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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Costs POWER TO AWARD Funding orders justified in accused's case Superior Court's power to award interim costs in provincial court proceeding. Accused charged with making unsafe left turn. Accused argued that proceed- ings were nullity because court documents were only in Eng- lish. Accused secured funding for two-to-five day trial but his resources were exhausted when Crown sought to lead extensive expert evidence in reply to his language rights claim. Court of Queen's Bench made two orders requiring Crown to pay accused's legal fees and expert witness fees in continuing pro- vincial court trial. Crown's ap- peal from interim costs orders dismissed. Superior courts have inherent jurisdiction to make public interest funding orders concerning trials before infe- rior court or tribunal. Orders should be made where litigant has prima facie meritorious claim of public importance and insufficient resources to fund litigation and funding order is essential to administration of justice. Funding orders were justified in accused's case. R. v. Caron (Feb. 4, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33092) Decision at 81 W.C.B. (2d) 674 affirmed. 93 W.C.B. (2d) 265 (40 pp.). FEDERAL COURT OF APPEAL Courts JUDGES Judge could not be faulted from recusing himself when he lacked fundamental qualification at heart of impartiality Judge did not err in recusing himself from sitting on this matter and remitting matter to Chief Justice. Court had remit- ted matter to judge with implic- it expectation that his judicial function would be performed impartially. Judge could not be faulted from recusing himself when he lacked fundamental qualification at heart of impar- tiality. Judge's reasons, read in totality and fairly interpreted, indicated that judge believed he could not impartially redeter- mine matter before him because he was already irrevocably com- mitted to particular conclusion for same reasons he had given initially. Court accepted judge's determination and had no basis upon which to doubt it. Janssen-Ortho Inc. v. Apotex Inc. (Feb. 14, 2011, F.C.A., Sexton, Layden-Stevenson and Stratas JJ.A., File No. A-240-10) Deci- sion at 190 A.C.W.S. (3d) 1082 was affirmed. 198 A.C.W.S. (3d) 979 (8 pp.). Crown ARMED FORCES Failure to deal with any of appellant's complaints was not within range of options available to Chief of Defence Staff Application judge erred in dis- missing application for judicial review challenging decision of Chief of Defence Staff dismiss- ing appellant's grievance of de- cision denying him promotion to rank of Colonel/Captain (Navy) in Canadian Forces Chaplain Branch. While appli- cation judge was correct when he held that standard of review was deferential standard of rea- sonableness, decision of Chief of Defence Staff was not rea- sonable and should be set aside. Failure to deal with any of ap- pellant's complaints was not within range of options available to Chief of Defence Staff. Fur- ther, absence of evidence about what interfaith committee did and exactly how it reached its promotion recommendations raised issues of fairness and called into question whether interfaith committee had any criteria at all for its promotion recommendations. Despite same lack of information, Ca- nadian Forces Grievance Board had no problem making factu- al findings and recommending that appellant's grievance be upheld and remedy be given. Chief of Staff did not contest essential underpinnings of Canadian Forces Grievance Board's recommendation that grievance should be upheld. He did not contest factual findings of Canadian Forces Grievance Board. He even agreed with Board's finding that promotion process lacked transparency. Other than raising issue of lack of available information, he did not criticize Canadian Forces Grievance Board's recommen- dation that grievance should be upheld. In light of this, and given evidentiary record before him, it was not open to him to May 16, 2011 • Law TiMes COURT DECISIONS 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. dismiss appellant's complaints about promotion process. De- cision of Chief of Defence Staff was quashed and matter remit- ted to him with direction to al- low grievance and to determine remedy that should be given to appellant. Zimmerman v. Canada (At- torney General) (Feb. 4, 2011, F.C.A., Sharlow, Layden-Ste- venson and Stratas JJ.A., File No. A-94-10) Decision at 183 A.C.W.S. (3d) 993 was re- versed. 