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Page 14 June 20, 2016 • Law Times www.lawtimesnews.com CASELAW 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 Jury DELIBERATIONS Despite trial judge's errors, trier of fact would inevitably have entered conviction Accused was charged with first degree murder and attempted murder. Trial judge refused to admit in evidence out-of-court statements made by one victim and gave instruction with re- spect to fabrication of alibi. Ac- cused was eventually convicted on both counts. Accused ap- pealed against his convictions. Majority of Court of Appeal held that trial judge erred in not ad- mitting in evidence out-of-court statements and in giving jury in- struction with respect to fabrica- tion of alibi. However, majority found that deference was owed to trial judge's decision to give instruction in that regard. Con- cluding that case against accused was overwhelming, they applied curative proviso of s. 686(1)(b) (iii) of Criminal Code and con- firmed convictions. Accused appealed as of right to Supreme Court of Canada. Appeal dis- missed. Instruction trial judge gave with respect to fabrication of alibi was erroneous. Trial judge should specify in such in- struction that fabrication of alibi would support inference of con- sciousness of guilt, but no more than that. Instruction in this case did not satisfy this requirement. Moreover, there should be other evidence independent of find- ing that alibi was false on basis of which reasonable jury could conclude that alibi was deliber- ately fabricated and that accused was involved in that attempt to mislead jury. However, despite trial judge's errors, evidence in case at bar was so overwhelming that trier of fact would inevitably have entered conviction against accused. Therefore, convictions were upheld. R. c. Laliberté (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Cromwell J., Wagner J., Gascon J., and Brown J., 36712) Decision at 126 W.C.B. (2d) 478 was af- firmed. 129 W.C.B. (2d) 153. Murder FIRST DEGREE MURDER Trial judge's findings were supported by evidence Deceased was sexually assault- ed, killed by strangulation and then burned. Accused and de- ceased were seen together in se- curity videos before her death. Accused's DNA was found on tissue sample underneath de- ceased's fingernails, but no other DNA evidence linked accused to deceased. Trial judge con- victed accused of first degree murder. Trial judge held that underlying offence of sexual as- sault and murder were one part of single transaction. Trial judge found that accused's partner provided credible evidence of ac- cused's conduct after deceased's death, which included unusual washing. Trial judge held that accused's conversation with undercover officer, regarding burning of body to dispose of it, was probative circumstantial evidence. Trial judge found that transference of DNA occurred during struggle between ac- cused and deceased that resulted in her death. Trial judge held that it was established beyond reasonable doubt that accused was perpetrator who sexually assaulted and killed deceased. Accused's conviction appeal was dismissed. Verdict was not unreasonable and was one that properly instructed jury, acting judicially, could have rendered. Trial judge's assessment of evi- dence of accused's partner could not be said to be unsupported by evidence. Trial judge's find- ings were supported by evidence, which served to support ultimate conclusion of guilt. Accused ap- pealed. Appeal dismissed. Rea- sons of majority were substan- tially agreed with. R. v. Shaoulle (May. 2, 2016, S.C.C., McLachlin C.J.C., Abel- la J., Moldaver J., Côté J., and Brown J., 36704) Decision at 125 W.C.B. (2d) 296 was affirmed. 129 W.C.B. (2d) 167. Federal Court of Appeal Administrative Law JUDICIAL REVIEW Original decision of adjudicator was owed degree of deference Appellant was federal employee who filed grievance over his dis- missal. Grievance was dismissed and employee applied for judi- cial review. Application was dis- missed. Employee sought to have appeal court set aside dismissal, and grant judicial review. Em- ployee sought to introduce new evidence in doing so. Appeal dismissed. Reasonableness was proper standard of review. Orig- inal decision of adjudicator was owed degree of deference, as it involved home statute. Decision of adjudicator was supported by facts and jurisprudence. Inter- locutory decisions made against employee were not appealed and were now final. These decisions could not be subject of appeal. Teti v. Canada (Attorney General) (Mar. 14, 2016, F.C.A., Noël C.J., David Stratas J.A., and Rennie J.A., A-481-14) Decision at 246 A.C.W.S. (3d) 680 was af- firmed. 265 A.C.W.S. (3d) 278. Criminal Law PROCEEDS OF CRIME "Actual possession" in Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.), means actual, physi- cal possession, not ownership Appellant plaintiff and wife were catching f light to Caribbean when intercepted by Canada Border Services Agency officer. Appellant told officer they did not have cash in amount of CAD$10,000 or more. Search revealed that appellant was car- rying $13,820.99. Officer seized funds and penalized appellant $2,500 before letting him leave with balance of funds. Appel- lant believed that he did not need to declare money since he and wife jointly owned it. Min- ister of Public Safety and Emer- gency Preparedness's delegate affirmed officer's decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Ter- rorist Financing Act (Can.) had been violated and penalty was appropriate. Appellant appealed from decision. Federal Court found that "actual possession" meant possession, not owner- ship, and also dismissed defence of officially induced error. Fed- eral Court dismissed appeal. Appellant appealed from Fed- eral Court decision. Appeal dis- missed. Pursuant to Act and s. 2 of Cross-border Currency and Monetary Instruments Report- ing Regulations (Can.) traveller leaving Canada in "actual pos- session" of CAD$10,000 or more must declare currency. "Actual possession" in Act, in particular s. 12(3)(a) of Act meant actual, physical possession, not owner- ship. Appellant had actual, physi- cal possession of currency, which exceeded CAD$10,000. Further- more, factually-suffused conclu- sion could only be set aside on basis of palpable error, namely that error was "obvious" and "went to very core of outcome of case" which was not case here. Wise v. Canada (Minister of Public Safety and Emergen- cy Preparedness) (Apr. 6, 2016, F.C.A., David Stratas J.A., Webb J.A., and Gleason J.A., A-521-14) Decision at 246 A.C.W.S. (3d) 380 was affirmed. 