Dismissed (10)

Civil Procedure: Special Costs 

567 Hornby Apartment Ltd. v. Le Soleil Restaurant Inc., 2020 BCCA 69 (39145)
Special costs were awarded to Le Soleil Hospitality Inc. and Le Soleil Restaurant Inc. in two actions.  The Registrar assessed costs and awarded most of the costs requested as special costs. In a subsequent ruling, the Registrar also granted special costs for the costs of the assessment hearing. An appeal was dismissed and special costs were awarded on the appeal. An appeal to the B.C.C.A. was allowed in part. “The motion to join four Court of Appeal for British Columbia files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Contracts in Québec: Partnership Dissolution 

Dessureault v. Désaulniers2020 QCCA 45 (39179)
The parties were chartered professional accountants who practised their profession in a general partnership for over 20 years. In 2011, relations between the partners deteriorated to such a point that in 2013, the parties turned to the courts for a ruling on the terms of dissolution of the partnership. The Québec Superior Court found the bond of trust between the partners had been irreparably broken and the partnership could no longer function. It ordered the partnership be dissolved and liquidated such that the parties’ shares would be returned to them in accordance with the terms of the contract of partnership, including the value of the goodwill. The C.A. dismissed the parties’ cross appeals. “The application for leave to appeal…is dismissed.”

Contracts in Québec: Unilateral Resiliation 

Construction Blenda Inc. v. Office municipal d’habitation de Rosemère2020 QCCA 149 (39142)
The issues in this Québec case are whether the resiliation of a construction contract by the Respondent, the Office municipal d’habitation de Rosemère (the “OMHR”), was valid and whether that resiliation was abusive. The Applicant, Construction Blenda Inc. (“Blenda”), alleged the OMHR had resiliated the contract in bad faith and in an abusive manner, because its board of directors had issued no resolution authorizing the resiliation. Blenda brought two actions, claiming indemnities and damages for resiliation. The Superior Court allowed Blenda’s action for damages in part and allowed its hypothecary action with respect to the OMHR’s building. The court ordered the OMHR to pay a portion of the damages being claimed for the value of the completed work, costs, and disbursements made since the resiliation date. It did not grant the other heads of damages, because it did not find the resiliation had been abusive. The C.A. rejected most of Blenda’s grounds of appeal, finding Blenda had identified no palpable and overriding error in the Superior Court’s analysis. “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. Kasirer J. took no part in the judgment.”

Criminal Law: Delay 

Xanthoudakis v. R., 2020 QCCA 446 (39139)
In September 2003, an investigation began into allegations of misappropriation of funds from CINAR, a publicly traded company. The Applicant, Mr. Xanthoudakis, and three co‑accused were charged on March 10, 2011 with a variety of commercial crimes. On April 11, 2014, before the trial opened, a case management judge dismissed the Applicant’s motion for a stay of proceedings based on s. 11 (b) of the Charter. The trial ended with guilty verdicts on June 2, 2016. Jordan was released on July 8, 2016. The Applicant appealed against his verdicts on the basis the principles in Jordan applied with respect to delays that occurred before the completion of the trial. He also appealed his sentence. The Applicant claimed the decision of the case‑management judge in April 2014 was inconsistent with the principles in Jordan and the C.A. should order a stay for the entire period of approximately 63 months between the charges and the verdicts. The C.A. dismissed the Applicant’s appeal from the verdicts and from sentence. “The application for leave to appeal…is dismissed. Kasirer J. took no part in the judgment.”

Criminal Law: Delay 

Weinberg v. R.2020 QCCA 446 (39184)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed. Wagner C.J. and Côté J. took no part in the judgment.”

Criminal Law: Sexual Assault

D.A. v. R., 2019 ABCA 299 (39149)
There is a publication ban in this case, in the context of a sexual assault conviction. “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.”

