Arbitration: Appeals 

Diorite Securities v. Trevali, 2019 ONSC 4225 (38881)
Trevali Mining was the operator of an underground base‑metal mine located near Bathurst, New Brunswick (Caribou Mine) under a mineral lease granted by the Province of New Brunswick. Diorite Securities (acting as trustee) owned a ten percent net profits interest in the Caribou Mine, granted to it by a former lessee in an agreement dated August 9, 1990 (the NPI Agreement). Ownership of the Caribou Mine changed hands a few times and Trevali became the owner in 2012. In 2016 Caribou Mine became commercially operational. According to the NPI Agreement, Trevali provided Diorite with a Statement of Net Profits for the third quarter of 2016 which included a ‘Loss Pool’ estimating losses that previous owners of Caribou Mine incurred or ought to have incurred and carried over since 1990. The Loss Pool reduced the net profits to zero. The disputed net profits went to arbitration. The arbitrator concluded, amongst other matters, the expenses included in calculating net profits were not limited to the current owner. Diorite applied for leave to appeal the arbitrator’s decision. The Ontario Superior Court of Justice determined Diorite failed to raise an issue of law as required by the Arbitration Act and the application was dismissed. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Abuse of Procedure 

Nikolajev v. Syndicat de copropriété Le S.O.M.O., 2019 QCCA 1441 (38830)
The Applicant, Mr. Nikolajev, owned two units of a building held in divided co‑ownership. The Respondent, the Syndicat de copropriété Le S.O.M.O. (“Syndicat”), was responsible for the preservation, maintenance and administration of the building. Mr. Nikolajev, who questioned the validity and conformity of a number of decisions made by the Syndicat, its board of directors or the co‑owners as a body, filed an originating application in which he asked the Québec Superior Court to annul certain decisions of the general meeting of co‑owners. He subsequently amended his initial application and then, sometime before the scheduled date for the hearing of the Syndicat’s motion to dismiss and application for abuse, discontinued his amended application. The Syndicat decided to continue its cross‑application for damages for alleged abuse of procedure on Mr. Nikolajev’s part. The trial judge granted the Respondent’s application in part, ordering Mr. Nikolajev to pay $10,000 in damages. The C.A. dismissed the Applicant’s motion for leave to appeal. “The application for leave to appeal…is dismissed without costs.”

Civil Procedure/Torts: Dismissal of Actions 

North Bank Potato Farms Ltd v. The Canadian Food Inspection Agency, 2019 ABCA 344 (38923)
In 2007, a pest harmful to potato plants was detected in soil samples taken from lands farmed by North Bank Potato Farms Ltd. and Haarsma Farms Ltd. The Canada Food Inspection Agency required they destroy their seed potato crops, prohibited production and sale of potatoes from their lands, and placed restrictions on their farm equipment. The U.S. and Mexico closed their borders to potato exports, causing industry losses in Alberta. Alberta Seed Potato Assistance Programs were set up in 2008 and 2009. North Bank Potato Farms Ltd. and Haarsma Farms Ltd. received assistance payments, then commenced an action claiming their soil was negligently tested. The Canadian Food Inspection Agency and A.G. Can. applied to strike or summarily dismiss the action, arguing in part s. 9 of the Crown Liability and Proceedings Act applied to bar the action. A Master dismissed the application. The Court of Queen’s Bench granted an appeal and dismissed the action. The C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Contracts: Performance; Breach; Termination 

