Monday, February 8, 2016


Immigration Consequences of Criminal Convictions

I recently went to a fund raising lunch at a Church. The lunch raised funds to help resettle in Canada refugees fleeing from civil unrest in Syria. This event got me thinking of the concerns that are sometimes heard about "foreign criminals".
Some who raise these concerns are asking in good faith, some, perhaps are motivated by racism, but regardless Canada has a very strong system ensuring that new arrivals in Canada who do commit criminal offences will not be allowed to stay. More to the point, perhaps, is the statistical fact that overall immigrants are less likely to commit criminal offences that other Canadians. That said, a "foreign criminal" in Canada will not be here long.
There are three categories of people in Canada:
Canadian Citizens;
Permanent Residents; and
Foreign Nationals.
Each is dealt with differently in the event of a criminal conviction.
Generally, Canadian citizens cannot be deported due to a criminal conviction. Some dual citizens may be subject to losing their citizenship in very rare circumstances but this is most unlikely to be seen as a practical matter. Canadian citizens can be extradited for crimes committed in certain foreign countries – so if you murder someone in England you may be sent there for trial – but that does not affect citizenship rights or your right to return to Canada after serving any sentence abroad.
Permanent residents are people who are not citizens of Canada but have been granted status to enter and remain in Canada permanently. They may apply for Canadian citizenship. A permanent resident may be removed from Canada if convicted of an offence for which the possible penalty is ten years or more or if sentenced to a term of incarceration of greater than six months. Broadly put permanent residents can be subject to removal only for serious crimes if:
- The permanent resident is sentenced to six months or more in prison;
- The permanent resident is sentenced for a crime for which the maximum sentence could be ten years or more, even if the permanent resident gets a shorter sentence; and
- The permanent resident is found to be a member of organized crime, such as gang activity or smuggling.
There is, in general, no appeal from a removal order. That said, if the offence is one for which the possible penalty is greater than ten years but the actual term imposed is less than six month the permanent resident can seek relief from the Immigration Appeal Board on the basis of humanitarian grounds or some legal or factual error. Otherwise there is no appeal.
Foreign nationals are temporary residents of Canada – visitors, students or people on a work visa – as well as convention refugees and refugee claimants. Basically, a foreign national can be deported on conviction for most criminal offences. Even a relatively minor offence can render a foreign national subject to removal from Canada.
As can be seen there is something of a ladder in terms of being removed from Canada for committing criminal offences. Visitors to Canada, even if they have a work visa or are here as students, are subject to being removed for virtually any criminal offence. Permanent residents have considerably more protection but are still subject to removal for all but minor offences. Canadian citizens are given almost total protection and cannot be removed except in quite extraordinary circumstances.

Friday, February 5, 2016

Two Bears

Constructive Dismissal

Cousins. v QEC, 2016 NUCJ 1:
[50] The onus is on the plaintiff to prove, on a balance of probabilities, that QEC’s demotion of the plaintiff constituted his constructive dismissal.
[51] The law pertaining to the constructive dismissal of an employee by an employer was outlined by the Supreme Court of Canada in Farber at para 33:
Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms -- the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice.
[52] This constructive dismissal principle was recently applied in Potter v New Brunswick (Legal Aid Services Commission), 2015 SCC 10 (CanLII), [2015] 1 SCR 500 [Potter].
[53] The Court, in its legal analysis, must apply a two-part test:
1. Has a breach of contract been proven?
2. If the answer to the first question is yes, the Court must then determine whether that breach substantially altered an essential term or terms (Farber at paras 34, 37).
[54] The analysis is an objective one: would a reasonable person, at the time the breach occurred and in the same circumstances as the employee, have felt that an essential term of the employment contract had been substantially changed? (Farber at paras 39, 60).

Thursday, February 4, 2016

General principles concerning prescriptive easements

Barbour v. Bailey, 2016 ONCA 98:

[56]       To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:

i.             There must be a dominant and servient tenement;

ii.            The dominant and servient owners must be different persons;

iii.           The easement must be capable of forming the subject matter of a grant; and

iv.          The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.

See Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at paras. 18-19.

