Law Times

Law Times • march 7, 2016 Page 13 www.lawtimesnews.com 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. To subscribe, please call 1-800-387-5164. SUPREME COURT OF CANADA Charter of Rights LIMITATION OF RIGHTS AND FREEDOMS Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1 Petitioners challenged validity of provincial legislation providing for licence suspensions and mon- etary penalties for drivers who register "fail" or "warn" on road- side approved screening device (ASD) test. Automatic Roadside Prohibition (ARP) regime pro- vided for 90-day suspension for drivers registering "fail" (over .08 blood-alcohol) and lesser penal- ties for "warn" (.05 to .08) result. Petitioners argued that ARP regime resulted in detention of drivers subject to ASD demands without access to counsel and au- thorized unreasonable searches. Petitioners also argued that ARP regime created offence while per- mitting no procedural protec- tions and infringing presump- tion of innocence. Chambers judge found that ARP regime did not infringe s. 11(d) of Charter, but that ARP regime infringed s. 8 of Charter and violation was not saved by s. 1. Chambers judge also found that provisions were valid provincial legislation. Court of Appeal upheld ruling of Chambers judge. Appeal dis- missed. Legislation did not cre- ate "offence" within meaning of s. 11(d). No true penal consequenc- es can be imposed under regime. ARP regime was by its nature traffic safety regulation and not criminal law. Consequences of "fail" result to drivers were too severe in light of legislation's lack of any mechanism by which driv- ers could challenge ASD results. Goodwin v. British Colum- bia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 112 W.C.B. (2d) 337 was affirmed. 126 W.C.B. (2d) 540. Motor Vehicles PROVINCIAL REGULATION Evidence in addition to approved screening device result not required to support driving prohibition W registered "warn" result on approved screening device. Po- lice imposed three-day driving prohibition under s. 215.41(3.1) of provincial Motor Vehicles Act. Prohibition was upheld by del- egate of Superintendent of Mo- tor Vehicles. On judicial review, prohibition quashed on basis that more evidence was needed that W's ability to drive was af- fected by alcohol. Court of Ap- peal restored prohibition. Appeal dismissed. Superintendent was correct not to require evidence in addition to ASD result. Wilson v. British Columbia (Superintendent of Motor Ve- hicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35959) Decision at 115 W.C.B. (2d) 57 was affirmed. 126 W.C.B. (2d) 567. FEDERAL COURT OF APPEAL Immigration INADMISSIBLE AND REMOVABLE CLASSES Application to quash s. 104 notice was properly dismissed Applicant sought refugee pro- tection claiming fear of perse- cution as result of his activi- ties with Kurdish Democratic Party of Iran. Before his refugee claim could be heard by Refu- gee Protection Division (RPD), applicant's case was referred to Immigration Division (ID) for determination as to his admissi- bility. ID found applicant was in- admissible for being member of organization that it had reason- able grounds to believe had been engaged in subversion by force of Iranian government. Canadian Border Services Agency (CBSA) officer gave notice to applicant and RPD under s. 104 of Immi- gration and Refugee Protection Act that applicant had been de- termined to be inadmissible on security grounds (s. 104 notice). Implicit from wording of notice was CBSA officer believed ap- plicant's refugee claim was now ineligible, and termination of his pending RPD proceeding neces- sarily followed. Applicant's ap- plication to quash s. 104 notice was dismissed. Trial judge found officer's interpretation of IRPA was both reasonable and correct. Trial judge found applicant had not demonstrated principles of judicial comity should not apply, or that there was basis for reach- ing different conclusion. Trial judge found legislative scheme, legislative history and principles of legislative construction all supported conclusion reached in earlier decision. Applicant ap- pealed. Appeal dismissed. Nei- ther case law nor enactment of Protecting Canada's Immigra- tion System Act had any impact on s. 104 notice. Application for ministerial relief had no bear- ing on operation of s. 104. Fact that officer takes notice of facts and communicates legal conse- quence imposed by Act did not make officer decision-maker with discretion. Haqi v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Nov. 17, 2015, F.C.A., Nadon J.A., A.F. Scott J.A., and Rennie J.A., File No. A-30-15) Decision at 249 A.C.W.S. (3d) 639 was affirmed. 