Hello everyone. Below are the summaries of this week's Ontario Court of Appeal decisions. Topics covered include vicarious liability; lease assignments; setting aside default judgments; bankruptcy; contempt orders and reasonable apprehension of bias.
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[Hoy A.C.J.O., Epstein and Huscroft JJ.A.]
Ross Macfarlane, for the appellant.
Angelo Fazari, for the respondents.
Keywords: Breach of Fiduciary Duty, Fraud, Default Judgment, Setting Aside, Mountain View Farms Ltd. v. McQueen
The appellant, an investment and wealth management advisor, was given a loan that was co-signed by his wife and her parents. The loan pledged jointly-owned investments as security for the loan. His wife's parents are the respondents.
The appellant moved the loan to Bank of Montreal ("BMO") to obtain more favourable interest rates. The applicant's wife and the respondents pledged more investments as security for the loan. On June 28, 2012, BMO demanded payment from the respondents of an overdue amount and on September 19, 2012, the respondents received a notice of intent to sell the pledged securities. The respondents paid loan installments to protect their securities, which lead to significant out of pocket expenses for the respondents. The respondents sued the appellant for breach of fiduciary duty, breach of contract, fraudulent and negligent misrepresentation, fraud, and breach of good faith. They alleged that the appellant was their personal investment and wealth management advisor and that he did not explain the risk in the loan transaction.
Around three months after the respondents served their Statement of Claim, the appellant had not yet filed a Statement of Defence despite warning that if he failed to do so the respondents would move for default judgment. The respondents brought an ex parte motion for default judgment. The respondents claimed $101,347.87 as follows: Payments made by the respondents $13,877.36; Monies claimed by BMO $46,317.64; Punitive damages $30,000.00; and costs of $11,152.87.
On August 2, 2013, the motion judge granted default judgment against the appellant for $101,347.87 plus pre- and post-judgment interest. The order granting default judgment declared that the appellant was in "breach of contract, breach of fiduciary duty, breach of his duty to act in good faith, fraud and fraudulent misrepresentation".
The appellant became aware of the default judgment in January 2014 and brought a motion in April 2014, after the respondents refused to consent to setting aside the judgment. The appellant acknowledged his obligation to repay the respondents the $13,877.36 they paid to BMO and consents to judgment against him in that amount. However, the appellant brought a motion to set aside the rest of the default judgment.
The motion judge dismissed the appellant's motion to set aside the default judgment. The motion judge held that the appellant failed to meet the test set out in Mountain View because the appellant's delay was unexplained, inexplicable, inexcusable, and unjustified. The appellant appeals the motion judge's decision.
Did the motion judge err by refusing to set aside the default judgment?
The appeal is allowed. The default judgment is set aside and substituted with a default judgment against the appellant for $13,877.36, plus prejudgment interest from September 1, 2012 to August 2, 2013, and post-judgment interest thereafter.
The appellant is entitled to his costs of the appeal in the amount of $10,000, inclusive of HST and disbursements. There shall be no costs on the motion below
Yes, the motion judge erred in dismissing the appellant's motion to set aside the default judgment. In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, the court set out five factors that a court should consider in determining whether to set aside a default judgment. These factors are not rigid rules, but must be examined based on what is just in the circumstances of the case. The motion judge made several errors in concluding that the appellant failed to meet the Mountain View test.
First, the motion judge failed to consider the first Mountain View factor, namely whether the appellant had moved promptly to set the default judgment aside. Once he learned of the default judgment, the appellant moved reasonably promptly to set it aside.
Second, the motion judge erred in concluding that the appellant did not have an arguable defence on the merits. The respondents did not advance a simple, liquidated claim. Instead, the respondents claimed and received a judgment for damages that they have not suffered and may never suffer. The appellant clearly has a defence to the extent the motion judge ordered the appellant to pay the respondents amounts that the respondents have not paid to BMO. Further, the motion judge failed to analyze whether the facts alleged in the Statement of Claim entitled the respondents to the declaratory relief or to the punitive damages they sought.
