May 2013
13 posts
R. v. Buzizi (D.) 2013 SCC 27
Criminal Law - Murder - Provocation - Evidence and proof
The accused was convicted of second degree murder. He appealed.
The Quebec Court of Appeal, Bich, J.A., dissenting, dismissed his appeal. The accused appealed as of right.
The Supreme Court of Canada, LeBel and Wagner, JJ., dissenting, allowed the appeal and ordered a new trial.
Link to PDF of complete summary
Link to full judgment
Kikino Métis Settlement v. Métis Settlements...
Indians, Inuit and Metis - Personal or legal rights - General - Wills and estates
Pruden owned two quarter sections of land (farm quarter and home quarter) on the Kikino Métis Settlement. He died without leaving estate instructions under s. 7.6 of the Métis Settlements General Council Land Policy. Since Pruden’s wishes were not known, and he did not have a spouse, his estate stood to be...
Lantheus Medical Imaging Inc. v. Atomic Energy of...
Crown - Crown immunity - Exceptions - Benefit/burden or waiver exception
Lantheus Medical Imaging Inc., an American pharmaceutical company, used medical isotopes produced by Atomic Energy of Canada Ltd.’s (AECL) nuclear reactor at Chalk River in the manufacture of its products. Lantheus suffered losses estimated at more than $70 million as a result of the extended closure of AECL’s...
Moulton Contracting Ltd. v. British Columbia et...
Courts - Criminal Law - Indians, Inuit and Metis - Practice
The plaintiff held a provincial permit to conduct logging operations on Aboriginal (Fort Nelson First Nation) land. That land included Behn family territory. The plaintiff sued the Behns and other members of the Fort Nelson First Nation for damages for allegedly blockading access to the logging lands. The Behns filed a statement of...
R. v. Huang (Y.) 2013 ONCA 240
Courts - Criminal Law - Judges - Disqualification
Ying Huang was tried as a co-conspirator, together with John Huang. The charges against John arose in connection with his role as a real estate agent for the purchasers of properties that were used for marijuana grow operations. The Crown maintained that John had represented Ying on the purchase of one of the properties. Like John, Ying was...
Docherty v. Canada (Minister of Public Safety and...
Courts - Criminal Law - Customs - Offences and penalties
Docherty failed to report CDN $335 and US $9,880 to an agent of the Canada Border Services Agency (CBSA). When CBSA applied what it considered to be the appropriate exchange rate, the US funds were worth $9,901.74 CDN, putting Docherty over the $10,000 threshold. The funds were ultimately seized as suspected proceeds of crime. Docherty...
R. v. A.A.Z. 2013 MBCA 33
Criminal Law - Young offenders - Decisions - Murder
The accused, a young person, pled guilty to first degree murder for killing his abusive father following an argument. He received the maximum sentence of 10 years (less some of the time that he spent in pre-sentence custody) and was subject to an intensive rehabilitative custody and supervision order under the Youth Criminal Justice Act. The...
R. v. Welsh (J.) 2013 ONCA 190
Civil Rights - Courts - Criminal Law - Evidence - Police
Oraha was shot multiple times and killed in a parking lot near his car. Forensic evidence indicated that four different firearms were used. No murder weapons were found. It was agreed at trial that the circumstances of Oraha’s death were planned and deliberate. The Crown’s theory was that eight individuals, four of whom were...
R. v. Levkovic (I.) 2013 SCC 25
Civil Rights - Criminal Law - Statutes
The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child. Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth.
The Ontario Superior Court held that the words “died before … birth” in s. 243 of the Code were unconstitutionally...
Council of Natural Medicine College of Canada v....
Civil Rights - Constitutional Law - Trademarks, Names and Designs
The Registrar of Trademarks gave public notice that the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (College) had adopted and used 16 official marks (Trade-marks Act, s. 9(1)(n)(iii)). The Council of Natural Medicine College of Canada (Council), applied for judicial review, seeking...
