Dismissed (6)

Civil Procedure: Motions to Strike 

Deng v. Canada2019 FCA 312 (39209)
The Applicant is the Administrator of his late son’s estate. His son came to Canada in 1999 as a foreign student from his home in China and eventually became a permanent Canadian resident. In 2004, he was convicted of aggravated assault. In 2005, following a trip to China, the Canada Border Services Agency seized his passport when he returned to Canada, and prepared an Inadmissibility Report based upon his aggravated assault conviction. He was referred to an admissibility hearing before the Immigration and Refugee Board where he was found to be inadmissible for serious criminality. A deportation order was issued against him at the conclusion of the hearing. Later that day, he committed suicide. His parents came to Canada in 2007 to learn more about the circumstances of their son’s death. The Administrator commenced an action alleging the conduct of immigration officials caused his son’s suicide, seeking damages for negligence, abuse of power and breach of statutory duty. That action was wholly discontinued by the filing of a notice of discontinuance in September 2010. In September 2017, the Administrator filed a new statement of claim against the Crown. The Administrator sought various forms of relief including an annual visa to enter Canada each year allowing the parents to visit their son’s grave, the granting of posthumous citizenship to the son, a formal apology from the Crown for causing his death and $300M in compensatory, general, special and punitive damages. The Respondent Crown brought a motion to strike the statement of claim on several grounds, including the action was brought well outside the two-year limitation period under the Limitation Act, and the Crown Liability and Proceedings Act. The motion judge granted the Respondent’s motion and dismissed the action. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Homicide 

Johnson v. R.2019 SKCA 138 (39194)
The Applicant Mr. Johnson and a co‑accused were charged with first degree murder. The victim was found shot in a bedroom at a home located in Prince Albert, Saskatchewan. At trial before judge and jury, the Applicant was convicted of first degree murder and his co-accused of second degree murder. Both the Applicant and his co‑accused appealed their convictions, but for different reasons. The Applicant argued his conviction was unreasonable as it was irreconcilable with his co-accused’s verdict of second degree murder. The C.A. dismissed the Applicant’s appeal. “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.”

Employment Law: Alleged Ineffective Assistance 

Curtis v. Pinto2019 ONCA 982 (39249)
Mr. Pinto and his firm represented Mr. Curtis in a wrongful dismissal action. A hearing went ahead as planned and the adjudicator reserved his decision. Mr. Curtis then terminated his retainer with Mr. Pinto and informed the adjudicator he wished to reopen the proceedings. The adjudicator agreed. Mr. Curtis, with the assistance of new counsel, argued because Mr. Pinto had not opposed the two‑phase hearing, he had provided Mr. Curtis with ineffective counsel. Mr. Pinto was not allowed to intervene, but the adjudicator found Mr. Curtis’s claims were unsubstantiated and Mr. Curtis’s additional submissions would not have changed his decision. He went on to find he lacked jurisdiction to hear the matter because Mr. Curtis had not been wrongfully dismissed — he had resigned voluntarily. His decision was confirmed on judicial review: Curtis v. Bank of Nova Scotia, 2017 FC 380.  Mr. Curtis then brought an action against the Respondents Mr. Pinto and his firm, arguing they had failed to follow his instructions, misled and deceived him, or failed to provide competent legal services when they represented him. Mr. Pinto and his firm moved to have the action dismissed as an abuse of procedure or as frivolous or vexatious under r. 21.01(3)(d) of the Rules of Civil Procedure. At what was meant to be the hearing of the motion, Mr. Curtis asked the motions judge to recuse himself due to an apprehension of bias. After Dow J.’s decision and numerous other proceedings, the hearing went ahead several years later.  Dow J. dismissed the application as an abuse of process, with costs of $28,276.43. The C.A. dismissed Mr. Curtis’s application for leave to appeal that award of costs, and dismissed the appeal with costs of $8,500. “The application for leave to appeal…is dismissed.”

Family Law: Property Division; Support 

T.J.K. v. M.A.K.2020 ABCA 196 (39283)
There is a publication ban on the party. The Court file contains information not available for inspection by the public, in the context of matrimonial property and child support. “The application for leave to appeal…is dismissed with costs.”

