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]

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]