Civil Litigation: Security for Costs

Sir v. R., et al., 2022 FCA (40188)
Since coming to Canada from Germany, Ms. Sir had dealings with the Canadian Border Services Agency “CBSA”), and RCMP officers. She brought an action against two CBSA managers, three CBSA Enforcement Officers, two RCMP officers, the Crown and the Attorney General of Canada. The Respondents obtained an order requiring Ms. Sir to post security for costs on the basis she was not ordinarily resident in Canada. This order prohibited Ms. Sir from taking any further steps in her action until she paid $8,900 as security for costs and $1,200 in costs to the Respondents. Ms. Sir did not pay the costs awards by the deadline date imposed by the case management judge and her action was subsequently dismissed. The Fed. Court dismissed her motions and appeals after her action was dismissed. Her subsequent motions and appeals were all dismissed by the Fed. C.A. “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: Vexatious Litigants

Hokhold v. Canada (Attorney General), et al., 2021 BCCA 475 (40295)
The Applicant commenced an action against the Respondents. Justice Betton allowed the applications of the Attorneys General, struck the notice of civil claim, dismissed the action, and extended the vexatious litigant order in the S.C.B.C. by enjoining the Applicant from bringing any further proceedings in that court without leave. The B.C.C.A. dismissed the 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.”

Creditor/Debtor: Debt Recovery; Summary Judgments

Sutherland v. Canadian Imperial Bank of Commerce, 2022 ONCA 426 (40337)
In November of 2020, the Respondent bank commenced an action against the Applicant Mr. Sutherland for non-payment on a line of credit and two credit cards, on which a total of $172K was owing. The bank also held a first mortgage on a cottage owned by Mr. Sutherland to secure another line of credit. Mr. Sutherland filed a defence and counterclaim. On May 20, 2021, the court granted the bank’s motion to strike portions of Mr. Sutherland’s statement of defence on the basis those portions did not relate to the line of credit and two credit cards in issue. The entire counterclaim was also struck because it did not disclose a cause of action against the bank. The bank then brought a motion for summary judgment. The motion judge observed Mr. Sutherland did not deny the existence of the debt related to the line of credit and the two credit cards, his liability for the amounts owed or the amount owing. The motion judge concluded there was no genuine issue for trial and granted the summary judgment in favour of the bank. The Ont. C.A. dismissed Mr. Sutherland’s appeal. “The application for leave to appeal…is dismissed.”

Creditor/Debtor: Foreign Judgments; Mareva Injunctions

Baptiste v. Goguen, 2022 ONCA 284 (40214)
In August 2020, Mr. Goguen asked the Ontario courts to recognize and enforce California judgments entered against Ms. Baptiste and Every Girl Counts for more than US$14M. The evidence was they had assets in Ontario, and there was no suggestion they had assets elsewhere. In September 2020, Mr. Goguen obtained a Mareva injunction freezing their assets in Ontario, and, in November 2020, they were noted in default. Upon discovering their only Canadian assets were held in a bank account in Alberta, Mr. Goguen obtained an order to extend the Mareva injunction to include that account.  Mr. Goguen’s application for summary judgment was granted and the chambers judge made orders allowing him to seize the money in the Alberta bank account. The Ont. C.A. dismissed the appeal filed by Ms. Baptiste and Every Girl Counts. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Criminal Negligence Causing Death/Necessaries of Life

R. v. Doering, 2022 ONCA 559 (40372)
The Respondent, a police officer, arrested a woman on an outstanding warrant. The Respondent believed her to be intoxicated by methamphetamine upon arrest; she was agitated but alert and ambulatory. An EMS supervisor attended the scene; he did not examine the woman directly but did not express any reservations about her being held in custody. Unbeknownst to the Respondent and the EMS supervisor, the woman had already ingested a toxic amount of methamphetamine. The Respondent transported her to another location to transfer her to the custody of another police force. Upon arrival, the woman could not speak, sit up, or respond to commands. The Respondent told his counterparts from the other force her condition had not changed and she had been “looked at” by EMS. The other police officers took the woman to a police lockup. Twenty-five minutes later, another officer summoned EMS, who transported the now-unresponsive woman to the hospital. She died approximately one hour later as a result of methamphetamine toxicity. The Respondent made certain factual admissions at trial the Crown relied upon to prove he caused the woman’s death in fact and in law. The trial judge agreed and convicted the Respondent of criminal negligence causing death and failing to provide the necessaries of life; the Ont. C.A. disagreed and substituted an acquittal for criminal negligence causing death, but maintained the conviction on failing to provide the necessaries of life. “The application for leave to appeal…is dismissed.”

