Law Times

Page 14 April 7, 2014 • lAw Times www.lawtimesnews.com SUPREME COURT OF CANADA Appeal GROUNDS Accused failed to establish requisite factual basis for incompetence allegation Appeal by accused from convic- tions for sexual assault, sexual touching and invitation to sexual touching. Accused claimed trial counsel was incompetent in con- duct of his defence and her as- sistance was ineffective. Appeals dismissed. Accused's main com- plaint was that his trial counsel refused to allow him to testify at trial. Court agreed with coun- sel's assessment that accused's testimony would have damaged his defence. Accused agreed not to testify but argued he did not mean what he said. He failed to establish requisite factual basis for incompetence allegation and he also failed to provide evidence of prejudice that arose from counsel's alleged incompetence. R. v. B. (W.E.) (Jan. 16, 2014, S.C.C., McLachlan C.J.C., LeBel J., Abella J., Rothstein J., Crom- well J., Moldaver J., and Wagner J., File No. 35089) Decision at 104 W.C.B. (2d) 203 was af- firmed. 111 W.C.B. (2d) 270. Assault COMMON ASSAULT Dissent found fundamentally inconsistent verdicts Accused was charged with sex- ual assault and uttering threats but convicted by jury of lesser and included offence of assault. Conviction upheld. Photographs tendered as evidence could es- tablish assault. Pictures were ad- mitted with consent of defence, and were taken at police station by police three days aer assault. While it was always challenging to articulate what evidence jury relied upon and what evidence it chose to reject, it was possible for jury to convict on assault only. Crown noted lack of DNA evidence combined with incon- sistencies in victim's evidence, might have le jury in some doubt about sexual nature of as- sault. Court not satisfied it was necessary in circumstances for trial judge to have given specific warning as to lack of corrobo- ration. Decision to instruct on lesser offence of assault was dis- cretionary one that was entitled to deference. Dissent found re- jection of complainant's evidence on sexual assault, combined with conviction for assault based on photographs, were fundamen- tally inconsistent verdicts. R. v. Yelle (Jan. 22, 2014, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., and Moldaver J., File No. 35361) De- cision at 108 W.C.B. (2d) 602 was affirmed. 111 W.C.B. (2d) 402. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Police had reasonable suspicion sufficient to justify sniffer dog search Police stopped accused for mi- nor speeding infraction. Officer observed that accused's hands were shaky, he appeared to be sweating, his breathing was rap- id, his eyes had pinkish colour and he was confused about when he had commenced trip. Officer suspected accused involved in drug offence. Accused declined to consent to vehicle search but narcotic detector dog conducted perimeter search and indicated scent of drugs in vehicle. Ac- cused was arrested and admit- ted to possession of marihuana. Accused was charged with pos- session for purpose of traffick- ing. Trial judge found that sniff search was unconstitutional, ex- cluded marihuana and directed not guilty verdict. Crown's ap- peal was allowed. Accused's fur- ther appeal dismissed. Assessing whether particular constellation of facts gives rise to reasonable suspicion requires application of common sense, flexibility and practical everyday experi- ence through eyes of reasonable person armed with knowledge, training and experience of inves- tigating officer. Factors identified by officer provided objective ba- sis needed to support belief that accused might be involved in drug-related offence. Officer had reasonable suspicion. Although detention and sniff must be in- dependently justified, even if both based on same underlying facts, conclusion that police had reasonable suspicion sufficient to justify sniffer-dog search led to conclusion that police had reasonable grounds to detain ac- cused. R. v. MacKenzie (Sep. 27, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Kara- katsanis J., and Wagner J., File No. 34397) 111 W.C.B. (2d) 318. Environmental Law GENERAL No requirement that quality of natural environment be impaired before reporting requirement triggered Accused company was charged with failing to report to Minis- try of Environment discharge of contaminant into natural envi- ronment contrary to Environ- mental Protection Act, aer rock debris propelled 90 metres into air during blasting operations, damaging nearby home and car. Accused was acquitted but ac- quittal set aside on appeal. Court of Appeal upheld conviction. Ac- cused's further appeal dismissed. Ministry reporting requirement engaged when: contaminant discharged into natural environ- ment, discharge is out of normal course of events and causes, or likely to cause, non-trivial ad- verse effect. No requirement that quality of natural environment be impaired before reporting re- quirement triggered. R. v. Castonguay Blasting Ltd. (Oct. 17, 2013, S.C.C., McLach- lin C.J.C., LeBel J., Abella J., Roth- stein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 34816) Decision at 100 W.C.B. (2d) 426 was affirmed. 