Cavanagh v. Minister of National Revenue 2013 FCA...
Income Tax - Deductions in computing income - Alimony
Cavanagh was ordered to pay support in a specified amount per week as well as interest on any payments in default, from the date of default. He defaulted on his support payments. In 2006, he made a payment that discharged his entire obligation to that point, including accrued interest of $10,187.77. In computing his income for purposes of the...
Cameco Corp. et al. v. Ship MCP Altona et al. 2013...
Admiralty - Actions in rem - Sale - Sale proceeds - Entitlement to
Cameco’s uranium cargo spilled while being shipped on board a foreign vessel bound for China. Authorities ordered the ship back to Vancouver. Cameco discharged the cargo and remediated the ship. Cameco, as ordinary creditor, and the ship’s mortgagee (bank) each sought priority to the proceeds of a judicial sale of the...
Calgary (City) v. Hughes 2012 ABPC 250
Civil Rights - Constitutional Law - Land Regulation - Municipal Law
Hughes kept six chickens in the backyard of his residential property in the City of Calgary, in breach of s. 27 of the Responsible Pet Ownership Bylaw: “No person shall keep Livestock in any area of the City except where the keeping of Livestock is allowed under The City of Calgary Land Use Bylaw”....
April 2013
14 posts
Murphy v. Amway Canada et al. 2013 FCA 38
Arbitration - Courts - Practice - Trade Regulation
The plaintiff was registered as an independent business owner under the umbrella of the defendant wholesaler. The registration agreement included an arbitration agreement and incorporated the defendant’s Rules of Conduct. The arbitration agreement was governed by the Ontario Arbitration Act (the OAA). The plaintiff began a proposed class...
Bhasin v. Hrynew et al. 2013 ABCA 98
Contracts - Implied terms - Exceptions - Conflict with express terms
The defendant “Canadian American” was in the business of selling education savings plans. To do so, it contracted with “Enrollment Directors” across the country, two of whom were the plaintiff Bhasin and the defendant Hrynew. Clause 3.3 of the contract stated that it would expire at the end of three...
R. v. Titchener (R.G.) 2013 BCCA 64
Criminal Law - Procedure - Jury - General - Discharge of juror
The accused was charged that on March 22, 2009, he uttered a threat to cause death or bodily harm to Ms. L. and he sexually assaulted Ms. L. He was tried by a judge and jury. The jury acquitted the accused of uttering a threat, but convicted him of sexual assault. The accused appealed his conviction. Ms. L., and another Crown witness...
R. v. Summers (S.) 2013 ONCA 147
Criminal Law - Sentencing - Considerations on imposing sentence - Time already served
The accused was convicted of manslaughter for his infant daughter’s death (shaken baby syndrome). At trial, the accused pleaded guilty. He was sentenced to eight years’ imprisonment. The judge concluded that the lack of parole eligibility during remand detention warranted enhanced credit (Criminal...
Ediger v. Johnston et al. 2013 SCC 18
Medicine - Liability of practitioners - Negligence or fault - Causation
Cassidy Ediger, now 15 years old, suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy. Cassidy, by her guardian ad litem, sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from...
R. v. TELUS Communications Co. 2013 SCC 16
Criminal Law - Special powers - Search warrants - Validity of - General
TELUS Communications, a wireless telephone service provider, sought to quash a general warrant obliging it to produce, on a prospective daily basis, all future text messages sent and received by two TELUS subscribers that were stored in the TELUS computer database. TELUS applied to quash the warrant, arguing that the general...
Keewatin et al. v. Ontario (Minister of Natural...
Indians, Inuit and Métis - Treaties and proclamations - General - Limitations on
In 1873 Canada and the Sauleau Tribe of the Ojibway Indians entered into Treaty 3 whereby the Ojibway surrendered to Canada a large tract of land, including the Keewatin Lands, situated in what became northwestern Ontario and eastern Manitoba. The Treaty contained a harvesting clause which preserved the right of the...
