Granted (3)

Criminal Law: Self-Defence 
R. v. Khill2020 ONCA 151 (39112)
The Applicant, Mr. Khill, was asleep at about 3:00 a.m. on February 4, 2016, when Ms. Benko woke him up and told him she had heard a loud banging. From the window, he could see his pickup truck parked in the driveway. The dashboard lights were on, which suggested to Mr. Khill, that some person or persons were either in the truck or had been in the truck. Mr. Khill had received training as an army reservist several years earlier. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko. Mr. Khill went outside with his loaded shotgun to investigate the noise. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the open passenger door. It was Mr. Styres. Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest, and he died. According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated he had a gun and was turning to shoot Mr. Khill. Mr. Khill said he believed he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun. After a trial by judge and jury, Mr. Khill was acquitted of second‑degree murder on the basis of self‑defence. The C.A. allowed the appeal, and ordered a new trial. “The application for leave to appeal…is granted.”

Family Law in Québec: Confidential Mediation Settlements 

Bisaillon v. Bouvier2020 QCCA 115 (39155)
Following their separation, Isabelle Bisaillon and Michel Bouvier attended five mediation sessions and then signed the standard agreement proposed by the Association de médiation familiale du Québec at the start of the process, which provided in part the content of the process was to remain confidential. At the end of the process, the mediator prepared a summary of the matters agreed upon in mediation and sent it to the parties, who did not sign it or have a formal agreement drawn up. On application by Ms. Bisaillon for judicial partition into equal shares of a building held in undivided co‑ownership through sale by judicial authority, Mr. Bouvier argued in defence a settlement existed: the summary of the matters agreed upon in mediation amounted to an agreement. In the Superior Court, Ms. Bisaillon argued the mediation process was subject to a fundamental principle of confidentiality, which meant evidence of the summary of the matters agreed upon and of anything arising from the mediation was inadmissible. The summary was not a contract and was not enforceable or binding if not signed or homologated, which was the case here. Moreover, the cashing of the cheques written by Mr. Bouvier did not amount to the acceptance or implementation of an agreement. The Superior Court, among other things, confirmed the existence of the parties’ agreement on the partition of the building and ordered its implementation. It found the summary of the matters agreed upon and any other related document or discussion to be admissible in evidence. Although the parties had agreed in their mediation contract the summary of the matters agreed upon was privileged, they had implicitly waived the privilege by implementing and relying on the agreement they had reached. The C.A. dismissed Ms. Bisaillon’s appeal. “The motion by the Association de médiation familiale du Québec to be added or substituted as a party is granted. The application for leave to appeal…is granted with costs in the cause.”

Tax: Treaties; GAAR 

Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43 (39113)
The Respondent, a resident of Luxembourg, claimed an exemption from Canadian income tax under Article 13(5) of the Canada‑Luxembourg Income Tax Convention 1999 (“Treaty”) for a capital gain arising from the sale of the shares of its wholly‑owned Canadian subsidiary, Alta Canada. Alta Canada carried on a shale oil business in the Duvernay shale oil formation of northern Alberta, controlling a net acreage of 67,891 and drilling six horizontal and vertical wells in the relevant period. An issue arose as to the application of Article 13(4) of the Treaty, under which Canada retains the right to tax capital gains arising from the disposition of shares whose value derives principally from “immovable property”. The Respondent relied on an exclusion to that provision that applies when the business of the company was carried on in the property. CRA denied the exemption on the ground substantially all Alta Canada’s interest remained immoveable property because it drilled and extracted in only a small portion of the area it controlled and had allegedly acquired the leases and licences with an intention of selling them in the short‑term; alternatively, GAAR under s. 245 of the Income Tax Act operated to deny the tax benefit. The parties agreed there was a “tax benefit” and an “avoidance transaction” but disagreed on whether an “abuse” or “misuse” triggered the application of GAAR. The Tax Court of Canada allowed the Respondent’s appeal of the reassessments for the 2013 taxation year and referred the matter back to the Minister for reconsideration and reassessment in accordance with its reasons for judgment; holding the Respondent’s interest in the property constituted Excluded Property and that GAAR did not prevent the Respondent’s entitlement to the exemption under Article 13(5) of the Treaty. The Fed. C.A. dismissed CRA’s appeal. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed (1)

Civil Procedure: Insufficiency of Judges’ Reasons 

Manos v. Wal-Mart Canada Corp., 2020 ONCA 211 (39169)
Mr. Manos was shopping for a fire extinguisher in a Wal‑Mart store, assisted by a Wal‑Mart employee, when the employee accidentally discharged a fire extinguisher. Mr. Manos claimed he inhaled some of the discharged chemicals for 5 to 10 seconds and this caused reactive airways disorder syndrome. He commenced an action to recover damages. The trial judge awarded damages. The C.A. allowed an appeal, set aside the trial judgment, and ordered a new trial, holding the trial judge did not provide reasons sufficient to allow appellate review or for the parties to know his reasoning. “The application for leave to appeal…is dismissed with costs.”