advocatemmmohan
just another law knowledge bank
nbsp nbsp nbsp nbsp nbsp
Criminal law — Offences — Disobeying order of court — Criminal charge laid for disobeying superior court order in civil matter — Criminal Code provision making it criminal offence to disobey court order unless “a punishment or other mode of proceeding is expressly provided by law” — Rules of Civil Procedure providing for contempt procedures — Whether exception to Criminal Code provision applies — Criminal Code, R.S.C. 1985, c. C-46, s. 127 — Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 60.11, 60.12 The appellant was charged under s. 127(1) of the Criminal Code with disobeying a court order, granted in 1994, that enjoined her and others from displaying protest signs in the vicinity of specific abortion clinics. She brought a pre-trial motion to quash the information on the ground that the exception in s. 127(1) applied because Ontario Rules 60.11 and 60.12 precluded the application of s. 127(1). The courts below held that they did not. Held: (Fish J. dissenting) The appeal should be dismissed. Per The Chief Justice, LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. The exception in s. 127 will be triggered where Parliament or a legislature has provided a legal foundation for the court’s power to issue contempt orders, defined the circumstances in which a person will be found in contempt, and provided a specific punishment or mode of proceeding. On the basis of R. v. Clement, neither the specificity of the punishment nor the comprehensiveness of the procedure is determinative of whether a law satisfies the conditions for ousting the application of s. 127 of the Cr. C. Rather, the determination must be based on a conclusion that Parliament or the legislature intended to limit the application of s. 127 by creating an express alternative statutory response to acts amounting to contempt of court. The fact that rules of court provide for punishment or a mode of proceeding is also not sufficient to trigger the exception if the order was issued pursuant to the court’s inherent common law power. The Ontario Rules do not define contempt or specify the circumstances in which a person will be found in contempt. A judge must thus rely on the “common law substratum” in issuing an order for contempt under Rule 60.11. Further, the Ontario Rules do not establish the legal foundation for a contempt proceeding, but simply circumscribe the judge’s power to make orders on finding a person in contempt. The common law must also be relied on in deciding on the offender’s punishment. As a result, while Rules 60.11 and 60.12 set out in considerable detail the procedure to be followed on a motion for a contempt order, in light of the Court’s reasoning in Clement, procedure alone is insufficient to trigger the exception in s. 127. Per Fish J. (dissenting): Rule 60.11(1), authorized by statute, provides a legislative foundation for the enforcement of court orders. It sets out in detail a complete procedural framework for the obtaining, the making and the enforcement of the orders it expressly contemplates. The power to make and enforce the order flows from the promulgation of the rule and not from the inherent common law powers of superior courts. The same is true of the sanctions: They are expressly set out in the relevant rules and neither is dependent on, nor circumscribed by, the common law relating to disobedience of court orders. Manifestly, this legislative scheme is not at all analogous to the rules considered in Clement. Rules 60.11 and 60.12 do not merely recognize or preserve the common law. On the contrary, they go beyond the common law and create an express mode of proceeding that carries with it express judicial powers. The exception in s. 127 of the Criminal Code does not require more.
