Law Times

Law timeS • September 10, 2012 respect of Halifax Citadel, Can- ada' tional historical site. It occupied total of 48.5 acres of land in city centre. Approximately six acres of site comprised 19th century military fortification structures, three-storey house and other smaller buildings. Land sloping down from ramparts to road be- low covered with grass and com- prised about 42 acres of citadel land, known as glacis. Munici- pality requested more than $15.5 million in payments in lieu while Minister paid $2.2 million. Most important difference in valua- tion concerned 42 acres of land under glacis, which Minister as- sessed at $10. Minister adopted assessment of value of s most frequently visited na- contained in report of dispute advisory panel appointed under Act. Applications judge granted municipality' citadel judicial review, applying reason- ableness standard of review to Minister' appeal allowed and matter re- mitted to Minister for redeter- mination. Minister' s s application for ed Minister's decision unreason- s valuation. He conclud- able because reasons given inad- equate. Federal Court of Appeal reversed decision. Municipality' Act not to review assessment authority' s role under function to reach opinion about value that would be attributed by assessment authority. View of assessment authority important reference point but Minister not bound by it; he is entitled to make independent determination of value that would be attributed to federal property by assessment authority. Minister' s assessment; Minister's not unfettered and Minister must comply with requirements of Act. Fairness to municipalities demands that Minister' be informed by tax system that would apply to federal property in issue if taxable. Provided that Minister applies correct legal test, exercise of discretion judicially reviewed for reasonableness, concerned both with transpar- ency and intelligibility of reasons given for decision and with out- come of decision-making pro- cess. Halifax (Regional Municipality) v. Canada (Public Works and Gov- ernment Services) (June 15, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Roth- stein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33876) Decision at 321 D.L.R. (4th) 638, 192 A.C.W.S. (3d) 367 was re- versed. 215 A.C.W.S. (3d) 20 (34 pp.). s opinion ONTARIO CIVIL CASES Elections Applicant challenged Canadian General Election results in Dis- trict of Etobicoke where election decided in respondent' IRREGULARITIES Vouching critical part of identification and proper vouching mandatory by plurality of 26 votes. Applica- s favour s discretion tion, brought pursuant to s. 524 of Canada Elections Act, claimed irregularities in registration and identification of electors. Act provides means by which quali- fied elector can be added to vot- ers list on election day. Applicant argued elector and polling offi- cials must comply with directives found in Act and, if requirements not met, ballot should not be cast. Respondent argued statu- tory provisions do not provide strict preconditions but rather establish procedural safeguards. Application to set aside election results granted. Presumption of regularity in respect of elec- tions rebuttable. Onus on person challenging results. Appropriate standard of proof is balance of probabilities. Act, primary con- cern of which is enfranchisement of citizens, must be interpreted liberally. Restrictions on basic democratic right to vote should be narrowly interpreted and strictly limited. Correct approach is to conflate two elements Was there an irregularity that affected the result of the election?. Par- ties agreed if number of irregular votes exceeds plurality of votes cast, election cannot stand. Ap- plicant relied on spectrum of irregularities he claimed could undermine public confidence in electoral process despite fact they did not, by themselves, af- fect election result. While overall confidence in process concern for those responsible for run- ning elections, Act does not allow elections to be set aside simply by accumulation of errors. Irregu- larities not yet reviewed included discrepancies between votes cast and votes counted; elector vot- ing in poll other than one he ordinarily resides; failure of reg- istration and failure of vouch- ing. Although errors on face of some poll documents, apparent discrepancies not demonstrat- ing irregularity which could have affected election results. Absent evidence of double voting, fact that some electors voted in wrong polling division not af- fecting result since they voted in correct district. Some poll books indicated some people voted by registration certificate. Where registration certificates could not be located and elec- tors did not appear on official list, could not be assumed elec- tors qualified to vote. Vouching critical part of identification and proper vouching manda- tory. Vouching not required where oath taken only for pur- poses of establishing address but required where oath neces- sary to establish identification. Vouchers cannot vouch for more than one elector and must reside in same polling division. Poll book must indicate familial relationship of person listed to person vouched for. Number of irregularities affecting election results exceeded plurality of 26 and declared null and void. Wrzesnewskyj v. Canada (Attor- ney General) (May 18, 2012, Ont. S.C.J., Lederer J., File No. CV-11- 429669) 215 A.C.W.S. (3d) 118 (41 pp.). CASELAW This was appeal from Environ- mental Review Tribunal' of fault not relevant to decision tribunal had to make Evidence that spoke to issue Environmental Law ENFORCEMENT upholding order requiring appel- lant city to clean up contamina- tion. Several hundred liters of fur- nace oil leaked from basement of respondent homeowners' home. Oil leaked into municipal storm sewer system and culverts and was being discharged into lake. Respondent Ministry of the Envi- ronment was notified and ordered homeowners to remediate dam- age. Before remediation could be completed, homeowners' insur- ance coverage reached limit and homeowners did not have finan- cial means to continue work. City' s decision contaminated property still had potential to adversely impact lake. Ministry issued order requiring city to take all reasonable steps to remediate property and to prevent discharge of contaminant from property. City appealed. Tribunal granted homeowners' motion to exclude evidence on question of who was at fault for causing spill. Tribunal dismissed city' s peal. Appeal dismissed. Tribunal was entitled to make rulings that evidence was irrelevant. Evidence that spoke to issue of fault was not relevant to decision tribunal had to make, as it was accepted that city was innocent owner. Tribu- nal was not limiting city' s ap- to make arguments about fact that it would be