Aboriginal Law: Human Rights Complaints

Bangloy v. Canada (Attorney General), 2021 CAF 245 (40099)
The Applicant, Ms. Bangloy, along with her mother and children, sought annuities and educational benefits under the terms of Treaty 11. After Indigenous and Northern Affairs Canada [INAC] denied their claims, Ms. Bangloy and her family complained to the Canadian Human Rights Commission the Respondent’s use of Band membership to administer treaty annuities and its failure to pay private school expenses were discrimination under sections 5 and 14.1 of the Canadian Human Rights Act. They also maintained INAC denied them the benefits in question as retaliation for previous complaints of discrimination the family had lodged against INAC, contrary to s 14.1 of the CHRA. The Canadian Human Rights Tribunal found INAC’s delay in determining the family was owed annuities was a form of retaliation for the previous complaints. But it rejected the family’s contention INAC’s other conduct, including its failure to provide educational benefits or information about those benefits, was retaliatory. The Tribunal awarded Ms. Bangloy and her mother $500.00 each as compensation for pain and suffering, and $1,500.00 to each of the four complainants as special compensation. The application for J.R., and the appeal, were dismissed. “The application for leave to appeal…is dismissed without costs.”

Arbitration: Appeal of Decision

Maïo v. Lambert, 2022 QCCA 157 (40131)
The Applicant, Alain Maïo, filed an application in the Québec Superior Court for the partial annulment of a final arbitration award made on November 20, 2020 in a dispute involving the Respondents, Hugo Lambert and ISL Technologie inc.; Mr. Maïo sought the annulment of the decision ordering the parties to share the arbitration costs equally. He also asked the arbitrator’s findings be reversed in order to award him part of the profits generated by ISL Technologie between January 12, 2012 and November 20, 2020, and sought damages to compensate for the Respondents’ abusive conduct during the arbitration process. The Superior Court dismissed the application for annulment. The Qué. C.A. granted the motion to dismiss the appeal and dismissed the appeal. “The application for leave to appeal…is dismissed without costs.”

Civil Litigation: Experts

Adili v. Homes of Distinction Inc., et al., 2022 ONCA 64 (40116)
The Applicants (the “Adilis”) hired the Respondents (the “builder”) to renovate their home. The relationship between the parties broke down, and the Adilis hired other contractors to complete the renovation and to rectify alleged deficiencies. The builder commenced a construction lien action to recover from the Adilis a balance claimed as owing. The Adilis denied liability and counterclaimed, alleging incomplete and deficient work. The trial judge found the Adilis liable to the builder for most of the amount claimed, and dismissed the Adilis’ counterclaim. In coming to these conclusions, the trial judge preferred the evidence of the builder’s expert as opposed to the Adilis’ expert. The Ont. C.A. dismissed the Adilis’ appeal, having found no palpable and overriding error in the trial judge’s treatment of the expert evidence. It held the trial judge provided cogent reasons for why he discounted the evidence of the Adilis’ expert, and these were credibility and reliability findings to which deference is owed on appeal. “The motion for an extension of time to serve the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Stays

Davidoff, et al. v. Goerz, et al., 2022 ONCA 18 (40125)
The Applicants brought a motion to a single Justice of the Ont. C.A. seeking a stay of enforcement of prior orders. By Order dated August 19, 2021, Associate Chief Justice Fairburn dismissed the stay motion. The Ont. C.A. dismissed the 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 with costs.”

Contracts: Disclosure; Misrepresentation

AM Gold Inc. v. Kaizen Discovery Inc., 2022 BCCA 21 (40111)
The Applicant negotiated the sale to the Respondent of a Peruvian gold and copper project (“Pinaya”) owned by its wholly-owned subsidiary. During the negotiations the parties entered into a Non-Disclosure Agreement, a term of which provided the Respondent could not visit Pinaya without the prior consent of the Applicant. The Applicant ultimately sold its shares in its subsidiary to the Respondent in exchange for $500K plus over 15M common shares in the Respondent.  The Respondent’s share value subsequently devalued after some of its projects were considered impaired and attributed zero value. The Applicant brought an action against the Respondent alleging it had failed to disclose material information or had made misrepresentations about its business and the commercial viability of its projects, and specifically one in Nunavut. The Applicant also claimed the Respondent had breached the Non-Disclosure Agreement and had trespassed by visiting Pinaya and taking soil and water samples for environmental testing. The B.C.S.C. dismissed the Applicant’s action and the B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Courts: Jurisdiction

