Bankruptcy & Insolvency: Mortgages

Syndic de Mazzaferro, 2019 QCCA 963 (38769)

Mr. Mazzaferro, the bankrupt debtor in this case, was the principal shareholder and director of three companies specializing in the preparation of frozen pizza, which were declared bankrupt by judgment dated December 22, 2015. In December 2014, when the companies had already obtained, with their principal shareholder, several agreements for an extension of time to remedy defaults in payment, and when an application to appoint a receiver was pending before the courts, Mr. Mazzaferro was replaced as the president of the companies. At the same time, the Applicant Les Placements Antis inc., which was controlled by the parents of Mr. Mazzaferro’s spouse, the Applicant Claudia Russo, obtained two promissory notes: one for $5,656,255 issued by Les Placements Letizia inc. (a company controlled by Ms. Russo) and a second for $3,500,000 issued by Mazzaruss inc. (a company controlled by Mr. Mazzaferro). The two promissory notes were guaranteed personally by Mr. Mazzaferro and Ms. Russo, who agreed the same day to grant mortgages on their properties in Senneville and Florida. The purpose of the notes was allegedly to safeguard advances of funds made to Les Placements Letizia inc. and Mazzaruss inc. On November 30, 2015, Mr. Mazzaferro declared bankruptcy and the Respondent Raymond Chabot inc. was appointed trustee. The trustee then sought to exercise its seisin of Mr. Mazzaferro’s undivided share of the properties in Senneville and Florida. It applied for a declaration the mortgage granted by Mr. Mazzaferro to Les Placements Antis inc. could not be set up against it because they constituted a preference given to related persons pursuant to s. 95(1)(b) of the Bankruptcy and Insolvency Act. The Superior Court dismissed the trustee’s application. The C.A. allowed the appeal, set aside the trial decision and declared that the two deeds of mortgage on Mr. Mazzaferro’s properties could not be set up against the trustee. “The motion for an extension of time to serve the response to the application for leave to appeal to the interveners is granted. The application for leave to appeal…is dismissed with costs to the respondent, Raymond Chabot inc.”

Civil Procedure/Aboriginal Law: Test for Capacity to be Sued

British Columbia v. Teal Cedar Products Ltd., 2019 BCCA 194 (38789)

The Respondent, Teal Cedar Products Ltd. (Teal), held two licences to harvest timber on Haida Gwaii. Teal brought an action against the Applicant, the Haida Nation and the Haida Gwaii Management Council (HGMC) to recover losses it says flowed from the reduction of its allowable annual cut and restrictions on harvesting in certain areas of Haida Gwaii. The Applicant brought an application under the B.C.S.C. Civil Rule 6‑2 to remove the HGMC as a party on the basis it lacked capacity to be sued and to strike Teal’s claim against the HGMC. The Applicant’s application was dismissed by the chambers judge. The C.A. dismissed the appeal. “The motion for an extension of time to file the reply is granted. The application for leave to appeal…is dismissed with costs.”

Civil Procedure/Family Law: Recusals

Hill v. Beaver, 2019 ONCA 520 (38792)

Ms. Beaver commenced an application against Mr. Hill, pursuant to the Family Law Rules, seeking relief under the Family Law Act and Children’s Law Reform Act. Mr. Hill issued a notice of application for an order to have a certain judge “recuse himself from presiding over any further matters in relation to” Ms. Beaver’s family law proceeding. At a subsequent case conference, the case management judge was asked by Mr. Hill’s counsel to schedule a hearing for the recusal application. Ontario Superior Court of Justice: Applicant’s motion to schedule recusal motion dismissed without prejudice to motion being returned. C.A.: Applicant’s appeal dismissed. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Colour of Right Defence

Horse v. R., 2019 SKCA 56 (38809)

