Canada: Court Of Appeal Summaries (June 6 – 10)

Last Updated: June 17 2016
Article by John Polyzogopoulos

Hello everyone. Below are the summaries of this week's civil decisions released by our Court of Appeal. Topics covered include real estate, family law, non-share capital corporations, labour law and leave to extend time to appeal. The most interesting civil decision of the week was in Paton Estate v Ontario Lottery and Gaming Commission. In that case, a law clerk defrauded two estates of millions of dollars and gambled most of it away at OLG casinos. The estates sued the OLG for negligence, unjust enrichment and knowing receipt of trust funds for failing to investigate the source of the law clerk's money and allowing a known addict to continue gambling at its casinos. The claim was struck by the motions judge as disclosing no reasonable cause of action. In a 2-1 split decision, the Court of Appeal set aside the motion judge's decision and permitted the claim to go to trial. It found the claim to be novel and not certain to fail and that it should have the benefit of a full evidentiary record before being decided.

While we normally do not summarize criminal decisions, we have summarized the sentencing decision in R v. Sona because it is of general interest and of interest to those who practice elections law. The accused was convicted under the Canada Elections Act for subverting our democratic process through his participation in the "robo-calls scandal" during the 2011 federal election. He was sentenced to nine months' in prison and twelve months' probation. Appeals from his sentence by both the Crown and the accused were dismissed.

Also of note this week, leave to appeal was granted by the Supreme Court in the Livent case, so the Court of Appeal's decision in that matter from earlier this year will not be the final word.

Have a nice weekend.

CIVIL DECISIONS

Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford), 2016 ONCA 458

[Hoy A.C.J.O., Pardu and Roberts JJ.A.]

Counsel:

Don Morris and T. Andrew Sprung, for the appellants

Matthew Milne-Smith and Bryan McLeese, for the respondent

Keywords: Torts, Negligence, Duty of Care, Anns/Kamloops Test, Pure Economic Loss, Indeterminate Liability, Knowing Receipt of Trust Funds, Constructive Trust, Unjust Enrichment, Unconscionability, Consumer Protection, Consumer Protection Act, Unfair Practices, Unconscionable Representations, Rules of Civil Procedure, R. 21.01, No Reasonable Cause of Action, Novel Claims

Facts:

The appellants are two estates that were defrauded by Ms. Spinks, a law clerk who was addicted to gambling. She spent the majority of the stolen funds at a casino in Ontario. The appellants sued the Ontario Lottery and Gaming Corporation ("OLGC"), alleging knowing receipt of trust funds, unjust enrichment, and negligence. Their statement of claim was struck by the motions judge on the grounds that the action disclosed no reasonable cause of action and clearly could not succeed.

Issues:

  1. Did the motion judge err in striking the claim at the pleadings stage?

Holding: Appeal allowed.

Reasoning (majority-Pardu and Roberts JJ.A.]):

  1. Yes. The motion judge erred in striking the claim. Correctness is the standard of review for determining whether the claim should have been struck. Judges should allow claims to proceed unless they are patently unreasonable. The factual allegations in the statement of claim were in some instances not clearly linked to the causes of action, but this is not fatal to the claim. While the appellants' claim was not certain to succeed, the claim was not certain to fail, particularly if the statement of claim is read generously.

On the allegation that the OLGC knowingly received trust funds, a stranger to a trust may incur liability if it receives trust property for its own benefit, has knowledge of facts that would put a reasonable person on inquiry, but fails to inquire as to the possible misapplication of trust property. Given the appellants' allegations that the OLGC had knowledge sufficient to put a reasonable person on inquiry but failed to do so, the appellants' claim for knowing receipt of trust funds should be allowed to proceed to trial.

Unjust enrichment requires enrichment of the defendant, a corresponding loss by the plaintiff, and the absence of a legal reason for the enrichment. The motion judge held that third parties could not advance a claim for unjust enrichment unless the gambler also had that right. The motions judge failed to consider that the legal reason behind the OLGC acquiring the stolen funds as a bona fide purchaser for value without notice could have been vitiated on the grounds of unconscionability. The statement of claim pleads that the OLGC received an "unconscionable benefit", a claim that would not necessarily fail. Additionally, the remedy of constructive trust may be imposed where required by good conscience in situations where unconscionable unjust enrichment occurs. This is a possible outcome at trial. The appellants could also rely on the Consumer Protection Act, which may assist consumers who are not reasonably able to protect their own interests.

