; however, the settlement offer turned out to be significantly higher than the damages awarded in trial. In awarding costs to the defendant, the parties both accepted that single costs were appropriate; the trial judge, however, awarded double costs pursuant to Rule of Court 37B(5), reasoning that this rule, which presents specific alternatives as to an award of costs, removed his discretion in regards to costs.

In affirming the decision of the trial judge, Prowse J.A. noted that the absence of broad discretionary language, such as that found in other Rules of Court, indicated that the options listed in Rule 37B(5) was an exclusive list. She also noted that a binary choice between double and zero costs was consistent with the policy of encouraging settlements.

June 16, 2011
Link to Decision

Sam Golder & Dominik Swierad

Wednesday, June 15, 2011

R. v. Arganda (J.R.), 2011 MBCA 54

In R. v. Arganda, the Manitoba Court of Appeal reduced a sentence that the Court found unfit at the time of its imposition due to facts not known to the sentencing judge, and held that the sentence could not nonetheless be upheld given the post-sentence criminal conduct of the accused.

The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.

The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.

July 15, 2011
Link to Decision

Mark Carter & Kai Sheffield
*

Tuesday, June 14, 2011

R. v. Dippel, 2011 ABCA 129

In R. v. Dippel, the Alberta Court of Appeal ruled that an unconscious action that has the effect of indicating consent to another party cannot constitute actual consent according to s. 273.1(1) of the Criminal Code. The accused in the case was charged after he joined the complainant in a bed where she was asleep. He attempted to initiate a sexual encounter and she lifted her arm unconsciously.  The trial judge found that he honestly perceived this as an invitation for him to fondle her. He then digitally penetrated her at which point she awoke and fled the room. The trial judge concluded that the complainant would not have consented with the accused.


The Court rejected the defence of honest mistaken belief in consent, holding that such a belief could only have arisen after the initial sexual contact.  The Court found that the requirement to take reasonable steps to ascertain whether the complainant was consenting had not been met by the accused. Specifically, it found that ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent. The Court allowed the Crown's appeal and found the accused guilty.  While the Court was preparing its decision, the Supreme Court of Canada released R. v. J.A., which confirmed the Alberta Court of Appeal's holding here that consent to a sexual act requires the conscious decision of an operating mind to each and every sexual act.

June 14, 2011
http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2011/2011abca0129.pdf

Leonard Elias & Dominik Swierad

Monday, June 13, 2011

Attorney General of Canada v. Almalki, 2011 FCA 199

In Attorney General of Canada v. Almalki, the Federal Court of Appeal held that the common-law informer privilege, a class privilege, did not apply to Canadian Security Intelligence Services ("CSIS") human sources. The issue arose in the context of an order pursuant to section 38 of Canadian Evidence Act, ("CEA") for disclosure of a number of potentially sensitive documents, certain of which were obtained from CSIS human sources.

The informer privilege, as a class privilege, protects the relationship between the informer and a peace officer. It prohibits the court from compelling the disclosure of an informant's identity so as to ensure citizen participation in enforcing the law. The court, drawing on the Supreme Court’s examination of the relationship between journalists and their sources as discussed in R. v. National Post, noted the difficulties in extending the informer privilege to other relationships. The court also observed that section 38 of the CEA established a procedure for balancing the public interests in disclosure against the public’s interest in the non-disclosure of sensitive information relating to international relations, national security and national defence. Further, section 18 of the Canadian Security Intelligence Service Act ("CSISA"), specifically provides for disclosure of CSIS information "as required by any other law".  Accordingly, the court held that extending a class privilege to CSIS human sources would be contrary to the balancing mechanism set out in section 38 of the CEA as well, as the express will of Parliament as set out in section 18 of the CSISA.

June 13, 2011
Link to Decision

Grant Bishop & Steve Holinski
*

Thursday, June 9, 2011

Boehringer Ingelheim (Canada) Ltd./Ltee. v. Kerr, 2011 BCCA 266

In this case, the British Columbia Court of Appeal addressed the issue
of the correct legal test for prima facie discrimination when an
employee who has been on disability leave requests a return to work
and is not returned to work by the employer.  Kirkpatrick J.A.,
writing for the court, held that the test articulated in
Communications, Energy & Paperworkers’ Union of Canada (CEP), Local
789 v. Domtar Inc.
remains the test to be applied in the
circumstances where discrimination is alleged, and that it was
appropriately applied in this case.


The three elements of the test for prima facie discrimination are that
the complaint have a real or perceived disability, that he or she
received adverse treatment, and that his or her disability was a
factor in the treatment.  Justice Kirkpatrick rejected the appellant’s
suggestion that there is an additional requirement in the test whereby
a disabled employee must establish a material change in circumstances
when requesting a return to work before prima facie discrimination can
be established.  The employer's duty to accommodate obliges it to
investigate what an employee who wishes to return to work is capable
of doing; there is no onus for the employee to prove that he or she is
in fact capable.

