Law Times

Law times • OctOber 3, 2011 one of the cells when accused assaulted victim resulting in fa- cial injuries. Nature of assault was in dispute but court found Crown had proven that accused continually struck victim at least 11 times while four other correctional offi cers looked on. Accused also kneed victim two times and struck him at least three times when victim had his hands over his head and when victim was standing up with his hands behind his back, he forcefully pushed him against wall six times. Court found that there is no evidence that victim was pushing back or fi ghting back or struggling with accused, that he was submis- sive throughout and there was no evidence he had threatened accused. Court found accused attempted to cover incident up. Accused was 40-years old with no criminal record. Court found accused in breach of trust and did not accept that he was remorseful. R. v. Rosa (June 28, 2011, Ont. C.J., Zisman J., File No. 09-1547) 95 W.C.B. (2d) 524 (15 pp.). Evidence CONFESSIONS AND ADMISSIONS Nothing about interview that sug- gested inducements or oppression Accused charged with three counts of arson and two counts of mischief. Crown applied to admit inculpatory statement made to police by accused into evidence. When police spoke to accused following rash of fi res he denied any involvement. Ac- cused was arrested after police searched his computer. Accused spoke to counsel following his arrest. Accused provided vid- eotaped statement to police wherein he confessed to setting fi res and then wrote notes of apology to homeowners. Ap- plication allowed. Th ere was nothing about interview, condi- tions, or interaction with police that suggested inducements or oppression. Material provided accounted for and explained, police contact with accused. Accused's statement to detective was voluntary beyond reason- able doubt. R. v. Gander (June 6, 2011, Ont. S.C.J., Th omas J., File No. CR-10-00002703-00MO) 95 W.C.B. (2d) 495 (15 pp.). TAX COURT OF CANADA INCOME TAX Appellant used amount borrowed to give gifts to relatives and buy home Appellant was sole shareholder and director of corporation. In 2000 corporation loaned appel- lant $5 million. Appellant paid interest on loan but corpora- tion allowed him to keep the capital and made no attempts to recover it. According to ap- pellant corporation forgave loan since corporation was going to be sold to public corporation. In 2002, Minister reassessed ap- pellant and added $5 million to his declared income. Appellant appealed. Appeal dismissed. Even though reassessment was late it was still valid. Appellant did not suff er any prejudice from late reassessment. Appel- lant used amount borrowed to give gifts to his relatives and to buy home. Commercial debt was not a condition to include amount in appellant's income. Remillard v. Canada (June 29, 2011, T.C.C., McArthur J., File No. 2009-1660(IT)G) Reasons in French. 203 A.C.W.S. (3d) 881 (17 pp.). Amount paid directly to independent adult daughter could not be considered child support Appellant was divorced. Appel- lant's daughter, aged 20, was studying in university. Daugh- ter brought action to obtain fi nancial support from appel- lant. Appellant paid $2,125 for the year to his daughter ac- cording to terms of judgment. When appellant fi led his in- come tax he claimed deduction of $2,125 in child support. Minister reassessed appellant and disallowed deduction. Ap- pellant appealed. Appeal dis- missed. Amount paid directly to independent adult daughter could not be considered child support. Former spouse did not receive any of the amount paid. Larouche v. Canada (June 29, 2011, T.C.C., Favreau J., File No. 2010-3669(IT)I) Reasons in French. 203 A.C.W.S. (3d) 884 (6 pp.). ONTARIO CIVIL CASES Civil Procedure WANT OF PROSECUTION Respondents did not proceed as if they were acting on principle of finality Th is was appeal from motion judge's dismissal of motion to set aside registrar's adminis- trative dismissal order. Motor vehicle accident occurred on October 5, 2001. Appellant al- leged that tractor trailer driven by respondent swerved into her lane on highway. Appellant was involved in second motor vehi- cle accident in March 2005 and commenced separate action. In August 2007 registrar made ad- ministrative dismissal of action. Status notice and order dismiss- ing action were sent to appel- lant's former counsel. On ap- plication to set aside dismissal order motion judge found delay was not adequately explained, prejudice could be inferred and presumed and respondents were entitled to rely on fi nality of registrar's order. Appeal al- lowed. It was palpable and over- riding error to say that appellant did not give any reason for slow progress of matter up to date of status hearing notice. Re- spondents' counsel continued to attend discoveries in second CASELAW accident and did not raise any indication that something was wrong so it was hard to see what prejudice respondents were