Granted (3)

Criminal Law: Sexual Assault

R. v. G.F., 2019 ONCA 493 (38801)
There is a publication ban in this case, as well as a sealing order in the context of alleged sexual assault. “The motion to join two Court of Appeal for Ontario files in a single application for leave to appeal is granted. The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is granted. The schedule for serving and filing materials will be set by the Registrar.”

Family Law: Recalculation of Arrears 

Colucci v. Colucci, 2019 ONCA 561 (38808)
The Applicant and Respondent were married in 1983 and divorced in 1996. They had two children. The parties’ divorce judgment, dated May 1996, provided for custody of the children to the Respondent and required the Applicant to pay child support in the amount of $115 per week per child. The Applicant’s child support obligations ended in 2012. By 2012, the Applicant had fallen into substantial arrears and his taxable income was in decline from 1997 onwards. The child support arrears with interest totalled more than $170,000.  In 2016, the Applicant brought a motion to retroactively vary the child support and to fix the arrears of child support, if any, and determine the payments on those arrears in accordance with his income. The motion judge recalculated and reduced the arrears owing to $41,642. The C.A. allowed the appeal in part and set aside the paragraph of the motion judge’s order which reduced the arrears owing. The Applicant’s cross-appeal from the costs award was dismissed. “The application for leave to appeal…is granted with costs in the cause. The schedule for serving and filing materials will be set by the Registrar.”

Media in Québec: Access to Court Documents 

MédiaQMI inc. v. M.K., 2019 QCCA 814 (38755)
The Respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (CIUSSS) instituted an action against the Respondent Magdi Kamel, a former managerial employee. The CIUSSS claimed a sum of money equal to the amount reimbursed to Mr. Kamel for allegedly unlawful personal expenses, as well as damages and a Norwich order to obtain certain financial information from a bank about its customer, Mr. Kamel. A Norwich order was authorized, as was the sealing of the record for a period of 120 days, which was later renewed. The sealed record contained four exhibits at the time, including an investigation report produced by forensic accounts at the request of the CIUSSS. The Applicant media company, MediaQMI Inc., filed a motion to end the sealing and applied for access to the contents of the record and to the originating pleading. The CIUSSS filed a discontinuance of its action against Mr. Kamel. Mr. Kamel filed an application to have the originating pleading withdrawn from the record or, alternatively, sealed. During the hearing of Mr. Kamel’s application, the CIUSSS also applied for the withdrawal of Exhibits P‑1 to P‑4. MediaQMI contested both applications. The Superior Court rendered judgment. It held the originating pleading had to be kept in the record and made public but the CIUSSS could withdraw Exhibits P‑1 to P‑4 from the record. MediaQMI then appealed the judge’s conclusion concerning the withdrawal of the exhibits. A majority of the C.A. dismissed the appeal. A dissenting judge would have allowed the appeal. “The application for leave to appeal…is granted with costs in the cause. The schedule for serving and filing materials will be set by the Registrar.”

Remanded (1)

Municipal Law in Québec: Contracts 

Construction Unibec inc. v. Ville de Saguenay, 2019 QCCA 38 (38545)
During the performance of a contract for the construction of a multipurpose centre, the Respondent Ville de Saguenay (“city”) wanted some additional work done, including the enlargement of the asphalt surface initially provided for in the contract. A site instruction was issued, accompanied by specific plans. The Applicant Construction Unibec inc., to which the construction contract had been awarded by resolution, sent the city a tender for $148,588.71 for the additional work. The tender was accepted by resolution. With the deadline for the completion of the work approaching, Unibec realized backfilling work was required to complete the additional work. According to the persons in charge at Unibec, the backfilling work was not included in the tendered price. The project managers from Gémel inc., which was responsible for designing the project and supervising the work, and from Unibec agreed the backfilling work would be done separately from the contract for the additional work with cost‑plus pricing based on the cost of materials and labour. On completion of the work, Unibec sent its final invoice for $297,241.10. The city refused to pay $148,652.39, the amount for the backfilling work. The Superior Court allowed Unibec’s motion to institute proceedings and ordered the city to pay Unibec $148,652.39 for the backfilling work. It found an amending agreement had been entered into for that work. The C.A. dismissed Unibec’s motion to institute proceedings. “Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal…is remanded to the Court of Appeal of Quebec for disposition in accordance with Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57. Kasirer J. took no part in the judgment.”

