Law Times

Page 18 July 7, 2014 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Charter of Rights DOUBLE JEOPARDY Retrospectively imposing delayed parole eligibility constituted added punishment Abolition of Early Parole Act providing for retrospective re- peal of accelerated parole and delaying date of eligibility of plaintiffs for day release and making test for release more onerous. Plaintiffs applying for declaration that retrospective application was unconstitution- al. Trial judge held retrospective legislative changes to eligibility to accelerated parole violating s. 11(h) Charter right of accused not to be "punished again" after being "finally punished" for of- fences. Trial judge holding limit on s. 11(h) not justified by s. 1 of Charter as retrospective transi- tional provision not necessary to achieve objectives of abolition of early parole. Court of Ap- peal upholding trial judge's rul- ing. Further appeal to Supreme Court of Canada dismissed. Section 11(h) not restricted to punishment imposed after sepa- rate proceeding. Retrospectively imposing delayed parole eligi- bility on sentenced offenders constituted added punishment and violated s. 11(h). Retrospec- tive application of provisions did not minimally impair rights of inmates. Whaling v. Canada (Attorney General) (Mar. 20, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abel- la J., Rothstein J., Cromwell J., Moldaver J., Karkatsanis J., and Wagner J., File No. 35024) Deci- sion at 104 W.C.B. (2d) 636 was affirmed. 112 W.C.B. (2d) 434. Defences GENERAL Doctrine of estoppel cannot be relied on as defence to regulatory offence Statement of offence issued by municipality against accused company for operating com- mercial parking lot contrary to zoning by-law. Accused admit- ted non-conforming use but raised doctrine of estoppel. Ac- cused's conviction ultimately upheld by Court of Appeal. Accused's further appeal dis- missed. While municipal au- thorities have broad discretion in exercising power to adopt by-laws, when it comes to en- forcement, any discretion must give way to principle of equal- ity before law. Authorization by municipal employee or elected official of non-conforming use cannot create rights or oust ap- plicable standards set out in by- law. Doctrine of estoppel cannot be relied on as defence in case of regulatory offence. Immeubles Jacques Robitaille inc. c. Quebec (Ville) (May. 2, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35295) Deci- sion at 108 W.C.B. (2d) 491 was affirmed. 112 W.C.B. (2d) 475. Extraordinary Remedies HABEAS CORPUS Warden's failure to disclose information in transfer decision breach of procedural fairness Individual, federal inmate serv- ing life sentence, transferred from medium security facility to maximum security facility on emergency, involuntary basis after individual implicated in stabbing incident at medium security facility. Warden, relying on security intelligence office re- port stating that individual im- plicated in stabbing, reassessed individual's security classifica- tion to order transfer. Individual received assessment indicating that primary reason for emer- gency transfer was security intelligence report and anony- mous information received from "three separate and distinct sources" but not containing de- tailed information regarding identity of sources, what they said or why their information was considered reliable. Individ- ual received notice confirming his case management team had recommended his classification be overridden. Individual's ap- plication for habeas corpus on grounds that transfer decision unreasonable and procedurally unfair and therefore unlawful granted and decision upheld by British Columbia Court of Ap- peal. Warden's further appeal dismissed. Inmate deprived of liberty as result of unlawful decision of federal board, com- mission, or tribunal can apply to provincial superior court for re- lief in form of habeas corpus. De- cision not lawful if detention not lawful, if decision maker lacked jurisdiction, or if breach of pro- cedural fairness. Reasonableness should be regarded as one ele- ment of lawfulness. Where de- privation of liberty results from federal administrative decision, inmate can either challenge rea- sonableness of decision by ap- plying for judicial review under Federal Courts Act or have deci- sion reviewed for reasonableness by means of application for ha- beas corpus. Reasonableness is legitimate ground upon which to question legality of depriva- tion of liberty on application for habeas corpus. Transfer decision that does not fall within range of possible, acceptable outcomes defensible in respect of facts and law or that lacks "justification, transparency and intelligibility" will be unlawful. To be lawful, reasons for and record of deci- sion must "in fact or in principle support conclusion reached". Inmate's application for habeas corpus granted. Warden's failure to disclose information consid- ered in making transfer decision constituted breach of procedural fairness, rendering transfer deci- sion unlawful. Khela v. Mission Institution (Mar. 27, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Roth- stein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 36409) Decision at 98 W.C.B. (2d) 635 was affirmed. 