Bankruptcy & Insolvency: Mining Remediation

Yukon (Government of) v. Yukon Zinc, 2021 YKCA 2 (39659)
The Yukon Zinc Corporation’s principal asset was a zinc-silver-lead mine (the Wolverine Mine) located in Yukon. The mine operated for about three years before it entered financial difficulties. It made a filing under the Companies’ Creditors Arrangement Act and successfully reorganized with funds provided by its sole shareholder. When Yukon Zinc was deemed to have made an assignment into bankruptcy, the Government applied for declarations it had a provable claim in the bankruptcy for the undisputed estimated future costs for the remediation and final closure plan for the mine ($35,548,650); and its claim secured as described in s. 14.06(7) of the BIA. The chambers judge concluded the estimated cost for remediation and closure of the mine was not sufficiently certain to make it into a provable claim in bankruptcy. Those costs, beyond the security held, would be a provable claim in bankruptcy once they are actually incurred. That claim would rank in priority over any other claim, right, charge or security against the property, including the mineral claims. The Yukon C.A. concluded the Government did not have a provable claim, contingent or otherwise, in bankruptcy because mineral leases are interests in real property, not real property. “The application for leave to appeal…is dismissed.”
 

Bankruptcy & Insolvency: Mining Remediation

Welichem Research General Partnership v. Government of Yukon, et al., 2021 YKCA 2 (39660)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
 

Condos: Condo Owner Claims

Wang v. Owners, Strata Plan LMS 2970, 2020 BCCA 356 (39738)
Ms. Wang brought a proceeding before the B.C. Civil Resolution Tribunal claiming the condo council refused to post a notice describing vandalism to her car and her allegation Mr. Chao Wang vandalized her car and the council refused to allow her husband to attend the meeting reviewing her request. The Tribunal dismissed the claims. The B.C.S.C. denied leave to appeal. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”
 

Condos: Condo Owner Claims

Wang v. Owners, Strata Plan LMS 2970, 2020 BCCA 356 (39747)
Similar summary to that immediately above. “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: Mandatory Minimums

Chung v. R., 2021 ONCA 188 (39705)
Ms. Chung was convicted of fraud and possession of property obtained by crime. She was sentenced in part to a $2.3M fine in lieu of forfeiture with 6 years jail time if default of payment of the fine. The sentencing judge held s. 462.37(4) of the Criminal Code which required determining the term of imprisonment for default at the time of imposing the fine in lieu of forfeiture and which set a 5‑year mandatory minimum sentence in Ms. Chung’s circumstances does not breach ss. 7 or 12 of the Charter. The Ont. C.A. allowed an appeal from sentence in part, altering other parts of the sentence but not the fine in lieu of forfeiture or the 6 years if default of payment of the fine. ‘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: Sexual and Other Offences

A.L.M. v. R., 2021 ABCA 134 (39601)
There is a publication ban on the party in the context of sexual assault, unlawful confinement, and assault causing bodily harm. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Sexual Assault

K.J.G. v. R., 2021 BCCA 187 (39689)
There is a publication ban in this case, in the context of sexual assault. “The application for leave to appeal…is dismissed.”
 

Family Law: Equalization Payments

Makeeva v. Makeev, 2021 ONCA 232 (39706)
The parties married in 2000 and separated in 2015. They have two children, born in 2006 and 2011. Custody and access of the children was resolved by way of a consent order. At trial, the Respondent was ordered to pay monthly child support of $428, the Applicant ordered to pay monthly spousal support of $905 and the Applicant ordered to pay $17,419 as an equalization payment to the Respondent. The Applicant’s appeal was dismissed but the Respondent’s cross-appeal allowed and the equalization payment ordered by the trial judge was amended to $50,812. “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.”
 

