My Reported Case Law
These are interesting reported court cases that I have been counsel on. Not all my cases were reported, and not all of them were interesting.
I mostly stopped doing civil litigation around 2000 and focussed on Social Benefits Tribunal (social assistance) cases, of which I have about 750 decisions. They are Tribunal rulings and have no precedent value, and as well are not in digitized form, so I have not listed them here.
Landlord and Tenant
- Kelly v Carslake 20 ACWS (3d) 408 (Ont Prov Ct, 1989)
The text of the reasons in this case are no longer available, but it was one I did before I was a lawyer, doing tenant activism in Peterborough. My client and I privately (and successfully) prosecuted one of the City's largest landlords on two counts under the Residential Rent Regulation Act, s.99(1)(a). The first count was for illegal key deposit charges, and the second was for a flat rate 'sublet' charge which (coincidentally) was exactly equal to the amount of the last month's rent deposit. The practices stopped over roughly 500 tenancies and the key deposits were refunded.
- R v Aon Inc (Ont Prov Ct, 1990)
The text of the reasons in this case are no longer available. Like Kelly above, this was a private prosecution in a L&T matter. The allegations were that NSF cheque charges in the amount of $25, and a $10 late rent charge, were illegal charges under the Residential Rent Regulation Act. The case lost and similar charges are now allowed by RTA General Reg s.19(4) and (5), insofar as they are truly charges made against the landlord by third party financial institutions.
- Morin v Abdelmessih
A typical example of an L&T-related small claims case before the area of law was taken from the courts and converted to a Tribunal administrative law system. Now practically everything is codified into the (now) Residential Tenancies Act, which despite complaints about L&T Board efficiency, is a marked improvement in the organization of substantive residential L&T law.
- R v Conforti
This was a private prosecution case, argued at trial by my friend Matt McGarvey. It was dismissed at trial, and I handled two appeals upwards. It was allowed on one count at General Division, but then completely dismissed at the Court of Appeal (the ruling linked here).
This case, the only animal cruelty case to make it to Ontario's highest court, is a good example of the difficulty of enforcing the criminal cruelty provisions with their convoluted and uncertain mens rea standards.
- Robitaille v Moore (extracts)
The largest companion animal killing damages award in Canada: $15,000 general and $15,000 punitive damages, plus $12,000 costs. It was a brutal klling of a small poodle by a landlord in the context of an L&T dispute.
- Gironda v Director (ODSP)
An unsuccessful fact-based ODSP court appeal, not unlike numerous others argued by other counsel.
- Weiler v Director, ODSP
This was an early attempt to integrate human rights law into ODSP interpretation. I tried argued that 'employability' for a single parent was not the same as for a single person due to the greater income requirements of a family (and thus the range of suitable job's available to them was smaller, so they should be judged at a lower disability threshhold). The court seemed to accept that principle, but we lost anyway and the Social Benefits Tribunal continued - inexplicably - to ignore the Code until the leading Tranchemontagne case was resolved in the Supreme Court of Canada in 2006.
- Barnes v Social Benefits Tribunal (Ont Div Ct, 2009)
This was (at least I think it was) an important dispute over whether the Social Benefits Tribunal has a duty to issue reasons when granting a reconsideration request, which decision had the effect of nullifying an earlier ODSP grant awarded after a full, regular SBT appeal hearing. In the absence of reasons the voiding of the earlier hearing result is both unreviewable by a court, and necessarily lacks any corrective function. This essentially allows the Tribunal, when asked, to cancel the results of its own hearings arbitrarily and with impunity. By ruling of 15 July 2009 three judges disagreed with me that this was a breach of natural justice or administrative fairness.
I dropped efforts to take the matter to the Court of Appeal when legal aid decided that my efforts to date were only worth $25/hour. Judging by market standards for this sort of work, it is likely that opposing counsel retained by the SBT was paid at a rate of 20 to 25 times what I was paid for the case. I found the case quite disturbing overall for all of these aspects.
Then again, maybe I'm just a sore loser. You decide.
- Llano v Royal Shirt (1)
- Llano v Royal Shirt (2)
- Llano v Royal Shirt (3)
- Llano v Royal Shirt (4)
This was an attempt to sue for wrongful dismissal in a union context where the union was decertifed shortly after the termination events, thus barring normal grievance and arbitration procedures. We ultimately lost at the Court of Appeal, though I got the satisfaction of a two-week trip to the Azores out of it, paid for courtesy of opposing counsel in a costs settlement after he was found to be "hectoring and insulting" during examination for discovery. Bad lawyer, no cookie (well, good lawyer gets the cookie!).
- Murray v Kubota Canada (trial)
- Murray v Kubota Canada (appeal)
A good example of how even a successful wrongful dismissal case can end up being financially pointless after multiple deductions off damages for mitigation, employment insurance payback, disability payment deductions, etc - and let's not forget income tax and other source deductions later.
Charter/Freedom of Expression
- Ramsden v Peterborough
This is another case I argued in Peterborough before I was a lawyer. A local musician/entertainer friend of mine was charged with illegal postering on utility poles under a municipal by-law, shortly after the Charter came into force. I lost it at trial and first appeal, after which a non-lawyer (like I was then) couldn't take it any further, so we gave it to lawyer Peter Jervis who kindly took it on pro bono. Peter took it up to the Court of Appeal, and then to the Supreme Court of Canada where it won 9-0.
The City's by-law was struck down. That's spelled: V-I-N-D-I-C-A-T-I-O-N. The case is still a leading SCC freedom of expression precedent, primarily on expression on or involving public property.
- Bell v City of Toronto
This is another very interesting by-law case, again resulting in the by-law being struck down (Ramsden was argued as a precedent). Toronto had a lawn-mowing by-law which restricted the height of yard vegetation. Sandy Bell had put in a naturalized garden front yard which exceeded the height limits and was charged and convicted. Murray Klippenstein, with whom I had just finished articling, and I took it on appeal and got the by-law struck down. The main grounds of the win were that Sandy was expressing her environmental beliefs to her son.
In our work on this case Murray once described my legal tactics as being like the TV show comedian "Red Green", in that they were unorthodox but they worked nonetheless. I have chosen to take that as a compliment and do not wish to be corrected if it wasn't (just kidding) ;-).
BTW my all-time favorite Red Green episode was the gull-wing doors on the pick up truck. This was a technical inspiration involving a pull-cord lawn mower engine being bolted onto the roof, bilateral bicycle chains and sprockets, relocated door hinges and sundry fastening devices. I can't recall any duct tape but it was probably in there somewhere.