Charities: De-registration

Ark Angel Foundation v. Canada (National Revenue), 2019 FCA 21 (38579)

The Ark Angel Foundation was incorporated in 1998 under the Canada Corporations Act. It was registered as a charitable foundation in the same year. Having conducted an audit of the Foundation for the period from December 1, 2008, to November 30, 2010, the CRA’s Audit Division sent the Foundation an “administrative fairness letter”, which described the areas of non‑compliance identified in the audit (failure to maintain adequate books and failure to devote all of the Foundation’s resources to charitable activities) and provided the Foundation with a chance to respond. The CRA indicated the books did not provide sufficient information to allow the Minister to determine whether there were grounds for revoking the charity’s registration and whether certain payments to one of the Foundation’s board members were made for charitable purposes. When it had reviewed the Foundation’s response, a Revocation Proposal was issued. It reiterated the concerns and explained the requirements imposed on charitable foundations by the Income Tax Act. The Foundation filed a notice of objection which outlined its concerns with the process. The Appeals Directorate reiterated the original concerns, confirmed the Revocation Proposal, and allowed further representations from the Foundation. The Foundation’s representations alleged further deficiencies in the Appeals Directorate’s letter and made no meaningful response to the substantive concerns. The Revocation Proposal was confirmed by letter on the basis the Foundation had not addressed the areas of non‑compliance addressed by the Appeals Directorate. The Foundation appealed directly to the Fed. C.A. under the Income Tax Act, s. 173(1)(a.1). The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Estoppel

The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354 (38746)

This Leave arises out of the failed attempt by the Applicant, Catalyst Capital Group Inc., to purchase Wind Mobile from the Respondent VimpelCom Ltd. VimpelCom’s interest in Wind Mobile was ultimately purchased by a consortium of purchasers (made up of most of the other Respondents). Catalyst sued the Respondents, alleging they committed the torts of inducing breach of contract, conspiracy, and breach of confidence which prevented it from acquiring Wind Mobile. It also alleged that VimpelCom breached its exclusivity agreement and confidentiality agreement. Catalyst’s claim was introduced five days before the commencement of the trial in another action it had initiated relating to its failed attempt at purchasing Wind Mobile. The Superior Court of Justice dismissed that action and the C.A. upheld dismissal. The defendants to the current action moved to dismiss Catalyst’s statement of claim on the basis of issue estoppel, cause of action estoppel, and abuse of process. The motions judge allowed the Respondents’ motion. He dismissed the claim against all the defendants as an abuse of process and the claim against most of the defendants on the basis of issue estoppel and cause of action estoppel. The C.A. dismissed Catalyst’s appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Dismissal of Actions

Mitchell v. Ville de Lévis, 2019 QCCA 410 (38729)

The Applicant, Mr. Mitchell, sued the three Respondents in response to various actions taken against him by the government and the public authorities since 2005. In answer, the Respondents applied for the dismissal of Mr. Mitchell’s application. The Superior Court held Mr. Mitchell’s application was unfounded and dismissed the action. The C.A. unanimously dismissed the motion for leave to appeal out of time. It held the criteria for appealing conclusions reached at trial were not met. “The application for leave to appeal…is dismissed with costs to the respondent, Attorney General of Canada.”

Class Actions: Certification

Vancouver City Savings Credit Union v. Jiang, 2019 BCCA 149 (38738)

Ms. Jiang bought a card issued by Citizens Bank and branded with a VISA logo from a retailer in Burnaby, B.C., for personal purposes. It had a face value of $25, but, as there was a $3.95 activation fee, she paid $28.95 for the card. The card was “good through 11/96”, had a monthly fee of $2.50 after that date, and was non‑refundable. She filed an action under Part 4 of the Business Practices and Consumer Protection Act against the Applicant financial institutions. The cards look and function like a credit card, are branded as VISA, American Express or MasterCard, and may be used for various purposes. She sought declarations; an accounting, restitution and restoration of fees; damages; and an injunction. She applied to have the action certified under the Class Proceeding Act with herself as representative plaintiff. The application to certify the action as a class proceeding was dismissed due to the inability to objectively identify the class members. The C.A. allowed the appeal and remitted the application to the lower court for determination of the remaining issues. The action was certified as a class proceeding, Ms. Jiang was appointed representative plaintiff for the resident and non‑resident classes, and five common issues were certified. The C.A. dismissed three further appeals. “The motion to join three Court of Appeal for British Columbia files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Constitutional Law: Division of Powers; Firearms

