Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Trial CHARGE TO JURY Trial judge's reference in charge to accused's post-offence conduct did not constitute error in law Police officer responding to do- mestic dispute shot and killed during struggle with accused. Accused admitted shooting of- ficer but denied having intent to kill. In charge to jury, trial judge referred to accused's post- offence conduct when summa- rizing Crown's evidence. Ac- cused convicted of first degree murder and conviction upheld by majority of Nunavut Court of Appeal. Dissenting judge found that trial judge erred by suggesting in charge that jury might directly infer intent from accused's post-offence conduct. Accused appealed. Appeal dis- missed. Trial judge's reference in charge to accused's post-offence conduct did not constitute error in law. Trial judge misconstrued Crown's theory in first sen- tence of impugned portion of charge but error did not engage s. 686(1)(a) of Criminal Code. Second sentence of impugned passage could not reasonably be understood to suggest that jury could infer intent from accused's post-offence conduct alone. Tri- al judge was merely summariz- ing Crown evidence and setting out Crown's argument on how evidence at trial might be used to resolve central issue of intent. Confusion surrounding passage might be partly explained by potential for transcription dif- ficulties at bilingual trial. Ambi- guity in charge should not auto- matically be resolved in favour of accused. Even if reference to post-offence conduct in charge had constituted error of law, cu- rative proviso applicable. (Bin- nie and Fish JJ., dissenting). R. v. Jaw (Sep. 25, 2009, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32706) Appeal from 77 W.C.B. (2d) 674 dismissed. Order No. 009/268/042 (45 pp.). FEDERAL COURT Aboriginal Peoples TREATIES Promise created treaty right to land In 1871 parties came to land agreement by which applicants gave up title to land and respon- dents promised to set aside land for applicants' exclusive use. Respondents decided to trans- fer lands. Applicants sought to have respondents recognize and act on treaty obligations with respect to land. Decision with respect to land was invalid. Ap- plicants showed treaty right to land existed. Applicant showed there were legal expectations on Canada with respect to conduct of implementation that were not met. Promise created treaty right to land. Respondents had duty to consult. Respondent did not meet legal expectations placed on it to consult with ap- plicants before making decision to transfer lands. Brokenhead First Nation v. Canada (Attorney General) (Sep. 30, 2009, F.C., Campbell J., File No. T-139-08) Order No. 009/280/080 (25 pp.). Administrative Law FREEDOM OF INFORMATION Applicant did not establish case for any exemptions Applicant made complaint about bid on tender for which applicant was not successful. Board received request for copy of all correspondence between board regarding contract award of weather forecasting. Request made specific mention of let- ter by applicant on contract. Board decided to release infor- mation in response to request. Application for judicial re- view was dismissed. Applicant did not establish case for any November 16, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 726-5419, or 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. exemptions. Letters contained nothing in way of "knowledge of duties and processes used in conducting weather forecast- ing and weather monitoring". Letters were about Chevron bid and applicant's on-going dispute arising out of bid. It was not kind of information exemptions in s. 20(1) of Ac- cess to Information Act (Can.), were intended to cover. Harm or disadvantage claimed by ap- plicant remained speculative and unproven. Oceans Ltd. v. Canada-New- foundland and Labrador Off- shore Petroleum Board (Sep. 28, 2009, F.C., Russell J., File No. T-1363-08) Order No. 009/280/085 (39 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION Motion for reconsideration was dismissed Applicant filed human rights complaints against employer and respondent personally. Applicant's complaint against respondent was dismissed. Ap- plicant sought judicial review. Applicant brought motion for leave to file supplementary evidence including proceed- ing involving complaint by another employee against re- spondent and reference in mo- tion to investigation report in applicant's complaint against employer. Motion was dis- missed. Applicant's motion for reconsideration was dismissed. Questions in motion were not vital to final issues. Court was not convinced report from other proceeding should be included in judicial review ap- plication. Applicantís explana- tions did not convince court as to why material was not introduced earlier and how it would not seriously prejudice other side now. There was no reason to conclude order was clearly wrong or based on mis- apprehension of facts. Boiko v. Grover (Sep. 24, 2009, F.C., Boivin J., File No. T-136- 08) Order No. 009/280/088 (9 pp.). Intellectual Property Industrial And TRADEMARKS Additional evidence established existence of license Appeal by owner of trade-mark from decision of Registrar of Trade-Marks expunging trade- mark from register. Predeces- sor of owner registered trade- mark "ENTRE NOUS" in association with long distance telephone services. Subsidiary of owner used trade-mark un- der licence. Law firm applied to have trade-mark expunged for non-use. Owner submitted evi- dence of use by subsidiary but did not file evidence establish- ing license. Registrar expunged trade-mark for non-use by owner. Owner provided further evidence on appeal establish- ing existence of license. Appeal allowed. Standard of review in cases involving new evidence was correctness in accordance with prior authority. Owner's additional evidence established existence of license. Additional evidence also established own- er's ongoing control of subsid- iary's use. 3082833 Nova Scotia Co. v. Lang Michener LLP (Sep. 17, 2009, F.C., Kelen J., File No. T-663- 08) Order No. 009/274/069 (15 pp.). Social Welfare CANADA PENSION PLAN Appeals were out of time Applicant carried on business of operating nursing home un- til Ministry occupied nursing home and took possession of files pertaining to home's opera- tion. Judge held letter constitut- ed refusal by Minister to consid- er appeal on grounds it was out of time and was not decision of Minister that could be appealed. Judge recommended application requiring Minister to make deci- sion. Application was to quash purported decision and for man- damus requiring respondent to make decision in respect of no- tices of objection applicant sub- mitted in appealing assessments. Application was dismissed. Applicant had notice of 1991 to 1998 assessments no later than November 2005. No appeal was made until January 2007. Provi- sions respecting timelines of ap- peals were triggered by notice. Appeals submitted January 2007 were out of time. Letter was cor- rect stating that Minister could not proceed with appeals. It was proper decision. 742190 Ontario Inc. v. Canada (Customs and Revenue Agency) (Sep. 30, 2009, F.C., Hughes J., File No. T-499-08) Order No. 009/280/079 (15 pp.). FEDERAL COURT OF APPEAL Labour Relations JUDICIAL REVIEW Adjudicator acted unreasonably in departing from method which he himself had imposed for calculation of losses Federal Court Judge was rea- sonable in upholding adjudica- tor's decision to award overtime rate for hours worked outside of those permitted under collective agreement and not to award any amounts for statutory holiday premiums and transportation expenses with respect to hours worked outside of authorized schedule. Adjudicator's inter- pretation of term "overtime" fell within range of possible, ac- ceptable outcomes which were defensible when regard was had to facts and law. However, ad- judicator acted unreasonably in departing from method which he himself had imposed for cal- culation of losses arising from implementation of unauthorized schedule. Adjudicator's decision was set aside in so far as compen- sation for designated holiday pay was concerned. Matter remitted back to adjudicator. Nitschmann v. Canada (Treasury Board) (Sep. 14, 2009, F.C.A., Noel, Pelletier and Trudel JJ.A., File No. A-583-08; A-585-08) Appeal from 171 A.C.W.S. (3d) 123 was allowed in part. Order No. 009/264/071 (13 pp.). You're down a move. Ready to consider another angle? SMSS.COM CHARLOTTETOWN Untitled-3 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 11/11/09 9:51:23 AM

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