June 9, 2011
Link to Decision

Marc Gibson & Ryan MacIsaac

Wednesday, June 8, 2011

T. (R.A.) v. British Columbia (Attorney General), 2011 BCCA 263

In T. (R.A.), the British Columbia Court of Appeal held that a person is "subject to a sentence” within the meaning of s. 490.02 of the Criminal Code when they are subject to a lifelong firearms ban in accordance with s. 109 of the Criminal Code.

The appellant was convicted of sexual assault in 1994 and sentenced to both a prison sentence and a lifelong firearms ban. After the completion of the appellant’s prison sentence, Parliament passed the Sexual Offender Information Registration Act. It required the registration and reporting of individuals convicted of certain crimes such as sexual assault. The Act only applies retrospectively if the offender was still “subject to a sentence.” The appellant challenged that the Act did not apply to him as the prohibition did not qualify as a sentence. Saunders J.A. rejected this argument, finding that other areas of the Criminal Code treat a firearms prohibition as a sentence, and drawing support from a previous sentencing case, R. v. Ferguson.

June 8, 2011

Link to Decision

Sam Golder, Kai Sheffield & Dominik Swierad

Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194

In this case, the Federal Court of Appeal considered the scope of the Governor in Council's (GIC) jurisdiction in the context of reviewing decisions of the Canadian Radio-television and Telecommunications Commission (CRTC). In obiter dicta, Sexton J.A. wrote that policy considerations may inform the Governor in Council's application of the control in fact test pursuant to s. 16(3) of the Telecommunications Act, S.C. 1993, chapter 38. He assumed, without deciding, that the standard of review on this issue would be correctness, but found that the decision under review did not incorporate policy considerations until the question of control had already been resolved.

The initial CRTC decision applied the Canadian Airlines test and concluded that the appellant Globalive was controlled by a non-Canadian and therefore ineligible to operate as a telecommunications common carrier in Canada.  The GIC applied the same test in reviewing that decision, but disagreed that the appellant Globalive was controlled by a non-Canadian.

Justice Sexton held that the GIC decision was reasonable and did not incorporate policy aspects until it considered whether or not to vary the decision of the CRTC.  However, Justice Sexton added that even if the GIC had considered appropriate policy concerns when applying the control in fact test, it would not constitute a reviewable error. He noted that rather than giving courts the exclusive right to review CRTC decisions, "the fact Parliament chose to grant the Governor in ouncil the right to review the CRTC’s application of the control in fact test implies the decision was intended to incorporate policy concerns when appropriate." Justice Sexton therefore found that even if the GIC had incorporated policy considerations into its decision, it would have been not only reasonable, but correct to do so.

June 8, 2011
Link to Decision

Marc Gibson

Tuesday, June 7, 2011

Hussack v. Chilliwack School District No. 33, 2011 BCCA 258

In Hussack v. Chilliwack School District No. 33, the Court partially allowed the appeal by a school board regarding damages awarded to a student for breach of duty of care. The case could be significant in that it clarified how the doctrine of novus actus interveniens is applied and confirmed that the appropriate test is foreseeability of subsequent conduct rather than unreasonableness.

Devon Hussack, a student within the Chilliwack School District, suffered a concussion as a result of an incident during a field hockey game at the school. He subsequently developed a psychiatric disorder that manifested itself in difficulties that he believed were physical in nature. Devon was parented solely by his overprotective father who interfered with his son’s medical treatment and school attendance.

Justice Bennett did not find error in the trial judge’s conclusion that the hockey incident represented cause in fact and law in spite of contributing factors. Bennett J.A. then analysed the issue of novus actus interveniens to address the school board’s argument that Mr. Hussack’s conduct amounted to a new intervening act which broke the chain of causation. The trial judge had found that Mr. Hussack’s actions were foreseeable and did not, therefore, represent a new act. The school board argued that reasonableness rather than foreseeability was the appropriate test and cited a series of cases that applied novus actus interveniens to unreasonable subsequent actions by family members. Bennett J.A. rejected the argument and characterized the "family cases" as dealing with "unusual" circumstances, rather than creating new law. She affirmed foreseeability as the appropriate test and deferred to the train judge’s conclusion on the facts that Mr. Hussack’s conduct did not represent a new act.

