Canada: Court Of Appeal Summaries (June 29 – July 3, 2015)

Last Updated: July 8 2015
Article by John Polyzogopoulos

Hello everyone. Below are summaries of this week's Ontario Court of Appeal decisions. As usual, there are full summaries for the substantive civil decisions. Topics include residential tenancies, the licensing of movie rights, family law, issue estoppel, summary judgment, Crown wardship orders, judicial review, and employment law.

This week, there are also two full summaries of criminal law decisions, one relating to extradition law and the other, R v Graziano, relating to the rule in Browne v Dunne and the rule against splitting one's case, which will be of interest to all litigators. As well, at the end of our post you will find a list of all short endorsements and criminal decisions released this week, with keywords and links to the decisions themselves.

Finally, we have added a new feature on our blog that will hopefully make it more user-friendly for you. There is a table of contents below listing all of the cases in this week's post with the associated keywords. Rather than having to read through the whole post to determine if there were any decisions this week of interest, you should now just be able to click on the name of a case that interests you (based on the keywords associated with that decision), and the link should automatically take you down to the detailed summary of that decision in our blog.

Table of Contents:

Civil Cases:

PDM Entertainment Inc. v. Three Pines Creations Inc. (click on case name to read the summary)
Keywords: Contract Law, Intellectual Property, Copyright, Grant of Television Rights, Option Agreement, Contractual Interpretation, Relief from Forfeiture, Courts of Justice Act, s. 98, Sufficiency of Reasons

United States v. Viscomi (click on case name to read the summary)
Keywords: Criminal Law, Extradition, Extradition Act, Mutual Legal Assistance in Criminal Matters Act, Canadian Charter of Rights and Freedoms, Child Pornography, Internet Service Provider, IP Address, Disclosure Order, Extradition Order, Surrender Order

Scalia v Scalia (click on case name to read the summary)
Keywords: Family Law, Family Law Act, ss. 14, 33(9)(d), Joint Ownership, Presumption of Right of Survivorship, Wills and Estates, Substitute Decisions Act, ss. 31(1), Powers of Attorney, Fiduciary Duty, Partition and Sale, Partition Act, s. 2, Litgation Guardian, Costs, Substantial Indemnity, Ordered Personally Against Representative

Catholic Children's Aid Society of Toronto v A.Y.
Keywords: Endorsement, Child Welfare, Crown Wardship Order, Parental Access, Best Interests of Child, Summary Judgment

Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia
Keywords: Municipal Law, Municipal By-Laws, Restrictions as to Use of Church Property, Church Operating Homeless Shelter, Whether Shelter "Church-Sponsored Community Activity or Project", Statutory Interpretation, Interpretation in Accordance with Charter Values

Taylor-Baptiste v. Ontario Public Service Employees Union
Keywords: Labour Law, Human Rights Law, Discrimination, Judicial Review, Human Rights Tribunal, Human Rights Code, Meaning of Discrimination "With Respect to Employment", Employment, Unions, Standard of Review, Reasonableness, Charter of Rights and Freedoms, ss. 2(b) and 2(d), Freedom of Expression, Freedom of Association, Charter Scrutiny of Administrative Decisions, Doré Test, Oakes Test

Summarized Criminal Cases and Longer Endorsements:

R v Graziano
Keywords: Evidence Law, The Rule in Browne v Dunne, Reply Evidence, Rule Against Splitting Case, Criminal Law, Sexual Interference and Assault

Moon v. Ottaway
Keywords: Endorsement, Residential Tenancies, Home Renovations, Civil Procedure, Summary Trial, Affidavit Evidence, Examination-in-Chief, Adjournments, Expert Reports

Drake v Stratford
Keywords: Endorsement, Real Estate Law, Issue Estoppel

Short Endorsements

Baradaran v. Tario Warranty Corporation
Keywords: Costs Endorsement, Interlocutory Orders, Jurisdiction

Criminal Cases:
R. v. Baylis
Keywords: Criminal Law, Possession of Restricted Firearm, Criminal Code, s.684, Right to Counsel
R. v. Vant
Keywords: Criminal Law, Administration of a Stupefying Drug, Criminal Code, ss. 246(b)

R. v. A.A.C.
Keywords: Criminal Law, 2nd Degree Murder, Bail Review, Material Change in Circumstances, Criminal Code, ss. 515(10), 522(2) and 680

R. v. M.L.
Keywords: Criminal Law, Dangerous Offender, Sentencing, Criminal Code, s.753(4)(b) or (c)

R. v. A.W.B.
Keywords: Endorsement, Criminal Law, Youth Criminal Justice Act, ss.110(1), 111(1) and 138(1), Criminal Code, ss. 487.05(1), DNA Data Bank Order

PDM Entertainment Inc. v Three Pines Creations Inc., 2015 ONCA 488

[MacPherson, Epstein and Roberts JJ.A.]

Counsel:
K. Prehogan and H. Book for the appellants
M. Scott Martin, for the respondent

Keywords: Contract Law, Intellectual Property, Copyright, Grant of Television Rights, Option Agreement, Contractual Interpretation, Relief from Forfeiture, Courts of Justice Act, s. 98, Sufficiency of Reasons

Facts: The appellant, Louise Penny, is an award winning Canadian mystery writer. In 2011, she optioned certain rights to her books to a television production company, PDM. Through her company, Three Pines, Ms. Penny granted PDM the option to purchase the rights to her works for the purpose of producing made for television movies. The option agreement had an initial two year term, but also provided for extensions. When PDM gave notice that it was invoking the extension clause, Three Pines asserted that PDM's rights under the agreement had ended.