Mortgages: Priorities

625536 B.C. Ltd. v. Forjay Management Ltd., 2020 BCCA 70 (39164)
Lands were subject to a First Mortgage, a Second Mortgage and a Third Mortgage. The lender holding the Third Mortgage did not give written notice of registration (of its Third Mortgage) to the registered owners of the First Mortgage and the Second Mortgage. Advances were made under the First Mortgage and the Second Mortgage exceeding the Principal declared in Clause 5(a) of each mortgage’s Form B. The land owner entered receivership. The holder of the Third Mortgage took a position that advances under the First Mortgage and the Second Mortgage in excess of the principles stated in their Form B’s were not secured and could not take priority over its loan advances. The parties applied for a declaration in part clarifying the priorities of their mortgages, the amounts secured, and the rates of interest payable on their advances.  The B.C.S.C. in part found and declared the First Mortgage, the Second Mortgage and the Third Mortgage rank respectively in priority, inclusive of advances exceeding the amounts declared as principal in Clause 5(a) of the First Mortgage and the Second Mortgage. The B.C.C.A. in part dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Real Property in Québec: Heritage Designations 

Létourneau v. Attorney General of Québec2020 QCCA 423 (39168)
The Applicant, Yvon Létourneau, is the owner of a building situated in Sainte‑Famille de l’Île d’Orléans. The building, designated as lot 229‑8 in the cadastre for the Sainte‑Famille parish, arose from the subdivision of lot 229‑10, which was situated on a heritage site. In June 2013, Mr. Létourneau applied to the Ministère de la Culture et des Communications (MCC) for authorization to build a residence on lot 229‑8, in accordance with the law. Following some discussions between Mr. Létourneau’s son and a representative of the MCC during which the parties agreed on conditions for the construction of the building, the MCC authorized construction on August 13, 2013. In November 2013, during a visit to Mr. Létourneau’s newly built residence, a representative of the MCC noted non‑compliance with the conditions on the basis of which authorization had been given, and issued a statement of offence to that effect. The MCC informed Mr. Létourneau of the statement of offence in December 2013 and asked him to make alterations to the building so it would be consistent with the authorization given. In July 2014, the MCC sent Mr. Létourneau a formal notice to carry out all the necessary work identified in the statement of offence pursuant to s. 66 para. 2 of the Cultural Heritage Act. In February 2015, the Respondent, the Attorney General of Québec, in right of the Minister of Culture and Communications responsible for the administration of the Cultural Heritage Act, applied to court under s. 195 of the Cultural Heritage Act for an order to have the work carried out. The Superior Court allowed the motion to institute proceedings and ordered Mr. Létourneau to carry out the work. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed without costs.”

Tax: Meaning of “Debt” 

Barejo Holdings ULC v. Canada., 2020 FCA 47 (39147)
The parties referred a question to the Tax Court regarding two contracts entitled “Notes”, issued for $998M by affiliates of two Canadian banks and guaranteed by them. The Notes were held by St. Lawrence Trading Inc., an open‑ended investment fund incorporated under the laws of the British Virgin Islands. The question was whether the Notes constituted debt for the purposes of the Income Tax Act. The Tax Court judge determined the Notes were debt within the meaning of s. 94.1 of the Income Tax Act. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Torts/Environmental: Abuse of Process; Malfeasance in Public Office 

Cobble Hill Holdings Ltd. v. British Columbia2020 BCCA 91 (39170)
The Applicant owns the site of an old mine quarry near Shawnigan Lake B.C. In 2003, the Respondents issued a permit to the Applicant to accept contaminated soils at the site and discharge waste into the environment, pursuant to s. 14 of the B.C. Environmental Management Act. The Respondent Crown conducted inspections of the facility and identified several instances of non-compliance with the terms of the permit. The Minister issued various warning letters to the Applicant, requesting an updated closure plan, cost estimates and additional security, and subsequently suspended and then cancelled the permit in February 2017. Six months later the Applicant filed a notice of civil claim in tort against the Respondents alleging negligence and misfeasance in public office. The Respondents applied to strike the Applicant’s claims as disclosing no reasonable cause of action and to strike the claim in misfeasance in public office as a collateral attack that should be dismissed as an abuse of process, under Rules 9‑5(1)(a) and (d) of the Supreme Court Civil Rules. The B.C.S.C. granted an order striking the pleadings for the claim in negligence as disclosing no reasonable cause of action. It dismissed the applications to strike the pleadings for the claim of abuse of process and malfeasance in public office, with leave to amend the pleadings. The B.C.C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs.”