The Court of Appeal for Ontario considered whether Ontario is the appropriate jurisdiction to hear a multijurisdictional defamation case. It identified two factors that should not be considered at the jurisdictional stage.
The defendants published an allegedly defamatory book review about the plaintiff’s book. The author of the book review is a resident of Australia while the Association responsible for its publication is a resident of the United States. The plaintiff book author is an Ontario resident. The plaintiff alleges to have suffered damage in reduced sales and difficulty securing an academic position. Of the 3528 reviews sold, only 81 were sold in Ontario. The respondents brought a motion for an order to set aside service ex juris or, in the alternative, to stay the action on the basis that there is no real and substantial connection between the subject matter of the proceeding and Ontario, or that Ontario is not a convenient forum for hearing the proceeding. The motion judge granted the motion for a stay of the action in Ontario holding that Ontario cannot assume jurisdiction or alternatively, that Ontario is not a convenient forum.
The plaintiff appealed. The Court of Appeal applied the new test from Van Breda. In a libel claim, the tort is committed where publication takes place. This is the place of communication to the third person, where the defamatory words are read, heard, or downloaded. Under the Van Breda analysis, the commission of a tort in Ontario is a recognized presumptive connecting factor that prima facie entitles the plaintiff to bring an action in Ontario.
The court identified two factors that should not be considered at the jurisdictional stage of an action for defamation. First, there is no requirement to show that the distribution in Ontario is more than minimal. Second, the court should not require evidence of the damage to the plaintiff’s reputation; it should only consider the reasonable foreseeability of harm to the plaintiff’s reputation. Both of these factors should be considered when assessing the merits of the defamation claim.
The court set aside the stay order and substituted an order that Ontario has jurisdiction over the plaintiff’s action.
February 28, 2011
Link to Decision
Julia Wilkes
*
Monday, February 28, 2011
Ault v. Canada (Attorney General), 2011 ONCA 147
The Court of Appeal for Ontario considered the liability of a former employer/pension plan administrator and the consulting actuary/new employer in a failed public to private pension transfer which was disallowed by the Canada Revenue Agency ("CRA").
The plaintiffs were former public employees who accepted a deal crafted by Mr. Sylvain Parent, an actuary and principal of Welton Parent Inc. and Loba, and the federal government specifically the Treasury Secretariat Board ("TBS"). The plaintiffs were told that if they resigned from their federal employment, their public pensions could be transferred to private ones by means of a reciprocal transfer agreement. TBS communicated its concern about whether the plan complied with tax laws to the CRA. The CRA sent letters to TBS and Welton Parent/Loba which set out the risks that the money from the federal pension would not be transferred to the Loba Plan. Eventually, the CRA disallowed the Loba Plan. The plaintiffs sued their former employer for the difference between the benefits they would have received had they stayed in the public service until retirement and what they did receive under the failed scheme. TBS added Mr. Parent, Loba, and Welton Parent as third parties.
At trial, the judge held the government liable in negligent misrepresentation and the Loba Parties liable in negligent misrepresentation and for breach of fiduciary duty. The judge held that the fiduciary duty came into existence only after the plaintiffs became Loba Plan members.
TBS appealed on a number of grounds including that the trial judge erred in finding that TBS owed the plaintiffs a duty of care. TBS submitted that there is no established duty of care at common law for an employer to provide information about the viability of a prospective new employer’s pension plan. The court held that the plaintiffs’ “longstanding and current status as employees” in the federal public service grounds the duty of care – not their potential new employment with a different employer. TBS created an apparatus to convert pensions to approved employers and had a duty to the plaintiffs when it held out the Loba Plan as meeting the approval requirements. Additionally, it is well established that a pension plan administrator owes a duty of care to the members of the pension plan. TBS owed a duty of care and was held liable for failing to disclose its concern about the tax legitimacy of the proposed scheme.
The court agreed with TBS that the fiduciary duty owed by the actuary to the plaintiffs came into existence earlier than was determined by the trial judge. On all of the evidence, it was clear that the elements of a fiduciary relationship including trust, reliance, vulnerability, and confidence were present when the plaintiffs first consulted the actuary. The breach of fiduciary duty occurred before they became plan members. This conclusion was relevant to the court’s reapportionment of damages as between the defendants.
February 28, 2011
Link to Decision
Julia Wilkes
*
The plaintiffs were former public employees who accepted a deal crafted by Mr. Sylvain Parent, an actuary and principal of Welton Parent Inc. and Loba, and the federal government specifically the Treasury Secretariat Board ("TBS"). The plaintiffs were told that if they resigned from their federal employment, their public pensions could be transferred to private ones by means of a reciprocal transfer agreement. TBS communicated its concern about whether the plan complied with tax laws to the CRA. The CRA sent letters to TBS and Welton Parent/Loba which set out the risks that the money from the federal pension would not be transferred to the Loba Plan. Eventually, the CRA disallowed the Loba Plan. The plaintiffs sued their former employer for the difference between the benefits they would have received had they stayed in the public service until retirement and what they did receive under the failed scheme. TBS added Mr. Parent, Loba, and Welton Parent as third parties.
At trial, the judge held the government liable in negligent misrepresentation and the Loba Parties liable in negligent misrepresentation and for breach of fiduciary duty. The judge held that the fiduciary duty came into existence only after the plaintiffs became Loba Plan members.
TBS appealed on a number of grounds including that the trial judge erred in finding that TBS owed the plaintiffs a duty of care. TBS submitted that there is no established duty of care at common law for an employer to provide information about the viability of a prospective new employer’s pension plan. The court held that the plaintiffs’ “longstanding and current status as employees” in the federal public service grounds the duty of care – not their potential new employment with a different employer. TBS created an apparatus to convert pensions to approved employers and had a duty to the plaintiffs when it held out the Loba Plan as meeting the approval requirements. Additionally, it is well established that a pension plan administrator owes a duty of care to the members of the pension plan. TBS owed a duty of care and was held liable for failing to disclose its concern about the tax legitimacy of the proposed scheme.