In September 2013, PDM extended the Option Agreement by one year. A year later, in September 2014, PDM still had not finalized production order for the second book, and attempted to extend the Option Agreement by a fourth year. Three Pines did not accept the extension.

The application judge accepted PDM's interpretation of the contract and allowed for the extension. He also granted PDM relief from forfeiture as a result of mistakenly underpaying Three Pines. Three Pines appealed.

Issues:
1. Did the application judge provide adequate reasons for judgment?

  1. Did the application judge err in fining that the Option Agreement provides for two one-year extensions of the Initial First Set Option Period?
  2. Did the application judge exceed his jurisdiction or otherwise in granting the respondent relief from forfeiture?

Holding: Appeal dismissed.

Reasoning:
1) The appellants argued that the judge's reasons were "wholly inadequate", as he did not say anything about the wording of the two key relevant provisions. The Court of Appeal found that while the reasons are conclusory, they do not cross the line and fall into the category of "insufficient" as described in the leading cases (i.e. R. v. Sheppard 2002 SCC 26). At the conclusion of argument, PDM advised the application judge of the urgency of the matter and requested that the decision be issued quickly. The appellants did not take issue with that. The judge released his decision the next morning. The application judge's reasons met the standard required in F.H. v. McDougall, 2008 SCC 53. He 1) justified and explained the result, 2) made it clear to the losing party why they lost, 3) the reasons, coupled with the record, the parties' facta and submissions provide for the Appeal Courts' informed consideration of the grounds of the appeal, and 4) there was nothing to suggest that a reasonable member of the public would doubt that justice had been done.

2) The dispute over contractual interpretation came down to whether PDM could extend the Option Agreement pursuant to clause x and clause y, or clause x or clause y. The Court found that the wording of the clauses, taken together, supported the extension of the contract, and found commercial sense in that interpretation.

3) The appellants submitted that the application judge did not have jurisdiction to grant relief from forfeiture because the remedy can only be granted where the party seeking relief has breached a contract and the breach gives rise to a right to forfeiture essentially to secure the payment of money. The Court of Appeal rejected this argument, stating that a court has a broad discretion to award relief under s.98 of the Courts of Justice Act.

Furthermore, the application judge did not err in granting relief under Kozel v. Personal Insurance Co. 2014 ONCA 130. He found that PDM acted in good faith, its error was trivial in relation to the contract, and forfeiture would be a grossly disproportionate outcome in light of the error.

United States v. Viscomi, 2015 ONCA 484

[Simmons, Cronk and Blair JJ.A.]

Counsel:
J. A. Greenspan, J. S. Wilkinson, B. Greenshields for the appellant Marco Viscomi (C57211, C57910 and C59973)
J. Norris and M. Conway, for the appellant Brandon Lane (C59982)
R. Kramer and N. Denison, for the respondent The Attorney General of Canada (C59973 and C59982), and for the respondent The Attorney General of Canada on behalf of the United States of America (C57211) and on behalf of the Minister of Justice (C57910).
R. Hubbard and M. Fawcett, for the respondent The Attorney General of Ontario (C59973 and C59982).

Keywords: Criminal Law, Extradition, Extradition Act, Mutual Legal Assistance in Criminal Matters Act, Canadian Charter of Rights and Freedoms, Child Pornography, Internet Service Provider, IP Address, Disclosure Order, Extradition Order, Surrender Order

Facts: The USA sought the extradition of the appellants, Viscomi and Lane, arising out of internet luring, child exploitation and child pornography charges. Under the Mutual Legal Assistance in Criminal Matters Act (MLACMA), the United States requested assistance to obtain the fruits of searches and seizures conducted by Ontario police relating to Mr. Lane, as they would do in the proceedings relating to Viscomi.

Viscomi's extradition was sought in relation to exploitative internet communication between someone and a 17-year old girl in Virginia Beach in the US. The Virginia Beach police traced communications through an Internet Service Provider ("ISP") in Ontario, to an Internet Protocol ("IP") address in Ontario. They learned from the ISP that a "Mark Viscomi" was the subscriber to the IP address and that it had been assigned to his account during the night in question, at a residential address in Stouffville. The Virginia Beach Police also had information that a "Marco Viscomi" listed that same address as his residential address. The collection of the information resulted in a series of events, including an extradition order against Mr. Viscomi, a dismissal of an attempt by Mr. Viscomi to obtain disclosure of the fruits of the Ontario searches for purposes of his committal hearing, and two ex parte gathering orders issued at the request of the US under the MLACMA.

Issues:
(1) Whether the order committing Mr. Viscomi for extradition was appropriate.

(2) Whether the Minister's decision to surrender Mr. Viscomi for extradition withstands judicial review.

(3) Whether the dismissal of the request for a disclosure order was appropriate.

[The above 3 issues were subsumed into one question: Whether it was open to the extradition judge to draw the inference that it was Mr. Viscomi who was the user of the IP address at the relevant time.]

(4) Whether the dismissal of Mr. Viscomi and Mr Lane's constitutional challenge to the gathering and sending provisions in the MLACMA was appropriate.

Holding:
(1) The order committing Mr. Viscomi for extradition was inappropriate, as it was not open to the extradition judge to infer that Mr. Viscomi was the user of the IP address at the relevant time.

(2) Given that the extradition order was inappropriate, the Minister's surrender order must also fail.

(3) The dismissal of the request for the disclosure order was appropriate.