Brown v. Belleville (City) 2013 ONCA 148
Contracts - Performance or breach - Repudiation - What constitutes acceptance of repudiation
Under an agreement entered into in 1953 between a municipality and Sills, the municipality agreed to perpetually maintain and repair part of a storm sewer drainage system on and near Sills’ lands. Sills died in 1966. The affected lands were sold to the Pleiziers. When the Pleiziers sought in 1980 to...
Tang et al. v. Zhang et al. 2013 BCCA 52
Sale of Land - Remedies of vendor - Forfeiture of deposit - General
The plaintiffs/sellers entered into a standard form contract to sell a residential property for $2,030,000, to the defendant/buyer. The buyer paid a deposit of $100,000 to the defendant real estate agency. The buyer failed to complete the purchase on the completion date. The sellers terminated the contract. They took the position...
Ouellette v. Saint-André (Rural Community) 2013...
Municipal Law - Councils - Decisions of - Duty of fairness
The applicant was employed as chief administrative officer/clerk/secretary-treasurer by the respondent rural community from June 3, 1994, to December 15, 2010, when her employment was terminated for cause. The applicant applied for judicial review, seeking to set aside the termination, asserting that she was denied procedural fairness.
...
Jackson v. Standard Life Assurance Co. 2012 BCCA...
Insurance - Accident and sickness insurance - The contract - General - Qualifying period for coverage
Jackson sued Standard Life for failure to compensate her for approximately one year of disability. At issue was whether Jackson was covered by the plan on the date of her disability.
The British Columbia Supreme Court, in a decision reported [2011] B.C.T.C. Uned. 1487, found that Jackson was...
Canada (Attorney General) v. Collins 2013 NLCA 17
Bankruptcy - Discharge of debtor - Liabilities not released by discharge - Student loans
From September 1998 to December 2001, Collins attended Memorial University of Newfoundland full-time. She received a student loan under the Canada Student Financial Assistance Act. From September 2003 to August 2006, Collins attended the College of the North Atlantic completing a diploma in Geomatics...
R. v. Boyd (C.T.) 2013 BCCA 19
Police - Powers - Arrest and detention - Arrest without warrant - Of person committing a criminal offence
When a police officer approached the accused’s vehicle at a road block for screening for impaired drivers, the officer smelled freshly burnt marijuana. The officer arrested the accused without warrant for possession of marihuana (Criminal Code, s. 495(1)(b)). During the search...
Aucoin v. Shepherd et al. 2013 YKCA 1
Motor Vehicles - General and definitions - Definitions - Owner - Defined
On April 26, 2008, Mendelsohn purchased a motor vehicle from Shepherd, who was the registered owner of the vehicle. Shepherd signed and gave to Mendelsohn the required transfer papers and the only set of keys. Mendelsohn paid for and took possession of the vehicle. Shepherd understood that the vehicle would not be driven and...
March 2013
21 posts
Jackson v. Standard Life Assurance Co. 2012 BCCA...
Insurance - Accident and sickness insurance - The contract - General - Qualifying period for coverage
Jackson sued Standard Life for failure to compensate her for approximately one year of disability. At issue was whether Jackson was covered by the plan on the date of her disability.
The British Columbia Supreme Court, in a decision reported [2011] B.C.T.C. Uned. 1487, found that Jackson was...
Homeaway.com Inc. v. Hrdlicka 2012 FC 1467
Trademarks, Names and Designs - Trademarks - Registration - Expungement of mark - Grounds - Prior use
HomeAway.com Inc., an American company, applied to expunge the registered trademark at issue (VRBO) on several grounds, including prior use. It owned all trademark rights of VRBO.com Inc. The respondent resided in Canada and was the person registered as owner of the trademark. The use of VRBO was...
Burchill v. Roberts 2013 BCCA 39
Family Law - Maintenance of wives and children - General principles - Retrospective or retroactive orders
The parties lived together in a common law relationship until 1995. In 1997, the mother sought child support for their son, then 5 years old, pursuant to the Family Relations Act. The parties’ consent order provided that the father pay interim child support of $1,250 per month. Shortly...