unfair to make it pay for remediation when it had done nothing to cause contamination. Tribunal chose to have discre- tion guided by compliance policy, which was choice it was entitled to make. Tribunal' s ability was reasonable. City's complaint it s treatment of law that order against owner was un- reasonable because "polluter pays" principle should be directed to legislators who draſted Environmental Protection Act (Ont.). Tribunal found that Min- istry exercised discretion in way that was consistent with purpose of Act and with compliance pol- icy and findings were reasonable. Lawful ruling on relevance of pro- posed evidence could not violate principles of natural justice. Kawartha Lakes (City) v. Ontario (Director, Ministry of the Envi- ronment) (May 28, 2012, Ont. S.C.J. (Div. Ct.), Sachs J., File No. 421/10) 215 A.C.W.S. (3d) 125 (17 pp.). violated Family Law Status review application by child protection agency for order of Crown wardship without access for purpose of adoption. Agency had become involved with child around time child was born. Pro- tection concerns were mother' Mother failed to establish that relationship with child was beneficial and meaningful CHILD WELFARE paranoia and vulnerable mental health, isolation, and lack of com- munity supports. Mother accept- ed services from agency on vol- untary basis. Mother was briefly s www.lawtimesnews.com hospitalized on involuntarily ba- sis and subsequently consented to supervision order. Child was apprehended pursuant to war- rant aſter mother breached su- pervision order by changing her residence. Mother consented to temporary custody with access. Mother was repeatedly found to be lacking in adequate parenting skills and she oſten missed access visits. Mother lacked insight into her problems. Application grant- ed. There was overwhelming evidence that child continued to be in need of protection. Mother had paranoid personality disor- der, primary feature of which was mistrust. Mother' pervasive and enduring and af- fected her life in multiple settings. Mother' s condition was significant impairment in occu- pational and personal function- ing. Mother had isolated and would isolate herself with child if child was in her care. Mother had exhibited significant impair- ment in her ability to attend to child' s condition was causing care needs with sensitivity and predictability. Almost nothing had changed for mother since she consented to temporary custody. Mother did not have realistic plan of care. Supervision order would not have been adequate to protect child if he was returned to mother. Trust between mother and agency was essential element of supervi- sion order but this could not be achieved in this case. Mother was not suitable candidate for access. Mother failed to establish that her relationship with child was ben- eficial and meaningful and that access would not impair child' s emotional and physical future opportunities for adoption. Jewish Family and Child Service of Greater Toronto v. F. (M.) (May 4, 2012, Ont. C.J., Curtis J., File No. C47728/09) 215 A.C.W.S. (3d) 129 (63 pp.). s ONTARIO CRIMINAL CASES Appeal Even though accused's conduct GROUNDS Appeal by accused from convic- tion for sexual assault. Accused was 51 and complainant was 33 and she suffered from cerebral palsy. Complainant was hearing, vision and speech impaired since birth. She testified that she did not consent to accused' unconscionable, that did not make it criminal ties with her. When she was cross- examined her evidence became much more equivocal. Trial judge found that there was no consent. This was based not only on ac- cused' s sexual activi- trust and authority and because such consent was legally ineffec- tive. Appeal s breach of his position of acquitted. There was no evidence that accused exercised authority over complainant or that he was in that position. Court agreed that objectively accused and com- plainant formed trust relationship. Judge however did not go forward allowed. Accused PAGE 19 and consider whether evidence disclosed how trust impacted upon complainant' accused's sexual conduct. This step s reaction to was essential if trust relationship was to vitiate consent. Creation of relationship itself was not enough. Crown prosecuted this matter on basis of complete lack of consent. Once reasonable doubt on that issue was created record did not disclose any effect of accused' sition upon response of complain- ant to his advances. Having found lack of authority and absence of evidence regarding subjective im- pact of trust, judge' s po- consent was vitiated by ss. 265(3) and 271.1(2)(c) of Criminal Code could not stand. Even though ac- cused' s position that ble, that did not make it criminal, nor was complainant any less a potentially willing participant. In absence of relationship of author- ity and with complete lack of evi- dence regarding subjective impact of complainant' s conduct was unconsciona- it was an error in law to conclude that consent was vitiated. Convic- tion could not reasonably be sup- ported by evidence. Since verdict was unreasonable it would be in- appropriate in law and unfair to accused and to complainant to re- turn matter for new trial. Acquittal flowed inexorably from findings of fact made by judge on issue of consent. R. v. T. (D.) (Apr. 13, 2012, Ont. S.C.J., Thomas J., File No. CR-11- 2411AP) Decision at 93 W.C.B. (2d) 898 was reversed. 101 W.C.B. (2d) 3 (14 pp.). s trust in accused Charter of Rights Accused, charged with impaired driving and over 80, argued his Charter ss. 7 and 8 rights were breached. Accused had driven through spot check, smelled of alcohol, could not find driver' FUNDAMENTAL JUSTICE Driving was privilege not right protected by Charter licence, admitted to drinking that evening, was nervous and fidgety, had bloodshot eyes and staggered when he walked to rear of car. Breath demand was made without having accused blow into ASD. Section 7 rights were allegedly breached by admitted late disclosure of videotape of breath room procedure which came aſter deadline to apply for interlock program. Accused' s lawyer had requested videotape to decide whether or not to plead guilty to apply for program. Ac- cused received adjournment due to late disclosure. Interlock program had many conditions to complete for eligibility. Accused found guilty. Charter rights were not breached as there was no s. 8 violation due to officer having requisite grounds to make breath demand. No breach of s. 7 oc- curred as there was no abuse of process as accused received ad- journment. Right to enter inter- lock program was not automatic and driving was privilege not right protected by Charter. R. v. Poyntz (Apr. 23, 2012, Ont. C.J., Bovard J., File No. 12005384) 101 W.C.B. (2d) 46 (15 pp.). LT s

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