THE LAWYERS WEEKLY
December 2, 2011 | 17
DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
ADMINISTRATIVE LAW
BIAS – Appellants unable to establish
bias on part of Ontario Securities Com-
mission in proceedings against appellants.
Appeal from two decisions of the
Ontario Securities Commission (OSC).
Appellants appealed the decision of the
OSC not to stay its proceeding on the
grounds of bias and the decision of the
OSC that appellants had violated the
Rules of the OSC. The OSC had under-taken proceedings against appellants as
the directing minds of the Norshield
Investment Structure. While the hearing
was underway, the chair of the OSC made
comments in a televised interview in
which he said that the people who ran
Norshield were not honest. On the merits
of the proceeding the OSC found that
appellants had failed to deal honestly
with investors, failed to keep proper records, misled OSC investigative staff and
acted contrary to the public interest.
HELD: Appeals dismissed. There was
no suggestion of bias in the actions or
statements of any of the three Commissioners who conducted the hearing. The
comments of the chair were of a general
nature and were not related to the specific
allegations at issue in the hearing. The
chair of the OSC was separate from its
adjudicative function. There was no reasonable apprehension of bias. The decision of the OSC was careful, comprehensive and complete. There was no breach
of procedural fairness in the breadth of
evidence heard by the OSC. Appellants
were not denied a fair hearing. The OSC’s
decision that appellants breached a rule
of the OSC was reasonable.
Xanthoudakis v. Ontario Securities
Commission, [2011] O.J. No. 4870,
Ont. Div. Ct. per Lederer J. (Jennings
and Aston JJ. concurring), Oct. 31/11.
Digest No. 3129-001 (Approx. 22 pp.)
BOARDS AND TRIBUNALS –
Ontario Human Rights Tribunal did
not have jurisdiction to hear respond-
ent’s complaint of discrimination
because it had already been dealt with
by another tribunal.
Application to quash an interim deci-
sion of the Human Rights Tribunal
rejecting applicant college’s request to
dismiss respondent’s application to the
Tribunal alleging discrimination on the
basis of disability contrary to s. 6 of the
Human Rights Code (Ont.). The college
contended that the Health Professions
Appeal and Review Board (HPARB), a
tribunal whose mandate and core
responsibilities were somewhat differ-
ent from those of the Tribunal, had
already addressed all of respondent’s
allegations in an appropriate and
adequate manner. The issue was to what
extent s. 45.1 of the Code gave the Tribu-
nal a supervisory or residual jurisdiction
over complaints made under the Code
when another tribunal had already dealt
with the substance of such claims.
Respondent had sought registration as a
Registered Nurse and Registered Prac-
tical Nurse. She had been diagnosed
with depression and fibromyalgia which
impacted her levels of concentration.
The Registration Committee of the col-
lege had attached conditions to her cer-
tificates, which respondent appealed to
the HPARB. While awaiting the decision
respondent filed a complaint with the
Tribunal alleging discrimination. The
Tribunal stated that the Registration
Committee’s proceedings could not be
considered to be impartial or independ-
ent and as such were not proceedings
within the meaning of s. 45.1.
BANKRUPTCY
& INSOLVENCY
PROPERTY OF BANKRUPT – Court
dismissed application by bankrupts for
order re-vesting their former matri-
monial home in their joint names.
Application for an order re-vesting
applicants’ former matrimonial home in
their joint names. The couple made separate assignments in April 2009. Both
listed significant assets, although they
were encumbered, and debts in excess of
$2 million for the husband and $1 million for the wife. They separated in 2004,
which also increased their respective
expenses. During the course of the bankruptcy the couple tried to purchase the
non-exempt portion of the home from
the trustee on several occasions. A
creditor in the bankruptcy also made
offers to purchase it. The property itself
was considered to have as much value as
the home on it, except to the wife, who
continued to reside there with the children. The trustee ultimately offered to
allow them to purchase it based on applicants’ valuation. At that point the wife
challenged the valuation and questioned
the trustee’s motives. When the trustee
then attempted to sell the property
through other means the wife obtained
an injunction restraining the sale of the
property until the hearing of the present
application. In the interim, foreclosure
proceedings had been commenced in
respect of the property.
HELD: Application dismissed. The
property could not be characterized as
unrealizable because it had not yet been
tendered on the open market. Given the
steps the couple had taken to prevent or
delay its sale by the trustee, the couple
could not, in fairness, argue that the
property was unrealizable. The couple
knew what they needed to pay to re-
purchase the property. There was no
reason for the court to provide them
with a buyout figure. The trustee had not
taken any misstep in either bankruptcy
warranting an order re-vesting property
in the couple.
