Administrative Tribunals and the Power to Fill Legislative Gaps

Today's Ontario Court of Appeal decision in Oliveira v. Ontario (Disability Support Program Director), 2008 ONCA 123 deals with the narrow question of income support for dependant children in the context of joint custody. While important in that area the case discusses the power of a tribunal to deal with situations not anticipated by legislation -- the legislative gap issue.

The Court held that gaps can, subject to judicial review, properly be filled and the language of the Court is useful. Especially where society is changing faster than legislation, the power to fill gaps is very important.

The Court writes:

[26] I disagree with this view. Where the legislation in question does not expressly confer a power, gaps in legislation may be filled when doing so is necessary to the operation of the legislative scheme: Sullivan, supra, pp.137-38. For example, in Pointe-Claire (City) v. Quebec ( Labour Court), [1997] 1 S.C.R. 1015, the Labour Court had to make a decision that a person was or was not an employee in order for the legislative scheme to operate. A person was sent by an employment agency to work temporarily for the City. The union submitted she was an employee of the City for the purposes of s. 39 of Quebec's Labour Code. The Code defined an "employee" as "a person who works for an employer and for remuneration". The Supreme Court upheld the Labour Court's decision that the woman was an employee of the City because her work was directed by the City, even though she was paid by the employment agency. Lamer C.J. wrote at para. 62:

I am aware that the arrangement is not perfect. However, it must not be forgotten that the relationship in question here is not a traditional bipartite relationship but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is natural that labour legislation designed to govern bipartite situations must be adjusted in some ways.

...

[30] The Act and Regulation contain no mechanism for calculating income support on anything other than a monthly basis. The same result would, however, be achieved by paying the full basic needs component to the appellant when she is in receipt of the CCTB for six months and nothing afterwards when she is not incurring this variable cost and is not eligible for CCTB. Providing half of basic needs to the appellant throughout the year makes her income more consistent and does not affect the overall result.

[31] The wording of s. 2(3) does not specifically envisage the increasingly popular option of joint custody. In such circumstances, I am of the opinion that the Tribunal had jurisdiction to make the order it did and, indeed, the respondent supports this interpretation. After analyzing the legislation, I conclude that there is a basis for the Tribunal's decision to order payment of fifty per cent of the amount of the basic needs component of income support in the Act and the Regulation, and the Tribunal's conclusion does not constitute an error of law.

Self Help Leads to Punitive Damages

A common situation arises where a party, feeling they are owed money, decides to use self help to get paid. Sometimes that self help involves threats to lay fraud charges, other times it involves seizing property without any legal right so to do.

Today's Nova Scotia decision in Total E-com Home Delivery Inc. v. Smith, 2008 NSSC 37 gives an illustration of such conduct and the dangers that can arise therefrom.

The facts are straightforward enough. The plaintiff contracted with Future Shop to arrange home delivery of retail product in the Halifax area. The plaintiff subcontracted with the defendant carrier. There were numerous complaints, and plaintiff terminated the subcontract. The defendant appropriated nearly $50,000 in Future Shop product and made threats to have fraud charges brought against the plaintiff. Plaintiff paid the retail value to Future Shop.

The Plaintiff sued for breach of contract, conversion, economic torts and won.

The Court also awarded punitive damages. The discussion by the Court of those damages is useful:

Punitive Damages
[52] This was not a merely negligent conversion. It was deliberate. Worse still, I
find it was malicious.
[53] The evidence of malice begins with the overcharging, and the threat: Mr.
Smith saying pay me what I do not deserve or else. Then, came the substance of
the threat: Mr. Smith’s slipping away with Future Shop’s property. Then, a
refusal to return what did not belong to him and a threat to accuse E-com of
defrauding Future Shop unless the excessive claim is paid:
Louise I think it is time you pay up so I can, at that time return the product to the
stores. If I do not receive my money I will not let this rest. You have much to
lose Louise, defrauding future shop of fuel surcharges and cross dock fees and
Lord knows what else. If I have any legal precedent concerning your
responsibility in this, future shop will as much if not more so, seeing I had no
formal contract with you. I will move on and forget this all took place only if I
receive my money.
And, finally there is the sale of property he did not own. All of this was done by a
man who knew full well the havoc he would cause when customers did not receive
Future Shop product they had paid for and, in turn, the damage that could do to Ecom’s
business relationship with Future Shop.
[54] Punitive damages are not recoverable in a case of breach of contract unless
the breach is also tortious: Vorvis v. Insurance Corporation of British Columbia,
[1989] S.C.J. 46, or it amounts to a breach of a duty of good faith and fair dealing:
Whiten v. Pilot Insurance Co., [2002] S.C.J. 19. Here the breach also amounts to
conversion and, probably, interference with economic relations.
[55] This breach of contract and commission of a tort is so outrageous as to
require retribution and deterrence. In addition to the malice, an award of punitive
damages is necessary because the misbehaviour promotes resolution of civil rights
by illegal means. Mr. Smith obtained $25,000, I will take his pleaded amount. He
obtained this money by taking someone else’s property first to extort payment of
an inflated claim and then to sell it to pay the claim. Mr. Smith, and others, need to
know that they cannot collect debts that way. In this case, that message is not
delivered through an award of compensatory damages.
[56] Counsel for Total E-com refer me to the following list of factors provided by
Justice Binnie on behalf of the majority, at para. 113 in Whiten, to be considered in
assessing an amount of punitive damages:
1. Whether the misconduct was planned and deliberate;
2. The intent and motive of the defendant;
3. Whether the defendant persisted in the outrageous conduct over a lengthy
period of time;
4. Whether the defendant concealed or attempted to cover up its misconduct;
5. The defendant’s awareness that what he or she was doing was wrong;
6. Whether the defendant profited from its misconduct;
7. Whether the interest violated by the misconduct was known to be deeply
personal to the plaintiff, or a thing was irreplaceable
The misconduct was planned and deliberate. As for intent and motive, the
misconduct was actuated by malice. It lasted long enough to make delivery to
customers pointless. The misconduct was not concealed or covered up, but it was
covert. Mr. Smith had to know the property was not his, that he was doing damage
to Future Shop customers, and that that damage could seriously harm Total Ecom’s
business. The defendant did not profit, but he sold property that did not
belong to him in order to realize on an unproved and unsecured claim. All but the
last of Justice Binnie’s factors weigh in favour of a substantial award in this case.
[57] Total E-com submitted for $10,000 in punitive damages, but they also
argued for $21,970 more in compensatory damages. As I said, that argument goes
to punitive rather than compensatory damages. I am satisfied that to require Mr.
Smith to pay the replacement cost of the property he took will not sufficiently
address the need for retribution and deterrence. Taking the factors in Whiten into
account, I am satisfied that an award of $20,000 in punitive damages responds
adequately to the need for retribution against, and deterrence of, the kind of
misconduct we see in this instance.

Yellowknife

Landed in this wonderful northern town for the Canadian Bar Association Mid-Winter Conference. Although large by northern terms the town is small for southerners -- it would be dwarfed by Pembroke. That said, the town has much to offer -- art galleries, a fine book store and a lively classical music scene. Yellowknife feels much bigger than the 18,000 population.

Invalidity of Telewarrant Does Not Lead to Exclusion of Evidence

The recent British Columbia Court of Appeal decision in R. v. Pech, 2008 BCCA 61 considers the exclusion of evidence under s 24(2) of the Charter in the context of a telewarrant. A peace office sought and obtained a telewarrant to search premises locating a large quantity of drugs. The validity of, and effect of any invalidity, of the search were the main issue.

The Criminal Code provides that, where a Justice of the Peace is not readily available a search warrant may be obtained electronically from a Justice. The key, for this case, was the availability of a Justice.

Section 487.1(1) of the Criminal Code reads:

Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an Information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

In fact the officer failed to determine if a Justice was available and the Crown conceded the telewarrant was invalid. That said, the invalidity was found to be technical and not sufficient to trigger an exclusion of evidence. The offence and the evidence were such that to exclude the drugs found during the search would bring the administration of justice into disrepute. A mere technical breach, in these circumstances, cannot support the exclusion of evidence:

[31] The Crown conceded at trial, and concedes on appeal, that there was no evidence in the ITO to support Constable Di Nella's statement that no judicial officer was available, that he had not made any inquiry in that regard, and that the telewarrant was therefore invalid. However, Crown counsel suggests that the record may be incomplete on this subject. He says the question of impracticability was not raised by defence counsel before the voir dire commenced, and only arose in cross-examination of Constable Di Nella. In submissions, Crown counsel drew the trial judge's attention to an earlier memorandum from the Chief Judge of the Provincial Court, not in evidence, effectively saying that there will never be a justice of the peace or a judge available to hear warrant applications (Tr. p. 115).

