Recent Canadian Cases

February 6, 2008Converting an Application to an Action
In general an application will be converted to an action if there are material facts in dispute that require viva voce evidence. The question is whether there are “relevant material facts in dispute which would preclude this matter proceeding by way of application”: Canada Post Corp. v. G3 Worldwide (Canada) Inc. (2007), 85 O.R. (3d) 241 (C.A.).
Last week’s decision in Goldman v. The Law Society of Upper Canada, 2008 ONCA 67 is a good illustration of the point.
Stephen Goldman, a former member of the Law Society, was advertising himself as a lawyer. It appears his position was that since he had a law degree he could say he was a lawyer regardless of being a member of the Law Society. He did restrict his practice to work a paralegal would be allowed to conduct. The Law Society sought an order, in effect, barring him from holding himself out as a lawyer. Mr. Goldman argued the matter should not proceed as an application because there were facts in dispute – the Court below and on appeal held there was nothing that required witnesses to testify viva voce. As a result there was no need to convert the Law Society’s application to an action.
The relevant passage provides:
[3] Pour qu’une requête soit convertie en action, le juge doit être convaincu que la question à trancher n’est pas susceptible de donner lieu à une contestation des faits pertinents ou qu’elle soulève des faits complexes et controversés ainsi que des questions de crédibilité et qu’elle nécessite l’audition de témoins. Le juge a décidé que la question devant lui pouvait être résolue sans instruire un procès. Il n’a pas appliqué de principes erronés. Nous affirmons la décision du juge de première instance refusant d’instruire un procès.
February 4, 2008Specific Intent in Attempt Murder
The offence of attempt murder requires specific intent to kill. The wonderfully named case of R. v. Innocent 2008 CanLII 2751 emphasized this point last week:
[33] As noted previously, the key issue in this trial is whether the accused had the requisite mens rea on the charge of attempted murder. This is a specific intent offence. The mens rea for attempted murder is the intent to kill. I respectfully agree with the observation of my colleague Justice McKinnon in R. v. Villagran, [2007] O.J. No. 818 (S.C.J.) at para. 43:
[43] The charge of attempted murder is very difficult to prove. The mens rea for attempted murder is the specific intent to kill, notwithstanding that if the victim actually died and the accused were charged with murder, certain mental elements other than an intent to kill could lead to a conviction for murder. In the case of attempted murder, while a mental state falling short of a specific intent to kill may lead to conviction for other offences, it cannot support a conviction for attempted murder. See R. v. Ancio (1984), 10 C.C.C. (3d) 385 (S.C.C.).
February 2, 2008Choice of CounselCriminal accused have a constitutional right to counsel. In certain serious cases that right, to be effective, means that the State must pay for counsel. That leads to difficulties sometimes (see, for example, the issues raised by the Wills case in Newmarket); the conflict arises because the party paying for the counsel is not the party receiving the counsel.
An issue that arises on occasion is whether, where the State is paying for counsel, the accused can choose a specific lawyer or must the accused take any competent lawyer assigned by the State.
The recent British Columbia decision in
R. v. Sharif, 2008 BCCA 16 gives some guidance. Where a funding order is in place, while the choice of counsel is not unfettered, when an accused wants a specific lawyer for a good reason the Courts will be strongly inclined to appoint that lawyer.
The applicant in Sharif was designated a dangerous offender. He filed a notice of appeal against the finding that he is a dangerous offender but was denied legal aid funding on the basis his appeal had no merit. The Court of Appeal then made an order under s. 684 of the Criminal Code requiring the Crown to pay for counsel.
The Crown had an ongoing arrangement with legal aid in British Columbia that legal aid would administer any s. 684 payments (a very sensible approach which avoids any issue of the Crown reviewing the accounts of defence counsel).