The court agreed with TBS that the fiduciary duty owed by the actuary to the plaintiffs came into existence earlier than was determined by the trial judge. On all of the evidence, it was clear that the elements of a fiduciary relationship including trust, reliance, vulnerability, and confidence were present when the plaintiffs first consulted the actuary. The breach of fiduciary duty occurred before they became plan members. This conclusion was relevant to the court’s reapportionment of damages as between the defendants.
February 28, 2011
Link to Decision
Julia Wilkes
*
Canadian Radio-television and Telecommunications Commission's Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 (Re), 2011 FCA 64
The Federal Court of Appeal held that The Canadian Radio-Television and Telecommunications Commission (the “Commission”) has the statutory power to establish a “value for signal” regime in Canada. Under this regime, local television stations will have the option to privately negotiate with cable television providers (referred to as “broadcast distribution undertakings” or “BDUs”) for the right to distribute the programming broadcast by those local television stations.
Sharlow J.A. first held that both the Broadcasting Act and the Copyright Act are part of “Canadian cultural policy.” Section 21(1) of the Copyright Act gives the local television stations a copyright in the signal it broadcasts. However, due to the operation of s.31(2) of the Copyright Act, retransmission does not infringe s.21(1) so long as the five conditions set out in ss.31(2)(a) - (e) are met. Importantly, s.31(2)(b) requires that the retransmission be lawful under the Broadcasting Act. Accordingly, Sharlow J.A. held that by making the BDUs’ s.31(2) retransmission rights subject to s.31(2)(b), “Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights.” As such, the Commission has the power to adopt a regulation or a licensing condition that would oblige a BDU to pay a local television station for retransmission rights. It is irrelevant that this is characterized as a royalty. Further, the rejection of past amendment proposals that would grant television stations a statutory right to a retransmission fee under the Copyright Act are also irrelevant. Finally, Sharlow J.A. was not persuaded that the proposed regime would undermine Canada’s position in relation to recent 2001 World Intellectual Property Committee on Copyright and Related Rights proceedings.
In Nadon J.A.’s dissenting opinion, the creation of a value for signal regime would be ultra vires the Commission because it would conflict with s.31(2)(d) of the Copyright Act, which clearly expresses Parliament’s intention that royalties be paid for the retransmission of distant, not local, signals. From the fact that s.31(2)(d) imposes the payment of a royalty on distant signals, but not local signals, Nadon J.A. inferred that Parliament intended local and distant signals to be treated differently. One aspect of this is that royalties can only be imposed on those retransmitting distant signals. This is a “clear limit” on the Commission’s power to impose conditions under the Broadcasting Act. Nadon J.A. disagreed with Sharlow J.A. insofar as s.31(2)(b) shows that Parliament has ranked Canada’s broadcasting policy ahead of its copyright policy. In his view, s.31(2)(b) and (d) apply with equal force. Sharlow J.A.’s interpretation is erroneous as in effect it holds that a royalty cannot be charged for the retransmission of local signals, unless the Commission decides otherwise. Nadon J.A. also disagreed with Sharlow J.A. insofar as she holds that s.31(2)(b) is an expression of broadcasting policy, whereas s. 31(2)(d) is an expression of copyright policy. In his view the value for signal regime is functionally analogous to the regulation of tariffs under s.31(2)(d) and accordingly is ultra vires. The Commission cannot create a tariff that, “Parliament has, in effect, forbidden.”
February 28, 2011
Link to Decision
Steve Holinski
*
Sharlow J.A. first held that both the Broadcasting Act and the Copyright Act are part of “Canadian cultural policy.” Section 21(1) of the Copyright Act gives the local television stations a copyright in the signal it broadcasts. However, due to the operation of s.31(2) of the Copyright Act, retransmission does not infringe s.21(1) so long as the five conditions set out in ss.31(2)(a) - (e) are met. Importantly, s.31(2)(b) requires that the retransmission be lawful under the Broadcasting Act. Accordingly, Sharlow J.A. held that by making the BDUs’ s.31(2) retransmission rights subject to s.31(2)(b), “Parliament has ranked the objectives of Canada’s broadcasting policy ahead of those statutory retransmission rights.” As such, the Commission has the power to adopt a regulation or a licensing condition that would oblige a BDU to pay a local television station for retransmission rights. It is irrelevant that this is characterized as a royalty. Further, the rejection of past amendment proposals that would grant television stations a statutory right to a retransmission fee under the Copyright Act are also irrelevant. Finally, Sharlow J.A. was not persuaded that the proposed regime would undermine Canada’s position in relation to recent 2001 World Intellectual Property Committee on Copyright and Related Rights proceedings.
In Nadon J.A.’s dissenting opinion, the creation of a value for signal regime would be ultra vires the Commission because it would conflict with s.31(2)(d) of the Copyright Act, which clearly expresses Parliament’s intention that royalties be paid for the retransmission of distant, not local, signals. From the fact that s.31(2)(d) imposes the payment of a royalty on distant signals, but not local signals, Nadon J.A. inferred that Parliament intended local and distant signals to be treated differently. One aspect of this is that royalties can only be imposed on those retransmitting distant signals. This is a “clear limit” on the Commission’s power to impose conditions under the Broadcasting Act. Nadon J.A. disagreed with Sharlow J.A. insofar as s.31(2)(b) shows that Parliament has ranked Canada’s broadcasting policy ahead of its copyright policy. In his view, s.31(2)(b) and (d) apply with equal force. Sharlow J.A.’s interpretation is erroneous as in effect it holds that a royalty cannot be charged for the retransmission of local signals, unless the Commission decides otherwise. Nadon J.A. also disagreed with Sharlow J.A. insofar as she holds that s.31(2)(b) is an expression of broadcasting policy, whereas s. 31(2)(d) is an expression of copyright policy. In his view the value for signal regime is functionally analogous to the regulation of tariffs under s.31(2)(d) and accordingly is ultra vires. The Commission cannot create a tariff that, “Parliament has, in effect, forbidden.”
