R. v. Bingley, 2017 SCC 12 (Criminal law — Evidence — Expert evidence)
On appeal from a judgment of the Ontario Court of Appeal (2015 ONCA 439), affirming a decision of McLean J. (2014 ONSC 2432).
B was observed driving erratically, pulling into a parking lot and striking a car. The police arrived and noted signs of impairment. Therefore, the officer conducted a roadside screening device test for alcohol, which B passed. The officer then requested a roadside sobriety test conducted by a drug recognition expert (“DRE”)certified under the Criminal Code and the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations (“Regulations”). B failed the sobriety test, and was arrested for driving while drug impaired. He was taken to a police station where the DRE conducted a 12-step drug recognition evaluation. During the evaluation, B admitted that he had smoked cannabis and taken two alprazolam in the previous 12 hours. An urinalysis revealed the presence of cannabis, cocaine and alprazolam. B was acquitted at his first trial, but the acquittal was overturned and a new trial ordered. At the second trial, contrary to the first, the judge held that s. 254(3.1) of the Criminal Code does not allow for the automatic admissibility of the DRE’s evidence and that a voir dire is required at common law under R. v. Mohan,  2 S.C.R. 9. On that voir dire, however, the judge determined that the DRE’s evidence was inadmissible as expert or lay opinion evidence and therefore, acquitted B. The summary conviction appeal judge held that s. 254(3.1) renders a DRE’s evidence automatically admissible and that in any event, it would be admissible lay opinion. Finally, the Court of Appeal held that DRE evidence is automatically admissible without a voir dire and ordered a new trial.
Held (5-2): The appeal should be dismissed and the order for a new trial confirmed.
Per McLachlin C.J. and Abella, Moldaver, Côté and Brown JJ.:
Section 254(3.1) of the Criminal Code does not provide for the automatic admissibility at trial of DRE opinion evidence. Section 254(3.1) gives the police investigative tools to enforce laws against drug‑impaired driving; however, it does not dictate whether evidence obtained through the use of those investigative tools will be admissible. When Parliament intends to make evidence automatically admissible, it says so expressly. Because s. 254(3.1) does not speak to admissibility, the common law rules of evidence apply.
Under the common law rules for admissibility, the expert evidence analysis is divided into two stages. At the first stage, the evidence must meet the four Mohan factors: relevance; necessity; absence of an exclusionary rule; and special expertise. At the second stage, the trial judge must weigh potential risks against the benefits of admitting the evidence. Because of concessions made by B, the only issue in this case is whether a DRE has special expertise.
While the trial judge would normally determine whether an expert has special expertise at a voir dire, s. 254(3.1) of the Criminal Code and the legislative and regulatory scheme that accompanies it conclusively answer the question. A DRE is a “drug recognition expert”, certified as such for the purposes of the 12‑step evaluation. By reason of his training and experience, a DRE undoubtedly possesses expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12‑step evaluation and determining whether that evaluation indicates drug impairment. His expertise has been conclusively and irrebuttably established by Parliament. Knowledge of the underlying science is not a precondition to the admissibility of a DRE’s opinion. Such knowledge is required only where the science is novel. The purpose of the special rule for novel science is to ensure that the reliability of the evidence is established by precedent, evidence or statute. In this case, the reliability of the 12‑step evaluation comes from the statutory framework itself.
Where, as here, the four Mohan threshold requirements for admissibility are met and there is no question that the probative value of the evidence outweighs its prejudicial effect, the trial judge is not obliged to hold a voir dire to determine the admissibility of the evidence. Because the DRE’s evidence is admissible as expert evidence, it is unnecessary to consider whether it could also be admissible as lay opinion.
Per Karakatsanis and Gascon JJ. (dissenting):
Parliament has not determined that the 12‑step DRE evaluation is sufficiently reliable to be admitted as evidence of drug impairment at trial. Parliament has simply endorsed the reliability of the 12‑step evaluation as an investigative tool, but not as an evidentiary shortcut at trial. Without the ability to test the reliability of the scientific foundation of a DRE evaluation, the trial judge — acting as gatekeeper — will be unable to assess the probative value of such evidence, and the trier of fact will be unable to assess the weight of such evidence. Courts retain discretion to require — through precedent or evidence on a voir dire — confirmation that the science behind DRE evaluations meets a basic threshold of reliability before admitting the evidence at trial.
