It’s the end of a criminal trial and you have been convicted. The judge gave a sentence and you don’t think it’s fair. Can you appeal and get a different sentence? Maybe. If you want a lower sentence you must convince the appeal court that the sentence is “unfit” or
Continue readingAuthor: James C Morton
Morton's Musings: Failure to comply with CBCA not, standing alone, oppressive conduct
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
Continue readingMorton's Musings: Failure to comply with CBCA not, standing alone, oppressive conduct
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
Continue readingMorton's Musings: Collusion
R. v. Clause, 2016 ONCA 859: [81] 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, [2003]
Continue readingMorton's Musings: Collusion
R. v. Clause, 2016 ONCA 859: [81] 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, [2003]
Continue readingMorton's Musings: Expired limitation periods and amendment of pleadings
1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848: [19] 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, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this court
Continue readingMorton's Musings: Expired limitation periods and amendment of pleadings
1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848: [19] 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, [1965] 1 Q.B. 232 (C.A.), at pp. 242-43, as adopted by this court
Continue readingMorton's Musings: Sexual Touching Requires True Consent
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
Continue readingMorton's Musings: ReOpening An Appeal
In theory an appeal can be reopened after disposition – but it is a high standard to meet: Chuang v. Toyota Canada Inc., 2016 ONCA 85: [7] A party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle. After more than 10 years
Continue readingMorton's Musings: Extremely Important Supreme Court of Canada Decision on Joint Sentencing Submissions
It appears the Court has adopted the Alberta, rather than the Ontario, practice. This will change the approach in Ontario Courts immediately. R. v. Anthony-Cook, 2016 SCC 43: Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to the trial judge,
Continue readingMorton's Musings: Lawyers and Conflict of Interest
Suppose you are married and you and your spouse decide to split up. Everything is very amicable and everyone agrees on everything. There really is nothing to fight about but money is (as always) a little tight. You and you spouse both want a separation agreement and a divorce and
Continue readingMorton's Musings: What Is the Nunavut Land Claims Agreement All About?
Unlike most jurisdictions Nunavut was recognized as a result of negotiation and a statute. The Nunavut Land Claims Agreement (NLCA) created Nunavut as jurisdiction and recognized the right of the Inuit of Nunavut to self-government and a separate territory. The basis for the NLCA was an exchange or conversion of
Continue readingMorton's Musings: Division of powers: Vires and Paramountcy
CITATION: Canada Post Corporation v. Hamilton (City), 2016 ONCA 767: [31] The following section first articulates the general principles of the division of powers analysis, specifically the doctrines of ultra vires and paramountcy, and then applies them to the facts of this appeal. (1) The general principles (a) Pith and Substance [32] The first step in
Continue readingMorton's Musings: Limitations Defences Must Be Pleaded
Singh v. Trump, 2016 ONCA 747: [132] This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685, [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.)
Continue readingMorton's Musings: Judicial Officers show presumptively have their costs of a discipline hearing regardless of result
Massiah v Justices of the Peace Review Council, 2016 ONSC 6191: [49] In my view, the 2012 Panel started from a flawed premise, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made. Specifically, the 2012
Continue readingMorton's Musings: The Elks Want to Throw Me Out – What Are My Rights?
One of the most obscure areas of law is "club law". This deals with the rights of members of clubs to have fair hearings when dealing with clubs they belong to. Usually in Canada the clubs involved are sporting clubs but the area of law includes pretty well all voluntary
Continue readingMorton's Musings: Calculation of unreasonable delay for 11(b)
R. v. Coulter, 2016 ONCA 704: A. THE NEW FRAMEWORK SUMMARIZED [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47). [35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66). [36] Compare the Net
Continue readingMorton's Musings: Failure to comply with Rules can lead to personal liability for costs
Adlair v Nunavut 2016 NUCJ 23:\Lawyers have an ethical and professional duty to ensure that the advice they give a client, and the actions they take, are proper. In other words, every lawyer has a duty to present the case for their client in good faith…
Continue readingMorton's Musings: Interpretation of a Standard Form Contract not subject to appellate deference
Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 holds that the interpretation of contracts is a question of mixed fact and law and so an appeal court should be deferential to the decision below.
Perhaps surprisingly, the Supreme Court in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 held this rule does NOT apply to standard form contracts and no deference is owed to the court below.
The appropriate standard of review is correctness. The interpretation of a standard form contract should be recognized as an exception to the Court’s holding in Sattva Capital Corp. that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal.
The first reason given in Sattva for concluding that contractual interpretation is a question of mixed fact and law — the importance of the factual matrix — carries less weight in cases involving standard form contracts. Indeed, while a proper understanding of the factual matrix of a case is crucial to the interpretation of many contracts, it is less relevant for standard form contracts because the parties do not negotiate the terms. The contract is put to the receiving party as a take‑it‑or‑leave‑it proposition. Factors such as the purpose of the contract, the nature of the relationship it creates, and the market or industry in which it operates should be considered when interpreting a standard form contract, but they are generally not inherently fact specific and will usually be the same for everyone who may be a party to a standard form contract.
Moreover, the interpretation of a standard form contract itself has precedential value and can therefore fit under the definition of a pure question of law. In general, the interpretation of a contract has no impact beyond the parties to a dispute. While precedents interpreting similar contractual language may be of some persuasive value, it is often the intentions of the parties, as reflected in the particular contractual wording at issue and informed by the surrounding circumstances of the contract, that predominates. In the case of standard form contracts, however, judicial precedent is more likely to be controlling. Establishing the proper interpretation of a standard form contract amounts to establishing the correct legal test, as the interpretation may be applied in future cases involving identical or similarly‑worded provisions. The mandate of appellate courts — ensuring consistency in the law — is also advanced by permitting them to review the interpretation of standard form contracts for correctness. The result of applying the interpretation in future cases will of course depend on the facts of those cases.
Of the Law Societies of Upper Canada and Nunavut