June 7, 2011
Link to Decision

Radostina Pavlova & Dominik Swierad

Thursday, June 2, 2011

Williamson et al. v. Gillis et al., 2011 NBCA 53

In Williamson v. Gillis, the New Brunswick Court of Appeal clarified whether, when seeking security for costs pursuant to Rule 58.01 of the Rules of Court, a defendant must expressly depose to having a bona fide defence. The court ruled that no such affidavit is required.

Justice Richard reached this conclusion because other rules of court mandate specific language in support of applications or motions, whereas Rule 58.01 has no such language. As well, this approach is consistent with the jurisprudence surrounding Rule 58.10 (security for costs upon appeal). The Court held that the merits of the defense’s case should be considered when exercising judicial discretion in adjudicating a motion seeking security for costs, but a failure to set out sufficient facts is not fatal to the motion.

June 2, 2011
Link to Decision

Sam Golder & Dominik Swierad

Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260

The British Columbia Court of Appeal considered how forum selection clauses are to be treated in the analysis of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (the "Act"), to determine whether the British Columbia Court should take jurisdiction. The Court held that the Act doesn’t alter the general approach to be taken when the parties agree to a forum selection clause.

The parties had agreed by contract to be governed exclusively by the laws of Quebec. Section 3(c) of the Act contains the only reference in the Act to forum selection clauses, but this deals only with the situation where the parties have agreed that British Columbia will be the forum. The court held that the Act does not alter the general approach to be taken when the parties agree to a forum selection clause. If the court has or can assume jurisdiction, it should decline jurisdiction if there is a forum selection clause or if there is a determination of forum non conveniens. The existence of a forum selection clause can be sufficient reason for a court to decline jurisdiction, and it is not simply a factor to consider in making a determination under s. 11. In this case, the forum selection clause was enforced and the appeal dismissed.

June 2, 2011
Link to Decision

Fidelia Ho

Bozzer v. Canada, 2011 FCA 186

In Bozzer v. Canada, the Federal Court of Appeal considered the proper interpretation of section 220(3.1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) This section allows the Minister to waive or cancel any or all of the penalties or interest payable by a taxpayer under the Act in respect of that taxation year, subject to a ten year limitation clause. The appellant Mr. Bozzer applied to waive the interest on his outstanding 1989 and 1990 taxes in 2005, which the Minister refused as the application was more than ten years after the assessment year. The respondent Minister argued that the ten year limitation clause starts with the year of assessment. Mr. Bozzer argued that section 220(3.1) allows the Minister to waive or cancel any interest that accrued in the ten years preceding the application for relief.

The court held that Mr. Bozzer’s interpretation was proper for several reasons. First, the section in question was added as part of a fairness package intended on helping taxpayers who, through no fault of their own, could not comply with the statutory requirements for income tax purposes or resolve other issues. The Minister’s interpretations could be harsh in a few rare scenarios, such as in the case of grievous accident. Second, prior to the legislative amendment, the relevant section did not have a ten year limitation clause. As the amendment restricts the taxpayer’s rights, it is incumbent on Parliament to be clear in its language as to its intention and any ambiguity should be resolved in favour of the taxpayer. Lastly, Parliament was aware and able to draft a section that would suit the Minister’s interpretation strictly, but did not. The arguments put forward by the respondent Minister, referring to the Technical Notes and Voluntary Disclosures program were not accepted by the court.

June 2, 2011
Link to Decision

Mary Phan
*

Nadeau Poultry Farm Limited v. Groupe Westco Inc., 2011 FCA 188

In this case, the Federal Court of Appeal clarified the legal approach to determining the existence of a "refusal to deal" under section 75 of the Competition Act, RSC 1985, c C-34.

 In New Brunswick and other provinces, chickens are produced under a system of supply management, and marketing boards establish both the production quota for each province and a minimum price that producers in the province may accept when selling chickens. Inter-provincial trade in chickens is permitted, but marketing boards may intervene to prevent such trade. Deferring to the Competition Tribunal’s findings of facts and upholding its analytical approach, the Court of Appeal held that the appellant had not established that: 1) live chickens (the product) were in inadequate supply because of insufficient competition; 2) live chickens are in ample supply; and 3) the refusal to deal is having or is likely to have an adverse effect on competition in a market.

 On the conclusion that the supply management system precluded an ample supply, the Court restated the test for “ample supply” as: “a product is in ample supply when producers of that product have the capacity to increase production in a timely way to meet increases in demand for the product.” For the adverse impact on competition in a market, the Court rejected the appellant’s argument that this element could relate to the same “relevant market” that was considered in the first two elements of section 75 (here, the upstream market for live chickens), holding that it would be redundant to require evidence of distortion in a market already marked by insufficient competition and that this final element must relate to an adverse impact on competition in a different market (here, the downstream market for processed chickens).

June 2, 2011
Link to Decision

Grant Bishop
*