Dismissed (12)

Aboriginal Law/Civil Procedure: Advance Costs 

Francis v. Canada, 2019 FCA 184 (38805)
Mr. Francis is Mi’kmaw and member of the Elsipogtog First Nation. He engaged in shrimp fishing without a licence and some of his catches were seized. In summary conviction proceedings, he was charged with fishing without authorization. Mr. Francis applied to the Fed. Court for declarations the prohibitions and restrictions placed upon him as a result of the seizures and charges unjustifiably infringed his aboriginal and treaty rights to access the fishing resource and to trade in fish in order to attain a moderate living, and a declaration his aboriginal right is not limited to the purpose of attaining a moderate living. Mr. Francis brought a motion for an interim order for payment of advanced costs in his civil action. A prothonotary dismissed the motion. The Fed. Court dismissed an appeal from the prothonotary’s decision. The Fed. C.A. dismissed the subsequent appeal. “The application for leave to appeal…is dismissed.”

Civil Procedure: Jurisdiction 

Ting v. Borrelli, 2019 ONCA (38804)
Andrew Ting’s father (Ting Sr.) was deemed bankrupt by order of the High Court of Hong Kong in 2016. The Ontario Superior Court of Justice recognized the Hong Kong bankruptcy order in a 2017 decision. Ting Sr. was accused of fraud by the liquidators of Akai Holdings Limited in his capacity as its former CEO and Executive Chairman. Ting Sr. subsequently fled and his whereabouts currently unknown. In 2018, Hong Kong’s High Court issued a letter of request for leave to examine Mr. Ting in aid of the realization of Ting Sr.’s assets. A motion was then brought before Ontario’s Superior Court of Justice which granted enforcement of the letter of request. An appeal was filed but a motion to quash was granted by the Ont. C.A. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Solicitor-Client Privilege 

Araya v. Nevsun Resources Ltd., 2019 BCCA 205 (38794)
Nevsun Resources Ltd. plead actions brought against it are time‑barred by limitations periods. The plaintiffs plead in common the start of any limitation periods are postponed until each met with Canadian counsel because, prior to that date, they did not have the requisite understanding of their legal rights to commence an action. Nevsun applied for a declaration in part, as a result of the common plea, each plaintiff waived solicitor‑client privilege over all communications and documents relating to the actions during those first meetings with Canadian counsel. A case management judge found in part implied waiver of solicitor‑client privilege by the plaintiffs should include their first meetings with counsel. The C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Sexual Assault Damages Against Estate 

Succession of the late G.P. v. L.P., 2019 QCCA 863 (38751)
While they were children in the 1970s and 1980, L. P. and R. P., who were sisters, were physically, psychologically and sexually abused by their father, G.P. In December 2011, G.P. was investigated by the police as a result of allegations of sexual assault. During an interrogation, G.P. admitted to the sexual touching of his daughter L.P. in 1983. He was charged with indecent assault, gross indecency, assault, sexual assault and assault causing bodily harm against L. P. and R. P. On October 8, 2014, G.P. was committed for trial on the charges relating to L.P. He died on November 5, 2014. In August 2015, L.P. and R.P. brought an action for damages against their father’s succession. G.P.’s heirs denied the alleged acts and contested the merits of the claim. The Superior Court allowed the action brought by L.P. and R.P. It found their testimony was credible with regard to the acts committed by G.P. and the injury suffered, and it accepted the expert psychologist’s opinion concerning their impossibility to act. It ordered the succession to pay them pecuniary damages (lost earnings and therapy and treatment costs), moral damages and exemplary damages, plus interest at the legal rate and the additional indemnity, with costs (including expert fees). It denied the request made by L.P. and R.P. that the liquidator and heirs be held liable for payment of the debts of the succession from their own patrimony where the debts exceeded the value of the property taken by them. The C.A. unanimously allowed the succession’s appeal in part solely to reduce the amount awarded to L. P. for treatment and therapy costs and to correct the date from which punitive damages were awarded. It rejected the succession’s grounds of appeal based on prescription and on the absence of proof on a balance of probabilities that would allow a causal connection between L.P.’s disability and the abuse committed by G.P. to be presumed. It dismissed the incidental appeal of L.P. and R.P. alleging the trial judge had made an error of omission in calculating L.P.’s discounted salary, and it dismissed the appeal of L.P. and R.P. against the trial judge’s decision denying their request to hold the heirs and the liquidator liable for payment of the debts of the succession where the debts exceeded the value of the property taken by them, with legal costs. “The application for leave to appeal…is dismissed without costs. Kasirer J. took no part in the judgment.”

