Granted (1)

Real Property: Positive Covenants

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145 (38741)

Crystal Square was a mixed‑use retail complex, office tower, residential tower and hotel complex in Burnaby, B.C. Its developer, the Crystal Square Development Corporation and the City of Burnaby entered into an agreement that contained easements for access to parking and covenants to pay for that access (the “ASP Agreement”) in March 1999. The ASP Agreement, which was registered as an easement in the Land Titles Office on March 17, 1999, contained covenants to pay money and covenants the Development Corporation and the City would have their successors assume the ASP Agreement. Strata Plan LMS 3905 was deposited on May 26, 1999, bringing the Applicant, a strata corporation comprised of 64 strata lots in Air Space Parcel 2 (the “Owners”) into existence. The Owners never signed an assumption agreement adopting the terms of the ASP Agreement, as required by clause 16.3, and there was no evidence they adopted custom bylaws. The Respondent, Crystal Square Parking Corporation (“CSPC”), owned Air Space Parcel 5, the parking facility within Crystal Square. CSPC purchased the parking facility, took an assignment of the ASP Agreement and became “the ASP 5 Owner” in the ASP Agreement on June 28, 2002. Although the Owners generally abided by the ASP Agreement, they took issue with certain matters under that agreement. Those disputes eventually led to the Owners’ decision to seek an order that the positive covenants, and, in particular, the promises to pay the annual base rate and a percentage of operating expenses related to the parking facility were unenforceable against the Owners. The trial judge found the payment provisions were not binding on or enforceable against the owners, allowed the claim, and dismissed CSPC’s counterclaim. The C.A. allowed CSPC’s appeal. “The application for leave to appeal…is granted with costs in the cause.”

Civil Procedure/Torts: Delay

Salman v. Patey, 2019 ONCA 365 (38750)

Rawia Salman was involved in a MVA. She brought a statement of claim against the Respondents, a lawyer and his firm, alleging they were negligent in their representation of her for the MVA, her statutory accident benefits, her disability claims, and her life insurance. The motion judge found Ms. Salman knew of Mr. Patey’s alleged negligence in January of 2009 when she dismissed him as her counsel. As a result, she was barred by the Limitations Act from bringing an action against Mr. Patey and his firm many years later. The judge granted the motion for summary judgment and dismissed Ms. Salman’s action. The C.A. subsequently dismissed a motion for an extension of time to appeal the summary judgment. No reasons were provided beyond the order. In a separate three paragraph judgment, the C.A. reviewed the dismissal of the motion for an extension of time to appeal. It determined the motion judge applied the correct test and made no error. It dismissed the appeal. “The application for leave to appeal…is dismissed without costs.”

Criminal Law: Delay

Vader v. R., 2019 ABCA 191 (38764)

Mr. and Mrs. McCann disappeared on July 3, 2010, and not seen since. Based on information connecting Mr. Vader to the McCanns’ vehicle and cell phone, as well as other evidence, Mr.Vader was charged with two counts of first degree murder, on April 18, 2012. The trial was scheduled to begin in April 2014. However, in March 2014, the prosecution entered a stay of proceedings as a result of disclosure issues; proceedings resumed in December 2014, with the trial scheduled for March 2016. In October 2015, Mr. Vader filed an application for a stay of proceedings, alleging an abuse of process and a breach of his right to be tried within a timely manner under s. 11(b). The application was dismissed. Mr. Vader pled not guilty at the opening of the trial in March 2016. The trial (by judge alone) concluded in June 2016, and judgment given in September 2016; Mr. Vader was found guilty of second degree murder. Mr. Vader filed an application asking to vacate the guilty verdicts and declare a mistrial, arguing the trial judge erroneously relied on s. 230 of the Criminal Code, which had previously been declared unconstitutional, and raising a reasonable apprehension of bias. The application was dismissed. While the trial judge admitted he had relied on s. 230 in error, he refused to declare a mistrial, and substituted manslaughter convictions for the second degree murder convictions. Mr. Vader was sentenced to life imprisonment on January 25, 2017. Mr. Vader’s appeal was unanimously dismissed on May 17, 2019. The C.A. found although the delay exceeded the presumptive ceiling for a reasonable length of trial, it was not unreasonable in this case, due to its complexity. The C.A. also rejected Mr. Vader’s argument the doctrine of functus officio prevented the trial judge from correcting his mistake. “The application for leave to appeal…is dismissed.”