Given the unsettled nature of the case law and the relatively recent reception of DRE evidence into Canadian courts, it was open to the trial judge in this case to treat the proposed testimony as an opinion based on novel science. Although he recognized the DRE’s special expertise in administering the 12‑step evaluation for the purpose of requesting a bodily sample and thereby advancing the police investigation, the trial judge found that the DRE was not trained on the reliability of the 12‑step evaluation. Because the Crown did not call a different expert for this purpose, there was a lack of evidence about the reliability of the regime. The trial judge was therefore entitled to exclude the DRE’s evidence.
Reasons for judgment: McLachlin C.J. (Abella, Moldaver, Côté and Brown JJ. concurring)
Dissenting reasons: Karakatsanis J. (Gascon J. concurring)
Neutral Citation: 2017 SCC 12
Docket Number: 36610
APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Trinity Western University, Brayden Volkenant v. Law Society of Upper Canada
Charter — Freedom of religion — Equality rights
The respondent Law Society of Upper Canada (“LSUC”) denied accreditation to the law school of the applicant Trinity Western University (“TWU”). TWU is a private post-secondary institution in British Columbia that provides an education founded on evangelical Christian principles. TWU’s approach to community development was expressed in a Community Covenant, a code of conduct that encouraged or discouraged certain behaviour based on evangelical Christian notions of Biblical teaching and morality. The covenant prohibited sexual intimacy that violated the sacredness of marriage between a man and a woman. Unmarried individuals were expected to live chaste, celibate lives. TWU did not prohibit admission to lesbian, gay, bisexual or transgendered (LGBTQ) students, and the covenant prohibited any forms of discrimination or prejudice. However, TWU did prohibit admission to its law school if a student refused to sign the covenant. Because of TWU’s convenant, the LSUC’s Benchers voted to refuse its accreditation in Ontario. On judicial review, the court held that the LSUC was entitled, in the exercise of its statutory mandate to act in the public interest, to refuse to accredit TWU’s law school based on the discriminatory nature of the community covenant. The reviewing court found that although the decision breached the freedom of religion rights of the applicants, TWU and its representative student (“TWU et al.”), the LSUC had engaged in a reasonable and proportionate balancing of the Charter protections at issue. Therefore, the reviewing court concluded that the LSUC’s refusal decision was reasonable. A unanimous Court of Appeal dismissed TWU et al.’s subsequent appeal.
Law Society of British Columbia v. Trinity Western University, Brayden Volkenant
Charter — Freedom of religion — Equality rights
The applicant Law Society of British Columbia (“LSBC”) denied accreditation to the law school of the respondent Trinity Western University (“TWU”). TWU is a private post-secondary institution in British Columbia that provides an education founded on evangelical Christian principles. TWU’s approach to community development was expressed in a Community Covenant, a code of conduct that encouraged or discouraged certain behaviour based on evangelical Christian notions of Biblical teaching and morality. The covenant prohibited sexual intimacy that violated the sacredness of marriage between a man and a woman. Unmarried individuals were expected to live chaste, celibate lives. TWU did not prohibit admission to lesbian, gay, bisexual or transgendered (LGBTQ) students, and the covenant prohibited any forms of discrimination or prejudice. However, TWU did prohibit admission to its law school if a student refused to sign the covenant. In 2014, the LSBC held a binding referendum amongst its members on the issue of whether TWU’s law school should be approved as a recognized law faculty for the purpose of admission of graduates to the bar. Based on the referendum outcome, the LSBC refused recognition. The respondents, TWU and its representative student (“TWU et al.”), sought judicial review. The reviewing court found that the LSBC’s refusal to accredit TWU on the basis of its admissions policy was directly related to the LSBC’s statutory mandate. It also held that the LSBC correctly found that it had discretion to disapprove the academic qualifications of a law faculty, so long as it followed the appropriate procedures and employed the correct analytical framework. However, the Benchers’ delegation of the issue to members, and consequent acceptance of the outcome of the membership referendum, constituted an impermissible delegation and fettering of their discretion, as it ignored their obligation to consider and apply the proportionate balancing of the competing Charter rights at issue related to same-sex marriage and religious freedoms. Therefore, the reviewing court set aside the LSBC’s refusal decision. The LSBC appealed, but unsuccessfully.