Finally, the motion judge failed to consider the prejudice to the appellant of refusing to set aside the default judgment and misapprehended the prejudice to the respondents of setting aside the default judgment. The substantial prejudice to the appellant, an investment and wealth management advisor, of declarations that he has committed breach of fiduciary duty, fraud and fraudulent misrepresentation is obvious. Setting aside the default judgment would not have seriously prejudiced the respondents.
Therefore, it is just to relieve the appellant from the majority of the consequences of his default.
[Sharpe, Pepall, and van Rensburg JJ.A.]
A. Franks & M. Zalev, for the appellant Charles David Green
M. Hilbing & F. Coscarella, for the appellant by way of cross-appeal Charles David Green Jr.
S. Mitra & M. Spence, for the appellants Strike Furlong Ford LLP and Robert James Lorne Ford
M. Poepjes, for the respondent Diana Freda Green
R. Alexander, for the respondent L. Maxwell
B. Yurko, acting in person
Keywords: Family Law, Divorce, Bankruptcy, s. 38 Bankruptcy and Insolvency Act
The parties had been married for 48 years and they had three children. During the early years, Diana did not work outside the home. Once the youngest child was ten years old, she began working and earned a modest wage. Theirs was a traditional marriage.
In 1981, the parties purchased an island on Georgian Bay, just over four acres. The island property became their matrimonial home. In 1995, the island property was transferred to the adult children with a view to saving estate tax. The children continued to treat the property as owned by the parents. By the time of separation, everyone, including the parents and children, appear to have forgotten about the transfer.
In 2006, Charles Sr. and Diana executed a separation agreement. Diana surrendered any right to claim support. The agreement provided for the sale of the island property, with Charles Sr. and Diana each to receive half of the net proceeds. Diana waived her entitlement to any further equalization of family property.
In 2008, Diana commenced this proceeding, in which she sought to accelerate the sale of the island property, set aside the separation agreement that contained a release of equalization and support, equalize the net family properties, and attain spousal support.
In 2009, Diana made a voluntary assignment into bankruptcy. Her claims for an interest in the island property and equalization vested in her Trustee in bankruptcy. Immediately following the assignment into bankruptcy, Ford and SFF removed themselves as solicitors. SFF filed a proof of claim for its unpaid fees of approximately $15,000. Diana's total indebtedness to all creditors was approximately $40,000.
Pursuant to s. 38(2) of the Bankruptcy and Insolvency Act, SFF assumed carriage of the property claims, determining that it would only advance a claim for one half of the property interest in the island property.
Two years later, SFF purported to assign its s.38 BIA rights to Charles Green Jr., the son of Charles Sr. and Diana, for the sum of $90,000. It is clear that SFF thought it was assigning, and Charles Jr. thought he was acquiring whatever interest Diana had in the island property, free of any obligation to account to the Trustee for any surplus value recovered in the matrimonial litigation.
SFF and Charles Jr. take the position that by virtue of the assignment, if Charles Jr. succeeds in demonstrating that Diana is entitled to a one-half ownership interest in the island property, Charles Jr. would acquire that interest in his own right.
Just as Charles Jr. became aligned in interest with his father, the two other children, Lisa and Brenda, became aligned with their mother. To resist the claim advanced by Charles Jr., they took the position that the island property had been transferred to the three children as a gift.
1. Property Issues: (i) did the trial judge err by making an equalization order? (ii) did the trial judge err in failing to order that Diana's one-half interest in the island property belonged to Charles Jr.?
2. Support: was the lump sum spousal support excessive?
3. Assessment: did the trial judge have jurisdiction to order assessment of its legal fees incurred before the bankruptcy and for prosecuting Diana's property claim under its s.38 assignment?
4. Costs: (i) were the costs against Charles Sr. in favour of Diana excessive? (ii) should the costs ordered against Ford be appealed? (iii) should the costs against Charles Jr. in favour of Lisa be appealed?
1. (i) No; (ii) Yes.
4. (i) No; (ii) No; (iii) Yes.