Criminal Law: Search & Seizure

Okemow v. R., 2019 MBCA 37 (38757)

After shots were fired at three men walking on a downtown street in Winnipeg, resulting in a homicide and an injury, police responded to a “gun seen” call near a residence. Police then received another call regarding a man hiding in proximity to the same residence. On arrival, police officers observed the Applicant, Michael Okemow, whom they believed matched the shooting suspect’s description, enter another nearby residence. When police knocked on the door, Mr. Okemow answered and gave the officers permission to come inside and speak with him. Mr. Okemow then provided a false name and informed the police although he stayed at the residence, he was unaware of the identity of the owner. As officers searched the house, Mr. Okemow was detained outside in order to confirm his identity. During the search, the police found two firearms, one of which was later identified as the weapon used in the shooting. Mr. Okemow was subsequently arrested and charged with murder and attempted murder.  At trial, Mr. Okemow challenged the admissibility of the evidence obtained by police, arguing the search of the residence violated his right to be free from an unreasonable search or seizure pursuant to s. 8 and his detention outside the premises violated his right to counsel pursuant to s. 10(b). Mr. Okemow submitted evidence from the search of the residence, including the firearms, should be excluded from his trial. The trial judge found Mr. Okemow did not have standing to invoke s. 8, and despite a technical s. 10(b) violation, the evidence was admissible. Mr. Okemow was convicted of second degree murder and attempted murder. The C.A. confirmed the trial judge’s decision, deemed the evidence admissible, and upheld the convictions. “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.”

Criminal Law: Stay Re Driving Prohibitions

Froese v. R., 2019 MBCA 56 (38778)

The police observed the Applicant driving while tail lights on his truck were not illuminated. The police conducted a traffic stop. The police noted the smell of alcohol from the Applicant’s breath. Samples of his breath were provided to the police. The Applicant was arrested for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood. The Applicant was convicted of “over 80”. The Applicant was sentenced to a fine of $1,800 and a one-year driving prohibition. The Applicant appealed his conviction, and the summary conviction appeal was scheduled for hearing on November 19, 2019. The Applicant also filed a motion seeking to stay his driving prohibition pending the appeal. The motion for a stay of the driving prohibition was dismissed. The Applicant sought leave to appeal pursuant to s. 680 of the Criminal Code. Hamilton J.A. held the C.A. had no jurisdiction to review the decision and dismissed the application. “The application for leave to appeal…is dismissed.”

Immigration: Revocation of Citizenship

Oberlander v. Canada (Attorney General), 2019 FCA 64 (38693)

This is the Governor in Council’s (GIC) fourth attempt to revoke Mr. Oberlander’s Canadian citizenship because he was found to have significantly misrepresented his wartime activities to Canadian immigration and citizenship officials when he applied to enter Canada. Mr. Oberlander was born in 1924, in Halbstadt, Ukraine, and became a German citizen during World War II. After the war, he applied with his wife to enter Canada in 1952, was admitted in 1954 as a permanent resident, and obtained Canadian citizenship in 1960. In 1995, RCMP officers commenced an investigation regarding his involvement in war crimes. Days later, the process of revoking his citizenship began. In 2000, the Federal Court first found Mr. Oberlander had obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances. On three occasions — in 2001, 2007 and 2012 — the GIC’s attempted to revoke Mr. Oberlander’s citizenship. Each time, the decision was set aside by the Fed. C.A. and the matter remitted back to the GIC for reconsideration. On June 20, 2017, the GIC issued Order in Council PC 2017-793 to revoke Mr. Oberlander’s citizenship for a fourth time on the grounds he was complicit in crimes against humanity, having made a voluntary, knowing and significant contribution to the crimes committed. Mr. Oberlander applied to the Federal Court for judicial review of the GIC’s decision. On May 1, 2018, the Federal Court dismissed Mr. Oberlander’s motion for recusation with costs. On September 27, 2018, the Federal Court dismissed Mr. Oberlander’s application for judicial review of the Governor in Council’s decision to revoke his Canadian citizenship with costs. On November 7, 2018, the court lifted the stay of the judgment, confirmed the application for judicial review was dismissed, and found no question of serious general importance was to be certified. On April 24, 2019, the Fed. C.A. ordered Mr. Oberlander’s notice of appeal from be removed from the court file and the file be closed. “The application for leave to appeal…is dismissed with costs.”

