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April 2013

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INSIDE THIS ISSUE: Featured Cases: 04 Property Law; Statutory Interpretation 07 Aboriginal and Treaty Law; Constitutional Law; Natural Resource Law - With 2 Counsel Comments 14 Provincial Liquor License Law; Standard of Proof 17 Legal Counsel Law; Criminal Law - With 1 Counsel Comments 22 Contract Law; Municipal Zoning Law


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Hamilton (City) v. The Equitable Trust Company, 2013 ONCA 143 Areas of Law: Property Law; Statutory Interpretation

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~A City’s right to collect rents, in the case of a defaulting and previous landlord, does not survive the sale of land~

BACKGROUND

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n July of 2008 in Hamilton, natural gas delivery to the residents of 60 residential units at 355 Melvin Ave. was stopped by the Union Gas company as the landlord, The Equitable Trust Company, had defaulted on required payments due to financial problems. Because this was considered a “vital service,” it engaged provisions in Part XIII of the Residential Tenancies Act, 2006, SO 2006, c 17 (the “Act”), along with Hamilton’s Vital Services By-law, which arranges for the municipality to pay for and provide these services and subsequently recuperate the costs involved from the landlord, even if that means a lien against the property directing the tenants to pay rent to the municipality instead of the landlord. The lien was eventually applied (s. 219) and in March 2009, the tenants received notice to pay rent to the City (s. 221), which they did effective April 1, 2009. In June 2009, Equitable Trust sold the property to a bona fide purchaser for value. At this point, the City still had a shortfall of $80,000 in consequence of the aforementioned bail-out provisions. The City’s position was that their statutory right to collect rents survived the closing of any sale, and thus they ought to continue collecting rents

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Hamilton (City) v. The Equitable Trust Company, (cont.) until their claim was paid in full. Equitable Trust did not agree with this. The two parties entered an agreement which allowed for two things: (1) The City would forgo its claim to payment of rents following sale; (2) Both parties would be entitled to apply to the court regarding the City’s claim to continue to collect, and if the City won, Equitable would pay the outstanding amount. The City brought an application, and Ramsay J. ruled in its favour. Equitable then appealed, but this was unusual as they were no longer the owners and only had an interest due to the aforesaid agreement. The legal issue to be decided was really between the City and the new owner, yet due to the agreement, the new owner was not a party.

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Hamilton (City) v. The Equitable Trust Company, (cont.) APPELLATE DECISION

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he appeal was allowed and the order below, set aside. The main issue here was whether the City’s right under s. 221(1) of the Act to collect rents instead of the landlord survived the sale of the land. Writing for the unanimous court, R.A. Blair found that it did not. The Court found that the City had no claim against the tenants personally; it only had a right to divert rental payments to reduce the amount owing when providing the vital service that the defaulting previous owner did not provide. Expecting the new owner to forfeit its right to collect rent was tantamount to asserting that the City’s prior claim to a right or interest in land superseded all others, even where the purchaser has a clean registered title. A fair reading of the Act cannot be read as expressing this intention. The City’s remedy under s. 221(1) of the Act ceased when the transfer of the property was properly registered. Thus, according to the agreement between the parties, Equitable Trust was not required to make up the City’s shortfall. The City’s argument was that since nothing in the Act maintained that statutory collection does not override the purchaser’s interest or continue until it had been reimbursed in full, it therefore does. R.A. Blair, inter alia, pointed out that because the appellant relied on s. 221(1) & (2), assuming that “the person otherwise entitled to receive the rent” should pay over any amount remaining, that meant that regardless of the transfer of lands the City should recover its outlay fully. The Court found that the city was not given a clear statutory priority to collect its funds from the new owner. Such an interpretation would go against the land titles body which governs claims to interest in lands and would also be inconsistent with Part XIII of the Act which expressly forbids the City claiming that kind of priority. The City’s claim also goes against a well-entrenched principle of statutory interpretation that the legislature is presumed not to intend to strike down, limit, or interfere with common law or statutory rights in the absence of explicit language that it intends this. By interpreting s. 221(1) of the Act in a way that allows the City to go beyond the transfer directly would result in interference with the new owner’s proprietary interest in the rents. The Court found no unambiguous language in the relevant sections of the Act that would permit this.