[57]       With respect to the fourth criterion, what is "reasonably necessary" will depend on the nature of the property and the purpose of the easement. In Depew v. Wilkes, at para. 24, this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner, citing with approval the following instructive passage from Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985), at p. 927:

What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.

[58]       However, not every use will be "reasonably necessary" for the purposes of establishing a right to an easement. There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner: Depew v. Wilkes, at para. 20.  Examples of uses that courts have found to be "reasonably necessary" usually involve a very practical purpose, such as parking spaces or driveways: see e.g. Depew v. Wilkes; and Carlini Estate v. Hammoud, 2011 ONCA 285.  

[59]       This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement:  see In re Ellenborough Park, [1956] 1 Ch. 131 (Eng. C.A.), at pp. 175-76, cited with approval by this court in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 204.

[60]       In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years. See Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), at p. 383; and 1043 Bloor Inc. v. 171404 Ontario Inc., 2013 ONCA 91, 359 D.L.R. (4th) 688, at paras. 57, 59. 

[61]       Specifically, the use as of right of the person seeking to establish an easement cannot be at the will and pleasure of the owner of the property over which the easement or right-of-way is sought to be established. Instead, the use must be as if the claimant had the right to the easement or right-of-way. See Henderson v. Volk, at p. 383; 1043 Bloor Inc., at para. 59; and Mason v. Morrow (1999), 114 O.A.C. 194, at para. 5.

[62]       Acquiescence by the owner of the servient property to the use of the person seeking to establish an easement must be more than good neighbourliness. In those instances where the owner of the servient tenement can readily be taken to know of the notorious use of his property, if he makes no objection, then his acquiescence to that use, sufficient to establish a prescriptive title, can readily be inferred: Henderson v. Volk, at p. 384.

[63]       Finally, to acquire a prescriptive easement under the Real Property Limitations Act, a claimant's use must be established to run for 20 years immediately before "some action wherein the claim or matter to which such period relates was or is brought into question":  s. 32.[3] 

Of the Law Societies of Upper Canada and Nunavut 

Medical Malpractice

You break your leg. You go to the hospital or health centre and get your leg out in a cast. But your leg never heals properly and you can't walk properly anymore. Can you sue the health provider for doing a bad job?

Perhaps, but claims against health practitioners are, quite properly, difficult to prove.

Medicine is not an exact science and health practitioners, no matter how skilled, cannot promise renewed good health.

That said, a health practitioner must exercise a reasonable and acceptable standard of care, competence and skill in attending upon the patient If that is not done and, as a result, the patient suffered harm then there is a claim for malpractice.

Four elements must be proven for any claim for malpractice to be successful:

1. There must be a duty of care owed towards the patient.

Accepting a patient creates an obligation to attend upon the patient as circumstances reasonably permit. The health practitioner is not expected to be correct every time but is expected to exercise reasonable care, skill, and judgment.

2. There must be a breach of that duty of care.

In determining whether a health practitioner has breached a duty of care toward a patient, the courts consider the standard of care and skill that might reasonably have been applied by a colleague in similar circumstances. In this regard, the courts have stated that "Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability." Perfection is not expected or required – reasonable care and skill is the standard. To prove the duty of care other health care practitioners are inevitably needed to let the Court know what is the current practice for reasonable health care practitioners.

3. The patient must have suffered some harm.

To establish malpractice, it is not enough for the patient to show that there has been a breach of a duty of care. The patient must also show some harm or injury. So, for example, a failure to diagnose something obvious may well be a breach of a duty of care but if the error is caught before the illness gets worse there may well be no harm caused.

4. The harm must be directly related or caused by the breach of the duty of care.

Suppose a patient is brought to a health centre with gunshot wounds. The patient is given the wrong treatment and dies. That sounds like a good case for malpractice but if the patient would have died anyway the claim will likely fail. If the health practitioner made errors but the errors did not cause any harm to the patient the the patient has no claim for malpractice.

As can be seen bringing a successful malpractice claim is difficult. And that makes sense. Health care practitioners do not guarantee health; they only guarantee to use reasonable care and skill. Health may follow – it usually does – but if not there is a legal claim only if reasonable care and skill is not used and that failure leads to harm.