Real Property: Damages for Loss of Bargain

Pinnock v. Birchcliffe Core-Harbour Inc., 2019 ONCA 417 (38717)

This Leave involves a failed real estate transaction. The Respondent Birchcliffe Core‑Harbour Inc. sought a summary judgment in the amount of $187, 500 against the Applicants, the Pinnocks, as damages for loss of bargain and the return of its deposit in the amount of $25, 000. The Pinnocks defended the claim and counterclaimed the Respondent bargained in bad faith. The Superior Court found summary judgment was appropriate in this case; the Respondent was entitled to damages: its deposit was ordered returned but damages did not include any amount for loss of bargain. The C.A. allowed the appeal, finding the Respondent was also entitled to damages for loss of bargain. “The application for leave to appeal…is dismissed.”

Real Property: Enforcement of Agreement

Vandenberg v. Wilken, 2019 ONCA 262 (38667)

Mr. and Ms. Wilken were the owners of two farm properties located in Howick Township, Ontario that they purchased in January 2015. Each of the properties was approximately 100 acres and their custom home was located on one of those properties. In 2016, Mr. and Ms. Wilken entered into listing agreements for the two properties and permitted the agents to erect signs on the properties advertising they were for sale. They allowed Mr. and Ms. Vandenberg onto the properties. Mr. and Ms. Vandenberg made an offer to purchase the properties that was not accepted by the Wilkens. The Wilkens signed the offer back at a higher price; the Vandenbergs accepted. The Wilkens indicated a few days later they wanted to cancel the listing and they had decided not to sell the properties. The Vandenbergs brought an action for specific performance and damages for breach. The Wilkens defended the action on the basis the agreement was an unconscionable transaction and they had been misled, pressured and coerced by the agents, who had represented both sides on the transaction, into signing it. The Wilkens also made allegations of non est factum, collusion and conspiracy against the Vandenbergs and the third party real estate agents. The Vandenbergs subsequently moved for summary judgment and specific performance. The motion judge granted partial summary judgment. He held the agreement was valid and binding, and had been breached by the Wilkens, but declined to grant specific performance. He sent the issue of damages to trial. This decision was reversed on appeal and the issues were remitted to the trial judge for determination. “The application for leave to appeal…is dismissed with costs.”

Tax: Interest Deduction

Van Steenis v. R., 2019 FCA 107 (38762)

Mr. Van Steenis borrowed $300,000 to buy units of a mutual fund trust in 2007. Between 2007 and 2015, he received distributions from the mutual fund totalling nearly $200,000. The fund characterized the distributions as “represent[ing] distribution[s] or return[s] of capital” in the T3 Statements of Trust Income Allocations and Designations that were issued to Mr. Van Steenis. Mr. Van Steenis used some of the money to reduce the loan’s outstanding principal, but the majority of the money was used for personal purposes. Relying on the Income Tax Act Mr. Van Steenis deducted all of the interest paid on the loan from his taxable income in 2013, 2014 and 2015. The Minister reassessed Mr. Van Steenis’ taxable income for those years and denied a portion of the income deducted on the grounds the distributions used for personal purposes were no longer being used for the purposes of earning income. Mr. Van Steenis’ appeals of the reassessments were dismissed, as was his subsequent appeal. “The application for leave to appeal…is dismissed with costs.”