Wednesday, September 2, 2015

Defendant has obligation to move civil litigation case forward

Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 released today says that a defendant has a duty to move a case along. This is a duty that has been unknown in the past - and the decision is of considerable importance:

[53]       While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: 1196158 Ontario Inc., at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list.

Monday, August 31, 2015

Lots of baby bears

Judges may not engage in speculative reasoning or supplement facts based on personal experience

R. v. MacIsaac, 2015 ONCA 587:

[46]       It was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence.  But it was an error of law to draw inferences that did not flow logically and reasonably from established facts, because doing so draws the trial judge into the impermissible realms of conjecture and speculation: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 530-531.

[47]       Where a trial judge has employed speculative reasoning, unless the Crown can demonstrate that the error caused no substantial wrong or miscarriage of justice, the convictions tainted by that error must be quashed: Morrissey, at p. 531.

[48]        The examples of the trial judge’s speculative reasoning cited above were not on peripheral areas; the issues she was dealing with were central to the case and were highly relevant to the determination of whether the Crown had proven the offence beyond a reasonable doubt. For example, evidence of the appellant’s intentions as he skated toward the complainant was critical in deciding if this was a premeditated hit or an accidental collision.  The evidence of defence witnesses was rejected in whole or in part based upon the trial judge’s understanding of hockey strategy and her views regarding on-ice injures, unaided by any expert testimony. While an isolated example of speculative reasoning may not have sufficed to render the trial unfair, I agree with the submission of the appellant that the trial judge rejected evidence that was capable of raising a reasonable doubt based on this series of speculative conclusions, and that this reasoning directly lead to her decision to convict.

[49]       The appellant was entitled to a determination of his guilt or innocence based on the evidence at trial, not on the hockey experience of the trial judge or her understanding of the injuries to be expected from various types of on-ice collisions. An accused in a criminal proceeding must make any number of strategic decisions based upon the evidence that is presented at trial. He or she bases decisions about what questions to ask, what evidence to lead, whether to testify and what arguments to advance, based on the state of play of the trial. A trial judge ought not to supplement and supplant the evidentiary record, except in very limited situations where taking judicial notice is permitted. 

[50]       This was not a case in which judicial notice could be taken of the disputed facts. A court can take judicial notice of a fact only if it is: (1) so notorious or generally accepted that no reasonable person would disagree; or (2) capable of immediate demonstration by reference to sources of indisputable accuracy (R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, citing R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.)). Due to concerns about possible prejudice to the accused, the Supreme Court has set strict limits on the use of judicial notice to determine adjudicative facts in criminal trials: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 61-62. Those concerns have been echoed more recently by this court: R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 37-42.

Sunday, August 30, 2015


In Canada we have a constitutionally protection freedom to say whatever we want.  

The Constitution says “Everyone has the following fundamental freedoms …  (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. 
But that freedom of expression is not without limits.  Some things are forbidden.  So, for example, child pornography or hate speech is criminal even if there is a component of free expression involved.
Another limit on free speech is defamation. 

You cannot go around telling lies about other people that hurt their reputation.  A more formal legal definition says that defamation is speaking or printing or communicating “words tending to lower the plaintiff in the estimation of right-thinking members of society generally”.

Defamation is sometimes a very easy trap to fall into.  If you hear some nasty gossip about someone, say a local school teacher or Minister, it’s very tempting to repeat the gossip on Facebook.  But doing so is a very bad idea and can lead you into a lawsuit for significant cost and aggravation.

There are two types of defamation.  Oral defamation is slander and written defamation is libel.  In both cases there is no defamation unless the wrongful words are passed on to somebody other than the person defamed.  So, if you call me a thief to my face and no one else hears what you said, that may be very hurtful but it’s not slander.  But if you come into a room full of people and say “James Morton is a thief” that is slanderous.  The idea is that I know I am not a thief and if no one else heard the statement there is no harm done to me.  But if the defamatory comments are “published”, that is the technical word for being passed on to others, there is real harm caused.

Opinion can be defamatory if the opinion is such as to hurt someone’s reputation.  Courts look at whether the statement supposed to be opinion is asserting a statement of verifiable fact; if it does then the “opinion” can be defamatory. So saying “In my opinion James Morton is a thief” doesn’t get you off the hook for defamation.

There are some defences to defamation.   

First, truth is a defence.   If you say “James Morton is a thief” even if  you say it to cause me harm you have an absolute defence if you can prove I am, in fact, a thief.  But as a defence truth is dangerous – if you claim truth and fail you have just increased the damages against you enormously.
Second, anything said in Court is immune from a claim for defamation – you may be held liable for giving false evidence but if someone in Court swears an oath and says “James Morton is a thief” I cannot sue them for slander.  Similarly anything said in the legislature is immune from suit. 
Third, if you, in good faith, tell someone something because you think they need to know it you may have a defence.  That last one can be a bit dicey but its available for people, say, giving poor employment references.

Finally, if the defamation is in a newspaper or the media generally you have to give days’ notice notice of your intention to sue soon after learning of the defamation and you have a short period to sue after learning of learning of the defamation.

The best idea is to think before spreading gossip!

Thursday, August 27, 2015

Agency, election and merger

1196303 Inc v Glen Grove Suites Inc., 2015 ONCA 580:

[80]       Election and merger are separate, albeit related, concepts. Election refers to a decision to pursue either the agent or the principal for a single cause of action. Once a plaintiff has definitively elected to sue either principal or agent, he or she may not later choose to pursue the other party. Whether a party has elected is a question of fact, and is often difficult to prove. Merger, by contrast, occurs once judgment has been granted against either agent or principal. Once judgment is given against one, the cause of action against the other disappears, having "merged" in the judgment. The underlying rationale is again that there is only one cause of action. See Cameron Harvey and Darcy MacPherson, Agency Law Primer, 4th ed. (Toronto: Thomson Reuters, 2009), at pp. 111-15; Peter Watts and F.M.B. Reynolds, Bowstead & Reynolds on Agency, 20th ed. (London: Sweet and Maxwell, 2014), at 8-115.

[81]       However, when an agent contracts with a third party on behalf of a disclosed principal, the agent may bind itself personally as well as binding the principal. As Justice Brandon stated in Bridges & Salmon v. Owner of The Swan, [1968] 1 Lloyd's Rep. 5 (U.K.H.C. Prob. Div.), at p. 12, the question of whether both agent and principal are liable on the contract depends on the objective intention of the contracting parties:

That intention is to be gathered from (1) the nature of the contract, (2) its terms and (3) the surrounding circumstances.… The intention for which the Court looks is not the subjective intention of [agent] or of [the third party]. Their subjective intentions may differ. The intention for which the Court looks is an objective intention of both parties, based on what two reasonable businessmen making a contract of that nature, in those terms and in those surrounding circumstances, must be taken to have intended.

See also Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683, at p. 698.

Wednesday, August 26, 2015