Marine Atlantic Inc. v. RJG Construction Limited, 2019 NLCA 51 (38847)
Marine Atlantic Inc. and RJG Construction Ltd. entered into a contract, based on a standard form construction contract, for the construction of a wharf structure. RJG also obtained a performance bond with a surety. Progress payments under the construction contract were to be forwarded to RJG periodically. The project was to be completed by June 15, 2013. Due to several delays, RJG failed to complete the project on time. Marine Atlantic sent RJG a written notice of default. Marine Atlantic, RJG and the surety engaged in discussions for a remediation agreement to correct the default. Marine Atlantic advised RJG it would be freezing all payments to RJG for any work completed to date until an acceptable remediation agreement was established. RJG issued to Marine Atlantic its own notice of default, for failing to provide progress payments for the work completed to date. RJG then provided notice to Marine Atlantic and the surety of its decision to terminate the construction contract. Marine Atlantic issued its own termination notice, arguing RJG had breached the contract when it failed to meet the established timelines and when it attempted to terminate even though the contract did not allow for such termination.  RJG commenced an action, seeking damages for breach of contract arising from Marine Atlantic’s failure of payment. Marine Atlantic brought a counterclaim on the basis RJG had breached the contract. The trial judge held RJG was not entitled to terminate the contract; that Marine Atlantic did not repudiate the contract when it withheld funds owed; Marine Atlantic was entitled to freeze funds to ensure RJG’s compliance; RJG was estopped from terminating the contract while simultaneously negotiating a remediation agreement; and RJG’s notice of default and notice of termination were invalid, because they did not comply with the contract’s actual termination provisions. The trial judge dismissed RJG’s action and allowed Marine Atlantic’s counterclaim for damages. On appeal, the C.A. overturned the trial judge’s decision and deemed RJG’s notices of default and termination to be valid; Marine Atlantic was not permitted to freeze any funds owed, and the freezing constituted a repudiation of the contract, to which RJG was entitled to respond by terminating the contract; RJG was not estopped from terminating the contract. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Communicating With a Minor Re Sexual Services 

Premanathan v. R., 2019 ONCA 780 (38928)
The police set up an advertisement on a website that advertised for sexual services. The advertisement specified the woman was 18 years old, but advised her “young friend” might be available. The Applicant responded to the advertisement. The police officer posing as the “young friend” texted the Applicant to tell him she was 15 years old. They negotiated via text the specific sex acts, price, and meeting location. The Applicant went to the hotel and was arrested. The Applicant testified he mistakenly texted the wrong number, thinking he had already broken off the conversation with the escort once he learned she was 15 years old. The Applicant testified he intended to contact a different escort about a different sexual service. The Applicant was convicted of communicating with a person under the age of 18 to obtain sexual services for consideration and to facilitate the offence of invitation to sexual touching, and breach of recognizance. The Applicant appealed only the communication convictions. The Applicant’s appeal was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Delay 

Bulhosen v. R., 2019 ONCA 600 (38930)
Mr. Bulhosen and thirteen co-accused were charged with counts for conspiring to import cocaine, laundering proceeds of crime and participating in a criminal organization. Crown counsel originally indicated intent to hold a preliminary hearing but, thirteen months after arrest and before the preliminary hearing, preferred a direct indictment. Mr. Bulhosen and other co‑accused applied to the Superior Court of Justice to stay the proceedings for breach of the right to be tried within a reasonable time guaranteed by s. 11(b). The motions judge dismissed the applications, applying a 30‑month presumptive ceiling, and finding delay beyond the ceiling was attributable to the exceptional circumstance of the complexity of the case. Mr. Bulhosen was convicted. The C.A. dismissed a joint appeal from the dismissal of the s. 11(b) applications. “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: Delay 

Kompon v. R., 2019 ONCA 600 (38877)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”

Criminal Law: Games of Mixed Chance and Skill 

Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648 (38867)
Play for Fun Studios Inc. applied for a declaration a game it distributed, GotSkill, is not “a game of chance or mixed chance and skill”, prohibited by the Criminal Code. It was agreed it was not a game of pure chance. A player of GotSkill uses a touchscreen to choose how many credits to wager by selecting a “Potential Next Win” from among those offered in that instance. The player must then complete a skill task which consists of stopping a cursor moving at a constant speed through 21 bars arrayed across the screen as close to the middle as possible. Nothing about the game seeks to defeat the player’s ability to stop the cursor. Stopping it at the first bar results in a value of 55%; the values rise regularly until the exact middle, which has a value of 110%, and then fall regularly back to 55% at the last bar. The credits are adjusted accordingly, and the player can redeem their credits or select a new Potential Next Win over any of the themes. Players only know the Potential Next Win for the current game.  First‑time players in Ontario play for approximately 25‑30 minutes and use an average of $16 in credits, not including those awarded as part of the game. The ultimate reward received by the player depends on the Potential Next Win level chosen by the player and the player’s ability to perform the skill task. However, while a player who achieves 110% in all 1,000 tickets in a group would receive a modest benefit, achieving 100% would result in a net loss. Schreck J. made the requested declaration. The C.A. allowed the appeal and declared GotSkill to be a game of mixed skill and chance for the purpose of s. 197(1) of the Criminal Code. “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.”