1. (i) Equalization remained a live issue at trial, as recorded in the exit pre-trial memorandum of SFF, so the judge did not err in addressing it. However, as Diana was a discharged bankrupt at the time of trial, she had no capacity to assert an equalization claim since it had vested in the Trustee on her assignment into bankruptcy.
While s. 40(1) of the BIA requires the trustee, prior to his or her application for discharge, to return to the bankrupt any property found incapable of realization, the Trustee was not discharged. S. 40(2) provides that where a Trustee is unable to dispose of any such property, the court may order it. Diana was discharged from bankruptcy on February 9, 2012, but no steps were ever taken to have any property declared to be incapable of realization or to compel the Trustee to return any property to her. The BIA does not provide for the automatic return of any property or surplus to a bankrupt following his or her discharge.
Therefore, it was not open to the trial judge to make an equalization order.
(ii) The trial judge correctly determined that the island property had not been gifted to the three children. The island property was held from November 1995, the date of transfer of legal title to the parties' three children, on a resulting trust in favour of Charles Sr. and Diana. Diana's one-half interest in the island vested in the Trustee on the date of her bankruptcy, November 2009.
A s.38 assignee is entitled to recovery of the value of its claim in the bankruptcy and its costs incurred in the proceeding. Any surplus is remitted to the bankrupt estate. SFF could not confer any greater entitlement on Charles Jr. by assigning its claim to him. Neither SFF nor Charles Jr. was entitled to recover a windfall to the detriment of the bankrupt estate. As such, neither was entitled to Diana's half-interest in the island property.
Charles Jr. paid SFF $90,000. From this sum, SFF paid itself $15,566 on account of its claim and $42,000 in costs. The proceeds from the sale of the island property were to be paid into court and, after payment of creditors and costs, charges and expenses of the bankruptcy proceeding, Diana was to pay, from the proceeds she received, $90,000 to Charles Jr.
2. The trial judge erred in the manner in which she calculated the lump sum award. Diana's income increased after 2007 as she was in receipt of CPP and OAS benefits. However, despite the error she made in the manner in which she calculated the lump sum, the amount is entirely appropriate.
She took into account Charles Sr.'s age and limited employability. She was faced with the problem posed by his failure to make full financial disclosure. Given the length and traditional nature of the marriage, limiting spousal support to seven years was very generous to the husband.
3. Assessment of SFF's Accounts. The trial judge erred in ordering an assessment of SFF's s. 38 account. While the trial judge certainly had the right to assess any party and party costs, it was for the Trustee to question or challenge the s. 38 account. The Trustee accepted and dealt with the surplus on the basis of SFF's accounting. In our view, in these circumstances, the trial judge erred by ordering the assessment.
4. (i) An order of costs is discretionary and entitled to deference. The Courts of Justice Act affords broad discretion to trial judges with respect to costs. This discretion must fit within the framework created by the Family Law Rules. An appellate court should set aside a costs award only if the trial judge has made an error in principle or if the costs award is plainly wrong. Thus the threshold for appellate interference with a trial judge's award of costs is high.
Charles Sr.'s costs are reasonable. Diana was completely successful, as the separation agreement was set aside and she obtained both an order for spousal support and an equalization of property award. Charles Sr. made no offers to settle, showed unreasonableness and bad faith with regard to financial disclosure, impeded the sale of the island property for three years, and refused to pay any support despite Diana's illness.
(ii) Costs award against Charles Jr. in favour of Lisa is set aside. Lisa was not more successful in her claim, and while her offers were reasonable, they required the participation of numerous other parties. Also, all children clung to the position that they were owners of the island property. Both Lisa and Charles should bear their own costs.
(iii) Ford seeks to appeal the order made against him personally. Ford and SFF's conduct was contrary to the interest of their former client Diana and served to increase the costs of all parties. Ford and SFF ran up costs without reasonable cause and wasted costs incurred by the other parties. Ford's costs appeal dismissed in full.
[Hoy A.C.J.O., Epstein and Huscroft JJ.A.]
