Law Times

Law Times • June 2, 2014 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Appeal NO SUBSTANTIAL WRONG Use of curative proviso appropriate where trier of fact would inevitably convict Border officers discovered and seized cocaine found hidden in concealed compartment of pickup truck accused attempted to drive from United States into Canada. Only issue at trial was whether accused knew of cocaine in truck. Trial judge rejected ac- cused's testimony that acquain- tance asked him to drive truck and convicted him of importa- tion and possession for purposes of trafficking of 50 kg of cocaine. Trial judge relied on amount and value of cocaine, between $1.5 million and $1.75 million; expert evidence from police officer per- taining to customs and habits of drug couriers, including fact he had never encountered blind cou- rier; evidence that accused had de- tached fob that controlled access to concealed compartment from key chain before handing keys to border officer and other circum- stantial evidence to conclude that accused knew of cocaine. Major- ity of Court of Appeal dismissed accused's appeal. Accused's further appeal dismissed. Trial judge erred in relying on officer's testimony. Impugned testimony not legally relevant since guilt or innocence of accused persons of- ficer encountered in past legally irrelevant to guilt or innocence of accused. Nor was testimony necessary. Determining whether accused knew about drugs was not beyond knowledge and expe- rience of trial judge and was not technical or scientific in nature. Testimony was inadmissible. Criminal Code s. 686(1)(b)(iii) cu- rative proviso can only be applied where no reasonable possibility verdict would have been differ- ent had error not been made. Use of curative proviso appropriate where error harmless or trivial or where evidence so overwhelming that, notwithstanding that error not minor, trier of fact would in- evitably convict. Trial judge dem- onstrated that accused's evidence was complete contrivance and need not be considered. Without accused's evidence or officer's im- pugned evidence, remaining ad- missible circumstantial evidence overwhelmingly established ac- cused's guilt. In applying second branch of curative proviso in con- text of circumstantial case, it was not necessary to parse each item of evidence in search of possible innocent explanation; it was nec- essary to look at whole of admissi- ble evidence in assessing strength of case. R. v. Sekhon (Feb. 20, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Kara- katsanis J., and Wagner J., File No. 35180) 112 W.C.B. (2d) 45. Trial CHARGE TO JURY Accused entitled to properly instruct- ed jury, not perfectly instructed jury Both accused admitted to being in victim's apartment when vic- tim's throat slashed and he bled to death but each blamed other for murder. Convictions for each accused of second degree mur- der upheld. Considered as whole, trial judge's charge left jury with sufficient understanding of facts as they related to relevant issues. Accused entitled to properly in- structed jury, not perfectly in- structed jury. Charge adequately conveyed to jury that intoxica- tion would affect accused's intent whether he was sole murderer or whether he participated in mur- der. Trial judge repeatedly told jury that intoxication could raise doubt about whether accused had intent for murder and instructed regarding intent required to aid or abet. R. v. Waite (Feb. 21, 2014, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35499) Deci- sion at 107 W.C.B. (2d) 741 was af- firmed. 112 W.C.B. (2d) 102. ONTARIO CIVIL DECISIONS Civil Procedure CLASS ACTIONS Settlement provided substantive benefits for what appeared to be very weak case Defendant motor vehicle manu- facturers issued recalls to approxi- mately 1.3 million Canadian ve- hicle owners and lessors due to re- ports that vehicles could uninten- tionally accelerate. Defendants de- termined that problem caused by accelerator pedals being trapped by f loor mats, which they ad- dressed through consumer advi- sories and replacement of mats, or by problem with accelerator pedal assembly, which they addressed with adjustments. Representative plaintiff S.H. had just purchased one of defendants' vehicles, asked for refund of purchase price and was refused. Representative plain- tiff N.C. was seriously injured in motor vehicle accident allegedly caused by unintended accelera- tion. Representative plaintiff C.V. claimed to have suffered econom- ic loss as result of owning vehicle subject to recall. Each plaintiff alleged problem caused by de- fects in electronic throttle control system not addressed by recalls. While investigations conducted by defendants' engineers as well as various regulatory agencies could find no support for that assertion, several proposed class actions commenced both in Canada and United States. Following exten- sive negotiations, parties entered settlement agreement resolving all economic loss, but not per- sonal injury or property damage, claims. Settlement bound all class members in Canada, owners or lessors of approximately 1.35 mil- lion vehicles. Those who owned or leased certain vehicles during claim period could have them fitted with brake override system free of charge. Others could re- ceive $62.50 in lieu. Defendants would also establish customer service as well as education pro- grams. Only 16 objections, none of whom chose to opt out of settle- ment, received. Plaintiffs brought motion for consent certification and approval of settlement. Mo- tion granted. Proposed class ac- tions met criteria for certification. There was no meaningful oppo- sition to settlement. Settlement provided immediate, genuine and substantive benefits to class mem- bers for what appeared to be very weak case. Given high risk of liti- gation, settlement fair, reasonable and in best interests of class. Hamilton v. Toyota Motor Sales, USA Inc. (Feb. 6, 2014, Ont. S.C.J., Perell J., File No. CV-10- 396029CP, CV-10-401396CP, 10- 47583) 237 A.C.W.S. (3d) 587. SET-OFF Equitable set-off did not apply to bills of exchange including cheques In 2006, plaintiff and defendant company entered contract under which plaintiff would produce and acquire exclusive right to broadcast certain sporting events over period of eight years. Plaintiff would receive production fee and defendant would sell advertising and sponsorship opportunities. Plaintiff would invoice defendant after each event and defendant would remit payment within 45 days. In 2010, defendant provid- ed plaintiff with four post-dated cheques for production fee for each of four events in upcoming season, three for full payment of $201,819.13 each and one for half-payment of $100,909.56. First cheque bounced and defendant made payment by wire transfer. Second cheque cleared with- out incident. Third and fourth cheques bounced and plaintiff remained unpaid for production fees in respect of last two events. Plaintiff commenced action to enforce payment of cheques and to recover other amounts alleg- edly owed under contract. Defen- dant counterclaimed for damages of $3 million for breach of con- tract and intentional interference with economic and contractual relations. Plaintiff brought mo- tion for summary judgment to enforce cheques. Defendant claimed that its right to equitable set-off constituted genuine issue requiring trial. Motion granted. Section 94(2) of Bills of Exchange Act (Can.), clear that any holder of bill of exchange dishonoured by non-payment had immediate right of recourse against drawer, accepter and endorser. Ontario Court of Appeal had determined that equitable set-off did not ap- ply to bills of exchange, including cheques. Nothing distinguished this situation. Fact that dispute did not arise in international con- text or that cheques provided be- fore services provided irrelevant. No question defendant received consideration for payments. Is- sue of deficiencies in performance proper subject of counterclaim, not exception from rule. Canadian Broadcasting Corp. v. iSport Media and Management Ltd. (Feb. 4, 2014, Ont. S.C.J., Chiappetta J., File No. CV-12- 458183) 237 A.C.W.S. (3d) 673. TRIAL Jury provided with adequate guidance on how to assess damages Plaintiff brought action follow- ing motor vehicle accident. Plain- tiff claimed damages for tho- racic outlet syndrome which she claimed affected her housework, recreational activities, social life, family interactions and employ- ment. Defendant's trial counsel WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY cAsELAW 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 BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

• Cover