Criminal Law: Historic Sexual Offences

Dedam v. R., 2022 NBCA 41 (40410)
Three adult complainants who had lived with Mr. Dedam and his family as children alleged historic sexual offences. Mr. Dedam was convicted of sexual assault, rape, sexual intercourse with a female under 14 years of age, and sexual intercourse with a female between 14 and 16 years of age. He was sentenced to concurrent terms of imprisonment. The longest sentences were ten years. The N.B.C.A. dismissed an appeal from the convictions and allowed an appeal from the sentences, reducing the global term to 9 years. “The application for leave to appeal…is dismissed.”

Criminal Law: Right to Counsel

Wilson v. R., 2022 QCCA 1131 (40185)
A Court of Québec judge acquitted the Applicant, Bruce Wilson, of four charges relating to possession of and trafficking in drugs contrary to the Controlled Drugs and Substances Act. The acquittals stemmed from the judge’s decision to exclude all evidence obtained by the police following the violation alleged by the Applicant of his right to counsel.  The Qué. C.A. allowed the Crown’s appeal in part and ordered the continuation of the trial on two of the four charges. “The application for leave to appeal…dismissed.”

Employment Law: Employee v. Independent Contractor

Beach Place Ventures Ltd., et al. v. Employment Standards Tribunal, 2022 BCCA 147 (40239)
In Vancouver, Black Top and Checker Cab brands are owned and operated by shareholders of Black Top Cabs Ltd., which holds taxi licences on their behalf. Black Top is also the sole shareholder of Beach Place Ventures, which provides administration, accounting and dispatch services to the taxis. The taxis can be driven by the owner, but the owner can allow a “lease driver” to operate the taxi in exchange for rent or can allow a “spare driver” to operate the taxi for a period of time in exchange for a fee. A spare driver who had previously filed his tax returns on the understanding he was an independent contractor filed his 2014 tax return on the understanding he was an employee. After an injury the following year, he applied for employment insurance benefits. The CRA determined he had been an employee throughout. The Minister appealed. Meanwhile, the driver filed a complaint with the Employment Standards Tribunal alleging Beach Place and Black Top had breached the Employment Standards Act. A delegate of the Director of Employment Standards concluded he was an employee, but did not specify whether his employer was Black Top or Beach Place. The Tribunal allowed an appeal and remitted the matter to the Director for a re-hearing or a fresh investigation. The complaint was then amalgamated with two similar complaints made by another spare driver and a lease driver with a half-interest in the cab he drove. The delegate found the factors set out in the case law and the ESA indicated the complainants were “employees” of both Beach Place and Black Top. Beach Place and Black Top appealed to the Appeal Tribunal. After argument, but before the matter was decided, the Tax Court allowed the earlier appeal concluding, at the material time, the first spare driver was engaged in his own business venture, not an employee: 2019 TCC 24. A further appeal was abandoned. The Tribunal received the Tax Court’s reasons but did not request further. It affirmed the delegate’s decision as to employment status: 2019 BCEST 23. Beach Place and Black Top then applied for reconsideration. The appeal decision was affirmed: 2019 BCEST 61. In its decision, the reconsideration panel refused to apply res judicata based on the Tax Court decision. Beach Place and Black Top then sought, inter alia, J.R. and an order in the nature of certiorari quashing two of the Tribunal’s decisions. The stay was granted pending the outcome of the J.R. The petition for J.R. was dismissed, as was a subsequent appeal. “The application for leave to appeal…is dismissed.”

Family Law: Separation & Divorce Issues

Deng, et al. v. Zhang, 2022 BCCA 271 (40390)
The Applicant Ms. Deng and the Respondent Mr. Zhang married in 1995. The Applicant Ms. Zhang is their adult daughter. Mr. Zhang and Ms. Deng immigrated to Canada from China in 1996 and formally separated in January 2004. At the time of their separation, the parties signed a simple one-page separation agreement providing their property was divided effective the date of separation and Mr. Zhang would pay $800 per month to Ms. Deng in spousal support. Neither party received legal advice prior to signing the agreement. Mr. Zhang’s initial notice of family claim was filed in July 2018. It sought an order of divorce and division of family property including the sale proceeds he alleged could be traced to joint family property. Ms. Deng counterclaimed for retroactive and prospective spousal and child support together with extraordinary expenses for Ms. Zhang, then 19 years old.  The trial judge concluded a presumptive equal division of family property was appropriate. He analyzed the real estate transactions and concluded Ms. Deng had received approximately $476K from the sale and refinancing of family property, of which Mr. Zhang was entitled to half. With respect to Ms. Deng’s counterclaim, the trial judge awarded Ms. Deng $123,595.08 in retroactive child support and $34,681.50 in retroactive spousal support. These amounts were offset against the amount owing following the division of property and it was therefore concluded Ms. Deng owed Mr. Zhang $79,723. The B.C.C.A. dismissed Ms. Deng’s appeal and allowed Mr. Zhang’s cross-appeal in part. The order for retroactive child support in the amount of $123,595.08 was set aside and the entire issue of retroactive child support was remitted to the trial judge for determination. “The application for leave to appeal…is dismissed with costs.”