(4) The MLACMA provisions at issue withstand constitutional scrutiny.

Reasoning: There was insufficient evidence identifying Mr. Viscomi as the perpetrator. The evidence supported a finding that Viscomi was the subscriber to the IP address at the relevant time, but not that he was necessarily the user. The proper test to be applied for committal under ss 29(1) of the Extradition Act deems that a judge must be satisfied that there is some evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. Where the evidence is circumstantial, the extradition judge must conduct a weighing exercise to ensure the circumstantial evidence is capable of supporting the inferences the prosecution seeks. Reasonable inferences must be grounded in established fact, not speculation. The extradition judge inferred that Mr. Viscomi was using the identified IP address at the relevant time. There was insufficient evidence to establish this. The extradition order must be quashed, as must the surrender order.

The Court agreed with the order dismissing Mr. Viscomi's application for disclosure in the committal proceeding. There was no error in the application judge's exercise of discretion not to order production of the materials seized by the Ontario police to further some subsequent Charter challenge when the requesting state made it clear that it was not relying on the fruits of that search to support the committal application, and there was no air of reality with respect to Mr. Viscomi's suggested Charter violations. The Charter governs the conduct of Canadian state actors, but does not apply to the conduct of foreign authorities conducting a lawful investigation within their jurisdictions, even where Canadian authorities may have cooperated with them.

Finally, the gathering and sending provisions of the MLACMA regime are not unconstitutional. Sufficient procedural safeguards are in place (e.g. judicial discretion to refuse to issue an order, or impose terms and conditions). Moreover, the sections are investigative tools that require confidentiality and expediency in order to be effective.

Scalia v. Scalia, 2015 ONCA 492

[Weiler, Epstein and Brown JJ.A]

Counsel:
T. Akbarali and J. Madhany, for the appellants
J. Stark and D. M. Sundin, for the respondent

Keywords: Family Law, Family Law Act, ss. 14, 33(9)(d), Joint Ownership, Presumption of Right of Survivorship, Wills and Estates, Substitute Decisions Act, ss. 31(1), Powers of Attorney, Fiduciary Duty, Partition and Sale, Partition Act, s. 2, Litgation Guardian, Costs, Substantial Indemnity, Ordered Personally Against Representative

Facts: The dispute is between the son of the late Joe Scalia, from his first marriage, the appellant, Giovanni Scalia ("John"), and Joe's widow, the respondent, Giuseppina Scalia ("Pina"). John is the executor of his father's estate. Joe and Pina entered into a marriage contract when they married in 1993 and then moved into half of a duplex owned by Joe. At the time of Joe's death, the property was held jointly by Joe and Pina.

Joe was diagnosed with Alzheimer's disease in 2006. John was appointed as Joe's power of attorney for property and personal care ("POA") in August 2007. Pina cared for Joe in their home until 2011. When, in 2011, Pina was no longer able to manage on her own, John stepped in. John became concerned that Pina had been diverting funds that belonged to Joe so he arranged for funds in two accounts jointly held by Joe and Pina to be frozen by the bank. John also sought financial information from Pina about the whereabouts of certain monies, including funds Pina was receiving from the rental of the other half of the duplex.

In March 2012, Joe was moved to a long-term care facility. Joe was unhappy with this move. As a result of their various disputes, Pina and John brought applications against each other.

On January 22, 2013, John, acting as Joe's litigation guardian, commenced an application seeking:

(a) an order requiring certain banks to deliver information about Pina;

(b) an order requiring Pina to account for proceeds of the rental property and funds allegedly missing from her and Joe's joint account;

(c) an order releasing the frozen funds so that John could repair the rental property, pay interim support to Pina, pay for Joe's living expenses, and retain the balance of funds in trust for Joe; and

(d) an order requiring the sale of a property in Florida and division of the net proceeds of the sale of that property between Pina and Joe in equal shares.

In her application, commenced on March 18, 2013, Pina sought:

(a) the appointment of the Office of the Public Guardian and Trustee in place of John as Joe's POA;

(b) an order setting aside the marriage contract;

(c) an order for interim support retroactive to October 1, 2012 to the date of Joe's death;

(d) an order directing that the frozen funds be released into Joe and Pina's joint account;

(e) a declaration that Pina was a dependent of Joe and that proper provision had not been made for her needs;

(f) an order for support and/or an order that Pina be compensated for care provided to Joe on a quantum meruit basis; and

(g) an order prohibiting John from dealing with the Florida property.

The application judge granted Pina's application in part. Specifically, he: 1) released the balance of the frozen funds to Pina; 2) ordered that Pina be given an unrestricted right to deal with the Florida property; and 3) awarded Pina monthly support of $900 from October 1, 2012 to the date of Joe's death in 2014. The application judge also awarded Pina her costs on a substantial indemnity basis that he fixed in the amount of $13,500 to be paid by John personally.

The application judge dismissed John's application and awarded Pina her costs of $9,450 on a partial indemnity basis, to be paid by Joe's estate. On behalf of Joe's estate, John appeals: 1) the finding that Pina had exclusive title to the frozen funds; 2) the finding that Pina had the sole right to deal with the Florida property; and 3) the quantum of retroactive spousal support. On his own behalf, John appeals the costs awarded against him personally.

Issues:

  1. Did the application judge err by releasing the frozen funds to Pina?
  2. Did the application judge err by finding that Pina was free to deal with the Florida property?
  3. Did the application err by ordering that Joe's estate pay Pina $900 per month of retroactive spousal support?
  4. Did the application judge err in ordering $13,500 in costs against John personally?

