Focus On

Digests

Latest

Friday, April 28, 2017 @ 09:35 AM

EXTRADITION AND CRIMINAL MUTUAL LEGAL ASSISTANCE - Extraditable offences

Motion by Damgajian for judicial review of the decision by the Minister of Justice (Minister) ordering his surrender for extradition. The United States of America requested Damgajian’s extradition to stand trial on various charges in relation to the importation and distribution of pseudoephedrine in the United States. Pseudoephedrine was a controlled substance listed in Schedule VI of the Controlled Drugs and Substances Act (CDSA). It was commercialized under different names and was used mainly as a decongestant. It was also a precursor to methamphetamine, a substance listed on Schedule I of the CDSA. Damgajian, a citizen of Canada and of the United States, was alleged to have sold and delivered pseudoephedrine through the postal system to customers in the United States and Australia, without holding the required permit. The Minister issued an Authority to Proceed (ATP), authorizing the Attorney General of Canada to request from the Court the issuance of a committal order. The offence, from a Canadian standpoint, was then described as the "importation of a Schedule VI controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act". The Superior Court ruled that there was sufficient evidence to justify committal for the offence of importation set out in the ATP under Canadian law. Damgajian submitted to the Minister that ordering his surrender would shock the Canadian conscience given the severity of the sentence he would face in the United States. He also invoked his personal circumstances as well as his right to remain in Canada under s. 6(1) of the Canadian Charter of Rights and Freedoms. These arguments were rejected by the Minister, who ordered that Damgajian be unconditionally surrendered for all offences identified in the American indictment and in the extradition request. Damgajian was subsequently released by the Court of Appeal pending his appeal of the committal order and his application for judicial review of the Minister's decision. While acknowledging the Minister’s wide discretion in drafting his Order, Damgajian argued that the offence mentioned in the Order of Surrender should be that mentioned in the committal order instead of all those mentioned in the indictment, namely: “Importation of a Schedule VI controlled substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act.” ... [read more]

Friday, April 28, 2017 @ 08:30 AM

EXTRAORDINARY REMEDIES - Certiorari

Appeal by the Canadian Broadcasting Corporation (CBC) and several of its staff members from the dismissal of their certiorari application with respect to a Provincial Court judge’s decision to issue summonses requiring them to answer charges of publishing a defamatory libel and publishing a defamatory libel known to be false. The private prosecution related to an episode of the fifth estate television program about Nygard, a businessman in the fashion industry. The central theme of the episode was that Nygard’s carefully crafted image could be a distortion of reality based on allegations that he frequently mistreated his staff and engaged in sexually inappropriate conduct with his staff and others. Lawyers for Nygard hired an investigator who discovered that the allegations were made as part of a long-standing feud between Nygard and his neighbour in the Bahamas, Bacon. A pre-enquete hearing was held, following which the summonses were issued against CBC and its staff member. They moved, unsuccessfully, for a writ of certiorari to quash the decision to issue the summonses, as they were unable to convince the reviewing judge that the Provincial Court judge committed a jurisdictional error. ... [read more]

Thursday, April 27, 2017 @ 08:30 AM

REGULATION OF PROFESSION - Law societies and governing bodies - Disciplinary proceedings - Disciplinary procedure - Proceedings before the law society - Evidence - What constitutes misconduct

Appeal by Foo from a disciplinary decision of the Law Society of British Columbia, finding him guilty of professional misconduct and suspending him from the practice of law for two weeks. In the hallway of a courthouse, Foo told a social worker, whom he did not know, that he “should shoot” her because “she takes away too many kids”. Foo claimed that what he said to the social worker was in jest and that she responded with a laugh and a request that Foo handcuff her. Others who overheard the exchange reported that Foo was attempting to be funny. The social worker took Foo’s words as a threat and indicated that she had since stayed away from Foo. The disciplinary panel found that, even if Foo did not intend to intimidate or threaten the social worker, he was irresponsible and did not consider the impact his words might have in an emotionally charged atmosphere where parents were in conflict with the Ministry that employed the social worker and where others outside the courtroom could overhear the comments. The panel considered the social worker’s belief that the comments were not a joke to be reasonable. In imposing the suspension, the panel considered Foo’s professional conduct record, which included a previous citation and three conduct reviews, and his lengthy career practicing in child custody matters, to be aggravating factors. It did not consider a reprimand and the negative publicity that Foo had received sufficient to penalize Foo, given his history of failing to control his conduct. The suspension was imposed to give Foo an opportunity to critically examine his behaviour and to commit to a course of action to change it. On appeal, a seven-member review panel was unpersuaded that Foo intended his comments to the social worker as a joke and declined to interfere with the sanctions imposed by the disciplinary panel. The review panel found Foo lacked the common sense necessary to appreciate that the context, circumstances and timing of his comments were profoundly wrong. The review panel determined that Foo’s behavior constituted a marked departure from the standard that the Law Society expected from lawyers and found that Foo’s comments were not constitutionally protected free speech, given that the practice of law was a privilege, not a right. It found that restricting freedom of expression by finding Foo guilty of professional misconduct did not impede a lawyer’s duty to speak his mind, with dignified constraint. ... [read more]