SUPREME COURT OF CANADA CITATION: R. v. Gibbons, 2012 SCC 28 DATE: 20120608 DOCKET: 33813 BETWEEN: Linda Dale Gibbons Appellant and Her Majesty the Queen Respondent CORAM: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. REASONS FOR JUDGMENT: (paras. 1 to 16) DISSENTING REASONS: (paras. 17 to 39) Deschamps J. … Continue reading
Insurance — Automobile insurance — No‑fault public automobile insurance scheme — Tree falling on vehicle causing driver’s death — Type of causal link necessary between damage and automobile — Whether driver’s injuries were “caused by an automobile, by the use thereof or by the load carried in or on an automobile”? — Automobile Insurance Act, R.S.Q., c. A‑25, s. 1 “accident”, “damage caused by an automobile”. Civil procedure — Exception to dismiss action — Tree falling on vehicle causing driver’s death — Driver’s family members filing action in damages against city where accident occurred — Whether civil claim barred by virtue of public automobile insurance scheme’s application —Code of Civil Procedure, R.S.Q., c. C‑25, arts. 75.1, 165(4) — Automobile Insurance Act, R.S.Q., c. A‑25, s. 83.57. R was killed when a tree fell on the vehicle he was driving in the City of Westmount. R’s parents and three brothers filed an action in damages against the City on the basis of civil liability under the Civil Code of Québec. They alleged that, as the owner of the tree, the City had failed to properly maintain it. The City moved to dismiss the action under arts. 165(4) and 75.1 of the Code of Civil Procedure. It argued that the injury resulted from an accident caused by an automobile and, therefore, that any compensation for personal injury was governed by the Automobile Insurance Act(“Act”). The Superior Court granted the City’s motion and dismissed the action. The Court of Appeal concluded that an injury is not “damage caused by an automobile” simply because the victim was in a vehicle at the time of the accident. It found that the motion’s allegations led to the conclusion that there was nothing to connect R’s injuries with the fact that he was in a vehicle. It allowed the appeal and held that the case could proceed in the Superior Court. Held: The appeal should be allowed. The Act is considered remedial legislation. Therefore, it must be interpreted in accordance with s. 41 of the Interpretation Act. It must be given a large and liberal interpretation to ensure that its purpose is attained. The Court of Appeal’s decision in Productions Pram inc. v. Lemay,1992 CanLII 3306 (QC CA), [1992] R.J.Q. 1738, teaches that, in determining whether the Act applies, a court must not look for a traditional causal link between fault and damage as is routinely done in delictual or quasi‑delictual civil liability cases. The principles from Pram are a useful guide to the interpretation of the Act and should be reaffirmed. Each case must be considered on its facts. However, at a minimum, an accident arising out of the use of a vehicle as a means of transportation will fall within the definition of “accident” in the Act and will therefore be “caused by an automobile” within the meaning of the Act. Any civil action in connection with the damage caused by that accident will be barred and victims will have to file a claim with the Société de l’assurance automobile du Québec. The vehicle’s role in the accident need not be an active one. The mere use or operation of the vehicle, as a vehicle, will be sufficient for the Act to apply. This interpretation follows from a straightforward application of the principles developed in Pram. It is in line with the jurisprudence and the literature, and it gives effect to the objective of the legislative scheme. On the facts of this case, the Act applies to R’s accident. Although the vehicle may have been stationary or moving through an intersection, the evidence on the record is that R was using the vehicle as a means of transportation when the accident occurred. This is enough to find that the damage arose as a result of an “accident” within the meaning of the Act and that the no‑fault benefits of the scheme are triggered. Therefore, the civil claim is barred and R’s parents and brothers must turn instead to the Société de l’assurance automobile du Québec for compensation. The Court of Appeal erred in interpreting the Act too narrowly. Such an interpretation risks unduly restricting the intended application of Quebec’s no‑fault scheme and must therefore be rejected.
SUPREME COURT OF CANADA CITATION: Westmount (City) v. Rossy, 2012 SCC 30 DATE: 20120622 DOCKET: 34060 BETWEEN: City of Westmount Appellant and Richard Rossy, Sharon Rossy, Justin Rossy, Luke Rossy, Nicholas Rossy and Société de l’assurance automobile du Québec Respondents CORAM: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Cromwell and Karakatsanis JJ. REASONS FOR JUDGMENT: (paras. 1 … Continue reading
Criminal law — Offences — Manslaughter — Causation — Accused punching victim in head during barroom altercation rendering him unconscious — Third party intervening and punching victim in head — Victim dying from injuries — When does an intervening act by another person sever causal connection between accused’s act and victim’s death, thereby absolving accused of legal responsibility? — Whether it was open to trial judge to find that accused’s assaults remained a significant contributing cause of death despite intervening act.