However Mr. Sharif wanted only one lawyer -- Sheldon Goldberg -- to act for him. The s. 684 order did not make a specific appointment of Mr. Goldberg. As the Court notes:
"An examination of the case law indicates that while this court has, on occasion, appointed a particular lawyer to act for an appellant or respondent, the usual order is a general one, naming no particular lawyer. There are practical reasons for this. Applicants do not often come to the court with a specific lawyer in mind. If they do, that lawyer may not be available in a timely way, and since it is the public purse that pays for the provision of a lawyer’s services, it is understood that the applicant is entitled to a competent lawyer, not necessarily the lawyer of his or her choice."
In this case there was a good reason for the applicant to want Mr. Goldberg and Mr. Goldberg was prepared to act. The Court notes:
"Mr. Sharif says that Mr. Goldberg has acted for him over the last ten years. Mr. Sharif knows and trusts Mr. Goldberg. He has had some success in the courts when Mr. Goldberg has acted for him. As well, Mr. Goldberg is familiar with the intricacies of Mr. Sharif’s case. It would take a very long time for another lawyer to study and understand the issues Mr. Sharif’s case raises."
Normally Mr. Goldberg would have been appointed by legal aid as a matter of course. However legal aid refuses to allow Mr. Goldberg to act on any matters. The basis for this refusal is that a law society panel found that Mr. Goldberg had incompetently conducted four appeals taken to the British Columbia Court of Appeal in which the main ground of appeal was the incompetence of counsel. As a result, Mr. Goldberg has been ordered to serve a 90-day suspension that is set to begin in April 1, 2008.
The Court considered legal aid's position (which on the face of it seems very reasonable -- presumably there are many perfectly able appeal lawyers available other than Mr. Goldberg) but declined to agree and ordered the applicant to be allowed his choice of counsel.
The Court held:
"Mr. Sharif is adamant that he have the services of Mr. Goldberg. He points out that Mr. Goldberg is intimately familiar with his files and has been his lawyer for over ten years. Mr. Goldberg was counsel on the trials of the predicate offences, on the dangerous offender hearing and appeared for him on two appeals connected with those proceedings. Mr. Goldberg’s relationship to Mr. Sharif and his cases persuades me that I should appoint Mr. Goldberg as counsel on the s. 684(2) application."

January 31, 2008Theft is Cause for DismissalDespite some cases that may have been taken to suggest otherwise there is little doubt that theft by an employee is usually sufficient grounds for termination. Theft is such a serious matter that, except in trivial cases (say taking of a pen from work), the employment relationship is irreparably damaged by employee's conduct and cause is made out: Agosta v. Longo Brothers Fruit Markets Inc. 2006 CarswellOnt 3128.
That said, groundless allegations of theft are dangerous for employers to make -- in Johnson v. Famous Players Inc., [1991] M.J. No. 625 (Man. Q.B.), the court granted an award of aggravated damages to the plaintiff on the basis that she had been subject to an unfounded accusation of theft.
The recent Saskatchewan Queen’s Bench decision in Beaver River Regional Housing Authority v. Hansen 2008 SKQB 18 is a useful case setting out very clearly that theft is generally cause for termination. The facts are fairly simple – the employee was found to have taken tools from work and termination followed. The employee sued for wrongful dismissal and the Court dismissed the claim saying:
[12] Hansen’s claim for wrongful dismissal is without merit. If Hansen was the Authority’s employee, his behaviour in not returning the Authority’s equipment was grounds for dismissal with cause. It certainly constituted a breach of contract which permitted the Authority to terminate it. Hansen’s counter claim is dismissed.
January 30, 2008
Significant House of Lords Limitations DecisionA woman whose life was ruined by Lotto rapist Iorworth Hoare has won the right to pursue a damages claim against him even though the relevant limitation period had long expired.
The retired teacher, identified only as Mrs A, was among five sex attack victims who went to the House of Lords seeking a review of the law which bars them from taking action because their claims are outside the six-year time limit.
Lord Hoffmann said Section 33 of the Limitation Act gave judges the discretion to extend the time limit when they believed it was right to do so.
"Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act."