Delta Air Lines Inc. v. Gabor Lukacs
Transportation law – Air transportation
Mr. Lukacs, respondent, filed a complaint with the Canadian Transportation Agency (“Agency”) alleging that some of the applicant Delta Air Lines’ policies with respect to the transportation of “large (obese)” passengers were discriminatory, contrary to r. 111(2) of the Air Transportation Regulations, SOR/88-58. The Agency dismissed the complaint on the basis that Mr. Lukacs lacked standing to bring the complaint. The Federal Court of Appeal reversed that decision on the basis that the Agency’s decision to refuse to look into Mr. Lukacs’s complaint on the sole basis that he did not meet the standing requirements developed by the courts of civil jurisdiction was unreasonable.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Shaun Sunduk v. Attorney General of Canada on behalf of the United States of America
Canadian Charter of Rights and Freedoms – Criminal law – Extradition
Shaun Sunduk is sought for extradition by the United States to stand trial with respect to allegations related to certain 2009 drug offences. It is alleged that Mr. Sunduk was involved in the cross border trafficking of a controlled substance, being ecstasy, as well as a substance that was held out to be ecstasy.
The Manitoba Court of Queen’s Bench: dismissed Mr. Sunduk’s preliminary motion under s. 24(1) of the Charter for additional documentary disclosure; dismissed his application under s. 32 of the Extradition Act, SC 1999, c 18, to adduce expert evidence; and ordered the committal of Mr. Sunduk into custody to await surrender to the U.S., finding there was evidence sufficient to satisfy the test for committal under the Act. The Minister of Justice ordered Mr. Sunduk’s surrender. Mr. Sunduk did not bring an application for judicial review in respect of the Minister’s surrender order. The Manitoba Court of Appeal dismissed Mr. Sunduk’s appeal from the extradition judge’s order committing him into custody.
Uber Canada Inc. v. Revenu Québec, Claudine Duval, Maxime Éthier, Sylvie Robichaud, Sylvain Brassard, René Lévesque, Adil Chennaoui, Conrad Canizalez, Claude Hébert, Alexandra-Maude Valade, Marc Andé Pelletier, Jean-Paul Braun
Taxation – Search and seizure – Judicial Review
On May 13, 2015, warrants allowing the Respondent Revenu Québec to enter and search the Applicant’s premises and seize things found there was issued pursuant to s. 40 of the Tax Administration Act, RSQ c. A-6.002 on the basis of allegations of tax evasion and the filing of false statements on the part of the Applicant. On the following day, additional search warrants allowing the Respondent to seize the Applicant’s computer equipment were also issued. On June 15, 2015, the Applicant filed a Motion to Introduce Proceedings in Certiorari, for the Return of Seized Things and for Ancillary Relief,seeking judicial review for purposes of quashing the search warrants and ordering the return of the things seized. The Superior Court of Quebec dismissed the application for judicial review. The Court of Appeal of Quebec refused the leave to appeal.
Dioguardi Tax Law, Phillippe Joseph Mario Dioguardi and Paul Dioguardi v. Law Society of Upper Canada, Attorney General of Ontario
Charter of Rights and Freedoms — Constitutional law — Administrative law
The Law Society of Upper Canada commenced an investigation into complaints by clients of the applicants. The applicants were required to produce client files containing solicitor-client privileged information. They applied to the Superior Court for orders and declarations that the Law Society Act, R.S.O. 1990, c. L-8, and the Law Society’s Rules of Practice are unconstitutional. In part, they argued that the Law Society’s processes fail to adequately warn clients who complain to the Law Society that the Law Society may compel the production of solicitor-client privileged documents that may become part of a public record in a disciplinary hearing. They applied for public interest standing to pursue arguments that the Law Society Act and the Rules of Practice are unconstitutional and breach the Charter of Rights and Freedoms. The Ontario Superior Court of Justice dismissed the application. The Court of Appeal for Ontario dismissed the appeal.
