Wednesday, May 25, 2016

Stay pending leave to appeal to SCC in a civil matter

Livent Inc. v. Deloitte & Touche, 2016 ONCA 395:


[4]            This court discussed considerations on this kind of motion in Yaiguaje v. Chevron Corporation, 2014 ONCA 40. They are those set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334: (1) whether there is a serious question to be determined on the proposed appeal; (2) whether the moving party will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours a stay. 

[5]            It has been held that these factors are not to be treated as watertight compartments and the strength of one may compensate for weaknesses of another. The overarching consideration is whether the interests of justice call for a stay. In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust2011 ONCA 620, Laskin J.A. described the test as follows, at para. 16:

The moving party … must show that it has raised a serious issue to be adjudicated, that it will suffer irreparable harm if a stay is not granted, and that the balance of convenience favours a stay. These three components of the test are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.

See also Longley v. Canada (Attorney General) 2007 ONCA 149 at paras. 14-15.




Tuesday, May 24, 2016

Charter breach following discovery of evidence can lead to exclusion of evidence

In a remarkable decision - one some might question - the Court of Appeal for Ontario holds Charter breaches occurring AFTER the discovery of evidence can be such as to lead to that evidence being excluded. 

R. v. Pino, 2016 ONCA 389:

[77]        So, should it make a difference whether the s. 10(b) breaches occurred before or after the discovery of the evidence? I do not think so. In either case, the administration of justice could be brought into disrepute if the court condoned serious Charter violations.

[78]        On this issue, I therefore conclude that the "evidence", the marijuana, was "obtained in a manner" that breached Ms. Pino's s. 8 and s. 10(b) rights. In concluding otherwise, the trial judge erred in law.




Friday, May 20, 2016

Sufficiency of reasons in a civil case

Dovbush v. Mouzitchka, 2016 ONCA 381:

[20]       Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold.  Inadequate reasons therefore pose a particular challenge for appellate review.

[21]       On the one hand, as Rothstein J. noted in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 99, "an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free standing basis for appeal."  On the other hand, beginning with the companion cases of R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, Canadian jurisprudence has confirmed the importance of trial judges providing adequate reasons for their decisions, and accepted that if the insufficiency of the reasons prevents meaningful appellate review, appellate intervention may be justified: see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 10-35.

[22]       Although originally developed in the criminal law context, the same rationale that underpins the duty to provide adequate reasons applies in the civil context as well, with necessary modifications: Canadian Broadcasting Pension Plan v. BF Realty Holdings Ltd. (2002), 160 O.A.C. 72 (C.A.), at paras. 64 and 114; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487, 227 O.A.C. 51, at paras. 10-14; and Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at paras. 62-64. The rationale is that reasons are necessary (i) to justify and explain the result; (ii) to tell the losing party why he or she lost; (iii) to provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), to permit effective appellate review: F.H. v. McDougall, at para. 98.

[23]       What makes reasons run afoul of this rationale? In the end, for purposes of appellate intervention, it turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: "the path taken by the trial judge through confused or conflicting evidence" (Sheppard, at para. 46); or that "the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them" (Canadian Broadcasting Corporation Pension Plan, at para. 114); or, the "what" and the "why" of the result (R.E.M., at paras. 17-20).    

[24]       In R.E.M., at paras. 17-18, the Supreme Court of Canada adopted the reasoning of Doherty J.A. in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), with respect to the object of a trial judge's reasons.  The Court said: 

Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.[Emphasis added.]

[25]       In R.E.M. as well, at para. 29, the Court underlined its earlier comment in Sheppard, at para. 55, emphasizing the importance of the need for adequate reasons when "a trial judge is called upon to address troublesome principles of unsettled law or to resolve confused and contradictory evidence on a key issue" (emphasis added).



Of the Law Societies of Upper Canada and Nunavut 

Thursday, May 19, 2016

Tort of Conversion

Tran v. Chung, 2016 ONCA 378:


[23] The tort of conversion involves "a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner's right of possession": Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, at para. 31. The tort is of one of strict liability and so it is no defence that the wrongful act was committed without intent: Boma, at para. 31. Even if the claimant is negligent with respect to its chattel, the wrongdoer will not be able to contest liability on the basis of the claimant's contributory negligence: Boma, at paras. 31-35. In other words, the tort of conversion is not concerned with the moral concept of fault: Westboro Flooring & Décor Inc. v. Bank of Nova Scotia (2004), 71 O.R. (3d) 723 (C.A.), at para. 14.