The Law Lords decision is expected to bring thousands of claims from abuse victims who are now able to take action many years after the alleged attacks. Five Law Lords were unanimous in allowing the appeals and finding that judges have the discretion to decide whether the time bar of the Limitation Act can be extended. All the cases will now go back to the High Court so that they can be reconsidered in the light of the House of Lords findings. Mrs A received just £5,000 from the Criminal Injuries Compensation Board after the brutal attack by Iorworth Hoare 20 years ago. But the 79-year-old was ordered to pay Hoare's £100,000 legal fees after unsuccessful attempts to bring a case for compensation in the High Court and Court of Appeal. She was 59 when Hoare - who had previously subjected six other women to serious sexual assaults, including rape - attacked her as she walked in Roundhay Park, Leeds, in February 1988.
Mrs A says she still suffers from nightmares and claims the brutality of the attack destroyed her self esteem, wrecked her relationships and ruined her life. Hoare, 59, had not been worth suing until he won £7 million on the Lotto Extra. He was jailed for life in 1989 and spent 16 years in prison before his win while on day release late in 2004. He was freed on parole the following March and is now reported to live in a £700,000 mansion near Newcastle.
Timeline:
Hoare's victim Mrs A was attacked 20 years ago
February 1988 - Iorworth Hoare, originally from Seacroft, Leeds, attacks a woman, known as Mrs A, in the city's Roundhay Park.
May 1989 - Hoare is jailed for life for the attempted rape of Mrs A. He had previously been convicted of a string of sex attacks, including rape, during the 1970s and 1980s.:
Mrs A, a retired teacher, receives just £5,000 from the Criminal Injuries Compensation Board.:
August 2004 - Hoare wins £7 million on the Lotto while on day release from Leyhill open prison in Gloucestershire.
December 2004 - Once Mrs A discovers the win, she realises it is worthwhile suing Hoare for psychiatric damage. Previously he had no financial assets. She issues proceedings and obtains medical reports on her condition.
March 2005 -Just months after his win, Hoare is released on parole. He moves into a £700,000 mansion near Newcastle.
June 2005 - Senior High Court official, Master Eyre, decides Mrs A's damages action should be struck out. Eyre concludes Hoare is bound to win if the case goes to trial because the claim was brought more than six years after the assault occurred.
October 2005 - Mr Justice Jack at London's High Court upholds the decision. He says the case is covered by a section of the 1980 Limitation Act which involved a non-extendable six-year period. Mrs A is also ordered to pay an estimated £100,000 towards Hoare's legal costs.
April 2006 - Mrs A loses another appeal. The Master of the Rolls Sir Anthony Clarke, Lord Justice Brooke and Lady Justice Arden hold that the court is bound by the existing decision of the House of Lords. This is to the effect that claims for damages arising out of an intentional sexual assault have a non-extendable six-year limitation period from the date of the assault (or the claimant's 18th birthday, if later). Because the six-year limitation period had expired before the Human Rights Act came into force, the claimants could not rely on the provisions of that Act for assistance.
November 2007 - Mrs A asks five Law Lords to modify the law which bars her from taking action because she is outside the six-year time limit.
January 30 2008 - Mrs A, now 79, discovers she can claim compensation. Ruling 'will benefit abuse victims.'
January 28, 2008Unjust Enrichment Defeated by Change in PositionToday's decision in Perfect Auto Lease & Sales Inc. Gagnier Trucking (Fingal) Limited, 2008 ONCA 61 is a good illustration of a legitimate claim for unjust enrichment defeated by a change in position by the enriched party.
The law is stated simply by the Court saying:
"There is no dispute between the parties that money paid by mistake of fact – as here – can give rise to a prima facie case of unjust enrichment. Nor is there any controversy that a change in position may be a defence to a claim for restitution in respect of money paid by mistake of fact."
The main difficulty faced by the plaintiff was that the enriched party had changed its position. Moreover, despite certain odd circumstances, the enriched party had no reason to suspect the moneys were not properly paid.
