Granted

Criminal Law: Sexual Assault; Language Rights

Tayo Tompouba v. R., 2022 BCCA 177 (40332)
There is a publication ban in this case, certain information not available to the public, in the context of language rights in a sexual assault trial. “The application for leave to appeal…is granted.”

Dismissed

Aboriginal Law: Non-Aboriginal Licences

Redmond v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCCA 72 (40257)
The Applicant sought a licence for the purpose of building a private micro-scale run-of-river hydroelectric project. The river on which he proposed to build the generator was located on the traditional territory of the Cheam First Nation and was of significant spiritual importance to the Cheam First Nation. The Respondent denied the Applicant’s application. The Applicant’s J.R. was dismissed. The B.C.C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”
 

Administrative Law: Disclosure

Gordillo, et al. v. Canada (Attorney General), 2022 FCA 23 (40152)
Mr. Abarca was a community leader murdered following protests against a Canadian mining company operating in Mexico. The Applicants, who are supporters of Mr. Abarca, submitted their request for an investigation to the Public Sector Integrity Commissioner of Canada. They alleged the Canadian Embassy in Mexico engaged in wrongdoings as defined in ss. 8(d) and (e) of the Public Servants Disclosure Protection Act. Their complaint contained footnotes with references to documents obtained through an access to information request and hyperlinks to documents, which were not physically provided to the Commissioner. The Commissioner determined the requirements of s. 33(1) of the PSDPA had not been met and it was not in the public interest to commence an investigation. The Fed. Court dismissed the J.R., stating the decision was reasonable and procedurally fair. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed without costs.”
 

Civil Litigation: Anti-SLAPP; Jurisdiction

Bouragba v. Ontario College of Teachers, 2021 ONCA 508 (40240)
The Respondent brought an action in defamation against Mr. Bouragba. He moved under s. 137.1 of the Courts of Justice Act to dismiss the action, commonly known as the “anti-SLAPP legislation.”  His motion was dismissed on the ground the communication in question was not in respect of a matter of public interest. This decision was overturned on appeal and the matter sent back to the Ontario Superior Court of Justice to be heard by a different judge. On March 22, 2021, the Respondent obtained leave to discontinue its defamation action. Mr. Bouragba appealed that order to the Divisional Court and to the Ont. C.A. The Respondent moved to quash the appeal to the Ont. C.A. A single judge referred the motion to a full panel of that court. The full panel quashed the appeal and directed it be heard by the Divisional Court because the order of Master Brott had not been made under s. 137.1 of the Courts of Justice Act, so Mr. Bouragba could not rely on s. 6(1)(d) which stated an appeal would lie to the Ont. C.A. Mr. Bouragba’s appeal before the Ont. C.A. was quashed. His appeal regarding the same matter — the discontinuance of the defamation action against him — is on reserve before the Divisional Court. “The response to the motion for an extension of time filed by the respondent is accepted for filing. The reply to the motion for an extension of time filed by the applicant is accepted for filing. 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.”
 

Civil Litigation: Costs

Wang v. Alberta, 2022 ABCA 79 (40219)
In the underlying action, the Applicants sued the Government of Alberta for negligent drafting of certain legislation (Action No 1901-12788).  The matter has a lengthy history and involves numerous actions. The Applicants were granted leave to appeal two costs orders. The Alta. C.A. dismissed the first costs order appeal, and allowed the second costs order appeal. The Alta. C.A. did not consider the Applicants’ arguments on alleged bias of the case management judge. “The motion for an extension of time to serve and file the applicants’ reply is granted. The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Motions to Strike

Hemchand v. Toronto Community Housing, et al., 2022 ONCA 330 (40278)
The Applicant commenced an application seeking damages and injunctive relief. The Applicant’s application was dismissed on the basis it was frivolous, vexatious or otherwise an abuse of process (the Dismissal Decision). The Applicant commenced an appeal of the Dismissal Decision (appeal file number C69822). Next, the Applicant commenced a second appeal, also challenging the Dismissal Decision, and served his Certificate Respecting Evidence (appeal file number C69828). The Ont. C.A. released a decision dismissing C69828 and quashing C69822. “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 to the respondent, Toronto Community Housing Corporation. Jamal J. took no part in the judgment.”
 