L.C., J.C. v. Director of Youth Protection for Les Centres jeunesse de l’Outaouais
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Attorney General of Quebec
Charter – Civil liability – Damages – Youth protection
The applicants brought an action in damages against the Direction de la protection de la jeunesse (DPJ) following the accidental disclosure of information about them. Because of the relative immunity granted by s. 35 of the Youth Protection Act, the Superior Court allowed the DPJ’s application to dismiss. The Court of Appeal affirmed the trial decision by allowing a motion to dismiss the appeal.
Colton Barry Ferguson v. Her Majesty the Queen
Criminal Law – Appeal – Leave to Appeal
Mr. Ferguson was convicted of second degree murder for the fatal shooting of a woman in a transit stop. The murder was recorded by a surveillance camera. He was sentenced to life imprisonment without eligibility for parole for 15 years. He filed a notice of appeal against his conviction and sentence, 2 years and 9 months after sentencing. He applied for an extension of time to file his appeal. Veldhuis J.A. dismissed the application for an extension of time. Mr. Ferguson applied to appeal to a panel of the Court of Appeal. Veldhuis J.A. dismissed the motion and affirmed the denial of an extension of time.
Transamerica Life Canada v. Joseph Fantl
Civil procedure — Class actions — Certification
The respondent, Mr. Fantl sought a motion for certification of an action against the applicant, Transamerica Life Canada pursuant to the Class Proceedings Act 1992,S.O. 1992, c. 6. The proposed class is composed of investors in Transamerica’s Can-Am Fund, an investment vehicle offered under insurance contracts sold by Transamerica between October 1992 and March 2001.
The class action encompasses 53 different insurance contracts. Five of these contained an express statement that the fund would “on a best efforts basis replicate the performance of the S&P 500 Total Return Index.” The other 48 contracts did not contain this express statement. However, beginning in 1994, every investor in the Can-Am Fund received an information folder containing a statement that the goal of the fund was to replicate, on a “best efforts” basis, the performance of the S&P 500 Total Return Index. Mr. Fantl’s negligent misrepresentation claim arises from the “best efforts” statement in the information folder.
The certification judge certified Mr. Fantl’s action for breach of contract based on the five insurance contracts that contained an express “best efforts” clause. He did not certify the negligent misrepresentation claim in relation to the statements in the information folders provided to investors in the other 48 contracts. The Divisional Court allowed the appeal and certified the negligent misrepresentation claims. The Court of Appeal dismissed the appeal.
Juan Luis Bosch Gutiérrez, Dionisio Gutiérrez Mayorga, Juan Jose Gutiérrez Mayorga, Felipe Antonio Bosch Gutiérrez, Isabel Gutiérrez De Bosch, La Braña, S.A., Multi-Inversiones, S.A., Villamorey, S.A. and Avicola Villalobos S.A. v. Xela Enterprises Ltd., Gabinvest S.A., Lisa S.A., Juan Arturo Gutiérrez, Juan Guillermo Gutiérrez and 696096 Alberta Ltd.
Civil procedure – Service – Service ex juris
The respondents are individuals resident in Canada and companies carrying on business in Canada, as well as two Panamanian companies. They seek $400 million in damages from the applicants, individuals residing in Guatemala or companies carrying on business in Guatemala. The Ontario action was commenced by a fresh as amended statement of claim issued in February, 2013. The respondents attempted to serve this document on several occasions and in several different ways. They emailed a copy to the applicants’ Canadian legal counsel and sent a copy by courier to the applicants’ U.S. counsel. They also attempted to serve the applicants at their residences and businesses in Guatemala. The respondents brought a motion seeking a declaration that the applicants were properly served in accordance with Rules 17.02 and 17.05, validating service pursuant to r. 16.08, or ordering substituted service pursuant to r. 16.04. The Ontario Superior Court of Justice granted the Respondent’s motion for declaration that applicants were properly served in Guatemala. The Court of Appeal for Ontario dismissed the Applicant’s appeal.