Regarding the negligence claim, the appellants alleged that the OLGC owed them a duty of care and that they acted negligently by permitting the clerk to continue gambling. The motion judge held that third parties could not advance a claim for negligence unless the gambler also had that right. He found that the pleadings did not establish reasonable foreseeability and proximity between casinos and problem gamblers. He also found that imposing liability in this instance could create a policy problem of indeterminate liability. The majority disagreed with the motion judge's view that case law in Ontario establishes that there is no duty of care owed by casinos to gamblers. The motion judge made findings of fact on this issue that were premature, given that this was a pleadings motion. The majority also found that it was too early in the proceedings to determine that the issue of indeterminate liability could arise from recognizing a duty of care. It might be difficult but not impossible to establish a duty of care in this case.

Reasoning (dissent-Hoy A.C.J.O):

  1. No. The judge did not err in striking the claim and the appeal should be dismissed. When considering a novel claim on a motion to strike, a judge must evaluate the claim in the context of the facts pleaded and the available jurisprudence. The appellants failed to plead the facts required to justify their claims that the OLGC had or should have had knowledge that Ms. Spinks had a gambling problem.

The pleaded facts were not capable of supporting the inference that the gambled funds were obtained through breach of trust. A generalized possibility of breach of trust is insufficient to trigger a duty to make inquiries with a bank.

On the issue of unjust enrichment, the motion judge correctly concluded that the OLGC had a legal reason for retaining the gambled funds, and properly held that the OLGC had no notice of the fraudulent activity. The appellants cannot rely on the doctrine of unconscionability to vitiate the OLGC's legal basis for retaining the gambled funds, as the appellants did not plead any facts supporting the position that the OLGC's conduct was unconscionable or outside the normal course of business. Hoy A.C.J.O. disagreed with the majority's view that the Consumer Protection Act could have assisted the appellants, as there is no authority for the propositions that permitting a problem gambler to gamble is either an "unconscionable representation" or an "unfair practice".

On the claim of negligence, Ontario law has not determined that a casino owes no duty of care to those it identifies as problem gamblers, but this duty of care has not been rejected outright. It was foreseeable that a failure to prevent problem gambling in general might lead to loss. The appellants' claim has no prospect of success in the face of the relevant jurisprudence. The appellants are not proximate to the OLGC, as the appellants' claim fails to disclose any interaction between them and the OLGC, particularly given that the claim is for pure economic loss. It was not reasonable for the OLGC to have considered the appellants when managing their affairs. Hoy A.C.J.O. disagreed with the majority's view that it was too early in the claim to dismiss it due to policy concerns of indeterminate liability. It was reasonable for the motion judge to make this determination during the pleading stage. Recognizing a duty of care to anyone connected to problem gamblers would result in indeterminate liability, as this class would be too large.

Ontario Refrigeration And Air Conditioning Contractors Association v. United Association of Journeymen and Apprentices of the plumbing and pipefitting industry of The United States and Canada local 787, 2016 ONCA 460

[Feldman, Gillese and Brown JJ.A.]

Counsel:

Ronald Lebi, for the appellant

Richard J. Charney and Pamela Hofman, for the respondent

Keywords: Labour and Employment, Labour Relations Act, 1995, Arbitrations, Jurisdiction

Facts: The Labour Relations Act, 1995 allows parties in a collective bargaining dispute to have their dispute determined by an arbitrator appointed by the Minister of Labour. This appeal considers the scope of jurisdiction of the arbitrator.

Relevant to this appeal, the Ontario Refrigeration and Air Conditioning Contractors Association ("ORAC") and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787 (the "Union"), engaged in collective bargaining and were unable to agree on changes to the wage and benefits packages for employees.

