DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ADMINISTRATIVE LAW
JUDICIAL REVIEW – The summary
dismissal of appellant’s human rights
complaint was reasonable but a finding
of improper conduct by appellant should
not have been made.
Appeal from the dismissal of appellant’s
application for judicial review of the summary dismissal of his human rights complaint. Appellant was employed by the
Workers Compensation Appeal Tribunal on
an auxiliary basis as a legal researcher. The
term of his appointment was dependent on
work requirements and the availability of
funds for the position. Appellant was dismissed in October 2006 due to concerns
regarding his performance, and the belief
that he responded to those concerns in a
disrespectful and hostile manner. Appellant
contended that the dismissal was racially
motivated. He filed a complaint under the
Human Rights Code (B.C.) alleging discrimination on the basis of his mixed African and Canadian race. The complaint was
summarily dismissed on the basis that it
had no reasonable prospect of success.
Appellant sought judicial review. The chambers judge found that the decision was reasonable and supported by the evidence. The
judge rejected the contention that there was
a breach of natural justice regarding a finding of improper conduct by appellant.
HELD: Appeal allowed in part. The
standard of review to dismiss a human
rights complaint as having no reasonable
prospect of success was patent unreasonableness. The exercise of determining the
prospect of success did not involve weighing
evidence and making findings of fact. The
inquiry was discretionary in all respects.
The chambers judge found no reviewable
error in the member’s exercise of discretion
on the less deferential standards of correctness and reasonableness. That conclusion
was correct. The judge did not err by considering lack of evidence of intent as a relevant
factor. The judge’s finding of improper conduct was not based on a determination of
credibility. However, the member’s finding
of improper conduct was not necessary for
determination of the matter. That finding
was patently unreasonable, as there was no
apparent evidentiary foundation for the
admission of the Tribunal’s character evidence against appellant.
Gichuru v. The Workers Compensation Appeals Tribunal, [2010] B.C.J. No.
676, B.C.C.A., per Chiasson J.A. (
Mackenzie and Bennett JJ.A. concurring),
Apr. 20/10. Digest No. 3003-001
(Approx. 17 pp.)
BANKRUPTCY
& INSOLVENCY
STAY OF PROCEEDINGS – The court
refused to lift a stay of proceedings under
the Bankruptcy and Insolvency Act
because the debt owed to appellants
would survive the bankrupt’s discharge
from bankruptcy.
Appeal by the affected creditors of the
Registrar’s order dismissing their motion
to lift the stay of proceedings under the
Bankruptcy and Insolvency Act. The
bankrupt was the bookkeeper and controller of appellants. Appellants discovered
that he had defrauded them and commenced an action against him, leading to a
summary judgment in the amount of
$715,095 plus punitive damages. The
bankrupt also faced criminal charges.
Appellants issued a garnishment against
the bankrupt’s current employer. He then
filed an assignment in bankruptcy. The
trustee in bankruptcy served the garnishee
with a notice of the stay of proceedings.
Appellants represented over 85 percent of
the bankrupt’s unsecured debts.
HELD: Appeal dismissed. The Registrar
took the proper factors into consideration in
exercising his discretion under s. 69.4 of the
Act not to lift the stay of proceedings. He
did not err in principle or in law. The debt
owed by the bankrupt to appellants would
survive his discharge from bankruptcy.
Pending the trustee’s discharge, all the
creditors were entitled to share proportionately in any distribution. Following the discharge, only appellants would be able to
recover the debt owed to them.
Jefflin Investments Ltd. v. Charendoff,
[2010] O.J. No. 1556, Ont. S.C.J., Cam-
eron J., Apr. 16/10. Digest No. 3003-002
(Approx. 7 pp.)
CHARTER OF RIGHTS
& FREEDOMS
EXCLUSION OF EVIDENCE – There
was evidence on the record to support the
trial judge’s rejection of the evidence of a
police officer.
Appeal by the Crown from the acquittal
of accused of possession of marijuana for
the purpose of trafficking. Police stopped
accused for speeding and sought to verify
his registration. The officer testified that
upon his return to the vehicle, he detected
an odour of raw marijuana. Accused was
arrested for possession of marijuana. Police
conducted a warrantless search incidental
to the arrest. A large quantity of marijuana
was seized from vacuum-sealed bags from a
duffel bag in the trunk of the vehicle.
Accused was charged with possession for
the purpose of trafficking. At trial, accused
sought exclusion of the marijuana on the
basis that the officer lacked reasonable
grounds to believe that the accused was in
possession of marijuana. The Crown submitted that the odour of marijuana provided grounds for the lawful arrest of
accused and justified the search of the
vehicle incidental to the arrest. The trial
judge found that the arrest of accused and
the follow-up search was conducted on
nothing more than a hunch. The search
breached accused’s rights. The judge
excluded the evidence on the basis that its
admission would bring the administration
of justice into disrepute.
