Friday, November 25, 2016
Wednesday, November 23, 2016
Friday, November 18, 2016
Mennillo v. Intramodal inc, 2016 SCC 51:
There are two elements of an oppression claim. The claimant must first identify the expectations that he or she claims have been violated and establish that the expectations were reasonably held. Then the claimant must show that those reasonable expectations were violated by conduct falling within the statutory terms, that is, conduct that was oppressive, unfairly prejudicial to or unfairly disregarding of the interests of any security holder.
The fact that a corporation fails to comply with the requirements of the CBCAdoes not, on its own, constitute oppression. What may trigger the remedy is conduct that frustrates reasonable expectations, not simply conduct that is contrary to the CBCA.
Thursday, November 17, 2016
R. v. Clause, 2016 ONCA 859:
 Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.) (2003), 167 O.A.C. 264,  O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), 177 C.C.C. (3d) 1,  O.J. No. 3241 (C.A.), at para. 77, the "reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns."
 In R. v. Burke,  1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible collusion outside the context of similar fact evidence. The court stated, at para. 45:
On the assumption that the evidence is admissible, I am prepared to adopt the more conventional approach which would leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.
 Summarizing the jurisprudence dealing with the possibility of tainting by collusion in the context of the treatment of similar fact evidence, this court stated in R. v. F.(J.), at para. 86, that once evidence is admitted, "the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses" (citation omitted).
Of the Law Societies of Upper Canada and Nunavut
Monday, November 14, 2016
1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848:
 A cause of action is "a factual situation the existence of which entitles one person to obtain from the court a remedy against another person": Letang v. Cooper,  1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this court in July v. Neal (1986), 57 O.R. (2d) 129 (C.A.), at para. 23.
 In Morden & Perell, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis Canada Inc., 2014), at p. 142, the authors state:
A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based. [Footnotes omitted.]
 In Dee Ferraro Ltd. v. Pellizzari, this court noted the distinction between pleading a new cause of action and pleading a new or alternative remedy based on the same facts originally pleaded. The appellants had commenced an action against their lawyer claiming damages for breaches of contract, trust and fiduciary duty and for fraud and negligence. The appellants then sought to amend their pleading. This court, in overturning the motion judge's dismissal of the motion to amend, concluded that the proposed amendments, such as claims for a mandatory order and a constructive trust over shares, could be made because they flowed directly from facts previously pleaded.
 By contrast, a proposed amendment will not be permitted where it advances a "fundamentally different claim" after the expiry of a limitation period: Frohlick v. Pinkerton Canada Ltd. In that case, the court did not permit the plaintiff in a wrongful dismissal action to amend the statement of claim to assert a claim for damages for constructive dismissal on the basis that the limitation period had expired. This court dismissed the appeal. The amendment regarding constructive dismissal related to events that occurred prior to the events described in the original statement of claim that were unrelated to that claim. The defendant was unaware of the new allegations prior to the plaintiff seeking the amendments, and the events were not put in issue or encompassed within the original claim.
 Based on the foregoing, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a "fundamentally different claim" based on facts not originally pleaded.
Of the Law Societies of Upper Canada and Nunavut
Sunday, November 13, 2016
One important component of sexual assault law is consent.
Any sexual touching requires that both parties give their consent or voluntarily agree. It can only be given by the persons involved and not by a third party. The relevant time period for determining whether a person consented or not is at the time of sexual contact. Consent is determined by reference to that person's state of mind towards the sexual touching at the time it occurred. The question is whether a person who is capable of consenting wanted the sexual touching to occur with the person it did, in the manner and at the time it did. That's why someone who is very drunk cannot consent to sex.
The requirement of consent gives every person who is able to consent control over the sexual touching of their body every time they engage in sexual activity. Consent is about protecting and promoting the sexual autonomy and personal integrity - both physical and psychological - of every individual.
Consent means that a person can change their mind at anytime before or part-way through sexual activity. It gives people the right to limit the type of sexual touching to their body. A person can decide when they will and will not consent. This means a person who engaged in sexual touching on a prior occasion can decide not to have future sexual contact with the same or a different person.
For consent to be legally valid the person giving consent must be capable at the time sexual touching occurred. Consent must be reasonably informed, conscious and freely given with awareness of the proposed actions and consequences. A person under the age of consent is incapable. A person must be conscious in order to be capable. It is possible for someone to become incapable due to intoxication by drugs and/or alcohol.
Care should be taken from those involved in sexual activity to ensure that consent has been freely given by a capable person in every instance.
Legal determinations as to whether someone consented to sexual touching and whether they had the capacity to consent are made by courts based on applying legal principles to factual circumstances.