M. Celap for the appellant
L. J. Campbell & D. Walaliyadde for the respondent
Keywords: Family Law, Contempt Order, Access Order, G.(N.) c. Services aux enfants & adultes de Prescott-Russell, Motion Judge, Fine, Setting-off Costs against Child Support, Bifurcation, D.B.S. v. S.R.G.
Facts: The appellant mother and respondent father are the parents of a five year old daughter. The respondent father brought a contempt motion on October 26, 2012 alleging that the appellant mother had disobeyed an access order by cancelling 11 out of 13 scheduled unsupervised visits. The motions judge found the appellant in contempt, and ordered her to pay a fine of $5000 to the respondent. Costs of $10,000 were also awarded against her, to be set off against the respondent's child support arrears. She appealed the motions judge decision, but Sproat J. dismissed her appeal. This is the second appeal of the finding of contempt.
Issues: Did the motion judge err in (1) finding her in contempt of the access order; (2) concluding that contempt was the appropriate remedy in this case; (3) ordering her to pay a fine of $5000 directly to the respondent; (4) setting-off the costs payable to the respondent and past and future child support obligations; and (5) failing to allow her to purge the contempt?
Holding: Appeal dismissed. The appellant is to pay $7000 in costs, inclusive of taxes and disbursements, to the respondent.
Reasoning: (1) The motion judge correctly set out and applied the three-part test from G.(N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 686 (C.A.) that must be met in order for a finding of contempt to be made. The access order clearly and unequivocally sets out the dates and times of the access visits. Only two of the thirteen visits occurred. As Sprout J. concluded, the evidence justified the motion judge's finding of contempt "beyond a reasonable doubt." (2) This argument was abandoned at the oral hearing, which is appropriate because Rule 31(5) of the Family Law Rules, O.Reg 439/07 allows this. (3) The quantum of the damages was modest given that the appellant was found in contempt previously but no penalty was imposed because the appellant complied with the order; (4) The decision to set-off costs is unusual, but the motion judge made the order with the child's best interests in mind, as per D.B.S. v. S.R.G.  2 SCR 231, and determined that the incentive for the mother to facilitate access by the father was of greater overall benefit to the child. The off-set was also structured to prevent undue economic consequences for the child. (5) There was no error in the motion judge deciding not to allow the appellant to bifurcate the liability and penalty phases of the contempt motion. Given the appellant's pattern of non-compliance, and the consequences to the respondent and their daughter, it was open to the motion judge to impose the penalty immediately.
[Doherty, Pepall and Huscroft JJ.A.]
C. Wagman, for the appellants.
D. Winer, for the respondent
Keywords: Lease Assignment, Legal Assignment, Equitable Assignment, Failure to Give Written Notice, Joinder, Prejudice, Conveyancing and Law of Property Act, s 53(1), Credibility, Collateral Fact Rule, Negative Inferences, Procedural Irregularity
The appellants, Amadeus Blazys and Luisa Blazys, were husband and wife. Mister Twister is Mr. Blazys' company. The respondent, Landmark Vehicle Leasing Corp. ("Landmark") alleged that one or more of the appellants leased 3 vehicles from Ross Wemp Leasing Inc. and that subsequently Ross Wemp Leasing assigned the leases to Landmark. Landmark successfully sued for arrears owing under each of the leases.
The appellants appealed from that judgment. The appellants also challenged the trial judge's findings on credibility, alleged procedural irregularities in the trial, and the trial judge's finding that one of the vehicles, a Mercedes-Benz, was sold at a commercially reasonable price.
If the appellants did not receive written notice of the assignments, should Landmark have named Ross Wemp Leasing as a party in the action?
Did the trial judge err with regard to rulings on credibility, procedure, and his finding that the Mercedes-Benz car was sold at a commercially reasonable price?
Appeal dismissed. Costs of the appeal to Landmark in the amount of $10,000, inclusive of disbursements and applicable taxes.