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Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 Areas of Law: Aboriginal and Treaty Law; Constitutional Law; Natural Resource Law ~~ Ontario has the right to take up lands in the Keewatin Treaty 3 area. The treaty was made between the Crown and the First Nations and Ontario became the pertinent representative of the Crown under the treaty once the lands were added to the province. Ontario administers and has beneficial ownership of the lands. There is no federal supervisory role over Ontario’s taking up of lands under the treaty or pursuant to section 91(24) of the Constitution Act~

BACKGROUND

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In October of 1873, Canada and the Saulteaux (Ojibway) entered into Treaty 3 concerning a large section of land in what is now northwestern Ontario and eastern Manitoba. The Treaty was a surrender of interest in lands by the Ojibway in exchange for reserves, payments, and other benefits. The Treaty also includes a “harvesting clause”, which allows the Ojibway to continue hunting and fishing over the surrendered lands, with the exception of lands needed or used for settlement, mining, lumbering, or other purposes by the “Government of the Dominion of Canada”. The Treaty 3 lands approach 55,000 square miles. In 1873, Canada claimed ownership of all of the territory covered under the Treaty. Part of the land, the “Keewatin Lands”, was under Canada’s jurisdiction in 1873, while another tract

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was disputed with Ontario. Since 1912, all these Treaty lands, with the exception of a small area in Manitoba, have been within Ontario’s borders. In 1997, Ontario issued a sustainable forest license allowing Abitibi-Consolidated Inc. (now Resolute Forest Products) to conduct forestry operations in parts of the Whiskey Jack Forest, which is within the Keewatin Lands. Grassy Narrows applied for judicial review in 2003, seeking to have set aside all licenses, permits, plans, and work schedules which had been granted to Abitibi, alleging a violation of the harvesting clause of the Treaty. The judicial review was quashed but the plaintiffs launched an action in 2005 leading to a lengthy trial in 2009-2010, and to these appeals. The trial judge found in favour of Grassy Narrows on all important issues, specifically that in the Keewatin


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Keewatin v. Ontario (Natural Resources), (cont.) Lands, Ontario could not “take up” lands and thereby limit harvesting rights without clearing it with Canada first. The central issue on the appeals was whether the imposition of this two step process was correct under a proper interpretation of the Treaty or under Canada’s constitutional framework.

APPELLATE DECISION The appeals involve multiple parties: three appellants, six interveners, and the respondents. The primary appellant was the Minister of Natural Resources, Ontario, and the respondents were the Grassy Narrows First Nation. The judges Sharpe, Gillese and Juriansz JJ.A., found that there were many errors made by the trial judge and that the appeals had to be allowed. The Court concluded that the trial judge was in error in finding that the Treaty Commissioners agreed to a requirement that Canada would forever have the power to approve the “taking up” of lands. This is fundamentally at odds with Canada’s established constitutional framework. The Commissioners had no power to qualify Ontario’s constitutional rights and responsibilities. The Ojibway’s treaty partner was and is the Crown, not Canada. The Ojibway may rely on Treaty promises only insofar as they keep within the framework of the division of powers in the Constitution. The Court relied on St. Catherine’s Milling where it was held that the Commissioners had no power to depart from the division of powers and responsibilities spelled out in the Constitution, and therefore no authority to withhold from Ontario any beneficial ownership that the province gained when its

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borders were expanded. The Court also rejected the trial judge’s assertion that Canada retaining a role in the taking up process would advance reconciliation. They concluded that the exercise of provincial jurisdiction under sections 109, 92(5) and 92A the Constitution Act, 1867, without federal control under s. 91(24), actually facilitated direct dialogue between the province and Treaty 3 First Nations. The Court interpreted such dialogue as key to achieving the goal of reconciliation. The conclusion of the Court was that Ontario did have a right to take up lands in the Keewatin Treaty 3 areas based on the constitutional framework, and this right extends to all Treaty 3 lands in Ontario.

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COUNSEL COMMENTS, Cont. Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 Comments provided by William J. Burden, Brian P. Dominique, and Linda I. Knol, Counsel for the Intervener, Goldcorp Inc.

William J. Burden

Brian P. Dominique

“T

he decision of the Court of Appeal confirms that, since 1912, the Government of Ontario (“Ontario”) has the authority to take up lands in Keewatin governed by Treaty 3 for settlement, mining, lumbering or other purposes without the involvement or supervision of the Government of Canada (“Canada”). In reaching this decision, the Court confirmed several important principles of constitutional and aboriginal law, and provided an important measure of certainty for private proponents that conduct business in the Keewatin territory.