[32] In addition, Crown counsel says there is no evidence that Constable Di Nella was trying to avoid appearing in person before a justice, or that he acted in bad faith. He says that a finding of either good or bad faith on the part of Constable Di Nella could only be made on evidence other than that of Constable Di Nella himself. Crown counsel says it was reasonable to infer that the officer had a momentary lapse that at worse could be characterized as inadvertence. He says this Court should defer to the trial judge's findings of fact with respect to Constable Di Nella's state of mind in preparing the ITO, and that on the whole of the evidence his conclusions are reasonable.

[33] The question under s. 24(2) of whether the admission of evidence would bring the administration of justice into disrepute is a question of mixed fact and law, subject to the standard of palpable and overriding error, unless there has been an error of principle or law: see R. v. Smith, 2005 BCCA 334 (CanLII), 2005 BCCA 334 at paras. 36-38, citing R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631 at para. 45.

[34] In this case, there is an absence of direct evidence to support some of the trial judge's findings concerning police conduct. The test on review of factual conclusions based on the drawing of inferences is similarly one of substantial deference to the trial judge. The standard of review is whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at 251-256, 2002 SCC 33.

[35] The important findings of fact made by the trial judge concerning the police conduct in obtaining the telewarrant are set out in paras. 63 and 66 of his reasons, quoted above. Paraphrasing para. 63, the learned trial judge held that there was no improper motive, malice, bad faith, dishonesty or attempt to mislead on the part of Constable Di Nella. He says the breach of s. 8 was not deliberate, wilful or flagrant. With respect, on a review of the entire record, it appears to me that those are all inferences reasonably open for the trial judge to draw.

[36] However, some statements in para. 63 of his reasons deserve closer scrutiny. Those statements are:

(1) The failure by Constable Di Nella to disclose what steps he had taken with respect to the impracticality of the tele-warrant in the context of this case does not come out of any lack of attention to detail or misconduct or intent to mislead or be dishonest;

(2) It was not clear on the whole of the evidence whether or not he knew exactly what steps he had to take or what he was relying upon to make the assertion of fact which he did; and

(3) I am satisfied that the breach was in no way deliberate, wilful or flagrant and that on the basis of this circumstance in this case, that this is an area which, at the time in 2004, was in a state of flux due to numerous decisions being made by the Chief Judge of this Court.

[Emphasis added].

[37] These statements must be viewed in light of the language of s. 487.1(1) of the Criminal Code which reads:

Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an Information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

[38] This section contemplates that the Chief Judge of the Provincial Court may designate a justice for the purposes of receiving ITOs by telecommunication and issuing telewarrants based on such ITOs. There is nothing in this record to provide evidence as to what designations, if any, the Chief Judge made in this respect for Surrey in 2004. There are only the submissions of counsel at the close of the voir dire. It may well be that the learned trial judge had information about these matters that is not disclosed in the evidence.

[39] The trial judge's statements in para. 63, identified above, seem to come to this: there was some uncertainty at the time in Surrey as to the designation of a justice. Constable Di Nella may therefore have been unclear as to whether he had to make an inquiry in every case as to the availability of a justice before whom he could appear in person. As a result, his failure to say in the ITO what steps he had taken was not the result of any lack of attention to detail or misconduct or intent to mislead or be dishonest.

[40] In my respectful view, the only part of that statement that may be questioned is whether Constable Di Nella showed any lack of attention to detail. His own evidence in this regard is that he did not recall whether he made any phone calls as to the availability of a justice (Tr. p. 53) and believes he may have assumed that none was available from what he had been told on prior occasions.

[41] In my opinion, that evidence would have supported a conclusion that Constable Di Nella did show some lack of attention to detail. However, even if the learned trial judge misstated the evidence or the effect of the evidence in that regard, Constable Di Nella's conduct could at worst be characterized as inadvertent or perhaps careless. I do not think his conduct could be raised to the level of deliberately flagrant or dishonest such as would weigh heavily against the admissibility of the evidence seized under the telewarrant.

[42] I am therefore not persuaded that the learned trial judge erred in his assessment of the seriousness of the police conduct in seeking a telewarrant based on the unavailability of a justice.

