Mutual Final Releases: Ontario

Releases are customarily signed at the end of litigation by the parties. The courts sometimes are called upon to interpret the breadth of the releases signed. The following are some principles the courts will consider in interpreting a signed release:

(a) One looks first to the language of a release to find its meaning;

(b) Parties may use language that releases every claim that arises, including unknown claims. However, courts will require clear language to infer that a party intended to release claims of which it was unaware;

(c) General language in a release will be limited to the thing or things that were specially in the contemplation of the parties when the release was given;

(d) When a release is given as part of the settlement of a claim, the parties want to wipe the slate clean between them;

(e) One can look at the circumstances surrounding the giving of a release to determine what was specially in the contemplation of the parties*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

S. 10(b) Canadian Charter of Rights and Freedoms

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The purpose of this section is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

The right to counsel is broken down into information and implementation components. The information component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementation component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel.

The case law has recognized that the implementation component can be delayed in circumstances of urgency or danger.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Self-Defence in Ontario : An Air of Reality

Where a defence of self-defence is raised, before the Court takes steps to fully consider it, the Court must first decide whether there is an air of reality to the self-defence point.

When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue. The air of reality test is not a high burden. The Court must determine if there is some evidence upon which a reasonable instructed jury could find that self-defence applies.

If there is an air of reality to the defence of self-defence, then the Crown must disprove beyond a reasonable doubt that the defendant acted in self-defence. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions for self-defence in s.34(1) of the Criminal Code do not apply as follows:

1. Did the accused believe on reasonable grounds that force or a threat was being used against him or her?

2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?; or

3. Was the act committed reasonable in the circumstances? *

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The Duties of a Mortgagee under a Power of Sale in Ontario

The duties of a mortgagee acting under a power of sale in Ontario are:

1. A mortgagee selling under a power of sale is under a duty to take reasonable precautions to obtain the true market value of the mortgaged property at the date on which the mortgagee decides to sell it. This does not mean that the mortgagee must , in fact, obtain the true value.

2. The duty of the mortgagee is only to take reasonable precautions. Perfection is not required. Some latitude is allowed to a mortgagee.

3. In deciding whether a mortgagee has fallen short of its duty, the facts must be looked at broadly and the mortgagee will not be adjudged to be in default of it’s duties unless it is plainly on the wrong side of the line.

4. The mortgagee is entitled to exercise an accrued power of sale for its own purposes whenever it chooses to do so. It matters not that the moment may be unpropitious and that by waiting, a higher price could be obtained.

5. The mortgagee can accept the best price it can obtain in an adverse market provided that none of the adverse factors are due to fault on it’s part.

6. Even if the duty to take reasonable precautions is breached, the mortgagor must show that a higher price would have been obtained but for the breach in order to be compensated in damages. *

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Entrapment in Canada

Entrapment occurs when:

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

The law of entrapment in Canada is intended to prevent the police from attracting someone who is not already involved in criminal activity into committing a crime by offering an opportunity to commit a criminal act. This is known as random virtue-testing. When determining whether the police engaged in random virtue-testing, the police conduct must be assessed for its reasonableness.

Reasonable suspicion is a low standard to meet and requires proof that the individual targeted is possibly engaged in criminal activity. It is something more than a mere suspicion and something less than a belief based on reasonable and probably grounds. The facts must support the suspicion and allow for an independent judicial assessment. It is important to consider the totality of circumstances when assessing the existence of reasonable suspicion. The inquiry must consider the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer’s grounds for reasonable suspicion can’t be assessed in isolation.

The court has the power to stay proceedings if entrapment is established.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Security of the Person: S. 7 Canadian Charter of Rights and Freedoms: Physical/Psychological Integrity

Security of the person is one of three interests afforded protection under s.7 of the Canadian Charter of Rights and Freedoms (the “Charter”). But the protection is not absolute. An individual may be deprived of security of the person provided the deprivation accords with the principles of fundamental justice.

S.7 of the Charter does not protect a person against any and all deprivations or intrusions upon personal security. The deprivation must be sufficiently serious to warrant Charter protection.