112 W.C.B. (2d) 458. ONTARIO CIVIL DECISIONS Arbitration STAY OF PROCEEDINGS Arguable that claims fell within terms of very broad arbitration clause Plaintiff was Italian corpora- tion that provided commissary, or meal delivery, services for defendant corporation in Af- ghanistan pursuant to March 2013 services agreement. Cor- poration was Ontario corpora- tion. Corporation terminated services agreement on June 7, 2013. On July 17, 2013, plaintiff commenced action in Ontario against corporation and certain of its directors, officers and em- ployees, seeking damages for termination of services agree- ment and other relief. Plaintiff then commenced application against corporation for order that arbitration clause contained in services agreement did not survive termination of services agreement. Corporation moved for order staying action pending arbitration of dispute between parties. Motion granted. Review of amended statement of claim disclosed that it was certainly arguable that claims asserted by plaintiff against corporation in action fell within terms of very broad arbitration clause, which covered any dispute or contro- versy between parties arising under, out of, in connection with or relation to services agreement. Under services agreement, it was unclear whether termination af- fected or impaired party's right to enforce rights and remedies contained in agreement. That issue was best left to arbitrator. Claims against personal defen- dants concerned performance and termination of services agreement. Action was stayed against all defendants pending arbitration between plaintiff and corporation. Plaintiff 's applica- tion was dismissed. Ciano Trading & Services C.T. &. S.R.L. v. Skylink Aviation Inc. (Mar. 17, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10273- 00CL, CV-13-484963) 238 A.C.W.S. (3d) 539. Civil Procedure COSTS Applicant awarded $35,387.63 as respondents sought to increase applicant's legal costs Applicant sold business pub- lishing magazine to respondent company. Individual respon- dent provided most of acquisi- tion funding. Part of purchase plan was deferred and respon- dent company executed general subordinated security agree- ment in favour of applicant to secure deferred payment. Ap- plicant executed subordination agreement with respondents that provided that respondent company had borrowed money from individual respondent and applicant agreed to subordinate payment of deferred payment to respondent company's obliga- tions to individual respondent. Respondent company did not pay deferred payment. Applicant made requests for information from respondents, which they ignored. Applicant brought ap- plication seeking several kinds of relief. Order was made for respondents to satisfy undertak- ings. Applicant applied for costs. Application granted. Applicant made legitimate request for in- formation from respondents, which they ignored. Respon- dents' refusal to provide infor- mation was done as stall tactic. Respondents ignored legal ob- ligations to disclose requested information and they sought to increase applicant's legal costs. Respondents' conduct was rep- rehensible and warranted award of substantial indemnity costs. Applicant was awarded costs of $35,387.63. Markplan Inc. v. Magazine Acquisition Corp. (Mar. 18, 2014, Ont. S.C.J. [Commer- cial List], D.M. Brown J., File No. CV-13-10315-00CL) 238 A.C.W.S. (3d) 559. SUMMARY JUDGMENT Clear duty to warn was not complied with Issue arose over laneway that be- longed to city. Solicitor and law firm stated matter could be fixed at low cost after closing and that title insurance would provide coverage. Title insurance did not cover cost of purchasing lane- way from city and client had to pay $106,000 to city for laneway. Client brought negligence action against solicitor and law firm. Solicitor and law firm brought motion for summary judgment seeking dismissal of action. Cli- ent did not file cross-motion. Motion judge granted client summary judgment on basis of negligence and directed trial on quantum of damages. Solicitor and law firm appealed. Appeal dismissed. Motion judge did not err in finding that the limitation period did not being to run until title insurance claim was denied and that action was not statute- barred. Evidence was clear that client was not warned of risk that city might expect payment. There was clear duty to warn that was not complied with and no expert evidence on standard of care was required. Motion judge did not err in granting judgment in favour of party who had not given advance notice of claim for summary judgment. Solicitor and law firm did not request adjournment and prin- ciples of proportionality and sensible management of court's process supported ruling. King Lofts Toronto I Ltd. v. Em- mons (Mar. 17, 2014, Ont. C.A., David Watt J.A., G. Strathy J.A., and M.L. Benotto J.A., File No. CA C57845) Decision at 234 A.C.W.S. (3d) 747 was affirmed. 238 A.C.W.S. (3d) 752. Conflict of Laws FOREIGN JUDGMENTS Evidence established that funds in two bank accounts were property of Iran On September 7, 2012, Justice for Victims of Terrorism Act (Can.) (JVTA), came into force. In 2003 and 2005, plaintiffs obtained judgments against defendants, Iranian Ministry of Information and Security, Islamic Republic of Iran and Iranian Revolutionary Guard Corp., in United States District Court for District of Columbia. By order of March 22, 2013, Nova Scotia Supreme Court recognized United States judgments and made them or- der of the Supreme Court of Nova Scotia pursuant to s. 4(5) of JVTA. On May 22, 2013, or- der was granted that Nova Sco- tia order be registered as order of Ontario Superior Court of Justice pursuant to Reciprocal Enforcement of Judgments Act (Ont.). Plaintiffs applied for dec- larations that two bank accounts and two properties in Toronto were property of Iran. Applica- tion granted. Evidence adduced by plaintiffs overwhelmingly established that funds in two bank accounts were property of Iran, and were non-diplomatic assets of Iran available to sat- isfy Ontario order. Banks were to pay amounts to local sheriff, and plaintiffs could take ap- 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.

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