February 28, 2011
Link to Decision
Steve Holinski
*
Friday, February 25, 2011
Vancouver International Airport Authority v. British Columbia (Attorney General), 2011 BCCA 89
The British Columbia Court of Appeal considered whether the province can enact legislation which creates a charge upon the Vancouver International Airport Authority’s leasehold interest in the federally owned airport lands. Specifically, the court considered whether the doctrine of interjurisdictional immunity renders invalid provisions of the provincial Builders Lien Act in relation to the federal crown lands housing Vancouver International Airport.
The federal crown owns the land on which the Vancouver Airport was built. The Vancouver International Airport Authority (the “Authority”) leased the lands with a mandate to operate the airport. The lease purports to contract out of the provincial Builders Lien Act (the “Act”), but s. 42 of the Act expressly prohibits such contracting out. The Authority entered into two contracts for improvements to the Airport: an expansion of the taxiways for aircrafts and an expansion of Pier C, a holding area for passengers waiting to board an aircraft. A number of suppliers registered liens against the property. The Authority requested that these liens be removed in accordance with the lease contract, but the Registrar of the Land Titles Office refused citing s. 42 of the Act.
The Authority sought judicial review of this decision. It requested an order directing the Registrar to remove all of the liens and a declaration that the impugned provisions were constitutionally inapplicable under the doctrine of interjurisdictional immunity. The chambers judge held that the impugned provisions of the Act must be “read down” to the extent they purport to apply to the leasehold interest of the Authority. The judge declared that all builders liens filed against the leasehold interest of the Authority are invalid and of no force and effect.
The provincial Attorney General appealed. The Court of Appeal upheld the lower court decision. However, it noted that the chambers judge erred by employing the incorrect “affects” test for the application of interjurisdictional immunity to the impugned provisions. The appellate court considered the correct test set out by the Supreme Court of Canada in the companion decisions of Canada Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 [CWB], and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86) [Lafarge]. The test requires the impugned provisions “impair” (not merely “affect”) the core competence of a matter that falls within the exclusive jurisdiction of the federal Parliament and/or a vital, essential or integral part of a federal undertaking.
The provincial AG disputed that the impugned provisions “impaired” the core competences. The court considered Greater Toronto Airports Authority v. Mississauga (City) (2000), 192 D.L.R. (4th) 443, 50 O.R. (3d) 641 (Ont. C.A.) which concerned the application of the provincial building code to new construction at Pearson Airport. This case was decided under the former “affects” test. The court held that the provincial code did not apply to the federal undertaking.
The court went on to consider whether the impugned provisions “impair” the exclusive jurisdiction of the federal government in aeronautics and the federal undertaking of the operation of an international airport. Despite the stricter test, the Court reached the same conclusion as the court in Mississauga. Here, the court held that the construction of taxiways and a holding area for travelers is clearly a “vital part” of the Authority’s development, management and maintenance of the Airport. A lien against the airport lands gives the chargor the ability to impede aircrafts from landing or taking off. Clearly, this is a vital and essential part of the airport’s operation and would impair the essential operations of the airport. The in rem nature of the lien creates the risk of impairment by limiting the ability of the Authority to obtain financing in order to meet its objectives. The sale of the Authority’s leasehold interest to enforce a registered lien would terminate its mandate to operate the Airport.
Note: counsel for the Authority made a general submission that provincial legislation cannot restrict the right of lessees of Federal Crown land or conflict with the terms of a lease from the Federal Crown, particularly where the activities of the lessee fall within the exclusive jurisdiction of the federal Parliament. The court did not comment on this submission because it was not raised before the trial judge. However, it is likely that this argument will be tested in the future.
February 25, 2011
Link to Decision
Julia Wilkes
*
The federal crown owns the land on which the Vancouver Airport was built. The Vancouver International Airport Authority (the “Authority”) leased the lands with a mandate to operate the airport. The lease purports to contract out of the provincial Builders Lien Act (the “Act”), but s. 42 of the Act expressly prohibits such contracting out. The Authority entered into two contracts for improvements to the Airport: an expansion of the taxiways for aircrafts and an expansion of Pier C, a holding area for passengers waiting to board an aircraft. A number of suppliers registered liens against the property. The Authority requested that these liens be removed in accordance with the lease contract, but the Registrar of the Land Titles Office refused citing s. 42 of the Act.
The Authority sought judicial review of this decision. It requested an order directing the Registrar to remove all of the liens and a declaration that the impugned provisions were constitutionally inapplicable under the doctrine of interjurisdictional immunity. The chambers judge held that the impugned provisions of the Act must be “read down” to the extent they purport to apply to the leasehold interest of the Authority. The judge declared that all builders liens filed against the leasehold interest of the Authority are invalid and of no force and effect.
The provincial Attorney General appealed. The Court of Appeal upheld the lower court decision. However, it noted that the chambers judge erred by employing the incorrect “affects” test for the application of interjurisdictional immunity to the impugned provisions. The appellate court considered the correct test set out by the Supreme Court of Canada in the companion decisions of Canada Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 [CWB], and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86) [Lafarge]. The test requires the impugned provisions “impair” (not merely “affect”) the core competence of a matter that falls within the exclusive jurisdiction of the federal Parliament and/or a vital, essential or integral part of a federal undertaking.