The case will be useful for counsel dealing with unjust enrichment and change in position defences.
January 28, 2008Fresh EvidenceToday's Nova Scotia Court of Appeal decision in C.P. v. D.S, 2008 NSCA 10 is a good example of how Courts are sometimes forced, for the sake of justice and fairness, to admit evidence on appeal, as 'fresh evidence', evidence that is clearly not 'fresh'. Here a birth parent was not represented at an adoption hearing, apparently because of a lack of legal aid, and the Court allowed evidence of that so as to set aside an adoption.
The birth mother, from whom the child had been apprehended and placed in permanent care, appealed adoption of the child. The child was now in the care of the adoptive parents under a private guardianship order, the permanent care order having been terminated in favour of the private guardianship. Upon receiving notice of the hearing, the mother, who resides in another province, attempted to retain counsel through legal aid to represent her at the hearing. Although she made reasonable efforts in that regard she did not receive approval for funding in time to make arrangements to be represented at the hearing. The judge dispensed with her consent, as he was entitled to do upon her non-appearance. The mother tendered fresh evidence of her efforts to secure counsel.
The Court allowed the appeal. The fresh evidence was admitted as relevant to the process. The mother presented a reasonable excuse for her non attendance at the hearing. Although there was no error by the presiding judge, the fact that she was not heard amounted to a denial of natural justice. It was in the child’s best interests that her request for entitlement to access should the adoption be granted be adjudicated.
The Court's reasoning is helpful:
[17] As is the practice with such applications, we received the proposed fresh evidence but reserved our decision on its admission (R. v. Stolar, [1988] 1 S.C.R. 480; 40 C.C.C. (3d) 1 at p. 491 S.C.R., p. 8 C.C.C.). The test for admission of fresh evidence on appeal, directed to an issue of fact or law decided at trial, was set out by McIntyre, J., writing for the Supreme Court of Canada, in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759; (1979), 50 C.C.C. (2d) 193 at p. 760 S.C.R., p. 193 C.C.C. The proposed evidence must satisfy all of the following criteria:
it is not generally admitted if, by due diligence, it could have been produced at trial;
it must bear upon a potentially decisive issue; must be reasonably capable of belief;
and must be such that, if believed, it could reasonably be expected to have affected the result.
[18] However, where integrity of the trial process is the focus of the fresh evidence application, the test from Palmer, supra is not strictly applied. (R. v. Taillefer; R. v. Duguay, [2003] 3 S.C.R. 307, R. v. Dunbar, [2003] B.C.J. No.2767 (Q.L.)(C.A.), R. v. W.(W.) (1995), 84 O.A.C. 241; 100 C.C.C. (3d) 225).
[19] The appellant is not offering the fresh evidence here to dispute a factual or legal finding at trial, but to establish that she intended to be at the adoption hearing and had made reasonable efforts for legal representation, but was not present or represented at the hearing despite her efforts. Counsel for the respondents and the presiding judge were unaware that the appellant birth mother wished to be heard. Consequently, says the appellant, the process leading to the adoption order was flawed. Through inadvertence she was denied her right to be heard.
[20] Counsel for the respondents takes issue with several of the factual assertions contained in the appellant’s affidavit, mainly surrounding the birth mother’s alleged past attempts to contact the child and denial of her requests for access. The appellant, who continues to reside in British Columbia, was not available for cross examination on her affidavit.
[21] I would admit fresh evidence limited to the portions of the appellant’s affidavit addressing her efforts to secure counsel for the adoption hearing (paras. 6, 7 and 8) and the affidavit of Charlene Moore. Clearly the due diligence requirement is not applicable here. I am satisfied that the evidence of the appellant’s attempts to be represented at the hearing is reasonably capable of belief; the steps she took to engage counsel were reasonable in the circumstances and that she acted with dispatch. I am further satisfied that the judge presiding at the adoption application, having ordered notice to the birth parents, would have heard the appellant’s submissions had she been present or represented.