The right of security of the person protects the physical and psychological integrity of the individual. To mark out the boundaries that protect an individual’s psychological integrity from state interference is an inexact science. There is a qualitative aspect to this type of conduct that would ascend to the level of an infringement of this right. The right of security of the person does not protect an individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer from government action.

To establish a restriction of security of the person (psychological integrity) , an applicant must show , on a balance of probabilities, that the state conduct in issue had a serious and profound effect on the applicant’s psychological integrity. The effects of state interference are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. The effects need not rise to the level of nervous shock or psychiatric illness, but must extend beyond ordinary stresses or anxiety.

The phrase ” serious state-imposed psychological stress” fixes two requirements that must be satisfied for the right to security of the person to become engaged. The psychological harm must result from the conduct of the state. In other words, there must be a causal link between the impugned state conduct and the Charter violations claimed. And the psychological prejudice or harm must be serious.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise with respect to the specific circumstances of your case.

Rectification of Contracts in Ontario

On occasion, a written agreement may not reflect what the parties’ actually intended. Rectification of the agreement may be available to ensure it reflects the parties’ intentions. Rectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. It is limited to cases where a written instrument has incorrectly recorded the parties’ antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.

Where the error in the subject agreement is the result of a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that there is a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ agreement.

The party seeking rectification must show not only the putative error in the instrument but also the way in which the instrument should be rectified in order to correctly record what the parties intended to do. The applicable standard of proof is the balance of probabilities. A court will typically require evidence exhibiting a high degree of clarity , persuasiveness and cogency before substituting the terms of a written instrument with those said to form the parties’ true intended course of action.*

William Poulos, Barrister
* This Blog is not intended as a substitute for legal advice. If you require such advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Litigation Privilege in Canada

Litigation privilege is a common law rule that gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. This privilege has sometimes been confused with solicitor-client privilege. Solicitor-client privilege and litigation privilege are distinct: the purpose of solicitor-client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process. Solicitor-client privilege is permanent, but litigation privilege is temporary and lapses when the litigation ends. Litigation privilege applies to unrepresented parties and to non-confidential documents and is not directed at communications between solicitor and clients as such.

Although litigation privilege is distinguishable from solicitor-client privilege, it is nevertheless a class privilege and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation. Thus, any document that meets the conditions for the application of litigation privilege will be protected by an immunity from disclosure unless the case is one to which one of the exceptions to the privilege applies.

Litigation privilege is subject to clearly defined exceptions, not to a case-by-case balancing test. In the context of privileges, the exercise of balancing competing interests is associated with case-by-case privileges, not class privileges. The exceptions that apply to solicitor-client privilege are all applicable to litigation privilege. These include the exceptions relating to public safety, to the innocence of the accused and to criminal communications. They also include the exception recognized in Blank v. Canada (Minister of Justice), 2006 SCC 39 (Can Lii) for evidence of the claimant party’s abuse of process or similar blameworthy conduct. Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Palpable and Overriding errors

In Housen v. Nikolaisen (2002) 2 S.C.R. 235, at para. 25, the Supreme Court stated with regard to the standard to be applied on appeal of findings of fact, “palpable and overriding error” was the correct standard. The court stated as follows:

It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all
conclusions of fact, and even in the absence of these advantages, there are other compelling policy reasons
supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is
one , and only one, standard of review applicable to all factual conclusions made by the trial judge – that of
palpable and overriding error.

The palpable and overriding standard addresses both the nature of the factual error and its impact on the result. A palpable error is one that is obvious, plain to see. Examples of palpable factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically mean that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require a legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The rule in Browne v. Dunn

The rule in Browne v. Dunn (the “Rule”) establishes that if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it.

This Rule is one of fairness, aimed at preventing witnesses from being ambushed by not giving them an opportunity to state their position with respect to later evidence which contradicts them on an essential matter. The Rule’s application is not fixed, but lies within the sound discretion of the trial judge and depends on the circumstances of each case.

Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot be determined in the abstract. Each case is different. The rule is flexible, not rigid. Reasonable people may differ about which side of the line a failure to cross-examine on a particular point falls. A trial judge should be accorded considerable deference on a decision about the Rule’s application.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.