Lonnie Anderson, L.J. Anderson Farms Ltd. v. Attorney General of Canada
Contracts – Rectification – Taxation
The Applicant, Mr. Anderson owned farm equipment and land which were utilized by the Applicant company, L.J. Anderson Farms Ltd. for the purpose of conducting a farming enterprise. The Company was advancing money to Mr. Anderson by way of a shareholder loan. The Applicants’ accountants, Benson Trithardt Noren LLP were concerned the shareholder loan could result in being deemed income to Mr. Anderson in the 2011 tax year. Mr. Anderson met with a partner of the accounting firm on October 6, 2011 to discuss the problem with the shareholder loan and the possibility it could be deemed income in Mr. Anderson’s hands. It was recommended that Mr. Anderson transfer land and equipment he owned personally to the corporation in what is referred to as a s. 85 rollover. The details of the agreement were not fully worked out or committed to writing, but the accountant took notes of what was to be accomplished. Mr. Anderson relied on the accounting firm to make the necessary arrangements to take the matter further. The accounting firm recorded the financial transactions the rollover agreement was to accomplish in the company’s corporate records. Internally, the company’s books reflected the new ownership of the assets and a reduction of the shareholder loan, and the required rollover form was filed with the Canada Revenue Agency (“CRA”). The accountant also began working with Mr. Anderson’s bookkeeper to finalize the rollover transactions and draft schedules for the farmland and equipment summarizing the value of the property which would be transferred to the Company. The accounting firm did not inform Applicants’ law firm of the transactions with instructions on the appropriate documentation to be completed and its effective date. No documents were prepared or executed in 2011.
It was not until May 2013, after CRA notified the Applicants that their 2011 taxation year including the rollover election would be audited, that the accountant realized he had failed to instruct the Applicants’ lawyers to prepare the necessary documentation to effect the agreement. The law firm was then instructed to prepare the rollover agreement and related documents. It did so but utilized an agreement date of January 1, 2011. The CRA reviewed the documents and ruled a proper s. 85 rollover had not been accomplished. As a result, a reassessment would likely result in a substantial increase in Mr. Anderson’s taxable income. The proposed reassessment was delayed in order to allow the Applicants to seek rectification.
The Applicants sought equitable relief from the Court of Queen’s Bench arguing the documents executed in 2013 did not reflect the oral agreement made in 2011. They asked that the documents be rectified and that such relief be declared to have retroactive effect as of October 6, 2011. The chambers judge rectified the documents by correcting the specified effective date from January 1, 2011, to October 6, 2011, but declined to declare the documents to be retroactively valid, binding and effective as of that date. The chambers judge saw the intent of the application for such a declaration as being to prevent the Tax Court of Canada from reviewing any eventual appeal of reassessment. He was not prepared to use the court’s equitable jurisdiction to assist in the tax dispute. The Applicants’ appeal was dismissed.
Awet Asfaha v. Her Majesty the Queen
Criminal law – Charge to jury – Evidence – Jury selection
Following a fatal shooting, Mr. Asfaha and a co-accused were tried before a jury for first degree murder. Challenges for cause during jury selection were adjudicated using static triers without an express application under s. 640(2.l) of the Criminal Code. Mr. Asfaha’s co-accused testified that Mr. Asfaha was the shooter. Mr. Asfaha testified that he was present in his co-accused’s car innocently, an unknown man who had long, dark, braided hair was the shooter, and his co-accused acted as that man’s get-away driver. An eyewitness testified that the shooter had braided hair with cornrows. Another eyewitness testified that he saw a man who had long braids in the vicinity before the shooting. When arrested on the evening of the shooting, Mr. Asfaha’s hairstyle was dissimilar to these descriptions. Crown counsel referred to an accused’s interest in the outcome of a trial in closing submissions. The charge to the jury addressed eyewitness descriptions and an accused’s interest in the outcome of a trial. The Court of Appeal for Ontario dismissed the appeal.