Mr. Horse, approached the complainant, Mr. Lalonde, asking to borrow his cell phone in an effort to help the Applicant find his dog. Mr. Horse then abruptly left with the phone, which he then dropped on the ground nearby. Mr. Horse’s version of the facts suggests he had heard his dog barking, which prompted him to run away, with the cell phone mistakenly in his hand. When Mr. Horse came to the realization he still had the cell phone in his possession, he dropped it in close proximity to Mr. Lalonde’s property and apologized. Later that same day, a police officer noticed an individual matching the description of Mr. Horse, and arrested him. Mr. Horse was charged with theft of property of a value not exceeding $5,000. The trial judge convicted Mr. Horse of theft, finding it was clear Mr. Horse took the phone away from Mr. Lalonde and left the property with the intention of stealing it. Although Mr. Horse may have had an initial colour of right defence to explain his continued possession of the cell phone while he was on Mr. Lalonde’s property, this alleged defence was no longer available once Mr. Horse ran away with the phone. Mr. Horse’s appeals from his conviction, before the Court of Queen’s Bench and then the C.A., were dismissed. “The motion for an extension of time to file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Contempt of Court

Boechler, et al. v. Regina, 2019 BCCA 267 (38841)

The Applicants were convicted of criminal contempt of court for having defied an injunction restraining protestors from blocking access to Trans Mountain Pipeline’s worksites. The Applicants filed an application, seeking an opinion on the state of the law of criminal contempt of court. The Applicants took the position the law on criminal contempt as set out in the majority judgment in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, should not be followed. Crown counsel took the position United Nurses was a binding authority. The Applicants’ application was dismissed. The appeals were dismissed by the C.A. “The application for leave to appeal…is dismissed.”

Criminal Law: Media Access

M.B. v. Presse Ltée., 2019 QCCA 756 (38742)

There is a publication ban in this case, in the context of a media application for disclosure in a criminal investigation. “The application for leave to appeal…is dismissed with costs to the respondents, La Presse Ltée, Media QMI inc. and Montreal Gazette, a division of Postmedia Network Inc. Côté J. took no part in the judgment.”

Criminal Law: Provocation; Constitutionality

R. v. Simard, 2019 BCSC 532 (38672)

Mr. Simard fatally shot his girlfriend and her former boyfriend after she cancelled weekend plans with him so she could spend the weekend with her former boyfriend. At his trial on two counts of second degree murder, Mr. Simard claimed provocation. Section 232 of the Criminal Code sets out culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. However, s. 232(2) of the Criminal Code in part limits provocation to conduct of the victim that would constitute an indictable offence punishable by five or more years of imprisonment. Mr. Simard applied for a declaration this limitation breaches s. 7 of the Charter and a constitutional remedy. The trial judge granted the motion and severed the words set out the limitation. The trial judge rejected Mr. Simard’s claim of provocation and convicted Mr. Simard as charged on both counts of second degree murder. Mr. Simard did not appeal the convictions. Crown counsel sought leave to appeal from the constitutional decision. “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.”

Family Law: Mobility; Arbitration Appeal

Petersoo v. Petersoo, 2019 ONCA 624 (38843)

The parties were married in 2003 and had three children: a daughter born in 2007, and twin boys in 2009. The parents separated in 2011. They agreed to joint custody in a separation agreement with the children residing primarily with the mother and parenting time for the father on alternate weekends and sometime midweek. The children suffered emotionally and academically under this arrangement. According to the mother, they were in crisis. She initiated the custody review procedure under the separation agreement. It was recommended by a physician the children be enrolled in a school that offered a “direct instruction” system to address their educational needs. Unable to find an affordable and suitable place in Toronto, the mother found an appropriate school in Kitchener. The father did not agree the children were having difficulties at school. He wanted them to stay at their current school and he wanted more time with them. The parties appeared before the lawyer for an arbitration. Shortly before the arbitration began, the mother gave notice she wished to move from Toronto to Guelph so the children could attend the school she had found. The father did not object to the short notice nor did he request an adjournment at the arbitration hearing. The mother was awarded custody and was permitted to move from Toronto to Guelph with the children. The arbitrator awarded the father parenting time on a scheduled basis that eliminated his midweek parenting time. On appeal, the arbitration award was set aside on the basis the short notice the father received on the mobility issue resulted in procedural unfairness. A re‑hearing of the parenting issues was ordered. The mother’s appeal from that decision was allowed and the arbitration award was restored. “The application for leave to appeal…is dismissed with costs.”