Civil Litigation: Motions to Strike

Ingram v. Alberta (Chief Medical Officer of Health), et al., 2022 ABCA 97 (40180)
The Applicant filed an originating application in the Alberta Court of Queen’s Bench, in which she claimed, amongst other things, that ss. 29(2.1)(b) and 66.1 of the Public Health Act offend s. 1(a) of the Alberta Bill of Rights. The chambers judge struck these claims for disclosing “no reasonable claim” under Rule 3.68 of the Alberta Rules of Court, A.R. 124/2010. The Alta. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Settlements

2285754 Ontario Inc., et al. v. 1504641 Ontario Inc., et al., 2022 ONCA 175 (40189)
In February 2020, the parties entered into Minutes of Settlement at a pre-trial, pursuant to which the Applicants were required to pay to the Respondents $40K in four monthly instalments of $10K each between March 2 and June 2, 2020. The Applicants were also required to deliver a consent to judgment in the amount of $120K to be held in escrow pending completion of their instalment payments at which time the consent would be returned to their counsel. The Applicants also agreed to deliver a consent to the dismissal of the action without costs. The Applicants failed to deliver the required consents and stopped payment on their last $10K instalment. The Respondents brought a motion against the Applicants, seeking to enforce the terms of the Minutes of Settlement. The motion judge granted the Respondents’ motion. Her decision was upheld on appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The miscellaneous motions are dismissed. The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Solicitor-Client Privilege

Macquarie Capital Markets Canada Ltd. v. PetroFrontier Corp., et al., 2022 ABCA 136 (40216)
The Applicant terminated an underwriting agreement with the Respondents on the basis the latter failed to file a final prospectus before the set deadline. The Respondents commenced an action in damages, alleging the Applicant and its external legal counsel had agreed to extend the prospectus-filing deadline. During questioning, the Applicant’s senior management employees refused to answer questions about communications between it and external counsel concerning the alleged deadline extension, claiming solicitor-client privilege. On application, a Master found through its written pleadings the Applicant had waived its privilege by putting in issue the authority of and instructions given to counsel. An Order directed the Applicant’s representatives to answer most of the questions. Appeals to the Court of Queen’s Bench of Alberta and the Alta. C.A. on that issue were dismissed. “The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Air of Reality Threshold

K. v. R., 2022 MBCA 49 (40327)
There is a publication ban in this case, in the context of air of reality threshold in a manslaughter (and related charges) case. “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: Alleged Ineffective Assistance of Counsel

Thomas v. R., 2018 ONCA 694 (40341)
The Applicant was charged with the second degree murder of his common law spouse. The murder was alleged to have occurred in the early morning hours on January 1, 2007. A couple of months later, the victim’s badly decomposed body was discovered. After a trial by judge and jury, the Applicant was convicted of second degree murder. He was sentenced to life imprisonment with no eligibility for parole for a period of 16 years. In the context of alleged ineffective assistance of counsel, the Ont. C.A. dismissed the conviction and sentence appeals. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”
 

Criminal Law: Delay

Campbell v. R., 2022 ONCA 223 (40287)
The Applicant, Dwayne Campbell, together with a co‑accused, participated in a home invasion on December 19, 2016. The trial regarding the charges relating to the event was scheduled to commence on July 8, 2019, following two prior adjourned trials as a result of the co‑accused’s conduct. The Applicant applied for a stay of proceedings for violation of s. 11(b) of the Charter. The application judge dismissed the application. The Applicant was convicted of two counts of robbery, two counts of forcible confinement and use of an imitation firearm in the commission of an offence. He appealed the convictions and alleged that the application judged erred in dismissing his application. 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.”
 

Criminal Law: Fraud

Motayne v. R., 2022 ONCA 562 (40356)
For several years the Applicant Marcia Motayne worked as the director of finance for New Visions Toronto (NVT), a not-for-profit organization supporting children and adults with physical and intellectual disabilities. During that time she had exclusive control over NVT’s electronic payroll process. Ms. Motayne was terminated from her position. Shortly after Ms. Motayne’s termination, a large-scale payroll fraud was discovered. Money had been transferred through NVT’s electronic payroll process, via unused employee numbers, to various bank accounts registered in Ms. Motayne’s name. The fraud had taken place over several years and had deprived NVT of over $900,000. Ms. Motayne was charged with one count of fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code. She was convicted following a jury trial. Ms. Motayne appealed from the conviction, primarily on the basis the trial judge’s charge to the jury was flawed. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Homicide

Noskiye v. R., 2022 ABCA 183 (40313)
Mr. Yellowknee left a party after an argument with Mr. Bigstone. Mr. Noskiye, Mr. Bigstone and Ms. Nanemahoo followed him and a fight broke out. Mr. Yellowstone was stabbed several times, fatally. Mr. Bigstone was cut in the neck. Mr. Noskiye was convicted for the second degree murder of Mr. Yellowknee and acquitted on a charge of assaulting Mr. Bigstone. The Alta. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Juvenile Sentencing