Criminal Law: Homicide; Trial Judge Conduct

R. v. Walker, 2019 ONCA 806 (38954)

The Respondent, Nicholas Walker, was charged in 2012 of first degree murder in a fatal shooting. Of particular significance to this case is the shifting positions of the Crown on a critical piece of video evidence upon being made aware of the judge’s opinion on its nature. The jury returned with a guilty verdict of first degree murder, and this was entered by the Superior Court. The C.A. allowed Mr. Walker’s appeal on the basis, by offering a stronger opinion than the one he knew the Crown was prepared to advance, the trial judge found himself bolstering the Crown’s position. The court considered this to be fundamentally unfair to Mr. Walker, and ordered a new trial. “The application for leave to appeal…is dismissed.”

Environmental Law: Reconsideration Hearings 

Adkin-Kaya, et al. v. Canada (Attorney General), 2019 FCA 224 (38900)
By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time, by way of an expedited reconsideration hearing. Twelve sets of parties applied to the Fed. C.A. for leave to judicially review that decision. A single judge of the Fed. C.A. wrote reasons for its dismissal of six of the twelve applications for leave. “The motion for leave to intervene by the Attorney General of Alberta is dismissed. The application for leave to appeal…is dismissed with costs.”

Environmental Law: Reconsideration Hearings 

BC Nature v. Canada (Attorney General), 2019 FCA 224 (38887)
Similar summary to that immediately above. “The motion for leave to intervene by the Attorney General of Alberta is dismissed.  The application for leave to appeal…is dismissed with costs.”

Environmental Law: Reconsideration Hearings 

Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 (38892)
Similar summary to that immediately above. “The motion for leave to intervene by the Attorney General of Alberta is dismissed. The application for leave to appeal….is dismissed with costs.”

Environmental Law: Reconsideration Hearings 

Squamish Nation v. Canada (Attorney General), 2019 FCA 224 (38898)
Similar summary to that immediately above. “The motion for leave to intervene by the Attorney General of Alberta is dismissed. The application for leave to appeal…is dismissed with costs.”

Environmental Law: Reconsideration Hearings 

Tsleil-Waututh Nation v. Canada (Attorney General), 2019 FCA 224 (38894)
Similar summary to that immediately above. “The motion for leave to intervene by the Attorney General of Alberta is dismissed. The application for leave to appeal…is dismissed with costs.”

Immigration: Refugees 

Kreishan, et al. v. Canada (Citizenship and Immigration), 2019 FCA 223 (38864)
The Applicants are Safe Third Country Agreement-excepted asylum seekers whose claims were rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). They attempted to appeal the negative RPD decisions to the Refugee Appeal Division (RAD) of the IRB. The RAD dismissed the appeals on jurisdictional grounds, as under paragraph 110(2)(d) of the Immigration and Refugee Protection Act (IRPA) the Applicants had no right of appeal to the RAD. The Applicants filed applications in the Federal Court for leave to judicially review the RAD’s dismissals of their appeals. The Federal Court granted leave and dismissed the applications, concluding paragraph 110(2)(d) of the IRPA is constitutionally valid. The Fed. C.A. dismissed the appeal, concluding paragraph 110(2)(d) of the IRPA does not engage s. 7. “The application for leave to appeal…is dismissed.”

Real Property: Mortgages; Resulting Trusts 

Raso v. Pezzack Financial Services Inc., 2019 ONCA 517 (38819)
Mr. Raso owed the Respondent, Pezzack Financial Services Inc. money. Pezzack served Mr. Colacci with a notice of garnishment calling on Mr. Colacci to pay Pezzack any money Mr. Colacci owed Mr. Raso. Mr. Raso had sued Mr. Colacci on a mortgage and the action was settled for $790, 000.  The Applicants, Chanel Holdings Ltd., and 1598356 Ontario Ltd., brought a motion resisting garnishment on the basis Raso held the mortgage in trust for 1598356 pursuant to an express or a resulting trust. They claimed the money should be paid out to them instead of to Pezzack. The sum of $790, 000 was ordered to be paid into the court pending disposition of the motion and any appeals arising from it.  The motion judge found there was no trust and dismissed the motion. The C.A. upheld that decision and dismissed the appeal. Pezzack was entitled to the proceeds of the settlement of the mortgage action. “The application for leave to appeal…is dismissed with costs.”