The provincial AG disputed that the impugned provisions “impaired” the core competences. The court considered Greater Toronto Airports Authority v. Mississauga (City) (2000), 192 D.L.R. (4th) 443, 50 O.R. (3d) 641 (Ont. C.A.) which concerned the application of the provincial building code to new construction at Pearson Airport. This case was decided under the former “affects” test. The court held that the provincial code did not apply to the federal undertaking.
The court went on to consider whether the impugned provisions “impair” the exclusive jurisdiction of the federal government in aeronautics and the federal undertaking of the operation of an international airport. Despite the stricter test, the Court reached the same conclusion as the court in Mississauga. Here, the court held that the construction of taxiways and a holding area for travelers is clearly a “vital part” of the Authority’s development, management and maintenance of the Airport. A lien against the airport lands gives the chargor the ability to impede aircrafts from landing or taking off. Clearly, this is a vital and essential part of the airport’s operation and would impair the essential operations of the airport. The in rem nature of the lien creates the risk of impairment by limiting the ability of the Authority to obtain financing in order to meet its objectives. The sale of the Authority’s leasehold interest to enforce a registered lien would terminate its mandate to operate the Airport.
Note: counsel for the Authority made a general submission that provincial legislation cannot restrict the right of lessees of Federal Crown land or conflict with the terms of a lease from the Federal Crown, particularly where the activities of the lessee fall within the exclusive jurisdiction of the federal Parliament. The court did not comment on this submission because it was not raised before the trial judge. However, it is likely that this argument will be tested in the future.
February 25, 2011
Link to Decision
Julia Wilkes
*
Thursday, February 24, 2011
R. v. Nedelcu, 2011 ONCA 143
This appeal addressed the issue of whether an individual’s evidence on his examination for discovery in a related civil action can be used in cross-examination at his criminal trial. The appellant took one of his co-workers for a ride on his motorcycle. The motorcycle hit a curb and both men were ejected. The appellant suffered only minor injuries, but his co-worker, who had not been wearing a helmet, suffered permanent brain damage. In examination for discovery in a civil action brought against him by the co-worker’s family, the appellant indicated that he had no memory of events from prior to the motorcycle ride to the following day when he woke up in the hospital. However, at his subsequent criminal trial, he gave detailed testimony regarding the motorcycle ride and the accident. The trial judge ruled that his discovery evidence from the civil action was admissible for the purpose of impeaching his credibility. He was convicted of dangerous driving causing bodily harm.
The Court of Appeal unanimously allowed the appeal, finding that it turned on the Supreme Court of Canada’s holding in R. v. Henry that prior compelled testimony was, under both s. 13 of the Charter and s. 5(2) of the Canada Evidence Act, inadmissible against the accused in further proceedings, with the exception of a prosecution for perjury, even for the limited purpose of challenging credibility. It rejected the argument by the Crown that the appellant’s evidence on examination for discovery was not compelled because he could have sought either an adjournment of the discovery or a stay of the civil action until the criminal trial had concluded. It noted that these are only granted in exceptional circumstances, none of which were present here.
The Court also held that the trial judge erred in finding that the appellant was not entitled to the protection against self-incrimination because his testimony was given in the context of a civil action which was not for the purposes of assisting the Crown. The trial judge had concluded that for this reason, the quid pro quo underlying the protection against self-incrimination was not present. In finding that this protection should not be so narrowly restricted, the Court noted that there is nothing in the s. 13 jurisprudence which suggests that it is only engaged where a witness’s prior testimony assisted the Crown, and, rather, that the section refers to “[a] witness who testifies in any proceedings”. The Court also disagreed with the trial judge’s characterization of the appellant’s giving of evidence in the civil action as furthering his own private interest, noting that he was the defendant in that action.
The Court distinguished this situation from the “implied undertaking rule” at issue in Juman v. Doucette, [2008] 1 S.C.R. 157. In that case, the plaintiffs in a tort action, a child who had suffered a seizure while at a daycare and her parents, were permitted to provide the transcript of the defendant childcare worker’s evidence given on examination for discovery to the police, for the purposes of a criminal investigation against her. The Court noted that there was no Charter issue at stake in those circumstances, as there was a distinction between the use of the evidence for investigative purposes and its use in a criminal trial if charges had been subsequently laid. They found it had no relevance to the appeal. The Court set aside the conviction and ordered a new trial.
February 24, 2011
Link to Decision
Julia Wilkes
The Court of Appeal unanimously allowed the appeal, finding that it turned on the Supreme Court of Canada’s holding in R. v. Henry that prior compelled testimony was, under both s. 13 of the Charter and s. 5(2) of the Canada Evidence Act, inadmissible against the accused in further proceedings, with the exception of a prosecution for perjury, even for the limited purpose of challenging credibility. It rejected the argument by the Crown that the appellant’s evidence on examination for discovery was not compelled because he could have sought either an adjournment of the discovery or a stay of the civil action until the criminal trial had concluded. It noted that these are only granted in exceptional circumstances, none of which were present here.
The Court also held that the trial judge erred in finding that the appellant was not entitled to the protection against self-incrimination because his testimony was given in the context of a civil action which was not for the purposes of assisting the Crown. The trial judge had concluded that for this reason, the quid pro quo underlying the protection against self-incrimination was not present. In finding that this protection should not be so narrowly restricted, the Court noted that there is nothing in the s. 13 jurisprudence which suggests that it is only engaged where a witness’s prior testimony assisted the Crown, and, rather, that the section refers to “[a] witness who testifies in any proceedings”. The Court also disagreed with the trial judge’s characterization of the appellant’s giving of evidence in the civil action as furthering his own private interest, noting that he was the defendant in that action.