Linda I. Knol

decided by the Privy Council in 1888 in St. Catherine’s Milling and Lumber Co. v. The Queen, was reiterated by the Privy Council in 1902 in Ontario Mining Co. v. Seybold, and was confirmed by the Supreme Court of Canada in 1983 in Smith v. The Queen. Under section 109 of the Constitution Act, 1867, Ontario beneficially owns the public lands within its borders, and under section 92(5) of the Constitution Act, 1867, Ontario has exclusive legislative authority to manage and sell those public lands. Accordingly, when Canada annexed the Keewatin lands to Ontario in 1912, the authority to take up such lands governed by Treaty First, the Court upheld 125 3 passed from Canada to Ontario. years of case law that held the Crown’s Second, the Court held that the authority to take up lands does not come from a treaty; rather, it comes from the Ojibway’s Treaty partner is the Crown, Constitution Act, 1867. This was first not any particular level of government. April 2013

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COUNSEL COMMENTS, Cont. Thus, when Canada annexed the Keewatin lands to Ontario, Ontario “stepped into the shoes” of Canada for purposes of Treaty 3. Key to the Court’s decision was its ruling that Ontario’s authority to take up lands governed by Treaty 3 is subject to the rights guaranteed to the Ojibway in Treaty 3. In other words, when Ontario takes up Treaty 3 lands, Ontario must respect Treaty 3 rights. Third, the Court of Appeal held that the test for infringement and the consultation process that was set out by the Supreme Court of Canada in its 2005 decision of Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) applies to Ontario’s taking up lands in Keewatin. In Mikisew, the Supreme Court of Canada explained how the existence of a take up clause in a treaty is relevant to determining if taking up of lands infringes a treaty harvesting right. Specifically, if the treaty provides that the First Nation’s right to hunt and fish is limited to lands that are not taken up from time to time for settlement, mining, lumbering and other purposes, then the taking up of lands will not infringe the First Nation’s treaty harvesting right if: (i) as a substantive matter, the Crown does not take up so much land that the right to hunt and fish in the First Nation’s traditional territories is rendered meaningless; and (ii) as a procedural matter, there is appropriate consultation with the First Nations that may be affected by the taking up. Accordingly, when taking up lands in Keewatin, Ontario cannot take up so much land so as to deprive the Ojibway of a meaningful right to harvest in their traditional territories. In addition, Ontario must consult with the Ojibway concerning the taking up of lands, and Ontario must accommodate the Ojibway’s treaty rights whenever they are sufficiently impacted by the taking up of lands. In fulfilling these obligations, Ontario is not subject to Canada’s supervision. For private proponents that conduct business in the Keewatin territory, the decision of the Court of Appeal brought a welcome measure of certainty. It confirms that the patents and licenses that have been issued by Ontario since 1912 and under which private proponents have been operating will not be rendered invalid due to Canada’s non-involvement in the issuance of such patents and licenses. It also confirms that the consultation and accommodation process set out in Mikisew applies to the taking up of lands in Keewatin or other Ontario grants of

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COUNSEL COMMENTS, Cont. right that interfere with treaty rights. This emphasizes the need for private proponents to obtain the advice of experienced counsel early in any process of Crown taking up or grant of right in order to shepherd the effective conduct and management of consultation and accommodation between the Crown and Aboriginal parties, and to facilitate timely and satisfactory outcomes.�

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COUNSEL COMMENTS Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 Comments provided by Christopher Matthews, Counsel for the Appellant Resolute FP Canada Inc.

“T

he Ontario Court ensure that the federal of Appeal rendered government had to its decision in the Keewatin approve any significant matter remarkably quickly limitation on harvesting – less than eight weeks after rights even if the an eight day hearing. I think province owned the all counsel expected a longer lands. The Court of reserve, given that the trial Appeal found there was Chris Matthews reasons were over 300 pages no direct evidence that (single-spaced) and there were a large he intended this and that, in any case, the number of issues to deal with. The Treaty was negotiated with the Crown, decision of the unanimous court, not Canada, and not Alexander Morris. however does not attempt to tackle Justice Sanderson made numerous, all of Justice Sanderson’s “lengthy, painstaking findings of fact that led detailed and complex reasons for her to this conclusion. Nonetheless, judgment”. The court states that it is her conclusion as to Morris’s intention “neither necessary nor desirable” to was, according to the Court of Appeal, “canvas all the issues and arguments”. “speculative” and “inconsistent with the Instead, they chose to focus on “the available evidence”. Relying on Mitchell truly dispositive issues”. Indeed, the v. MNR, the court said “an unreasonably reasons are a succinct treatment of generous weighing of tenuous evidence the core issues. will be set aside”. In essence, the court overturned one crucial finding of Justice Sanderson: that Alexander Morris, the head Treaty Commissioner, specifically added the words “the Government of the Dominion of Canada” to the ‘taking up’ clause in order to

