Canada: Court Of Appeal Summaries (October 5, 2015 – October 9, 2015)

Last Updated: October 19 2015
Article by John Polyzogopoulos

The Ontario Court of Appeal only released two substantive civil decisions this week, along with many more endorsements and criminal law decisions.  The civil cases involved an issue of an alleged conflict of interest of a Vaughan city councillor (no conflict was found), and the re-opening of a trial in light of fresh evidence uncovered by the CBC's show, Marketplace.

We hope you find this service useful and continue to share it with friends and colleagues.  Your comments and feedback are always welcome.

Civil Cases

Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

[Cronk, Lauwers and van Rensburg JJ.A.]

Counsel:
Golam Mehedi, acting in person
R. K. Agarwal and J. Marcus appearing as amicus curiae
D. Smith, acting in person and as agent for all respondents

Keywords:  Contract Law, Rules of Civil Procedure, Rule 59.06, Rule 50.06(2)(a), Motion to Set Aside Trial Judgment, Fresh Evidence, Tsaoussis (Litigation Guardian of) v Baetz, 671122 Ontario Ltd. v Sagaz Industries Canada Inc., Standard of Review, Deference

Facts:

The respondents, 2057161 Ontario Inc. operating as ("Job Success"), is a job placement agency in Toronto. Job Success promised to find the appellant, Golam Mehedi ("Mehedi"), a job that paid $70,000 per year within two months. In return, Mehedi paid Job Success $3,700. Job Success did not find Mehedi a job, so Mehedi sued.

At trial, the judge found that Job Success did not promise Mehedi a job with that salary in that time frame. Mehedi was unsuccessful.

After the trial, CBC's television program Marketplace broadcasted an episode titled "Recruitment Rip-off." The episode exposed a Toronto recruitment agency exploiting vulnerable, unemployed persons by promising to find them jobs with salaries like Mehedi was promised. The business featured in the program showed the defendants promising prospective clients these jobs, and featured a witness as well.

Mehedi wanted to introduce the episode as fresh evidence and was advised to bring a motion before a motion judge of Superior Court under Rule 59.06(2)(a) to set aside the order on the ground of fraud or facts arising or discovered after the order was made. Mehedi brought the motion to introduce the episode and a similar article from the Metro newspaper. The motion judge dismissed Mehedi's motion under Rule 59.06(2)(a) because he believed that the new evidence would not reasonably affect the outcome of the trial. Mehedi was ordered to pay $500 to the defendant.

Mehedi appealed the motion judge's dismissal of his 59.06 motion.

Issues:

(1) Did the motion judge err in dismissing the motion?

Holding:
Appeal allowed. The trial should be re-opened and the matter remitted to trial judge for reconsideration in light of the fresh evidence. All previous cost orders against Mehedi are set-aside, including from the first trial. Mehedi is awarded $2,000 for the costs of this appeal.

Reasoning:
(1) Yes, the motion judge erred in applying the test for setting aside an order under Rule 59.06(2)(a).

The standard of review for a motion judge's decision under Rule 59.06(2)(a) requires considerable deference. The decision should not be altered unless the motion judge erred in principle, misapprehended or failed to take account of material evidence, reached an unreasonable decision, or if the reasons do not set out the judge's reasoning process and reflect a consideration of the main factors.

The test under Rule 59.06(2)(a) is to be applied after the judgement or other order has been issued. The court applied the test from Tsaoussis (Litigation Guardian of) v Baetz (1998), 41 O.R. (3d) 257 ("Baetz"), where the moving party bears the onus to show that all circumstances justify an exception to the rule that final judgments are final. The moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court then evaluates factors like the cogency of the new evidence, delay in moving to set aside the previous judgment and difficulty in re-litigating the issues.

Mehedi met the Baetz test to set aside the trial judgment under Rule 59.06(2)(a) because the new evidence is cogent, credible, and can affect the results at trial if accepted.

The motion judge's reasons for refusing to re-open the trial were inadequate. The motion judge did not describe the proposed new evidence or relate the test to it. He did not explain how the new evidence failed to meet the test.

The amicus curiae submitted that the motion judge erred by applying the test set out in the case of 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59 ("Sagaz") for re-opening a trial. Amicus argued that the judge ought to have applied the Baetz test.

The Sagaz test is: (1) would the evidence, if presented at trial, probably have changed the result? And (2), could the evidence have been obtained before the trial by the exercise of reasonable diligence? It is important to show that the evidence could not have been obtained with reasonable diligence for use at the trial, and if it had, whether it would have an important influence in the result of the case.

The motion judge did not err by applying Sagaz instead of Baetz, but in his application of the test. This case meets both the Baetz and Sagaz tests for re-opening a trial assuming there is any real distinction between the two tests.

Ferri v. Ontario (Attorney General), 2015 ONCA 683

[Cronk, Tulloch and Hourigan JJ.A.]

