Ontario Court of Appeal Finds Trial Judge Biased: Hazelton Lanes Inc v 1707590 Ontario Limited

The Ontario Court of Appeal ordered a new trial under a different trial judge after finding a reasonable apprehension of bias on the part of Ontario Superior Justice Ted Matlow in Hazelton Lanes Inc v 1707590 Ontario Limited2014 ONCA 793 [Hazelton Lanes]. Justice Matlow’s objectivity has been questioned by the Canadian Judicial Council in the past, when an inquiry panel made a finding against him before being overturned in the Council’s recommendations to the Federal Minister of Justice.

The matter at trial arose from a client bringing an action against his former solicitor when their relationship turned sour following an elaborate series of financial transactions. While ostensibly attempting to unpack the relationship between the parties and curb the Defendant solicitor’s evasive strategy during trial, Justice Matlow assumed an active role that escalated to the point of issuing 19 directions, numerous ex parte Mareva injunctions and a finding of contempt against the Defendant. The Court of Appeal found that the extent of this active involvement, coupled with a lack of detailed reasoning for the Trial Judge’s decisions, cumulatively amounted to a reasonable apprehension of bias.

The Court of Appeal implicitly affirmed that some cases may require trial judges to play a more active role in fact-finding with the proviso that detailed reasons must accompany decisions arising from such active involvement.

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[filed: Administrative Law Civil Procedure Real Estate]

Consent and Sexual Assault Causing Bodily Harm: R v Zhao  

Can a person legally consent to sexual assault causing bodily harm? In the wake of the Supreme Court of Canada’s landmark decision in R v Jobidon, [1991] 2 SCR 714, there remains some confusion regarding how far to extend the broad proposition outlined in that case – namely, that bodily harm cannot be consented to. In R v Zhao, 2013 ONCA 293, the Ontario Court of Appeal clarifies the extent to which the ruling in Jobidon might apply in the context of sexual assault.

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[filed: Criminal Law]

Barbieri v Mastronardi: Ontario Court of Appeal Says Judges Must Give Reasons for Legal Conclusions

The Ontario Court of Appeal (ONCA) set aside a lower court ruling earlier this year because the motion judge had failed to give adequate reasons for his decision. In Barbieri v Mastronardi, 2014 ONCA 416 [Barbieri], the Court of Appeal was reviewing a liability finding linked to the sale of residential property. While the court recognized the importance of giving deference to lower courts on their findings of fact, it set aside the motion judge’s finding because the judge’s written decision made it impossible to undertake judicial review of his judgment. In the words of Justices Weiler, Hourigan and Pardu,

[W]e would allow the appeal on the basis that the reasons of the motion judge fail to provide any insight into how his legal conclusion was reached and what facts were relied upon in reaching his conclusion. Accordingly, meaningful appellate review is impossible. (para 4)

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[filed: Administrative Law Civil Procedure]

Grassy Narrows v Ontario: A Legal Battle Against Logging Lost, The Political Fight Continues

In Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, the Supreme Court of Canada (“SCC”) unanimously determined that Ontario has the jurisdiction under the Crown to take up land covered by the Ontario Boundaries Extension Act, SC 1912, c 40, s 2, Treaty No. 3 (1873) (“Treaty 3”), thus limiting First Nation harvesting rights. In the 1873 signing of Treaty 3, the Ojibway yielded ownership of their territory to Canada and received the right to harvest the non-reserve lands that they had yielded in exchange until such lands were “taken up” for settlement, industry, or other government purposes. This land (the Keewatin area) was later annexed to Ontario in 1912.

Descendants of the Ojibway, the Grassy Narrows First Nation has been at the forefront of legal and political action to regain control of traditional lands in Northwestern Ontario and Manitoba and stop logging activities in the area. In 1997, a forestry licence was issued by Ontario to Abitibi-Consolidated Inc. (now Resolute FB Canada Inc.), a large pulp and paper company, to clear cut in the area. In 2005, the Grassy Narrows brought forward an action to challenge this forestry licence in an effort to stop the logging.