The court placed a lot of emphasis on the St. Catherines Milling, which specifically said that treaty commissioners could not alter the division of powers or allocation of responsibilities between the federal and provincial governments. Accordingly, even if Morris did have the intention

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COUNSEL COMMENTS, Cont. Sanderson J. ascribed to him, he didn’t have the authority to limit Ontario’s powers. The appellants had always believed that St. Catherine’s Milling was the complete answer on the issue of Ontario’s sole power to take up lands, and the Court of Appeal evidently agrees. On the question of keeping treaty promises, the court agreed with the appellants that the provincial Crown has the same section 35 duties to consult and accommodate that are outlined by the Supreme Court of Canada in Mikisew. The court also found that it is only when takings-up limit harvesting to such an extent that there is no meaningful right remaining that there will be an infringement . An action for infringement can then be brought but this still would not engage Canada in a supervisory role. The decision will have significance in other areas of Canada, as it counters arguments (made by several of the intervenors in Keewatin) to the effect that the federal government should always be engaged whenever treaty rights are at issue pursuant to its section 91(24) jurisdiction. The court cited the Supreme Court of Canada decision in the Reference re Securities Act case of 2011 on this point stating that “a federal head of power” can’t “eviscerate provincial legislative competence”. In other words, provincial land ownership is not qualified by section 91(24). As the language in Treaty 3 is similar or identical to most of the numbered treaties, the Keewatin decision should be persuasive in interpreting the taking up clauses of those treaties. Although the court said it was not necessary to consider the interplay of the Natural Resources Transfer Agreements with the numbered treaties, its findings are a good base to any future arguments in this area.”

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Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 Areas of Law: Provincial Liquor License Law; Standard of Proof ~Alcohol and Gaming commission of Ontario Board cannot supplant the standard of reasonable grounds for belief with a balance of probabilities due to the severity brought by the potential revocation of a license. It must apply the standard set out clearly in the legislation.~

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BACKGROUND

A

full patch member of the Hells Angels with no record of criminal convictions or infractions of the Liquor Licence Act, R.S.O. 1990, c. L. 19 (the “Act”), and with no outstanding charges was faced with the possibility of having the liquor licence revoked for his business, Famous Flesh Gordon’s because the Appellant, the Registrar, Alcohol and Gaming Commission of Ontario (the “Registrar”), felt that his membership in the Hells Angels warranted such action. The Commission’s Board heard the Registrar’s application in September of 2011 and concluded that mere membership in the Hells Angels did not constitute just cause for revoking the license according to s. 15 of the Act. This section permits the Registrar to apply to have a licence revoked pursuant to any ground enumerated under s. 6(2), which reads in part: “...subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if, [...] (d) The past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief

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Ontario (AGC of Ontario) v. 751809 Ontario Inc. (FFG), (cont.) that the applicant will not carry on business in accordance with the law and with integrity and honesty.” The Board decided that the Registrar had to prove the case on the balance of probabilities, and since this was a significant remedy sought – revocation as opposed to suspension – the evidence must be sufficiently compelling. The Board, in dismissing the application, found that the owner of the license had “not a hint of impropriety” in the operation of his establishment and thus it would be wrong to assume that there was a risk of non-compliance justifying revocation. The Registrar appealed to the Divisional Court because the Board had applied too stringent a test using “on the balance of probabilities” when it should have instead used the standard required by s. 6(2)(d), that of only “reasonable grounds for belief.” They also pointed to the Board’s error on the issue of whether past or present conduct were reasonable grounds for suspecting the owner would not carry on his business within the law. The Divisional Court dismissed the Registrar’s appeal in May 2012, not agreeing that the board had erred, and the Registrar appealed the decision.