111 W.C.B. (2d) 327. FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS GST imposed not inconsistent with rights of law firm's clients Law firm appealed order that held that GST imposed by s. 165 of Excise Tax Act (Can.), did not infringe and was not incon- sistent with rights of law firm's clients guaranteed by s. 10(b) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Section 165(1) of Act had valid purpose. Law firm failed to es- tablish that s. 165 of Act violated s. 10(b) of Charter. Law firm was required to produce evidence to demonstrate effect of GST on rights of clients but it failed to do so. Complete lack of evidence was fatal to constitutional chal- lenge. GST imposed by s. 165 of Act did not infringe and was not inconsistent with rights of law firm's clients guaranteed by s. 10(b) of Charter. Stanley J. Tessmer Law Corp. v. R. (Dec. 12, 2013, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G.Near J.A., File No. A-104-09, A-50-13, A-51-13, A-52-13, A-53-13, A-54-13) De- cision at 224 A.C.W.S. (3d) 508 was affirmed. 236 A.C.W.S. (3d) 259. Labour Relations JUDICIAL REVIEW Appellants did not fall within definition for inclusion in standby pay Appellants were members of R.C.M.P. emergency response team ("ERT"). Members of ERT were specially trained in use of various tactical procedures and weapons. Service on ERT was voluntary. Members of ERT were expected to be available to respond to emergency situations whenever they arose. Members were required to carry pager at all times and were not permitted to do anything that might impair their ability to respond to emer- gency situation. Members were not compensated for maintain- ing constant state of readiness. Appellants filed grievance seek- ing compensation for time spent on call. Adjudicator determined that appellants were not entitled to standby compensation for time spent on-call. Federal Court found that adjudicator's decision was reasonable and dismissed application for judicial review. Appellants appealed. Appeal dismissed. Judge selected correct standard of review of reason- ableness. Adjudicator had regard to applicable definition and rea- sonably applied it to appellants' circumstances. It was open to adjudicator on record to have re- gard to applicable definition and to find that appellants did not fall within definition for inclusion in standby pay. Adjudicator's deci- sion was reasonable. Irvine v. Canada (Attorney Gen- eral) (Dec. 9, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and James W. O'Reilly J.A. (ex officio), File No. A-43-13) Decision at 234 A.C.W.S. (3d) 514 was affirmed. 236 A.C.W.S. (3d) 210. ONTARIO CIVIL DECISIONS Civil Procedure COSTS No individuals involved who should absorb costs of motion other than lawyers Respondent brought motion to enforce settlement arising from accepted offer to settle. Court determined that there was bind- ing settlement, but it should ex- ercise its discretion to set aside settlement because weighing of potential prejudice favoured ap- plicants. Court found that law- yer who represented applicants made innocent slip by accepting respondent's offer. Respondent applied for costs on partial in- demnity basis to be paid per- sonally by applicants' lawyers. Application granted. Binding settlement was reached at law and in circumstances it was rea- sonable for respondent to re- quire compelling evidence as to why agreement should be void- ed. It was not unreasonable for respondent not to believe word of lawyer when she urged him to accept that innocent mistake had occurred. Costs incurred were caused solely by lawyers. In cir- cumstances of case there were no individuals involved who should absorb costs of motion other than lawyers. Amounts billed were commensurate with time required by complexity of mat- ter. Costs sought to be recovered were reasonable. Lawyers were to pay respondent partial indem- nity costs of $17,740.44. Catford v. Catford (Jan. 7, 2014, Ont. S.C.J., S.E. Healey J., File No. CV-13-0353, CV-13- 0351) Additional reasons to 235 A.C.W.S. (3d) 74. 236 A.C.W.S. (3d) 36. Courts STAY OF PROCEEDINGS Fact that trial may have to be adjourned did not amount to abuse of process Plaintiff had commenced tort ac- tion for damages for injuries suf- fered in motor vehicle accident. Plaintiff also brought application to Financial Services Commis- sion of Ontario ("FSCO") seek- ing income replacement benefits. Plaintiff 's first claim was resolved on basis of partial settlement, but his second claim was denied. Plaintiff then commenced action for income replacement ben- efits, mental distress and puni- tive damages. Plaintiff 's insurer objected to benefits action pro- ceeding based on plaintiff hav- ing accident benefits claim for medical expenses outstanding at FSCO. Plaintiff was subsequent- ly granted order permitting him to withdraw claim before FSCO. Benefits action and tort action were ordered to be tried togeth- er. Insurer sought stay of benefits action on basis it would be abuse of process because it was too late for him to change forums from FSCO to court. Motion dis- missed. Fact that trial may have to be adjourned did not amount to abuse of process. Nor was there prejudice to defendants in tort action. at issue had al- ready been determined by mas- ter in issuing order that action be tried together. Contrary to submissions of insurer, plaintiff would suffer prejudice if action were stayed. Plaintiff would be required to duplicate evidence in both proceedings and his claims for damages for mental suffering and punitive damages would be limited to what was allowed at arbitration. Allowing benefits action to proceed did not violate principles that doctrine of abuse of process was intended to pro- tect. Korus v. State Farm Mutual Au- tomobile Insurance Co. (Dec. 18, 2013, Ont. S.C.J., Frank J., File No. CV-13-00478162-0000) 236 A.C.W.S. (3d) 120. 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