Black v. Norris et al. 2012 NBQB 346
Real Property - Title - Boundaries - Determination of boundaries
This litigation arose out of a property dispute between the owners (Black and Norris) of two valuable waterfront properties. In addition to a number of legal issues, at issue was a subdivision plan which was prepared by Welch and who was the fee simple owner of the “disputed area”.
The New Brunswick Court of...
Bentley et al. v. Police Complaint Commissioner...
Practice - Appeals - Leave to appeal - Whether required
The Police Complaint Commissioner, acting on a recommendation of a staff member (Steenvoorden), ordered that the dismissal of a complaint against two Vancouver Police Department officers be reinvestigated by the department. Some time later, Steenvoorden, recommended the reassignment of the investigation to a different police service. The...
R. v. Wen (H.W.) 2012 BCCA 515
Criminal Law - Attempts, conspiracies, accessories and parties - Parties - Necessary intention or knowledge
he accused was convicted of kidnapping, unlawful confinement, and extortion. He was found to be a party to the offences committed by three co-accused who pled guilty. The accused appealed the convictions.
The British Columbia Court of Appeal dismissed the appeal.
Link to PDF of complete...
Manitoba Métis Federation Inc. v. Canada (Attorney...
Indians, Inuit and Métis - General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown)
Manitoba entered Confederation on July 15, 1870, following the passage of the Manitoba Act, 1870. Section 31 of the Act provided for grants of land in Manitoba to Métis children. Section 32 of the Act contained quieting of title provisions to assure recognition of existing property...
Leroy (Ted) Trucking Ltd. (Bankrupt), Re 2012 BCCA...
Bankruptcy - Creditors - General - Claims - General - Expungement or reduction of proof of claim
Ted LeRoy Trucking Ltd. made an assignment into bankruptcy. Under s. 81.3 of the Bankruptcy and Insolvency Act (BIA), employees of a bankrupt employer had security for wage claims up to $2,000 that ranked in priority against current assets above every other claim. Certain companies that provided...
Bruinsma v. Cresswell et al. 2013 ONCA 111
Insurance - Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - Exceptions and exclusions
A disqualified driver (plaintiff) was in an accident while driving his girlfriend’s vehicle (insured by CAA). The defendant’s vehicle, owned by his brother, was uninsured. The plaintiff sued the defendant driver, his brother and CAA (uninsured...
Antrim Truck Centre Ltd. v. Ontario (Minister of...
Expropriation - Right to compensation - Injurious affection - Where none of claimant’s land taken
A truck stop owner sued the Minister of Transportation for damages for injurious affection under the Expropriations Act as a result of the construction of Highway 417 which rerouted the Trans-Canada Highway and allegedly put the truck stop out of business. The Ontario Municipal Board (OMB)...
Manager of Child, Youth and Family Services v....
Civil Rights - Security of the person - General - Custody and access (incl. child protection)
Child, Youth and Family Services applied for a continuous custody order respecting three children. The children’s parents applied to have a condition respecting access imposed on the continuous custody order. The parents claimed that s. 32(6)(a) of the Children and Youth Care Protection Act, which...
Whatcott v. Human Rights Tribunal (Sask.) et al....
Civil Rights - Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech)
Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers that were published and distributed by Whatcott on behalf of the Christian Truth Activists. The flyers targeted homosexuals and were challenged by the complainants on the basis that they...
Swenson Estate, Re 2012 SKQB 540
Wills - Construction - Quantity of interest taken - Life interest - Remainder - Entitlement
Clause 3(c)(1) in the Last Will and Testament of the deceased, Orville Swenson, stated “to transfer a life estate to my farm … to my nephew, Randall Swenson. Upon his death, I direct that the said land be transferred to one of his descendants, Or a descendant of my parents, Charles Selmer, and...
