Law Times

Law Times • December 4, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Administrative Law PRACTICE AND PROCEDURE Miscellaneous Power to represent Minister including all acts normally within prerogative of advocate Administrative Tribunal of Québec's social affairs division made decisions on granting of social aid. Minister subsequent- ly applied for review of those de- cisions, presenting motions for review that had been prepared, drawn up, signed and filed by person who was not advocate. Individuals brought motion to dismiss on ground that proceed- ings had not been prepared by practising advocate. Tribunal dismissed motions to dismiss, holding that power to represent Minister under s. 102 of Act re- specting administrative justice (AAJ) included all acts that were normally within prerogative of advocate. Individuals brought motion seeking judicial review of Tribunal's decision. Review- ing judge held that power of per- son chosen to represent Minister who is not advocate should be narrowly construed and could concern only power to plead or act before Tribunal's social af- fairs division. Reviewing judge further held that act of pleading or acting before court or tribu- nal did not include preparation and drawing up of motions. Accordingly, reviewing judge dismissed motions for judicial review and Attorney General of Quebec appealed. Court of Ap- peal held that reviewing judge erred in reversing Tribunal's decisions. It found that person representing Minister who is not advocate may prepare, draw up and sign motions or written pro- ceedings intended for use before Tribunal's social affairs division. Barreau du Québec appealed be- fore Supreme Court of Canada. Appeal dismissed. Ordinary sense of verb "represent" nor- mally covers all aspects of repre- sentation of others before court or tribunal. Tribunal's finding that, under the AAJ, person who is not advocate could, in certain proceedings, do everything that is needed for representation of Minister before Tribunal's social affairs division fell within range of possible, acceptable outcomes which were defensible in respect of facts and law. Therefore, that decision was reasonable and no intervention was justified. Barreau du Québec c. Qué- bec (Procureure générale) (2017), 2017 CarswellQue 9478, 2017 CarswellQue 9479, 2017 SCC 56, 2017 CSC 56, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellQue 2440, 2016 QCCA 536, Bich J.C.A., Mo- rin J.C.A., and Bouchard J.C.A. (C.A. Que.). Bills of Exchange and Negotiable Instruments CHEQUES Forged or unauthorized cheques Banks not liable for conversion where payees on cheques not fictitious or non-existing Former employee in plaintiff 's finance department committed fraud by requisitioning numer- ous cheques payable to six enti- ties, two he invented and four which were current or former customers of plaintiff. None of entities were owed any money by plaintiff and former employee had no authority to requisition cheques or approve payments to customers. Cheques were issued by plaintiff 's accounts payable department and negotiated by banks into accounts opened by former employee and his asso- ciates. Plaintiff sued banks for damages for conversion. Each party brought motion for sum- mary judgment. Plaintiff was granted judgment in amount of $5,483,249.40. Banks successful- ly appealed. Plaintiff appealed. Appeal allowed. Decision of mo- tions judge was restored. Plain- tiff was not complicit in fraud. Though only four of names used were those of existing custom- ers, the other two names used were very similar to names of plaintiff 's real customers. Mo- tions judge found that there was rational basis for concluding that cheques were apparently made payable to existing clients, and that payees could plausibly be understood to be real entities and customers of plaintiffs. As a result, payees were not fictitious or non-existing. Teva Canada Ltd. v. TD Canada Trust (2017), 2017 Car- swellOnt 16542, 2017 Carswel- lOnt 16543, 2017 SCC 51, 2017 CSC 51, McLachlin C.J.C., Abel- la J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 Carswel- lOnt 1483, 2016 ONCA 94, K.M. Weiler J.A., John Laskin J.A., and E.A. Cronk J.A. (Ont. C.A.). Criminal Law POST-TRIAL PROCEDURE Appeal from conviction or acquittal Trial judge using emails between accused and complainant to support conviction Accused was convicted of sexual assault on complain- ant. Accused and complainant exchanged hundreds of text messages in days after meeting and before going to party to- gether. Emails were introduced in evidence on consent and trial judge used content to support conclusion that accused would not take no for answer from complainant. Accused appealed and appeal was dismissed with one judge dissenting on ground verdict unreasonable. Accused appealed to Supreme Court of Canada. Appeal dismissed. Trial judge did not reach decision by illogical or irrational reasoning process. Verdict was not un- reasonable within meaning of s. 686(1)(a)(i) of Criminal Code. R. v. Bourgeois (2017), 2017 CarswellAlta 1835, 2017 Car- swellAlta 1836, 2017 SCC 49, 2017 CSC 49, Moldaver J., Gas- con J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2017), 2017 CarswellAlta 106, 2017 ABCA 32, Ronald Berger J.A., Peter Martin J.A., and Frans Slatter J.A. (Alta. C.A.). Evidence PRIVILEGE Public interest immunity Informer privilege not applicable where anonymous tip made to further criminal activity Crime Stoppers received anony- mous tip about fatal shooting. Accused was charged with sec- ond degree murder, and Crown brought application to introduce evidence of anonymous tip, al- leging call was made by accused to divert police attention away from himself. Accused denied making call, and he and Crime Stoppers claimed that call was covered by informer privilege. At in camera hearing, judge held that informer privilege did not apply. Accused and Crime Stoppers appealed. Appeal dis- missed. Informer privilege does not exist where person makes anonymous tip with intention of furthering criminal activity or interfering with administra- tion of justice. Since Crown had already disclosed tip to defence, there was no need for ex parte proceeding. Procedure followed by application judge was reason- able. R. v. Durham Regional Crime Stoppers Inc. (2017), 2017 CarswellOnt 15063, 2017 CarswellOnt 17230, 2017 SCC 45, 2017 CSC 45, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gas- con J., Côté J., Brown J., and Rowe J. (S.C.C.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Taxpayer wilfully blind in placing absolute trust in unscrupulous tax preparer Taxpayer's appeal from reas- sessments denying business loss and imposing gross negligence penalty was dismissed, with Tax Court judge finding that taxpay- er was wilfully blind in placing absolute trust in unscrupulous tax preparer. Taxpayer appealed. Appeal dismissed. Self-repre- sented taxpayer argued that trial was conducted in biased man- ner and Tax Court judge erred in dismissing argument based on s. 15(1) of Canadian Charter of Rights and Freedoms. In cir- cumstances of taxpayer's affi- davit using boilerplate material generated by tax preparer, his in- ability to elaborate on affidavit's references to "wages" or to spec- ify what enumerated ground of discrimination he was relying on, and of failure to give notice of Charter challenge, it was not surprising that Tax Court judge did not deal with Charter argu- ment at any length. There was no 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! 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