Canada’s National Firearms Association v. Attorney General of Quebec, 2019 QCCA 755 (38710)

Following the enactment of the Firearms Registration Act by the Québec National Assembly in June 2016, the Applicants, Canada’s National Firearms Association and Philippe Simard, applied to the Québec Superior Court for a declaratory judgment and an injunction in order to challenge the constitutional validity of that Act based on the division of legislative powers established by the Constitution Act, 1867. The National Assembly passed the Act as a result of the enactment by the Parliament of Canada in 2012 of the Ending the Long‑gun Registry Act which removed the requirement to register long guns and decriminalized the possession of an unregistered long gun. At the time, the federal authorities had refused to provide the Québec government, as it had requested, with the registry data pertaining to the province of Québec. The Québec government had therefore brought court proceedings to obtain the data. In Québec (Attorney General) v. Canada (Attorney General) the Supreme Court recognized the power of Parliament to dismantle the registry and destroy the data it contained. The application for a declaratory judgment and an injunction was dismissed by the Superior Court, and the appeal was dismissed by the C.A. “The application for leave to appeal…is dismissed with costs to the respondent, Attorney General of Quebec. Kasirer J. took no part in the judgment.”

Creditor-Debtor: Foreign Judgments

Li v. Wei, 2019 BCCA 114 (38679)

Guilian Li (also known as Gui Lian Li) and her husband Zijie Mei (also known as Zi Jie Mei) live in British Columbia and had business operations in China under a company they owned, Fenghui Ltd. Tong Wei loaned money to Fenghui Ltd. The 2012 loan was guaranteed by Ms. Li. The company defaulted on its loan payments and the guarantees were not fully honoured. Legal proceedings were initiated in China and a mediated settlement was reached. The settlement stipulated a lump sum payment covering the principal of the loans, interest and expenses for collection. As part of the settlement, it was agreed any remaining unpaid balance was subject to default interest calculated at a rate of 0.2% of the unpaid balance per day (73% annualized). Two Chinese judgments confirmed the settlement agreement. The loans were not repaid on the date agreed in the settlement. Mr. Wei initiated enforcement proceedings in China and obtained a notice of enforcement against Fenghui Ltd, Ms. Li and Mr. Mei. Enforcement proceedings were then commenced in British Columbia against Mr. Mei and Ms. Li. In two separate decisions, a judge of the B.C.S.C. gave judgment enforcing the Chinese judgment, with a penalty interest rate of 60% rather than the 73% ordered by the Chinese court. On appeal to the B.C.C.A. a majority agreed with the trial judge’s conclusions 60% interest was appropriate. Justice Willcock, in dissent, concluded modifying the penalty interest impermissibly looked at the merits of the contract between the parties and interfered with a foreign judgment. “The application for leave to appeal…is dismissed with costs.”

 Criminal Law: Assault

J.T. v. R., 2019 BCCA 180 (38775)

There is a publication ban in this case in the context of assault, and assault causing bodily harm. “The application for leave to appeal…is dismissed.”

Criminal Law: Child Porn

J.M. v. R., 2017 QCCA 543 (37831)

There is a publication ban in this case, as well as a sealing order. The court file contains information that is not available for inspection by the public, in the context of child porn and fraudulently impersonating another person. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The motion to add the Attorney General of Canada as an intervener on the application for leave to appeal is dismissed. The miscellaneous motions are dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Hearsay

R. v. Tsega, 2019 ONCA 111 (38590)

Three men invaded a marihuana dealer’s home. They shot and killed the dealer. They stole drugs, money, cell phones and other items. After they were arrested and a subsequent police investigation, two of the home invaders gave statements to the police implicating Mr. Tsega in planning the home invasion and preparing. He was charged with second degree murder. The co‑accused refused to testify at his trial. The trial judge admitted the police statements for the truth of their contents, before R. v. Bradshaw, 2017 SCC 35, was released. Mr. Tsega was convicted of manslaughter. The C.A. applied Bradshaw and held the police statements were not admissible. It allowed an appeal and ordered a new trial. “The application for leave to appeal…is dismissed.”