Commercial Law: Fraud; Fiduciary Duty; Punitives 

Chan v. SFC Litigation Trust, 2019 ONCA 525 (38733)
Mr. Chan was the co‑founder, chief executive officer and chairman of Sino‑Forest Corporation (SFC). SFC and its subsidiaries carried on business primarily in the People’s Republic of China but maintained its head office in Ontario and traded on the Toronto Stock Exchange. In June 2011, a report was issued by a short seller’s research company alleging, amongst other things, SFC significantly overstated its revenues. After investigating the matter, SFC advised the public its prior years’ financial statements should not be relied upon. The Ontario Securities Commission ordered a halt on SFC trading and SFC defaulted on its obligations. In 2012, SFC obtained insolvency protection under the Companies’ Creditors Arrangement Act. Later that year, the Ontario Superior Court of Justice sanctioned SFC’s Plan of Compromise and Reorganization which included a transfer to SFC Litigation Trust its causes of action. In 2014, Cosimo Borelli, as trustee of the Litigation Trust, commenced an action against Mr. Chan alleging fraud and breach of fiduciary duty. The Ontario Superior Court of Justice granted the action for fraud and breach of fiduciary duty against Mr. Chan, awarding $2.6B in damages plus $5M in punitive damages. A unanimous Ont. C.A. dismissed the subsequent appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Charter Motions 

Edwardsen v. R., 2019 BCCA 259 (38829)
The police conducted an undercover operation targeting Mr. Edwardsen that led to searches and seizures at his residence, a shop he rented, and a property he did not own but was associated with him and contained a marihuana grow op. Mr. Edwardsen was charged with a variety of drug and firearms offences. Before trial, his counsel filed applications to challenge the searches and seizures for breaches of the Charter. Some of these applications were abandoned before trial. Partway through his trial, Mr. Edwardsen changed counsel. His new counsel applied for relief under the Charter in part seeking to exclude evidence and to renew some of the pre‑trial applications. Crown counsel applied for, and the trial judge granted, summary judgment dismissing the Charter applications. Mr. Edwardsen was convicted of multiple drug and firearms offences. His appeal from conviction was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault 

Long v. R., 2018 ONCA 282 (38798)
The complainant worked as a part‑time office assistant at the Applicant’s health food business. The complainant testified about three incidents occurred on the same day and were separated by a few hours, for which the Applicant was subsequently found guilty of three counts of sexual assault. The trial judge sentenced the Applicant to a 90‑day intermittent sentence, to be followed by two years’ probation, and ordered him to register under the Sex Offender Information Registration Act for life. The Applicant’s application for a declaration s. 490.013 (2.1) of the Criminal Code violates s. 7 of the Charter was dismissed. The 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.”

Criminal/Military Law: Defences of Mistaken Belief

R. v. K.J.M., 2019 CMAC 3 (38838)

There is a publication ban in this case, in the context of the defence of mistaken belief in consent in a military Court Martial. “The application for leave to appeal…is dismissed.”

Insurance: Property; Coverage 

Breen v. FCT Insurance Company Ltd., 2019 ONCA 598 (38802)
Mr. Breen obtained title insurance from FCT Insurance Company Ltd. for a cottage property. The cottage was constructed in 1989 under the authority of a building permit issued by the local township. A few years after the building permit was issued, the township assumed the project was complete and closed its file on the permit. Mr. Breen purchased the property under power of sale in 1999. He accepted his conveyancing solicitor’s advice and did not request a final inspection of the property. Approximately 10 years after acquiring the cottage, Mr. Breen decided to renovate. The contractor however identified violations under the Building Code Act, 1992 and an engineer’s report identified significant structural issues that needed to be dealt with. Mr. Breen was advised not to occupy the cottage and the cottage has not been used since. In March 2014, FCT initially confirmed coverage, on the understanding there was an open building permit on the property, but reserved the right to change its decision should further facts emerged. In May 2014, FCT denied coverage because it had learned there was no open building permit, instead the township had closed its file on the permit.  The trial judge found Mr. Breen was entitled to coverage under the policy for the losses arising from the defects in the cottage. The C.A. allowed the appeal, set aside the decision of the trial judge and dismissed Mr. Breen’s action against FCT. “The application for leave to appeal…is dismissed with costs.”