Exclusive Jurisdiction of Labour Relations Board

Subsections 3(2) and 3(3) of the Rights of Labour Act contain the restrictions on labour matters being brought to court:

"3(3) A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of this Act or of the Labour Relations Act."

The scope of that restriction was made clear in the recent Superior Court decision in A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto, 2008 CanLII 5106. The case arose in a curious fact pattern.

An employer member of an employers' organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent bound to the collective agreement sued the organization for breach of contract, fiduciary duty and various economic torts. The alleged breach was based on a claim that monies collected as part of an industry fund and related to the collective bargaining process were misused.

The argument, which seems attractive at first, was that the misuse of monies was unrelated to the bargaining process -- just because monies were collected as part of the process does not mean their misuse is a matter for a labour tribunal. After considerable discussion the Court found otherwise. The Court said the forms of pleading did not make a difference and the real question is what, factually, was being claimed. Since the claim was related to bargaining the Courts were excluded. The Court writes:

"ARGUMENTS AND ANALYSIS

[13] There is no dispute that the relationship between the Plaintiff and Association is governed by the labour relations legislation. The dispute is over whether the pleadings in the Plaintiff's Statement of Claim are of such a nature that they fall outside the jurisdiction of the Board.

[14] The Plaintiff frames its Statement of Claim in terms of breach of contract and breach of fiduciary duty alleging that when it became a member of the Association it entered into a contractual relationship with the Association containing certain express and implied terms. Among those terms are the obligations the Association undertook with respect to the Industry Fund, being to provide an accounting of the Industry Fund; to act honestly and in good faith; and to discharge its duties and obligations faithfully. The Plaintiff alleges the Association knowingly acted in such a manner with respect to the Industry Fund so as to interfere with its economic interests.

[15] The Plaintiff argues the substance of its complaint against the Association arises from its contractual relationship with the Association and its breach of the terms of that contract in the manner in which it managed the Industry Fund. It does not arise under the Collective Agreement, which the Plaintiff accepts would fall under the Board's jurisdiction. The Plaintiff says it is therefore entitled at common law to bring allegations of breach of contract and bad faith in an action against the Association. For the following reasons, I do not accept the Plaintiff's position.

[16] The Association argues, and I agree, the substance of the Plaintiff's claim with respect to the Association's alleged mishandling of the Industry Fund falls clearly within the exclusive jurisdiction of the Board. The court in Myrtezaj held if the claim arises expressly or inferentially out of the labour relations scheme, the jurisdiction of the Board is engaged. Hoilett J., for the Ontario Superior Court states:The law seems clear that in determining whether or not the court has jurisdiction the true character of the issue or issues has to be determined and viewed in the context of the relevant legislative framework [Myrtezaj v. Cintas Canada Ltd., [2007] O.J. No. 569 (Ont. S.C.J.), at para.7; [see also Dagher et al. v. McDonnell-Ronald Limousine Service Limited 1999 CanLII 9305 (ON C.A.), (1999), 46 O.R. (3d) 97 (Ont.C.A.), at para. 18].

[17] The Association points out the courts have cautioned against plaintiffs attempting to characterize pleadings so as to make them appear to fall outside the scope of the Board's authority. Pomerance J., for the Ontario Superior Court, expressed that concern clearly:

However, jurisdiction does not depend on the semantics of the debate. The analysis must hinge on the "essential character" of the claim. Creative language cannot confer jurisdiction. Labels aside, the core question is whether, on objective analysis of the facts, the dispute arises either expressly or inferentially out of the terms of the collective agreement.

[Coleman v. Demers, [2007] O.J. No. 922 (Ont. S.C.J.), at para. 22].

[18] Courts have found, even where the words used in the Statement of Claim sound in contract and tort, if the essence of the pleadings actually constitute complaints concerning matters covered by the labour relations scheme, the Board has exclusive jurisdiction. Judicial deference has been extended to legislative structures established under labour relations an employers' organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent for all employees bound to the collective agreement"

Labour Board Jurisdiction

Subsections 3(2) and 3(3) of the Rights of Labour Act contain the restrictions on labour matters being brought to court:

"3(3)  A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of this Act or of the Labour Relations Act."

The scope of that restriction was made clear in the recent Superior Court decision in A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto, 2008 CanLII 5106. The case arose in a curious fact pattern.