The Court distinguished this situation from the “implied undertaking rule” at issue in Juman v. Doucette, [2008] 1 S.C.R. 157. In that case, the plaintiffs in a tort action, a child who had suffered a seizure while at a daycare and her parents, were permitted to provide the transcript of the defendant childcare worker’s evidence given on examination for discovery to the police, for the purposes of a criminal investigation against her. The Court noted that there was no Charter issue at stake in those circumstances, as there was a distinction between the use of the evidence for investigative purposes and its use in a criminal trial if charges had been subsequently laid. They found it had no relevance to the appeal. The Court set aside the conviction and ordered a new trial.
February 24, 2011
Link to Decision
Julia Wilkes
R. v. Craig, 2011 ONCA 142
This appeal addressed the relevance on sentencing in cases of spousal homicide of the form of abuse inflicted by the victim. The appellant was charged with the first degree murder of her husband. She admitted stabbing him to death while he was passed out from drinking but argued that she did not have the mens rea for murder as she had killed him in self-defence. There was a great deal of evidence that the she had been in an abusive relationship with the deceased for many years. He had abused her psychologically, verbally, emotionally, and, on a few occasions, physically, and his actions had left the couple and their young son in financial ruin. There was also expert evidence that she suffered from serious mental disorders at the time of the killing.
While the trial judge appreciated the nature of the relationship, he did not believe there was an air of reality to the claim that the appellant apprehended death or grievous bodily harm when she stabbed her husband, or that she believed she had to stab him to preserve herself from such an outcome. He thus declined to put self-defence to the jury. The appellant was found not guilty of murder, but was convicted of manslaughter, and sentenced to eight years’ imprisonment. The Court of Appeal dismissed the appellant’s conviction appeal, finding that what the appellant feared was not death or grievous bodily harm, but having to live with the deceased in the “isolated, destitute, loveless and seemingly hopeless environment [he] had created for them”. However, it allowed her sentencing appeal, concluding that the trial judge erred in two important respects. Firstly, in assessing the mitigating significance of the abuse suffered by the appellant at the hands of the deceased, he focused on the nature of the abuse rather than its impact on the appellant. While he accepted the relevance of the abuse for sentencing, because there had been no serious physical abuse or sexual abuse, he declined to attribute to it the dramatic mitigating effect it has received in other cases of long-term abuse.
The Court of Appeal found this to be in error. It noted that while it may be easier to reach the conclusion that the moral culpability of an abused individual is substantially reduced where that individual has been subjected to abuse with a significant physical component, abuse that is not primarily of a physical nature may nonetheless impact the individual to such an extent that he or she feels equally trapped in the relationship and mentally unable to cope with, or escape from, it. In this case, the Court found that the deceased’s psychological, verbal and emotional abuse combined with intimidation and the realistic fear of physical violence had an overwhelming impact on the appellant, and concluded that the trial judge erred in diminishing its mitigating impact because it did not involve significant physical abuse or sexual abuse.
On the basis of this error, as well as erroneous characterization by the trial judge of the incident as a “near murder”, the Court of Appeal reduced the appellant’s sentence to time served, which was approximately three years.
February 24, 2011
Link to Decision
Julia Wilkes
While the trial judge appreciated the nature of the relationship, he did not believe there was an air of reality to the claim that the appellant apprehended death or grievous bodily harm when she stabbed her husband, or that she believed she had to stab him to preserve herself from such an outcome. He thus declined to put self-defence to the jury. The appellant was found not guilty of murder, but was convicted of manslaughter, and sentenced to eight years’ imprisonment. The Court of Appeal dismissed the appellant’s conviction appeal, finding that what the appellant feared was not death or grievous bodily harm, but having to live with the deceased in the “isolated, destitute, loveless and seemingly hopeless environment [he] had created for them”. However, it allowed her sentencing appeal, concluding that the trial judge erred in two important respects. Firstly, in assessing the mitigating significance of the abuse suffered by the appellant at the hands of the deceased, he focused on the nature of the abuse rather than its impact on the appellant. While he accepted the relevance of the abuse for sentencing, because there had been no serious physical abuse or sexual abuse, he declined to attribute to it the dramatic mitigating effect it has received in other cases of long-term abuse.
The Court of Appeal found this to be in error. It noted that while it may be easier to reach the conclusion that the moral culpability of an abused individual is substantially reduced where that individual has been subjected to abuse with a significant physical component, abuse that is not primarily of a physical nature may nonetheless impact the individual to such an extent that he or she feels equally trapped in the relationship and mentally unable to cope with, or escape from, it. In this case, the Court found that the deceased’s psychological, verbal and emotional abuse combined with intimidation and the realistic fear of physical violence had an overwhelming impact on the appellant, and concluded that the trial judge erred in diminishing its mitigating impact because it did not involve significant physical abuse or sexual abuse.
On the basis of this error, as well as erroneous characterization by the trial judge of the incident as a “near murder”, the Court of Appeal reduced the appellant’s sentence to time served, which was approximately three years.
February 24, 2011
Link to Decision
Julia Wilkes
Tuesday, February 22, 2011
R. v. Graham, 2011 ONCA 138
The issue on this appeal was whether a parole suspension due to failure to comply with conditions of parole could be challenged by way of habeas corpus where automatic review of the suspension is available under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). The appellant had been sentenced to 26 months’ imprisonment for various drug offences. Three weeks after being released into the community on parole, his parole was suspended by his parole officer’s supervisor due to a lack of compliance with certain financial disclosure obligations, failure to provide information on his associations, and his suspected involvement in drug-related conduct. Although the suspension was under automatic review pursuant to the National Parole Board (“NPB”) review process under the CCRA, the appellant also challenged it by way of habeas corpus. The Superior Court justice hearing the application declined jurisdiction on the basis that the CCRA constituted a “complete, comprehensive and expert procedure” for review of the suspension. Subsequently, the NPB affirmed the suspension and revoked the appellant’s parole, and its Appeal Division dismissed his appeal.