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Ontario (AGC of Ontario) v. 751809 Ontario Inc. (FFG), (cont.) APPELLATE DECISION

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he Appeal Court allowed the appeal and referred the application once again to the Board. The Court found that the Divisional Court had erred in finding that the Board applied the correct standard of proof. The standard of proof set out in s. 6(2)(d) was merely “reasonable grounds for belief,” a lower standard of proof than “balance of probabilities.” The Court pointed out that the former standard needed something more than suspicion, but less than its civil counterpart requiring proof “on the balance.” Thus, the Registrar simply has to show that the licensee’s past or present conduct leads to reasonable grounds for believing he will not run his business in accordance with the law. It is not necessary that the Registrar show that the owner’s past or present conduct will make it “more likely than not” that he will not do so. Paragraph 54 of the Board’s decision reads, in part, “The onus lies upon the Registrar to prove his case on the balance of probabilities.” The Board repeats this mantra several more times in the decision while justifying what it must find. The Court stated, “The Board’s choice must be reviewed on a standard of correctness. The choice was incorrect.” The second question at issue was whether the Board applied the test called for in s. 6.2(d). First, the Board focused on the owner’s

conduct as a licensee when the subsection entitles the Registrar to rely on any past or present conduct. Second, the Board sought evidence of criminal activity when there was no such limitation in the test. Non-criminal conduct could also provide reasonable grounds for belief. Third, the Board focused on whether the owner has observed and will observe the regulatory laws, but there was no such limitation in the legislation. The Court noted “… the Board’s erroneous interpretation of the test does not fall within a range of possible acceptable interpretations, given the plain language of the section and the clear purpose of the legislation. It is not a reasonable interpretation of the legislative test. It is outside any margin of appreciation that deference requires.”

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R. v. Eroma, 2013 ONCA 194 Areas of Law: Legal Counsel Law; Criminal Law

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~Legal counsel’s constructive refusal to allow an appellant to testify at his own request and at his own trial amounts to a miscarriage of justice~

BACKGROUND

T

he appellant in this case was convicted of possession of a weapon for a dangerous purpose and aggravated assault due to a road rage occurrence in the City of Toronto. His sentence was ninety days’ incarceration, served intermittently, as well as three years’ probation. The appellant based his appeal of this decision on the grounds of ineffective assistance of legal

counsel. He asserted that his counsel failed to follow his instructions that he be allowed to testify in his own defence at trial, and that this failure amounted to a miscarriage of justice and necessitated new trial. In the view of the Ontario Court of Appeal, and based on new evidence filed by the appellant along with the trial record, the appeal had to be allowed.

APPELLATE DECISION

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he appeal was allowed. The Court pointed out that there was no question regarding the test to establish claims of ineffective assistance. The appellant must show (1) the facts that underpin the claim of ineffective assistance, on a balance of probabilities; (2) the incompetence of trial counsel’s representation; (3) that a miscarriage of justice resulted from the incompetent representation at trial [See R. v. B.(M.), 2009 ONCA 524 (CanLII), 2009 ONCA 524, at paras. 8-9]. Here, even the Crown conceded that the appellant would have testified but for his trial counsel’s prevention of this. The Court found that the appellant did establish

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the facts underpinning his claim since it was clear that despite both the efforts of the appellant and the Crown to contact the trial counsel, he did not respond and failed to provide a trial brief or any other documents to the aforementioned. Throughout the appellant’s time under the guidance of counsel, he maintained that he wanted to testify and was waiting for that opportunity, but it never was allowed. Had he been allowed to testify, the testimony would have: (1) challenged complainant credibility; (2) challenged evidence of alleged eyewitness; (3) helped to corroborate other defense evidence; and (4) thrown doubt on the Crown assertion that the appellant was not acting

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R. v. Eroma, (cont.) in self-defence. Further, the appellant required the assistance of an interpreter and at certain times not only did he misunderstand his counsel, but he also claimed the counsel, interpreter, and judge were talking in unison, resulting in even less comprehension of what was transpiring. Finally, the appellant’s trial counsel, following the trial at issue, was disbarred from the Law Society of Upper Canada, based in part on similar complaints from other clients. Because the trial counsel proffered no response, and due to no fault on the appellant himself, his claim of being prevented to testify stood uncontradicted. The

Court had to find that in circumstances such as these, trial counsel’s competency was questionable at best, or as they put it, “of greatly diminished force.” The decision to testify in his own defence was the appellant’s decision all along. On the balance of probabilities, the Court found that the appellant established that his wish to testify at his own trial was thwarted by his trial counsel. The Crown and Court acknowledged there was every possibility that trial counsel’s acts and omissions in his representation of his client amounted to a miscarriage of justice. A new trial was required.