The Union gave notice, pursuant to s. 150.4 of the Act, that it required the matters in dispute between them to be decided by arbitration. However, ORAC and the Union disagreed about the scope of the arbitrator's jurisdiction. ORAC believed that the arbitrator's jurisdiction was restricted to the Greater Toronto Area (GTA), while the Union asserted that the arbitrator had the power to make a province-wide award.

Issues:

  1. What is the appropriate standard of review regarding the arbitrator's determination of the scope of his jurisdiction?
  2. Did the Divisional Court err in setting aside the arbitrator's determination regarding the scope of his jurisdiction?

Holding: Appeal allowed.

Reasoning:

  1. Reasonableness is the presumptive standard of review for decisions of specialized administrative tribunals (Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654).
  2. The Divisional Court was wrong in setting aside the arbitrator's decision on the scope of his jurisdiction. In doing so, it had applied its own interpretation of ss. 150.1 to 150.4 of the Act rather than apply a reasonableness standard to the arbitrator's decision.

The arbitrator considered the scope of his jurisdiction within the broader context in which the dispute had arisen. The parties' province-wide collective agreement had expired and they were unable to agree on certain terms of the renewal agreement. The arbitrator recognized that if his award were limited to the GTA, he "would essentially divide the collective agreement into two bargaining units with two ultimate agreements, contrary to the practice and agreement of the parties to maintain one province-wide unit."

The arbitrator was entitled to consider that limiting his jurisdiction to the GTA would leave him powerless to determine the full scope of the parties' collective bargaining dispute. He was also entitled to consider that such a limit on his jurisdiction would split the bargaining unit in two and ultimately lead to two collective agreements. This would fracture the parties' bargaining structure and the bargaining unit established by the Ontario Labour Relations Board under the Act. As such, the arbitrator's determination was reasonable.

Farnsworth v Chang, 2016 ONCA 442

[Rouleau, Pardu and Benotto JJ.A.]

Counsel:

  1. Joseph and R. Kniznik, for the appellant/respondent by way of cross appeal
  2. Bowles and S. Kennedy, for the respondent/appellant by way of cross-appeal

Keywords: Family Law, Net Family Property, Equalization, Family Law Act, s. 18, Matrimonial Home, Contingent Tax Liability, Income from Excluded Property, Oliva v. Oliva, 12 R.F.L. (3d) 334, [1988] O.J. No. 165 (C.A.), Spousal Support, Compensatory Support, Divorce Act, Security for Support, Indexing of Support, Pre-Judgment Interest

Facts:

The parties had been married for 32 years. They separated in February 2009. By then, they were both 68 years old and each had net family property of over $2 million. Their divorce application was heard in 2014. Following a twelve-day trial, the trial judge awarded the wife an equalization payment of $388,643 and periodic spousal support of $4,000 per month, reviewable on the happening of certain events. The trial judge referred to the evidence as "a tangled web of financial affairs." Their several real estate properties had been acquired through a combination of savings and inheritances. Although they had the financial capacity to retain an expert to collect, organize and analyze their financial material, they relied on their own testimony in support of their claims. A complicating factor was the prolonged and bitter estate litigation between the husband and his siblings taking place in Hong Kong. The wife asserted that the husband will receive substantial wealth from this estate, generating an income of $1.5 million. The wife was undergoing cancer treatment during the time of separation. Both sides appealed.

Issues:

(1) Did the trial judge err in concluding that one of the wife's properties, 7 Resort Lane, was not a matrimonial home?

(2) Did the trial judge err by denying the husband a contingent tax liability deduction from his net family property?

(3) Did the trial judge err by ordering that the husband pay $4,000 a month in support payments?

(4) Did the trial judge err by not awarding the wife pre-judgment interest, security for support, or indexing of support?

(5) Did the trial judge err in how he dealt with income from excluded property used to make mortgage payments on that same property?

(6) Did the trial judge err by not adding back the interest portion of the mortgage payments?

(7) Did the trial judge err in rejecting the wife's claim for compensatory support?

Holding: The appeal and the cross-appeal are dismissed.

