Wednesday, July 27, 2016

Mitigation of Damages

Delco Automation Inc. v. Carlo's Electric Limited, 2016 ONCA 591:

[25]        Although a plaintiff is entitled to recover damages for the losses it suffers from the defendant's breach of contract, the extent of those losses may depend upon whether it has taken reasonable steps to avoid their accumulation: Michaels v. Red Deer College (1975), 57 D.L.R. (3d) 386 (S.C.C.), at p. 390. Where, after the breach of a commercial contract, a defendant makes an offer to the plaintiff that would reduce the losses incurred, the plaintiff is generally required to accept a reasonable offer by way of mitigating its damages. However, it is always a question of fact whether it is reasonable for the plaintiff not to accept the breaching defendant's offer: Payzu Ltd. v. Saunders, [1919] 2 K.B. 581 (C.A.), at p. 589; Nashville Contractors Ltd. v. Middleton, [1984] O.J. No. 99 (C.A.).

Of the Law Societies of Upper Canada and Nunavut 

Tuesday, July 26, 2016

Parties have duty to supervise counsel

Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590 ONCA 590:

[22]        As part of its obligation to move its construction lien actions along, the appellant was required to take reasonable steps to supervise its counsel's work to ensure there would be an expeditious determination of the actions on their merits. On a motion to set aside a dismissal order, one would expect a commercial plaintiff like the appellant to file concrete evidence describing the steps it had taken to supervise its counsel's handling of its actions. The appellant did not do so. Given the absence of such evidence, it is understandable the motion judge was not prepared to accept that the assertions of the appellant's controller amounted to an acceptable explanation for a 13-year delay.

Sunday, July 24, 2016

Contempt - Spirit v Form

Chirico v. Szalas, 2016 ONCA 586 raises an interesting point. Contempt can be granted for a breach of the "spirit" of an order . This is hardly new but here the "spirit" has been defined quite broadly; specifically surrender of a dog to a different party was considered to be a breach because both parties were "authorities". The case will be useful for persons trying to enforce orders:

[52] The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para 32.

[53] The test is not in issue. What is in issue is the manner in which the conduct of the alleged contemnor should be analyzed in relation to the requirements of the order.

[54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to "hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice": Boily, at para. 58; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 21.

Friday, July 22, 2016

An accused may discharge counsel at any time and the Court may not block such

It may be the trial will proceed without counsel but that's another issue. 

R. v. Chemama, 2016 ONCA 579:

[58]       An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9; R. v. Amos, 2012 ONCA 334, at para. 19. In exceptional circumstances, the court may appoint an amicus curiae to assist the court where this is necessary to permit the successful and just adjudication of a particular proceeding: Cunningham, at para. 9; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 44.

Of the Law Societies of Upper Canada and Nunavut 

Thursday, July 21, 2016

Retrospective Criminal Laws

R. v. K.R.J., 2016 SCC 31:

Section 11 (i) of the Charter  constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This constitutional aversion for retrospective criminal laws is primarily motivated by the desire to protect the fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11 (i), the new prohibition measures must qualify as “punishment”. In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, this Court developed a twopart test for determining whether a consequence amounts to punishment under s. 11 (i): (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence; and (2) it must be imposed in furtherance of the purpose and principles of sentencing.

This test requires two clarifications. First, while not all measures imposed to protect the public constitute punishment, public protection is at the core of the purpose and principles of sentencing and is therefore an insufficient litmus test for defining punishment. Thus, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11 (i) affords and may qualify as punishment. Second, the s. 11 (i) test for punishment must embody a clearer, more meaningful consideration of the impact a sanction can have on an offender. Doing so enhances fairness and predictability in punishment and is consistent with this Court’s jurisprudence.

Accordingly, the s. 11 (i) test for punishment should be restated as follows: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests. To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public.

Police must take steps to ensure medical treatment for prisoners

R. v. Poirier, 2016 ONCA 582:

[82]        In my opinion, the police have a duty to take reasonable steps to ensure that the accused's safety and security of the person are not compromised as a result of the nature of the search. Reasonable steps can only be taken if the police inform themselves as to the risks of the procedure they are carrying out. 

[83]        I find support for my position in the jurisprudence. In Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 118, McLachlin C.J. and Major J. held that "delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7 of the Charter" since delays in medical treatment can result in serious physical pain, or even death.

Of the Law Societies of Upper Canada and Nunavut