Section 53(1) of the Conveyancing and Law of Property Act requires "express notice in writing" to the debtor. As such, Ross Wemp Leasing did not assign the leases to Landmark in law. Ross Wemp Leasing did, however, assign the leases to Landmark in equity, as an equitable assignment does not require any notice, let alone written notice (Bercovitz Estate v Avigdor).
DiGuilo v Boland requires that the assignor of a chose in action be joined in the assignee's claim against the debtor when the debtor has not received written notice. However, the assignee's failure to join the assignor does not affect the validity of the assignment or necessarily vitiate a judgment obtained by the assignee against the debtor.
The joinder requirement is intended to guard the debtor against a possible second action by the assignor and to permit the debtor to pursue any remedies it may have against the assignor without initiating another action. Where the assignee's failure to join the assignor does not prejudice the debtor, the court may grant the relief in rule 5.03(6), whereby the court may by order relieve against the requirement of joinder.
In this case, the trial judge found that Mr. Blazys, and effectively all of the appellants, gained actual notice of the lease assignments very shortly after the assignments were made and well before Landmark sued. Armed with actual, albeit not written, notice of the assignment, the appellants could fully protect themselves against any prejudice from Landmark's failure to join Ross Wemp Leasing. The appellants' failure to bring a motion to add Ross Wemp Leasing speaks loudly to the absence of any prejudice caused by Landmark's failure to join the assignor. The lack of joinder did not prejudice the appellants and should have had no impact on the trial judgment.
With regard to issues of credibility, a party triggers the collateral fact rule when, after closing its own case, it seeks to call rebuttal evidence to contradict a witness' testimony on a collateral matter. Cross-examination on a collateral matter does not trigger the rule. The scope of that cross-examination is limited by the requirements of relevance and other rules applicable to cross-examination. The collateral fact rule has nothing to do with the scope of cross-examination. The cross-examination of Mr. Blazys in respect of his alleged prior lies under oath did not offend the collateral fact rule. The trial judge did not err in finding that Mr. Blazys' inability to explain conflicting evidence undermined his credibility.
With regard to counsel's submissions that the trial judge erred in failing to draw negative inferences from Landmark's failure to call certain witnesses and failure to produce certain documents, the Court held that these arguments invite the Court to retry the case, and that the Court cannot and does not do that.
With regard to procedural irregularities, the appellants' submission that Landmark's late delivery of relevant documents, the failure to fulfil at least one undertaking, and the factual errors in its Statement of Claim was disregarded. There was no prejudice from the alleged irregularities.
Finally, there was no evidence that $9000 was not a commercially reasonable sale price for the Mercedes. Moreover, Landmark was entitled to sell the vehicle at whole sale price under the terms of the lease. Landmark was not obligated to sell vehicle at retail price.
[Hoy A.C.J.O, Sharpe and Benotto JJ.A.]
L. Favreau and S. Mathai, for Her Majesty the Queen in Right of Ontario
M. Verner and S. Labbé, for the Attorney General of Quebec
S. Johnston and O. O'Kelly, for the Attorney General of Canada
W. J. Sammon and A. Estabrooks, for the respondents
Keywords: Endorsement, Tort, Vicarious Liability, Negligence, Amended Claim, Degree of Control, Cooper v. Hobart, Duty of Care, Proximity
Edward and Eileen Kassian, both 77 years old, were driving through Cornwall Island where Mohawk land straddles the provinces of Ontario and Quebec and borders New York State. While stopped at a stop sign, they were struck by a driver who was being pursued at high speed by the Akwesasne Mohawk Police Service (the "AMPS"). They were killed instantly – as was the driver. Their estate and family members brought an action against the AMPS and others including the Attorneys General of Ontario, Quebec and Canada. The allegation against Ontario and Quebec was based on vicarious liability for the negligent actions of the officers involved in the high speed chase.
Ontario and Quebec brought a motion for summary judgment seeking dismissal of the action against them. The respondents also brought a motion to amend their pleadings by: (1) adding a claim for direct negligence against Ontario, Quebec and Canada on the basis that they had failed to implement recommendations in an Audit Report prepared in 1991 in connection with the AMPS, and (2) alleging that the police cruisers used by officers of the AMPS were beneficially owned by Ontario, Quebec and Canada.