suf- fering. Respondents did not proceed as if they were acting on principle of fi nality, as they continued to participate in liti- gation. Registrar's order should have been set aside. Aguas v. Rivard Estate (July 5, 2011, Ont. C.A., Rosenberg, Feldman and Juriansz JJ.A., File No. C52438) 203 A.C.W.S. (3d) 741 (25 pp.). Wills And Estates ESTATE ADMINISTRATION Bill of costs in excess of $700,000 must be able to stand on its own Th is was appeal from motion judge's decision ordering partial probate. Parties were brother and sister. Mother made will in 1987, which expressly excluded appellant and her children. Af- ter will was executed there were four codicils. Mother died in November 2007. Respondent applied for summary judgment in respect of 1987 will and codicils. Motion judge granted partial probate in respect of 1987 will and fi rst two codicils. Motion judge made award for full amount of fees requested by respondent. Appeal allowed in part. Appellant raised signifi - cant concerns about bill of costs presented by respondent and they must be addressed even if appellant failed to fi le own bill of costs. Bill of costs in excess of $700,000 must be able to stand on own without reference to bill of costs from appellant. Costs award was set aside and issue of quantum was referred to mo- tion judge for reassessment. Smith Estate v. Rotstein (July 5, 2011, Ont. C.A., Armstrong, Epstein and Karakatsanis JJ.A., File No. C52105) Decision at 187 A.C.W.S. (3d) 900 was af- fi rmed. 203 A.C.W.S. (3d) 898 (23 pp.). FEDERAL COURT OF APPEAL Crown PRIVILEGE Informer privilege did not apply to Canadian Security Intelligence Service human sources Th is was appeal from Federal Court Judge's decision order- ing disclosure of documents that were allegedly sensitive and potentially injurious. Appeal allowed. Th ree-prong test to be applied was set out in R. v. Ribic (2003), 185 C.C.C. (3d) 129 (F.C.A.). Judge must fi rst determine whether information sought to be disclosed was rel- evant to proceedings in which it was intended to be used. If information met relevancy test judge must determine whether disclosure of information would be injurious to international relations, national defence or www.lawtimesnews.com national security. If judge was satisfi ed that disclosure of sen- sitive information would result in injury judge must deter- mine whether public interest in disclosure outweighed public interest in non-disclosure. In- former privilege did not apply to Canadian Security Intelli- gence Service human sources, as that would be contrary to s. 38 of Canada Evidence Act and express will of Parliament. However, in applying Ribic test judge either discounted evidence of injury or did not give it weight it deserved. Judge committed palpable and over- riding error and disclosure or- der was set aside. Canada (Attorney General) v. Kalifah (June 13, 2011, F.C.A., Blais C.J., Letourneau and Tru- del JJ.A., File No. A-428-10) 203 A.C.W.S. (3d) 771 (32 pp.). Torts MISFEASANCE IN PUBLIC OFFICE Statement of claim did not plead all elements of tort with nec- essary material facts Th is was appeal from Federal Court Judge's decision refusing to strike out respondent's state- ment of claim. Respondent al- leged that appellant caused it over $10 million in damages by injuring its tour business. Respondent brought action against appellant based on tort of abuse of public offi ce. Ap- Page 15 pellant applied to strike out statement of claim. Prothono- tary found that statement of claim pleaded suffi cient mate- rial facts. Federal Court Judge dismissed appellant's appeal on basis that tort of abuse of pub- lic offi ce could succeed on facts pleaded in statement of claim. Appeal allowed. In present form statement of claim did not plead all elements of tort with necessary material facts and particulars, especially on mental state, knowledge and intentions of appellant. Since decision was made Merchant Law Group v. Canada Revenue Agency (2010), 321 D.L.R. (4th) 301, 192 A.C.W.S. (3d) 663 (F.C.A.), made it clear that in action for abuse of public of- fi ce plaintiff must plead as ma- terial fact in statement of claim identity of individuals whose actions were said to constitute abuse of public offi ce. Mer- chant did not place too great burden on plaintiff . Merchant was not manifestly wrong and it was binding. Vast majority of allegations of misconduct in statement of claim were di- rected to appellant itself, not individuals. Statement of claim was insuffi cient and must be struck out. Adventure Tours Inc. v. St. John's Port Authority (June 10, 2011, F.C.A., Blais C.J., Dawson and Stratas JJ.A., File No. A-307- 09) Decision at 179 A.C.W.S. (3d) 767 was reversed. 203 A.C.W.S. (3d) 892 (27 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. Contact your Account Manager to compare BestCase to your current research services! www.canadalawbook.ca a Thomson Reuters business

• Cover
• Search Guidlines
• Innovative Program
• Focus On Litigation