R. v. M.M., 2022 NSCA 46 (40343)
There is a publication ban in this case, in the context of youth sentencing re sexual assault. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Payment Card Fraud

B. v. R., 2021 QCCA 1353 (39930)
There is a publication ban in this case, a Sealing order, and certain information not available to the public, in the context of payment card fraud. “The motion for an extension of time to serve and file the transcripts necessary for the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
 

Criminal Law: Robbery

Scott v. R., 2022 ONCA 317 (40340)
Two masked men committed a violent home invasion and robbery. Meanwhile, a police officer was responding to a call from a neighbour reporting a vehicle had parked in a no-parking zone, he had seen two men exit the vehicle and don ski masks, and the driver remained in the vehicle. The officer found Mr. Scott seated in the front of the vehicle. The testimony of the responding police officer conflicted in part with the testimony of the neighbour. Based on the testimony of the neighbour, Mr. Scott was convicted of robbery for aiding the robbers or for being wilfully blind to their intent to commit robbery. The Ont. C.A. dismissed an 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.”
 

Criminal Law: Sex Work Constitutionality

N.S. v. R., 2022 ONCA 160 (40324)
There is a publication ban in this case, and a publication ban on the party, in the context of the constitutionality of sex work charges. “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 Assault

M. v. R., 2022 ABCA 251 (40375)
There is a publication ban in this case, in the context of sexual assault convictions. “The application for leave to appeal…is dismissed.”
  

Criminal Law: Sexual Offences; Disclosure

C.B. v. R., 2022 ONCA 572 (40349)
There is a publication ban in this case, as well as a Sealing order, in the context of disclosure issues re complainant’s diary entries. “The application for leave to appeal…is dismissed.”
 

Employment Law: Employment Insurance

Faullem v. Canada (Attorney General), 2022 CAF 29 (40260)
The Applicant’s employment ended after he suffered psychological harassment, as confirmed in two decisions of Québec’s Administrative Labour Tribunal. Further to that tribunal’s decision, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) paid the Applicant a daily amount as an income replacement indemnity. After the Applicant informed the Canada Employment Insurance Commission (“Commission”) of the receipt of the amounts in question, the Commission advised him that amounts received retroactively from the CNESST for the weeks during which he received employment insurance benefits constituted earnings and he was therefore required to repay an overpayment amount. The General Division of the Social Security Tribunal confirmed the Commission had properly sought repayment from him. The Appeal Division of the Social Security Tribunal dismissed the Applicant’s appeal. The Applicant filed J.R. with the Fed. C.A., which held the Appeal Division’s decision was reasonable except as regards an issue relating to a benefits overpayment amount, for which an additional sum had to be deducted from the overpayment. “The motion to file a lengthy memorandum of argument is granted. The motions to adduce new evidence are dismissed. The motion to file a lengthy reply is dismissed. The application for leave to appeal…is dismissed with costs.”
 

Employment Law: Federal Records of Employment

Vuong v. Canada (Attorney General), 2021 FCA 221 (40243)
After a successful application for reconsideration with the Employment Insurance Commission whereby his benefits were properly adjusted, Mr. Vuong believed his new Record of Employment (ROE) still contained errors. The General Division of the Social Security Tribunal held it had no jurisdiction to correct an ROE issued by an employer. The Appeal Division found the General Division made no error and the alleged ROE errors were unrelated to the Commission’s decision. The Fed. Court dismissed the J.R., noting the error was insignificant, had no impact on the Commission’s decision and could have no possible impact on Mr. Vuong’s future claims. The Fed. C.A. dismissed the appeal, as there was no mechanism by which a court or the Tribunal could compel Mr. Vuong’s employer to correct the ROE. “The application for leave to appeal…is dismissed.”
 

Family Law: Valuation Date for Assets

Banh v. Chrysler, 2022 BCCA 74 (40156)
The parties were married in August 2014 and separated two years later. At the time of marriage, Mr. Banh was the owner of three rental properties located on Vancouver Island while Ms. Chrysler owned a condominium in Surrey, British Columbia. The couple had one son together, who was born in June 2016. Parenting time, child support, spousal support, division of property and valuation dates were all in issue at trial, which took place three and a half years after the parties separated. The main issue between the parties was whether their assets should be presumptively valued at the date of trial. The judge ordered the valuation of the excluded real property assets of each party should be calculated at the date of separation. This decision was overturned on appeal. The proper date for calculating the value of the growth in value of the assets was the date of trial. “The application for leave to appeal…is dismissed with costs.”
  