261 A.C.W.S. (3d) 689. FEDERAL COURT Injunctions INTERLOCUTORY RELIEF Expanding scope of injunc- tion order would disrupt bal- ance of convenience analysis Action challenged constitution- ality of Marihuana for Medical Purposes Regulations. Plain- tiffs were granted interlocutory injunction that had very spe- cific terms designed to balance number of competing interests. Plaintiffs wanted to change dates set out in injunction order and to change class of persons cov- ered by order and extend order to wider group of former Mari- huana Medical Access Regula- tions holders. Plaintiffs brought motion to vary injunction. Mo- tion dismissed. Matters raised on motion were not truly new. Motion was premature. To ac- cept plaintiffs' characterization of evidence, its weight and sig- nificance would require court to make critical determinations in advance of decision on underly- ing Canadian Charter of Rights and Freedoms challenge. It was not appropriate for court to en- gage in piecemeal and premature consideration of aspects of its fi- nal judgment. Court should not alter carefully crafted interlocu- tory injunction order by expand- ing its terms. Expanding scope of injunction order would disrupt balance of convenience analysis. Relief sought extended past de- cision date of Charter challenge. Interlocutory orders were de- signed to expire when final deci- sion in litigation was made. Allard v. Canada (Jul. 15, 2015, F.C., Michael L. Phelan J., File No. T-2030-13) 261 A.C.W.S. (3d) 708. ONTARIO CIVIL CASES Animals GENERAL Appellant recklessly allowed her animals to continue in distress Respondent removed appellant's horses and goat. Animal Care Review Board (ACRB) ruled that removal of appellant's horses and goat was in accordance with s. 14(1)(a) and (c) of Ontario Society for the Prevention of Cruelty to Animals Act. Identified animals were to remain with respondent at appellant's expense until treat- ing veterinarian deemed them healthy for return. Animals deemed healthy by treating vet- erinarian were to be returned to appellant on conditions. Appel- lant was to pay boarding costs and additional expenses incurred relating to care or treatment of animals. Appellants appealed seeking revocation of orders, return of animals removed and setting aside of order for cost of care and treatment. Appeal dis- missed. Ruling that animals were removed in compliance with Act was confirmed. Some alterations were made to orders of ACRB. There was nothing inappropriate in conduct of respondent with respect to disclosure. Animals were properly assessed as being in distress. Respondent's orders were properly issued to appel- lant with conditions designed to relieve ongoing distress of animals. Appellant did not take action required by respondent's orders to relieve distress of ani- mals. Appellant's concerns about respondent's refusal to provide her with necessary disclosure fail on uncontroverted evidence that respondent did not have control over material that appellant was seeking. Appellant recklessly al- lowed her animals to continue in distress by failing to avail herself of many offers by respondent to assist her in securing services of qualified veterinarian. Costs of maintaining animals were rea- sonable. There was no delay in hearing generated by conduct of board that unfairly generated ad- ditional costs to appellant. Hurley v. Ontario Society for the Prevention of Cruelty to Ani- mals (Dec. 11, 2015, Ont. S.C.J., A.D. Kurke J., File No. 26834/15) 261 A.C.W.S. (3d) 509. Civil Procedure TRIAL Defendants' motion to change venue from Windsor to Toronto was granted Plaintiffs brought class action on behalf of two classes of inves- tors who had purchased shares in defendant company W Inc, either on basis of prospectus or in secondary market, and held those shares at close of trading on TXS on November 12, 2014. Plaintiffs sought, among other things, declarations defendants had breached s. 130 of Securities Act and been negligent. Defen- dants brought motion pursuant to R. 13.1.02 of Rules of Civil Procedure to change venue of proceeding from Windsor, Ont. to Toronto, Ont. Motion granted. Plaintiffs had prima facie right to choose venue. They were not required to establish any ratio- nal connection or that choice reasonable. Defendants seek- ing change of venue required to establish change in interests of justice. Where plaintiffs' choice unreasonable and defendants' choice reasonable, change likely to be granted as matter of com- mon sense. Where both choices reasonable, defendants required to establish theirs was "signifi- cantly better". Issue had to be considered as holistic exercise with no enumerated factor en- titled to greater weight. In this ARE YOU RECEIVING CANADIAN LEGAL NEWSWIRE? Keep abreast of essential late-breaking legal news and developments with our electronic newswire. 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