Reasoning:

(1) No. In 2002, the wife purchased 7 Resort Lane, a property next door to the small resort that the couple had already owned. The parties each contributed approximately $55,000 to the purchase price. In 2005, the wife moved into 7 Resort Lane and the husband moved from Ottawa to live at the resort property next door. The wife testified that she moved into this property in 2005 after an argument with the husband and they never cohabited after that date. The husband argues that, up until February 2009, he thought their marital relationship was continuing and 7 Resort Lane was their matrimonial home, as defined in s. 18 of the Family Law Act. The trial judge excluded the property from the wife's net family property after she returned the husband's $55,000 contribution to the purchase price. There was no error in this result.

(2) No. The taxes relate to income from properties tied up in the proceedings involving estate lands. These lands, together with the tax obligation, will likely be shared with his siblings when the dispute is resolved. There is no basis to interfere with the trial judge's disposition.

(3) No. The trial judge considered the objectives of spousal support under the legislation and jurisprudence and made no error of fact or law in his decision to award of support.

(4) No. The court agreed with the trial judge that this was not an appropriate case for pre-judgment interest. There was also no basis to require the husband, at the age of 68, to obtain life insurance to secure the support payments, particularly when the wife had significant assets of her own. Additionally, in light of the review clause, the trial judge correctly found that it would not be appropriate to order an indexing of the support payments.

(5) No. The husband received rental income from excluded properties which was used to pay the mortgage on those properties. The trial judge determined that a portion of the rental income increased the value of the property. He calculated that $133,000 was the amount by which the mortgage principal had been reduced and added this amount to the husband's net family property, as contemplated by Oliva v. Oliva.

(6) No. The trial judge's calculations were grounded in the evidence and disclosed no error.

(7) No. The trial judge reviewed the relevant provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the leading jurisprudence and the factual basis for the wife's support claims. He correctly concluded that the non-compensatory support awarded to the wife satisfied all her claims for support.

Freed (Yorkville) Ltd. v. High Value Consultants Limited, 2016 ONCA 444

[Cronk, Blair, and Pardu JJ.A.]

Counsel:

Harvin D. Pitch and Adam Brunswick, for the appellant

Michael R. Kestenberg, for the respondent

Keywords: Real Estate, Contracts, Agreements of Purchase and Sale of Land, Failure to Close, Forfeiture of Deposits, Summary Judgment

Facts:

In October, 2012, Freed agreed to purchase a property from High Value for $9 million, subject to a vendor take-back mortgage ("VTB") of $4.5 million. The Agreement of Purchase and Sale (the "APS") was amended several times over a period of almost two years of negotiations, with a final closing date set for July 25, 2014. The transaction ultimately failed to close due to an alleged breach of the Secondary Financing Amendment. Both parties brought competing motions for summary judgment related to the return, or non-return, of the $1.2 million in deposits paid by Freed prior to the failed closing. Summary judgment was ultimately granted to High Value and the deposits were forfeited. Freed appeals that judgment.

Issues:

Did the motion judge err in finding that High Value was entitled to retain the deposits from the aborted transaction?

Holding: Appeal dismissed.

Reasoning:

No. The motion judge interpreted the APS and related documentation properly, and made no error of law. The interpretation of the 'Secondary Financing Amendment' was of particular issue to Freed, but the court ultimately concurred with the motion judge that when High Value agreed to vary the prohibition against secondary financing, it did so under strict terms. The strict terms were that financing would be permitted only where the secondary lender agreed to subordinate its rights (including a standstill) in favour of High Value's rights under the VTB. High Value's rights under the VTB were to include its broadly protective rights under the Escrow Deed Provision and its right to enjoy and protect a potential increased purchase price under the Escalator Clause. There is nothing commercially unreasonable about this interpretation.

Chandra v Canadian Broadcasting Corporation, 2016 ONCA 448

[MacFarland J.A. (In Chambers)]

Counsel:

R. Bennet and J. Figliomeni, for the moving party R. Chandra

L. Lonsdale and G. Kerr, for Canadian Broadcasting Corporation, C. O'Neil-Yates and L. Burgess

Keywords: Civil Procedure, Extension of Time to Appeal, Rizzi v Mavros

Facts:

In January 2006, the CBC broadcast a three-part news segment entitled, "The Secret Life of Dr. Chandra." As a result of the broadcast, the moving party, Dr. Chandra, sued the CBC and journalists O'Neill-Yates and Burgess for libel and invasion of privacy. The trial continued for some 54 days until the verdict of the jury was received on July 24, 2015. The jury concluded, by their answers to the questions posed, that although the broadcast complained of was defamatory of the moving party, the words used in the broadcast were true. They also concluded that there was no intrusion upon seclusion. Accordingly, the action was dismissed. No notice of appeal was filed within 30 days of July 24, 2015. The moving party now seeks an extension of time to file one. The notice seeking an extension of time was filed October 21, 2015.