Moreira et al. v. Ontario Lottery and Gaming Corp....
Gaming and Betting - Casinos - Regulation - Rules of the games (incl. approval of)
The plaintiffs were four high stakes gamblers who lost approximately $2.1 million while playing roulette at the Niagara Fallsview Casino Resort over a three and a half year period. The plaintiffs claimed that a “floating ball rule” used by the casino operators, which had not been approved by the Alcohol...
R. v. MacMillan (T.) 2013 ONCA 109
Civil Rights - Detention and imprisonment - Detention - What constitutes detention
The accused was acquitted on charges of operating a vessel while “over 80” causing death contrary to s. 255(3.1) of the Criminal Code and impaired operation causing death contrary to s. 255(3). The acquittals were entered after the trial judge excluded the results of analysis of breath tests because of...
Export (S.K.) Inc. et al. v. Federation of Quebec...
Practice - Evidence - Subpoena - Issued for service in another province - General
A New Brunswick company and its director (interested parties) purchased maple syrup from New Brunswick, Quebec and Ontario producers, which it transformed into maple products to export on the provincial, interprovincial and international markets. The Federation of Quebec Maple Syrup Producers discovered that the...
Runchey v. Canada (Attorney General) et al. 2013...
Administrative Law - Judicial review - General - Scope or standard of review
A Review Tribunal upheld a decision by the Minister of Human Resources and Skills Development to allow the application of Runchey’s ex-spouse for a division of pension credits under the Canada Pension Plan (the Plan). The Pension Appeals Board dismissed Runchey’s appeal. Runchey applied for judicial review of...
R. v. Named Person B 2013 SCC 9
Evidence - Witnesses - Privilege - Privileged topics - Identity or location of police informants
B was promised informer confidentiality by a police force. The police force released B to a second police force, the Sûreté du Québec (SQ), for jurisdictional reasons. Several years later, the Crown sought clarification of B’s status.
The Quebec Superior Court, per Gagnon, J. (application...
R. v. J.F. 2013 SCC 12
Criminal Law - Attempts, conspiracies, accessories and parties - Parties to offences - Party to conspiracy
The accused youth was convicted by a judge and jury of conspiracy to commit murder and was sentenced to an 18 month custody and supervision order. The youth appealed both conviction and sentence. The youth submitted that the trial judge erred (1) in leaving liability as a party (Criminal...
Canadian Security Intelligence Service Act, Re...
National Security - Investigation of security threats - Judicial control - Warrants - General
The Canadian Security Intelligence Service (CSIS) applied for warrants pursuant to s. 16 of the Canadian Security Intelligence Services Act. CSIS’s argument was that s. 16(2) only prohibited it from directing foreign intelligence assistance at [a Canadian citizen, permanent resident or...
Blue Mountain Resorts Ltd. v. Ontario (Minister of...
Trade Regulation - Industrial safety - General - Work area or workplace defined
A guest drowned in an unsupervised swimming pool at a large recreational resort. Section 51(1) of the Occupational Health and Safety Act required employers to notify an inspector of the occurrence where a “person” died or was critically injured from any cause at a “workplace”. The resort did...
February 2013
21 posts
R. v. O'Brien (K.J.) 2013 SCC 2
Criminal Law - Threats - Intention or mens rea
The accused, while incarcerated, placed two calls to his ex-girlfriend, who advised that she was pregnant with his child and was going to have an abortion. The ex-girlfriend taunted the accused. The accused responded by telling the ex-girlfriend that he was going to kill her by shooting her in the head when he got out in a couple of months....
R. v. Manning (A.) 2013 SCC 1
Criminal Law - Punishments (sentence) - Forfeiture orders - Offence-related property
An accused pleaded guilty to impaired driving. The Crown sought forfeiture of the accused’s motor vehicle. Section 490.41 of the Criminal Code permitted a trial judge to not order forfeiture where forfeiture would be disproportionate to the nature and gravity of the offence, the circumstances of the offence...