Tax: Non-Capital Losses 

Bakorp Management Ltd. v. Canada, 2019 FCA 195 (38826)
Following a settlement of a dispute that arose in relation to a prior taxation year with respect to the amount of non‑capital losses available to be carried forward, the taxpayer Applicant requested the amount of non‑capital losses claimed for the January 1992 taxation year be reduced. The tax return for the year ending in March 1992 was filed on the basis this request would be granted and the non‑capital losses that had originally been claimed for the January 1992 taxation year would be available for the March 1999 taxation year to eliminate any tax liability. This request was refused by the Minister of National Revenue and the March 1992 taxation year reassessed to deduct the $439,581 of non‑capital losses that had been claimed for the March 1992 taxation year and which had also been claimed for the January 1992 taxation year. The Applicant taxpayer appealed the reassessment of the March 1992 taxation. The Tax Court dismissed the appeal. The Fed. C.A. also dismissed the appeal finding the Tax Court did not have the jurisdiction to interpret s. 152(4.3) to determine whether the Minister was required to make the adjustments requested by the taxpayer. “The application for leave…is dismissed.”

Torts: “Duty to Detect” 

Calgary (City) v. McAllister, 2019 ABCA 214 (38783)
Calgary owned and operated a light rail system known as C‑Train. There is an open‑air pedestrian overpass connecting a walkway to one of its stations which is open 24 hours a day without restrictions on access. In the early hours of New Year’s Day, 2007, Mr. McAllister was escorting a friend across the overpass to meet her brother at the C‑Train. Unbeknownst to Mr. McAllister, the friend’s ex‑boyfriend was waiting with her brother. The ex‑boyfriend attacked Mr. McAllister on the overpass and was quickly joined by another youth. After a few minutes of fighting Mr. McAllister went to the ground unconscious. A group of youth joined in kicking him while prone on the ground for fourteen minutes. Mr. McAllister was badly injured in the attack. The two youths who initiated the assault were convicted of criminal charges. Mr. McAllister brought a civil action against the City. The Court of Queen’s Bench of Alberta found the City liable for incremental harm suffered by Mr. McAllister, on the basis of a “duty to detect” on occupiers of open-air public spaces. The C.A. allowed the appeal in part, adjusting the standards for reasonable detection and response times. “The application for leave to appeal…is dismissed with costs.”

Torts: Police Actions 

Ironstand v. City of Winnipeg, 2019 MBCA 70 (38796)
The City of Winnipeg Police Service received a 911 call at 4:14 a.m. respecting a potential break and enter at the home of the Applicant, Ms. Ironstand, who was thought to be away from the city. The caller and the police did not realize Ms. Ironstand had returned home at approximately 3 a.m., and was there with her children and her boyfriend. The caller said there were sounds of someone being punched and lots of banging. The police dispatch issued a high priority, “lights and sirens” call mandating an immediate response. When the police arrived, the 911 caller was intoxicated and uncooperative. The officers proceeded to Ms. Ironstand’s suite and banged on the door. Ms. Ironstand opened the door and the police went inside to investigate, over her strong objections. She was pushed to the floor by the officers, handcuffed and was placed in the police vehicle while the police conducted a safety check of the premises. Ms. Ironstand suffered a black eye, a facial cut, a bruised arm and her glasses were broken. She brought an action seeking damages for assault, trespass, unlawful confinement and breach of her privacy and constitutional rights. After a jury trial, Ms. Ironstand’s action was dismissed. The C.A. allowed her appeal and ordered a new trial. The trial judge held the police acted without lawful justification in entering her home and awarded her $3,000 in damages. The C.A. dismissed her appeal. “The application for leave to appeal…is dismissed without costs.”