265 A.C.W.S. (3d) 379. Ontario Civil Cases Civil Procedure CHANGE OF SOLICITOR Law firm was disqualified from representing plaintiff Plaintiff and corporate defen- dant were competitors. Personal defendant was officer of corpo- rate defendant. Defendants as- serted law firm for plaintiff was in conf lict of interest because partner of law firm acted for personal defendant in two mort- gage transactions in which per- sonal defendant disclosed confi- dential information to law firm. Defendants brought motion to remove law firm for plaintiff. Motion granted. Law firm was disqualified from representing plaintiff in proceedings. Per- sonal defendant provided lawyer with confidential financial in- formation that could be used to his prejudice if information were shared with plaintiff. There was no evidence that conf licts check was done when personal defen- dant retained law firm. There was no evidence that law firm established protective screen, cone of silence or ethical wall to ensure that personal defendant's confidential information was not shared within firm. Mo- tion was not abuse of process or part of calculated tactic to derail litigation. Immediate interests of defendants were directly adverse at time lawyer accepted retainer. Fact that two retainers were un- related did not prevent applica- tion of bright line rule. A Big Mobile Sign Co. v. Curbex Ltd. (Mar. 23, 2016, Ont. S.C.J., R.E. Charney J., Barrie CV-15-0329) 265 A.C.W.S. (3d) 500. SETTLEMENT Motion judge did not err by enforcing settlement Employee was dismissed and brought action for payment of bo- nus. Parties settled action at me- diation. Two days later, employer learned employee was working for competitor. Employer alleged parties had not reached settle- ment and brought action against employee for breach of non-com- petition agreement. Employee brought successful motion for judgment in accordance with set- tlement. Employer appealed. Ap- peal dismissed. There was clear evidence to support finding that parties settled employee's claim for payment of amounts owed to him on dismissal. Motion judge did not err by enforcing settle- ment in face of employee's alleged post-termination breach of non- compete clause in employment contract. Motion judge's deter- mination that settlement did not include any claim by employer for alleged breach was reasonable. Wilson v. Northwest Value Partners Inc. (Apr. 4, 2016, Ont. C.A., Robert J. Sharpe J.A., R.G. Juriansz J.A., and L.B. Roberts J.A., CA 60943) Decision at 257 A.C.W.S. (3d) 85 was affirmed. 265 A.C.W.S. (3d) 341. Contempt of Court GROUNDS Husband found in contempt of court when he sold properties and failed to advise wife's lawyer Parties married in 2002, separat- ed in 2012, and separated defini- tively in February 2013. Parties' children of previous relationships lived with parties on and off. Par- ties lived with husband's father. Husband inherited home from father in 2012. Husband owned other property. Court order in 2013 ordered husband to advise wife's lawyer of sale of either prop- erties. Husband sold properties and failed to advise lawyers. Hus- band paid debts and did not re- ceive funds for his own use. Wife applied for finding that husband was in contempt of court, and other relief. Application granted, in part, on these grounds. Hus- band found in contempt of court. Husband ordered to pay $2,500 penalty to wife. Husband failed to tell his own lawyer he sold prop- erty and failed to advise wife's lawyer of sale as well. Husband did not comply with order. Hus- band's breach was willful. Net proceeds of sale were used to pay debts. Consequences of breach, although relevant, were not deter- minative. Condoning husband's conduct would bring administra- tion of justice in disrepute. Crawford v. Crawford (Mar. 31, 2016, Ont. S.C.J., Fragome- ni J., Orangeville 43/13, 144/14) 265 A.C.W.S. (3d) 441. Limitations DISCOVERABILITY Motion judge did not err in interpretation of dis- coverability provisions of Limitations Act, 2002 (Ont.) Defendant surgeon performed breast reduction surgery on plaintiff patient. Patient suffered complications following surgery and surgeon performed further surgeries to try to ameliorate is- sues. Plaintiff brought action al- leging lack of informed consent over three years after initial sur- gery but within two years of when surgeon last treated her to cor- rect problems. Surgeon brought motion for summary judgment to dismiss action as statute- barred pursuant to Limitations Act, 2002 (Ont.). Patient brought motion for partial summary judgment on surgeon's liability for performing surgery without informed consent. Motion judge found since surgeon continued to treat patient to ameliorate her complications, s. 5(1)(a)(iv) of Act was not met because patient did not know that proceeding would be appropriate means to remedy injury, loss or damage she suf- fered, and statement of claim was issued within limitation

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