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Thursday, February 16, 2017 @ 7:00 PM

Tort Law - Occupiers’ liability - Particular situations - Injury to children - Liability for injury by animals - Landlord and tenant

Appeal by the plaintiff, Holmes, from summary judgment dismissing her action as against particular named defendants, the Edmunds. The plaintiff’s daughter, age five, was bit by a dog, Chopper, while visiting the owners’ residence. Chopper’s owners were tenants at a premises owned by the defendants. The tenants’ lease required the defendants’ permission for any new or additional pets. The defendants had permitted the tenants to have a dog. However, that dog passed away in 2010 and was replaced by Chopper. No permission was obtained in respect of Chopper. The defendants’ applied for summary judgment dismissing the claim against them. They submitted there was no basis for finding liability in negligence or under the Occupiers’ Liability Act (OLA). The chambers judge granted the defendants’ application. The plaintiff appealed. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Sentencing - Homicide - Manslaughter - Sentencing considerations - Aggravating factors - Deterrence - Denunciation - Protection of the public - Submissions - Victim impact statements - Previous record - Lengthy

Sentencing of the offender, Vader, for two counts of manslaughter. The offender was a methamphetamine addict who killed an elderly married couple and stole their RV, an attached SUV, and the vehicle contents. The encounter occurred in a rural area off of a main highway. A firearm was discharged during the incident. The RV was burned in an effort to destroy evidence linking the offender to the victims. The victims’ bodies were placed in an unknown location and remained undiscovered. The offender’s trial for first degree murder resulted in manslaughter convictions, as it could not be established that the killings were planned and deliberate. The offender, age 38 at the time of the killings and age 44 at the time of sentencing, had a lengthy criminal record related to drug and property crimes. He refused to participate in pre-sentencing assessments, denied any drug use, and continued to maintain his innocence. The Crown sought a sentence of life imprisonment. Defence counsel argued in favour of a disposition of time served, reflecting a six-year sentence. In addition, the offender sought a stay of proceedings or reduction in sentence on the basis of an abuse of process, cruel and unusual conditions in pre-trial custody, interference with his consultations with counsel, and an unlawful strip search. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Family Law - Marital property - Equalization or division - Exempt acquisitions and deductions - Pre-marriage and post-separation acquisitions - Tracing - Settlements - Appeals and judicial review

Appeal by the husband from a trial judgment interpreting a consent order and excluding certain family property. The parties moved in together in 2005, married in 2006 and separated in 2014. The parties maintained separate finances throughout their relationship, including bank accounts and investments. Each assumed responsibility for some family expenses. Each party agreed that their respective condominiums were excluded from equalization. In addition, each party claimed portions of other assets could be traceable to pre-relationship assets and thus constituted excluded property. Several property issues were resolved at a settlement conference and incorporated into a consent order. At trial, the parties disputed interpretation of the property division provisions in the consent order. The trial judge interpreted the consent order to require identification of family property to be determined by first considering whether any portion of the assets were excluded property. The excluded portion of any joint asset went to the party providing the asset, with the remaining value to be divided equally. Solely-owned assets were to be retained, subject to an equalization payment based on equal division. The trial judge characterized certain monetary transfers the wife received from her family as gifts and traced them into current assets excluded from division. The husband’s claims of exclusion were rejected, save for a portion of the proceeds from the sale of the family home attributable to three pre-relationship assets. The husband appealed. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Constitutional Law - Canadian Charter of Rights and Freedoms - Reasonable limits on Charter rights - Demonstrably justified in free and democratic society - Fundamental freedoms - Freedom of expression