SUPREME COURT OF CANADA CITATION: R. v. Maybin, 2012 SCC 24 DATE120518 DOCKET: 34011 BETWEEN: Matthew Leslie Maybin and Timothy Andrew Maybin Appellants and Her Majesty The Queen Respondent – and – Attorney General of Ontario Intervener … Continue reading
Order I Rule 1 C.P.C=The sole defendant in the Original Suit is the appellant in A.S.No.213 of 2003 and Sri Venkateshwara Cooperative Industrial Estate Limited (‘the Society’, for brevity), represented by its authorised signatory, one of the directors and five others are the appellants in A.S.No.2990 of 2004. They were not parties to the main suit, but however, they filed an application in C.M.P.No.15246 of 2003 seeking leave of this Court to prefer an appeal against the impugned judgment and decree on the ground that the Society has purchased the suit land and that they are aggrieved by the impugned judgment. The said petition was ordered.=Since it appears that the plaintiffs’ have established their case in the suit filed by them against the defendant that the plaintiffs are dominant litus and they are not claiming relief from the society, their case cannot be dismissed merely on the ground that the Society is not impleaded as party to the suit. Though it is also argued on behalf of the appellants that the suit filed by three different plaintiffs in respect of land purchased by them separately and, therefore, they cannot file a joint suit, but, the suit filed by the plaintiffs’ appears to be maintainable under Order I Rule 1 C.P.C., which reads that all the persons may be joined in one suit as plaintiffs where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative and if such persons brought separate suits, any common question of law or fact would arise, since all the plaintiff’s’ have been alleging that the defendant tried to interfere with their possession and claiming relief against one and the same defendant arising out of the same act or transaction, I am of the view that the suit filed by the plaintiffs’ is maintainable.
THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT Nos.213 of 2003 & 2990 of 2004 Dated:- November, 2010 APPEAL SUIT No.213 of 2003 Between:- P.Rathan Lal …Appellant AND N.Sudarshan Reddy and others …Respondents APPEAL SUIT No.2990 of 2004 Between:- Sri Venkateshwara Coop. Industrial … Continue reading
The petitioner is the owner of construction equipment vehicles which are used in the mining industry. The question whether they are liable to life tax under the Andhra Pradesh Motor Vehicles Taxation Act=whether or not the Rocket Boomers used for tunneling and drilling works are motor vehicles. On such application being made, the RTA shall, if necessary, consult the manufacturers of those vehicles or experts in the field of construction equipment and determine the question as to whether the owners of those vehicles are liable to pay life tax after getting their vehicles registered under the MV Act. All the other writ petitions, subject to the observations in this common order, shall stand dismissed. There shall be no order as to costs.”
THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT PETITION NO.51 OF 2012 DATED:3.1.2012 Between: SMS Infrastructure Ltd., Thummalapally, Uranium Mine Project Vemula Mandal, Y.S.R. Kadapa District Rep. by its Chief Vigilance and Administrative Officer S.M. Khaleel, S/o. Late S.M. Bazlullah R/o.D.No.4-8-205/6 Subhakar Reddy Colony Pulivendula … Continue reading
no arrest in matrimonial cases during investigation =the petitioners apprehend arrest in the hands of the 1st respondent-Police. In the present case, the question of identity and custodial interrogation is not necessary. Hence, the first respondent-Police are directed to complete the investigation without making arrest of the petitioners.
THE HONOURABLE SRI JUSTICERAJA ELANGO CRIMINAL PETITION No.161 of 2012 ORDER: Petitioners approached this Court invoking the provisions under Section 482 Cr.P.C. seeking to quash the proceedings against them in Crime No.108 of 2011 of Darsi Police Station, Prakasam District, whereby they are arrayed as accused for the offence punishable under Sections 498-A of IPC and … Continue reading
The Andhra Pradesh Electricity Regulatory Commission entertained a Fuel Surcharge Adjustment (FSA) claim made by the Andhra Pradesh Power Co-ordination Committee on behalf of the four Distributing Companies (DISCOMS) in the State for the financial year 2008-09 and by its proceedings dated 05.06.2010 permitted them to levy FSA charges as indicated therein on all consumers, except LT agricultural consumers, for the four quarters of that financial year. The proceedings dated 05.06.2010 came to be challenged before this Court in a batch of writ petitions by aggrieved consumers.=Whether the Andhra Pradesh Power Co-ordination Committee constituted under G.O.Ms.No.59 dated 07.06.2005 has locus standi to file an application on behalf of the four Distributing Companies? 3) Whether the application filed by the Andhra Pradesh Power Co-ordination Committee on behalf of the Distributing Companies is barred by limitation? Whether the Andhra Pradesh Electricity Regulatory Commission has inherent power under Regulation 55 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 to condone such delay? 4) Whether the Andhra Pradesh Electricity Regulatory Commission is obligated to comply with the principles of natural justice while passing the impugned order determining FSA?