Counsel:
J. Pape and A. M. Bolieiro, for the appellant
T. Schreiter, for the respondent

Keywords: Municipal Law, Land Use Planning, City of Vaughan, Official Plan, Conflict of Interest, Municipal Conflict of Interest Act, ss.3 and 4(k), Rules of Civil Procedure, Pecuniary Interest, Councillor, Reasonable Elector Test

Facts:

(On appeal from the order of Justice Robert E. Charney of the Superior Court of Justice, dated June 23, 2015)

The appellant is a regional councillor for the City of Vaughan.  His son, Steven Ferri, is an associate at the law firm, Loopstra Nixon LLP, practising in the areas of municipal, development and land use planning law.  Following the adoption of the Vaughan Official Plan by Vaughan City Council, Loopstra Nixon was retained by Antonio Di Benedetto to appeal an aspect of the Plan to the Ontario Municipal Board. Steven Ferri works directly on the Di Benedetto Appeal under the supervision of a partner at Loopstra Nixon.

Pursuant to s.3 of the Municipal Conflict of Interest Act (MCIA), the pecuniary interest of any parent, spouse, or child of a councillor, if known to the councillor, is deemed to be the pecuniary interest of the councillor. If a councillor has a pecuniary interest, direct or indirect, the member shall declare his or her interest and is prohibited from voting.  However, according to ss. 4(k) of the MCIA, where the pecuniary interest of the councillor is so remote in nature that it cannot reasonably be regarded as likely to influence the councillor, s.5 does not apply.

The appellant disclosed and declared an interest under s. 5 of the MCIA with respect to any matter which he knew that Loopstra Nixon was retained.  Given the importance of the Plan, the appellant brought an application to determine whether he could participate in council proceedings with respect to the Di Benedetto appeal without breaching the MCIA. The application judge dismissed the application, holding that Steven Ferri had a pecuniary interest in the Di Benedetto Appeal, and that Steven Ferri's pecuniary interest was neither remote nor insignificant.

Issues:

The appellant argues that the application judge erred in dismissing his application by:
(1) applying an overly broad definition of the term "pecuniary interest" under the MCIA;
(2) conflating the analyses required under ss. 3 and 4(k) of the MCIA; and
(3) disregarding factors relevant to the analysis required under s. 4(k) of the MCIA.

Holding: Appeal Allowed

Reasoning:

The court stated that case law establishes that a "pecuniary interest" under the MCIA is restricted to financial, monetary, or economic interest.  The court also held that what constitutes pecuniary interest sufficient to trigger the provisions of the MCIA is not to be narrowly confined.  Furthermore, the court also ruled in the present case that it is unnecessary to determine whether the appellant has a pecuniary interest in the Appeal because the appellant conceded on the application that Steven Ferri has an indirect pecuniary interest in the outcome of the Appeal.  The court held that having made that concession on the application, the appellant cannot resile from it on this appeal.  On the first point, the court was of the view that any pecuniary interest is so remote or insignificant that it falls within the exception in s. 4(k) and that, the appellant is not required to comply with the requirements of s.5.

The court held that the proper analysis of whether a councillor's pecuniary interest is too remote or insignificant to be reasonably regarded as likely to influence that councillor cannot be premised on the notion that, unless proven otherwise, the councillor is fixed with the same level of proximity and significance as his child. The s. 4(k) analysis must commence afresh and focus on the proximity and significance of the councillor's pecuniary interest in the context of all the circumstances.  The court held that the application judge erred in his approach to s. 4(k) by reading in a rebuttable presumption.

The court stated the test to be applied under s. 4(k) is well established, and asks "would a reasonable elector, being apprised of all the circumstances, be more likely than not to regard the interest of the councillor as likely to influence that councillor's action and decision on the question"? The court held that the application judge's application of the s. 4(k) test lacked analysis, therefore it falls to the appellate court to conduct the required analysis under s. 4(k).  The court held that a reasonable elector apprised of all these circumstances would not conclude that the appellant's deemed interest in the Appeal would be likely to influence his participation in debate or voting on the matter before council.

Civil Case Endorsements

Bishop v The Law Society of Upper Canada, 2015 ONCA 676

[Feldman, Juriansz and Brown JJ.A.]

Counsel:
Richard-Benjamin Bishop, acting in person
G. Hotz, assisting the appellant
J. F. Evans, Q.C., for the respondent

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 21.01(1), Rule 21.01(3), Motion to Strike, No Reasonable Cause of Action, Frivolous and Vexatious, Abuse of Process, Appeal Dismissed

Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 678

[Juriansz J.A. (In Chambers)]

Counsel:
B. Jackman and R. Lockwood, for the moving party
J. Todd and J. Espejo-Clarke, for the responding parties

Keywords: Immigration Law, Deportation Order, Motion to Stay, Urgency,  Immigration and Refugee Board, Immigration and Refugee Protection Act, Habeas corpus, Original Jurisdiction, No Serious Question to be Tried, Motion Dismissed

Criminal Decisions

R v DW (Publication Ban), 2015 ONCA 662

[Strathy C.J.O., MacPherson J.A. and Speyer J. (Ad Hoc)]

Counsel:
B. A. Callender, for the appellant
S. Porter, for the respondent

Keywords: Criminal Law, Appeal of Conviction and Sentence, Assault, Mischief, Property, Failure to Comply with Conditions of Undertaking, Appeal Dismissed

R v Durette (Appeal Book Endorsement), 2015 ONCA 668

[Doherty, Benotto and Miller JJ.A.]