Family Law: Parental Child Abduction

N.M. v. R., 2019 QCCA 1945 (39574)
There is a publication ban in this case, a publication ban on the party, and certain information not available to the public, in the context of parental child abduction. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”
 

Insurance: Universal Life Policies

Atwater Investment LP v. BMO Life Assurance Company, 2021 SKCA 36 (39672)
An insurer (now BMO Life) issued two identical ULPs (universal life insurance policies) recording a numbered company as the Applicant, insured and beneficiary and insuring the lives of its principal and each of his two daughters. The numbered company later assigned its interests under the ULPs to the Applicant (“Atwater”), at which time Atwater added one of its principals as a life insured. An ULP being a contract for life insurance that allows the insured to take advantage of accrual‑tax exemption provisions under tax legislation. The ULP provided a tax advantage on investment income held in an exempt account (provided the sums in the account do not exceed certain limits) and sets up a non‑exempt side account through which the insurer may receive, hold and invest additional sums on behalf of the insured. Issues arose between Atwater and BMO Life when the latter refused to accept payments made by Atwater under the two policies to be credited to its side accounts. Atwater brought two originating applications, seeking declarations it is entitled to invest unlimited amounts into the guaranteed-interest options within the side accounts and other declarations with respect to the tax‑exempt status of the policies and the premiums that could be paid into the investment accounts. The 2018 Regulation and later the 2020 Regulation subsequently came into effect prohibiting insurers from receiving payments for deposit in excess of the amounts required to pay the life insurance premiums for these policies. The Saskatchewan Court of Queen’s Bench held, based upon the meaning it ascribed to the term premiums, the ULPs did not provide for unlimited stand‑alone investment opportunities within the side accounts. It also held the 2018 Regulation did not apply to ULPs entered into prior to its enactment. The Sask. C.A. allowed Atwater’s appeal and held that properly interpreted, the ULPs permitted unlimited stand-alone investments within side accounts. However, the court also allowed BMO Life’s cross‑appeal and held both the 2018 Regulation and successor 2020 Regulation prohibited insurers as of the date of their enactment from receiving or accepting for deposit funds or payments in excess of amounts required to pay the life insurance premiums. Atwater applied for leave to appeal that decision, and BMO Life applied for leave to cross‑appeal the decision on the issue of contract interpretation. “The application for leave to appeal…is dismissed with costs to BMO Life Assurance Company. The application for leave to cross-appeal filed by BMO Life Assurance Company is dismissed with costs to Atwater Investment LP.”
 

Insurance: Universal Life Policies

Mosten Investment LP v. Manufacturers Life Insurance Company o/a Manulife Financial, 2021 SKCA 36 (39674)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
 

Insurance: Universal Life Policies

Ituna Investment LP v. Industrial Alliance Insurance and Financial Services Inc., 2021 SKCA 36 (39675)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
 

Mortgages: Foreclosure

Asaduzzaman v. 8703060 Canada Inc., 2019 QCCA 1556 (39723)
In October, 2017, the Respondent filed an originating application against the Applicant and his spouse for forced surrender and taking in payment of two buildings, based upon alleged non-payment of loans secured by mortgage. In March, 2018, a judgment by default was rendered by the Special Clerk, whereby the Applicant and his spouse were ordered to surrender the properties and the Respondent was declared to be the rightful owner. In June, 2018, the Applicant filed a motion to revoke the Special Clerk’s judgment, alleging he was never served with the originating application as he was travelling abroad at the time of service. On March 27, 2019, the Québec Superior Court dismissed the Applicant’s motion to revoke (2019 QCCS 1097). That decision was confirmed on appeal (2019 QCCA 1556). In September, 2019, the Applicant filed a second application in revocation against the judgment of the Special Clerk, asking for a modification of the 2019 QCCS 1097 judgment. On February 17, 2020, Blanchard J. of the Québec Superior Court rejected the motion, finding it to be an abuse of process (QCCS File no.’s 500‑17‑105228‑171). On March 13, 2020, Mr. Asaduzzaman and another filed a joint appeal against the judgment of Blanchard J. The C.A. granted a motion for dismissal, finding the appeal presented no chance of success (2021 QCCA 200). The Applicant now brings a motion for an extension of time and an application for leave to appeal the 2019 QCCA 1556 decision. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”
 

Mortgages: Foreclosure

Asaduzzaman, et al. v. 8703060 Canada Inc., et al., 2021 QCCA 200 (39724)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”
 