Appeal by the BC Freedom of Information and Privacy Association from a judgment of the British Columbia Court of Appeal affirming a decision that s. 239 of British Columbia’s Election Act infringed s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter), but was saved by s. 1. Section 239 of the British Columbia’s Election Act (Act) required individuals or organizations who wished to “sponsor election advertising” to register with the province’s Chief Electoral Officer. This registration requirement applied to all sponsors of election advertising, regardless of how much they spent during the writ period. It was common ground that British Columbia’s registration requirement limited the right of expression guaranteed by s. 2(b) of the Charter. The question on appeal was whether it was a reasonable and demonstrably justified limit on persons who conveyed political messages through small-scale election activities like displaying homemade signs in their windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them. The appellant was a non-profit society that engaged in public advocacy in respect of freedom of information and privacy rights. In 2009 and 2013, the appellant sponsored election advertising within the meaning of the Act. It was therefore subject to the impugned registration requirement in s. 239. The appellant sought a declaration that the registration requirement, to the extent that it applied to sponsors of election advertising who spend less than $500 in a given campaign period, infringed s. 2(b) of the Charter, was not saved by s. 1, and was therefore of no force and effect. The trial judge dismissed the appellant’s application, concluding that s. 239 of the Act was an infringement of the right of free expression under s. 2(b) of the Charter, but that the infringement was justified under s. 1. A majority of the Court of Appeal reached the same conclusion. Both the trial judge and the Court of Appeal accepted as correct the Chief Electoral Officer’s interpretation of the provision, which supported the view that s. 239’s registration requirement applied to essentially all “election advertising”, as that term was defined in s. 228 of the Act. On this interpretation, an individual who posted a handmade sign in her window was a “sponsor” of that advertising within the meaning of s. 239. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Liquor control - Liquor control and licensing boards - Powers - Constitutional issues

Appeal by the Toronto Distillery Company (TDC) from a decision dismissing the TDC’s application for a declaration that the Liquor Control Board of Ontario’s (LCBO) spirits price mark-up was an unconstitutional tax. The TDC was a small distillery. The Alcohol and Gaming Commission of Ontario granted the TDC a Manufacturer’s Licence and Retail Store Authorization to sell its spirits to the public on-site on condition that it enter into a contract with the LCBO. The LCBO’s contract was non-negotiable and required TDC to first sell its spirits to the LCBO before putting the spirits up for sale in the distillery store. The TDC would then sell the spirits to the public as the LCBO’s agent. The contract also granted the LCBO the power to set mark-up and commission rates on the spirits sold. The total mark-up, 139.7 percent, insured that prices at the TDC store were the same as prices at LCBO stores. The contract provided TDC would receive a 13 percent commission for acting as the LCBO’s agent in selling the spirits. TDC’s application for a declaration that the LCBO’s mark-up was an unconstitutional tax was dismissed. The application judge found that the levy escaped classification as a tax because it was a proprietary charge. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Criminal Law - Criminal Code offences - Failure to provide necessaries of life - Criminal negligence - Causing death by criminal negligence

Trial of Lovett on charges of failing to provide the necessaries of life and criminal negligence causing the death of her seven-year-old son, Ryan. Lovett was a well-educated mother of two living in a low-rent apartment in poverty with Ryan. He stayed home from school with a cold early in February 2013. He returned to school and other activities a few days later, but an extended school absence preceded his death from septic shock on March 2. Lovett had been researching various ailments on the internet in the weeks leading up to his death, including ear infections, swollen lymph nodes, and pus. She communicated to friends that Ryan needed constant care and that he had come down with every problem a child his age could have. Lovett used various home remedies on Ryan to address his symptoms. She claimed she gave him Advil for pain, but an autopsy revealed no Advil in his system. She first sought medical attention for Ryan on March 2, when he started vomiting, slurring his words and falling down. By the time emergency responders arrived, he was dead. The autopsy showed multiple organ failure. Doctors opined that Ryan would have exhibited many symptoms in the days prior to his death that should have been recognized as warranting medical intervention. Administration of antibiotics any time before Ryan’s final two days of life could have saved him. Lovett testified that she did not think Ryan was as sick as he was. She claimed she did not know he had an ear infection, although there was pus coming from his ear and the area around it had become darkened. She admitted that his eyes had turned yellow and that she was trying to treat him for jaundice with dandelion tea. She testified that visiting doctors was not part of her routine. Some neighbours who saw Ryan on the day before he died did not recognize how sick he was. One friend, Lapointe, did recognize how serious the situation was and tried to convince Lovett to take Ryan to the doctor, but acquiesced when Lovett became argumentative. There was some evidence from other friends that Lovett had used antibiotics in the past to treat a spider bite and when Ryan had an infected tooth. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Sentencing - Offences in relation to terrorism - Particular sanctions - Imprisonment - Consecutive sentences - Sentencing considerations - Totality principle - Sentence imposed on co-accused

