Friday, November 25, 2016

Litigation Privilege - the SCC speaks

Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52:

Litigation privilege is a common law rule that gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. This privilege has sometimes been confused with solicitor‑client privilege, both at common law and in Quebec law. However, since Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, it has been settled law that solicitor‑client privilege and litigation privilege are distinct: the purpose of solicitor‑client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process; solicitor‑client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends; and, finally, litigation privilege applies to unrepresented parties and to non-confidential documents, and is not directed at communications between solicitors and clients as such. 

                    Although litigation privilege is distinguishable from solicitor‑client privilege, it is nevertheless a class privilege and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation. Thus, any document that meets the conditions for the application of litigation privilege will be protected by an immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies. 

                    Litigation privilege is subject to clearly defined exceptions, not to a case‑by‑case balancing test. In the context of privileges, the exercise of balancing competing interests is associated with case‑by‑case privileges, not class privileges. The exceptions that apply to solicitor‑client privilege are all applicable to litigation privilege. These include the exceptions relating to public safety, to the innocence of the accused and to criminal communications. They also include the exception recognized in Blank for evidence of the claimant party's abuse of process or similar blameworthy conduct. Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances. 

                    Finally, litigation privilege can be asserted against third parties, including third party investigators who have a duty of confidentiality. It would not be appropriate to exclude third parties from the application of this privilege or to expose the privilege to the uncertainties of disciplinary and legal proceedings that could result in the disclosure of documents that would otherwise be protected. Any uncertainty in this regard could have a chilling effect on parties preparing for litigation, who may fear that documents otherwise covered by litigation privilege could be made public. 

Wednesday, November 23, 2016

Sentence Appeals

It's the end of a criminal trial and you have been convicted.  The judge gave a sentence and you don't think it's fair.  Can you appeal and get a different sentence? 


If you want a lower sentence you must convince the appeal court that the sentence is "unfit" or unreasonable.

Judges have a wide discretion in sentencing; It is not good enough for you to believe that the judge made just any kind of a mistake.  An appeal will succeed only if a judge made legal error, or did not apply sentencing principles correctly or if the sentence was beyond the appropriate range of sentence for the type of act that you committed.  As you can see there are not a lot of reasons why an appeal on sentence should be allowed.
The grounds that could support an appeal are:
the sentence is excessive, given your background and the circumstances of the offence;
the sentence is illegal; or
there is an error in a principle of sentencing resulted in an unreasonable sentence.
Your appeal won't succeed unless you can show that one of these grounds apply.

If you're arguing that your sentence is excessive, you have to show that other decisions of the Court in similar circumstances gave much lower sentences.  It's not enough to show that other cases gave a lower sentence – your sentence has to be quite out of the range.  Judges know the law of sentencing and what is the normal sentence and so appeals on the basis of excessive sentence seldom succeed.

The Criminal Code is very complex and sets out the punishments that can be imposed; only punishments authorized by the Criminal Code can be imposed. Any sentence that isn't authorized by the Criminal Code is illegal.

Arguing a sentence is illegal is unusual because judges do know what is and is not a lawful punishment – I saw a judge correct a lawyer on a sentencing just last week (the lawyer suggested a two year sentence and the judge pointed out it had to be two years less a day to be legal).  That said, judges are human and sometimes make mistakes.  So, for example, if a judge makes a probation order for four years that is illegal.  Under section 732.2(2)(b) of the Criminal Code a stand-alone probation order cannot be longer than three years.
The most common sentence appeals are based on the argument that the judge made an error in principle and did not impose a proper sentence.  Again, judges seldom make mistakes here but it does happen from time to time.
The principles of sentencing that every judge must consider when imposing a sentence are:
To show the community's disapproval of the unlawful conduct,
To teach a lesson to the offender and to others who might commit a similar crime,
To protect the public,
To rehabilitation of the offender, and
To make amends for harm done to victims or to the community while promoting a sense of responsibility in offenders.

If a judge ignores or puts too much emphasis on one of these principles, the appeal court may consider changing the sentence. Additionally, when dealing with someone of aboriginal background, especially for less serious crimes, a further principle is that the court must consider not sending someone to jail, "with particular attention to the circumstances of Aboriginal offenders".   So, if you have an aboriginal background and the court ignored that fact you may have a ground to appeal you sentence. 

However, the fact that the judge has made an error in applying one of the principles of sentencing doesn't guarantee that the appeal court will change the sentence. You must also convince the court that the sentence is unfit.  It is possible to get the right answer for the wrong reasons!