Holding: Appeal allowed part. The court ordered the partition and sale of the Florida property nunc pro tunc as of December 16, 2013. The spousal support order of $900 per month was set aside and was substituted with the monthly sum of $300. The balance of the appeal was dismissed.

Reasoning:

  1. The money in issue came from two joint bank accounts. Money on deposit in joint accounts is presumed to be property held as joint tenants: Family Law Act, R.S.O. 1990, c. F.3, s. 14. There appears to be nothing in the record that rebuts the inference that throughout their 20-year marriage, Joe and Pina intended these joint accounts to be used for the benefit of both and to have a right of survivorship. There was no unjust enrichment in Pina receiving funds which she was, during Joe's lifetime, fully entitled to access.
  2. Even if the application judge were correct in determining that Pina alone had funded the re-purchase of the Florida property, this does not mean that she is entitled to "deal with" the property at "her sole discretion". Joe's name remained on title. John, as POA, had the authority, pursuant to s. 31(1) of the Substitute Decisions Act, to sever the joint tenancy and force a sale, as s. 31(1) permits a POA to do "anything in respect of property that the person could do if capable, except make a will". Under s. 2 of the Partition Act, courts should compel partition and sale unless the applicant has behaved maliciously, oppressively or with a vexatious intent: Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), at para. 15. There was no evidence to support the notion that John, in bringing an application for partition and sale of the Florida property, behaved maliciously, oppressively or with a vexatious intent.
  3. The application judge erred by not considering Joe's capacity to pay. Pursuant to ss. 33(9)(d) of the Family Law Act, the court "shall consider... the respondent's capacity to provide support" in determining the amount of a spousal support order. Since the application judge provided no explanation for how he arrived at the monthly sum of $900, the award was not entitled to the considerable deference a spousal support order normally attracts.
  4. Certain findings of fact on which the application judge based his conclusion that John acted in bad faith were not supported by the record, however, the elevated costs award against John personally was also premised on John's litigation conduct. The application judge found that John, a person entrusted with a power of attorney, took steps of no benefit to the person to whom he owed a fiduciary duty – his father. It is no longer the case that the estate should routinely bear the costs of litigation (MacDougald Estate v. Gooderham (2005)).

Catholic Children's Aid Society of Toronto v AY, 2015 ONCA 493

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

A.Y. and P.Y., acting in person
R. Knox, for the Catholic Children's Aid Society of Toronto
C. Bellinger, for the Office of the Children's Lawyer on behalf of the children

Keywords: Endorsement, Child Welfare, Crown Wardship Order, Parental Access, Best Interests of Child, Summary Judgment

Facts: The appellants submit that the judge at first instance erred in granting Crown Wardship of their four children on the motion for summary judgment brought by the respondent, the Catholic Children's Aid society of Toronto (the "CCAS"). At issue was the Crown Wardship order, proposed parental access to the children, proposed access to the children's maternal grandmother, and an alternate plan whereby the children would be cared for in France by a maternal aunt and uncle.

Issues: Whether the Crown Wardship order was properly made.

Holding: Appeal dismissed. The Crown Wardship order was properly made.

Reasoning: The Crown Wardship order continues to be in the best interests of the children. A child's wishes, especially as he or she grows older, are an important component of the determination of the child's best interests.

With regard to proposed parental access, the test involves not only a beneficial and meaningful relationship, but also a finding that access would be in the children's best interests. Evidence indicated that the parents had taken advantage of contact initiated by the children in the past three years to blame them for destroying the family. The appeal was dismissed with respect to the issue of access on the basis of the existing record, but this was done on the understanding that if an access process suggested by the CCAS is instituted, the CCAS would consider varying the no access order.

With regard to proposed access to the children's maternal grandmother, it was premature to conclude that court-ordered access is in the children's best interests. On the record before the Court, no new order was warranted or required at that time.

The Court agreed with the trial judge that the proposed alternate plan (i.e. living in France) was not in the best interests of the children. The report of the French Bureau de l'aide sociale à l'enfance noted the lack of support the proposed care givers would offer to the children respecting their removal from parental care. Moreover, the emotional attachment of the two youngest children to their present foster environment, as well as differences in language and culture, militated against a finding that the plan was in the best interests of the children.

Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494

[Doherty, Epstein and Tulloch JJ.A.]

Counsel:
M. Klippenstein and K. Elson, for the appellant
J. J. Hoffer and L. M. McKeen, for the respondent
R. Khawja and C. Pike, for the intervener, Ontario Human Rights Commission

Keywords: Municipal Law, Municipal By-Laws, Restrictions as to Use of Church Property, Church Operating Homeless Shelter, Whether Shelter "Church-Sponsored Community Activity or Project", Statutory Interpretation, Interpretation in Accordance with Charter Values

Facts: The River City Vineyard Christian Fellowship of Sarnia ("River City") is a church located in the Urban Residential Zone 1-27 in the City of Sarnia. It has operated a homeless shelter in its basement since 2006. The City of Sarnia opposed its operation on the basis that it breached Sarnia's zoning by-law, River City disagreed and continued operating the shelter.

In response, Sarnia applied to the Superior Court for an injunction. River City brought a counter-application seeking a declaration that it was not contravening the By-law. In the alternative, to the extent the shelter was prohibited by the By-law, River City argued that the By-Law unjustifiably infringed its freedom of religion as protected by the Canadian Charter of Rights and Freedoms.

