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Thursday, September 01, 2016 @ 8:00 PM

Procedure - Trial judge's duties - Charge or directions - Evidence of witness

Appeal by Bailey from conviction for first degree murder. Three young men entered the home of the victim intending to rob him. The victim was taken to the basement by two of the robbers and shot in the head at close range with a .22 calibre gun. The victim was kneeling or lying on the floor when he was shot. The victim died. The victim’s mother was present during the robbery. The victim’s mother pointed out Bailey in court. Bailey testified that he agreed to participate in the home invasion, but abandoned the plot at the last minute and was not present for the robbery or the shooting. The jury convicted Bailey of first degree murder. Bailey submitted that the trial judge’s instruction on the victim’s mother’s eye witness identification evidence constituted misdirection. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Human Rights Law - Human rights legislation - Provincial legislation - Interpretation

Appeal by Baharloo from the dismissal of his application for judicial review of a decision of the British Columbia Human Rights Tribunal (Tribunal) relating to his removal from his program. Baharloo was a Ph.D. student in the Faculty of Dentistry at the University of British Columbia. He was involuntarily withdrawn from his program based on inadequate academic progress. He appealed to the Senate Committee. Before the hearing concluded, he filed a complaint with the Tribunal alleging discrimination based on race, place of origin and mental disability. The Senate Committee dismissed the appeal. The Tribunal allowed the respondents’ application to dismiss the complaint on the basis that its substance had been appropriately dealt with in “another proceeding” within the meaning of s. 27(1)(f) of the Human Rights Code. Baharloo applied for judicial review of the decision. The reviewing judge dismissed the application finding that the Tribunal’s decision to dismiss the complaint was not patently unreasonable. The judge found that the Senate Committee hearing was “another proceeding” as defined in s. 25(1) of the Human Rights Code. He held that the Senate Committee was a statutory tribunal that had jurisdiction to decide questions of law, including the application of human rights legislation. He further found that although the parties to the complaint were different than those to the appeal, the substance of the complaint had already been addressed, as Baharloo made the same allegations in both forums. Baharloo appealed the dismissal of his application with respect to the decision of the Tribunal. He argued that the reviewing judge applied the wrong standard of review or, alternatively, wrongly applied the correct standard. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

International Law - Extradition and criminal mutual legal assistance - Bars to extradition - Ability to prosecute in Canada

Appeal and judicial review of an extradition committal order and Ministerial order of surrender. The United States sought the extradition of the appellant, Virdi, for sentencing for failure to report export of a monetary instrument and failure to appear in court for his sentencing. The Record of the Case stated that the appellant and Cheema crossed the border from the United States into Canada by vehicle in 2003. They told the customs inspector that they had no cash. They were referred for a secondary inspection and $99,000 was found hidden in the sunroof, and $47,000 was found in Cheema’s pockets. The monies were forfeited under Canadian legislation. The appellant and Cheema were indicted under US legislation. In 2007, the appellant was arrested attempting to enter the United States. In 2008, he pled guilty to the outstanding offence and signed a plea agreement. He subsequently resiled from the agreement in breach of his appearance bond and failed to appear for sentencing. The appellant took the position he was coerced into the plea agreement and maintained his innocence. The extradition judge found that the Record of the Case supported the requirements for committal. The Minister ordered the appellant’s surrender. Virdi appealed and sought judicial review. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Title - Chain of - Demonstration of

Appeal by Naugle from a decision quieting the title to competing ownership claims to real property and issuing a certificate of title to the respondent trustee. Of the 300 acres involved, the appellant claimed ownership to approximately 100 acres. The trial judge was of the view that the competing chains of title were close in quality, with the trustee’s title being no worse and perhaps just a bit better than that of the appellant. The 300 acre parcel was landlocked and was comprised of multiple lots. When the bordering property became developed, the trustee sought to sell the property and brought an application under the Quieting Titles Act. The appellant then set about to solidify the transfer of lands from his uncle in 2013 and the prior chain of title which included a 1936 deed to the uncle’s mother. The competing chains of title went back a generation behind two brothers to the will of their father and the wording of his will. The trial judge found that even if the appellant had a good chain of paper title, the trial judge was not able to locate his lands on the ground and within the 300 acre parcel the trustee sought to quiet. The approximate 100 acres in dispute had always been woodland. The trial judge placed a great deal of weight on the estate inventory and the absence of any express reference to woodland therein. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Municipal Law - Planning and development - Heritage property protection - Designation of heritage property