HELD: Appeal dismissed. The trial
judge’s reasons for decision regarding the
lawfulness of the arrest featured forays
beyond the evidentiary record contrary to
the rule against use of extraneous informa-
tion. Only the factual underpinnings estab-
lished by admissible evidence could be con-
sidered in determining whether the officer
had detected an odour of raw marijuana.
However, the error of law attributed to the
judge did not constitute a reversible error, as
the extraneous information was not opera-
tive in the reasoning that led the judge to
reject the officer’s key testimony regarding
the odour of raw marijuana. The founda-
tional circumstances for the rejection were
rooted in the evidential record.
TRIAL WITHIN A REASONABLE
TIME – An unexplained delay by the
Crown of more than 30 months
resulted in an infringement of subs.
11(b) of the Charter, warranting a stay
of proceedings.
Appeal by the Crown from a stay of proceedings due to unreasonable delay.
Respondents were charged with trafficking
and conspiracy to traffic in cannabis marijuana as a result of an extensive police investigation. Delays of over 30 months arose
principally from problems with disclosure,
tardy preparation of the preliminary inquiry
transcript and availability of court time. A
significant portion of the delay was attributable to the decision to go with electronic
disclosure. From the summer of 2004 to
April 2006, disclosure by the Crown was
sporadic and often occurred shortly before
or on hearing dates, thus requiring adjournments for defence counsel to review the
additional materials.
HELD: Appeal dismissed. An
unexplained delay of more than 30 months
resulted in an infringement of the right to
be tried within a reasonable time, and a stay
was warranted. There was no evidence to
support the Crown’s assertion that the complexity of disclosure in this case warranted
more time to make disclosure. It was necessary to demonstrate and not merely assert
that the police and Crown worked diligently
to provide disclosure in a timely way, given
the circumstances of the case. The delay
gave rise to inferred prejudice.
R. v. Taylor, [2010] N.J. No. 147,
Nfld. & Lab. C.A., per Rowe J.A.
(Welsh and Harrington JJ.A. concurring), Apr. 22/10. Digest No. 3003-
004 (Approx. 7 pp.)
CIVIL PROCEDURE
MEDICAL EXAMINATION –
Respondent failed to prove specific
facts that justified audio recording of
the defence medical.
Appeal from a decision dismissing an
appeal from an order refusing to authorize
a defence medical examination without it
being orally recorded. Respondent was
injured in a motor vehicle accident. Appel-
lant sought an order to have respondent
examined by a specialist in physical medi-
cine and rehabilitation. Respondent was
agreeable but only on condition that the
medical examination would be audio
recorded. Respondent’s counsel was of the
opinion that there was a systemic bias
among health practitioners who undertook
medical examinations for the defence and
that defence medicals were used to gather
admissions against interest from respond-
ents by a defence expert in the guise of a
defence health practitioner. Counsel for
appellant did not accept the proposed con-
dition and moved to have the medical
examination conducted without any condi-
tions. The motion was dismissed on the
ground that respondent’s counsel had a
bona fide concern. The Divisional Court
upheld the decision on the basis of the evi-
dence of general bias in the conduct of
defence medicals as attested to in the affi-
davit of counsel for respondent.
MISTRIAL – The court rejected
defendant’s motion for a mistrial,
finding that a correcting instruction
given by the trial judge to the jury was
sufficient.
Motion for a mistrial. Plaintiff brought
a claim against defendant insurer arising
from its refusal to pay a claim for theft of
and damage to her car. Plaintiff claimed
compensatory damages of $22,000 and
punitive damages. Defendant alleged that
plaintiff had asserted the claim in bad
faith, that it was exaggerated and invoices
for lost electronic equipment had been
fabricated after the accident. The jury
found that defendant had not made out
bad faith on the part of plaintiff. It awarded
compensatory damages of $5,000 and
declined to award any amount for punitive
damages. In the course of his closing
remarks, plaintiff’s counsel referred to a
substantial punitive damage award against
the defendant in the past. Counsel for
defendant objected and moved for a mistrial. The trial judge delivered a prompt
correcting instruction to the jury.
HELD: Motion dismissed. A court faced
with a mistrial application must address
three questions: whether the challenged
remarks were inappropriate and/or inflammatory; how serious the likely prejudice is
to the other party; and the appropriate remedy. The remarks were inappropriate and
potentially inflammatory. The impugned
comments invited the jury to base its decision, at least in part, on entirely irrelevant
considerations, extraneous to the issues of
law at play. Plaintiff’s counsel invited the
jury to engage in prohibited reasoning and
in so doing could have prevented them from