Appeal by the Crown and cross-appeal by the offender, Ahmed, from a 12-year sentence imposed for terrorism-related offences. The offender supported the Taliban and believed it was his duty to assist violent Jihadist causes. He fostered a relationship with Alizadeh, who had attended a terrorist training camp in Afghanistan and sworn an oath of loyalty to Al-Qaeda and the Taliban. Alizadeh sought to form an Ottawa-based terrorist group that would conduct attacks in Canada. The offender solicited money from his father-in-law and another individual, Sher, for Alizadeh to send to foreign terrorists to purchase weapons. The offender knew that Alizadeh possessed components for making remote controlled explosives and intended to assemble them for use in Canada. The offender hosted a meeting with Alizadeh and Sher in which they attempted to recruit Sher for a terrorist group led by the offender. All three individuals were arrested shortly thereafter. The offender was arrested in possession of explosive devices, but neither the Crown nor the defence was able to prove the purpose for which the devices were possessed. Alizadeh pled guilty and received a 24-year sentence pursuant to a joint submission. The offender was convicted of conspiring to facilitate terrorism and participating in the activities of a terrorist group. Sher was acquitted. The offender, age 26 at the time of the offences and age 30 at the time of sentencing, had no prior convictions. The Crown sought a 20-year sentence. The defence sought a sentence of five to eight years. The offender was sentenced to 12 years’ imprisonment, less one year credit for time served. The sentence was comprised of five years for conspiracy, plus seven years’ consecutive for participation. The Crown appealed and the offender cross-appealed, with each reiterating their respective positions taken at the initial sentencing. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Employment Law - Contract of employment - Express terms - Interpretation

Appeal by the plaintiff, Hampton Securities, from partial summary judgment granted in favour of the defendant, Tassone. The plaintiff employed the defendant to trade securities using its capital. The plaintiff maintained a trading inventory account that recorded gains and losses resulting from the defendant’s trades. The defendant was remunerated solely when his trades generated profits overcoming any accumulated losses. At the time of the cessation of the defendant’s employment, his inventory account stood in a loss position of approximately $700,000. The plaintiff took the position the defendant was personally responsible for the losses. The plaintiff applied $100,000 of the defendant’s personal reserve account against the loss and liquidated his shares in the company, retaining the proceeds. The plaintiff sued to recover the remaining net loss, challenging the defendant’s transfer of the matrimonial home to his wife as a fraudulent conveyance. The defendant denied personal liability for the loss and counterclaimed for wrongful dismissal and recovery of his personal funds. A motion judge granted partial summary judgment that dismissed the plaintiff’s claim on the basis the defendant was not personally responsible for the trading losses, save to the extent of the amounts in his personal reserve account. The plaintiff appealed. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

International Law - International treaties and conventions - Construction and interpretation

Application by Turp for judicial review of a decision by the Minister of Foreign Affairs, approving the issuance of permits for the export of light armoured vehicles (LAVs) to Saudi Arabia. The LAVs were manufactured in Ontario by GDLS-C, the Canadian division of General Dynamics, an American corporation. Saudi Arabia had been using the LAVs since the 1990s, but until recently, had purchased them by way of contracts negotiated with the United States. In 2014, Saudi Arabia decided to negotiate directly with Canada, signing the contract that led to the export permits at issue. The Minister approved export permits sought by GDLS-C, relying on a memorandum prepared by department officials noting that none of the branches of government consulted had any objection to the issuance of the permits. Saudi Arabia was considered a key partner for Canada and an important ally in the fight against terrorism in the Middle East. The contract represented thousands of jobs in Ontario. The memorandum also noted that Canada had concerns about Saudi Arabia’s human rights record, but found no connection between the LAVs and human rights violations in Saudi Arabia and no report of the use of LAVs against civilians by Saudi Arabia since the exports began in the 1990s. A UN expert report, mentioned in the memorandum, indicated that all parties to the conflict in Yemen had violated international humanitarian law, particularly through targeted airstrikes, but that there was no evidence the LAVs had been used for that purpose. ... [read more]

Monday, February 13, 2017 @ 11:39 AM

OCCUPIERS' LIABILITY - Particular situations - Injury to children - Liability for injury by animals - Landlord and tenant

Appeal by the plaintiff, Holmes, from summary judgment dismissing her action as against particular named defendants, the Edmunds. The plaintiff's daughter, age five, was bit by a dog, Chopper, while visiting the owners' residence. Chopper's owners were tenants at a premises owned by the defendants. The tenants' lease required the defendants' permission for any new or additional pets. The defendants had permitted the tenants to have a dog. However, that dog passed away in 2010 and was replaced by Chopper. No permission was obtained in respect of Chopper. The defendants' applied for summary judgment dismissing the claim against them. They submitted there was no basis for finding liability in negligence or under the Occupiers' Liability Act (OLA). The chambers judge granted the defendants' application. The plaintiff appealed. ... [read more]