Dismissed (5)

Administrative Law/Energy: Pipelines 

Coldwater First Nation, et al. v. Canada (Attorney General)2020 FCA 34 (39111)
By Order in Council P.C. 2019‑0820 dated June 18, 2019, the Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Six sets of parties were granted leave by the Fed. C.A. to judicially review that decision. In a unanimous decision, the Fed. C.A. determined the Governor in Council’s re‑approval was reasonable and dismissed all of the applications for judicial review. “The applications for leave to appeal…are dismissed with costs.”

Criminal Law: Breach of Trust 

Probe v. R., 2020 SKCA 5 (39086)
Mr. Probe was a councillor and deputy reeve of the Rural Municipality of Sherwood No. 159. He was charged with breach of trust by a public officer contrary to s. 122 of the Criminal Code and municipal corruption contrary to s. 123(1)(c). Crown counsel alleged Mr. Probe attempted to convince the municipality’s reeve to lobby other members of the municipal council in connection with a motion, if passed, would have asked Mr. Probe to repay legal fees paid on his behalf by the municipality. Crown counsel alleged Mr. Probe linked his willingness to compromise on another issue to the reeve’s willingness to undertake this lobbying effort. The trial judge acquitted Mr. Probe on both counts. Crown counsel appealed the acquittal on the charge of breach of trust by a public officer. The C.A. granted the appeal and ordered a new trial. “The application for leave to appeal…is dismissed.”

Criminal Law: Cell Phone Records 

Pathmanathan, et al. v. R., 2020 ONCA 25 (39091)
Between March and August 2009, a group of people, over several nights, stole a number of loaded tractor trailers containing various products. In some cases, the truck driver or a security guard was confined and held. The Crown advanced the theory the robberies were committed by the same criminal group, with some variation in group membership. The police believed one truck driver had been followed for some time by at least two vehicles and five men, and the men following had used cell phones to communicate. They sought a production order for cell phone records from towers along the truck’s route. The warrant requested data from six towers on two dates, for specified time periods (40, 10, 15 and 20 minutes), and the subscriber records relevant to those time periods, including the date the service was initiated or terminated if the current subscriber was different from the registered subscriber. The production order was issued in June 2009. It led the police to suspect the Applicant Mr. Pathmanathan and others had been involved in one robbery. A further production order was issued in August 2009 in relation to three phone numbers identified in the June production order. The Applicant Mr. Kanthasamy and others were arrested. Incident to the arrests, cell phones were seized from Mr. Kanthasamy and another. A police officer conducted improper searches of the seized phones. Further productions orders were issued in September and November 2009 based, at least in part, on information obtained in the improper searches. The Crown conceded, under s. 24(2), the information obtained from the September and November orders should be excluded from the evidence. Prior to trial, four accused entered guilty pleas, and three of them testified at trial. The trial proceeded before a jury over approximately 60 days in 2015 and 2016. The jury returned with 61 verdicts, convicting Mr. Pathmanathan and Mr. Kanthasamy on several counts. The C.A. dismissed the conviction appeals, but granted Mr. Pathmanathan and two others leave to appeal sentence. It allowed their appeals as to sentence and reduced their sentences. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Prior Consistent Statements 

R. v. D.K., 2020 ONCA 79 (39107)
The complainant suffered an injury during sexual intercourse with D.K. Her injury required emergency surgery. Her surgeon testified the complainant said to him before her surgery the injury occurred during “forced intercourse”. The complainant testified at trial. She said she did not consent to intercourse and she complied out of fear. D.K. testified. He claimed the injury was an accident during consensual sex. The trial judge admitted the complainant’s prior statement to her surgeon into evidence. The statement was consistent with her in‑court testimony. The trial judge stated it assisted in assessing the complainant’s credibility and reliability. D.K. was convicted of sexual assault. The C.A. held it was not clear whether the trial judge relied on the prior consistent statement for an improper purpose. It set aside the conviction and ordered a new trial. “The application for leave to appeal…is dismissed without costs.”

Torts: Negligence; Escaped Donkeys 

693316 Ontario Limited o/a Toronto Redi-Mix Limited v. Youssef2020 ONCA 83 (39100)
The Respondent, Mr. Youssef, was riding his motorcycle when he collided with a donkey on a provincial highway. He lost control of his motorcycle and suffered serious injuries. No word on the donkey. The animal (and several others) had escaped from a nearby farm property, by forcing their way through a fence gate that had no lock. The property was owned by the Applicant, 693316 Ontario Limited, o/a Toronto Redi‑Mix Limited (“Redi‑Mix”), and was rented to a tenant, Mr. Mark Burnfield. Mr. Youssef, through his litigation guardian, sued both the tenant and the landlord for negligence. The landlord, Redi‑Mix, also brought a third party claim against its tenant, Mr. Burnfield. The latter did not defend either action, and was noted in default for both claims. Prior to trial, Redi‑Mix brought a motion seeking summary judgment to dismiss the negligence claim against it; Mr. Youssef in turn brought a motion seeking to strike Redi‑Mix’s motion. A motions judge dismissed Redi‑Mix’s motion for summary judgment, and ruled in favour of Mr. Youssef. The judge found Redi‑Mix negligent in its role as landlord, having failed to inspect and repair the fencing and the gates on the property and keep them maintained, for which it had specifically admitted it had an obligation to do. The C.A. dismissed Redi‑Mix’s appeal on the finding of negligence. “The application for leave to appeal…is dismissed with costs.”