The judge issued an injunction against River City. The applications judge first reasoned that the shelter was not a church-sponsored community activity given the prohibition on soup kitchens and food banks. Secondly, the applications judge held that because River City had renovated the basement to use as a shelter, the shelter did not constitute a "use" as defined by the By-law. Third, he reasoned that the shelter could not qualify as an "accessory use" because the shelter was not incidental and exclusively devoted to the main use of the building as a church. Finally, the applications judge observed that while River City regarded the shelter as part of its spiritual mission, legally, it fell into the By-law's definition of "emergency shelter".

Issues:

  1. Did River City's homeless shelter constitute "church-sponsored community activities and projects" within the meaning of the By-law?
  2. Was the shelter permitted as an "accessory use" to the church?

Holding: Appeal allowed, injunction set aside and application for the injunction dismissed.

Reasoning: The Court held that River City's homeless shelter fell within the meaning of "church-sponsored community activities and projects".

Whether River City's shelter falls within the By-law's definition of "church", properly interpreted, is a question of mixed fact and law. The applications judge's conclusion was entitled to some deference absent an extricable error in principle or palpable and overriding error.

However, the Court held that the applications judge made three errors.

First, the applications judge erred in concluding that the express prohibition on soup kitchens and food banks indicated an intention to narrowly prescribe the range of activities that constitute church use. While the express prohibition on soup kitchens and food banks in churches narrowed the range of activities that constituted church use, it did not follow that the intent of the By-law was to prohibit other activities of a similar nature.

Second, the applications judge erred by concluding that the renovations to the church basement took the shelter outside of the word "use", as defined in the By-law. The word "use" is defined in the By-law as follows:

"USE" where it appears as a noun, means the purpose for which a lot, building or structure, or any combination thereof is designed, arranged, occupied or maintained.

There was no indication in the By-law that the definition of "use" was limited to purposes that existed when the building was first constructed. To the contrary, the word "is" in the definition of "use" indicated a present purpose, rather than the original purpose. The By-law did not expressly provide or imply that "church-sponsored community activities and projects" are restricted to activities or projects that can be accommodated without renovations. The applications judge erred by reading in such a restriction.

Third, the applications judge erred by attaching relevance to the fact that the homeless shelter fit under the By-law's definition of "emergency shelter". There was no indication in the By-law that "church-sponsored community activities and projects" may not include uses that are defined elsewhere in the By-law. To the contrary, there are several examples of uses that fell under two separate definitions in the By-law.

The Court also considered the object of the By-Law at issue. The Court stated that the scope of "church-sponsored community activities and projects" must be interpreted in a manner consistent with the object of the By-law, which was to circumscribe the use of land in Sarnia.

Regarding the grammatical and ordinary sense of the words "church-sponsored community activities and projects" the Court stated that the words "church-sponsored" limited the activities and projects churches may undertake on their premises. The ordinary sense of the words "church-sponsored" suggests that the church in question must at least agree with the aims of or support the activity or project.

The word "community" connotes a socially beneficial use intended to assist or engage the public or some sub-group within the general public. The inclusion of the words "community activities and projects" revealed an intention on the part of the drafters of the By-law to allow churches to engage in socially beneficial conduct and respond to the needs of the community. In application to the facts, the Court ruled that River City assisted and engaged the public.

The Court reached its conclusion without resorting to the principle that legislation must be interpreted in compliance with Charter values. The applications judge did not err by failing to apply this principle. The Supreme Court has emphasized that Charter values are to be used as an interpretive principle only when a provision is genuinely ambiguous, and its meaning cannot be determined using a contextual analysis.

Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.

[Hoy A.C.J.O., Watt and Brown JJ.A.]

Counsel:
R. K. Agarwal and A. C. McLachlan, for the appellant Mariann Taylor-Baptiste.
M. Horner and P. Ryan, for the appellant Attorney General of Ontario.
C. Jones and J. Martin, for the respondents Ontario Public Service Employees Union and Jeff Dvorak.
M. Leighton and L.Chen, for the respondent Human Rights Tribunal of Ontario
C. Zwibel, for the intervener Canadian Civil Liberties Association
R. Khawja and S. Gurmukh, for the intervener Ontario Human Rights Commission.

Keywords: Labour Law, Human Rights Law, Discrimination, Judicial Review, Human Rights Tribunal, Human Rights Code, Meaning of Discrimination "With Respect to Employment", Employment, Unions, Standard of Review, Reasonableness, Charter of Rights and Freedoms, ss. 2(b) and 2(d), Freedom of Expression, Freedom of Association, Charter Scrutiny of Administrative Decisions, Doré Test, Oakes Test

Facts: The appellant, Mariann Taylor-Baptiste, and the respondent, Jeff Dvorak, both worked at the Toronto Jail. In late 2008 and early 2009, Ms. Taylor-Baptiste was Mr. Dvorak's manager. Mr. Dvorak was president of the jail's local branch of the respondent union, the Ontario Public Service Employees Union ("OPSEU").

In early 2009, during a period of labour unrest, Mr. Dvorak operated a blog about union matters on which he authored a blog post, and permitted the posting of a comment written by someone else, both accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to the Human Rights Commission, alleging discrimination "with respect to employment" contrary to s. 5(1) and harassment "in the workplace" contrary to s. 5(2) of the Human Rights Code, R.S.O. 1990, c. H.19.

