Dismissed (11)

Bankruptcy & Insolvency: Continuation of Proceedings 

CAE Rive-Nord v. Pelletier, et al., 2019 QCCA 2164 (39072)
The Applicant, CAE Rive‑Nord (CAE), was a company that provided financing to small businesses. The Respondent, Jessica Pelletier, was the shareholder and sole director of Connexxion Lavage Pression inc. (Connexxion), a company that did pressure washing and finishing work in the construction industry. In May 2016, CAE entered into a contract granting Connexxion a term loan of $240K. To secure the loan, CAE and Connexxion entered into a payment assignment agreement under which Ms. Pelletier undertook to personally give CAE any amount collected in payment of a construction contract entered into in October 2015 by Connexxion and Construction J. Raymond inc. Ms. Pelletier also became surety for up to $100K of the loan. On July 19, 2016, Connexxion made a payment on the secured loan. On January 3, 2017, CAE gave Connexxion and Ms. Pelletier formal notice to repay the balance of the loan, which had been due since December 18, 2016. On January 27, 2017, Connexxion made an assignment of its property under the Bankruptcy and Insolvency Act. Ms. Pelletier’s proposal was refused by her creditors, so she was deemed to have made an assignment of her property on June 13, 2017. On January 30, 2018, CAE obtained leave to continue its proceedings through a civil action against Connexxion pursuant to ss. 69.4 and 178 of the BIA. CAE also filed a motion for leave to continue the proceedings through a civil action against Ms. Pelletier under the same sections of the BIA. The Superior Court granted leave to continue the proceedings. The Qué. C.A. allowed the appeal and dismissed the motion for leave to continue the proceedings. “The application for leave to appeal…is dismissed without costs.”

Condos: Reserve Funds; Special Assessments 

Francis v. Empire Gardens Condominium Corporation2019 ABCA 471 (39195)
Sebastian Anthikatt Francis and his spouse owned a condo unit in Alberta. They paid monthly fees to Empire Gardens Condominium Corporation’s reserve fund for future repairs and maintenance of the condominium building identified in reserve fund studies required by statute at least every five years. Serious cracks developed in the foundation of the condominium building. The cracks were not identified in any reserve fund study. Empire Gardens retained a study of the repairs and costs outside of the reserve fund study process. It levied and collected a special assessment for the repairs and paid for the repairs through its reserve fund. Mr. Francis and his spouse objected to the special assessment and stopped paying monthly condominium fees. They applied for an order terminating the condominium status of the building and declaring the special assessment for the foundation repairs unlawful. The condominium corporation commenced an action for payment of the outstanding condominium fees and levies. Court of Queen’s Bench of Alberta: application for various relief by owners of condominium unit dismissed; action by condominium corporation for payment of outstanding fees and levies granted. Alta. C.A.: appeal dismissed. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search & Seizure 

Janvier v. R., 2019 QCCA 889 (39258)
The Applicant Mr. Janvier was identified as a suspect in a robbery. The police applied for a warrant to search Mr. Janvier’s home; because the justice available at the time of the application was located several hours away, the officer instead applied for a telewarrant by facsimile under s. 487.1(1). The police obtained the telewarrant, and Mr. Janvier was arrested and charged with robbery because of clothing and items associated with the robbery were found in his home when the telewarrant was executed. At trial, Mr. Janvier applied for exclusion of the evidence, challenging the legality of the telewarrant. The trial judge stated the information had to indicate why it was “impracticable” for the police to appear personally before a justice. She found the details in the information in this case were sufficient; she endorsed the decision to issue the telewarrant and dismissed the application to exclude the evidence. On the basis of the evidence in the record, she found Mr. Janvier guilty of robbery. The Qué. C.A. dismissed the appeal, as it found no error in the trial judge’s analysis and conclusions. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for extension of time been granted, the application for leave to appeal…would have been dismissed on the merits.”

Criminal Law: Search & Seizure; Delay 

Pipping, et al. v. R., 2020 BCCA 104 (39205)
A police investigation led police officers to suspect Mr. Pipping and Mr. Summers were participants in drug dealing. Both men were observed entering a condominium building. The police obtained a general warrant to enter the building but that general warrant did not include a provision for notice of the search required by the Criminal Code. Undercover officers entered the building and observed Mr. Pipping enter a unit. The police obtained a search warrant for the condominium unit and searched it. They found firearms and drugs. The trial judge upheld the general warrant and admitted the evidence found in the condominium. The trial judge dismissed an application to have the proceedings stayed because of delay in bringing the matter to trial. Mr. Pipping and Mr. Summers were convicted of multiple drug offences and Mr. Piping also was convicted of firearms offences. The B.C.C.A. dismissed appeals from the convictions. “The motions to join the applications for leave to appeal are granted. The applications for leave to appeal…are dismissed.”

Criminal Law: Sentencing 

R. v. M.K., 2020 MBCA 30 (39152)
There is a publication ban in this case in the context of an aggravated unprovoked assault on a female minor. “The application for leave to appeal…is dismissed.”