198 A.C.W.S. (3d) 981 (13 pp.). Prisons INMATES' RIGHTS Appeal allowed regarding destruction of items seized Inmate applied for judicial re- view of decision dismissing three applications related to third level grievance decision of Correctional Services Can- ada ("CSC"). While inmate was working two CSC officers searched his cell and concluded that number of electrical devic- es and articles in cell were likely unauthorized and seized items although inmate had previously been permitted to have such ar- ticles in cell. Inmate was charged with possession of unauthorized item and charged with $15 fine. Accused alleged that there had been no attempt at informal resolution and when his griev- ance was denied at third level, he initiated application for judicial review. CSC officials later de- stroyed seized items and offered $65 in compensation which inmate found insufficient and grieved unsuccessfully so he ap- plied for judicial review. Inmate also applied regarding electrical typewriter which inmate alleged was educational item and ex- empt from $1,500 personal ef- fects cell limit. Appeal allowed regarding destruction of items seized and matter remitted for reconsideration, costs awarded for disbursements, all other appeals dismissed. Inmate im- plicitly admitted in lower deci- sions that some of items seized from his cell were unauthor- ized. Inmate failed to establish CSC approved his typewriter as educational supply. Lower de- cision did not take account of fact that not all of seized items were accounted for and deci- sion did not address all of items claimed. Johnson v. Canada (Attorney General) (Mar. 2, 2011, F.C.A., Dawson, Layden-Stevenson and Stratas JJ.A., File No. A-44- 09) Decision at 81 W.C.B. (2d) 366 reversed in part. 93 W.C.B. (2d) 287 (20 pp.). www.lawtimesnews.com FEDERAL COURT Civil Procedure PLEADINGS Defendant's inaction in proceeding amounted to abuse of process Plaintiff claimed defendants in- fringed plaintiff's rights with re- spect to trade-marks and copy- rights. Defendant corporation failed to serve and file appoint- ment of solicitor in face of order. Defendant corporation had pri- or deficiencies in documentary production and failed to par- ticipate in proceeding. Plaintiff brought motion to strike out statement of defence of defen- dant corporation. Statement of defence was struck out and cor- porate defendant was noted in default. Defendant's inaction in proceeding amounted to abuse of process and appropriate rem- edy was to strike out statement of defence and have defendant noted in default. Louis Vuitton Malletier S.A. v. Singga Enterprises (Canada) Inc. (Mar. 1, 2011, F.C., Shore J., File No. T-1276-10) 198 A.C.W.S. (3d) 926 (10 pp.). Municipal Law TAXATION Minister erred in concluding that he did not have authority to make payment in lieu of real property taxes Minister of Public Works and Government Services Canada had authority, pursuant to Payments in Lieu of Taxes Act (Can.), to make payment in lieu of real property taxes ("PILT") to City of Mississauga in re- spect of real property taxes that were not paid to Mississauga by two former tenants of Greater Toronto Airport Authority ("GTAA"). GTAA was private corporation. On December 2, 1996, it entered into 60- year ground lease with Federal Crown for Toronto's Pearson Airport. Lease described GTAA as "tenant" and Crown as "land- lord". Once lease was signed, GTAA itself occupied 88% of airport premises and sublet bal- ance to variety of businesses. GTAA's tenants defaulted on their real property tax payments to Mississauga and it applied for PILTs. Minister erred in concluding that he did not have authority to make PILTs. Be- cause GTAA's tenants were not "otherwise prescribed", s. 3.1 of Act applies and, because condi- tions have been met in this case, it deems GTAA's tenants' prop- erty to be federal property. This means that PILTs were autho- rized for GTAA's tenants. Ap- plication allowed. Mississauga (City) v. Canada (Minister of Public Works and Government Services) (Feb. 11, 2011, F.C., Simpson J., File No. T-1416-09) 198 A.C.W.S. (3d) 1158 (32 pp.). ONTARIO CRIMINAL CASES Charter Of Rights APPLICATION Accused only sent "Notice of Application" three days before trial Accused, charged with driving "over 80", applied to exclude evidence, including, statements, utterances, breath test results and other conscripted evidence on ss. 8 and 10(b) Charter grounds. Accused only sent "Notice of Application" three days before trial and therefore also applied for order abridging any time required for service of application. Application not to proceed. No explanation had been offered why material was not prepared and served upon Crown in timely fashion. Ma- terial before court was insuf- ficient to determine whether there was meritorious Charter application. R. v. Lammens (Feb. 7, 2011, Ont. C.J., Pockele J., File No. 10-620) 93 W.C.B. (2d) 242 (18 pp.). ARBITRARY DETENTION OR IMPRISONMENT Trial judge may have erred by finding accused not psychologically detained, but error would not have affected result Accused convicted of second de- gree murder for brutal beating death of wife. Crown seeking to rely on unrecorded statement made by accused in police sta- tion to prove identity of killer. Accused not under arrest, but not told free to leave, when ut- terances made. Accused giving vague response to officer's ques- tions as to whether he had hit deceased. Accused not being in- formed of right to counsel prior to giving statement. Trial judge holding accused not detained while making statement, state- ment voluntary. Appeal dis- missed. While trial judge may have erred by finding accused not psychologically detained, error would not have affected result. Accused was not told he was free to leave, was unsophis- ticated and distraught and po- lice questioning became focused

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