The motions judge dismissed the summary judgment motion of Ontario and Quebec and allowed the amendments to the claim in part. The decisions were upheld by the majority of the Divisional Court. Ontario, Quebec and Canada appealed with leave of this Court.
Holding: Appeal allowed.
1. Were Ontario and Quebec vicariously liable for the police officers?
2. Can amendments be made to the claim?
1. The respondents' claim against Ontario and Quebec for vicarious liability is based upon a quadripartite agreement (the "Agreement") between the Mohawk Council of Akwesasne, Ontario, Quebec and Canada. The Agreement provided for the funding of a policing service in Akwesasne. The preamble to the Agreement provides that "the Mohawks of Akwesasne shall have an autonomous and independent policing service and that such service shall be provided by the AMPS in keeping with the needs of the public safety aspirations of the Mohawks of Akwesasne".
The decision of the motions judge, upheld by the Divisional Court, was that a trial was required to determine the nature of the relationship created by the Agreement. The Court of Appeal held that the majority of the Divisional Court erred in the application of the law of vicarious liability to the facts of this case and decided that on a correct application of the law of vicarious liability, there is no genuine issue for trial in this case.
The law of vicarious liability was articulated by the Supreme Court of Canada in K.L.B. v. British Columbia, 2003 SCC 51,  2 S.C.R. 403. The court held that to succeed in a claim for vicarious liability, a plaintiff must establish that: 1) The relationship between the tortfeasor and the person against whom liability is sought is sufficiently close to make a claim for vicarious liability appropriate; and 2) The tort is sufficiently connected to the tortfeasor's assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise.
An important factual consideration includes the degree of control exercised by the person or organization sought to be held liable and the tortfeasor. The Court of Appeal agreed with the approach taken by the dissenting judge to determine the nature of the relationship between the AMPS and the governments. She examined the terms of the Agreement and concluded that it did not create a relationship that is sufficiently proximate between Ontario, Quebec and the police officers to justify the imposition of vicarious liability. Ontario and Quebec were too remote from the tortfeasors to be acting on their behalf. The tort cannot reasonably be regarded as a materialization of risks inherent in the "enterprises" of Ontario and Quebec. Since the terms of the Agreement do not create a relationship that is sufficiently close or controlling to justify the imposition of vicarious liability, there is no genuine issue requiring a trial, and the appeal is allowed on this ground.
2. The respondents sought to amend their claim to allege that the audit called for corrective intervention to ensure police standards were met, and that the failure on the part of the governments to do so constituted direct negligence, which caused or contributed to the deaths of the Kassians. The analysis of the dissenting judge is correct. After considering the applicable jurisprudence (Cooper v. Hobart,2001 SCC 79,  3 S.C.R. 537), she concluded that the governments were too far removed from the day-to-day conduct of the officers of the AMPS to owe a private law duty of care to particular individuals. The harm to the respondents was not reasonably foreseeable and the relationship between the governments and the AMPS was not sufficiently close to impose a duty of care. Although the defendant governments are under a general duty to ensure adequate and effective police services in Akwesasne, and have some broad general powers in furtherance thereof, we agree with the dissenting judge that these broad powers and duties to the public at large do not give rise to private law duties of care to particular individuals.
The Court of Appeal also agreed with the dissenting judge that claims alleging negligence against public authorities should be examined at the pleading stage to determine whether there is any possibility a duty of care can be found to exist. Since no duty of care is owed in the present case, the claim cannot succeed. The appeals of Ontario and Quebec are allowed and the action against them is dismissed.
[Doherty, Lauwers and Huscroft JJ.A.]
C. M. Campbell and S. J. Lakhani, for the appellant
B. N. Radnoff, for the respondent
Keywords: Endorsement, Jurisdiction to Order Conditional Sentences, Civil Contempt, Rules of Civil Procedure, r. 60.11., Criminal Code, s. 742, Costs
Criminal Law Decisions
[Watt, Brown and Roberts JJ.A.]