Issues:

(1) Should an extension of time to file an appeal be granted to the moving party?

Holding: Motion dismissed.

Reasons:

(1) No. The test the moving party must meet in order to be granted an extension of time to file a notice of appeal is succinctly set out in this court's decision in Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16:

(a) whether the appellant formed an intention to appeal within the relevant period;

(b) the length of the delay and explanation for the delay;

(c) the merits of the appeal;

(d) any prejudice to the respondent; and

(e) whether "the justice of the case" requires it.

The court went through each step of the test from Rizzi and concluded that Chandra's request for an extension should be denied because the test was not met:

(a) Dr. Chandra did not form an intention to appeal within the 30-day period. The evidence he tendered in this respect was equivocal and contradictory.

(b) There was no satisfactory explanation for the delay.

(c) There was no merit to the appeal. When considering the merits of the appeal, it is not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 13. In the court's view, the moving party failed to meet even this low threshold. The procedural complaints of Dr. Chandra as to the conduct of the trial by the trial judge regarding certain evidentiary rulings and his charge to the jury had no merit.

(d) Here, the prejudice to the responding parties if an extension is allowed is that they would lose the finality of the jury's verdict. In light of Dr. Chandra's conduct, granting the extension of time would put at even greater risk the ability of the responding parties to enforce the trial costs award.

(e) The justice of the case does not require that the extension of time be granted. Dr. Chandra was not candid with the court. He misrepresented the nature of his representation by counsel. He did not give any credible explanation for why he did not file a notice of appeal within the 30-day appeal period. He knew that there was a deadline but ignored it and proceeded on the basis that when he was ready, he would simply apply for and receive an extension of time. He is a sophisticated litigant. He was represented by experienced counsel who were taking instructions from him on a myriad of related issues – yet no notice of appeal was filed in time.

The Polish Alliance of Canada v. Polish Association of Toronto Limited, 2016 ONCA 445

[Laskin, Lauwers and Roberts JJ.A.]

Counsel:

Bernie Romano, for the appellants

Bogdan A. Kaminski, for the respondent

  1. Patrick Shea, for the Receiver and Manager, Collins Barrow Toronto Limited

Keywords: Corporations, Non-Share Capital Corporations, Membership, Withdrawal, Notice of Meeting

Facts:

The proceedings arise out of a longstanding dispute between The Polish Alliance of Canada ("PAC") and the individual appellants, who are present and former members of Branch 1-7 of PAC. The dispute arose when the appellants caused Branch 1-7 to withdraw from PAC, taking the branch assets with it. The assets included shares of Polish Association of Toronto Limited ("PATL") and real estate held by PATL and others. The trial Judge determined that the shares and the property were held in trust for the members of Branch 1-7; that the withdrawal of Branch 1-7 was invalid; and that the individual appellants had resigned and could not re-apply for PAC membership or membership to any branch.

Issues:

(1) Was Branch 1-7's withdrawal from PAC valid and effective?

(2) Does PAC hold legal title to the shares of PATL?

(3) Can the members who resigned re-apply for membership to PAC?

Holding: Appeal Allowed, in part

Reasoning:

(1) No. It was open to the trial judge to find, as he did, that insufficient notice had been given to members of Branch 1-7 of the withdrawal vote and that less than one-third of the members attended. Unanimous consent was required and it was not provided.

(2) Yes. In light of the finding on issue #1 above, the appellants agree that the trial judge's order was correct in this respect.

