Law Times

Law Times • January 10, 2011 Appellant did not fi le notice of objection but fi led notice of ap- peal challenging revocation of its registration on grounds that appellant organization was new and that loss of its registration would impede its ability to assist single mothers, young off enders and newcomers to Canada. Re- spondent contended that appeal was made under s. 172(3)(a.1) of Act and that conditions for such appeal to be initiated had yet to be fulfi lled. Appeal dismissed. Eff ect of s. 168(4) of Act was to extend objection review process of s. 165 of that Act to charity registration revocations. It was only after such review had been initiated that appeal concerning revocation of registration may be brought before Federal Court of Appeal in circumstances set out in s. 172(3)(a.1) of Act. Act pro- vides that appeal to this court re- garding revocation of registration of charity is subject to appellant fi rst serving on Minister of Na- tional Revenue prior notice of objection pursuant to s. 168(4) of Act and Minister either con- fi rming revocation of registra- tion of charity or not confi rm- ing or vacating such revocation within 90 days of notice of ob- jection. In circumstances it must be concluded that appeal was premature. Ninety-day timeline for appellant to serve notice of objection pursuant to s. 168(4) of Act had not yet expired. Ac- cordingly, appeal was dismissed without prejudice to rights of appellant to submit notice of ob- jection pursuant to s. 168(4) of Act and to eventually bring forth if it deemed it appropriate, new appeal in this court complaint with s. 172(3)(a.1). Christ Apostolic Church Interna- tional - Canada v. Canada Rev- enue Agency (Charities Director- ate) (Oct. 1, 2010, F.C.A., Noel, Evans and Mainville JJ.A., File No. A-294-10) 194 A.C.W.S. (3d) 325 (6 pp.). ONTARIO CIVIL CASES Damages PERSONAL INJURIES Plaintiff's global general damages for chronic pain and psychiatric disorders assessed at $140,000 Plaintiff was injured in motor ve- hicle when his car was rear-end- ed by defendant's motor vehicle pushing plaintiff 's vehicle into car ahead. Plaintiff was involved in two subsequent motor vehicle accidents. For seven years prior to accident plaintiff received regular chiropractic treatments. Liability was admitted. For fi rst accident plaintiff would not have developed chronic pain, stress, anxiety disorders and associated problems. Plaintiff functioned at high level before fi rst accident in spite of stress and aches and pains. Injuries plaintiff sustained in second and third accidents overlapped with those sustained in fi rst accident. Subsequent accidents contributed to plain- tiff 's damages but did not cause them. Conditions from which plaintiff suff ered were caused by fi rst accident. Plaintiff suff ered from chronic pain and psychi- atric disorders including panic and anxiety. Plaintiff 's impair- ments were permanent. Impair- ments were serious. Plaintiff met threshold for recovery of gen- eral damages. Plaintiff 's global general damages were assessed at $140,000. Damages attrib- utable to second accident were 10% and damages attributable to third accident were 20% of total damages. General dam- ages were in amount of $98,000 before statutory deductible. Plaintiff was entitled to $66,500 for future housekeeping and maintenance expenses. Plaintiff 's mother was entitled to damages of $8,000 and sister was entitled to $4,000 attributable to fi rst accident. Plaintiff was unable to be employed as result of fi rst accident. Plaintiff 's past and fu- ture loss of income was entirely attributable to fi rst accident. Plaintiff 's future loss of income was $579,612. McDonald v. Kwan (Oct. 22, 2010, Ont. S.C.J., Frank J., File No. 02-CV-225582CM3) 194 A.C.W.S. (3d) 133 (45 pp.). Insurance LIABILITY INSURANCE Insurer did not demonstrate that coverage clearly excluded Application for declaration that insurer obligated to provide de- fence to applicant in action pur- suant to specifi c project wrap-up liability policy. Applicant was general contractor for high-rise residential condominium. Appli- cant sued by condominium cor- poration for damages for alleged defects and defi ciencies in con- struction of project. Amended statement of claim set out many alleged defects, damages and defi - ciencies which created dangerous building and which would lead to failures of the components of the condominium complex and cause physical harm and property dam- age. Application granted. Policy provided coverage for damage to tangible property caused by an occurrence. Clear that pleadings contained allegations of prop- erty damage. Whether property damaged fell under defi nition of property damage something that would be determined based on evidence at trial. Low threshold of showing that pleadings reveal possibility of property damage for purpose of deciding whether insurer owes duty to defend met. Reasonable reading of claim sup- ported claim for damages that fell within provisions of policy and thus duty to defend engaged. In- surer had not discharged onus of demonstrating that "your work" exclusion clearly excluded cover- age such that there was no pos- sibility that insurer would have to indemnify insured on claim. Could not be said that damages only emanated from building envelope which was insured's own work. Reasonable reading of statement of claim was that damages being claimed for dam- age to property owned by oth- ers. PCl Constructors Canada Inc. v. Encon Group (Oct. 27, 2010, Ont. S.C.J., Wilson J., File No. CV-10-402403) 194 A.C.W.S. (3d) 260 (8 pp.). CASELAW ONTARIO CRIMINAL CASES Charter Of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Mandatory minimum sentence for firearms offence not unconstitutional Accused pleading guilty to pos- sessing loaded fi rearm which carries fi ve year mandatory min- imum sentence if subsequent fi rearms off ence. Accused previ- ously found guilty of off ences of use of imitation fi rearm in commission of indictable of- fence, possession of ammunition contrary to prohibition order. Accused applying for ruling that fi ve year mandatory minimum for subsequent off ence contra- venes of ss. 7, 9, 12 of Charter. Application dismissed. Manda- tory minimum sentence not grossly disproportionate given serious circumstances of earlier off ences and accused's signifi cant criminal history. R. v. Charles (Oct. 1, 2010, Ont. S.C.J., Backhouse J., File No. 09-3000095-0000) 90 W.C.B. (2d) 695 (8 pp.). FREEDOM OF RELIGION Court required to make inquiry into whether witnesss' desire to wear niqab was religiously motivated and based on sincerely held belief Accused charged with historical sexual off ences. Complainant at preliminary inquiry asserted re- ligious obligation to wear niqab covering her face while testify- ing. Accused sought order re- quiring her to remove it and argued that it impeded his abil- ity to cross-examine her. Prelimi- nary inquiry justice ruled that complainant was required to remove niqab. On complainant's application for certiorari, appli- cation judge ordered new more extensive hearing. Complain- ant's appeal allowed in part and accused's cross-appeal dismissed. Court required to make inquiry into whether witness's desire to wear niqab was religiously moti- vated and based on sincerely held belief. Witness should testify explaining connection between practice in issue and his or her re- ligious beliefs. Court should ex- amine extent to which religious practice admits of exceptions that may cover circumstance of testifying at criminal trial. Court must next determine the extent to which wearing niqab would interfere with ability of accused to cross-examine witness. If both witness's religious freedom claim and accused's right to cross-ex- amine are suffi ciently engaged then judge must attempt to rec- oncile rights. Judge must con- sider constructive compromises. Preliminary inquiry judge in this case failed to conduct adequate inquiry. Case remitted for fur- ther inquiry including evidence under oath and cross-examina- tion R. v. S. (N.) (Oct. 13, 2010, Ont. C.A., Doherty, Moldaver and Sharpe JJ.A., File No. C50534; www.lawtimesnews.com C50892) Decision at 84 W.C.B. (2d) 107; 2009 CarswellOnt 2268 reversed in part. 90 W.C.B. (2d) 623 (54 pp.). Obscenity CHILD PORNOGRAPHY Summary conviction appeal court judge misapprehended use to which trial judge had put evidence Accused took his computer to re- pair shop. Accused did not reveal his password or authorize repairer to examine any fi les on computer as that was not required to do re- pair. Repairer bypassed password and saw large number of picture icons on desktop of computer screen and found some of icons contained depictions of child pornography. Police were called, accused was arrested and, shortly after his arrest, accused made in- criminating statement to police eff ectively admitting knowledge of pictures. Trial judge found that statements were made in violation of accused's Char- ter rights and that Crown had failed to establish voluntariness of statement and statement was excluded. Accused's mother had given evidence at trial that ac- cused was intellectually disabled. Trial judge found that accused's physical control of computer did not prove possession of child por- nography. Summary conviction appeal court judge ruled that tri- al judge had erred by excluding accused's statement to police and by failing to infer knowledge of pictures. Accused appealed sum- mary conviction appeal court judge's ruling. Appeal allowed, PAGE 15 order of summary conviction appeal court judge set aside, ac- quittal restored. Summary con- viction appeal court judge mis- apprehended use to which trial judge had put accused's mother's evidence. Trial judge clearly rec- ognized limitations of mother's evidence. Trial judge did not err in law by holding that he could use mother's evidence for insights provided into accused's mental limitation and diffi culties and by taking that into account when assessing voluntariness of statement. Summary conviction appeal court judge also erred by failing to accord appropriate level of deference to trial judge's conclusion that Crown had failed to prove case beyond rea- sonable doubt. Court disagreed with summary conviction ap- peal court judge that trial judge overlooked, disregarded or mis- apprehended relevant evidence. Court did not agree that trial judge erred in law by admitting or considering evidence of police offi cer that material can make its way on to computer in various ways, not all of which are known to or in control of owner. Police offi cer was called by Crown and if he was not qualifi ed to give technical evidence that assisted accused, then court failed to see how he was qualifi ed to give technical evidence that favoured Crown. R. v. Panko (Oct. 8, 2010, Ont. C.A., Goudge, Sharpe and Mac- Farland JJ.A., File No. C47862) Decision at 74 W.C.B. (2d) 833 reversed. 90 W.C.B. (2d) 658 (9 pp.). 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