Immigration: Denial 

Kassab v. Canada (Citizenship and Immigration)2020 FCA 10 (39092)
Under the Immigration and Refugee Protection Act a foreign national is inadmissible for “being a prescribed senior official in the service of a government that…has engaged in…gross human rights violations…”. Mr. Kassab, a citizen of the Republic of Iraq, had been employed by the Iraqi governments of Ahmed Hassan Al-Bakr and Saddam Hussein in a variety of positions from April 1969 to June 2000. Both governments are designated as regimes that engage, or have engaged “in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity” under s. 35(1)(b). Mr. Kassab applied for permanent residence in Canada as a sponsored refugee under the Convention Refugees Abroad Class. The visa officer concluded he met the definition of Convention refugee, but there were reasonable grounds to believe he was inadmissible to Canada as a “prescribed senior official”. Those positions were the Chief Engineer, reporting to the Director General of the Energy Production, the Head of the Telecommunications Department/Centre of Electronic Systems, and the Director of Centre for Electronic Systems. In the governmental reporting structure, he had been as high as three levels below Saddam Hussein. The visa officer applied s. 35 and denied Mr. Kassab permanent residency. Mr. Kassab applied for judicial review, which was granted, but that decision was overturned on appeal and the application for judicial review dismissed. “The application for leave to appeal…is dismissed with costs.”

Police: Discipline Hearings 

Ferrier v. Canadian Broadcasting Corporation2019 ONCA 1025 (39079)
The body of an Indigenous man was discovered in Thunder Bay. Within hours, the Thunder Bay Police Services advised the death was not suspicious. The Ontario Independent Police Review Director investigated allegations of police misconduct and directed commencement of proceedings for a disciplinary hearing. More than six months had elapsed and, to give notice of a disciplinary hearing to the police officers, s. 83(17) of the Police Services Act required the Chief of Police to apply to the Thunder Bay Police Service’s Board for an extension of time on the ground the delay was reasonable. The Board obtained the appointment of retired judge Lee Ferrier to hear the extension application and he ordered a closed hearing. The Divisional Court dismissed an application for judicial review of that decision. The C.A. allowed an appeal and remitted the matter for reconsideration in light of an intervening decision in Langenfeld v. Toronto Police Services Board, 2019 ONCA 716, which held in part the right to attend police services board meetings is protected by the freedom of expression guaranteed in s. 2(b). “The application for leave to appeal…is dismissed.”

Real Property: Easements 

Klippstein v. Kapasiwin (Summer Village)2020 ABCA 32 (39226)
1420ET is a document registered as an easement against properties owned by Emil Klippstein at the east end of Lake Wabamun, Alberta. Mr. Klippstein applied to discharge same from the title to his lots. Mr. Klippstein’s neighbours and the local summer village, Kapasiwin, opposed the application. A judge of the Court of Queen’s Bench of Alberta dismissed the application in its entirety. A majority of the Alta. C.A. for dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Torts/Family Law: Duty of Care; Child Protection 

J.B., et al. v. Ontario (Child and Youth Services)2020 ONCA 198 (39165)
There is a publication ban in this case in the context of whether the CAS and Ontario owe a duty of care re flawed drug/alcohol tests. “The application for leave to appeal…is dismissed with costs to the respondent, Children’s Aid Society of the Regional Municipality of Waterloo.”

Torts/Family Law: Duty of Care; Child Protection 

J.B., et al. v. Ontario (Child and Youth Services)2020 ONCA 198 (39171)
Similar summary to that above. “The motion to seal and for other relief is dismissed. The application for leave to appeal…is dismissed with costs to the respondents Catholic Children’s Aid Society of Toronto, Children’s Aid Society of the Regional Municipality of Waterloo, Children’s Aid Society of the Niagara Region and Family Youth and Child Services of Muskoka.”

Trademarks: Confusion; Infringement 

Ontario (Energy) v. Quality Program Services Inc.2020 CAF 53 (39144)
Quality Program Services Inc. (QPS) brought an action against the Minister of Energy (Ontario), claiming damages and other relief for trademark infringement, passing off and depreciation of goodwill under the Trademarks Act. The claims related to the mark “EMPOWER ME”, registered by QPS under the Act in connection with energy awareness, conservation, and efficiency services, and Ontario’s use of the mark “emPOWERme” in connection with a website used to educate Ontario electricity ratepayers about the Ontario electricity system and energy conservation. Following commencement of the action, Ontario requested the Registrar of Trademarks give public notice of Ontario’s adoption and use of “emPOWERme” as an official mark of the Government of Ontario under s. 9(1)(n)(iii) of the Act, and the Registrar subsequently gave such notice. In addition to other defences, Ontario argued this status as an official mark afforded a complete defence to QPS’ claims. A judge of the Federal Court concluded s. 9(1)(n)(iii) did not insulate Ontario from claims under the Act. Since Ontario’s mark was confusing with QPS’ registered trademark, Ontario was found to infringe and damages were awarded to QPS in the amount of $10K. The Fed. C.A. dismissed the subsequent appeal for substantially the reasons of the Federal Court. “The motion of the Attorney General for British Columbia to intervene is granted. The application for leave to appeal…is dismissed with costs.”