L. Beechener, for the appellant
G. MacDonald, for the respondent
Keywords: Endorsement, Criminal Law, Reasonable Apprehension of Bias, Committee for Justice and Liberty v. National Energy Board, R. v. Zheng, Misapprehension of Evidence, R. v. Morrissey, KGB statements, R. v. K.G.B, Criminal Sentencing, R. v. Ling
Shakib Siddiqi was born in Afghanistan and moved to India with his parents at age 16. At 29 years old, he moved to Canada. He was convicted of assault and two counts of assault with a weapon: he had pushed his 73-year old aunt to the floor and hit his 17-year old daughter with a piece of wire and with a laptop computer. He sought to appeal his convictions and his sentence of nine months' incarceration.
1. Did the trial judge demonstrate a reasonable apprehension of bias which rendered the trial unfair?
2. Did the trial judge misapprehend the aunt's evidence?
3. Did the trial judge err in his use of the daughter's KGB statement to the police?
Holding: Appeal from conviction is dismissed. Leave is granted to appeal the sentence, but the appeal from sentence is dismissed.
1. Did the trial judge demonstrate a reasonable apprehension of bias which rendered the trial unfair?
The court quoted the Supreme Court of Canada's decision in Committee for Justice and Liberty v. National Energy Board for the legal test regarding a reasonable apprehension of bias: "What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?"
The Court rejected the appellant's submission that Crown counsel had pursued a line of questioning "aimed at exposing a cultural basis for the Appellant's actions and for the reluctance of [the daughter and aunt] to testify against him." The appellant's assertion was not supported by the transcript. During the course of her evidence-in-chief, the appellant's daughter testified that her parents' desire to have boys was a "cultural thing," but they were content with what they had "regardless of traditional beliefs." The Crown then asked how her parents would view calling the
police to deal with a family matter, and the daughter responded that had nothing to do with the family's value system. These questions were not improper.
In his sentencing reasons, the trial judge said in reference to the appellant's daughter, "She was under restraints of being the daughter of the accused and cultural restraints and familial restraints..." The trial judge also used the term "between a rock and a hard place" to describe the difficulty the appellant's daughter had testifying against her own father. The Court held that there was no cultural dimension to his use of the phrase. The Court noted the responding officer's observations of the daughter, which were panicked and fearful of her father. Moreover, people of all cultures likely will find it difficult to testify against their own family in a criminal trial.
Although the trial judge observed that when the daughter gave her KGB statement to the police she swore on the Qur'an but affirmed when she gave her evidence at trial, nothing in the trial judge's decision indicated greater weight of the KGB statement because it had been under oath.
The trial judge discounted the appellant's wife's statement that "overall he's a good person." The trial judge stated in his reasons for sentence, "I find that she, based on her daughter's testimony, that she too is constrained by marriage, culture and ethnicity." The Court stated that the trial judge's comments must be read in the context of his overall analysis of the evidence and information relating to mitigating factors. The sentencing reasons demonstrate that the trial judge discounted the wife's description of her husband because she had told her daughter, according to statements to police, to excuse her father's conduct.
Finally, with the respect to the trial judge's mention of the "Afghan community or any other community" in his sentencing discussion about denunciation and general deterrence, the Court concluded that it was not in reference to the specific community of the appellant but the more general community at large.
When his sentencing reasons are read as a whole, there was nothing to suggest that the trial judge treated the appellant's ethnic origins as a factor in his sentencing analysis: R. v. Zheng.
2. Did the trial judge misapprehend the aunt's evidence?
The only witness called at trial by the appellant was his aunt who denied the appellant had assaulted her. The trial judge put very little weight on the aunt's evidence, stating that she was "an elderly lady, 75 years of age, suffering from depression and admitted issues with her memory and that 'her head is not right'." The Court stated that the trial judge was mistaken in attributing the "not right in the head" comment to the witness. She had not testified as such.