Froom v. Lafontaine, 2021 ONCA 917 (40091)
The parties have been involved in litigation for many years, including family law proceedings in which the order at issue was made. That order arose out of a motion brought by the Respondent, Ms. Lafontaine, for an order the net proceeds of sale of a disputed property be paid into court. The Applicant, Mr. Froom, sought an adjournment of the motion. The motion judge of the Superior Court of Justice decided to adjourn Ms. Lafontaine’s motion to the trial of the proceedings and she imposed a number of terms on that order. The terms included the requirement Mr. Froom deposit a sum with the accountant of the Superior Court, in trust, pending the outcome of the trial or consent between the parties. Mr. Froom appealed to the Ont. C.A. Ms. Lafontaine brought a motion to quash the appeal. The Ont. C.A. allowed Ms. Lafontaine’s motion, holding the order sought to be appealed from was interlocutory, and therefore could only be appealed to the Divisional Court with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act. Accordingly, it quashed Mr. Froom’s appeal. It also denied Mr. Froom’s request to transfer the appeal to the Divisional Court. “The application for leave to appeal…is dismissed.”

Criminal Law: Importation; Possession for the Purposes

Okojie v. R., 2021 ONCA 773 (40088)
A FedEx package was intercepted by officials at U.S. Customs and inspected. The label on the package said “beauty products”. Inside the package were mascara tubes which contained heroin. The package was turned over to the Canadian Border Services Agency, and thereafter to the RCMP who removed all but one gram of the heroin from the tubes and substituted it with regular mascara. An undercover police officer wearing the uniform of a FedEx delivery operator drove a FedEx delivery truck to 10 Haynes Avenue in North York. The package was addressed to “Abel Morrison” of 10 Haynes Ave., North York. The package was delivered to the Applicant. The Applicant paid the duty owing in cash, signed for the package, got a receipt, and drove away. About an hour later, the Applicant was arrested. The Applicant was convicted of importing heroin and possession of heroin for the purpose of trafficking. His appeal was dismissed. “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: Ineffective Assistance of Counsel

Hjorleifson v. R., 2022 MBCA 22 (40255)
Mr. Hjorleifson’s estranged wife testified he punched and threatened her and she suffered cuts and bruises during the assault. Mr. Hjorleifson’s counsel at trial and on summary conviction appeal said his understanding of criminal law was mediocre at best, and Crown counsel complained to the Law Society regarding defence counsel. Mr. Hjorliefson was convicted of assault and uttering threats. His summary conviction appeal was dismissed. His appeal to the Man. C.A. raising ineffective assistance of counsel was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Jury Selection

Kahsai v. R., 2022 ABCA 12 (40044)
The appellant was convicted by a jury of two counts of first degree murder for the stabbings of his mother and his mother’s ward. The appellant refused to retain counsel subsequent to the preliminary inquiry. The trial judge appointed an amicus curiae to assist with the jury selection process. Due to his disruptive behaviour, the appellant was not present in the courtroom for the jury selection process but was able to observe via videoconference. The jury selection judge explained the jury selection process to the appellant and instructed him to give a thumbs up to the amicus if he did not want a juror challenged and a thumbs down if he did. During the jury selection process, the appellant gave no signals to the amicus. The amicus exercised her professional judgment to use the appellant’s peremptory challenges on eight potential jurors. When potential jurors asked the presiding judge to be excused, those discussions took place off the record and outside the hearing of the prosecutor and the amicus. The appellant appealed the convictions and alleged the jury selection process was flawed and the jury reached an unreasonable verdict in convicting him of the first degree murder of his mother’s ward. The majority of the Alta. C.A. dismissed the appeal. O’Ferrall J.A., dissenting, would have allowed the appeal and ordered a new trial on both counts of first degree murder. “The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault

H. v. R., 2022 ONCA 191 (40133)
There is a publication ban in this case, in the context of sexual assault. “The application for leave to appeal…is dismissed.”

Criminal Law: Vetrovec Warnings

B. v. R., 2021 BCCA 227 (39827)
There is a publication ban in this case, in the context of Vetrovec warnings in a homicide trial. “The application for leave to appeal…is dismissed.”

Defamation: Damages

Chartier v. Bibeau, 2022 MBCA 5 (40083)
The Applicant, a commercial real estate broker and developer, and the Respondent were friends and had numerous real estate and investment dealings over many years. One day, the Respondent told two of the Applicant’s business acquaintances the Applicant stole from him and was a thief. The two acquaintances continued to do business with the Applicant, and the Applicant admitted he suffered no actual loss as a result of the Respondent’s comments. A civil jury awarded the Applicant general damages in the amount of $500K for defamation. On appeal at the Man. C.A., the Respondent did not dispute the jury’s decision he made the defamatory comments, but argued the quantum of damages was unreasonable. The Applicant cross-appealed the jury’s failure to award punitive damages. The Man. C.A. unanimously allowed the Respondent’s appeal, replaced the jury’s award of $500K with an award of $50K for general and aggravated damages, and dismissed the Applicant’s cross‑appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Grievances