James Richard Smith v. Michael Kenneth Bjornsson, Clinton Bjornson, Winnipeg Humane Society and the Estate of Carol Dee Bjornsson through its administrator, Michael Kenneth Bjornsson
Law of professions — Barristers and solicitors — Professional liability
The applicant, Mr. James Richard Smith, was the executor and lawyer of the estate of Ms. Carol Dee Bjornsson, who died October 10, 2006. The respondents include the beneficiaries of the estate. They commenced an action after Mr. Smith sold the major asset of the estate, a home, below market value without disclosing that the purchaser was his wife. The Law Society of Manitoba (the LSM) subsequently compensated the beneficiaries from its reimbursement fund for Mr. Smith’s conversion of the estate property, obtained a release and assignment from the respondents and assumed conduct of the action. In defence, Mr. Smith argued that the action, being funded by the LSM, was the product of champerty or maintenance and that the LSM had no legislative jurisdiction to fund and maintain the action, and was only permitted to participate in it as a plaintiff or co-plaintiff. A Senior Master of the Court of Queen’s Bench dismissed Mr. Smith’s motion to strike the respondents’ statement of claim, a judge of that court dismissed the appeal and a unanimous Court of Appeal dismissed the subsequent appeal.
Nick Angelis v. Her Majesty the Queen
Criminal law – Sentencing – Fine in lieu of forfeiture
The applicant, Nick Angelis, was the accounting manager of Dayco Canada Corporation (“Dayco”). Mr. Angelis acquired cash, goods and services valued at over $900,000 during a five year period between 2000 and 2006. Mr. Angelis was arrested and pleaded guilty. The sentencing judge concluded that the amount of the fraud was $936,000. Mr. Angelis also pleaded guilty to three counts of fraud alleged to have been committed during the years 2011 and 2012 while he was on judicial interim release on the Dayco fraud. At his sentencing hearing, Mr. Angelis told the judge that the money was all gone and there were no proceeds of crime to forfeit. So the Crown asked the judge to order Mr. Angelis to pay a fine in lieu of forfeiture. The sentencing judge imposed a sentence that included a term of imprisonment of four years, three months, which he reduced to three years after deducting credit for pre-disposition custody, and three free-standing restitution orders in favour of each of the victims of the lesser frauds, totalling $100,750. The sentencing judge declined to make a restitution order in favour of Dayco whose loss had been covered by insurance. The sentencing judge declined to order restitution to the insurer. The sentencing judge concluded that it was a proper case for the exercise of discretion, pursuant to s. 462.37(3) of the Criminal Code, R.S.C. 1986, c. C-46, not to order a fine in lieu of forfeiture. The Crown appealed. The Court of Appeal held that the sentencing judge erred and granted the Crown leave to appeal, allowed the appeal and required Mr. Angelis to pay a fine in lieu of forfeiture in the amount of $1,036,750. The Court of Appeal gave him 10 years to pay that fine and, in default of payment, imposed a sentence of 10 years to be served consecutively to any other sentence he is then serving.
Ira Schecter, Michael Schecter and Schecter Dental v. Marie Sanzone
Torts – Negligence – Medical malpractice – Dentists
The Respondent, Ms. Sanzone commenced a malpractice action in 2011 seeking damages against the Applicants, Ira Schecter, Michael Schecter and Schecter Dental for dental surgery performed in 2009. Ms. Sanzone represented herself throughout much of the proceedings. The Applicants successfully moved for summary judgment, dismissing Ms. Sanzone’s action. The Court of Appeal allowed the appeal and set aside the judgment finding that the Applicants had failed to discharge their obligation to put their best evidentiary foot forward on their motion.
Lawrence Wong (Barrister and Solicitor), Kai Zhan Liang v. Minister of Citizenship and Immigration
Courts – Federal Court of Appeal – Jurisdiction
In May 2016, the Federal Court dismissed a motion for reconsideration filed by the applicant Mr. Liang. The Federal Court had refused him leave to commence judicial review proceedings from a decision of the appeal division of the Immigration and Refugee Board, and the motion for reconsideration sought to reverse that decision. The applicant Mr. Wong was Mr. Liang’s counsel in the Federal Court on that motion and a costs award amounting to $1,000 was made against him personally on the basis that he had attacked the credibility of the court during his conduct of the motion and had brought the proceeding improperly and without reasonable cause. Mr. Liang and Mr. Wong filed a notice of appeal in the Federal Court of Appeal, but pursuant to R. 74 of the Federal Courts Rules, the court ordered that it be removed from the court file and that the file be closed because they had no right of appeal.