Friday, November 18, 2016

Failure to comply with CBCA not, standing alone, oppressive conduct

Mennillo v. Intramodal inc, 2016 SCC 51:

There are two elements of an oppression claim. The claimant must first identify the expectations that he or she claims have been violated and establish that the expectations were reasonably held. Then the claimant must show that those reasonable expectations were violated by conduct falling within the statutory terms, that is, conduct that was oppressive, unfairly prejudicial to or unfairly disregarding of the interests of any security holder.

The fact that a corporation fails to comply with the requirements of the CBCA does not, on its own, constitute oppression. What may trigger the remedy is conduct that frustrates reasonable expectations, not simply conduct that is contrary to the CBCA 

Thursday, November 17, 2016


R. v. Clause, 2016 ONCA 859:

[81]        Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.) (2003), 167 O.A.C. 264, [2003] O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the "reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns."

[82]        In R. v. Burke, [1996] 1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible collusion outside the context of similar fact evidence. The court stated, at para. 45:

On the assumption that the evidence is admissible, I am prepared to adopt the more conventional approach which would leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.

[83]        Summarizing the jurisprudence dealing with the possibility of tainting by collusion in the context of the treatment of similar fact evidence, this court stated in R. v. F.(J.), at para. 86, that once evidence is admitted, "the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses" (citation omitted).

Of the Law Societies of Upper Canada and Nunavut

Monday, November 14, 2016

Expired limitation periods and amendment of pleadings

1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848:

[19]        A cause of action is "a factual situation the existence of which entitles one person to obtain from the court a remedy against another person": Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this court in July v. Neal (1986), 57 O.R. (2d) 129 (C.A.), at para. 23.

[20]        In Morden & Perell, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at p. 142, the authors state:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based. [Footnotes omitted.]

[21]        In Dee Ferraro Ltd. v. Pellizzari, this court noted the distinction between pleading a new cause of action and pleading a new or alternative remedy based on the same facts originally pleaded. The appellants had commenced an action against their lawyer claiming damages for breaches of contract, trust and fiduciary duty and for fraud and negligence. The appellants then sought to amend their pleading. This court, in overturning the motion judge's dismissal of the motion to amend, concluded that the proposed amendments, such as claims for a mandatory order and a constructive trust over shares, could be made because they flowed directly from facts previously pleaded. 

[22]        By contrast, a proposed amendment will not be permitted where it advances a "fundamentally different claim" after the expiry of a limitation period: Frohlick v. Pinkerton Canada Ltd. In that case, the court did not permit the plaintiff in a wrongful dismissal action to amend the statement of claim to assert a claim for damages for constructive dismissal on the basis that the limitation period had expired. This court dismissed the appeal. The amendment regarding constructive dismissal related to events that occurred prior to the events described in the original statement of claim that were unrelated to that claim. The defendant was unaware of the new allegations prior to the plaintiff seeking the amendments, and the events were not put in issue or encompassed within the original claim.

[23]        Based on the foregoing, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a "fundamentally different claim" based on facts not originally pleaded.

Of the Law Societies of Upper Canada and Nunavut 

Sunday, November 13, 2016

Sexual Touching Requires True Consent

One important component of sexual assault law is consent. 

Any sexual touching requires that both parties give their consent or voluntarily agree. It can only be given by the persons involved and not by a third party. The relevant time period for determining whether a person consented or not is at the time of sexual contact. Consent is determined by reference to that person's state of mind towards the sexual touching at the time it occurred. The question is whether a person who is capable of consenting wanted the sexual touching to occur with the person it did, in the manner and at the time it did.  That's why someone who is very drunk cannot consent to sex. 

The requirement of consent gives every person who is able to consent control over the sexual touching of their body every time they engage in sexual activity. Consent is about protecting and promoting the sexual autonomy and personal integrity - both physical and psychological - of every individual.

Consent means that a person can change their mind at anytime before or part-way through sexual activity. It gives people the right to limit the type of sexual touching to their body. A person can decide when they will and will not consent. This means a person who engaged in sexual touching on a prior occasion can decide not to have future sexual contact with the same or a different person.  

For consent to be legally valid the person giving consent must be capable at the time sexual touching occurred. Consent must be reasonably informed, conscious and freely given with awareness of the proposed actions and consequences. A person under the age of consent is incapable. A person must be conscious in order to be capable. It is possible for someone to become incapable due to intoxication by drugs and/or alcohol.

Care should be taken from those involved in sexual activity to ensure that consent has been freely given by a capable person in every instance.

Legal determinations as to whether someone consented to sexual touching and whether they had the capacity to consent are made by courts based on applying legal principles to factual circumstances.