(3) Yes, if it were necessary to do so. The trial Judge erred in interpreting the evidence on withdrawal. Not all individual appellants gave notice of resignation, and those that did, did so on behalf of Branch 1-7 and not as individuals. In addition, since the withdrawal of Branch 1-7 was found to be invalid, it follows that the appellants remain members of PAC. PAC should process any new membership applications in good faith and reasonably quickly.

SHORT CIVIL ENDORSEMENTS

Raba v. Wronecki 2016 ONCA 457

[Feldman, Rouleau and Huscroft JJ.A.]

Counsel:

Tomasz Raba, acting in person

Jon Bradbury, for the the respondents

Keywords: Endorsement, Administrative Law, Landlord and Tenant Tribunal, Reasonable Apprehension of Bias

Trang(Re) 2016 ONCA 441

[Strathy C.J.O., Pepall and Hourigan JJ.A. ]

Counsel:

Anita Szigeti, for the appellant

Moiz Rahman, for the respondent the Attorney General for Ontario

Janice Blackburn, for the respondent the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Administrative Law, Mental Health, Ontario Review Board, Independent Assessment, Unanimity

Treats International Franchise Corporation v. 2247383 Ontario Inc. 2016 ONCA 429

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

Michael Kleinman, for the appellants

Martin Diegel, for the respondents

Keywords: Endorsement, Summary Judgment, Interlocutory Order

Scamurra v. Sandy Scamurra & Sons Limited, 2016 ONCA 446

[Strathy, Lauwers and Benotto JJ.A.]

Counsel:

Michael N. Freeman, for the appellants/respondents by cross-appeal

Albert Campea, for the respondent/appellant by cross-appeal

Keywords: Endorsement, Costs

Kukemueller v. Ontario (Community Safety and Correctional Services), 2016 ONCA 451

[Laskin, Lauwers and Roberts JJ.A.]

Counsel:

Heather MacKay and Farzin Yousefian, for the appellant

Gerrit Kukemueller, acting in person

Jacki Kukemueller, acting in person

Keywords: Endorsement, Administrative Law, Ministry of the Attorney General Act, Section 8

1442810 Ontario Inc. v. Sarohia, 2016 ONCA 456

[Feldman, Rouleau and Huscroft JJ.A.]

Counsel:

Cameron Fiske, for the appellants

John R. Hart, for the respondents 1442810 Ontario Inc. and Ahmed Mansury

Ron E. Folkes, for the respondents Baljit S. Gill and Re/Max Realty

Keywords: Endorsement, Real Estate, Real Estate and Business Brokers Act, s. 33

CRIMINAL DECISIONS

R v. Sona, 2016 ONCA 452

[Feldman, MacPherson and Lauwers JJ.A.]

Counsel:

Howard L. Krongold, for Michael Sona

Nick Devlin and Jinnifer Conroy, for the Attorney General of Canada

Keywords: Election Law, Criminal Law, Canada Elections Act, ss. 281(g), Preventing Elector from Voting, "Robo-calls Scandal", Sentencing, R. v. Brown

Facts:

Mr. Sona, the Communications Director for a local Conservative Party of Canada candidate, was a major and active participant in the "robo-calls scandal" that took place during the 2011 federal election. The scheme involved sending 7,676 automated telephone calls on the day of the election telling voters that their polling station had been changed to a different location. The intent was to send voters to a false location to prevent or discourage them from voting. An estimated 150 to 200 voters attended the false polling station as a result of the calls. Mr. Sona was convicted of preventing or endeavouring to prevent an elector from voting in a federal election contrary to ss. 281(g) of the Canada Elections Act (the "CEA"). He was sentenced to nine months imprisonment and twelve months' probation. Mr. Sona appeals on the grounds that the sentence was too harsh, and the Crown appeals the sentence on the grounds as it was too lenient.

Issues: Did the sentencing judge err by imposing an unfit sentence?

Holding: Both appeals dismissed.

Reasoning:

No. The sentence imposed by the judge was appropriate.

Mr. Sona contended that the sentencing judge overemphasized the principles of denunciation and general deterrence in his reasons. The Court finds that the sentencing judge was well aware of and applied all the relevant sentencing principles. As this was a very rare case where a political worker engaged in premeditated and serious activities designed to deprive several thousand electors of their right to vote, denunciation of his choice was an important sentencing objective. The Court further rejected the argument that the sentencing judge erred by dismissing rehabilitation as a sentencing factor. The sentencing judge took account of the many mitigating factors relating to Mr. Sona, including his youth and absence of a criminal record.

