Law Times

Page 14 November 16, 2015 • Law Times www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment PUBLIC SERVICE Dismissal of complaint under s. 190 of Public Service Labour Relations Act upheld on judicial review Complainant alleged em- ployer refused to consider her candidacy for acting appoint- ment because she exercised union functions. Public Ser- vice Labour Relations Board dismissed complaint brought under s. 190 of Public Service Labour Relations Act. Com- plainant argued she did not receive fair and equitable hear- ing. Complainant brought ap- plication for judicial review. Application dismissed. Section 191(3) of Act did not impose re- verse onus. Board chose to re- ject procedural objections sub- mitted by complainant, invit- ing her to present her evidence before that of employer. Al- though board did not provide written reasons for this deci- sion, case file allowed court to infer that complaint was not as sufficiently clear as com- plainant alleged. Board did not commit any errors of law or any procedural errors by in- viting complainant to present evidence at beginning of hear- ing. Board sought to determine whether complainant had been victim of unlawful distinc- tions prohibited by s. 186(2) of Act during relevant period. It was also clear that board heard complainant's grievances and all pertinent evidence. Gal c. Agence du revenu du Canada (Sep. 9, 2015, F.C.A., Johanne Trudel J.A., Boivin J.A., and De Montigny J.A., File No. A-530-14) 257 A.C.W.S. (3d) 847. ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Trial judge did not exercise dis- cretion unreasonably in not giving credit for stringent bail conditions Accused appealed his five-year sentence on weapons offences and asked that it be reduced to three years less credit for pre-sentence custody. Accused submitted sentencing judge erred by failing to give him any credit for his "stringent" bail conditions and that five years was unfit having regard to po- tential unconstitutionality of mandatory minimum sentence of three years for trafficking in firearms. Leave to appeal granted; appeal dismissed. Accused was on bail for 32 months. However, even in first five months, accused was not under house arrest, and overall his bail terms were anything but stringent. Indeed, accused used time on bail to further his rehabilitative efforts, which trial judge took into account in sentence she imposed. Ac- cused's counsel at trial did not ask for credit for his client's bail conditions. Giving credit for time on bail was discretion- ary. Trial judge did not exercise that discretion unreasonably in not giving credit. Accused did not challenge constitution- ality of three year minimum provision. These were very se- rious offences. Accused offered to sell six guns and his motive was entirely profit driven. Ac- cused knew that proposed sales were illicit and that guns would be used for criminal purposes. In light of these ag- gravating considerations was sentence two years above man- datory minimum was entirely fit, even in light of accused's demonstrated efforts to reha- bilitate himself. R. v. Waldron (Aug. 27, 2015, Ont. C.A., Laskin J.A., Hou- rigan J.A., and Pardu J.A., File No. CA C59301) 124 W.C.B. (2d) 324. Drug Offences TRAFFICKING Conviction for trafficking in crack cocaine upheld on appeal Accused appealed his convic- tions for trafficking in crack cocaine and possession of pro- ceeds of crime. Sole issue at tri- al was identification. Accused submitted that trial judge misapprehended material evi- dence; failed to draw reason- able inferences from evidence; and overall rendered verdict that was unreasonable. Appeal dismissed. Trial judge gave thorough reasons in which he explained in detail identifica- tion evidence that he accepted and relied on and that evidence he did not rely on. Officer testi- fied that seller was in rear pas- senger seat on driver's side. Sec- ond officer testified that he fol- lowed car in question, and that no one exited car until accused exited from rear passenger seat on driver's side. Observation of accused was virtually continu- ous starting within seconds of sale. Trial judge was entitled to disregard third officer's evi- dence as it was obviously hear- say and not based on actual ob- servation. Trial judge was also entitled to accept description of accused given by first officer to effect that accused had long hair. This description was con- sistent with officer's immediate description of seller as having big, puff y hair. It was reason- able for trial judge to conclude that none of other occupants of car had hair matching that de- scription. R. v. Humoud (Aug. 27, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59242) 124 W.C.B. (2d) 355. Extraordinary Remedies CERTIORARI Application to quash order to appear personally at trial was dismissed Accused individuals charged with excise and tax offences. Accused individuals applied for order of certiorari quashing order which required them to appear personally at their trial. At trial, accused individuals decided, pursuant to s. 800(2) of Criminal Code, to appear by counsel rather than in per- son. Federal Crown did not consent to accused individu- als appearing by counsel. Trial judge made interlocutory order requiring accused individuals to attend for arraignment, pro- cedural discussions expected to occur after arraignment, and calling of evidence by Crown. Accused individuals argued that trial judge abused discretion by basing decision on pre-existing policy without individualized consideration of case before him. Application