Thursday, April 27, 2017 @ 08:29 AM

CUSTODY AND ACCESS - Practice and procedure - Appeals and judicial review

Application by the mother for leave to appeal two orders of the Court of Queen’s Bench sitting as an appeal court under the Family Law Act. The parties were in a relationship for two and one-half years and their daughter was born in 2011. For more than two years, the parties proceeded under a consent order pursuant to which they agreed to share parenting time. When the applicant lost her job, she moved to Ontario and the parties entered into a consent order in February 2016 that allowed for two-weeks-on, two-weeks-off parenting between Ontario and Alberta, on the premise the applicant would return to Alberta. In October 2016, after a hearing during which the parties relied on viva voce evidence, the Provincial Court ordered that the daughter would reside with the applicant in Ontario, as the applicant had decided she was not returning to Alberta. The father appealed the decision to the Court of Queen’s Bench. The Court of Queen’s Bench held that the trial judge erred by failing to consider whether there had been a material change in circumstances and allowed the parties to submit additional affidavit evidence on the issue. The Court of Queen’s Bench then found that there had been no change in circumstances and overturned the trial decision. A parenting arrangement was not determined. The applicant sought leave to appeal, submitting that the appeal judge did not meet the standard of review and that the trial judge’s finding that there had been a significant change in circumstances was entitled to deference. The applicant also submitted that the appeal judge had no jurisdiction to order affidavit evidence on the same evidence that was before the trial judge in viva voce testimony, and argued that the appeal judge erred by substituting his own factual findings for those of the trial judge. In addition, the applicant argued that the appeal judge erred in law by finding a material change in circumstances was required from an interim order. ... [read more]

Wednesday, April 26, 2017 @ 08:27 AM

CONSTITUTIONAL PROCEEDINGS - Practice and procedure

Appeal by Capital District Health Authority (Authority) of a motions judge’s decision to certify a class proceeding against the Authority. The Authority operated a hospital that cared for patients who had been found unfit to stand trial or not criminally responsible. The hospital’s staff accumulated information that patients had accessed illicit drugs and conducted strip searches of 33 patients in hospital, one of whom was the respondent, Murray. Murray had applied for certification of a class proceeding on behalf of the strip-searched patients against the Authority. The claims related to a breach of s. 8 of the Canadian Charter of Rights and Freedoms and the tort of intrusion upon seclusion. A motions judge certified the proceeding. The Authority appealed, arguing the judge erred in determining that there were common issues and that a class proceeding would be the preferable procedure. The Authority asked that the motion for certification be dismissed. ... [read more]

Wednesday, April 26, 2017 @ 08:26 AM

CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations - Grounds - Failure to disclose a cause of action or defence - Lack of jurisdiction

Motion by the Office of the Ombudsman to strike out the plaintiff’s Statement of Claim and for dismissal of the action against it; motion by the Legislative Assembly of Ontario (Assembly) to dismiss the action as against it for lack of jurisdiction. The plaintiff claimed declaratory relief and damages for wrongful dismissal based on his termination as the Ombudsman of Ontario. He pleaded that the Office of the Ombudsman and the Assembly were his employers. The plaintiff had not been re-appointed for a third term when his second term expired. The Court considered whether, as a matter of law, the Ombudsman, as an officer of the Legislature, was or could be employed by the Office of the Ombudsman. ... [read more]