[24] In Boma, at para. 36, Iacobucci J. referred to the seminal discussion of the conversion of cheques from Crawford and Falconbridge's treatise, Banking and Bills of Exchange, 8th ed. (Toronto: Canada Law Book Inc., 1986):

Conversion is the remedy of the lawful possessor of chattels to have their value paid to him by a wrongful dispossessor. It is normally applied to goods and there might appear to be some difficulty in holding that a bank that had paid part of what it owes to a customer to some other person not entitled to receive it is guilty of a conversion of the customer's chattel. But any such apparent difficulty has been surmounted by treating the conversion as being of the instrument itself, that is, of the piece of paper in respect of which the payment is made. Similarly, a bank that collects a sum of money under an instrument for a person not entitled to it is treated as having converted the instrument. It has been repeatedly held that a bank converts an instrument by dealing with it under the direction of one not authorized, either by collecting it or, semble (although this has not yet actually been decided) by paying it and in either case, making the proceeds available to someone other than the person rightfully entitled to possession. [Emphasis added.]

[25] Borrowing from this passage, Iacobucci J. affirmed, at para. 83, that "[a] bank converts an instrument, including a cheque, by dealing with it under the direction of one not authorized, by collecting it and making the proceeds available to someone other than the person rightfully entitled to possession."

[26] The Supreme Court subsequently affirmed the test from Boma in 373409 Alberta Ltd., in the context of a cheque. At para. 10, Major J. noted that two factors must be present for a bank to be liable for conversion of a cheque:

[A] lending institution's liability in conversion is predicated upon finding both that payment upon the cheque was made to someone other than the rightful holder of the cheque, and that such payment was not authorized by the rightful holder. If either of these criteria is not satisfied, there is no tort.

Monday, May 16, 2016

Failure to consider Aboriginal heritage an error regardless of distance from heritage

R. v. Kreko, 2016 ONCA 367:


[18]        Section 718.2 of the Criminal Code requires consideration of the principles of sentencing, including the following principle:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[19]        As observed in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 93(3), s. 718.2(e) is remedial in nature: it is intended to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons. 

[20]        The sentencing judge erred by effectively requiring a causal link between the appellant's Aboriginal heritage and the offences, as is illustrated by the following extracts from his reasons for sentence and report to the Court of Appeal:

·       "There was nothing tied to his Aboriginal genetic heritage, let alone considerations in Gladue and Ipeelee, that led the accused, Mr. Kreko, to the negative side of hip-hop, including its fascination with guns."

·       "These things [possession of a gun, driving a Jaguar] relate to gang culture and do not relate to his Aboriginal background."

·       "It appeared to me that his Aboriginal connection had been irrelevant to his offences, or how he got there." 

·       "I ultimately held that his Aboriginal heritage could not be linked in any meaningful way to these current offences, although his hip-hop affiliations could."  

[21]        The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court held that it was an error to require an Aboriginal offender to establish a causal link between his or her background factors and the commission of the offence(s) in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causal connection demonstrated "an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples", and also imposed an evidentiary burden on the offender that was not intended by Gladue

[22]        The court continued, at para. 83:

[I]t would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86: 

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated. 

Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.  

[23]        The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paras. 84-86. 

[24]        In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervener has referred to some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's Aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his Aboriginal heritage and the offences.

[25]        The sentencing judge also misapprehended the evidence about the appellant's efforts to reconnect with his heritage:

I applaud any efforts by Mr. Kreko to put down any pro-social roots he can, and that includes the Aboriginal healing path in which he has dabbled to date. I note he did not participate in that path while at the Central East Correctional Centre. [Emphasis added.]




Of the Law Societies of Upper Canada and Nunavut 

Error to confuse source of money with money

Andrade v. Andrade, 2016 ONCA 368:

[46]        In finding that Luisa had no money of her own the trial judge conflated "income from paid employment" and "money". He confused the question of whether Luisa had money with the source of her money, which at least in the early years was the paid employment of her adult children. He did not explain why or how, once the working children gave their paycheques to Luisa, the money remained "their" money. It was no longer their money because they made a gift of it to their mother, knowing she would use it to support the family. Luisa's bank account was not a trust account. There was no evidence that the money was earmarked for specific purposes. Once the money was given to Luisa, it became "Luisa's money".


Of the Law Societies of Upper Canada and Nunavut