Real Property: APS

Akelius Canada Ltd. v. 2436196 Ontario Inc., et al., 2022 ONCA 259 (40201)
The parties entered into an agreement of purchase and sale (“APS”) under which the Applicant, Akelius Canada Ltd., agreed to buy from the Respondents, 2436196 Ontario Inc. and B’Nai Fishel Corporation, seven residential apartment buildings for an overall purchase price of $228,958,320. The deal did not close as contemplated on January 7, 2016, because of the Respondents’ breach in failing to remove certain encumbrances from title. In September 2018, the Respondents sold the properties to a new purchaser for 25 percent more than the purchase price, some $56,544,318. The matter proceeded on a motion for summary judgment. The motion judge found that the Respondents breached the APS and awarded the Applicant $775,855.46 as costs thrown away. The Applicant’s claim of $56,544,318 as its loss of the value of the transaction was dismissed. The motion judge declined to order costs in favour of either party in light of the mixed success on the motion. The Ont. C.A. unanimously dismissed the Applicant’s appeal regarding the damages on the loss of the value of the transaction. It also dismissed the Respondents’ cross‑appeal regarding the motion judge’s award to the Applicant of $775,855.46. The C.A. awarded the costs of the appeal to the Respondents in the agreed amount of $25,000. “The application for leave to appeal…is dismissed with costs.”

 

Tax/Trusts: Estate Freezes; Fiduciary Duty

Pirani, et al. v. Pirani, et al., 2022 BCCA 65 (40162)
In 1993, four brothers who ran family corporations implemented an estate freeze. Each created a family trust. Voting control and frozen and future value of the family corporations were distributed equally. In 2014, the family companies were re-organized and the trusts wound-up.  Only some beneficiaries retained voting control and future value of family businesses.  Two family trusts commenced litigation. The trial judge found breach of fiduciary duty, knowingly assisting breach of fiduciary duty and failure to act in good faith. She declared entitlement to disgorgement and granted remedies. The B.C.C.A. granted an appeal. “The application for leave to appeal…is dismissed with costs to Haider Pirani, Mustaq Pirani and Mehboob Pirani.”
 

Wills & Estates: Mutual Wills; Secret Trusts; Unconscionability

Gefen v. Gefen, et al., 2019 ONSC 6015 (40164)
Henia and her husband, Elias Gefen, were married for 65 years. They moved to Canada in 1951, invested in real estate, accumulating approximately $30 million before Elias’ death on October 28, 2011. They had three sons: Harvey, Yehuda and Harry. In 2007, Elias and Henia executed mirror wills in which each of them left their estate to the other spouse. If the survivor did not survive more than 30 days, the estate was to be divided among their three sons in equal shares. In 2011, Elias was diagnosed with terminal lymphoma and had to be hospitalized. There was a great deal of acrimony in the family concerning Elias’ and Henia’s assets. On August 17, 2011, two months before he died, Elias signed a handwritten document that Harvey had prepared. In that document, Elias stated that he did not intend to change his 2007 will and to the best of his knowledge, his wife had no intention to change hers either. It also indicated that Henia and Elias intended that their estates should be divided equally between the three sons. Henia did not sign this document. After Elias died, Henia sued Yehuda and Harry over events that occurred when Elias was in hospital. Yehuda and Harry advanced various counterclaims and third-party claims against both Henia and Harvey. At trial, only the counterclaims and third-party claims were in issue. Harry and Yehuda’s Estate each sought a one-third share of the assets accumulated by Henia and Elias over their lifetimes, all of which was held by Henia after Elias’ death and much of which had since been conveyed by Henia to Harvey and his children. Harry and Yehuda’s Estate relied on the August 2011 document as evidence of a mutual will agreement between Henia and Elias requiring the survivor to treat their children equally and restricting the freedom to make testamentary and inter vivos gifts of the estate. The document was also alleged to have created a secret trust by which all assets received by Harvey from Elias after the date of execution were to be held by Harvey in trust for his brothers. Harvey was also alleged to have caused Henia to transfer assets to himself through unconscionable procurement. The trial judge dismissed the mutual wills agreement and secret trust claims.  She allowed the claim of unconscionable procurement in part. All subsequent appeals were dismissed. “The application for leave to appeal…is dismissed with costs.”