A unanimous Court of Appeal dismissed the appellant’s appeal. Although noting that superior courts should be reluctant to decline jurisdiction to hear a habeas corpus application, the Court recognized that the Supreme Court of Canada had concluded it was appropriate to do so in instances where “there is in place a complete, comprehensive and expert procedure for review of an administrative decision”. The Court concluded that the NPB process for administering review of parole was such a procedure. It noted that following the recommitment of an offender after a breach of parole, s. 135 of the CCRA requires that the parole officer supervisor forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years, and within 30 days in any other case). Pursuant to that same section, the NPB must then review the case and, within 90 days, either cancel the suspension or terminate or revoke the parole.
The Court declined to follow a decision of the British Columbia Supreme Court in which it was held that there was an impermissible gap in the CCRA procedure because an inmate could be imprisoned for up to 30 days before the suspension was required to be referred to the NPB, and the NPB did not specifically have the power to review the decision for errors of law nor was it directed to inquire specifically into the merits of the parole officer supervisor’s decision. The Court held that the possibility of detention without review for up to 14 or 30 days restricted the offender’s liberty in a manner that would otherwise entitle him or her to challenge the legality of this detention by way of habeas corpus, but that this was not sufficient to take the CCRA procedure outside a “complete, comprehensive and expert procedure for review”. It also noted that, as a practical matter, a habeas corpus application would be unlikely to be determined more quickly than this time period.
The Court also noted that s. 135 of the CCRA should not be read so narrowly as to preclude the considerations raised by the appellant, and stated that the NPB will “undoubtedly” take into account the substantive reasons for the suspension as part of the overall review. It also noted that there are wide-ranging statutory grounds of appeal to the Appeal Division of the NPB, including error of law, and that the decision of the Appeal Division is reviewable by the Federal Court.
February 22, 2011
Link to Decision
Julia Wilkes
A unanimous Court of Appeal dismissed the appellant’s appeal. Although noting that superior courts should be reluctant to decline jurisdiction to hear a habeas corpus application, the Court recognized that the Supreme Court of Canada had concluded it was appropriate to do so in instances where “there is in place a complete, comprehensive and expert procedure for review of an administrative decision”. The Court concluded that the NPB process for administering review of parole was such a procedure. It noted that following the recommitment of an offender after a breach of parole, s. 135 of the CCRA requires that the parole officer supervisor forthwith review the offender’s case and either cancel the suspension or refer the matter to the NPB for review within a tight statutorily defined time frame (within 14 days if the offender is serving a sentence of less than two years, and within 30 days in any other case). Pursuant to that same section, the NPB must then review the case and, within 90 days, either cancel the suspension or terminate or revoke the parole.
The Court declined to follow a decision of the British Columbia Supreme Court in which it was held that there was an impermissible gap in the CCRA procedure because an inmate could be imprisoned for up to 30 days before the suspension was required to be referred to the NPB, and the NPB did not specifically have the power to review the decision for errors of law nor was it directed to inquire specifically into the merits of the parole officer supervisor’s decision. The Court held that the possibility of detention without review for up to 14 or 30 days restricted the offender’s liberty in a manner that would otherwise entitle him or her to challenge the legality of this detention by way of habeas corpus, but that this was not sufficient to take the CCRA procedure outside a “complete, comprehensive and expert procedure for review”. It also noted that, as a practical matter, a habeas corpus application would be unlikely to be determined more quickly than this time period.
The Court also noted that s. 135 of the CCRA should not be read so narrowly as to preclude the considerations raised by the appellant, and stated that the NPB will “undoubtedly” take into account the substantive reasons for the suspension as part of the overall review. It also noted that there are wide-ranging statutory grounds of appeal to the Appeal Division of the NPB, including error of law, and that the decision of the Appeal Division is reviewable by the Federal Court.
February 22, 2011
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Julia Wilkes
Monday, February 21, 2011
R. v. S.L.C., 2011 NLCA 19
The issue on this appeal was whether an acquittal on a charge of sexual assault and a conviction on a charge of sexual exploitation on the same factual allegations are necessarily inconsistent. The appellant was charged with sexual assault of the developmentally delayed daughter of his common law spouse when she was 13 and 14 years old. He was also charged with sexual exploitation (being in a position of trust or authority towards the complainant and touching her for a sexual purpose) pursuant to s. 153(1)(a) of the Criminal Code. Her evidence suggested that the assaults included intercourse and oral sex, and there was no suggestion that different types of sexual activities occurred at different times throughout the relevant time period. She was clear that she did not consent. Although the appellant denied that these incidents occurred, it was not disputed that if they had occurred, the last incident would have taken place after the complainant’s fourteenth birthday. This was important for several reasons. First, as “young person” was defined in the offence of sexual exploitation as an individual “fourteen years of age or more but under the age of eighteen”, this offence, as a matter of law, could not have been committed against the complainant before she turned 14. Second, at the time when the offence was alleged to have been committed, consent was not, as a matter of law, a defence to a charge of sexual assault where the victim was “under the age of fourteen years”. Consent was (and remains) not a defence to a charge of sexual exploitation.
