Friday, January 28, 2011

This Week at the Court of Appeal: 11-01-28

Each week, Wise Law Blog reviews key decisions from the Ontario Court of Appeal. Here is this week's offering:

R. v. M.B. A sexual assault case where an uncle was convicted of sexually assaulting his two nieces and his nephew. The defendant appealed both charges (one in relation to his nieces, the other to his nephew).

The Court ordered new trials in relation to both. In regards to the nieces, the Court had multiple concerns. They felt there was evidence that the two nieces had had the opportunity to talk with each other about their experiences and possibly collude or grow confused, and that the court had not given a proper warning that this might have happened. The judge also did not warn the jury that the girls' evidence was self-contradictory in some respects and that the children's evidence should be viewed in that light, which the Court of Appeal found troubling. Finally, they felt that the Crown's closing address, which was vitriolic and inflammatory towards the defendant, was inappropriate and that the trial judge's failure to order a mistrial or order the appropriate corrective instructions to the jury regarding the Crown's rhetoric.

In regards to the nephew, the Crown's case relied heavily on similar fact evidence, and the Court pointed out that under Canadian law the Crown may not rely on issue estoppel to prove its case, overturning the conviction quite simply. Read-the-whole-case rating: 3.

R. v. May. A Crown application to appeal sentences of two young men convicted of robbery. The young men (19 and 21) pled guilty to the charge and were sentenced two years less a day plus three years' probation (Mr. May) and 21 months plus three years' probation (his contemporary, Mr. Whalen). The crime itself was planned. May and two other associates (unnamed) committed a home invasion and threatened to kill the family inside. (Mr. Whalen was the getaway driver and did not enter the home.) At one point during the robbery a gun discharged and killed one of the other two members of May and Whalen's gang.

Both May and Whalen were placed on strict bail for the year and a half preceding the trial, and during that time both men were independently evaluated and found to be proceding very well along a course of rehabiliation and had "turned their lives around," as May in particular came from a bad background and both men had prior offences as youths. The Crown, however, despite recognizing their improvements as citizens, still wished for a stricter sentence.

The Court of Appeal disagreed with the Crown, stating that, although the sentences given to May and Whalen were certainly on the light end of the potential range of sentences available, measuring the need for a retributive sentence versus the need to protect May and Whalen's rehabiliation (which if successful would be extremely valuable) was a difficult task and the judge's final sentences - which were due a reasonable amount of deference in any appeal - were not outside the boundary of reasonableness. Read-the-whole-case rating: 2, if only because this is a somewhat rare sort of appeal for the Court to consider.

Grover v. Hodgins. A Small Claims Court order for a portion of legal fees that the respondents paid to prosecute a civil action relating to a condominium complex. The action was one where Ontario-based owners of the complex, located in British Columbia, agreed to share legal costs of an action related to management of the complex. One set of owners (the Grovers, the appellants) refused to join in the action, but all other owners refused. When the action successfully resolved, the respondents (Hodgins and his wife) brought action against the Grovers for damages arising from the breach of an agreement to contribute to costs, or alternately damages that the Grovers were unjustly enriched. The Small Claims Court judge decided that the breach of contract claim failed, but awarded the damages for unjust enrichment.

The Court of Appeal found that both claims failed. The Court reaffirmed the Small Claims Court decision regarding breach of contract: there was insufficient evidence to demonstrate the existence of binding contract and no moment demonstrated where they could have formed one on an informal basis. As regards the unjust enrichment claim, the Court of Appeal pointed out that unjust enrichment requires benefit conferred, a corresponding loss, and an absence of any juristic reason for the enrichment.

The issue of whether a benefit was conferred was questionable; that the Grovers' condo increased in value following the action was not necessarily relevant, since they had essentially received services, and if a defendant does not want services they do not necessarily benefit from them since they might have preferred to decline the benefit given the choice. Furthermore, the Court stated that the trial judge had incorrectly found a corresponding deprivation, since the defendants had not been deprived - they had paid for legal services and received them. Therefore, there could be no unjust enrichment.

More important than the disposition of the case, however, was that the Court agreed with both parties that Small Claims Court has jurisdiction to consider claims for equitable relief in this manner. (No previous decision of the Court of Appeal has provided binding authority for the ability of a Small Claims Court to consider equitable claims.) The Court stated that the history of the Small Claims Court is one of "progressive development toward providing increased access to justice," found that there was no statutory language explicitly preventing a Small Claims Court from hearing equitable claims matters, and finally decided that interpreting the Courts of Justice Act to say that Small Claims Courts could not hear equitable claims would run counter to the objective of providing citizens with inexpensive access to civil justice. Therefore, the Court held that where equitable claims fell under the Small Claims Court limit of $25,000, the Small Claims Court could hear them. Read-the-whole-case rating: 4 as this is a fairly major step for the Small Claims Court (and for articling students, like this writer, who are able to appear at that Court).
- Christopher Bird, Toronto
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