Thursday, May 28, 2015


Plea Negotiations in Criminal Matters Subject to Settlement Privilege

R. v. Delchev, 2015 ONCA 381:

[22]       The appellant asks this court to find that the evidence of the plea bargaining discussion was admissible for the purpose of alleging abuse of process by the Crown. In my view, while the evidence of the discussion is subject to settlement privilege, I agree with the appellant that the trial judge erred in holding no exception to that privilege applied. The evidence of the discussion should have been admitted for the purpose of the appellant’s abuse of process application.
(b)         Is the discussion protected, prima facie, by settlement privilege?
[24]       Settlement privilege is a class privilege, creating a “prima facie presumption of inadmissibility”: Sable Offshore Energy Inc. v. Ameron International Corp.,2013 SCC 37, [2013] 2 S.C.R. 623, at para. 12.  Settlement privilege applies only if the following conditions are met:
(1)     A litigious dispute must be in existence or within     contemplation.
(2)     The communication must be made with the   express or implied intention that it would not be      disclosed to the court in the event negotiations           failed.
(3)     The purpose of the communication must be to        attempt to effect a settlement. [A.W. Bryant, S.N.         Lederman & M.K. Fuerst, Sopinka, Lederman &           Bryant: The Law of Evidence in Canada, 4th ed.           (Markham: LexisNexis Canada, 2014), at p. 1039; citations omitted.]
[25]       The appellant takes issue with the third of these requirements. He argues the offer was not made for the purpose of achieving settlement or compromise, but rather “with some other object in view and from wrong motives”: Pirie v. Wyld (1886), 11 O.R. 422 (H.C.).  
[26]       While the Crown’s offer was unusual, I am not prepared to infer that resolving the appellant’s charges was not at least some part of the purpose of the offer. Settlement does not have to be the only purpose of a settlement negotiation in order for privilege to apply. It is not uncommon for a resolution offer to include an agreement that an accused will testify for the Crown in another matter. The resolution discussion here was arranged so that the Crown could make an offer of settlement, albeit a highly unusual one. All the parties involved understood that a settlement discussion was occurring. 
[27]       Settlement privilege applies to the discussion and the evidence from the discussion is prima facie inadmissible on the abuse of process motion. However, based on the circumstances of the discussion and the content of the offer, I would conclude the evidence is admissible as an exception to settlement privilege.  I will explain.

Wednesday, May 27, 2015

Condominium title held in trust for purchaser

Simcoe Vacant Land Condominium Corporation No. 272 v. Blue Shores Developments Ltd., 2015 ONCA 378:

(ii)          The principles of real estate law give rise to an equitable interest

[46]       The common law has long recognized that a valid contract for the purchase and sale of land gives rise to a trust relationship, with the purchaser acquiring a beneficial interest in the property: Jessel M.R. summarized this principle in Lysaght v. Edwards (1876), 2 Ch. D. 499 at p. 506:

[I]t appears to me that the effect of a contract for sale has been settled for more than two centuries … [T]he moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser…

See also Anne Warner La Forest, Anger and Honsberger Law of Real Property, 3d ed., loose-leaf (Toronto: Canada Law Book, 2014), ch. 11 at p. 52; Anthony Duggan, "Constructive Trusts from a Law and Economics Perspective" (2005) 55 U.T.L.J. 217, at p. 218. 

[47]       The trust relationship, known as "equitable conversion", has been described as "[p]ossibly the oldest, and certainly the most frequent, use of the constructive trust": Robert Chambers, "Constructive Trusts in Canada" (1999) 37 Alta. L. Rev. 173, at p. 186.

[48]       This court described the qualified nature of the trust that arises from an agreement of purchase and sale in Buchanan v. Oliver Plumbing & Heating Ltd., [1959] O.R. 238 at pp. 242 and 244 (C.A.):

The relationship created by such a contract does not entail all the obligations of an ordinary trusteeship. The vendor is not a mere dormant trustee; he is a trustee having a personal and substantial interest in the property, a right to protect, and an active right to assert that interest if anything is done in derogation of it … 


[T]he trusteeship is not from the beginning an absolute one, for it is recognized that the vendor has a personal and substantial interest in the property which he is bound to protect.

[49]       This principle also applies to condominiums, as Finlayson J.A. observed in Peel Condominium Corp. No. 505 v. Cam-Valley Homes Ltd(2001), 53 O.R. (3d) 1, at para 43:

The developer does not hold the condominium property in trust for the purchaser of the unit, it holds the title to the unit in trust for the prospective purchaser who has executed an agreement of purchase and sale to purchase a unit. The developer's good faith obligation, or duty, is to carry out the terms of the agreement and deliver whatever title the contract between the parties calls for. This obligation or duty is circumscribed by the documentation required by the Condominium Act. The purchaser, for his or her part, has an equitable interest in the unit by virtue of the agreement that is signed; an equitable interest that equity will enforce by specific performance. However, there is no overarching fiduciary duty arising out of the relationship of a vendor and purchaser as such. [Emphasis added.]

Difference Between “Discreet” and “Discrete”

The difference is significant and when confused can lead to hilarious results -- "I am very discrete" suggests "I am quite alienated" as opposed to "I can be trusted with secrets".

"Discreet situations" is suggestive of a True Confessions situation as opposed to isolated incidents!!!!

discreet adj. Showing discernment or judgement in the guidance of one’s own speech and action; judicious, prudent, circumspect, cautious; often esp. that can be silent when speech would be inconvenient. 

discrete adj. Separate, detached from others, individually distinct. Opposed to continuous.

Enjoying the Outdoors!

Specific performance

UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., 2009 ONCA 328 provides a nice summary of when specific performance is available:

 There is no dispute about the applicable legal principles. When fashioning a remedy for a breach of contract, the object is to place the injured party in the position that he or she would have been had the contract been performed. Typically, damages are ordered. However, where damages are inadequate to compensate an injured party for its losses, specific performance may be ordered. Accordingly, specific performance may be ordered where the subject matter of a bargain is unique or irreplaceable because, in those circumstances, damages may be inadequate. The remedy for an anticipatory breach of contract is discretionary. The exercise of discretion requires an assessment of the parties’ conduct and the factual context.