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COUNSEL COMMENTS, Cont. R. v. Eroma, 2013 ONCA 194 Comments provided by Morgan Westgate, JD Candidate at Osgoode Hall Law School, and assistant to Philip Norton, Counsel for the Appellant

“T

he Canadian approach to trial counsel’s decisions ineffective assistance is partly due to reasons of counsel appeals is associated with the highly protective of the incompatibility of independence of the legal hindsight with the profession, specifically necessary freedom to the criminal defence bar. craft trial strategy. It Morgan Westgate This is especially true with also recognizes the regard to tactical trial decisions. complexities surrounding running a trial As evidenced by R. v. Joanisse itself, an inherently unpredictable task. (1995), 102 CCC (3d) 35 (Ont. Courts are acutely aware of the need to C.A.) and its progeny, there is a protect the sanctity of the solicitor-client strong presumption in favour of relationship, and to encourage fearless competence where allegations of advocacy on behalf of an accused ineffective trial assistance arise, and in a criminal trial, which could be the judiciary takes a deferential substantially compromised if judicial approach to assessing trial counsel’s scrutiny of counsel’s actions became conduct retrospectively. Thus, in commonplace. Thus, the jurisprudence is the normal course, an appellant clear that defence counsel are accorded a must displace the presumption that large amount of discretion in conducting defence counsel was acting as a a trial (R. v. Qui, 2010 ONCA 736 at reasonable professional. This is the para. 9 citing R. v. Archer (2005), O.J. platform on which the legal test has No. 4348 (CA) at 139). been formulated - a perspective that has been consistently applied for Although this principle is alive and nearly two decades. The reluctance well in Canada, Eroma illustrates the of appellate courts to second-guess competency presumption’s limitations when dealing with serious misconduct of April 2013

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COUNSEL COMMENTS, Cont. defence counsel. The case represents an interesting shift in the Court’s approach to ineffective assistance of counsel appeals in that it is judicial recognition of circumstances where the presumption of competence is substantially diminished. This is a significant distinguishing feature of this case, as it stands in contrast to basic principles of the Joanisse test: that the appellant has the burden of proving incompetence. The basis for this proposition is rooted in the fact that the goal of the inquiry is to maintain trial fairness, not evaluate counsel’s performance. Indeed, the Supreme Court has maintained that without a miscarriage of justice, the issue of competence is a matter of professional ethics, and is not appropriate for appellate courts to entertain (R v G.D.B. (2000), 143 CCC (3d) 289 (SCC)). Although Eroma does not change this standard per se, it certainly qualifies it by identifying circumstances where the nature of the conduct itself is so diametrically opposed to what may be considered legitimate professional discretion, that there is no reasonable basis to accord deference to trial counsel’s decisions. This is of heightened importance when fundamental decisions (such as whether to plead guilty or testify), for which counsel are ethically bound to consult and receive client instructions, are the subject of the ineffective assistance claim. For example, it was accepted that if the record revealed that Mr. Eroma was deprived of the right to choose whether to testify, the miscarriage of justice test would be met (G.D.B., at para. 34; R. v. D.M.G., 2011 ONCA 343 at para. 109). Of particular interest is the fact that Mr. Eroma’s allegations were uncontested; the Court had the benefit of only one side of the argument. As trial counsel failed to respond to appellate counsel, crown counsel, and direct Orders from the Court of Appeal, Mr. Eroma’s appeal ground went unanswered and therefore unchallenged. This, together with trial counsel’s concurrent Law Society proceedings, established a factual context which enabled the Court to take a principled approach when dealing with presumption of competence. Although appellate counsel did not ask the Court to start with the presumption of incompetence, Eroma certainly opens the door to the possibility in the future. Even if is not explicitly accepted as such, given the facts and the way the Court dealt with this appeal, it is arguable that an unspoken presumption that counsel was not acting as a reasonable professional factored into the judgment.