Appeal by the Foleys from a judgment affirming a municipal heritage designation bylaw enacted by the Town of St. Marys. The subject property was a downtown two-storey brick and stone commercial property with a clock tower. It was constructed in 1884 for a local jeweler. The interior still featured original walnut showcases, counters, mirrors and a tall wall clock. The appellants purchased the property in 2004 and leased it until 2010. In 2007, the Town advised the appellants of their intent to proceed with a heritage designation. The appellants indicated they were not interested in the process. In 2008, the Town provided formal written notice of the intent to pass a bylaw implementing the designation. The bylaw was passed the following month. The heritage designation included the original exterior and interior heritage attributes. In 2009, the appellants received $13,000 in municipal heritage funding as a result of the designation. In 2010, the appellants listed the property for sale. They attributed the low interest in the property to the heritage designation of the interior features. In 2015, the appellants applied to quash the bylaw on the grounds of illegality, or alternatively, to sever the portions related to the interior features. The application judge found the appellants had actual notice of the bylaw and that the application to quash was not brought within the one-year limitation period. The Foleys appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Employment Law - Implied duties of employee - Loyalty and non-competition

Appeal by the plaintiff, Northern Industrial Services Group Inc. (NISG), from a summary judgment granted in favour of the defendant, Duguay. The defendant owned and operated a business engaged in commercial and industrial high pressure washing, vacuuming and associated services. His son was a longtime employee of the business. As the defendant approached retirement, he entered a share purchase agreement with the plaintiff. The agreement contemplated payment of $100 on closing in 2011, $274,950 in 2012 and $274,950 in 2013. The agreement included a non-competition provision for a four-year period that bound the defendant from competing with the plaintiff. The defendant remained employed with the plaintiff for 18 months after closing. In 2013, the defendant left to work for his son’s numbered company carrying on a rival business. The plaintiff refused to pay the third instalment and sued the defendant, his son, and the new company for damages for breach of contract and fiduciary duty. The motion judge dismissed the plaintiff’s action as against the defendant and granted his counterclaim for $274,900 owed under the share purchase agreement. The plaintiff appealed. ... [read more]

Thursday, September 01, 2016 @ 8:00 PM

Wrongful dismissal - Constructive dismissal - Change to job content or status - Humiliating treatment - Employee’s duty to mitigate - Alternative or comparable employment - Reasonable efforts

Appeal by the defendant, the City of Toronto, from a wrongful dismissal judgment in favour of the plaintiff, Maasland. The plaintiff worked for the City for 25 years until her termination in 2014. She had a degree in engineering science and held progressively senior positions with the City in transportation management. In 2014, the City reorganized its transportation group. The plaintiff was transferred to another unit within the group. Her job title, work location, salary and benefits did not change. Her duties changed substantially, from mainly operational to mainly administrative. The plaintiff did not work after April 2014, claiming she was constructively dismissed. In December 2014, the City terminated her employment. The plaintiff sued for wrongful dismissal. The trial judge found in favour of the plaintiff, awarding 26 months’ notice. The judge found no failure to mitigate losses by the plaintiff. The City appealed. ... [read more]

Thursday, August 25, 2016 @ 8:00 PM

Constitutional Law - Canadian Charter of Rights and Freedoms - Legal rights - On being charged with an offence - To be tried within a reasonable time