Family Law: Support 

Drover v. Drover2020 NLCA 9 (39146)
The parties started cohabiting in 2002, married in 2004 and separated in 2013. Their son was born in the first year of their marriage, and was later diagnosed with ADHD. At the time of trial, the child was attending a junior high school and was living with the Applicant wife. The wife ceased working as a travel agent in 2013 primarily as a result of her son’s special needs. The husband was employed as a journeyman electrician and as a project manager for an electrical company. At issue were retroactive and ongoing child and spousal support. The wife maintained the husband had not provided sufficient financial disclosure in order to determine his income for support purposes.  She estimated his annual earnings to be $200K from all sources. His line 150 income tax return showed approximately $55K for each year in question. The trial judge imputed income to the husband and ordered ongoing and retroactive child and spousal support. That decision was upheld on appeal. “The application for leave to appeal…is dismissed.”

Torts: Negligence; Car Theft 

Provost v. Dueck Downtown Chevrolet Buick GMC Limited2020 BCCA 86 (39260)
Dueck Downtown Chevrolet Buick GMC Limited operated a large car and truck dealership in Vancouver. Mr. Katerenchuk, the lot manager, left a one‑ton 2011 GMC Sierra K2500 pickup truck outside a detail bay of the dealership for forty minutes with the keys left in the ignition, the engine running and the doors unlocked. The dealership is not fenced and is frequented by many people. B stole the truck. More than an hour later, following attempts by officers to arrest B, he was involved in three collisions, two of which caused serious personal injury.  The RCMP had used unmarked vehicles to follow the truck. At one point a constable pointed his pistol, identified himself, and commanded B to stop. B backed into the police car parked behind him and drove away. As another constable attempted to arrest B, B drove into another police vehicle, and subsequently struck a third covert vehicle driven by Constable Quinn Provost. The chase continued, with some officers started active pursuit with lights and a siren. The truck struck Ms. Brundige’s vehicle stopped at an intersection. B was eventually caught trying to steal a vehicle from another dealership. Three actions arose from that series of events. This application related only to an action in negligence commenced by Constable Provost against the Respondents.  The B.C.S.C. held the Respondents were negligent in storing the truck and their negligence was a cause of all three collisions. The Court apportioned 15 percent of the liability in all three actions to the Respondents. The B.C.C.A. allowed the Respondents’ appeal and dismissed the actions against them, finding they did not owe a duty of care to the plaintiffs: while it was reasonably foreseeable a thief could cause injury or damage while being pursued in the course of the theft or during immediate flight, the foreseeability should not be extended to include the risk of harm arising from police actions, including active pursuit, more than an hour after the theft. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to expedite the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Remanded (1)

Employment Law: Termination; Senior Employees 

Mikelsteins v. Morrison Hershfield Limited2019 ONCA 515 (38806)
The Respondent, Morrison Hershfield Limited was an employee‑owned engineering firm that provided engineering and construction consulting services. Mr. Mikelsteins was employed by MHL for 31 years in a senior role with the firm. He was notified in writing his employment was being terminated without cause, effective immediately. At the time, he owned shares in his employer’s parent company. His annual compensation package included a base salary, employment benefits, company contributions to his RRSP, and a pay‑for‑performance plan. He was also eligible to purchase shares in the company under the terms of a shareholders’ agreement, and had done so over the years. Because he owned shares, he also received an annual “share bonus.” That agreement purportedly made provision for an employee’s shares in the event of receipt of a notice of termination by the employee. Mr. Mikelsteins commenced an action for wrongful dismissal and a motion for summary judgment. At issue was the reasonable notice period he should have received, the damages he was entitled to his entitlement to any increase in the valuation of his shares during the notice period, any gross‑up on the value, the share bonus, and his final award in view of his continuing obligation to mitigate his damages. The motion judge awarded damages for wrongful dismissal based on a notice period of 26 months. Summary judgment was granted for his base salary, bonus, RRSP contributions and benefits. With respect to Mr. Mikelsteins’ shares, the motion judge held he was entitled to hold the shares until the end of the reasonable notice period and receive damages for the loss of the share bonus that would have been payable during that 26-month period. C.A: Respondent’s appeal allowed; Applicant not entitled to compensation for benefits under shareholders’ agreement during notice period. “Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal…is remanded to the Court of Appeal for Ontario for disposition in accordance with David Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26. Karakatsanis J. took no part in the judgment.”