January 27, 2008Supreme Court Decision Muddled In MediaHeadnotes Are Not Enough!!!
News reports are a dangerous way to get legal precedents. Last week's media coverage of the Supreme Court decision in R v. C.L.Y., 2008 SCC 2 focused heavily on the dissent which, strong though it was, remains a dissent.
The Court, considering a trial decision convicting for sexual misconduct, did not rule that the language of the trial judge required a new trial – indeed, the Court gave strong support to the view that the phrasing of trial judges was to be viewed with a generous eye.
The Court cited R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5 cautioning appellate judges not to dissect, parse, or microscopically examine the reasons of a trial judge. The Court quoted Justice Doherty:
"Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law."
Despite news reports to the contrary the Court did not overturn the decision below on the basis that the presumption of innocence was ignored – quite the contrary. The Court said:
"The trial judge’s reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt. "
The dissent was strong and suggested the trial judge had confused the order of reasoning with the presumption of innocence (finding the complainant trustworthy before even hearing the accused testify) but the majority rejected this view.
As always, read the case and not just the headnote!!!
January 23, 2008Adverse Findings Against A Lawyer On An Assessment
The very recent British Columbia Court of Appeal decision in Walker v. Schober 2008 BCCA 19 is worth review by Ontario counsel in the context of an assessment of accounts.
Put briefly, the British Columbia court found that findings by the registrar taxing the account that suggested the lawyer had acted unethically were not grounds to allow an appeal. Those findings went to a matter in issue – the authorization of the work done and weather the client was properly consulted for instructions. These points related to the accounts and were properly considered.
In Ontario, of course, the case law and test is somewhat different (see Cohen v Kealey & Blaney (1985), 26 C.P.C. (2d) 211. The Cohen considerations are substantially identical to those set out in Re Solicitors [1972] 30 O.R. 433) but the issue of whether instructions were properly sought and obtained is legitimately before an Ontario assessment officer. Accordingly, the Walker case is relevant.
Walker was a client's appeal from the order of a Supreme Court chambers judge who allowed a lawyer's appeal from a registrar's decision to reduce her accounts in a matrimonial proceeding from $21,055 to $6,000. The chambers judge decided that the registrar had exceeded his jurisdiction in finding the lawyer's conduct "most discreditable", on the ground that amounted to a finding of professional misconduct within the exclusive jurisdiction of the Law Society, and made factual errors. The appeal was allowed because the registrar did not exceed his jurisdiction in commenting on the lawyer's conduct in the context of a review of the lawyer's accounts, and made no errors of fact.
The Court said:
[48] Although the registrar’s language was strong in tone, all of his findings were made within the context of deciding whether the client had “authorized” the services and whether they were “necessary and proper”. I do not agree with the chambers judge that there is a meaningful difference, in this context, between “proper” and “propriety”. The registrar’s use of the phrase “necessity and propriety” does not indicate that he ventured into an inquiry he did not have the jurisdiction to undertake.
[49] Counsel for the respondent raised a similar argument in Access Law Center et al. v. Ferriman, 2006 BCSC 661. In that case, in assessing the parties’ credibility, the registrar commented that certain evidence “reflected poorly on the credibility of the solicitor, ‘not to mention his professional ethics’” (at para. 16). I agree with Melvin J.’s comments (at para. 18):
I agree with Mr. Turriff that the matter of disciplining solicitors (subject to a residual power that may rest with the court in dealing with officers of the court) is a matter within the jurisdiction of the Law Society. However, in the context of determining credibility, in my view, the registrar or any other tribunal of fact is entitled to take into consideration conduct; namely, a person's acts and declarations in determining the credibility of the individual as a witness. In this respect, I do not find that the registrar's comment concerning professional ethics is inappropriate. She did not make a disciplinary finding.
[50] Similarly, in this case, the registrar did not purport to decide matters of professional misconduct. He made findings of fact relevant to the question of whether the services provided by the lawyer were “necessary and proper”, as required by s. 71 of the Legal Profession Act.