Appeal by the Crown from a judgment of the Ontario Court of Appeal setting aside the judgment of the Superior Court of Ontario and ordering a stay of proceedings. Williamson was charged in January 2009 with historical sexual offences against a minor. His trial ended in December 2011. The delay between the charges and the end of trial was approximately 35.5 months. Williamson did not waive any of this delay, and was the sole cause of only one and a half months of it. The other 34 months of the delay was attributable to the Crown. The trial judge heard the s. 11(b) Charter application several months before the jury trial was scheduled to begin. He determined that the total length of delay from the time of the charges to the anticipated end of the trial was 35 months. The trial judge rejected Mr. Williamson’s assertion that he had suffered actual prejudice as a result of the delay. The trial judge ultimately found that Williamson had not proved an infringement of his s. 11(b) right, and he declined to enter a stay. Williamson was subsequently convicted of buggery, indecent assault, and gross indecency. Williamson appealed his convictions and the decision denying a stay. The Court of Appeal agreed with the trial judge that Mr. Williamson did not establish any actual prejudice. The Court of Appeal nevertheless held that the trial judge erred in refusing a stay since the inferred prejudice was significant and the institutional delay exceeded the guidelines in R. v. Morin. The prosecution was “straightforward”, not complex, and the defence had been diligent in attempting to move the matter to trial quickly. Williamson’s interest in a trial within a reasonable time outweighed society’s interest in having the matter tried on its merits, and therefore the Court of Appeal entered a stay of proceedings. This case was heard at the same time as the companion appeal in Jordan. The new framework for assessing whether there had been a breach of s. 11(b) of the Charter that was outlined in Jordan, including its transitional features, was applied in this case to determine whether Williamson’s right to be tried within a reasonable time was infringed. ... [read more]

Thursday, August 25, 2016 @ 8:00 PM

Evidence - Methods of proof - Circumstantial evidence - Inferences - From possession - Of fact

Appeal by the Crown from a judgment of the Alberta Court of Appeal setting aside Villaroman’s conviction for possession of child pornography and entering an acquittal. Villaroman was having problems with his laptop computer, so he left it with a repair shop. The repair technician found child pornography on the laptop. He called the police, whose search of the laptop confirmed the presence of child pornography. Villaroman was charged with a number of pornography-related offences, including possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The main factual issue at trial in relation to the possession of child pornography charge was whether the evidence established that Villaroman had been in possession of the child pornography. This required the Crown to prove that he knew the nature of the material, had the intention to possess it, and had the necessary control over it. The Crown’s case depended on the circumstantial evidence provided by the technician and the forensic analyst. At trial, the judge found that the mainly circumstantial evidence against the accused proved his guilt on the charge of possession of child pornography beyond a reasonable doubt. The Court of Appeal found that the trial judge had “misstated the current law” on weighing circumstantial evidence and that the verdict was unreasonable. The conviction was set aside and an acquittal entered. The main issues for determination in this appeal were whether the Court of Appeal erred in finding a legal error in the trial judge’s analysis in relation to the circumstantial evidence and whether the guilty verdict was unreasonable. ... [read more]

Thursday, August 25, 2016 @ 8:00 PM

Prison administration - Rights of prisoners

Appeal by the Correctional Service of Canada from interim injunctive relief granted in favour of the respondent, Ewert. The respondent was an Aboriginal federal inmate serving two life sentences. He alleged that the psychological tools used by the appellant to assess psychopathy and the risk of re-offending were unreliable when administered to Aboriginal inmates. The respondent alleged that the use of the assessment tools was contrary to ss. 7 and 15 of the Charter and sought injunctive and declaratory relief. A Federal Court judge accepted expert evidence that the assessment tools had not been vetted for cross-cultural bias, and were cross-culturally variant in a profound and unreliable manner. The judge concluded that the use of the assessment tools in respect of Aboriginal inmates was contrary to ss. 4(g) and 24(1) of the Corrections and Conditional Release Act (Act) and gave rise to an unjustifiable breach of s. 7 of the Charter due to their impact on institutional liberty decisions. The judge issued an interim order enjoining the appellant from using results obtained from the use of the assessment tools in respect of the respondent, and requested written briefs in respect of a study confirming the reliability of assessment tools for adult Aboriginal offenders. The Crown appealed. ... [read more]