An employer member of an employers’ organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent bound to the collective agreement sued the organization for breach of contract, fiduciary duty and various economic torts. The alleged breach was based on a claim that monies collected as part of an industry fund and related to the collective bargaining process were misused.

The argument, which seems attractive at first, was that the misuse of monies was unrelated to the bargaining process -- just because monies were collected as part of the process does not mean their misuse is a matter for a labour tribunal. After considerable discussion the Court found otherwise. The Court said the forms of pleading did not make a difference and the real question is what, factually, was being claimed. Since the claim was related to bargaining the Courts were excluded. The Court writes:

"ARGUMENTS AND ANALYSIS

[13]      There is no dispute that the relationship between the Plaintiff and Association is governed by the labour relations legislation. The dispute is over whether the pleadings in the Plaintiff’s Statement of Claim are of such a nature that they fall outside the jurisdiction of the Board.

[14]      The Plaintiff frames its Statement of Claim in terms of breach of contract and breach of fiduciary duty alleging that when it became a member of the Association it entered into a contractual relationship with the Association containing certain express and implied terms. Among those terms are the obligations the Association undertook with respect to the Industry Fund, being to provide an accounting of the Industry Fund; to act honestly and in good faith; and to discharge its duties and obligations faithfully. The Plaintiff alleges the Association knowingly acted in such a manner with respect to the Industry Fund so as to interfere with its economic interests.

[15]      The Plaintiff argues the substance of its complaint against the Association arises from its contractual relationship with the Association and its breach of the terms of that contract in the manner in which it managed the Industry Fund. It does not arise under the Collective Agreement, which the Plaintiff accepts would fall under the Board’s jurisdiction. The Plaintiff says it is therefore entitled at common law to bring allegations of breach of contract and bad faith in an action against the Association. For the following reasons, I do not accept the Plaintiff’s position.

[16]      The Association argues, and I agree, the substance of the Plaintiff’s claim with respect to the Association’s alleged mishandling of the Industry Fund falls clearly within the exclusive jurisdiction of the Board. The court in Myrtezaj held if the claim arises expressly or inferentially out of the labour relations scheme, the jurisdiction of the Board is engaged. Hoilett J., for the Ontario Superior Court states:The law seems clear that in determining whether or not the court has jurisdiction the true character of the issue or issues has to be determined and viewed in the context of the relevant legislative framework [Myrtezaj v. Cintas Canada Ltd., [2007] O.J. No. 569 (Ont. S.C.J.), at para.7; [see also Dagher et al. v. McDonnell-Ronald Limousine Service Limited 1999 CanLII 9305 (ON C.A.), (1999), 46 O.R. (3d) 97 (Ont.C.A.), at para. 18]. 

[17]      The Association points out the courts have cautioned against plaintiffs attempting to characterize pleadings so as to make them appear to fall outside the scope of the Board’s authority.  Pomerance  J., for the Ontario Superior Court, expressed that concern clearly:

However, jurisdiction does not depend on the semantics of the debate. The analysis must hinge on the “essential character” of the claim. Creative language cannot confer jurisdiction. Labels aside, the core question is whether, on objective analysis of the facts, the dispute arises either expressly or inferentially out of the terms of the collective agreement.

[Coleman v. Demers, [2007] O.J. No. 922 (Ont. S.C.J.), at para. 22].

[18]      Courts have found, even where the words used in the Statement of Claim sound in contract and tort, if the essence of the pleadings actually constitute complaints concerning matters covered by the labour relations scheme, the Board has exclusive jurisdiction.  Judicial deference has been extended to legislative structures established under labour relations an employers’ organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent for all employees bound to the collective agreement"

Burnt Marijuana Smell not Proof of Drug

A Saskatchewan appeal's court upheld a decision that the smell of burnt marijuana is not evidence of illegal drug possession since by definition the proof has gone up in smoke, it said Wednesday.

"The smell of burnt marijuana does not reasonably support the inference that additional marijuana is present," the three-judge panel said in newly-released court filings.

Thus, police "did not have reasonable grounds to search" the truck of Archibald Janvier after his roadside arrest in 2004 for narcotics possession, the judges said in maintaining his acquittal.
Police had originally stopped Janvier's truck in La Loche, Saskatchewan, in western Canada, to ticket him for a busted tail light.

At trial, the arresting officer testified he had smelled the "pungent odor of burnt marijuana" coming from inside Janvier's truck, charged him with illegal drug possession, and then searched his vehicle.