The Tribunal held that the claim for discrimination "with respect to employment" was not made out. The Tribunal also held that, on the facts, the harassment was not "in the workplace." The Divisional Court dismissed Ms. Taylor-Baptiste subsequent application for judicial review and held that the Tribunal's decision was reasonable. Ms. Taylor-Baptiste appeals.

Issues: Did the Divisional Court properly apply the reasonableness standard to the Tribunal's decision that the blog posts did not infringe Ms. Taylor-Baptiste's right to equal treatment "with respect to employment" without discrimination under s.5(1) of the Code?

Holding: The appeal is dismissed. The parties are to make written cost submissions.

Reasoning: Yes, the Divisional Court properly applied the reasonableness standard to the Tribunal's decision. When reviewing a decision disposing of an application for judicial review, the appellate court must decide whether the court below identified the appropriate standard of review and applied it correctly. The parties and the Divisional Court agreed that reasonableness was the applicable standard of review. Reasonableness affords a Tribunal the highest degree of deference having regard to the Tribunal's expertise and specialization. Therefore, in examining the Tribunal's decision, deference must be given.

When the Divisional Court examined the application of the Code in the circumstances, the Divisional Court properly characterized the Tribunal's decision on whether the blog posts were within or outside ss. 5(1) of the Code as a question of mixed fact and law in the particular circumstances of the case. As such, the Tribunal's decision required an examination of all relevant facts, which would warrant deference to the Tribunal's decision.

The Divisional Court properly examined the Tribunal's reasons as a whole. The Divisional Court rightfully observed that the Charter rights of the involved individuals was just one factor to consider in deciding a question of mixed fact and law in these particular circumstances. In Dore, the Court created a framework to apply when reviewing administrative decisions for compliance with the Charter. This test replaces the Oakes test for these kind of decisions. Under the new framework, the decision-maker is required to balance the Charter values at issue with the statutory objectives engaged. If the reviewing court can conclude that the administrative decision-maker has properly balanced the relevant Charter value with the statutory objectives in exercising its statutory discretion, the decision will be found to be reasonable. Therefore, the binding jurisprudence did not support interfering with the Tribunal's decision simply because it considered Charter values in the course of determining whether the respondents' conduct violated s. 5(1) of the Code.

The appellants submitted that the Tribunal failed to strike a reasonable balance between Charter values and the statutory objectives of the Code. The Court stated that Doré describes the approach an administrative decision-maker should follow when applying Charter values: first, the decision-maker should consider the statutory objectives at play, and then ask how the Charter value at issue will best be protected in view of the statutory objectives by balancing the severity of the interference of the Charter protection with the statutory objectives. The decision is entitled to deference as long as it falls in a range of possible, acceptable outcomes. Though the Divisional Court did not conduct its judicial review in this exact sequence, it performed the substantive equivalent.

In this case, the Divisional Court correctly identified that the Tribunal stated that the applicable statutory objective was protecting Ms. Taylor-Baptiste from a poisoned work environment. The Divisional Court also correctly supported the Tribunal's identification of the freedom of expression and the freedom of association enshrined in ss. 2(b) and 2(d) of the Charter as the relevant Charter rights in the circumstances of this case. The appellant's argued that the Tribunal's selection of those Charter rights was unreasonable because the content of the offensive content of the blog did not lie at the core of constitutionally-protected speech and s.5(1) of the Code does not infringe associational freedom. The Court dismissed both of the appellant's arguments. Section 2(b) of Charter protects a broad range of expressive activity, including "distasteful" expression, and the blog post was not extreme enough to fall within the ambit of hate speech. Also, s.2(d) of the Charter applied because the Supreme Court of Canada has held that expressive activity in the labor context is directly related to the Charter-protected right of workers to associate.

The Tribunal then properly balanced the applicable Charter rights with the objectives of the Code. The Tribunal gave detailed, intelligible and transparent reasons to support their finding that the respondents' conduct did not constitute discrimination "with respect to employment" in violation of s. 5(1) of the Code. These reasons disclosed that the Tribunal was aware of the various interests at play in determining whether, as a question of mixed fact and law, the respondents' conduct fell within or without the reach of s. 5(1) of the Code. In light of the deference afforded under the reasonableness standard of review, the Tribunal's decision could not be said to fall outside a range of possible, acceptable outcomes defensible in respect of the facts and law.

Summarized Criminal Cases and Longer Endorsements:

R v Graziano, 2015 ONCA 491

[Laskin, Epstein and van Rensburg JJ.A.]

Counsel:
A. Munoz, for the appellant

L. Bolton, for the respondent

Keywords: Evidence Law, The Rule in Browne v Dunne, Reply Evidence, Rule Against Splitting Case, Criminal Law, Sexual Interference and Assault

Facts: The appellant was convicted of sexual interference and assault. At issue was the interpretation of alleged abuse that occurred in a classroom. Witness testimony and video surveillance were relied upon by the trial judge to conclude that the anger exhibited by the complainant (JM) was caused by the assault on him by the appellant, not the fact that JM has been suspended from school by a Vice Principal (VP).

The VP, who was called as a witness by the Crown, testified at trial about a brief encounter with the appellant in the hallway. The VP testified that nothing of substance was discussed beyond an exchange of pleasantries. The VP was not cross-examined on this encounter by counsel for the defence. However, during his examination-in-chief, the appellant claimed that the VP had commented to him during that encounter that "that kid [JM] is strange". Defence counsel stopped his client from expanding upon this testimony. On cross-examination by the Crown, the appellant testified that he had had a more detailed conversation with the VP than a mere exchange of pleasantries, as the VP had testified to in his evidence in chief. The appellant testified on cross-examination that in addition to the VP remarking to him that JM was strange, the appellant told the VP during that discussion that JM had called the VP a derogatory name.