Family Law: Breach of Restraining Order

Townsend v. R., 2018 ONCA (38706)

The Applicant and his wife were married in 2004. They had one son together. They had a tumultuous relationship. The wife brought a motion for a restraining order. A motions judge granted the restraining order. The Applicant was convicted of two counts of breaching a court order, and one count of criminal harassment. The Applicant’s appeal was dismissed. The Applicant’s motion for leave to appeal was dismissed by the C.A. “The motion to appoint counsel is dismissed. The motion to adduce new evidence is dismissed. The application for leave to appeal…is dismissed.”

Insurance: Pollution Limitation; Duty to Defend

West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110 (38711)

Since 1976, the Applicants (collectively, “West Van”) have owned and operated a dry cleaning business on land in West Vancouver (“West Van Lands”). Between 1998 and 2002, Intact Insurance Company insured West Van under a commercial general liability insurance policy (“CGL”). The policy included coverage for property damage liability, but also contained a clause limiting coverage for property damage liability arising from pollutants. Between 2002 and 2012, Economical Mutual Insurance Company insured West Van under a CGL. The policy included coverage for property damage liability, but similarly contained a clause limiting coverage arising from pollutants. In 2014, the owners of lands situated adjacent to the West Van Lands filed a Notice of Civil Claim against West Van, alleging West Van had allowed dry‑cleaning chemicals and petroleum products to be discharged or deposited into the soils and groundwater of the plaintiffs’ lands, thereby damaging and contaminating their lands. The action was pleaded in strict liability, negligence, nuisance, and a statutory cause of action under the Environmental Management Act.  The insurers refused to defend West Van on the basis the underlying action was outside the scope of their policy coverage based on the pollution exclusion clauses. West Van filed a notice of civil claim seeking declarations that Intact and Economical were required to defend them. The application judge held the insurers had a duty to defend and awarded costs to West Van on a full indemnity basis. The C.A. overturned this judgment. “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.”

Municipal Law: Dangerous Dogs

Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294 (38816)

An animal control officer applied to the Provincial Court of B.C. to have the Applicant’s dog, Punky, destroyed pursuant to s. 324.1(10) of the Vancouver Charter, following its attack on a woman in a park in Vancouver. The Provincial Court of B.C. found Punky was a “dangerous dog” within the meaning of s. 324.1(1) of the Vancouver Charter and ordered he be “destroyed” by a qualified veterinarian pursuant to s. 324.1(10). Both the B.C.S.C. the B.C.C.A. dismissed the Applicant’s appeal from the Provincial Court of B.C.’s order. “The application for leave to appeal…is dismissed with costs.”

Tax: CCA; Settlements

Davies v. Canada, 2019 FCA 191 (38810)

