Granted (2)

Criminal Law: Prior Sexual Activity 

A.S. v. R., 2020 ONCA (39516)
There is a publication ban in this case, in the context of constitutionality re prior sexual activity. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is granted. The appeal will be heard with Her Majesty the Queen v. J.J. (39133).”

Tax: Family Trusts 

Canada (Attorney General) v. Collins Family Trust, 2020 BCCA 196 (39383)
Two incorporated businesses separately implemented similar plans to protect corporate assets from future creditors without incurring income tax liability. The plan took advantage of attribution rules and an inter‑corporate dividend deduction in the Income Tax Act. The plan moved cash or retained earnings from the companies to family trusts without income tax being declared and paid. The effectiveness of the scheme depended on a widely‑accepted interpretation of s. 75(2) of the Income Tax Act. That interpretation was shared by CRA until the Tax Court of Canada held it was incorrect in Sommerer v. Canada, affirmed in 2012 FCA 207. The CRA issued notices of reassessment for each family trust’s 2008 and 2009 taxation years. The family trusts and the corporations petitioned for orders rescinding the series of transactions. The B.C.S.C. granted the petitions and rescinded the transactions. The B.C.C.A. dismissed appeals, allowing reliance on equitable rescission to avoid the unanticipated tax consequences. “The motion to join two Court of Appeal for British Columbia files in a single application for leave to appeal is granted. The application for leave to appeal…is granted with costs in the cause.”

Dismissed (8)

Civil Procedure: Sufficiency of Trial Reasons  

Bruno et al. v. Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services , 2020 ONCA 602 (39441)
Paul Bruno was assaulted in the Niagara Detention Centre by a number of other inmates. As a result of that assault, he suffered serious and lasting personal injuries. Mr. Bruno issued a claim against the alleged perpetrators, Her Majesty the Queen in the Right of Ontario Represented by the Ministry of Community Safety and Correctional Services (“the Ministry”), and others. The parties agreed on the damages Mr. Bruno sustained. The issue at trial was whether the Ministry is liable to Mr. Bruno because correctional officers failed to take reasonable steps to protect him. The trial judge found the Ministry breached the standard of care. The trial judge assessed Mr. Bruno’s contributory negligence at 15 percent. The C.A. allowed the appeal on the basis the trial judge’s reasons for decision are insufficient to permit meaningful appellate review and ordered the case be remitted to the Superior Court for trial by another judge. “The application for leave to appeal…is dismissed with costs.”

Construction Law in Québec: Licences 

8678537 Canada inc. v. Director of Criminal and Penal Prosecutions, 2020 QCCA 877 (39398)
The Applicant, 8678537 Canada inc., was chosen to automate the parking lot of a new hotel during the construction of the hotel. Following an inspection of the premises shortly after the work was carried out, the Applicant was issued a statement of offence for contravening ss. 46 and 197.1 of the Building Act by acting as a building contractor without holding a current licence for that purpose. The Court of Québec convicted the Applicant of the offence charged. It found the work performed by the Applicant was subject to the Building Act. The Québec Superior Court dismissed the Applicant’s appeal. The Qué. C.A. dismissed the Applicant’s motion for leave to appeal, finding it had not shown the nature and importance of the issues transcended its own interests. “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 without costs.”

Criminal Law: Sexual Offences 

J.C. v. R., 2020 BCCA 277  (39483)
There is a publication ban in this case, in the context of sexual offences. “The application for leave to appeal…is dismissed.”

Criminal Law: Warrantless Seizure 

Client B, et al. v. Director of Criminal and Penal Prosecutions, et al., 2020 QCCA (39365)
The Court file contains information not available for inspection by the public, in the context of seizure of a USB drive recording by one lawyer of another. “The applications for leave to appeal…are dismissed.”

Labour Law: Collective Agreement v. Litigation 

Ottawa Police Services Board v. Rukavina, 2020 ONCA 533 (39417)
Mr. Rukavina was Acting Staff Sergeant of the Ottawa Police Service’s tactical unit. He commanded a training exercise during which a detonation of an explosive device injured paramedics and officers. The Special Investigations Unit (SIU) investigated the explosion.  The investigation led to criminal charges being laid against Mr. Rukavina. A year after charges were laid, Crown counsel stayed the charges, finding the explosive device had been operated consistently with long‑standing, standard practices of the Ottawa Police Service. Mr. Rukavina commenced an action in the Superior Court of Ontario against three officers, a superior officer, the Chief of Police and the Ottawa Police Services Board. He claimed police officers knowingly, falsely claimed to SIU investigators the device was operated improperly and superior officers continued to mislead the SIU after charges were laid regarding prior practices and training standards relating to the use of the explosive device. He claimed this conduct improperly caused the charges to be laid and improperly delayed the stay of proceedings. Roger J. granted a motion under Rule 21 of the Rules of Civil Procedure dismissing the action. He found the dispute is governed by the parties’ collective agreement and the Police Services Act. The C.A. allowed an appeal. “The application for leave to appeal…is dismissed with costs.”