The jury acquitted the appellant on the sexual assault charge (this was not appealed by the Crown), but initially could not reach a verdict on the sexual exploitation charge. However, after further deliberations, they found him guilty. The appellant appealed on the basis that the trial judge made several errors in his charge and that the verdicts were necessarily inconsistent because the evidence was such that it did not allow for segregation into discrete events that could support a conviction for one charge while allowing an acquittal on the other. He submitted that the trial judge should have withdrawn the count of sexual exploitation from the jury and directed that an acquittal be entered. The Crown conceded that the trial judge made several errors in his charge. He erroneously referred to the complainant as a “young person” throughout the entire time period covered by the indictment, even though she only fell within this definition after her fourteenth birthday. He also failed to explain that although consent could not be a defence to the incidents which occurred before the complainant’s fourteenth birthday, it could have been so with respect to those that occurred after this. He told the jury several times that consent was not an issue in the trial.
The Crown argued that the verdicts were not necessarily inconsistent because it was possible for the jury to have acquitted the appellant of sexual assault and convicted him of sexual exploitation if 1) touching for a sexual purpose occurred after the complainant’s fourteenth birthday; and 2) the touching was nevertheless consensual, thereby negativing any sexual assault but not negativing touching for a sexual purpose (for which consent was not a defence). However, given that the trial judge had instructed the jury that consent was not an issue in the trial, and had not drawn their attention to the significance of the complainant’s birthday, the Court felt it was not reasonable to assume that the jury reasoned in the manner suggested by the Crown. It thus concluded that, in the unusual circumstances of the case, the verdicts were inconsistent, and therefore unreasonable within s. 686(1)(a)(i) of the Code.
Despite this conclusion, however, the Court declined to enter an acquittal on the sexual exploitation charge. It was of the view that it was possible that a properly instructed jury could have convicted the appellant on the sexual exploitation charge. It thus ordered a new trial.
February 21, 2011
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Kathryn McGoldrick
The jury acquitted the appellant on the sexual assault charge (this was not appealed by the Crown), but initially could not reach a verdict on the sexual exploitation charge. However, after further deliberations, they found him guilty. The appellant appealed on the basis that the trial judge made several errors in his charge and that the verdicts were necessarily inconsistent because the evidence was such that it did not allow for segregation into discrete events that could support a conviction for one charge while allowing an acquittal on the other. He submitted that the trial judge should have withdrawn the count of sexual exploitation from the jury and directed that an acquittal be entered. The Crown conceded that the trial judge made several errors in his charge. He erroneously referred to the complainant as a “young person” throughout the entire time period covered by the indictment, even though she only fell within this definition after her fourteenth birthday. He also failed to explain that although consent could not be a defence to the incidents which occurred before the complainant’s fourteenth birthday, it could have been so with respect to those that occurred after this. He told the jury several times that consent was not an issue in the trial.
The Crown argued that the verdicts were not necessarily inconsistent because it was possible for the jury to have acquitted the appellant of sexual assault and convicted him of sexual exploitation if 1) touching for a sexual purpose occurred after the complainant’s fourteenth birthday; and 2) the touching was nevertheless consensual, thereby negativing any sexual assault but not negativing touching for a sexual purpose (for which consent was not a defence). However, given that the trial judge had instructed the jury that consent was not an issue in the trial, and had not drawn their attention to the significance of the complainant’s birthday, the Court felt it was not reasonable to assume that the jury reasoned in the manner suggested by the Crown. It thus concluded that, in the unusual circumstances of the case, the verdicts were inconsistent, and therefore unreasonable within s. 686(1)(a)(i) of the Code.
Despite this conclusion, however, the Court declined to enter an acquittal on the sexual exploitation charge. It was of the view that it was possible that a properly instructed jury could have convicted the appellant on the sexual exploitation charge. It thus ordered a new trial.
February 21, 2011
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Kathryn McGoldrick
Friday, February 18, 2011
Scheffelmeier v. Krassman, 2011 ABCA 64
The Alberta Court of Appeal considered whether a lack of timely financial disclosure should affect the granting of tracing of property under the Matrimonial Property Act.
After several years of marriage, the parties divorced. During the course of the marriage, Ms. Krassman inherited her deceased brother’s estate including a pension payout and a life insurance policy. Ms. Krassman did not make timely disclosure of the bank account statements into which these monies were deposited. Rather, she disclosed these statements at the commencement of trial. On division of assets, Ms. Krassman sought to have the pension and life insurance policy exempted from the matrimonial assets. She claimed that they could be traced to the purchase a new home. The trial judge did not create exemptions for these portions of the inheritance. Ms. Krassman appealed.
Under s. 7(2) of the Matrimonial Property Act, if property is acquired by a spouse by gift, inheritance, or before the marriage, it is exempt from distribution if it was kept separate from the matrimonial property. The party seeking exemption can employ tracing to meet its burden of establishing that the exempt property has not been commingled with joint matrimonial property but instead can still be characterized as exempt.
The majority of the court held that the lack of financial disclosure does not exclude the long-standing presumption that tracing can be inferred, implied, or presumed (Harrower v. Harrower (1989), 97 AR 141 (CA)). Mr. Scheffelmeier submitted that the inheritance was used to cover living expenses not to purchase an asset. However, the majority accepted Ms. Krassman’s evidence that she had lived off the interest of the assets (although it made a small deduction from the exemption based on the estimated living costs). The majority accepted that Ms. Krassman could not have purchased the new home without the use of the entire inheritance. Thus, the inheritance is traced to the new home and exemption was granted.
In dissent, Justice MacDonald held that the deliberate non-disclosure of relevant information prohibits a party from meeting the burden of proof in the circumstances. He did not dispute the idea that pointing to a lack of alternative funds that could have been used to acquire a property can satisfy the requirements of tracing. However, the dissent found that Ms. Krassman was not a credible witness and should not be entitled to the benefits of tracing because she did not comply with the timely disclosure obligations under the Matrimonial Property Act.