The Royal Canadian Mounted Police constable found eight grams of marijuana in Janvier's coat pocket, boot and truck console, but that evidence was thrown out.

Archibald's lawyer Ronald Piche successfully argued the warrantless search and seizure were "unreasonable" because the aroma of burnt marijuana -- as opposed to raw marijuana -- infers that the drug has dissipated.

"How can you say you're in possession of something that doesn't exist," Piche told the daily Saskatoon Star Phoenix.

Proceeding Ex Parte is Dangerous

It is better not to proceed ex parte unless absolutely necessary.

The common law system is based on the view that the truth emerges from a struggle between opposing parties and, of course, on an ex parte hearing only one side is before the court so that struggle does not take place.

As a way of trying to alleviate the problem of one party being unrepresented on an ex parte hearing the courts have been very strict in requiring full and fair disclosure of all facts, good or bad. The difficulty is that often it is hard to ensure all the facts are before the court -- sometimes, for example, the client does not tell the lawyer everything.

The impact of failing to make full disclosure on an ex parte matter is that the orders made will be set aside, with a significant cost award, and, often, a judicial tongue lashing.

The best approach, almost always (the exceptions being where notice would lead to destruction of evidence or hiding of assets), is to proceed on notice, even very short notice.

The very recent Court of Appeal decision in Frenchmen's Creek Estates Inc. v. Tuckernuck Mortgage Administration Inc. Is a good example of the risks involved in an ex parte order.

Mortgagors were in default of obligations and even signed a consent to judgment (to be obtained without notice). The mortgagees obtained foreclosure judgments ex parte but failed to make sufficient disclosure.

The result was that the judgments were set aside with serious cost consequences. In hindsight the mortgagees would have been far better not to rely on their right to obtain judgment ex parte and to have proceeded on notice.

The decision, which is short, follows:

[1] The appellants' appeal is from an order of Justice Lofchik refusing to give relief from the foreclosure judgments obtained ex-parte by the respondents.

[2] On the appeal, it became clear that Justice Lofchik did not have before him the record that was placed before Justice Echlin to obtain the ex-parte orders. That record is before us on the appeal and discloses that on the first attempt to obtain the ex-parte orders from Justice Rouleau (as he then was), Justice Rouleau required disclosure of the calculation and justification of the amount of the consent judgments, the form of which was signed in blank by the appellants as part of the Minutes of Settlement.

[3] The respondents then re-filed the ex-parte foreclosure motions with affidavits from Mr. Bernholtz which included an accounting that showed no monies had been paid on the Yolles first mortgages. Those affidavits failed to properly account for monies paid by the appellants which under paragraph 2 and 3 of the Minutes of Settlement had to be credited to the Yolles first mortgages. Because the material before Justice Echlin did not constitute full, fair and frank disclosure as required on an ex-parte motion, those orders should have been set aside by Justice Lofchik and we are satisfied they would have been had he been aware of this problem.

[4] We therefore allow the appeal from Justice Lofchik, set aside his order and set aside the ex-parte foreclosure orders of Justice Echlin. The record before us does disclose an ongoing financial default by the appellants. The respondents are entitled to seek appropriate remedies, as advised, on proper notice to the appellants.

[5] In the result, the appeal is allowed and the portion of the judgment of Justice Lofchik that refused to set aside the foreclosures is set aside. The portion of the judgment of Justice Lofchik that dismissed the application in respect of Matthews and Bent is not set aside by this court.

Costs

[6] Costs of the appeal to the appellants paid by the Tuckernuck respondents are in the amount of $20,000 inclusive of disbursements and G.S.T. on the partial indemnity scale. The Matthews respondents are entitled to their costs of the appeal from the appellants on the partial indemnity scale fixed at $12,000 inclusive of disbursements and G.S.T. The costs order of Justice Lofchik as between the appellants and Tuckernuck respondents is set aside. If the parties cannot agree on the amount to be paid to the appellants for such costs, they shall be fixed by the application judge.

When men are pure, laws are useless; when men are corrupt, laws are broken.

 

Benjamin Disraeli (1804 - 1881)

 

Trial set to begin in Edmonton for man accused of killing prostitutes

February 18, 2008 - 18:28

Bob Weber, THE CANADIAN PRESS

EDMONTON - The trial of an Edmonton man accused of murdering two prostitutes begins Tuesday, but already advocates for women who work the Alberta capital's streets are calling the proceedings against Thomas Svekla a victory.