Criminal Law: Search Warrants

M.S. v. R., 2019 ONCA 421 (38752)

There is a publication ban in this case in the context of an application for certiorari re a search warrant executed by police. “The application for leave to appeal…is dismissed.”

Municipal Law in Québec: Tax Arrears

Université du Québec à Montréal v. Ville de Montréal, 2019 QCCA 751 (38716)

The Applicant, Université du Québec à Montréal, owned a building at 141 Avenue du Président‑Kennedy in Montréal. During the 2009 to 2011 taxation years, a company called Heavy2light Oil Technologies occupied space in the Applicant’s building. Heavy2light, whose activities were not related to education, vacated the premises without giving notice and without having paid the property taxes, which amounted to $30,720.72 for the three taxation years. That company’s registration in the enterprise register has since been cancelled. In March 2014, the City filed a motion to institute proceedings seeking payment of the property taxes from the Applicant and Heavy2light. The Municipal Court of Montréal dismissed the City’s motion to institute proceedings against the Applicant but allowed the City’s motion to institute proceedings against Heavy2light, which was ordered to pay the arrears of property taxes being claimed. The C.A. allowed the appeal. “The motion for leave to intervene by Concordia University is dismissed. The application for leave to appeal…is dismissed with costs.”

Partnerships: Dissolution

Parker v. Canadian Home Publishers Inc., 2019 ONCA 314 (38697)

Canadian Home Publishers (“CHP”), a limited partnership, was formed having Canadian Home Publishers Inc. (“CHPI”), as its general partner and David Colville‑Reeves as its sole limited partner. CHPI was wholly‑owned by Lynda Reeves who married David in 1985. CHP was formed to acquire the business of Canadian House and Home magazine. Lynda ran the business as its publisher. David and Lynda verbally agreed CHPI and David would each be entitled to 50% of the profits of the business. This profit sharing arrangement continued to the date of David’s death and afterward. In the early years of Lynda’s management of the business, David provided capital contributions to CHP totaling approximately $1.8M. In 1991, David and Lynda divorced. David died on October 25, 2012. The parties had made no arrangements regarding what would happen to the business interests in the event of David’s death. There was no agreement the estate or any beneficiary would become a substituted limited partner in CHP. The parties brought an application to determine the effect of David’s death on the limited partnership and entitlement of the parties to the assets of the limited partnership upon dissolution, on the basis of the Limited Partnerships Act and the Partnerships Act. The application judge determined CHP was dissolved on David’s death. Any residual assets of CHP were to be distributed equally between Lynda and the Estate. The C.A. confirmed CHP was dissolved on David’s death but held the Estate had no interest in the residual assets of CHP. “The application for leave to appeal…is dismissed with costs.”

Real Property/Contracts:  Non-Performance

Shao v. Wang, 2019 BCCA 130 (38704)

This Leave concerns the collapsed sale of a luxury home in Vancouver. The central issue concerns the response the vendor, Ms. Wang, gave to the intended buyer, Ms. Shao, when the latter inquired about why the vendor wanted to sell the property. Ms. Shao was told the reason for selling was the vendor’s grand‑daughter had moved to a school in a different part of the city. The vendor and buyer entered into a contract of sale and purchase. Before the closing date, the buyer learned an alleged gangster had been shot fatally near the front entrance of the property. The death was an unsolved murder and the victim was the vendor’s son‑in‑law, who had resided at the property. The buyer decided not to complete the transaction. The vendor initiated a civil claim against the buyer for breach of contract. The buyer counterclaimed, asserting the vendor had fraudulently misrepresented the state of the property and the prior incidents on the property. The trial judge held the vendor had made a fraudulent representation that vitiated the contract of purchase and sale. The C.A. overturned the trial judge, finding he erred in characterizing the vendor’s representation about the reason for selling as incomplete and designed to conceal the place and manner of her son‑in‑law’s death. “The application for leave to appeal…is dismissed with costs.”