Speck v. Ontario Labour Relations Board, et al., 2021 ONCA (40092)
Mr. Speck’s employment was suspended and then terminated, causing a secondment to terminate. His union filed grievances. After the union withdrew the grievances, Mr. Speck filed an application to the Ontario Labour Relations Board. The Board released an interim decision requiring him to file shorter submissions, then dismissed the application because of delay. An application for J.R. was dismissed. The Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Leases: Arbitration

719491 Alberta Inc. v. Canada Life Assurance Company, 2021 ABCA 419 (40069)
719491 Alberta Inc. leases land from The Canada Life Assurance Company. They disagreed regarding the rent due under the lease and proceeded to arbitration. The arbitrator issued a decision. 719491 Alberta Inc. applied to the Court of Queen’s Bench for leave to appeal or to have the arbitration award set aside and remanded for reconsideration. The Court of Queen’s Bench dismissed the application. The Alta. C.A. denied leave to appeal and denied an application to seek review of a decision previously rendered in Sherwin Williams v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191. “The application for leave to appeal…is dismissed with costs.”

Professions: Disqualification of Law Firm

B. v. W., 2022 QCCA 277 (40127)
There is a publication ban in this case; a sealing order; certain information is not available to the public; in the context of alleged breach of confidentiality by a law firm with regard to arrangement proceedings under the CBCA. “The application for leave to appeal…is dismissed.”

Real Estate: Conditional Offers; Deposits

Poirier, et al. v. Ambroise, et al., 2022 QCCA 228 (40146)
On October 1, 2014, the Respondent Mathieu Ambroise, on behalf of a company to be formed, signed an offer to purchase a building in Gatineau owned by 9255-1175 Québec inc., a company controlled by the Applicant Denis Poirier and Tony M. Palmorino. Mr. Ambroise paid a deposit of $210K, which consisted of $100K paid to the Applicants’ lawyers and $110K to the Applicant Relance-Immo inc., a company controlled by Mr. Poirier. The purchase of the building remained conditional on obtaining financing. Following various discussions with banking institutions in the summer of 2015, Mr. Ambroise was unable to obtain the necessary financing, which meant the transaction fell through. He eventually tried and failed to recover his deposit from 9255-1175 Québec inc. In the fall of 2017, Mr. Ambroise and 9185-4620 Québec inc. brought court proceedings against Mr. Poirier, Mr. Palmorino, 9255-1175 Québec inc., 9298-9524 Québec inc. and Relance-Immo inc. seeking restitution of the deposit. In July 2018, 9298-9524 Québec inc. sold the building to a third party for $900K. The Superior Court allowed the originating application in part and made an award in solidum against Mr. Poirier, Mr. Palmorino, 9255-1175 Québec inc., 9298-9524 Québec inc. and Relance-Immo inc. requiring them to pay Mr. Ambroise $210K. The cross-application filed by 9298-9524 Québec inc. was dismissed. The Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Real Estate: Deposits

Lamba, et al. v. Mitchell, et al., 2022 ONCA 164 (40182)
Mr. Lamba and his spouse entered into an agreement of purchase and sale to buy a home from Mr. Mitchell and Mr. Bowring. They failed to close. Mr. Mitchell and Mr. Bowring obtained summary judgment ordering the deposit paid by Mr. and Mrs. Lamba was forfeited. Divisional Court dismissed an appeal. The Ont. C.A. denied a motion for an extension for time to apply for leave to appeal. “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: Deposits

Mpire Capital Corporation v. Sutter Hill Management Corporation, et al., 2022 BCCA 13 (40112)
Pursuant to an agreement for the purchase and sale of a care home, the purchaser gave a deposit and agreed to make commercially reasonable best efforts to obtain regulatory approvals required for the sale as soon as possible. The approvals were not obtained. The vendors took the position the contract was at an end and commenced an action for a declaration the deposit was forfeit. The purchaser sought return of the deposit. The motions judge ordered the return of the deposit. The B.C.C.A. allowed an appeal and ordered the deposit be paid out to the vendors. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Joint Powers of Attorney

Lockhart v. Lockhart, 2021 ONCA 807 (40075)
Barbara Lockhart and Robert Lockhart were siblings exercising joint power of attorney over their mother’s property. They disagreed on how to manage their mother’s interest in their father’s estate. Barbara Lockhart filed motions for a declaration that a will executed by her father in 1974 was his last will and testament and appointing an Estate Trustee. Both motions were granted with costs. A motion by Robert Lockhart was dismissed. The Ont. C.A. dismissed an appeal from the decisions on the motions and denied leave to appeal from the award of costs. “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.”