Law Times

February 1, 2016

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Page 2 February 1, 2016 • Law Times Court rules judge didn't hear full oral argument judge appears unduly supportive of your arguments, then perhaps you shouldn't run too far ahead," he says. Dillon says lawyers should rely on the case and take on the man- tle of officer of the court to ensure both sides have been properly represented to the bench. "This is where you act as an officer of the court; if you're go- ing to advocate to the best of your ability, it includes to a certain extent reining in an overzealous judge," says Dillon. "This case will serve as a pret- ty good stick to beat back that overzealousness." In the original matter, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, three On- tario plaintiffs, and five out-of- province plaintiffs sued four for- eign defendants (IFS) for breach of various franchise agreements in a claim issued in March 2013. IFS brought a motion to dis- miss the proceeding for lack of jurisdiction, taking the position the claims should be brought in California. Corbett dismissed the motion, finding there was jurisdiction simpliciter in Ontario and that a single proceeding would be more suitable in Ontario. IFS appealed to the appeal court to challenge the jurisdic- tional finding and alleged Cor- bett's comments and conduct during the course of hearing the motion gave rise to their con- cerns of bias. Counsel for IFS argued that during a jurisdictional motion hearing in the matter, Budd & Sons filed one affidavit that was contested on the grounds it was extensively based on information provided to Budd by others with- out identifying the source of the information. The appeal court ruling states Corbett agreed the evidence was improper and ad- journed the motion to allow the respondents to serve a further affidavit. During the second hearing on joinder and forum non con- veniens, Corbett dismissed IFS's motion for the matter to be heard in California, referring to it as an "abuse of process" before hearing the full scope of the evidence, the appeal court found. The appeal court ruling goes on to state Corbett's conclusions that "the motion was so devoid of merit and brought in a time- consuming, expensive and im- practical manner" also gave rise to the concern of bias and led to the finding IFS Vehicle was de- prived of a fair hearing. "In my view, at various points in the proceedings the motion judge conducted himself in a manner that gave the appearance that he favoured the respondents' position," the ruling states. "First, he adjourned the motion on his own initiative to give the respon- dents an opportunity to correct a f law that he identified as being fatal to their position." The appeal court also found: "In the second scheduled hear- ing, the motion judge dismissed the motion halfway through the full-day that had been sched- uled without giving counsel the opportunity to make oral sub- missions on two issues that he properly identified as 'principal arguments' — joinder and forum non conveniens. The parties had prepared their arguments with respect to these issues at the mo- tion judge's request." The appeal court said Corbett decided the jurisdictional chal- lenge without hearing the full oral argument, which was "cause for particular concern." The appeal court ruled Cor- bett's conclusion there was juris- diction simpliciter of all claims in Ontario, because the claims of the Ontario plaintiffs are prop- erly joined with those of the non- Ontario plaintiffs, was incorrect. The ruling stated he "effec- tively found that a non-Ontario plaintiff can be substantially connected to Ontario, without having established a presump- tive connecting factor between the subject matter of the litiga- tion and the forum, if the non- Ontario plaintiff 's claim is prop- erly joined with that of at least one plaintiff that has established jurisdiction simpliciter." Lawyer Marvin Huberman, a senior business lawyer, says the rare finding reinforces the appeal court's "willingness and strong desire to assure the fair, efficient and effective operation of the administration of justice in Ontario. "It takes a very responsible view of maintaining the core val- ues of our traditional adversarial system of litigation," he says, adding the ruling also serves as a warning to the bench that judges must take a rigorous look into the admissibility of evidence. "The court is really telling people in the administration of justice, particularly trial judges, that we have to protect and pre- serve and assure the public that the principles at the core of the system are being maintained and promoted." Counsel for Budd declined to comment. Counsel for IFS could not be reached for comment pri- or to press time. LT NEWS Continued from page 1 Keep up-to-date on the latest judicial developments by reading Law Times' CaseLaw on pages 14 - 15 Court Disaster Don't This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2016 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors BOE2VFCFDOPUBSJFTDPSQPSBUFDPVOTFMMBXȮSNTBOEKVEHFTBDSPTT$BOBEB • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important MBXSFMBUFEPGȮDFT THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • lBTUOBNFȮSTUJEFOUJȮDBUJPOJOUIFGFEFSBMBOEQSPWJODJBMMJTUJOHT • separate section of corporate law departments for more than 1,250 companies • pSPGFTTJPOBMDBSETPGQSPNJOFOU$BOBEJBOMBXȮSNT • International Agency Referral Cards AREAS OF PRACTICE AND ENHANCED LISTING INDEX The enhanced listing index is displayed in bold type with detailed practice information. It also: • lJTUTȮSNTBOEMBXZFSTUIBUIBWFFYQBOEFEUIFJSQSBDUJDFJOGPSNBUJPOJOUIFJS provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings Hardbound • Published February each year • L88804-765 • On subscription $169* • One time purchase $188* Multiple copy discounts available * Plus shipping/handling and applicable taxes ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS Untitled-2 1 2016-01-25 12:35 PM the officer should not have been prosecuted for following his training. It is "akin to officially induced error," said Brauti in court. However, a motion to stay the verdict because the officer was following his training is unlikely to succeed, says Daniel Rechtshaffen, a Toronto defence lawyer. Forcillo's actions are still re- quired to be reasonable, which the jury found that it was not, when he fired the second volley while Yatim was wounded and dying. "You can't say that is part of the training," Rechtshaffen says. The Supreme Court of Cana- da has previously upheld a four- year minimum sentence for manslaughter with a weapon in a case where the accused was an RCMP officer. Given that ruling and the traditional range for attempted murder sentences, the Charter challenge is a "red herring," sug- gests Rechtshaffen. The jury's verdict on the second-degree murder charge makes it difficult for the death of Yatim to be an aggravating fac- tor, says Michael Dineen, a part- ner at Dawe & Dineen in Toron- to, who specializes in criminal appeals. "That would come close to punishing him for that which he was acquitted," Dineen says. At the same time, both Prin- gle and Dineen point out that the officer was in a position of public trust, which is an aggra- vating factor. At his trial, Forcil- lo testified that he had drawn his gun about a dozen times, in the 3½ years he was a police officer, but had never previously fired it on duty. Crown attorneys Milan Ru- pic and Ian Bulmer declined to comment after the verdict. The prosecutors were singled out for praise though by Sahar Bahadi, the mother of Sammy Yatim. "They were very strong and showed so much class during the trial," she stated. It is not known what sentence the Crown will ultimately seek, but it is expected to be signifi- cantly more than the manda- tory minimum. What remains to be seen is how Justice Then will apply the murder acquittal to the sentence he imposes on the officer. For the past 25 years, the comments of the late Chief Justice Antonio Lamer in the Supreme Court's decision in R v. Logan have frequently been cited by trial judges in attempted murder cases. "The stigma associated with a conviction for attempted murder is the same as it is for murder," Lamer wrote. "The at- tempted murderer is no less a killer than a murderer: he may be lucky — the ambulance ar- rived early, or some other fortu- itous circumstance — but he still has the same killer instinct." The Ontario Court of Ap- peal in a 2008 ruling in R v. Tan looked at a number of other cases and concluded that nine years was "at the lower end of the range" for attempted murder. Two years later, in R v. Smith, the appellate court upheld a 10- year sentence for a first offender. Forcillo remains free on bail and suspended with pay. LT Charter challenge a 'red herring' Continued from page 1 [The prosecutors] were very strong and showed so much class during the trial. Sahar Bahadi

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