Law Times

Law Times • may 8, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law POST-TRIAL PROCEDURE Appeal from conviction or acquittal Considerable deference was owed to trial judge's assessment of evidence 40 years ago, accused sexually abused his nephews and niece, but latter did not report him to the police until 2009. Accused was charged with indecent as- sault and gross indecency. Trial judge found victims' evidence to be reliable and credible and found accused's evidence to be not reliable. Accused was con- victed as charged. Accused ap- pealed, arguing that trial judge made several errors and rendered unreasonable verdict. Majority at Court of Appeal noted that to be successful, accused had to show that verdict was not verdict that properly instructed jury, act- ing judicially, could reasonably have rendered or that trial judge's reasoning process was so irratio- nal, or so at odds with evidence, that it vitiated verdict. In present case, considerable deference was owed to trial judge's assessment of evidence. In particular, trial judge did not err in finding that accused was not credible. Trial judge did not err by relying on testimony of victims, albeit given 40 years after fact. His findings were well explained and appeal was dismissed. Accused ap- pealed to Supreme Court of Can- ada. Appeal dismissed. Appeal should be dismissed for reasons of majority of Court of Appeal. R. c. Savard (2017), 2017 Car- swellQue 2095, 2017 CarswellQue 2096, 2017 SCC 21, 2017 CSC 21, Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); af- firmed (2016), 2016 CarswellQue 1699, 2016 QCCA 380, Cham- berland J.C.A., Morin J.C.A., and Dutil J.C.A. (C.A. Que.). Motor Vehicles ACCIDENT CLAIMS FUNDS Practice and procedure Civil action against third parties barred by application of Automobile Insurance Act (Que.) Availability of civil liability rem- edies. Victims, injured in auto- mobile accidents, also suffered aggravated or separate injuries due to subsequent faults attribut- able to third parties. Civil action against third parties barred by application of public compensa- tion scheme under Automobile Insurance Act (Que.). Compen- sation scheme limiting compen- sation exclusively to amounts paid pursuant to scheme in cir- cumstances where sufficiently close link between bodily injury and automobile accident is estab- lished. In such cases, the scheme covers the whole of the injury and confers civil immunity on everyone in respect of those inju- ries. Fact that compensation was claimed and received pursuant to compensation scheme, how- ever, not constituting waiver of any civil action. Godbout c. Pagé (2017), 2017 CarswellQue 1646, 2017 CarswellQue 1647, 2017 SCC 18, 2017 CSC 18, McLachlin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 646, 2015 QCCA 225, (C.A. Que.). Real Property INTERESTS IN REAL PROPERTY Miscellaneous Legislative intent was to recognize peaceful and ongoing possession of land Respondent A owned prop- erty, which was originally pur- chased by A's husband in 1993. From 1994 to 2011, A and her family had use of one parking space, located on neighbour's property. A acquired right to parking space in 2004, under Quebec civil law principle of acquisitive prescription. A took no steps to have her right recog- nized. Appellants O and S ac- quired neighbouring property in 2011. O and S sought injunc- tion against A, to prevent use of their property. At trial, A was found by court to be effective owner of parking space. Ma- jority of Court of Appeal up- held trial judgment. Dissenting judge found that A's failure to make application defeated her rights to property. Outstanding issue was whether prescription could be used against new own- er, who registered title before legal action was taken. O and S appealed to Supreme Court of Canada. Appeal dismissed. Each party had legitimate right to assert. Determinative factor was that acquisitive prescrip- tion was most consistent with Quebec civil code. A did not renounce right to use of land, so that third parties such as O and S could take notice of it. It would not make sense to conclude that publication of rights could not interrupt pre- scription, while it could negate already-acquired prescription. Solution preserved rights of all parties. Legislative intent was to recognize peaceful and ongoing possession of land. Land regis- ter was not weakened as result. Ostiguy v. Allie (2017), 2017 CarswellQue 2270, 2017 Car- swellQue 2271, 2017 SCC 22, 2017 CSC 22, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 7807, 2015 QCCA 1368, (C.A. Que.). Federal Court of Appeal Evidence OPINION Experts Affidavit did not properly fall within exception afforded to experts Applicant Members of Parlia- ment (MPs) applied to challenge decisions by Board of Internal Economy about their large-vol- ume mailings and use of Parlia- mentary resources for expenses. Respondent Board and Speaker of House of Commons brought motion to strike out applica- tions on basis that matters were within exclusive purview of House of Commons protected by doctrine of parliamentary privilege. MPs served affidavit of law professor, opining on in- ternational global trend of con- struing parliamentary privilege narrowly. Respondents' motion to strike out affidavit was dis- missed, and their appeal dis- missed. Respondents appealed. Appeal allowed. Law professor's affidavit did not provide evi- dence that was necessary to en- able judge to appreciate matters in issue due to their technical na- ture as foreign laws and authori- ties referred to were not factual issues requiring proof. Courts routinely relied on foreign case law and doctrine without need for their introduction by way of affidavit. Affidavit's essential character was not to offer his- torical perspective into concept of parliamentary privilege but to suggest restrictive interpre- tation on basis of legal analysis of foreign constitutional provi- sions and authorities. Affidavit advocated for more restrictive interpretation of that privilege in light of recent developments in foreign law and practice. Af- fidavit was inadmissible and did not properly fall within excep- tion afforded to experts. While discretion to strike out affidavits should be exercised sparingly, affidavit was not properly ac- cepted for filing. Affidavit was so clearly inadmissible there was no need to have full record be- fore coming to final assessment of its merits. It was in interests of justice to intervene at this early stage. Respondents would be materially prejudiced and order- ly hearing of application would be impaired if affidavit was not struck immediately. Delay in bringing motion to strike out affidavit was not fatal as court should not decline to strike out affidavit that was clearly inad- missible merely because motion to that effect was not brought as quickly as it should have been. Canada (Board of Inter- nal Economy) v. Canada (At- torney General) (2017), 2017 CarswellNat 660, 2017 FCA 43, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 2996, 2016 FC 745, George R. Locke J. (F.C.). Labour and Employment Law LABOUR LAW Discipline and termination Conclusion that workers did not voluntarily leave their employment was reasonable It was employer's practice to ar- tificially create seasonal jobs for plant's operations; two teams of employees would share work over six-month periods. This was embodied in letter of agree- ment signed in 2001 between union and employer. Fourth clause of agreement provided that, at time of team changes, employees could not exercise their right to displace accord- ing to seniority provided for in art. 9.09 of collective agreement. 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-3 1 2017-04-28 3:04 PM

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