R v Grant: The Tale of Two Tests

On March 5, 2015, the Supreme Court of Canada (“SCC”), in R v Grant, 2015 SCC 9 [Grant], unanimously dismissed the Crown’s appeal, concluding that the trial judge had erred in law in treating the evidence relating to the alleged abduction of P.W. as known third party suspect evidence and in requiring Mark Edward Grant to establish on a balance of probabilities that the alleged abduction of P.W. took place. On these grounds, Karakatsanis J. upheld the order from the Manitoba Court of Appeal (“MBCA”) for a new trial (see 2013 MBCA 95).

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[filed: Criminal Law Evidence Law]

Bentley v Maplewood: Consenting to Live

The common law tort of battery is defined as any “non-trivial contact.” In medical malpractice, an action for battery may be brought where medical treatment is given without the consent of the patient. In Bentley v Maplewood, 2015 BCCA 91 [Bentley], the British Columbia Court of Appeal (“BCCA”) had to decide whether attendants in a nursing home “prodding” a patient with Alzheimer’s to eat and drink constituted “battery” (Bentley, para 10). The BCCA concluded that the patient was capable of, and indeed had provided, consent, giving the nursing home a full defence for battery.

While the case briskly dealt with the main issue at hand, it also raised questions on end-of-life care and advance directives when dealing with Alzheimer’s disease and dementia. These implications are particularly significant in light of the recent Supreme Court of Canada (“SCC”) decision in Carter v Canada (Attorney General), 2015 SCC 5 [Carter], which struck down the prohibition on physician-assisted suicide earlier this year.

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[filed: Health and Welfare Torts]

Liability and Franchise Agreements: The Court of Appeal Protects Franchisee Rights in 2176693 Ontario Ltd v Cora Franchise Group Inc

In 2176693 Ontario Ltd v Cora Franchise Group Inc, 2015 ONCA 152, the Ontario Court of Appeal (“ONCA”) decided whether a clause of a franchise agreement, that required a franchisee to release the franchisor from all liability upon assignment of the agreement, was void and unenforceable. The ONCA decided that the clause in question was unenforceable.

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[filed: Contracts]

R v Araya: Court Clarifies Appellate Review of Jury Instructions

Before juries begin deliberations, the presiding trial judge imparts careful instruction on the relevant points of law. The accuracy and sufficiency of these instructions, which are, of necessity, often long and complex, are frequent grounds of appeal. In R v Araya, 2015 SCC 11 [Araya, SCC], the Supreme Court of Canada (“SCC”) ruled on the proper approach that appellate courts are to take when considering such appeals. In Araya, the Court was faced with two competing models of analysis – one focused, one holistic – and was made to choose between them. Ultimately, the court opted for the latter approach.

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[filed: Criminal Law Evidence Law]

Employer Wrongfully Operated in Secret: Potter v New Brunswick Legal Aid Services

The Supreme Court of Canada’s (“SCC”) decision in Potter v New Brunswick Legal Aid Services, 2015 SCC 10 [Potter], calls on employers to communicate transparently with employees, unless legitimate business reasons require otherwise. The decision arose from a claim of constructive dismissal that had been denied by both the trial and appellate courts of New Brunswick.

Unlike those courts, the Supreme Court determined that a claim of constructive dismissal could be made even when it relied on employer actions that were unknown to the employee when the claim was made. The SCC’s decision reinforces a protective stance towards employees as vulnerable persons in the employment relationship, while clarifying employers’ responsibility to maintain accountability in decision-making and transparency in communications as far as possible.

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[filed: Contracts Evidence Law Labour and Employment]

Prosecution Found To Be “Making Things Up As It Went Along”: R v Auclair

In R v Auclair, 2014 SCC 6, the Supreme Court of Canada (“SCC”) denied leave to appeal from the Quebec Court of Appeal decision. In denying the appeal from R v Auclair, 2013 QCCA 671, the SCC also took the opportunity to highlight the “extraordinary and unique nature” of the situation that Superior Court Justice Brunton was presented with as a result of the case brought by the Crown. The SCC made note of the problems with the Crown’s election to proceed by direct indictment with 29 charges of more than 150 accused.

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[filed: Charter Criminal Law]

Institutional Delay and the Charter: R v Jordan

The Supreme Court of Canada (“SCC”) will have another opportunity to discuss how claims involving section 11(b) of the Charter should be assessed during the appeal of R v Jordan, 2014 BCCA 241. Section 11(b) of the Charter provides that a person charged with an offence has the right to be tried within a reasonable time. If one’s section 11(b) right is infringed, one can obtain a judicial stay of proceedings pursuant to section 24(1) of the Charter.

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[filed: Constitutional Law Criminal Law]

ONCA Rejects Nuisance Claim Against Former Owner: French v Chrysler

Nuisance, defined as an unreasonable interference with the use and enjoyment of land, has long been understood as a statement of claim for disputes among neighbours. It is a basic characteristic of the tort that the alleged nuisance originates somewhere other than the plaintiff’s land. This characteristic was recently questioned in French v Chrysler Canada Inc.

The case dealt with a motion by Mark French, on behalf of 1317424 Ontario Inc., to add a nuisance claim against Chrysler for failing to remediate contaminated land that was later sold to 1317424 Ontario Inc. by a third party. French argued that the scope of nuisance has not been settled and therefore a claim of nuisance between owners of the same property should be allowed to proceed.

Both the Superior Court and the Court of Appeal (“ONCA”) rejected this argument (see 2014 ONSC 4573 and 2015 ONCA 104).

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[filed: Torts]

Any Jury Inquiry Must Both Be Fair and Appear to Be Fair: R v Kum

The sanctity of the jury process must be maintained, said the Ontario Court of Appeal in a January decision. As well, an accused should not be deprived of the common law right to be tried by twelve people unless there are serious reasons for discharging jurors.

In R v Kum, 2015 ONCA 36, the appellant was convicted in a jury trial of cocaine trafficking and possessing the proceeds of crime. During the deliberation process, the trial judge conducted an inquiry into the jury and dismissed two jurors. It had become clear during the inquiry that the two individuals who were eventually dismissed had been in favour of acquittal, while the 10 remaining members of the jury supported conviction. Justice Feldman, writing for the Court of Appeal in a 3-0 decision, said that the inquiries led to a breach of sanctity of the jury deliberations. She set aside the accused’s convictions and ordered a new trial.

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[filed: Criminal Code Criminal Procedure]

R v Perrone: The Need for Appellate Courts to Address both Credibility and Reliability of a Witness

This case is concerned with the credibility and reliability of a witness, and whether or not the trial judge erred in her assessment of the complainant’s evidence and provided an unreasonable verdict.

On February 19, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Perrone, 2014 MBCA 74 [Perrone] from the Manitoba Court of Appeal (“MBCA”). The SCC affirmed Monnin J.’s (majority) decision that “the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of the witness taking into account the areas of concerns which she outlined” (Perrone, para 48). In dismissing the appeal, the analysis that is now binding to all court levels in Canada is the one provided by Monnin J. of the MBCA.

Although this case lacks the usual glamour associated with an SCC case, what is most interesting about the judgment of the MBCA is that the majority and dissenting opinions arrived at two wildly different conclusions based on identical evidence and jurisprudence.

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[filed: Uncategorized]