Law Times

PAGE 16 CaseLawLaw SUPREME COURT OF CANADA Appeal FRESH EVIDENCE DNA evidence admissible as fresh evidence Accused charged with second degree murder. Victim found dead in hotel room. Some DNA of accused found in room. Ac- cused acknowledged being in hotel room with victim but tes- tified that she was alive when he left. Jailhouse informant testi- fied that accused told him that he had cleaned hotel room to remove DNA evidence of his presence. Majority of Court of Appeal set aside accused's con- viction on basis of deficiencies in Vetrovec warning. At Su- preme Court, accused sought to lead fresh evidence of his DNA found on further items in hotel room. Crown appeal dismissed. Fresh evidence was admissible and could have af- fected verdict. Jury could find that presence of accused's DNA discredited Crown theo- ry that accused cleaned room. This finding could discredit jailhouse informant and aid ac- cused's credibility. R. v. Hurley (May 14, 2010, S.C.C., McLachlin C.J.C., Binnie, Fish, Abella, Char- ron, Rothstein and Cromwell JJ., File No. 33301) Decision at 246 C.C.C. (3d) 469, 84 W.C.B. (2d) 781 affirmed. 87 W.C.B. (2d) 891 (14 pp.). Defences DEFENCE OF PROPERTY Conclusion that accused used excessive force was justified Accused charged with assault causing bodily harm. Accused pushed his wife into staircase af- ter she threw his diploma onto floor during argument. Wife suffered extensive bruising. Ac- cused argued behaviour was jus- tified in defence of his personal property. Trial judge finding excessive force used. Accused's appeal dismissed by majority of Court Martial Appeal Court. Accused's further appeal dis- missed. Trial judge required to consider whether force used was reasonable in all circumstances including accused's subjective belief of danger to property and whether belief was based on rea- sonable grounds. Trial judge's conclusion that excessive force used was eminently justified. Nothing in trial judge's reasons to suggest he misapplied proper approach to burden of proof. R. v. Szczerbaniwicz (May 6, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Des- champs, Fish, Abella and Roth- stein JJ., File No. 33189) De- cision at 84 W.C.B. (2d) 890 affirmed. 87 W.C.B. (2d) 892 (26 pp.). Trial CHARGE TO JURY Vetrovec warning was deficient Accused charged with second degree murder. Victim found dead in hotel room. Accused ac- knowledged being in hotel room with victim but testified that she was alive when he left. Jailhouse informant testified that accused told him that he had cleaned hotel room to remove DNA evidence of his presence. Major- ity of Court of Appeal set aside accused's conviction on basis of deficiencies in Vetrovec warn- ing. Crown appeal dismissed. Vetrovec warning referred to some reasons why caution was needed in assessing jailhouse in- formant's evidence but did not refer to witness's motive to lie to gain advantage in his legal trou- bles or to collect reward. Debat- able whether this omission was sufficiently serious to require appellate intervention. R. v. Hurley (May 14, 2010, S.C.C., McLachlin C.J.C., Binnie, Fish, Abella, Char- ron, Rothstein and Cromwell JJ., File No. 33301) Decision at 246 C.C.C. (3d) 469, 84 W.C.B. (2d) 781 affirmed. 87 W.C.B. (2d) 891 (14 pp.). FEDERAL COURT Civil Procedure PARTIES Creditor's interest in ship entitled it to intervention Creditor's motion for leave to intervene and set aside in rem portion of February 2010 sum- mary judgment, and March 2010 order of appraisal and sale. Creditor, involved in proceed- ings in rem against ship and in personam against owners, ar- rested ship December 2008. Plaintiff's action commenced January 2010 against ship and owners. Creditor unaware of action until February 2010. Summary judgment granted to plaintiff February 2010, includ- ing in rem against ship. In March 2010, creditors became aware of summary judgment, and that plaintiff's action not served on ship. Motion allowed. Leave to June 21, 2010 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 5/28/08 10:43:29 AM 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. intervene granted. Creditor's interest in ship entitled it to in- tervention. Judicial sale would adversely affect creditor's inter- est if proceeds insufficient to satisfy its claim against owners. No delay in creditor's motion to intervene. Intervention would serve interests of justice. Bank had only self to blame for dis- ruption arising from creditor's intervention. Keybank National Assn. v. "Atch- afalaya" (The) (Apr. 14, 2010, F.C., Tremblay-Lamer J., File No. T-79-10) 187 A.C.W.S. (3d) 935 (13 pp.). Immigration INADMISSIBLE AND REMOVABLE CLASSES Granting of Minister's permit and permanent residence were not final decisions Applicant was admitted to Canada on Minister's permit in 1985 and resided in Canada ever since. Report made under s. 44 of Immigration and Refugee Protection Act (Can.), alleged there were reasonable grounds to believe applicant committed crimes against humanity. Appli- cant made statements of admis- sion to media. Applicant attrib- uted incriminating statements to poor translation. Board con- cluded applicant was not truth- ful at all times. Board did not find it plausible that indepen- dent interviews given to three different media outlets in three different years saying substan- tially same thin were all wrong because of faulty interpretation. Board concluded more weight should be given to applicant's previous