However, the Court rejected that the trial judge had misapprehended the substance of material parts of the aunt's evidence or that his error played an essential part in the reasoning process resulting in a conviction: R. v. Morrissey. Part of the material substance of the aunt's evidence was that her memory was poor – she admitted in cross-examination that she had issues
with her memory, as noted by the trial judge in his judgment. The trial judge did not misapprehend the substance of the aunt's evidence.
3. Did the trial judge err in his use of his daughter's KGB statement to the police?
The trial judge admitted into evidence a statement the appellant's daughter had given to the police on the day they were called to the family home. The trial judge preferred the evidence the daughter gave to the police to that she gave at trial. In reaching that conclusion, he relied on the the manner in which she gave her statement to the police as compared to her reluctance to give evidence against her father at trial.
In R. v. K.G.B., the Supreme Court of Canada expressly stated that when determining the appropriate weight to be given to a KGB statement, a trier of fact could take into account "the demeanour of the witness at all relevant times (which could include making the statement, when
recanting at trial, and/or when presenting conflicting testimony at trial)." The Court was not persuaded that disproportionate weight was placed on demeanour in relying on the KGB statement.
Regarding sentencing, the court rejected the appellant's submission that the trial judge's reasoning was tainted by the use of cultural stereotypes. It also rejected the submission that the trial judge had not considered the appellant's status as a first time offender.
The Court stated that the trial judge had identified as an aggravating factor the appellant's lack of remorse, which is an error of law absent unusual circumstances, pursuant to R. v. Ling. However, in accordance with the totality principle, the Court held that the global sentence of nine months was a fit sentence for three assaults in the domestic context.
[Strathy C.J.O., Laskin and Brown JJ.A.]
P. M. Southey, G. Sinclair and P. Hajecek, for the appellant
S. O'Brien and A. Darrach, for the respondents
A. Nosko, for the intervener Chief Electoral Officer
M. J. Freiman and J. Madhany, for the intervener Canadian Civil Liberties Association
B. van Niejenhuis and J. Safayeni, for the intervener British Columbia Civil Liberties Association
Keywords: Voting Rights of Non-Resident Canadian Citizens, Legislative Objectives, Canadian Charter of Rights and Freedoms, ss. 1 & 3, Canada Elections Act, Citizenship Act, Sauvé v. Canada (Chief Electoral Officer), R. v. Oakes
[Simmons, Tulloch and Huscroft JJ.A.]
J. Pakulski, in person
D. Sheppard, duty counsel for the applicant
H. J. Graham, for the respondents
Keywords: Criminal Law, Trafficking, Extradition, Judicial Review of the Minister of Justice, Canadian Charter of Rights and Freedoms, ss. 1, 6(1) & 7, Extradition Act, s. 44(1)(a), European Convention on Human Rights and the Convention on the Rights of the Child
[Doherty, Gillese and Brown JJ.A.]
M. A. Johnston and M. B. Day, for the appellant
G. MacDonald, for the respondent
Keywords: Endorsement, Factual Errors, Material Misapprehension of Evidence, Credibility
[Hoy A.C.J.O., Feldman and Rouleau JJ.A.]
R. B. Carew, for the appellant
J. A. Gorda, for the respondent
Keywords: Endorsement, Conditional Sentences Terms, Criminal Code, s. 742.3(1)
[Watt, Brown and Roberts JJ.A.]
C. A. Avery, for the appellant
G. MacDonald, for the respondent
Keywords: Endorsement, Sentencing, Sentencing Objectives, Sentencing Credit, Pre-Disposition Custody, Aggravating Factors, Youthful Offenders, Criminal Code, ss. 719(3) and (3.1).
[Doherty, Gillese and Brown JJ.A.]
A. Moustacalis and D. Goldbloom, for the appellant
M. Rahman, for the respondent
Keywords: Judicial Review, Extradition, Principles of Fundamental Justice, Abuse of Process, Double Jeopardy, Erroneous Findings of Fact, Canadian Charter of Rights and Freedoms, Extradition Act
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