Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law JURY Charging jury Risk that jury would engage in general propensity reasoning considerably offset by trial judge's instructions Accused, C, and deceased, J, lived together in C's home and had been involved in relationship and evidence disclosed that before J disappeared, she planned to end relationship. C claimed he did not cause J's death, that J fell down stairs, but he decided to remove J's body from his home and he moved J's body several times and burned it several times. C was charged with second-degree mur- der and faced two charges of inde- cently interfering with J's remains and C pleaded guilty to charges regarding J's remains. At trial, C made unsuccessful motion ask- ing trial judge to take charge of second-degree murder away from jury, and in charge to jury, judge left it open to jury to use after- the-fact conduct to prove requi- site intent for murder. Trial judge explicitly instructed jury that after-the-fact conduct could be used to differentiate as between manslaughter and murder, and C was convicted of second-degree murder and sentenced to life im- prisonment as well as five con- current years for interfering with J's remains. C appealed second- degree murder conviction and sentence for interfering with hu- man remains, which was allowed in part, and new trial was ordered on charge of manslaughter. Ma- jority of Court of Appeal held that trial judge had failed to properly instruct jury on use of evidence of accused's after-the-fact conduct, which included evidence that ac- cused had moved, burned and disposed of J's body, as it related to proof of intent for second-degree murder. Crown appealed. Ap- peal allowed. Fact that trial judge could have given limiting instruc- tion against general propensity reasoning, but did not do so, did not amount to reversible error, because this was not case of non- direction amounting to misdirec- tion. Risk that jury would engage in general propensity reasoning based on accused's after-the-fact conduct was considerably offset by trial judge's introductory and final jury instructions, which were neutral, fair and balanced. Accused's experienced defence counsel, who was well aware of issue of potential propensity rea- soning, did not raise issue, much les sought limiting instruction, during pre-charge conference while vetting proposed final jury instructions. R. v. Calnen (2019), 2019 Car- swellNS 53, 2019 CarswellNS 54, 2019 SCC 6, 2019 CSC 6, Mol- daver J., Karakatsanis J., Gascon J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellNS 825, 2017 NSCA 49, MacDonald C.J.N.S., Scanlan J.A., and Bour- geois J.A. (N.S. C.A.). Professions and Occupations BARRISTERS AND SOLICITORS negligenCe Lawyer breached duty by continually recommending financial products without performing due diligence Lawyer encouraged his client to invest her money and her compa- ny's money in two offshore hedge funds. Funds turned out to be parts of Ponzi scheme and their assets were frozen. Client suf- fered significant financial losses and brought action for damages against lawyer. Trial judge held that lawyer had not provided in- vestment advice to client. Trial judge held that lawyer could not be held liable for the fraud. Trial judge held that lawyer was not in position of conf lict of interest. Trial judge dismissed action and client appealed. Court of Appeal held that trial judge had made palpable and overriding errors. Court of Appeal ordered lawyer to fully compensate client and her company. Lawyer appealed. Appeal dismissed. Lawyer breached his duty to advise cli- ent by providing advices that ex- ceeded his professional capabili- ties and proved to be wrongful. Lawyer also breached this duty by continually recommending financial products without per- forming due diligence. Further, lawyer turned blind eye to con- f lict of interest which resulted in sacrificing his client's interests. Taken together, lawyer's faults were true cause of losses suf- fered by client and her company. Therefore, Court of Appeal did not err in interfering with trial judge's findings. Salomon v. Matte-Thomp- son (2019), 2019 CarswellQue 764, 2019 CarswellQue 765, 2019 SCC 14, 2019 CSC 14, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellQue 1076, 2017 QCCA 273, Kasirer J.C.A., Vauclair J.C.A., and Parent J.C.A. (C.A. Que.). Federal Court of Appeal Human Rights PRACTICE AND PROCEDURE Commissions, tribunals and boards of inquiry Judge should not have discussed merits of discrimination complaint Canada Revenue Agency (CRA) found that complainant was married, not separated, so she had to repay certain benefits and credits she had received. Com- plainant later established she had been separated. Canadian Human Rights Commission dismissed complainant's com- plaint that CRA discriminated against her on ground of marital status. Relying on s. 41(1)(b) of Canadian Human Rights Act, Commission decided not to deal with complaint on ground that it could be more appropri- ately dealt with by Tax Court of Canada under Income Tax Act. Federal Court judge dismissed complainant's application for ju- dicial review. Complainant ap- pealed. Appeal dismissed. There were no grounds to interfere with judgment. Commission's decision was reasonable and re- lied on proper legal basis to dis- miss complaint. Commission did not breach any obligations of procedural fairness. Judge should not have discussed mer- its of discrimination complaint as Commission did not rule on merits so issue was not before Federal Court. Maximova v. Canada (At- torney General) (2019), 2019 CarswellNat 569, 2019 FCA 37, Gauthier J.A., David Stratas J.A., and Rennie J.A. (F.C.A.); affirmed (2018), 2018 Carswell- Nat 1423, 2018 CarswellNat 1678, 2018 FC 376, 2018 CF 376, Sébastien Grammond J. (F.C.). Federal Court PENSIONS FEDERAL AND PROVINCIAL PENSION PLANS federal pension plans Settlement agreement was fair and reasonable and was in best interests of class members Class Action addressed claims of veterans who were in receipt of various benefits, including Disability Pension benefits, and had Disability Pension amounts deducted from other benefits which they received or were en- titled to receive. Representative Plaintiff, MT, and defendant brought joint motion seeking approval of Settlement Agree- ment in Class Action. Class Counsel and MT also sought approval of legal fees and dis- bursements of Class Counsel and honorarium of $50,000 for MT, to be paid by Class Counsel out of approved legal fees. Mo- tion granted. Settlement Agree- ment was fair and reasonable and was, therefore, approved. The $50,000 honorarium for MT as representative plaintiff was warranted given contribu- tion to litigation and settlement and was approved. Fees and dis- bursements of Class Counsel were also fair and reasonable and were approved. Consid- eration of all relevant factors supported court's finding that Settlement Agreement was fair and reasonable and was in best interests of Class Members. De- termination included court's careful consideration of nature of Charter claims advanced; defences which defendant would have advanced if litiga- tion continued; overall benefits of settlement, which resulted from concessions and compro- mises on both sides; and views of Class Members. If proposed Settlement Agreement was not approved, litigation would con- tinue and would likely be long, arduous and costly. Continuing litigation could involve further discovery, trial, possible appeals and determination of individu- al claims. This could take three to five years. Toth v. Canada (2019), 2019 CarswellNat 209, 2019 FC 125, Catherine M. Kane J. (F.C.). Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. 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