Wednesday, September 17, 2014

Solicitors' liens and charging orders

Mauldin v. Cassels Brock & Blackwell LLP, 2014 ONCA 641:

[33]       Hryniak submits that McCarthys has a charge on the funds held in court pursuant to s. 34(1) of the Solicitor's Act:

Where a solicitor has been employed to prosecute or defend a proceeding in the Superior Court of Justice, the court may, on motion, declare the solicitor to be entitled to a charge on the property recovered or preserved through the instrumentality of the solicitor for the solicitor's fees, costs, charges and disbursements in the proceeding.

[34]       Hryniak submits that it was only by virtue of McCarthys' efforts on the contested motion before Doherty J.A. that he was able to mortgage his home and post the funds with the Accountant. Counsel characterizes these actions as "instrumental" in preserving the funds.

[35]       Generally, courts have been predisposed to exercise their discretion in favour of charging orders. In Taylor v. Taylor (2002), 60 O.R. (3d) 138, this court explained why, at para. 29:

Historically, courts have exercised their discretion liberally in favour of charging orders, which are said to benefit both the lawyer and the client, since they encourage lawyers to represent clients who are unable to pay as their cases progress.


[39]       Second, an order under s. 34(1) is discretionary. In The Law of Costs, loose-leaf (Rel. August 2010), 2d ed. (Toronto: Canada Law Book, 1998), Mark M. Orkin discusses this aspect of s. 34(1) at p. 3-99:

As appears from the wording of s. 34 the order is discretionary.  A court will determine firstly whether the property was subject to a solicitor's lien, that is, whether it was preserved through the instrumentality of the solicitor, and then whether in the circumstances of the case a lien should attach.  In exercising its discretion a court should balance the equities. [Citations omitted.]

See also: Taylor v. Taylor, at para. 34.

[40]       In Foley v. Davis (1996), 93 O.A.C. 114 (Ont. C.A.), at para. 2, this court also noted the discretionary nature of s. 34 (1):

We have considered s. 34 of the Solicitors Act, and cases cited to us by the appellant. We can find no per se rule that, absent improper conduct, the solicitor is always entitled to a charge in first priority on funds "salvaged" by the efforts of the solicitor. In our view, while the solicitor will be entitled to a first charge on such funds in the normal course, the court retains a discretion to order otherwise.

Tuesday, September 16, 2014

Implied terms of contract

Rankin Construction Inc. v. Ontario, 2014 ONCA 636:

[29]       Terms may be implied in a contract based on: (1) custom or usage; (2) legal incidents of a class or type of contract; or (3) the presumed intention of the parties, where the term is necessary "to give business efficacy to a contract or as otherwise meeting the 'officious bystander' test as a term which the parties would say, if questioned, that they had obviously assumed": Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711, at p. 775; see also M.J.B. Enterprises, at para. 27; Double N Earthmovers, at para. 30; Martel, at para. 81. Any implied terms must fit and be the necessary implication of the express terms; if there is any evidence against the proposed term, it cannot be implied:M.J.B. Enterprises, at para. 29. In my view, none of the criteria for an implied term prohibiting investigation of allegedly non-compliant bids is made out in this case.

Sunday, September 14, 2014

Rule against perpetuities

The rule against perpetuities says: 

Any valid interest must vest not later than twenty-one years after the death of some life in being at the creation of the interest.

 For the purposes of the rule, a life is "in being" at conception. 

Recognizing a life "in being" is a life span of an individual plus nine months (at the most) the rule limits vesting to say 90 years (at highest) plus 21 years or about 111 years. 

Rule in Hodge's Case

The Rule in Hodge's Case (1838), 168 E.R. 1135 is generally taken to say:

"In a case made up entirely of circumstantial evidence, before the accused could be found guilty, the jury must be satisfied, not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion, than that the prisoner was the guilty person." 

The Court of Appeal in R v Bui 2014 ONCA 614 makes it clear this does not mean only conclusions based on proven facts but more generally in a purely circumstantial case the accused is entitled to a full reasonable doubt analysis:

[24]       I agree with the appellant that the trial judge erred in law in holding that, when assessing circumstantial evidence, conclusions alternative to the guilt of the accused must arise from "proven facts". Further, in my view, the trial judge's reasons demonstrate that this error infected his reasoning process.

[25]       In R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 15, this court explained that, since the decision of the Supreme Court of Canada in R. v. Cooper, [1978] 1 S.C.R. 860, it has been clear that the rule in Hodge's Case is not "an inexorable rule of law in Canada". Further, the rule's reference to requiring "proven facts" to ground alternative explanations is problematic because there is no obligation on an accused to prove any facts. Rather, an accused is entitled to an acquittal if there is "a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a "reasonable inference" from "proven facts"": Robert, at paras. 17, 21 and 25.

Saturday, September 13, 2014

We seem to be very near the bleak choice between War and Shame. My feel­ing is that we shall choose Shame, and then have War thrown in a lit­tle later on even more adverse terms than at present.

Winston Churchill

Accused not to be disbelieved merely because they want to be acquitted

R v DeJeage: 2014 NUCJ 21

(i). The Defendant's motivation to lie

[434] In arriving at a decision on the credibility and reliability of the evidence of the Defendant, the Crown urges the Court to take into consideration the Defendant's motivation to lie. The Crown argues that the Defendant will be inclined to hide from the truth in order to escape the personal consequences that would flow from a conviction and or sentencing.

[435] This same argument might be made of any citizen who is charged with a criminal offence. The Crown would have this Court automatically discount a Defendant's testimony because he or she is charged and is therefore presumed to be seeking to avoid punishment for a crime or crimes that he or she has committed.

[436] This Court emphatically repudiates this argument. Such an approach, if accepted, would undermine the presumption of innocence that has been the philosophical cornerstone of the criminal justice system for hundreds of years. The presumption of innocence must be the starting point of the Court's deliberations. Nothing less will suffice.