The Crown complained that the appellant's evidence had not been put to the VP on cross-examination. The Crown and the trial judge thought that the rule in Browne v Dunne came into play. The Crown announced that he intended to call the VP in reply, to which defence counsel did not object.

The VP testified in reply. He had a very different version of the conversation with the appellant in the hallway. The VP said that he did not refer to JM as strange, and the appellant never told him that JM had called him a derogatory name. The VP said that had he been told by the appellant that JM had called him a derogatory name, he would likely have increased the length of JM's suspension.

After the VP's reply evidence concluded, the trial judge heard submissions on a number of issues, including the rule in Browne v Dunne. The Crown objected that statements attributed to JM by the appellant during his cross-examination by the Crown were not put to JM during cross-examination. The Crown said it did not wish to recall JM but asked the trial judge to apply the rule in Browne v. Dunne and give little or no weight to the appellant's testimony.

Defence counsel submitted that the rule in Browne v. Dunn had not been breached and that the court should not discount the appellant's evidence. Defence counsel asserted that it was improper for the Crown to elicit answers during cross-examination in order to rely on the rule. However, defence counsel never expressed any objection to the VP having been called as a reply witness, nor did he suggest that the VP's evidence should not be relied on because the Crown had improperly split its case.

The trial judge accepted the testimony of the VP regarding the conversation in the hallway and, in large part on the basis of this evidence, concluded that the appellant was not credible and convicted him of the charge. The accused appealed.

Issues:
(1) Did the trial judge err by permitting the Crown to recall one of its witnesses in reply?

(2) Did the trial judge improperly rely on the evidence of three parties who were not called as witnesses?

(3) Did the trial judge err by failing to resolve inconsistencies in the evidence of JM?

Holding: Appeal dismissed.

Reasoning:
(1) Did the trial judge err by permitting the Crown to recall one of its witnesses in reply?

The rule in Browne v Dunne did not apply to the situation that arose on the appellant's cross-examination. The Court cited R. v. Henderson:

"This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box."

The Court found that defence counsel had not called contradictory evidence from his client. On the contrary, the evidence that the Crown wanted to address by calling the VP in reply came from the appellant almost entirely during his cross-examination. Thus, to the extent the trial judge relied on the rule in Browne v. Dunne to permit the Crown to call the VP in reply, she erred.

The proper approach would have been to consider whether permitting the Crown to call the VP in reply offended the rule that prohibits the Crown from splitting its case. The Court cited Krause v. The Queen:

"The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case, the indictment and any particulars... The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response."

However, the Court held that the circumstances in this case satisfied an exception to the rule against case-splitting per the decision in Krause v. The Queen:

"The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated."

The exception to the rule prohibiting the Crown to split its case applied here because the appellant had testified in his examination-in-chief about JM's angry and vitriolic comments. He also testified, albeit briefly, about part of his exchange with the VP in the hallway. It was reasonable for the Crown to test the appellant's evidence, as he did, by suggesting that if JM had said the things the appellant claimed, the appellant would have reported the exchange to the VP. Even though defence counsel intentionally chose not to question his client about his conversation with the VP, it was the appellant who brought up the conversation during his examination-in-chief, and expanded upon it under cross-examination.

The Crown could not reasonably have anticipated the appellant's evidence about his conversation with the VP, and thus had no opportunity to deal with it during the VP's examination-in-chief. It was important evidence because unless it was contradicted, it seemed to support the defence's theory that the source of JM's anger was his suspension from school rather than the alleged sexual assault by the appellant. It was therefore proper to have allowed the Crown to call the VP in reply to rebut the appellant's evidence about the conversation in the hallway.

(2) Did the trial judge improperly rely on the evidence of three parties who were not called as witnesses?

No. The trial judge referred to an email from a woman who had not testified. The Crown acknowledged that the trial judge should not have used the contents of the email to comment adversely against the appellant, as it constituted inadmissible hearsay. However, the Court agreed with the Crown that in doing so the trial judge's error has no impact on the outcome. The trial judge did not rely on the other hearsay evidence in coming to her decision.

(3) Did the trial judge err by failing to resolve inconsistencies in the evidence of JM?

No. Regarding the two critical questions pertaining to allegations of abuse, the trial judge found that the "thrust of [the complainant's] evidence remained the same."

Moon v. Ottaway, 2015 ONCA 489

[Hoy A.C.J.O., Sharpe and Benotto JJ.A.]

Counsel:
C. A. Yehia, for the appellant.
C. M. H. Pattison, for the respondent Dorothy Ottaway.
A. S. Gibson, for the respondent Thomas Neal.

Keywords: Endorsement, Residential Tenancies, Home Renovations, Civil Procedure, Summary Trial, Affidavit Evidence, Examination-in-Chief, Adjournments, Expert Reports

Facts: The appellant, Charles Moon, leased a house from the respondent landlord, Dorothy Ottaway. Her real estate agent, the respondent Thomas Neal, was involved in the leasing transaction. On his own initiative, and without obtaining the landlord's consent, the appellant undertook extensive renovations to the home. The appellant subsequently defaulted in payment of rent and the landlord sought relief at the Landlord and Tenant Board. Just before the hearing before the Board, the appellant commenced this action against the landlord for damages for breach of contract and unjust enrichment and against the real estate agent for damages for negligent misrepresentation and/or inducing breach of contract. The landlord's application before the Board was converted to a counterclaim for arrears of rent and an eviction order. After a summary/hybrid trial, the trial judge dismissed the appellant's claims against the landlord and her real estate agent and allowed the landlord's counterclaim.

