Civil Litigation in Québec: Extinctive Prescription

Greif (estate of the late Tauba (Tusia) Magien) v. Luft, 2021 QCCA 1387 (39912)
The Applicant, Gershon (Jerry) Greif, is the son and sole heir and liquidator of the estate of his deceased mother, Tauba Magien Greif (“Tusia”). The Respondent, Samuel Luft, is the nephew by marriage of Tusia and was a financial portfolio manager. After Tusia’s death in 2014, the Applicant found financial documents suggesting Tusia had given large sums of money to the Respondent. The Applicant sent a mise en demeure in September 2016 and instituted an action against the Respondent claiming the unpaid sums of $852,552 in October 2016. The Respondent claimed he had paid back everything owed. He also pleaded the action was prescribed since his last payment to Tusia dated back to 2004 and he had given her a statement of account at that time summarizing all money refunded. The Superior Court of Québec granted the Applicant’s action in part and ordered the Respondent to pay the Applicant $541,593.44. It held the action was not prescribed since the Applicant only discovered the claim in 2014. It rejected the argument the prescriptive period began running in 2004, since Tusia was in the impossibility to act, which suspended the period. The Qué. C.A. unanimously allowed the appeal and dismissed the action, holding the action was prescribe; the conclusion Tusia was in the impossibility to act thereby suspending prescription was incompatible with the evidence. “The application for leave to appeal…is dismissed.”

Commercial Law: Promissory Notes

Sabourin v. P & C Lawfirm Management Inc., 2020 ABCA 449 (40004)
The Applicants agreed to pay the Respondent, by promissory note, the principal sum of $150K on demand, with interest on the principal sum at the rate of twelve (12%) per annum. Demand was made on the promissory note. Payment was not made. Master Birkett granted the Respondent’s motion for summary judgment. Justice Lee allowed the appeal and set aside the summary judgment. The Alta. C.A. allowed the Respondent’s appeal and granted summary judgment. “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.”

Criminal Law: Homicide

Fraser v. R., 2021 BCCA 432 (40027)
Mr. Fraser was charged with second degree murder and tried before a jury. His accounts to the police upon arrest and two days after his arrest differed from his testimony at trial. At trial, crown counsel suggested in cross‑examination and in closing submissions Mr. Fraser was tailoring his testimony to evidence disclosed to the defence before trial. Mr. Fraser was convicted of second degree murder. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Immigration: Permanent Residents

Azubuike v. Minister of Citizenship and Immigration, 2021 FCA (39974)
An Immigration Officer denied Mr. Azubuike’s request for an exemption from the requirements for a permanent resident status visa based on humanitarian and compassionate grounds because he had not shown, in all of the circumstances, decent, fair‑minded Canadians who were aware of the exceptional nature of humanitarian and compassionate relief would find it unacceptable to deny the relief sought. Mr. Azubuike’s application for leave to commence J.R. of the decision of the Immigration Officer was dismissed. Leave to appeal the Fed. Court’s decision was denied. As leave had not been granted, and as Mr. Azubuike had not shown his case presented the exceptional circumstances required for hearing an appeal absent leave to appeal, Rennie J.A. directed the Registrar not to accept filing of Mr. Azubuike’s proposed notice of appeal submitted for filing. “The application for leave to appeal…is dismissed for want of jurisdiction.”

Universities: Reinstatement

Green v. University of Winnipeg, 2021 MBCA 60 (39999)
Mr. Green, a student at the University of Winnipeg’s Faculty of Education, was suspended. After his suspension expired, he applied for reinstatement. The President of the University denied reinstatement. Mr. Green applied for J.R. to the Court of Queen’s Bench, which dismissed. A judge of the Man. C.A. denied leave to continue an appeal. “The application for leave to appeal…is dismissed with costs.”

Universities: Reinstatement

Green v. Bell, et al., 2021 MBCA 81 (40001)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Powers of Attorney

Lockhart v. Lockhart, 2021 ONCA 329 (40009)
The Applicant and Respondent are brother and sister involved in a dispute over their elderly mother’s personal care. Each asserted the right to have exclusive decision-making authority. Their mother resided in a long‑term care facility for 17 years and had full‑time assistance for all of her personal care needs. In 2018, the Applicant prepared a Power of Attorney for Personal Care, appointing himself as the sole attorney, which was signed by the mother, without the knowledge of the Respondent. This power of attorney came to light shortly after the pandemic and the Applicant attempted to exercise his authority under it. The Respondent challenged its validity. The motion judge held the power of attorney of no force and effect and was void ab initio. She further declared the parties would have joint decision making authority for their mother’s personal care. This decision was upheld on appeal. “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 an extension of time been granted, the application for leave to appeal…would have been dismissed. Jamal J. took no part in the judgment.”