Dismissed (5)

Banks: Unjust Enrichment 

Shane v. B2B Bank2020 NSCA 15 (39174)
In July 2007, a financial adviser obtained a loan on Ms. Shane’s behalf, for $245,000, from B2B Bank’s predecessor. Unbeknownst to Ms. Shane, the adviser used falsified documents. The loan only required monthly payments of interest. The loan proceeds were used to buy mutual funds which were pledged as security for the loan. In September 2007, the financial adviser’s employer, Keybase Financial Group, contacted Ms. Shane and advised her its adviser may have overstated her net worth when applying for the loan. She subsequently filed a complaint with the Nova Scotia Securities Commission and successfully sued Keybase Financial Group for damages, settled for $210,003.71. Ms. Shane believed the value of the mutual funds would not cover a redemption penalty and the loan balance. She instructed the bank not to redeem the mutual funds as security. She stopped paying monthly interest on the loan in May 2015 and she has not re‑paid any of the loan. B2B Bank redeemed the mutual funds and applied the proceeds of the redemption to the loan. It claimed against Ms. Shane for the outstanding balance, pleading unjust enrichment. It was agreed at trial before a civil jury, if Ms. Shane was unjustly enriched, $118.713.27 is the correct measure of the unjust enrichment. The jury returned a verdict Ms. Shane does not owe any amount to the B2B Bank. B2B Bank appealed. The C.A. set aside the jury verdict, found unjust enrichment, and ordered Ms. Shane to pay $118.713.27 to B2B Bank. “The application for leave to appeal…is dismissed with costs.”

Class Actions: National v. Provincial 

DePuy International Ltd. v. Wilson2019 BCCA 440 (39044)
In 2010, replacement hip prostheses manufactured by the Applicants were recalled due to high failure rates. In 2011, the Respondent, Mr. Wilson, commenced a class action against the Applicants in British Columbia. Similar class actions were commenced and certified in Québec for Québec residents and in Ontario for all potential plaintiffs except Québec and British Columbia residents (the “national class”). Eventually, Mr. Wilson arrived at a settlement agreement with the Applicants. The class proposed in the settlement agreement included national class members, who would be able to opt in to the British Columbia settlement. In 2018, the Applicants and Mr. Wilson applied to have the British Columbia action certified and for court approval of the settlement. The representative plaintiffs from the national class action, who are Respondents to the leave application, opposed the inclusion of national class members in the British Columbia action. The chambers judge concluded Mr. Wilson’s action should be certified and the settlement approved except for the proposed membership in the class, which he limited to residents of British Columbia. He concluded that providing for an opt‑in class for non‑residents would not be the preferable procedure. The C.A. dismissed the Applicants’ appeal. “The application for leave to appeal…is dismissed with costs to the respondents Joseph Charles Crisante, Lynne Slotek, Katherine Crisante and Larry Slotek.”

Class Actions in Québec: Photo Radar/Red Light Cameras 

Moscowitz v. Procureure générale du Québec2020 QCCA 412 (39166)
This Leave concerns a proposed class action seeking compensation from the Respondent, the Attorney General of Québec, for pecuniary losses and moral damages allegedly suffered by the Applicant, Ms. Moscowitz, and all other persons who, since the inception of the photo radar and red light camera systems in the province of Québec, were issued a statement of offence involving a photo radar and/or a red light camera in that same province. Ms. Moscowitz alleged certain representatives of the government of Québec intentionally committed a fault and acted maliciously by, among others, mounting evidence in penal proceedings they knew or ought to have known was inadmissible in a court of law. The Superior Court dismissed Ms. Moscowitz’s application to authorize the bringing of a class action and to appoint her as representative plaintiff. It concluded the proposed class action did not meet the criteria of article 575(2) of the Code of Civil Procedure in that the facts alleged did not appear to justify the conclusions sought. The court found the proposed class action constitutes a collateral attack of the proposed members’ convictions, which is impermissible. The C.A. dismissed Ms. Moscowitz’s appeal, upholding the Superior Court’s conclusion the proposed class action is an indirect challenge to convictions properly rendered by a court of law. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Dual Status Offenders 

Walker v. Attorney General of Ontario, et al.2019 ONCA 957 (39153)
Mr. Walker was a dual status offender as defined by s. 672.1(1) of the Criminal Code because he was subject to both a custodial disposition under s. 672.54(c) for a finding of not criminally responsible because of mental disorder and to imprisonment for subsequent convictions for other offences. The Ontario Review Board continued to hold reviews of his custodial disposition. Pending a review hearing in 2018, Mr. Walker applied for a placement hearing seeking an order he be moved from Bath Institution to Waypoint Centre for Mental Health Care. Mr. Walker argued a significant change in his circumstances warranted a placement hearing. The Review Board denied the request to hold a placement hearing, held a disposition hearing, and ordered Mr. Walker be detained at Waypoint Centre for Mental Health Care should he cease to be subject to term of imprisonment. “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: Provincial Offences 

Greenwood v. Her Majesty the Queen in Right of Ontario (Travel Industry Council of Ontario) 2019 ONCA (39223)
MKI Travel and Conference Management Inc. received cheques to provide travel services to the Canada Games Council. The travel services were not provided and the funds were not held in trust accounts. MKI Travel and Conference Management Inc. and Mr. Greenwood were charged with multiple counts under the Ontario Travel Industry Act, 2002, S.O. 2002, C. 30 Schedule A, and Ontario Regulation 26/05. MKI Travel and Conference Management Inc. was convicted on three counts and acquitted on one count. Mr. Greenwood was acquitted on four counts. The Ontario Superior Court of Justice allowed an appeal from all acquittals and entered convictions except in respect of one acquittal each of MKI Travel and Conference Management Inc. and Mr. Greenwood. The C.A. dismissed a motion for leave to appeal and motions for leave to appeal, to file fresh evidence, to amend the motion record and for an extension of time. “The application for leave to appeal…is dismissed.”