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[filed: Aboriginal Law Constitutional Law]

Forest Ethics Advocacy Assn v Canada: Three Administrative Decisions on the Line 9 Pipeline

On 31 October 2014, the Federal Court of Appeal (“FCA”) released Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. In the decision, Justice Stratas considered an “inseparable triumvirate” of interlocutory decisions by the National Energy Board (“NEB”) related to a proceeding on the approval of the Lin 9B Reversal and Line 9 Capacity Expansion Project (at para 61). First, whether the NEB should consider the climate change effects associated with the upstream development of Alberta’s oil sands and downstream use of oil transported by the pipeline. Second, whether the NEB facilitated meaningful participation during its decision-making process. Third, whether Ms. Sinclair, an individual who applied to participate in the NEB Line 9 proceeding, could participate.

Although the NEB’s Line 9 proceeding has been concluded (with a conditional approval for Enbridge), the FCA’s decision in Forest Ethics is noteworthy. In an analysis that is sure to be troubling for environmental advocates, Justice Stratas affirms all three NEB decisions and presents a very narrow view on public participation in environmental decisions.

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[filed: Administrative Law Environmental Law]

“Serious” Non-Political Crimes and Exclusion from Refugee Protection: Febles v Canada

In Febles v Canada (Citizenship and Immigration), 2014 SCC 68 (“Febles”) the Supreme Court of Canada (“SCC”) made an important ruling with respect to refugee claimants that possess criminal records.

Article 1F(b) of the United Nations Convention relating to the Status of Refugees (“the Convention”), July 28, 1951, [1969] Can. T.S. No 6 and section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 exclude those who have committed serious non-political crimes in another country from making a claim for refugee protection in Canada.

The decision in Febles clarifies how Article 1F(b) should be interpreted and applied in Canadian refugee law, and defines what exactly constitutes a “serious” crime for the purposes of the exclusionary provision.

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[filed: Citizenship and Immigration]

Stilwell v World Kitchen Inc: Ontario Court of Appeal Affirms Deference to Jury Awards

In Stilwell v World Kitchen Inc, 2014 ONCA 770, the appellants, World Kitchen Inc. (“World Kitchen”) and Corning Inc. (“Corning”) appealed a jury award of $1,157,850 for negligence relating to product liability. In the result, the Court of Appeal affirmed that a significant degree of deference is owed to civil jury awards.
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[filed: Civil Procedure Remedies Torts]

Wilson v R: Guarding Against Standard of Proof Errors in Judge-Alone Trials

In Wilson v R, 2013 NBCA 38 [Wilson], the New Brunswick Court of Appeal provides a thoughtful judgment that develops the law of evidence surrounding the criminal standard of proof in judge-alone cases. In a unanimous decision, Richard JA of the Court of Appeal examines the trial judge’s reasons, locates a reasoning error previously recognized in judge-and-jury contexts, and proposes a modernized formulation of an existing rule that guards against that same error in judge-alone decisions. That error, first recognized and guarded against in R v W(D), [1991] 1 SCR 742, is to fail to recognize that an accused testimony, even if not believed, can ground a reasonable doubt in the mind of the trier of fact.

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[filed: Criminal Law Evidence Law]

The Ghomeshi Scandal: Prompting an Important Discussion on Sexual Assault

Jian Ghomeshi was fired from CBC on October 26, 2014 after CBC received evidence that he had caused physical injury to a woman. In response, Ghomeshi filed a $55 million lawsuit alleging defamation and breach of confidence against his former employer. He also submitted a union grievance alleging wrongful dismissal and defamation. Many legal experts dismissed his suit as an impossible case to win, and instead attributed it to a PR maneuver. As a unionized bargaining unit employee, Ghomeshi cannot sue in court for wrongful dismissal.

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[filed: Criminal Code Criminal Law Defamation and Libel]

Indemnification and Real Estate Fraud: The Use of ex turpi causa non oritur actio in Tran v Kerr

In Tran v Kerr, 2014 ABCA 350, the Alberta Court of Appeal (“ABCA”) clarified the circumstances under which a lawyer, involved in a fraudulent real estate transaction, is liable for the losses of the ultimate purchaser, a straw buyer. In this case, Kerr was a lawyer who represented the straw buyer, Tran, in addition to other parties to the fraud.

While this case involved several issues, this post will focus on the ABCA’s application of the doctrine of ex turpi causa non oritur actio (“ex turpi causa”). Tran v Kerr provides an example of an unusual discussion of the doctrine.

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[filed: Contracts Restitution and Unjust Enrichment Torts]