Tuesday, April 25, 2017 @ 08:37 AM

ABORIGINAL STATUS AND RIGHTS - Practice and procedure - Parties - Standing

Application by the defendant, the federal Crown, for an order that the plaintiff, the Hwlitsum First Nation (HFN), lacked standing to bring a representative action. The plaintiffs sued several defendants seeking billions of dollars in compensation based on declarations of Aboriginal title and rights in respect of its traditional village sites and territories. The plaintiffs alleged that the HFN was the modern continuation or successor of the Lamalcha Tribe based on ancestral lineage and genealogical evidence. The Lamalcha, Penelakut and Yonkulahs were amalgamated in approximately 1877 by the Indian Reserve Commission as the Penelakut Indian Band. The defendants denied that the HFN were synonymous with the Lamalcha and alleged they lacked standing to bring a representative proceeding. The Crown, with the support of the other defendants, submitted that the action was an abuse of process and should be struck. ... [read more]

Tuesday, April 25, 2017 @ 08:33 AM

ENVIRONMENTAL ASSESSMENTS - Provincial environmental assessment - Projects subject to environmental assessment - Practice and procedure

Petition by McKenzie for judicial review of approvals granted by the Agricultural Land Commission (Commission) and Cowichan Valley Regional District (Regional District) in favour of her neighbour, Balme Ayr Farms (Balme Ar). The petitioner owned a hobby farm next to a 100-acre dairy farm operated by a husband and wife. The farm property was zoned Agricultural Resource 1. Litigation arose from a proposed non-farm use of the property. Balme Ayr sought to enhance the agricultural capacity of a portion of the property through the extraction and sale of gravel, with replacement by clean soil fill of arable quality. The petitioner raised concerns about potential environment risks of the proposed project. The Regional District passed a resolution advancing Balme Ayr's application for a non-farm use to the Commission. The Commission approved the application. Balme Ayr received a permit allowing it to remove a prescribed volume of gravel and sand from the property. The petitioner sought judicial review of the Regional District's resolution and the Commission's approval. She sought an order quashing the decisions and referral of the matter for environmental assessment. The petitioner submitted that the Agricultural Land Commission Act (ALCA) was subject to the Environmental Assessment Act (EAA), and that if the Court found otherwise, the broad and quasi-constitutional purposes of the EAA would be clearly frustrated. ... [read more]

Tuesday, April 25, 2017 @ 08:30 AM

ACCESS TO INFORMATION AND PRIVACY - Access to information – Legislation – Provincial and territorial – Right to Information – Requests for disclosure – Bars and grounds for refusal – Confidential information

Application by the Toronto-Dominion Bank (Bank) for judicial review to quash an order by the Information and Privacy Commissioner of Ontario (IPC), which ordered disclosure of a contract between the Bank and Ryerson University (University). The parties concluded an Affinity Agreement (Agreement) whereby the Bank promoted certain financial service products to the University's alumni, staff and students, and in return the University received compensation. The University received a request for the disclosure of the Agreement pursuant to the Freedom of Information and Protection of Privacy Act (Act), to which the University was subject. The Bank took the position that the market for affinity arrangements was very competitive, and the information in the Agreement was confidential commercial information that was competitively sensitive. The Bank submitted that the Agreement should not be disclosed because it was exempted third party information under s. 17(1) of the Act. The University decided that the Agreement should be disclosed, with the exception of a Schedule that contained commercial and financial information that had been disclosed in confidence. On appeal, the IPC adjudicator rejected the Bank’s arguments, finding that the commercial information was not supplied in confidence to the University. The Bank submitted that the adjudicator reached an unreasonable decision. ... [read more]

Monday, April 24, 2017 @ 11:27 AM

CIVIL PROCEDURE - Settlements - Approval - Enforceability

Appeal by the Attorney General from an order forfeiting the entire amount of seized monies to the Crown. When the police responded to a call of an assault in process, a neighbour alerted them to an apparently abandoned suitcase on her driveway. The officers searched it in an attempt to identify its owners. During the search, they found $29,900 concealed in a shoe box inside the suitcase. They also found what appeared to be a robbery kit and identification in the name of Baffoe-Baadu. Rawana claimed that Baffoe-Baadue was her boyfriend and that the suitcase belonged to him. She claimed that the cash belonged to her and was her life savings. No charges were laid against Rawana or Baffoe-Baadu after the police found the cash in question. The parties reached an agreement for $4,000 to be returned to Rawana with the rest to be forfeited to the Crown. A signed consent and draft order were presented to the application judge. The judge, however, found that there was no basis under the Civil Remedies Act for the court to make an order, on terms agreed to by the parties, and, instead, granted full forfeiture of the funds. ... [read more]