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COUNSEL COMMENTS, Cont. It will be interesting to see how post-Eroma jurisprudence develops, and whether the judiciary will be more willing to grant these appeals in the future. It may seem like a step towards a more lenient test, but in practicality it is unlikely to make a large difference in terms of actual outcomes. Even in Eroma, which was held to be “unique and most unfortunate circumstances” the appropriate remedy was deemed a new trial, and not a stay proceedings. Although there was a direction to the Crown to use its discretion as to whether to proceed with a second trial, the judgment reflects the Court’s continued discomfort in dealing with these appeals. Thus, even though there is now an explicit recognition of the circumstances in which trial counsel will not be given the benefit of a strong presumption of competence, the actual recourse for an appellant will likely be having to face the stress, time-consumption, and costs of re-litigation. This is notwithstanding the fact that he has been held to be a victim of a miscarriage of justice, after being deprived his constitutionally protected right to exercise a fundamental decision at trial.”

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Maraschiello v. Shellrock Developments Ltd., 2013 ONCA 167 Areas of Law: Contract Law; Municipal Zoning Law ~Developer may not engage in constructive frustration of their own application for severance and must seriously execute their duty to best efforts when they have contracted to it~

BACKGROUND

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he respondents had worked and lived on a farm consisting of 51.5 acres of land since 1978, and in March 2004, they sold it to the appellant. One of the key terms of the sale was an undertaking by the appellant to put forth “best efforts” to obtain a severance of a parcel of one acre (Block 151) around the respondents’ family home. In other words, the family merely wanted to continue living in what was their family home, regardless of what the developer chose to do with the adjoining property. The appellant appealed the judgement of the Superior Court in February of 2012, which held that respondents were entitled to engage specific performance and obtain title to Block 151 of what became a residential

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development. This was a case right out of the chapters of Lord Denning’s rulings from the bench: Innocent family deprived of family home by developer who refused to make “best efforts.” The appellant appealed the Superior Court decision on three grounds: (1) the trial judge’s reasons on the analysis of whether “best efforts” were made are flawed by serious errors, the most serious being improper criticism of evidence brought by the appellant in the testimony of development consultant Julius De Ruyter ; (2) the trial judge erred in her reliance on expert evidence from the respondent’s witness in concluding that the severance would have been granted by the Committee of Adjustment; and (3) the trial judge erred by ordering specific performance.

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Maraschiello v. Shellrock Developments Ltd., (cont.) APPELLATE DECISION

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he Court agreed unanimously that it could not accept the submission before them and that the trial judge had in fact engaged in a comprehensive and balanced view of the evidence. The conclusion of the trial judge was simply that the appellant did not use best efforts in the application to the Committee of Adjustment to obtain severance for the house property within 12 months as agreed. If it had, the trial judge noted, it was highly likely that final consent from the Committee would have been granted. The Court found no reason to interfere with the decision and pointed out one of many examples demonstrating how ineffectual the appellant’s efforts were in pursuing the severance. Mr. De Ruyter had prepared the severance application and represented the appellant at the Committee hearing, and at this event was recorded as acknowledging, inter alia, that: a). the only reason the appellant had applied for severance was to meet its own legal requirements, b). he was in agreement with the staff report’s recommended refusal of the application as the proposal did not accord with the Town’s Official Plan or zoning by-law, and, perhaps shockingly, c). that the application was not an example of good planning. The Court found that these revelations from

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the minutes of hearing established that the appellant’s conduct was nowhere near the best efforts required of them in obtaining the severance. In fact, the Court pointed out that these minutes appeared to record a ‘worst efforts’ attempt. The appellant contended also that the trial judge had erred in relying on an expert witness of the respondent’s in her conclusion that had the appellant made best efforts the severance would likely have been obtained. This expert witness gave proof of his experience in this area and the Appeal Court found his explanation of the steps he would have taken supported the trial judge’s conclusion that severance would have been granted and decision made final by the Committee within the 12 month period in the agreement. Lastly, the appellant attempted to claim that the specific performance awarded by the trial judge was not even a possible remedy in this situation, and that, even if it was, she erred in her discretion by so ordering. In nullifying these claims, the Court pointed out the trial judge’s own observation that Block 151 was created to preserve the Plaintiff’s rights and that included a right to specific performance. As to erring in her discretion, the Court again agreed with the trial judge who found that the remedy of damages


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Maraschiello v. Shellrock Developments Ltd., (cont.) would be inadequate to do justice and that the plaintiffs had brought a fair, real, and substantial justification for the engagement of specific performance. They had made a reasonable request to stay in the house they had lived in for many years. They had no wish to thwart the developer, only to retain their home amongst the new development. The Court fully accepted the trial judge’s decision to order a remedy of specific performance. The respondents were entitled to their costs in the appeal.

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