dismissed. While trial judge initially approached issue on basis that accused individu- als were required as matter of local practice to attend per- sonally at their trials, court was satisfied that by time trial judge was considering his rul- ing, he was approaching matter correctly. There were combina- tion of general considerations which, in trial judge's view, militated in favour of accused individuals appearing person- ally and considerations specific to particular case. Court was not satisfied that trial judge made decision without regard to particulars of case and fet- tered discretion to extent that he made jurisdictional error. Even if trial judge had abused discretion, court would have declined to quash ruling, as requiring accused individu- als to appear in person at their own arraignment, procedural discussions, and trial was not sufficient justification for do- ing so. R. v. Comtois (Aug. 11, 2015, Ont. S.C .J., Ma r rocco A.C.J.S.C., File No. Brockville 130741, 140129) 124 W.C.B. (2d) 363. ONTARIO CIVIL CASES Civil Procedure SEVERANCE Master erred in sever- ing sexual assault claims Plaintiffs were sisters who claimed that defendant, their uncle, sexually assaulted them when they were children, sev- eral decades ago. Defendant denied allegations. On defen- dant's motion, master severed claims into separation actions. Plaintiffs appealed. Appeal al- lowed. Claims were of historic sexual assault that were alleged to have occurred during same time frame in same house. Claims were not identical but there would be common wit- nesses and common issues. Allegations of sexual assault committed against siblings by same person in same place during same general period of time might fit within category of series of occurrences within meaning of R. 5.01(a) of Rules of Civil Procedure. Based on facts alleged in statement of claim, close temporal and spa- tial nexus and identical famil- ial circumstances, allegations fit within R. 5.02(a). There were factual issues in common. It would increase costs and bur- dens for parties and for admin- istration of justice to have two actions. Separate trials would force plaintiffs to relive experi- ences another time. Joinder re- duced repetition of testimony, shortened process and shielded plaintiffs from pain and stress of unnecessary repetition of testimony. Concern over tai- loring of evidence was best left to parties to manage and to tri- er of fact to assess but it was not basis for ordering severance. It was preferable to leave issue of severance to trial judge. Anderson v. Haroun (Sep. 10, 2015, Ont. S.C.J., D.L. Cor- bett J., File No. CV-13-481406) Decision at 237 A.C.W.S. (3d) 619 was reversed. 257 A.C.W.S. (3d) 815. Constitutional Law CHARTER OF RIGHTS Interlocutory injunction was granted to suspend application of new athletic association regulations Plaintiff CEPEO was public school board serving educa- tion needs of French students in eastern Ontario region. Individual plaintiff was par- ent of two students exercising their minority language rights under s. 23 of Canadian Char- ter of Rights and Freedoms at Louis Riel Secondary School. Louis-Riel was only French language public secondary school that offered sports- study programme, and which any student, irrespective of res- idential address, could attend. In 2012, defendant athletic as- sociation (OFSAA) adopted new regulations pursuant to which students living outside designated school boundaries and attending sports school could not participate in com- petition sanctioned by associa- tion. In addition, new regula- tions stipulated that school boards which chose not to have designed boundaries were deemed to have them regard- less, which had effect of creat- ing artificially designed resi- dential boundaries, despite fact that such boundaries did not exist within CEPEO. CEPEO claimed that students had to choose between possibility of following French-sports stud- ies program and not partici- pating in highest level of OF- SAA competitions, abandon- ing program of their choice, or enrolling in English language school that gave them access to elite OFSAA competition levels. Ontario Human Rights Tribunal dismissed plaintiffs' motions for interim measures. Plaintiff sought to overturn OFSAA regulations. Plaintiffs brought motion for interlocu- tory injunction pending reso- lution of legal issues. Motion granted. Interlocutory injunc- tion was granted under ss. 23 and 24 of Charter in order to suspend application of new OFSAA regulations on fran- cophone minority in eastern Ontario and to maintain status quo before entry into force of new regulations, until under- lying legal issue was resolved. If educational experience was perceived to be lower in schools of minority language and deterred parents from hav- ing their children education in schools of minority language, this created risk of assimila- tion which was not consistent with remedial purpose of s. 23 of Charter. Evidence filed by plaintiffs showed that new regulations had effect of dis- couraging parents from having their children educated in mi- nority language, and showed that Louis Riel School expect- ed reduction of 91 students for school year 2015 to 2016, when compared to enrolment in pre- vious year. There was serious issue to be decided in this case, whether students affected by OFSAA regulations would re- ceive equal education to that CASELAW 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. These cases may be found online in BestCase and other electronic resources from carswell.com. 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