Professions: Prior Convictions

Cozak v. Barreau du Québec, 2021 QCCA 776 (39677)
In December 2019, the Applicant, who had a bachelor of law degree, was convicted of assaulting a correctional officer. After passing the examination of the École du Barreau in 2020, he requested entry on the Roll of the Order of the Barreau du Québec. On December 18, 2020, the Applicant was sworn in and entered on the Roll. On December 23, 2020, the Barreau informed him that his entry on the Roll was being revoked because he had been sworn in before the committee for access to the profession made a decision on his admission. The Applicant applied for an interlocutory injunction in order to be re‑entered on the Roll. The Qué. Superior Court dismissed the application for an interlocutory injunction. The Qué. C.A. dismissed the Applicant’s motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”
 

Tax: Attribution of Unreported Income

Boies v. Agence du revenu du Québec, 2021 QCCA 107 (39613)
The Applicant, Richard Boies, was the subject of a personal tax audit for the 2005, 2006 and 2007 taxation years. The Respondent, the Agence du revenu du Québec, applying the indirect cash flow audit method, attributed unreported income to Mr. Boies and issued notices of assessment for the years in question. At trial, the judge confirmed the presumption of validity of the notices of assessment for the 2005, 2006 and 2007 taxation years under ss. 1010 and 1014 of the Taxation Act. He allowed Mr. Boies’s appeal in part, but only to refer the matter back to the Minister of Revenue to vary the notices of assessment by taking revised amounts for the 2005, 2006 and 2007 taxation years into account and subtracting expenditures for 2007. The trial judge also confirmed the imposition of penalties under s. 1049. The Qué. C.A. confirmed the assessments and penalties for the 2006 and 2007 taxation years, but allowed Mr. Boies’s appeal in part in respect of 2005, vacating the notice of assessment and related penalties for that year. The Qué. C.A. concluded the assessment for the 2005 taxation year was prescribed. “The application for leave to appeal…is dismissed with costs.”
 

Tax: Time Extensions; Reconsideration Motions

Adams v. R., 2020 F.C.A. (39735)
An audit by C.R.A. of several companies and Mr. Adams led to litigation before the Tax Court of Canada. The Tax Court issued interlocutory decisions in the litigation. The Fed. C.A. denied an extension of time to appeal from some of the Tax Court’s decisions and dismissed a motion for reconsideration. “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.”
 

Workers Comp: Appeal Jurisdiction

Jirasek v. Zhao, 2020 BCCA 308 (39718)
The Applicant filed an application with the B.C. Workers’ Compensation Board under s. 55 of the Workers Compensation Act seeking compensation for injuries he claimed were sustained while performing excavation work on the property of the Respondent. He claimed he was hit on the top of his head by a hydraulic power shovel bucket on an excavator as he worked spreading gravel on a lower level. The Applicant’s claim was first denied by the Board and the Board’s review Division, but on appeal to the Worker’s Compensation Appeal Tribunal (“WCAT”), WCAT found he had suffered a minor neck strain. The Board determined in a series of subsequent decisions: the Applicant should receive no benefits beyond June 2015, by which time his neck strain injury had been resolved; no wage loss benefits were payable; the Applicant’s workplace injury did not aggravate his pre‑existing degenerative disc disease; there was no evidence of a psychological condition caused by the workplace injury; and the Applicant’s request to have his chronic pain accepted as part of his claim should be denied. These decisions were all confirmed by the Board’s Review Decision, and the Applicant filed two petitions for judicial review. The Applicant also filed the notice of claim against the Respondent alleging criminal negligence. The Respondent applied to strike the Applicant’s action under Rule 9‑5(1) of the Supreme Court Civil Rules as an abuse of court process and an impermissible collateral challenge to the decisions of the Board and WCAT. The B.C.S.C. granted the application, finding it plain and obvious the Applicant’s claim disclosed no reasonable cause of action given the statutory limits on his common law right of action. The court also found it to be an abuse of process to the extent it sought to overturn the final adjudicative decisions of the Board and WCAT other than through the statutory appeal or judicial review process. The B.C.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 motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed without costs.”