Law Schools: Alleged Discrimination 

Visic v. Elia Associates Professional Corporation, 2020 ONCA 779 (39515)
Ms. Visic commenced an action against the University of Windsor where she attended law school, the law firm Elia Associates Professional Corporation where she commenced articling, and her former articling principal Patricia Elia. She in part claimed several causes of action and human rights discrimination in connection with disclosure of her official transcript inclusive of the first of four years of her attendance at law school. She seeks in part an order requiring the University of Windsor to permanently delete records of her first year results and damages from all defendants of $500K for invasion of privacy, breach of fiduciary duty, breach of confidence, breach of contract, negligence, defamation and infringement of the Human Rights Code. Nishikawa J. dismissed the action against the University of Windsor under Rule 2.1.01 of the Rules of Civil Procedure on the basis it raised the same matter as previous actions and human rights complaints. The C.A. dismissed an appeal and awarded costs against Ms. Visic. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Real Estate in Québec: Hypothecary Claims 

Prime Properties inc. v. Patrick Morin inc., 2020 QCCA 929  (39393)
In 2011, the Respondent and the debtor entered into a commercial credit agreement concerning the payment terms for the debtor’s future purchases of construction materials. Between November 2012 and March 2013, the Respondent provided the debtor with materials for a building construction and renovation project. Because the invoices were not paid, the Respondent published a notice of registration of a legal construction hypothec on the building. It served the owner of the building with the notice in June 2013. In July 2013, the Respondent served the owner with a prior notice of the exercise of its hypothecary right of sale under judicial authority and published the prior notice against the building. The Respondent brought a personal action against the debtor in July 2015 and obtained a default judgment in September 2015. That judgment was not executed. In March 2016, the Respondent, which had not been paid, filed an application to exercise a hypothecary remedy against the owner for forced surrender and sale under judicial authority because of the debtor’s failure to pay its claim. In December 2016, the Applicant became the owner of the building. It filed a notice of continuance of proceeding in July 2017. The Court of Québec ordered the Applicant to pay the Respondent an amount equivalent to its hypothecary claim, with interest at the rate of 24% per year. It held the hypothecary action was not prescribed, regardless of what the applicable prescriptive period was assumed to be, and there was no reason to intervene to reduce the interest rate. The C.A. dismissed the Applicant’s appeal, finding the hypothecary action brought by the Respondent was not prescribed and the interest rate, which the parties had reduced to 15.11%, was not exorbitant. “The application for leave to appeal…is dismissed.”

Workers Comp: Reconsiderations 

Scaduto v. WSIAT, 2020 ONCA (39499)
The Applicant had been involved in legal proceedings with the Respondent, Workplace Safety & Insurance Appeal Tribunal since 2006 after being injured at work. He received full loss of earnings from this injury and his claim was expanded to give chronic pain disability. His further claims for compensation for carpal tunnel syndrome and a disability award for psycho‑traumatic disorder were denied.  This leave application arises from the Tribunal’s dismissal of the Applicant’s fourth request for reconsideration of the matter. The Superior Court dismissed the Applicant’s judicial review application. The C.A. endorsement dismissed his motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Remanded (1)

Criminal Law: Robbery 

R. v. Napope, 2020 SKCA 71 (39289)
Mr. Napope was charged with robbery and manslaughter after four men forcibly entered the victim’s apartment to rob him of drugs and money. The victim was stabbed to death. There were two types of evidence linking Mr. Napope to the crime: DNA evidence and one of the two eyewitnesses at the apartment identifying him. Mr. Napope testified he had nothing to do with the robbery. He further testified he had been assaulted, and robbed earlier in the evening by two men, one of whom was wearing a clown mask identical to a mask found in the victim’s apartment. Mr. Napope said he landed a blow on one of the people who attacked him but was knocked unconscious and was bleeding as a result of the altercation. After a trial by judge and jury, the jury found Mr. Napope guilty of robbery and acquitted him of manslaughter. The C.A. allowed Mr. Napope’s robbery conviction appeal. “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 Saskatchewan for disposition in accordance with Her Majesty the Queen v. R.V., 2021 SCC 10.”