Counsel:
B. Saad, for the appellant
S. Dawson, for the respondent

Keywords: Criminal Law, Controlled Drugs and Substances, Controlled Drugs and Substances Act, s. 5(2), s. 4(1), Criminal Code, s. 354(1)(a), Possession of Cocaine for Purpose of Trafficking, Possession of Property Obtained by Crime, Search and seizure, Warrant, Crown Disclosure, Appeal Dismissed

R v Mohamed (Appeal Book Endorsement), 2015 ONCA 669

[Doherty, Tulloch and Huscroft JJ.A.]

Counsel:
Abdifatah Mohamed, appearing in person
B. Snell, appearing as duty counsel
G. J. Tweney, for the respondent

Keywords: Criminal Law, Records Outstanding, Misconduct While in Custody, Appeal Dismissed

R v Amare, 2015 ONCA 673

[Strathy C.J.O., MacPherson J.A. and Speyer J. (ad hoc)]

Counsel:
N. Jamaldin and P. Genua, for the appellant
S. Shaikh, for the respondent

Keywords: Criminal Law, Controlled Drugs and Substances, Possession of Ecstasy for the Purpose of Trafficking, Charter of Rights and Freedoms, s. 8, s. 9,  Freedom from Arbitrary Detention, Freedom from Unreasonable Search and Seizure, Reasonable Grounds for Arrest, Appeal Dismissed

R v Downes, 2015 ONCA 674

[Strathy C.J.O., MacPherson J.A. and Speyer J. (ad hoc)]

Counsel:
M. Gaspar, for the respondent
J. J. Navarette, for the appellant

Keywords: Criminal Law, Appeal from Sentence and Conviction, Controlled Drugs and Substances, Importing or Exporting Substances, Refusal to Declare Distrial, Reasonable Apprehension of Bias of Juror, Parity Principle, Appeal Dismissed

R v Blake (Publication Ban), 2015 ONCA 684

[Feldman, MacPherson and Miller JJ.A.]

Counsel:
Amy Ohler and Lynda Morgan, for the appellant
Lorno Bolton, for the respondent

Keywords: Criminal Law, Sexual Assault, Charter of Rights and Freedoms, ss. 7, 10(a), 10(b), Voluntary Statements, Right to Counsel, Double Jeopardy, Improper Inducement, Appeal Dismissed

R v Ogiamien, 2015 ONCA 680

[Sharpe J.A.]

Counsel:
Jamil Osai Ogiamien, in person
S. Guthrie, for the respondent

Keywords: Criminal Law, Immigration Law, Robbery, Procurement of Prostitution, Immigration Detention, Extraordinary Remedies, Habeas Corpus, Appeal from Interlocutory Order, Jurisdiction to Hear Appeal, Appeal Dismissed

R v Pannu, 2015 ONCA 677

[Watt, Pepall and Huscroft JJ.A.]

Counsel:
R. Posner, for the appellant, Lovejeet Bains
M. Henein and M. Gourlay, for the appellant, Harneet Pannu
J. J. Wakely, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s. 4(3), Sentencing, Role of Jury, Juror Misconduct, Jury Secrecy, Criminal Code, s. 649(1), Charge to Jury, Post-Offence Conduct, Unreasonable Jury Verdict Test, R v Sinclair, Appeal Dismissed in part

R v Tainsh, 2015 ONCA 679

[Sharpe J.A.]

Counsel:
Kyle A. Tainsh, in person
E. Dann, duty counsel
M. Campbell, for the respondent

Keywords: Criminal Law, Appointment of Counsel, Criminal Code, s. 684, R v Graat, R v Hill, Appeal Dismissed

R. v. Munroe, 2015 ONCA 671

[Strathy C.J.O., MacPherson J.A. and Speyer J. (ad hoc)]

Counsel:
M. Conway, for the appellant
N. Devlin, for the respondent

Keywords: Criminal Law, Possession of Marijuana, Mandatory Minimum, Sentencing, Appeal Allowed

Ontario Review Board

Latouche (Re) 2015 ONCA 675

[Strathy C.J.O., MacPherson J.A. and Speyer J. (Ad Hoc)]

Counsel:
M. Addie, for the respondent Cameron Latouche
S. D. Young, for the respondent Crown

Keywords: Criminal Law, Assault with a Weapon, Mental Disorder, Psychiatric Detention, Absolute Discharge, Fresh Evidence, Threat to Public Safety, Criminal Code, s. 672.81(2.1), Criminal Code, s. 672.73, Appeal Allowed

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