BARRISTERS &
SOLICITORS
FEES – judgment by law firm for
fees owed by husband registered
against matrimonial home took prior-
ity over division of matrimonial assets.
Appeal by the husband from an order
for division of family property and allocation of support. Appeal by the husband’s
law firm from a decision postponing its
judgment to the matrimonial award in
favour of the wife. The parties met in
1989, married in 1995 and separated in
2008. The wife worked as a physiotherapist. The husband also had a varied work
history which included attempts to have
A successful music career. During the
early part of the divorce proceedings, the
law firm acted for the husband. After the
husband terminated his relationship with
the firm, it obtained a judgement for its
fees, which it registered against the matrimonial home. The home had since been
sold and the proceeds were held in trust
pending the determination of priority of
the sale proceeds. Following trial, the
trial judge dismissed the husband’s claim
to an interest in the physiotherapy clinic,
ordered that the wife receive half of the
proceeds from the sale of the matrimonial
home, together with an equalization payment of $46,328 in priority to the judgment of the firm. The wife was ordered to
pay spousal support of $2,200 per month
until May 2012. The husband was to pay
child support of $216 per month to be set
off against spousal support.
HELD: Appeal by husband dismissed.
Appeal by the law firm allowed. The trial
judge did not err in imputing income to
the wife or the husband. In awarding
spousal support, the trial judge properly
considered the husband’s capacity to
earn an income as well as his need to
become financially self-sufficient. The
judge properly applied s. 18 of the
Matrimonial Property Act (N.S.) in determining that the husband had no interest
in the wife’s physiotherapy clinic. In
subordinating the law firm’s judgment to
a division of matrimonial assets, the
judge erred in law as the home was
jointly owned by the parties, the firm’s
judgment became a mortgage when it
was registered against title and the firm
consented to the sale of the home on the
basis that its position would not be
prejudiced. There was no basis to set
aside the encumbrance.
Hurst v. Gill, [2011] N.S.J. No. 573,
N.S.C.A., per Bryson J.A. (Farrar J.A.
concurring), reasons dissenting on
Wickwire Holm appeal by Fichaud
J.A., Nov. 1/11. Digest No. 3129-004
(Approx. 34 pp.)
CHARTER OF RIGHTS
& FREEDOMS
EXCLUSION OF EVIDENCE –
While court redacted portions of
Information to Obtain, it was still suf-
ficient to support search of a property.
Application for an order pursuant to
subs. 24( 2) of the Charter to exclude all
evidence obtained by police during the
course of a search on the grounds that
the search warrant was improperly issued
and invalid. Applicant was charged with
possession of marijuana for the purpose
of trafficking and unlawful possession of
prohibited firearms together with readily
accessible ammunition without a license.
In 2007 police were involved in a large
scale investigation of a street gang whose
main criminal activities involved firearm
offences and drug trafficking. During the
investigation applicant became known to
the police. Police intercepted a number
of telephone calls between applicant and
known members of the gang and conducted surveillance. Based on the results,
the police applied for a warrant to search
applicant’s vehicle and alleged residence.
In support of the application they filed
an Information to Obtain (ITO). Applicant submitted that the ITO contained
misleading information and omitted
other information.
HELD: Application dismissed. It was
misleading for the police officer to say that
the surveillance established that applicant
currently resided at the property when, at
best, it established that he had a key to the
premises and kept at least a shirt there. It
was also misleading to say that applicant
changed his clothes when in fact he only
changed his shirt. Certain portions of the
ITO, including those referring to the property, were to be redacted. When the ITO,
as amended, was considered as a whole, it
still established a factual nexus between
the items to be searched for and the
address of the property.
R. v. Smith, [2011] O.J. No. 4757,
Ont. S.C.J., Pattillo J., Oct. 26/11.
Digest No. 3129-005 (Approx. 8 pp.)
SEARCH AND SEIZURE – Court
upheld production order used to obtain
Facebook logs related to applicant.
Application to exclude Facebook logs
obtained by police pursuant to a production order which applicant claimed was
deficient. Applicant was charged with
various offences related to child pornography. In 2009 a police detective, K,
examined a computer seized from a young
person. That led him to investigate emails
involving someone named W, who had
engaged in illegal chats with the young
person. K obtained the name, address
and model number of the account holder
from his internet service provider, which