admissions than to subsequent recantations. Board found documentary evidence es- tablished unit applicant worked with specialized in locating, interrogating and eliminating people and applicant's mem- bership alone was sufficient to ground Minister's claim. Board concluded it was more likely than not that applicant person- ally committed crimes against humanity. Possibility of appli- cant's own death did not justify defence of duress given greater harm inflicted on number of people. Applicant's application based on res judicata and issue estoppel was dismissed on basis Minister's decision in 1985 did not qualify as final decision by court of competent jurisdiction. Application for judicial review was dismissed. Minister's permit in 1985 and current inadmissi- bility allegations were not de- terminations of same question. Granting of Minister's permit and permanent residence were not final decisions. Applicant www.lawtimesnews.com did not show abuse of pro- cess. Applicant did not bring evidence of intentional delay or bad faith. Applicant brought little evidence of prejudice suf- fered by applicant personally. Application of s. 35(1)(a) was not retroactive. Having com- mitted crime against humanity was continuing status. Board's conclusion in rejecting defence of duress stood. Court did not rule proceedings were proce- durally unfair due to conduct of applicant's counsel because applicant failed to show basis on which decision might have been different had applicant had more competent counsel. Lopes v. Canada (Minister of Citizenship and Immigration) (Apr. 14, 2010, F.C., O'Keefe J., File No. IMM-240-09) 187 A.C.W.S. (3d) 1116 (45 pp.). ONTARIO CIVIL CASES Civil Procedure CERTIFICATE OF PENDING LITIGATION Onus was on party opposing certificate to demonstrate that there was no triable issue After extensive negotiations parties entered into agreement of purchase and sale of land. Plaintiff purchaser paid deposit as required. Agreement pro- vided that plaintiff could waive right to terminate agreement in respect of due diligence results by delivering waiver by 5:00 p.m. on June 9, 2009. Version of agreement signed on May 8, 2009, contained handwritten clause providing for termina- tion of agreement for failure of plaintiff purchaser to arrange fi- nancing for loan to pay off pur- chase price. On May 12, 2009, respective representatives of parties met and agreement was purportedly amended by delet- ing handwritten clause. Based on understanding of parties extending time for delivery of waiver plaintiff delivered waiver before expiry of extension on June 9th. Taking position that agreement was terminated for failure of plaintiff to deliver waiver in accordance therewith, defendant vendor returned de- posit which plaintiff refused to accept. Plaintiff sued only for specific performance of agree- ment. Plaintiff obtained order without notice granting leave to issue certificate of pending liti- gation ("CPL") which plaintiff registered on title to property. Defendant brought motion for order discharging CPL arguing that action of plaintiff had no chance of success. Defendant contended plaintiff failed to de- liver waiver on time and waiver was in respect of May 8th ver- sion of agreement and not May 12th version which plaintiff was disputing. According to defen- dant property was not unique and plaintiff's interest was to be adequately protected by other form of security. Motion dis- missed. Question to be resolved was whether there was triable issue not whether plaintiff was likely to succeed. Onus was on party opposing CPL to demon- strate there was no triable issue. Defendant failed to meet onus since there was triable issue as to which version of agreement was operative one. Of factors to be considered on motion to dis- charge only one factor militated in favour of discharging CPL which was fact that plaintiff was shell corporation. Save for bal- ance of harm, remaining factors favoured keeping CPL in place. Property had qualities particu- larly well suited for plaintiff's intended use and was therefore unique to plaintiff. Plaintiff made no alternative claim for damages. Damages were not likely to be calculated with ease considering complex provi- sions of agreement in respect of respective deliverables of par- ties. As well ultimate purchase price to be paid by plaintiff was based on complex and detailed formula and was conditional on outcome of future events. Judge was satisfied that damages would not be adequate remedy. There was also no evidence of existence of another potential purchaser for property. Factor of balance of harm to parties appeared to be neutral. Equities of case favoured order allowing CPL to remain in place. Terracap Investments Inc. v. 2811 Development Corp. (Apr. 29, 2010, Ont. S.C.J., Master Muir, File No. 09-CV-381329) 187 A.C.W.S. (3d) 927 (15 pp.). CLASS ACTIONS Class proceeding was preferable procedure, particularly when class included large number of international students Motion by plaintiffs for certi- fication of action as class pro- ceeding. Defendant was college that offered eight-month inter- national business management program. Course calendar in- dicated program provided stu- dents with opportunity to com- plete three industry association ("IA") certifications. Calendar listed required courses for each IA certification but defendant had not sought accreditation from IA's. Calendar indicated

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law