The Applicant, Mr. Davies, was part of a group of appeals involving approximately 25 to 30 taxpayers. The initial appeal concerned Mr. Davies’ 2005, 2006 and 2007 taxation years and involved the deductibility of certain capital cost allowance in respect of a purchased software licence. Mr. Davies was reassessed in 2009 and his claimed capital cost allowance was disallowed. He and certain other investors retained counsel to file appeals. Shortly after the appeals were filed, a meeting was held between the investors’ counsel and the group of investors. Mr. Davies attended the conference call and general parameters of settlement were discussed. Authority was given to resolve the appeals within the range of 20‑40 percent of deductibility of the capital cost. The investors’ counsel was to pursue resolution, the usual litigation steps and report periodically to the clients. From early December 2010 until September 2013, Mr. Davies had no communication with the investors’ counsel. The investors’ counsel and Respondent’s counsel executed minutes of settlement and notices of discontinuance and the Respondent issued notices of reassessments to Mr. Davies and the others based on the settlement reached. Mr. Davies was not in agreement with the settlement. The Respondent’s counsel proceeded to file the notices of discontinuance.  Mr. Davies sought to set aside the minutes of settlement and prevent the filing of the notice of discontinuance. The motions judge dismissed Mr. Davies’ request to set aside the notice of discontinuance and to reinstate his appeals. The Respondent’s motion to dismiss the appeals was granted. The Fed. C.A. dismissed Mr. Davies’ appeal. “The application for leave to appeal…is dismissed with costs.”

Tax: Charities

Many Mansions Spiritual Center, Inc. v. Canada (National Revenue), 2019 FCA 189 (38815)

The Respondent, Minister of National Revenue revoked the Applicant, Many Mansions Spiritual Center, Inc.’s registration as a charity. The Minister’s decision followed an audit of Many Mansions’ 2011 and 2012 fiscal periods, the issuance of a notice of proposed revocation, an objection by Many Mansions, and reconsideration of the proposed revocation by the Tax and Charities Directorate of the C.R.A. Many Mansions appealed the Minister’s decision but the appeal was dismissed. “The application for leave to appeal…is dismissed with costs.”

Torts: Misfeasance in Public Office

Rain Coast Water Corp. v. British Columbia, 2019 BCCA 201 (38791)

Rain Coast Water Corp was incorporated in 1983 for the bulk export and bottling of fresh water from B.C.; Rain Coast obtained a foreshore licence of occupation over Crown land and licences to acquire provincial water. However, Rain Coast failed to pay, or was late in paying, the rentals due for these licences and did not make use of them. As a result, the government terminated Rain Coast’s licences. In November 1996, Rain Coast filed a claim against the Respondents due to alleged conduct throughout the 1980s and 1990s. The statement of claim alleged the manipulation and curtailment of an export market for the sale of Crown water resulting in the loss of business opportunities for Rain Coast. The B.C.S.C. determined that B.C. was liable for the misfeasance of public office by the Deputy Comptroller of Water Rights, Premier Bill Vander Zalm, and Richard Roberts. The trial judge also determined Bill Vander Zalm and B.C. committed the unlawful means tort. The B.C.C.A. unanimously overturned the lower court decision and dismissed the action in its entirety. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Competency; Unconscionability

Wasylynuk v. Bouma, 2019 ABCA 234 (38793)

The testator, Mr. Bouma, died in 2007, leaving five surviving children. The Applicant is one of Mr. Bouma’s daughters. The Respondents are Mr. Bouma’s other children. Prior to his death, with the assistance of counsel and other professionals, Mr. Bouma executed the following documents: four separate beneficiary documents in relation to insurance products; a 1998 Will; a deed of gift in 2001; and a 2001 Will. The insurance policies all named Mr. Bouma’s son, Bernie, as the sole beneficiary. The deed of gift transferred all of Mr. Bouma’s assets to Bernie. The 2001 Will also designated Bernie as the sole beneficiary of the estate. The lawyer who prepared the deed of gift and the 2001 Will had Mr. Bouma obtain independent legal advice. He also sent Mr. Bouma to see two medical doctors who conducted independent assessments of Mr. Bouma’s mental capacity and signed certificates of competency. Following her father’s death, the Applicant filed a statement of claim against the Respondents alleging Mr. Bouma lacked the requisite mental capacity to transfer his assets and the transfers were unconscionably procured. She sought a share of Mr. Bouma’s estate and punitive damages. By way of summary judgment applications, the judge was asked to determine if the deed of gift, 2001 Will and beneficiary designations were valid. The application judge held all documents executed by Mr. Bouma were valid. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”