"We're really happy to see charges get laid," said JoAnn McCartney, a former Edmonton vice officer who now works with prostitutes.

"Not a lot of these kind of cases get solved. If he's not guilty then certainly we don't want a conviction, but if he is guilty we certainly want to see someone held accountable for that."

Svekla, 39, is facing murder charges in the deaths of Rachel Quinney, 19, and Theresa Innes, 36. It was Svekla himself who directed police to Quinney's body in 2004; Innes's plastic-wrapped body was found inside a hockey bag in the back of Svekla's truck two years later.

Police say he is a suspect in six other deaths and two other disappearances of women involved in the sex trade.

His trial will be a defining moment for Project Kare, a massive RCMP investigation that has been working since the fall of 2003 to close dozens of unsolved murder and missing persons cases, some dating back decades, involving people with high-risk lifestyles.

The investigation has about 35 Edmonton-area missing persons files and 18 unsolved killings of prostitutes. Since 1988, the bodies of eight women have been found east of Edmonton and police have said that they suspect a serial killer is responsible for at least some of the murders.

Just this past weekend, RCMP said two more women who were last seen three years ago have been added to the missing list.

Whatever the trial's outcome, McCartney said the publicity around the investigation and charges has gone a long way toward raising public awareness about the violence that accompanies life on the streets.

"Ever since Project Kare came into being, it put it more into the forefront that it's a legitimate issue, that these women are being hurt and going missing and being murdered," she said. "It made it a more acceptable topic of conversation.

"And you have to talk about it. You can't just say, 'It's those women' and kind of write things off."

Both of Svekla's alleged victims were aboriginal prostitutes, a group that Muriel Stanley Venne of the Institute for the Advancement of Aboriginal Women says is the most vulnerable of all.

"There is an underlying, insidious hatred toward aboriginal women," she said. "We have been - and are - extremely concerned about the deaths of the women. It is very hard to take. These are our sisters and cousins. These are people that we know or know of."

For a few years, it seemed that melting snow every spring revealed more bodies of murdered aboriginal women, Venne said.

"I hated the spring."

Venne said resources are still thin as people try to help women get off the streets, and the results are seen in the courts.

"Police have ended up with a serious, serious societal problem. They're now having to deal with the murders of the women.

"It's not the police that do it, but it's the whole attitude toward aboriginal women."

Meanwhile, life on Edmonton's streets continues. The women McCartney tries to help know the trial is going on, but most have more pressing issues in their lives than following the tangles of the justice system.

"They're aware that the trial is happening. But addictions is such big thing for those women, it's hard for them to know that it's Tuesday."

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Judges too Soft on Police?

Today's National Post has a lengthy article about whether Ontario courts are too lax in allowing police to give evidence obtained by a constitutional breach.



The basic question is what is to be done when there is a breach of a constitutional right? Do we, as is perceived as the American approach, give a "get out of jail" card or do we look to the details of the breach. The Canadian approach has been to try to figure out what is worse -- letting the unconstitutionally obtained evidence in or letting a crime go unpunished.



Hence is it better to overlook 70 pounds of cocaine or to overlook an unjustified roadside stop? This is not an easy approach and it is far simpler to have a blanket rule. But simplicity, while important, is not the only guide for a justice system and we have judges specifically to make the tough decisions as to where to draw the line in specific cases.



Judges can and do disagree (and politicians and media disagree with judges) but overall the balance between protecting the rights of the individual and the rights of society seems to have been well struck.

Licenses Held In Trust Proper and Binding

The recent Newfoundland Court of Appeal decision in Loder v. Citifinancial Canada Inc., 2007 NLCA 78 deals with trust agreements and fishing rights. This might seem like an area that is a local interest only but the reasoning is useful on a much broader basis.



In a nutshell, the case dealt with a trust agreement established to allow a license to fish to be beneficially held by a person who would not qualify to be the legal license holder. It was clear that the trustee was a mere place holder and the beneficial holder would exercise all rights.

The relevant legislation did not contain an express prohibition on licenses being held in trust for persons who did not qualify for them; however, the legislation did make certains conditions necessary for license holders and those conditions were not met by the beneficiary of the trust. One might assume the legislator did not want licenses functionally held by those who did not qualify to be legal holders.