Tyler Glen Jordan v. Director of Civil Forfeiture
Evidence – Admissibility – Civil Procedure
Police stopped a vehicle driven by the applicant as part of an impaired safety road check. The applicant’s insurance had expired. Police noticed a strong odour of vegetative marihuana and a faint odour of smoked marihuana coming from inside the car and, later, an odour of vegetative marihuana coming from his person. He was arrested for possession of marihuana and cautioned. In conducting the search incidental to the arrest, police found on the applicant a large pocket knife, two cellphones and $1,015 in cash that he claimed to have won playing cards. In the vehicle they found: a Blackberry cellphone; two income tax statements in his name; two sleeping bags; a metal pipe; bear spray; a tied-up grocery bag containing six separate bundles of money totalling $28,200, one of which contained $10,000 and was vacuum-sealed; and a hard plastic bag containing a silver bag which the arresting officer later deposed is an item commonly used in transporting marihuana. A police dog trained in the detection of narcotics indicated that he detected the odour of narcotics in three locations inside closed cabinets, in which portions of the currency from the applicant’s vehicle had been hidden. The applicant was charged for possession but the Crown stayed the charge a year later.
The respondent filed a Notice of Civil Claim – Civil Forfeiture alleging, inter alia, that the vehicle had been used to facilitate the trafficking of illegal drugs and that the money had been provided by purchasers of illegal drugs. The respondent sought orders that the vehicle, the money and the cellphones and their “fruits or proceeds” be forfeited pursuant to s. 5(2) of the Act. The applicant opposed the orders, denying that any of the items seized were proceeds or instruments of unlawful activity and asserting that as the searches had been contrary to his Charter rights, the evidence should be excluded. The respondent brought an application for a preservation order under s. 8(5) of the Act. The Supreme Court of British Columbia granted the application, finding a serious question to be tried. The Court of Appeal for British Columbia dismissed the appeal.
Remy Fernandes v. Peel Education & Tutorial Services Limited C.O.B. as Mississauga Private School and Gabrielle Bush
Employment law — Unjust dismissal — Dismissal without notice
Peel Educational & Tutorial Services Limited, c.o.b. as Mississauga Private School, an accredited private school, employed Mr. Fernandes from January 1999 until April 2009, when his employment was terminated without notice. He sued the school and Ms. Bush, a co-owner of the school, for wrongful dismissal. Although Mr. Fernandes had a largely positive work history over his 10-year tenure at the School, problems with his grading began to surface in March 2009. His marks for the interim report card were late and incomplete. Mr. Fernandes also admitted to having falsified some marks. He had lied to his employers about how the marks were calculated and to the court about how student presentations were marked. The interim report cards were due to be sent out on the date of his termination, and they were sent with the grades he had submitted. Immediately following his termination, Mr. Fernandes’ mental and physical health deteriorated.
Based on McKinley v. BC Tel, 2001 SCC 38, the trial judge found that termination without notice was unwarranted and allowed the action. He ordered that the School pay Mr. Fernandes damages for wrongful dismissal, miscellaneous income loss, and loss of long-term disability benefits. He dismissed the action against Ms. Bush. Also based on McKinley, the Court of Appeal allowed the respondents’ appeal.
Katherine Lin v. SpringBoard, Mafaza Assan
Human rights – Discriminatory practices – Civil Procedure
The applicant Ms. Lin filed an application with the Ontario Human Rights Tribunal. She alleged discrimination with respect to services and facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19. The Tribunal ordered a summary hearing to address whether the application should be dismissed on the basis that it has no reasonable prospect of success, and whether Ms. Lin should be declared a vexatious litigant pursuant to Rule A8 of the Social Justice Tribunals of Ontario Common Rules of Procedure. The parties were provided with a notice of summary hearing and instructions on how to call in to the teleconference. The respondent SpringBoard called in at the scheduled time. Ms. Lin did not attend the hearing. The Tribunal dismissed her application and declared her to be a vexatious litigant, prohibiting her from commencing any application at the Tribunal without first obtaining leave. The Court of Appeal for Ontario dismissed the motion for leave to appeal.