Tax: Non-Capital Losses; GAAR

Birchcliff Energy Ltd. v. Canada, 2019 FCA 151 (38761)

Veracel Inc. filed bankruptcy proceedings and ceased to carry on its medical equipment business. At the end of 2004, Veracel had a variety of tax attributes, including $16.2M in non-capital losses. Later in 2005, Veracel and the Applicant taxpayer, Birchcliff Energy Ltd. amalgamated and continued to use the name Birchcliff. There were many steps leading to their amalgamation including steps to obtain additional capital and resulting in the creation of Class B shares of Veracel before the amalgamation. As a result, in filing its 2006 tax return Birchcliff claimed these non‑capital losses. The Respondent, Minister of National Revenue reassessed to deny the use of those non‑capital losses. The Tax Court agreed and dismissed the appeal from the reassessment finding GAAR applied in this case. The Fed. C.A. also agreed and dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Tax: Time Extensions

Gratl v. R., 2019 FCA 3 (38768)

The Minister of National Revenue reassessed the Applicant’s 2003 and 2004 taxation years under the Income Tax Act. The Applicant’s accountant filed notices of objection to the March 2009 notices of reassessment. The Minister mailed a notice of confirmation to the Applicant. The Applicant filed applications for an extension of time to appeal the March 2009 notices of reassessment pursuant to s. 167 of the Act. The Tax Court judge dismissed the applications for an extension of time. The Fed. C.A. dismissed the 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 with costs.”

Torts: Negligence; Oil Spill Remediation

Doug C. Thompson Ltd. (Thompson Fuels) v. Gendron, 2019 ONCA 293 (38698)

On December 18, 2008, the Applicant, Thompson Fuels delivered 700 litres of oil to the Respondent Wayne Allan Gendron. Almost immediately after the delivery, the oil leaked from one of the two tanks Mr. Gendron had installed himself. The leak was discovered by Mr. Gendron approximately one hour after the oil was delivered. He collected approximately 100 litres of fuel oil in Tupperware containers while some of it remained and soaked into the soil. The rest of the oil found its way to a lake nearby through a drainage system located under Mr. Gendron’s home and then through the city’s culvert. The Ministry of Environment (MOE) Spill Action Centre, informed of the leak, sent a report to the Technical Standards and Safety Authority responsible for the provincial regulation of fuel oil distribution. On December 22, 2008, a fuel safety inspector reviewed the report and did a visual inspection of Mr. Gendron’s property. On December 24, 2008, the inspector ordered Mr. Gendron to obtain a professional assessment on the full extent of the spill’s impacts to both soil and groundwater. On December 29, 2008, Mr. Gendron reported the matter to his insurer who retained an independent adjuster and remediation contractor. When informed by the contractor the oil entered the lake nearby, the MOE ordered Mr. Gendron to undertake remediation. The on‑site remediation, which included the demolition of the house, was carried out until July 2009. The cost of the off‑site remediation ultimately reached close to $2M. Mr. Gendron was eventually ordered to compensate the City of Kawartha Lake which had to complete remediation when Mr. Gendron’s off‑site insurance coverage was exhausted. On July 15, 2009 Mr. Gendron filed proceedings against Thompson Fuels and two more defendants for negligence. The Ontario Superior Court of Justice granted the action against Thompson Fuels. The C.A. dismissed the appeals filed by Thompson Fuels and Mr. Gendron with the exception of granting a reduction in the damages equal to the amount paid in relation to Mr. Gendron’s line of credit. “The motion for an extension of time to serve and file the response to the application for leave to appeal of the respondent, Wayne Allen Gendron, is granted. The application for leave to appeal…is dismissed with costs.”

Wills & Estates: “Marriage-like Relationships”

Queano v. Robledano, 2019 BCCA 150 (38740)

Barbara Jacinto died unexpectedly on April 14, 2014. She had executed a will that designated the Respondent, Ms. Robledano, as her sole beneficiary. The original will was never found after her death and by application of the presumption of revocation, Ms. Jacinto was declared to have died intestate. In court proceedings, Ms. Robledano maintained she was the sole beneficiary of the estate on the ground she was in a “marriage‑like relationship” with Ms. Jacinto under s. 20 of the Wills, Estates and Succession Act. The Applicant, Ms. Queano, one of Ms. Jacinto’s sisters, contended that while Ms. Robledano had at one time been in a marriage-like relationship with Ms. Jacinto, their relationship had ceased to be marriage‑like by the time Ms. Jacinto died. Ms. Queano argued Ms. Robledano was not a spouse under the Act and the estate should be split among Ms. Jacinto’s six sisters and one brother. The trial judge held Ms. Robledano was the surviving spouse under the Act and therefore entitled to the estate. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”