Issue:
(1) Did the trial judge err in proceeding by way of a summary/hybrid trial?

(2) Did the trial judge err in not allowing the appellant's counsel to ask him questions covered in his affidavit?

(3) Did the trial judge err by denying the appellant's request for an adjournment to obtain an expert report?

Holding: The appeal is dismissed. The landlord will be entitled to costs in the amount of $20,000, inclusive of disbursements and HST. The real estate agent will be entitled to costs in the amount of $8,000, inclusive of disbursements and HST.

Reasoning: A Court will not order a new trial unless there was a miscarriage of justice or a substantial error has occurred. In this case, neither situation occurred.

(1) No, the judge did not err in conducting the proceeding as a summary trial. The appellant cannot challenge the use of a summary trial on appeal because the trial already occurred and the appellant did not challenge the use of a summary proceeding when the order was made or at trial. Additionally, the appellant was not prejudiced by the manner in which the proceeding was conducted.

(2) No, the trial judge did not err in disallowing the appellant's counsel to ask him questions covered in his affidavit. The trial judge took the efficient and appropriate approach in the circumstances. The examination-in-chief evidence would repeat the evidence given by the appellant in his affidavit, so the trial judge was entitled to direct that there be no examination-in-chief on that affidavit. The court also already had ample opportunity to assess the appellant's demeanor in other portions of his examination-in-chief and cross-examination.

(3) No, the trial judge did not err in denying the appellant's request for an adjournment to obtain an expert report. The appellant had failed to comply with a timetabling order made by another judge. The appellant was also aware of the issues and had ample time to obtain an expert report. Additionally, the failure of the appellant to put forward evidence as to the value of the renovations through an expert report would not have helped the appellant because the documentary evidence in favor of the landlord in this regard was overwhelming.

Drake v. Stratford (City), 2015 ONCA 497

[Laskin, Pardu and Brown JJ.A.]

Counsel:
D. A.Thomson, for the appellants
M. A. van Bodegon and D. Veinot, for the respondent.

Keywords: Endorsement, Real Estate Law, Issue Estoppel

Facts: The Drakes brought an application to quash the City's 2014 resolution and for an injunction restraining the City from erecting or maintaining a barrier to restrict access from Joffre Street to the rear of their property. The application judge dismissed the application.

Issues: Did the application judge err by holding that the court proceedings in 2009 gave rise to issue estoppel?

Holding: The appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed in the agreed on amount of $13,000 inclusive of disbursements and applicable taxes.

Reasoning: No, the application judge did not err by holding that the court proceedings in 2009 gave rise to issue estoppel. The question under both pieces of legislation was essentially the same. In the previous litigation, the Court's denial of an injunction to remove the concrete barrier amounted to a judicial determination that the City had the right to maintain a barrier preventing access to Joffre Street.

In the current litigation, the Drakes sought to prevent the City from maintaining a barrier preventing access from the rear of their property to Joffre Street. That questions is substantially the same as the question was before the court and decided in 2009. The fact that the barrier will be changed from concrete to wood is irrelevant. The underlying submissions are still the same.

Short Endorsements:

Baradaran v. Tario Warranty Corporation, 2015 ONCA 490.

[Simmons, Cronk and Blair JJ.A]

Counsel:
M. Baradaran, in person
S. Vlahakis, for the respondent Tarion Warranty Corporation
H. Shankman, for the respondents Master Custom Homes Inc. and Abbassgholi Narreri

Keywords: Costs Endorsement, Interlocutory Orders, Jurisdiction

Criminal Cases:

R. v. Baylis, 2015 ONCA 477

[Doherty, Watt and Benotto JJ.A.]

Counsel:
R. Baylis, acting in person
R. Silverstein, for the appellant
D. Friesen, for the respondent

Keywords: Criminal Law, Possession of Restricted Firearm, Criminal Code, s.684, Right to Counsel

R. v. Vant, 2015 ONCA 481

[Watt, van Rensburg and Pardu JJ.A.]

Counsel:
D. E. Harris for the appellant David Vant
W. A. Cunningham, for the appellant Marcia Vant
J. Patton, for the respondent

Keywords: Criminal Law, Administration of a Stupefying Drug, Criminal Code, ss. 246(b)

R. v. A.A.C. 2015 ONCA 483

[Sharpe, Cronk and Huscroft JJ.A.]

Counsel:
B. Wassenaar for the applicant
M. Henein and S. M. Foda, for the respondent

Keywords: Criminal Law, 2nd Degree Murder, Bail Review, Material Change in Circumstances, Criminal Code, ss. 515(10), 522(2) and 680

R. v. M.L., 2015 ONCA 487

[Cronk, Gillese and Huscroft JJ.A]

Counsel:
M. Davies for the appellant
R. Shallow for the respondent

Keywords: Criminal Law, Dangerous Offender, Sentencing, Criminal Code, s.753(4)(b) or (c)

R. v. A.W.B., 2015 ONCA 476

[Laskin, Gillese and van Rensburg JJ.A.]

Counsel:
A. Rose, for the appellant
E. D. McCaig, for the respondent

Keywords: Endorsement, Criminal Law, Youth Criminal Justice Act, ss.110(1), 111(1) and 138(1), Criminal Code, ss. 487.05(1), DNA Data Bank Order

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