“Persistent Discord” and the Standard of Review in Dismissal Cases: Wilson v Atomic Energy

In Wilson v Atomic Energy of Canada Limited, 2015 FCA 17 [Wilson], released January 22, 2015, the Federal Court of Appeal (“FCA”) dismissed an appeal relating to a dismissal from employment under the Canada Labour Code, RSC 1985, c L-2 [CLA]. This judgment covers a broad range of administrative law issues, clarifying the permissibility of dismissal without cause and indicating the standard of review to be used when addressing cases with persistent discord in adjudicator opinions.

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[filed: Administrative Law Labour and Employment]

Catching the Wolf of Bay Street: R v Shin

The Ontario Court of Appeal’s (“ONCA”) decision in R v Shin, 2015 ONCA 189, upheld a drug trafficking conviction that followed from an extensive police investigation in the Greater Toronto Area (“GTA”). Brian Shin was arrested after he entered a stash house where police were waiting for him. Although the arrest violated Shin’s Charter rights, the ONCA affirmed that the violation did not suffice to exclude key evidence. Shin nevertheless gave candid testimony about his criminal past in order to avoid conviction on some of the more serious charges against him.

The Court of Appeal’s decision clarifies the extent to which such past criminal conduct can be used by defendants for tactical advantage, while leaving the extent of some police investigatory powers unclear.

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[filed: Charter Criminal Code Criminal Law]

A Right Without a Remedy? No Redress for Wrongful Conviction in Henry v British Columbia

Henry v British Columbia (Attorney General), 2014 BCCA 15, was recently granted leave to appeal to the Supreme Court of Canada (“SCC”). In 1983, Mr. Henry was wrongfully convicted of 17 sexual offences, for which he spent more than 27 years in jail. He was declared a dangerous offender and would have been incarcerated for an indefinite period of time. However, he was finally acquitted in 2010, after Vancouver police reopened unsolved sexual assault cases from the 1980s.

Mr. Henry’s wrongful conviction resulted from a series of serious and tragic errors by the police and Crown prosecutors at the time. The police had neglected to check Mr. Henry’s alibis and never tested him against the physical evidence found at the scene.

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[filed: Criminal Law]

Foreign Sentences Served in Canada: Khadr v Edmonton Institution

Omar Khadr’s journey through this country’s various courts will continue in May when the Supreme Court of Canada (“SCC”) holds a hearing for the appeal of Khadr v Edmonton Institution, 2014 ABCA 225.

Unlike earlier legal proceedings involving Khadr, this appeal is relatively less complex. The issue essentially boils down to whether Khadr should have been placed in a provincial correctional facility rather than a federal penitentiary when he was transferred to Canada to serve the remainder of his sentence.

Despite the limited scope, however, the SCC’s decision in this matter will have important implications regarding how the International Transfer of Offenders Act, SC 2004, c 21 (“ITOA”) is interpreted in conjunction with the Criminal Code, RSC 1985, c C-46 (“Criminal Code”) and the Youth Criminal Justice Act, SC 2002, c 1 (“YCJA”).

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[filed: Criminal Law International Law]

High School Students Successfully Challenge Mandatory Breathalyser for Prom Attendees under the Charter

In Simon Gillies et al v Toronto District School Board, 2015 ONSC 1038, Justice Himel of the Superior Court of Ontario held that a mandatory breathalyser test for high school prom attendees violated section 8 of the Charter. This case applied the Charter in an interesting context and led to a win for the high school students. This judgement also affirms some back to basics principles, such as that the Charter applies to bodies other than the government when they “are, in reality, ‘governmental’ in nature.”

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[filed: Charter]

For Pre-Trial Issues, It’s Not a Matter of Proof: Gaur v Datta

Judges should assume facts in claims are true when considering whether to strike out a pleading under Rule 21 of Ontario’s Rules of Civil Procedure (“Rules”). In a case earlier this month, Gaur v Datta, 2015 ONCA 151, the Ontario Court of Appeal overturned a motion judge’s ruling in a 3-0 decision, allowing the appellants to proceed with their cause of action.

Rule 21.01(1)(b) states that a party can make a motion asking a judge to “strike out a pleading on the ground that it discloses no reasonable cause of action or defence.” At this stage, no evidence is admissible and all facts in the pleadings are assumed to be true. In Guar, Justice van Rensburg determined that the motion judge erred in dismissing the action against the respondents. She ruled that the appellants could proceed with their action. She did, however, make suggestions on how the appellants could amend their pleadings to make the elements of their tortious claims clearer.

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[filed: Civil Procedure Defamation and Libel Torts]

Loyola v Quebec, Part I – the Majority: Water in Loyola’s Wine

This is the first part of a two-part comment on the Supreme Court of Canada (“SCC”) decision in Loyola High School v Quebec (Attorney General), 2015 SCC 12 [Loyola]. It will summarize the majority opinion of Justice Abella. Unlike the concurring opinion of Chief Justice McLachlin, which will be set out in Part II, Abella confines her analysis to the decision-making framework set out in Doré v Barreau du Québec, [2012] 1 SCR 395 [Doré], which applies when discretionary administrative decisions engage the Charter.

Loyola involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High School (“Loyola”) an exception from a provincially-mandated course on world culture and religion. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in the 1840s.

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[filed: Charter Religion]

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]