Insurance: Property Exclusions

Lin v. Aviva General Insurance Company, et al., 2022 ONCA 367 (40292)
The Applicant, Mr. Lin, owned a property and had a home insurance policy with the Respondent Aviva General Insurance Company, and its predecessor, RBC General Insurance Company (“insurers”). The Applicant’s tenant burned down the house while trying to extract marijuana resin in the basement. The Applicant did not know the tenant was doing this. The insurers denied coverage based on two exclusion clauses in the policy: a marijuana production exclusion clause and an illegal activity exclusion clause. The Applicant commenced an action against the insurers. While the Applicant’s action was outstanding, the legislature amended the Insurance Act by adding s. 129.1, a provision that limits the application of criminal and intentional activity exclusion clauses to the claim of a person who caused the loss or who knew about or consented to the activity that caused the loss. The Applicant amended his statement of claim to plead reliance on the legislative amendment. The motion judge found the legislative amendment did not apply retrospectively to insurance policies entered into before the date of its enactment. He awarded summary judgment to the insurers. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Professions: Discipline

Hanif v. College of Veterinarians of Ontario, 2022 ONCA (40234)
Dr. Hanif was charged with two counts of professional misconduct with respect to his treatment of two household pets. After a hearing, he was found guilty of one count of professional misconduct. The College of Veterinarians of Ontario (“College”) appealed Dr. Hanif’s acquittals to Divisional Court. That court remitted the matter back to the Disciplinary Committee for re-hearing because the original reasons were inadequate. The new hearing took place before a differently constituted Committee. This time Dr. Hanif was found guilty of professional misconduct in both matters. A penalty and costs hearing took place and Dr. Hanif’s licence to practice was suspended for a period of four months and he was ordered to pay the College’s costs. Dr. Hanif appealed this decision to the Divisional Court, which set aside the findings of professional misconduct with respect to one matter and ordered the issues of penalty and costs be reconsidered by the Discipline Committee. Dr. Hanif’s application for leave to appeal the second matter was dismissed, as was his application for leave to appeal to the S.C.C. On the first matter, the Disciplinary Committee dismissed Dr. Hanif’s procedural motions and suspended his licence to practice for a period of one month and he was ordered to pay costs. Dr. Hanif appealed from that decision. Dr. Hanif’s appeal from the penalty and costs award was dismissed by the Divisional Court. Dr. Hanif’s application for leave to appeal to the Ont. C.A. was dismissed. “The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed with costs.”

Real Property: Builders Liens

JVD Installations Inc. v. Skookum Creek Power Partnership, et al., 2022 BCCA 81 (40172)
JVD Installations Inc. subcontracted work on a power plant to IDL Projects Inc. for which it was not paid in full. The power plant was located on land against which no builder’s lien could be filed, so they registered a builders lien against lands over which part of a transmission line associated with the power plant had been constructed and commenced claims. The trial judge upheld the liens and awarded damages. The B.C.C.A. allowed an appeal and dismissed the claims. “The application for leave to appeal…is dismissed with costs to Skookum Creek Power Partnership, Concord SCPP General Partner (I) Inc., Concord SCPP General Partner (III) Inc., SCPP Holdings Inc., Adagio Developments Ltd. and Sea to Sky Power Corporation.”

Torts: MVA’s

Jenkins v. Casey, et al., 2022 BCCA 64 (40203)
Ms. Jenkins was injured in a multi-vehicle accident in 2015. She commenced an action seeking $3M for loss of future earning capacity and $956,103 for other damages. The trial judge awarded $554,716.75, which included $301,590 for loss of future earning capacity. The B.C.C.A. dismissed an appeal. “The motion for 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.”