THE HON’BLETHE CHIEF JUSTICE SHRI MADAN B.LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.858 OF 2011 AND BATCH DATED 20TH JANUARY, 2012 BETWEEN M/s.Jairaj Ispat Limited, Plot No.8, Phase-III, I.D.A., Jeedimetla, Hyderabad, Rep. by its Managing Director, S.K.Goenka and others. …Petitioners And A.P. Electricity Regulatory Commission, Rep. by its … Continue reading
where an appeal is to be filed on acquittal of calendar case? =In view of the fact that the acquittal of the accused in Calendar Case No.975 of 2008 on the file of the Chief Metropolitan Magistrate at Visakhapatnam, and in view of the amended provisions of Section 372 of the Criminal Procedure Code, which came into effect from 31.12.2009, the appeal has to be presented before the Sessions Court
THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL (SR) No.2368 OF 2012 JUDGMENT:- In view of the fact that the acquittal of the accused in Calendar Case No.975 of 2008 on the file of the Chief Metropolitan Magistrate at Visakhapatnam, and in view of the amended provisions of Section 372 … Continue reading
The Assessment order dated 17-11-2011 passed by the 2nd respondent for the period April, 2009 to January, 2011 under the provisions of the A.P. VAT Act, 2005 (for short ‘the 2005 Act’) is assailed in this writ petition, inter alia on the ground that a common Assessment Order for the period April, 2009 to January, 2011 cannot be passed, since Section 2 (36) of the 2005 Act defines tax period as a calendar month or any other period as may be prescribed, and no other period other than a calendar month has been prescribed by the Rules made under the Act; and on the ground that the Assessment Order is contrary to the provisions of Section 4 (9) (d) of the 2005 Act, which enjoins that ‘every dealer, other than those mentioned in clause (a) and (b) and whose annual total turnover is more than rupees five lakhs and less than rupees one crore and fifty lakhs (1.5 crore) shall pay tax at the rate of four percent (4%) of the taxable turnover of the sale or supply of goods, being food or any other article for human consumption or drink served in restaurants, sweet-stalls, clubs, any other eating houses or anywhere whether indoor or outdoor or caterer.’ The contention is that the 2nd respondent erroneously interpreted this provision as restricted to the turnover comprising sales within the premises and erred in concluding that sales made outside the licenced premises are not to be computed under Section 4 (9) (d) of the 2005 Act.
THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No. 1322 of 2012 Dated: 23-1-2012 Between M/S Sri Balaji Ghee Sweets and Home Foods, Vijayawada, rep. by its Proprietor Mr.K.Srinivasa Rao …Petitioner And The Deputy Commissioner (CT), No.I Division, Vijayawada and others …Respondents … Continue reading
company law= These company applications have been taken out under Section 391 of the Companies Act, 1956 read with Rule 67 of the Companies (Court) Rules, 1959 seeking an order to dispense with the meeting of the shareholders of the applicant companies= The Board of Directors of the applicant companies have considered the scheme of amalgamation and passed resolution approving the scheme of amalgamation. All the shareholders in the applicant companies have placed on record their affidavits consenting for the proposed scheme of amalgamation. The 2nd Transferor company, 3rdTransferor company and the Transferee company undertakes to place on record consent letters from the unsecured/secured creditors at the time of hearing of the company petitions. In view of the affidavits placed on record and the undertaking given by the applicant companies, there is no need of convening the meeting of the shareholders of the Transferor and Transferee companies. 13. Accordingly, all the applications are allowed dispensing with the convening the meeting of the shareholders of the applicant companies.
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Company Application Nos.1619, 1620, 1621 & 1622 of 2011 Between: Celon Life Sciences Limited (1st Transferor Company) CelonOrganics Private Limite d (2nd Transferor Company) Swyzer Laboratories Limited (3rd Transferor Company) Celon Laboratories Limited (Transferee Company) …Applicants … Continue reading
advocatemmmohan 