Aboriginal Law: Métis Membership

McCargar v. Métis Settlements Land Registry, 2019 ABCA 166 (38756) 

The Kikino Métis Settlement Council (“KMSC”) refused to grant Mr. McCargar’s application for membership in the Kikino Métis Settlement. He appealed that decision to the Métis Settlement Appeal Tribunal (“MSAT”).  The MSAT allowed the appeal and directed a reconsideration of Mr. McCargar’s membership application.  After a hearing, the KMSC again refused his application for membership on the basis he failed the requirements of the Métis Settlement Act or the three indicia of Métis identity enumerated in R. v. Powley, 2003 SCC 43. He also failed to meet the definition of membership set out in Membership Bylaw 057 of the Kikino Métis Settlement whereby he was committed to living in the settlement area and preserving a peaceful community. Mr. McCargar appealed the decision refusing his application for membership. The MSAT concluded it was reasonable for the KMSC to exercise its statutory authority under ss. 78(1)(c) and (2)(d) of the MSA in such a way as to refuse Mr. McCargar’s application. Mr. McCargar’s application for leave to appeal before a single judge of the C.A. was dismissed. “The application for leave to appeal…is dismissed with costs to the respondents, Métis Settlements General Council and Kikino Métis Settlement.”

Arbitration: Appeals from Awards

Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254 (38665) 

The parties agreed to arbitrate a contractual dispute under the Ontario Arbitration Act and agreed no appeal would lie to the courts from the arbitral award. The arbitrator concluded the Applicant had unlawfully terminated its contract with the Respondent and awarded the Respondent approximately $12M in damages. The Applicant applied to the Ontario Superior Court of Justice to set aside the arbitrator’s award pursuant to s. 46(1)3 of the Arbitration Act arguing it was made in excess of the arbitrator’s jurisdiction. The Ontario Superior Court of Justice held the arbitrator’s determination he could award damages for loss of profits was unreasonable and set aside the award. The C.A. held the lower court erred in conducting a review of the substance of the arbitrator’s award when s. 46(1)3 allows only for limited review for jurisdictional error. The appeal was allowed and the arbitrator’s award reinstated. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Appeals from Justices of the Peace

Mehedi v. Her Majesty the Queen in Right of Ontario, 2019 ONCA 148 (38718) 

The Applicant swore a private information against the same three individuals he had sued — Messrs. Smith, Hameed and Lacombe — for the offence of fraud under $5,000. Roffey J.P. declined to issue a warrant or summons directed at the proposed accused. The Applicant swore a second private information against a fourth individual, Mr. Mackay, for the same alleged offence.  Giuliette J.P. refused to issue process on the basis there was a lack of a prima facie case as there was insufficient evidence to charge Mr. Mackay. The Applicant brought an application for certiorari to quash both the decisions of Roffey J.P. and Giuliette J.P. not to issue process. Dambrot J. dismissed the application, holding neither of the Justices of the Peace had made a jurisdictional error. The C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Appeals from Justices of the Peace

Mehedi v. R., 2019 ONCA 387 (38748)

Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”

Criminal Law: Impaired; Alleged Ineffective Assistance of Counsel

Makotoko v. Her Majesty the Queen (Ontario), 2019 ONCA (38737)

The Applicant was observed by another motorist slumped over the steering wheel of his car. The car was stopped in the middle of the road. It was in drive and the doors were locked. A firefighter broke one of the car windows so the Applicant could be removed from the car. The paramedic assessed him and found he was in a hypoglycemic state. The police officer smelled alcohol on the Applicant’s breath and formed the opinion the Applicant had been driving while impaired by alcohol. The Applicant was convicted of operating a motor vehicle while impaired. The Summary Conviction Appeal judge held the Applicant was not denied the effective assistance of counsel and dismissed the conviction appeal. The Applicant’s application for leave to appeal to the C.A. was dismissed. “The application for leave to appeal…is dismissed.”

Human Rights: Discrimination

Hiamey v. Toronto (City), 2019 ONCA (38731)

Mr. Hiamey filed an application with the Human Rights Tribunal of Ontario alleging discrimination in respect of residential accommodation because of his ethnic origin and his receipt of public assistance, and also alleging reprisals taken against him contrary to the Human Rights Code. The Respondent City made a request for a summary hearing, which the Tribunal granted. The adjudicator dismissed Mr. Hiamey’s application, finding there was no reasonable prospect it would succeed. Mr. Hiamey’s request for reconsideration was denied by the adjudicator, who found he had not established any of the criteria that would justify reconsidering the Tribunal’s final decision. The Divisional Court dismissed the application for judicial review. The C.A. dismissed the application for leave to appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Torts: Negligence; Bus Accidents

Montague v. Toronto Transit Commission, 2019 ONCA 57 (38713) 

Ms. Montague boarded a Toronto Transit Commission bus with her shopping cart. She was seated in the priority seating at the front of the bus. She exited the rear of the bus and claimed she was injured when the door closed on her left hand with the shopping cart and her left foot.  She alleged her injuries were caused by the Respondent’s negligence and sought damages. A jury trial ensued. The jury determined the Respondent was not negligent in causing or contributing to the incident. Ms. Montague’s appeal to the Divisional Court was dismissed. The C.A. refused her application for leave to appeal and subsequently dismissed her motion for reconsideration. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”