February 18, 2011
Link to Decision
Julia Wilkes
*
After several years of marriage, the parties divorced. During the course of the marriage, Ms. Krassman inherited her deceased brother’s estate including a pension payout and a life insurance policy. Ms. Krassman did not make timely disclosure of the bank account statements into which these monies were deposited. Rather, she disclosed these statements at the commencement of trial. On division of assets, Ms. Krassman sought to have the pension and life insurance policy exempted from the matrimonial assets. She claimed that they could be traced to the purchase a new home. The trial judge did not create exemptions for these portions of the inheritance. Ms. Krassman appealed.
Under s. 7(2) of the Matrimonial Property Act, if property is acquired by a spouse by gift, inheritance, or before the marriage, it is exempt from distribution if it was kept separate from the matrimonial property. The party seeking exemption can employ tracing to meet its burden of establishing that the exempt property has not been commingled with joint matrimonial property but instead can still be characterized as exempt.
The majority of the court held that the lack of financial disclosure does not exclude the long-standing presumption that tracing can be inferred, implied, or presumed (Harrower v. Harrower (1989), 97 AR 141 (CA)). Mr. Scheffelmeier submitted that the inheritance was used to cover living expenses not to purchase an asset. However, the majority accepted Ms. Krassman’s evidence that she had lived off the interest of the assets (although it made a small deduction from the exemption based on the estimated living costs). The majority accepted that Ms. Krassman could not have purchased the new home without the use of the entire inheritance. Thus, the inheritance is traced to the new home and exemption was granted.
In dissent, Justice MacDonald held that the deliberate non-disclosure of relevant information prohibits a party from meeting the burden of proof in the circumstances. He did not dispute the idea that pointing to a lack of alternative funds that could have been used to acquire a property can satisfy the requirements of tracing. However, the dissent found that Ms. Krassman was not a credible witness and should not be entitled to the benefits of tracing because she did not comply with the timely disclosure obligations under the Matrimonial Property Act.
February 18, 2011
Link to Decision
Julia Wilkes
*
Monday, February 7, 2011
Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49
The British Columbia Court of Appeal considered whether a judicial review application was premature where the tribunal determined it should not dismiss human rights complaint summarily but the tribunal had not yet considered the merits of the complaint.
The applicant complained that she was not reappointed as a Workers’ Compensation Appeals Tribunal ("WCAT") vice-chair based on her age. WCAT said that the decision was made based on two factors: a merit based review imposed by the statute and the tribunal’s needs. A WCAT employee explained the decision to the applicant. He told the applicant that WCAT would attempt to offer her short term work to allow her to reach pensionable age. In response to the applicant’s human rights complaint, WCAT applied to have the complaint dismissed without a hearing on the basis that it had no reasonable possibility of success. To withstand a summary dismissal, the applicant must establish that there is some evidence of discrimination. The Human Rights Tribunal ("HRT") relied on the applicant’s affidavit in which she said that the WCAT employee told her that the decision was made based on her age. It dismissed WCAT’s application.
WCAT sought judicial review of the HRT’s decision, and the chambers judge reversed the decision. She held that the judicial review application was not premature. The judge concluded that the HRT misread the evidence which led to a patently unreasonable decision. The applicant’s only “evidence” is the fact that she had understood the WCAT employee to have said that the decision was related to her age; however, it was clear that the statement was made in respect of a discussion about pension not as a justification for not reappointing her.
The applicant and the HRT appealed. The court held that the application for judicial review was not premature. Judicial review of a decision not to dismiss the complaint on a summary basis must be available to both parties. A judicial review after the tribunal hears the case on its merits would not be useful to the party seeking to dispose of the application summarily.
Note: The court also raised a concern not expressed by any of the parties. As a matter of course, the HRT as the decision maker should not be permitted to appeal. If the matter is remitted, there would be impartiality concerns and a reasonable apprehension of bias. As no party raised the issue, the court permitted the appeal to go forward but made clear that this is not a proper practice to be accepted by the courts.
February 7, 2011
Link to Decision
Julia Wilkes
*
The applicant complained that she was not reappointed as a Workers’ Compensation Appeals Tribunal ("WCAT") vice-chair based on her age. WCAT said that the decision was made based on two factors: a merit based review imposed by the statute and the tribunal’s needs. A WCAT employee explained the decision to the applicant. He told the applicant that WCAT would attempt to offer her short term work to allow her to reach pensionable age. In response to the applicant’s human rights complaint, WCAT applied to have the complaint dismissed without a hearing on the basis that it had no reasonable possibility of success. To withstand a summary dismissal, the applicant must establish that there is some evidence of discrimination. The Human Rights Tribunal ("HRT") relied on the applicant’s affidavit in which she said that the WCAT employee told her that the decision was made based on her age. It dismissed WCAT’s application.
WCAT sought judicial review of the HRT’s decision, and the chambers judge reversed the decision. She held that the judicial review application was not premature. The judge concluded that the HRT misread the evidence which led to a patently unreasonable decision. The applicant’s only “evidence” is the fact that she had understood the WCAT employee to have said that the decision was related to her age; however, it was clear that the statement was made in respect of a discussion about pension not as a justification for not reappointing her.
The applicant and the HRT appealed. The court held that the application for judicial review was not premature. Judicial review of a decision not to dismiss the complaint on a summary basis must be available to both parties. A judicial review after the tribunal hears the case on its merits would not be useful to the party seeking to dispose of the application summarily.
Note: The court also raised a concern not expressed by any of the parties. As a matter of course, the HRT as the decision maker should not be permitted to appeal. If the matter is remitted, there would be impartiality concerns and a reasonable apprehension of bias. As no party raised the issue, the court permitted the appeal to go forward but made clear that this is not a proper practice to be accepted by the courts.
February 7, 2011
Link to Decision
Julia Wilkes
*
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