Granby Multi-Sports v. Sébastien Lefebvre, Julie Bourgea
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City of Granby
Property — Immovables — Neighbourhood relations
The respondents were neighbours of the applicant Granby Multi‑Sports, a non‑profit organization that offered, among other things, shooting range activities 150 metres from the respondents’ residence. The respondents considered the municipal by‑law of the City of Granby reducing the operating hours of the applicant’s shooting range to be inadequate, so they instituted proceedings for a permanent injunction against the applicant seeking, inter alia, a 60‑decibel noise limit, a limit on the number of people allowed in the shooting range at the same time, a limit on shooting days and hours that required the range to be closed all weekends, statutory holidays and construction holiday weeks, and a limit on the types of weapons used and types of shooting done. They also claimed $20,000 in damages. The Quebec Superior Court allowed the application for permanent injunction and granted the closure of the centre during the construction holidays. The Quebec Court of Appeal allowed the appeal in part.
Harry Mansuy v. A.A. in her capacity as tutor to property of a person of full age, R.L.
Civil procedure – Leave to appeal
The respondent A.A. was the tutor to property of her mother, Ms. L. She brought an action in the Court of Québec claiming $45,000 from the applicant Mr. Mansuy. She argued that Mr. Mansuy had received that amount from Ms. L. in repayment of a loan that had never existed. In the alternative, she alleged that Ms. L.’s state of health made her incapable or unable to give consent to an acknowledgement of debt signed in July 2012.
Judge Messier allowed Ms. A.’s action, finding that Mr. Mansuy’s testimony was not credible (para. 32) and that, based on the evidence, he had never given Ms. L. the sum of money in question (paras. 37‑38). The judge added that, even if the loan had existed, it would have had to be annulled under art. 290 C.C.Q. because the evidence showed that Mr. Mansuy knew of Ms. L.’s incapacity at the relevant time (paras. 42‑43).
Vauclair J.A. of the Court of Appeal dismissed the motion for leave to appeal. He noted that, under art. 30 C.C.P., leave to appeal could be granted only if it was shown that there was an issue of law that should be submitted to the Court of Appeal. He also noted that, in exercising his discretion, he had to consider [translation] “administrative form and the interests of justice, principles that incorporate a rule of proportionality in litigation”.
Tammy Onyskiw, Sherrie Giroux, Jeff Gill, Kimberly George, Ilona Berthiaume v. CJM Property Management Ltd.
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Landlord and Tenant Board
Lease — Landlord and tenant law — Residential tenancies — Landlord’s obligations
The elevator in a 63-unit, six-storey building broke down due to a latent defect in a brake drum on November 2012. The elevator was out of service for 96 days of the following 11 months, and completely failed to service the fourth floor for 12 days. The service interruptions caused the tenants, some of whom are elderly or have mobility issues, a great deal of difficulty and uncertainty. When it broke down, the elevator had a preventative maintenance program, it had passed all annual and monthly inspections, and its licence had been renewed. The landlord, the respondent CJM Property Management Ltd., decided to replace the elevator, but spent more than $30,000 to return the existing elevator to operation as quickly as possible. It warned tenants of planned service disruptions, but could not give warnings of three unplanned interruptions totalling 36 days. It also paid $15,400 to hire runners to assist tenants who had difficulty doing day-to-day tasks that required climbing stairs, spent $5,200 on an evacuation chair for use in emergencies, and changed repair companies as necessary. A province-wide elevator technician strike delayed a scheduled six-week shut-down by nearly 3 months.
The tenants applied for an abatement of rent, arguing that the landlord failed to comply with its duties to provide and maintain the building under s. 20 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. The Landlord and Tenant Board denied the application on the grounds that the landlord had acted reasonably. The Superior Court of Justice dismissed the tenants’ appeal as of right; leave to appeal to the Court of Appeal was granted, but the appeal was dismissed.