Not surprisingly the trial judge held the trust agreement was merely an artifice to avoid the relevant legislation. The trial judge refused to give effect to trust.



The Court of Appeal took a different view. After an extensive case review the Court held that it was proper to hold a license in trust, largely because there was no express statutory bar against doing so.



While the decision deals with fishery license legislation the reasoning is much broader. One can imagine many places where the reasoning might apply -- taxi licenses, liquor licenses or adult entertainment licenses to name a few examples. Whether convincing legally the case may have quite a broad and useful application.

Former Ontario police officer challenging police to arrest him

February 17, 2008 - 17:42

THE CANADIAN PRESS

DUNCAN, B.C. - A former Ontario police officer who uncovered allegations of a pedophile ring in eastern Ontario is challenging the police to arrest him.

Perry Dunlop told supporters gathered outside his home in Duncan, B.C., that he was waiting to be arrested. The area around his Vancouver Island property was covered with mock arrest warrants, placed up by Dunlop's supporters.

Dunlop is scheduled to testify at a public inquiry Wednesday in Toronto examining allegations of a pedophile ring in the Cornwall area.

Up until now Dunlop has refused to testify saying he's lost faith in a justice system that may put him in jail.

If Dunlop is arrested, he will face charges of contempt of court.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Coats on Carts at Ikea

During the recent ice storm I was forced off the road at an Ikea.

I took shelter in the restaurant and waited for the roads to clear. As I sat and drank my coffee I realized shoppers has left their coats and parcels sitting on shopping carts just outside the restaurant.

A moment's reflection made me realize the shoppers were not concerned about theft -- and that's a hopeful sign.

Canada has a crime problem -- of course it does -- but ordinary Canadians know that crime has not changed the fundamentally decent character of the country.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Solicitor's Account and Special Circumstances

The average lawyer might be forgiven for thinking the Solicitors Act provides some protection against a client complaining about long paid accounts.

The Act provides that a client can assess the account of a solicitor on requisition within one month from the delivery of the account.  Alternatively, if a bill in dispute has been paid, section 11 of the Act provides that a court may order a bill be assessed if there are special circumstances which appear to require that the bill be assessed. 

One might think the phrase "special circumstances" means something out of the ordinary, unusual or special. In practice, however, orders for an assessment will be granted unless there is some good reason not to. Courts will strain to find "special circumstances" and where a Court looks hard for something that thing is usually found.

The recent decision in Roberts v. Mok, 2008 CanLII 4304 (ON S.C.) is a typical assessment case. The solicitor was retained by clients on behalf of their son with respect to criminal charges against him.

The clients paid several accounts but then replaced the solicitor saying he was too costly and had not done a good job. Sadly, one is hard pressed to suggest such a claim by a former client is a "special circumstance"; regardless, the clients, although having new counsel, did not trouble themselves to requisition an assessment within the statutory time and sought a late assessment.

The Court found special circumstances saying:

"The phrase "special circumstances" has been interpreted to include anything of an exceptional nature which the court may consider in exercising its discretion to order an assessment. In Shapiro, Cohen et al v. Enterprise Rent-a-Car Co., [1998] O.J. No. 727, Labrosse, J.A. noted that the court has an inherent jurisdiction and little is required for that jurisdiction to be exercised. ... In this case, in determining whether special circumstances exist, I note that after the delivery of the final account from Mr. Mok,  Mr. and Mrs Roberts were dealing with serious criminal charges concerning their son, including retaining another lawyer to deal with the bail revocation. It is unrealistic to expect that they would seek to have the bill assessed within the time limits set out under the Solicitors Act. Further, while the applicants had retained new counsel to deal with their son's case, there is no evidence that he was retained to deal with the account of Mr. Mok. The applicants were not aware of the requirement to obtain an order for assessment within one month after delivery of the bill of Mr. Mok. "

The Court's language is striking -- the failure to follow the time lines in the Act is justified because of ignorance of the law and an otherwise time consuming personal issue. It seems unlikely that, say, a missed appeal date from the criminal matter the clients were dealing with would be overlooked merely because "the appellants were not aware of the requirement to serve a notice of appeal within one month" of the decision.

Perhaps such a comment is overly harsh. The Court has a duty to supervise legal accounts. That said, it seems the legislation (which is not overly complex) is interpreted in a manner that seems counter to its plain sense and quite contrary to the way other time defining legislation is dealt with.

HAPPY FAMILY DAY

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4