The Crown submitted that the custodial sentence imposed of nine months was inadequate in the face of serious electoral fraud. The Court rejected this argument, citing once again that the sentencing judge considered all relevant sentencing principles. The Court further rejected the Crown's submission that it should enunciate an appropriate sentencing range for electoral fraud cases under the CEA. The Court refused to do so, partly because this was the very first and only prosecution ever under the CEA and it was therefore impossible to look to precedent to create an appropriate sentencing range. A particular offence flows from the context and experience of an individual's actions. It would also be wrong to fix a range that precludes the imposition of a non-penitentiary sentence, as it is impossible to know anything about the variety of offenders and offences that may give rise to convictions under the CEA.

R. v. Bloomfield, 2016 ONCA 447

[Sharpe, Watt and Brown JJ.A.]

Counsel:

Boris Bytensky, for the appellant

Gillian Roberts, for the respondent

Keywords: Criminal Law, Publication Ban, Prostitution, Instructions to Jury, Unreasonable Verdict, Mens Rea

R. v. Bos, 2016 ONCA 443

[Gillese, Watt and Tulloch JJ.A.]

Counsel:

Timothy E. Breen, for the appellant

Alexander Alvaro, for the respondent

Keywords: Criminal Law, Arson, Burden of Proof, Discreditable Conduct Evidence, Motive, R. v. Johnson 2010 ONCA 646, R v Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, R v Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, R v. Hay 2013 SCC 61, [2013] 3 S.C.R. 694

R. v. Rienguette, 2016 ONCA 450

[Strathy C.J.O., Pepall and Hourigan JJ.A.]

Counsel:

P. Berk Keaney and Michael J. Ventury, for the appellant

David Freisen, for the respondent

Keywords: Criminal Law, Impaired Driving, Criminal Code, s. 839(1)(a), R. v. Mohamed

R. v. Luckese, 2016 ONCA 461

[Strathy C.J.O.]

Counsel:

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Keywords: Endorsement, Criminal Law, Manslaughter, Failure to Provide the Necessaries of Life, Criminal Code, s. 679(1)(a), Bail, Reasonable Prospect of Success, R. v. McRae

R v Scantlebury, 2016 ONCA 453

[Lauwers J.A.]

Counsel:

Kimberley Scantlebury, acting in person

Robin Squires, amicus

Grace Choi, for the respondent

Keywords: Endorsement, Criminal Law, (Note to Draft: What's the charge?) Provincial Offences Act, Compulsory Automobile Insurance Act, Highway Traffic Act, Due Diligence Defence

R v. Weese, 2016 ONCA 449

[Watt, Tulloch and Huscroft JJ.A.]

Counsel:

Kyle Lee Weese, appellant in person

Enzo Rondinelli, duty counsel

Michael Bernstein, for the respondent

Keywords: Criminal Law, Second Degree Murder, Aggravated Assault, Witness Testimony, R. v. Hall, R. v. Gladue

R. v. Crespo (Publication Ban) 2016 ONCA 454

[Laskin, Cronk and Miller JJ.A.]

Counsel:

Najma Jamaldin, for the appellant

Mary-Ellen Hurman, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Admissibility, Consent, Honest But Mistaken Belief, Immigration and Refugee Protection Act, R. v. Ewanchuk, R. v. Garciacruz, R v. Esau

R. v. R.L. (Publication Ban) 2016 ONCA 455

[Strathy, Gillese and Pardu JJ.A.]

Counsel:

Tushar Pain and Lucas Rebick, for the appellant

Dena Bonnet, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Misapprehension of Evidence, Uneven Scrutiny of Evidence , R. v. Lohrer, R. v. T.(T.), R. v. Aird

R. v. Ranger

[Sharpe, Watt and Brown JJ.A.]

Counsel:

Leo Adler, for the appellant

Vanita Goela, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Prescription Drugs, Acquittal

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Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions