Granted
Criminal Law: Second Degree Murder; Self-Defence
Hodgson v. R., 2022 NUCA 9 (40498)
Mr. Hodgson was charged with second degree murder following a death at a house party. The victim, a large man, had become aggressive towards the house owner and refused to leave. Mr. Hodgson, who had been sleeping in a nearby bedroom, was asked by a guest to help remove the victim from the house. The victim died after Mr. Hodgson applied a one-arm choke hold on him. Mr. Hodgson raised self-defence and was acquitted at trial. The Nunavut C.A. set aside the acquittal and ordered a new trial. “The application for leave to appeal…is granted”.
Dismissed
Bankruptcy & Insolvency: CCAA
Winner World Holdings Limited, et al. v. Blackrock Metals Inc., et al., 2022 QCCA 1073 (40401)
A Company began the development of a mining project. It signed a loan agreement with two secured creditors who held a minority of shares in the Company. Another group of shareholders collectively held 54% of the shares in the Company. Following the secured creditors’ refusal to renew the loan, the Company initiated proceedings under the CCAA. The supervising court approved a two-phase process of call for submissions concerning the assets and companies, and it approved a Stalking Horse bid by the secured creditors. One potentially viable bid was identified during Phase 1, but found not viable at Phase 2. The Stalking Horse Bid was the only remaining bid. The Company and secured creditors submitted a proposal for a reverse vesting order that included third-party releases from claims relating to the Company and its restructuring. The majority shareholders opposed the transaction. The Superior Court approved the transaction and issued the reverse vesting order and third-party releases. A judge of the Qué. C.A. dismissed the majority shareholders’ application for leave to appeal. “The application for leave to appeal…is dismissed with costs.”
Civil Litigation: Amendments; Motions to Strike
McDonald v. Alberta Health Services, et al., 2023 ABCA 49 (40624)
The Applicant amended his claim against the Respondents to remove the corporation he controls as a plaintiff and substitute himself in his personal capacity. The order that permitted this amendment provided a deadline for the Respondents to file amended statements of defence. They did not, and instead applied to strike the Applicant’s amended claim. The Applicant applied to note the Respondents in default. The application judge dismissed the Applicant’s application. The Respondents were permitted, but not required, to file amended defences, and in any event entitled to rely upon their original statements of defence. A single judge of the Alta. C.A. dismissed an application for an extension of time to appeal the application judge’s ruling on the basis the appeal had no reasonable prospect of success, substantially for the reasons of the application judge and for the additional reason the pending applications to strike the amended claim are an absolute bar to default judgment. The same judge of the Alta. C.A. refused permission to appeal her earlier ruling to a panel of the Alta. C.A. for substantially the same reasons. “The motion for a stay of execution of the lower court award of costs and the motion to expedite the application for leave to appeal are dismissed without costs. The application for leave to appeal…is dismissed with costs.”
Civil Litigation: Motions to Strike
Godoy v. Godoy, et al., 2022 ONCA 828 (40518)
The Applicant filed a statement of claim against the Respondents. The claim was dismissed pursuant to rule 2.1.01 of the Rules of Civil Procedure. The Applicant’s appeal of that decision was dismissed. “The application for leave to appeal…is dismissed.”
Civil Litigation: Vexatious Litigation
Christofi v. Jeffrey V. Kahane Professional Corporation, et al., 2022 ABCA 284 (40507)
Mr. Christofi’s action against a client for unpaid painting services was dismissed and the client’s counterclaim for damages was granted. Mr. Christofi’s subsequent action against the client’s lawyers was dismissed. Mr. Christofi filed a Statement of Claim in the Court of Queen’s Bench of Alberta against the lawyers. It was struck out. Mr. Christofi was declared a vexatious litigant and court access restrictions imposed. The Alta. C.A. denied leave to appeal from the order striking the claim and from the vexatious litigant order. “The motions for damages awards, restraining orders, and orders setting aside judgments of the Court of Queen’s Bench of Alberta and the Court of Appeal of Alberta are dismissed. The application for leave to appeal…is dismissed.”
Class Actions: Motor Vehicles
Nissan Canada Inc., et al. v. Mueller, 2022 BCCA 338 (40479)
Mr. Mueller commenced an action against Nissan Canada Inc. and Nissan North America, Inc. alleging timing chain mechanisms in engines on certain vehicles were prone to premature failure which could lead to personal injury. The B.C.S.C. certified the action as a class proceeding and defined common issues. The B.C.C.A. set aside two common issues but otherwise upheld the certification order. “The application for leave to appeal…is dismissed with costs.”
Class Actions: Wind Farms
Rivard, et al. v. Éoliennes de l’Érable S.E.C., 2022 QCCA 982 (40421)
There is a sealing order in this case, in the context of wind farm neighbourhood disturbances. “The application for leave to appeal…is dismissed with costs. Côté J. took no part in the judgment.”
Criminal Law: Browne v. Dunn
Soroush v. R., 2022 MBCA 84 (40488)
Mustafa Peyawary was beaten to death in an apartment. Aram Soroush (the Applicant), Ahamed Ismail, Damir Kulic, and Matthew Marjanovic were charged with Mr. Peyawary’s death. None of the accused other than Mr. Ismail testified at trial. The trial judge found the rule in Browne v. Dunn (1893), 6 R. 67 (HL (Eng)) was not breached. After a trial by a judge and jury, the Applicant, Mr. Ismail and Mr. Kulic were convicted of first degree murder and Mr. Marjanovic of second degree murder. The conviction appeals were dismissed. The Man. C.A. upheld the trial judge’s conclusion the rule in Browne v. Dunn was not breached and the jury instruction was appropriate. “The application for leave to appeal…is dismissed.”
Criminal Law: Damages For Non-Disclosure
Plamondon v. Attorney General of Québec, 2022 QCCA 882 (40359)
The Applicant, Mr. Plamondon, was convicted of the first degree murder of three individuals in the 1980s. After serving nearly 28 years in prison, he was discharged on the charges laid against him. It was in this context he brought proceedings against the Crown, arguing he had been the victim of a miscarriage of justice arising from the prosecution’s deliberate failure to disclose essential evidence to him. According to Mr. Plamondon, that failure had impaired his right to make full answer and defence, thereby infringing s. 7 of the Charter and giving rise to a claim for compensatory and punitive damages under s. 24(1). At the end of the trial, the trial judge dismissed Mr. Plamondon’s action, finding the undisclosed information had not been intentionally omitted by the prosecution and, in any event, would not have affected the guilty verdict. The Qué. C.A. found there was no error of fact or law in the trial judgment, dismissing the appeal. “The application for leave to appeal…is dismissed.”
Criminal Law: DNA Samples
Wilson v. Canada (Attorney General), 2022 NBCA 58 (40525)
An order was issued for the post-conviction collection of Mr. Wilson’s DNA following a primary designated offence of manslaughter. Under s. 487.056(1) of the Criminal Code, the sample should have been obtained that day or as soon as feasible afterwards. The RCMP discovered the DNA sample had not been collected and attempted to obtain a sample from Mr. Wilson. Mr. Wilson was charged with violating s. 127(1)(b) for refusing to comply with the 2007 DNA order. Following his arrest, he provided the DNA sample to the RCMP, was released from custody, and the charge was withdrawn. The chambers judge dismissed the application for J.R. and the N.B. C.A. dismissed the appeal, holding since the DNA sample had been provided and Mr. Wilson conceded it had to be given, there would be no purpose to pronounce on the process used to obtain the sample as the matter was moot. “The application for leave to appeal…is dismissed.”
Criminal Law: Guilty Plea Withdrawal
Rai v. R., 2022 ONCA 703 (40530)
Mr. Rai plead guilty to multiple offences including five counts of driving while disqualified, after having been correctly advised those offences would invoke a lifetime suspension of his driver’s licence under the Highway Traffic Act, but incorrectly advised he could apply for reinstatement after 10 years. The sentencing judge ordered a 10-year driving prohibition pursuant to the Criminal Code. Mr. Rai had not been advised the Highway Traffic Act mandated five additional consecutive two-year suspensions. Mr. Rai appealed, seeking to have his guilty pleas withdrawn. The Ont. C.A. dismissed the appeal. “The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”
Debtor-Creditor: Loan Repayment
Lapierre v. Pareclemco inc., 2022 QCCA 1077 (40437)
The Respondent, Pareclemco inc., a real estate developer, sued the Applicant, Serge Lapierre, and his company, Maisons Lapierre inc., for non‑repayment of a $650K loan. Maisons Lapierre sold two buildings (for $215K and $171,923.75), but the proceeds of sale were handed over to a Desjardins credit union for loans secured by Mr. Lapierre personally for more than $325K. Pareclemco alleged the two sales had been made for the purpose of [translation] “dissipating the patrimony” of Maisons Lapierre and avoiding repayment of the amounts Pareclemco was owed. Pareclemco also sought a declaration the act of sale for the first building sold could not be set up against it as well as an award against Mr. Lapierre personally. The Québec Superior Court ordered Maisons Lapierre to pay Pareclemco $650K with interest. It also ordered Mr. Lapierre personally to pay $160,500 in connection with the two buildings sold — the difference between their fair market value and their sale price — but it stated any amount paid by Mr. Lapierre personally had to be subtracted from the award against Maisons Lapierre. A panel of the Qué. C.A. upheld the damages award against Mr. Lapierre personally based on the sale of the two buildings, but it reduced the amount to be paid to Pareclemco from $160,500 to $89,576.25. A C.A. judge subsequently dismissed Mr. Lapierre’s motions to correct the Qué. C.A.’s first judgment and to stay its execution. “The application for leave to appeal…is dismissed.”
Family Law: Children’s Aid; Adoption
Angelis v. Children’s Aid Society of Ottawa, 2022 ONCA 696 (40475)
Mr. Angelis was charged with the murder of his spouse in their home. His two children were apprehended by the Children’s Aid Society Ottawa and made Society wards. Mr. Angelis was convicted of second degree murder. The children were made Crown wards. Mr. Angelis’s convictions were overturned on appeal and he was acquitted in a subsequent trial. Children’s Aid Society Ottawa obtained an adoption order in an ex parte hearing. Mr. Angelis filed a Statement of Claim seeking damages. The Ont. Superior Court of Justice granted a motion for summary judgment and struck the claim. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”
Leases: Termination; Witnesses On Zoom
Princes Gates Hotel Limited Partnership v. 2505243 Ontario Limited (Bypeterandpaul.com), 2022 ONCA 859 (40506)
The Applicant, Princes Gates GP Inc. (“PG”), was the commercial landlord of the Respondent tenant, 2505243 Ontario Limited (“250”). PG owned and operated Hotel X in Toronto. 250 offered food services and operated two restaurants in the hotel pursuant to a services agreement and two leases between the parties (“agreements”). Hotel X opened in March 2018. The relations between the parties became difficult. In February 2020, 250 sent a letter to PG indicating it would like to begin a negotiation to dissolve the agreements. In March, the pandemic arrived. PG shut down Hotel X and insisted the lease required 250 to continue to pay rent, even though its restaurants were closed. In June, PG signed a letter of intent with a new provider. On July 2, 2020, PG terminated its agreements with 250, based on various breaches including 250’s failure to pay rent. 250 brought an action against PG grounded in breach of contract. The trial judge found in favour of 250, concluding PG’s termination of the agreements was unlawful and done in bad faith. On the issue of whether it had been unreasonable for PG to refuse to assist 250 with a potential application for relief under the Canada Emergency Commercial Rent Assistance Program (the “CECRA”), the trial judge concluded PG took an unreasonable position on the issue of 250’s revenue. The trial judge also dismissed a motion for mistrial brought by PG when it became known three of 250’s proposed witnesses had been watching the trial unfold for six days by Zoom, in one of its law firm’s boardrooms. The trial judge found the situation concerning, but not so egregious as to require either a mistrial or the striking of evidence. The Ont. C.A. dismissed PG’s appeal. “The application for leave to appeal…is dismissed with costs.”
Mortgages: Foreclosure
Hayden v. Canadian Imperial Bank of Commerce, 2022 ABQB 97 (40284)
The underlying proceeding to this Leave was a debt collection action brought by the Respondent against the Applicant. The Respondent sought repayment of an outstanding mortgage debt or foreclosure of the mortgaged property. The Applicant alleged fraud, misrepresentations and bad faith when the bank would not give her a consolidation loan. Master Mason rejected the Applicant’s loan consolidation defence and found the bank had adequately proven the existence of the mortgage and debt. She granted an Order for summary judgment setting the redemption period for the payment of the outstanding mortgage amount, failing which the lands would be listed for judicial sale. The Applicant sought leave to appeal two decisions of the Alberta Court of Queen’s Bench. In the first, dated Dec. 10, 2021, the court denied leave to file notice for leave to appeal the Master’s decision. Following that decision, the Applicant submitted documents to court in response to deficiencies noted in her previous proceeding, and sought to file a second Notice of Appeal of the Master’s decision. In the second decision, dated February 2, 2022, the court again denied the Applicant leave to file. “The motion to join two Court of Queen’s Bench of Alberta files in a single application for leave to appeal is granted. 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.”
Professions: Complaints
Lengyel v. Tucker, M.D., 2022 ONCA (40539)
The Applicant made a complaint to the College of Physicians and Surgeons of Ontario regarding the conduct and actions of the Respondent. The Inquiries Complaints and Reports Committee of the College decided not to take action with respect to the complaint. The Health Professions Appeal and Review Board confirmed the decision of the Committee. The Applicant’s application for J.R. of the Board’s decision was dismissed and the Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”
Tax: Rental Revenue/Losses
Peach v. R., 2022 FCA 163 (40527)
The Minister of National Revenue reassessed Applicant Harold Peach’s 2011 income beyond the normal three-year reassessment period. The Minister removed all rental property revenue and associated losses from his income, reduced the amount of business expenses claimed, and added a capital gain on the transfer of a rental property to Mr. Peach’s son. Mr. Peach appealed to the Tax Court of Canada. The Tax Court allowed Mr. Peach’s appeal in part — reducing his capital gain to reflect a capital expense the Minister had not accounted for — but dismissed all of Mr. Peach’s other arguments. The Fed. C.A. dismissed Mr. Peach’s appeal from the Tax Court’s judgment. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave…is dismissed with costs.”
Torts: Negligence; Trespass; Conversion
R. v. Aylmer Meat Packers Inc., 2022 ONCA 579 (40415)
Meat Packers Inc. operated an abattoir in Ontario. It was subject to the provincial licensing and operation scheme set out in the Meat Inspection Act (Ontario) (“the Act”). The Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAF”) was tasked with the oversight of abattoirs to ensure their compliance with the Act. In early 2003, a confidential informant advised OMAF that Aylmer was illegally processing animals, contrary to both the Act and the Dead Animal Disposal Act. This prompted a covert surveillance operation of the Aylmer abattoir by the Ministry of Natural Resources (“MNR”) between May and August 2003. During this time, suspicious activities were observed by the MNR which led to the execution of a search warrant on August 21, 2003. Through this search, evidence suggesting breaches of the Act and other provincial legislation was gathered. It was further found Aylmer possessed unauthorized federal meat packaging material. From there, the Canadian Food Inspection Agency issued a meat recall and began its investigation into Aylmer’s breaches of federal laws. August 21, 2003 marked the end of Aylmer’s operation. OMAF took control of the plant, placing all of the meat on the grounds under lock and seal. The plant was occupied by OMAF for the next 19 months. The average cost of this occupation amounted to approximately $40K per month. In light of this occupation, Aylmer was forced to euthanize or sell its remaining cattle. Following the takeover of the plant by OMAF, the freezer in which the meat was stored began malfunctioning. Despite some repairs in 2004, the freezer never maintained optimal temperatures causing the meat to spoil. The keys to the plant were returned to the principals in March 2005 following the destruction of the spoiled meat. During this time, the Ontario Provincial Police conducted a criminal investigation into Aylmer’s activities. The investigation culminated with charges against Aylmer, and principals Mr. “Butch” Clare, Mr. Jeff Clare, and Mr. Jay Clare. In 2007, Mr. Butch Clare and Aylmer pleaded guilty to selling meat that had not been inspected and to selling meat wrapped in bags bearing an unauthorized federal meat inspection legend; all other charges, including those against Mr. Jeff Clare, and Mr. Jay Clare, were dropped. Aylmer took an action against the province of Ontario and the federal government for tort damages in negligence and, trespass and conversion. Aylmer alleged its meat processing company was ruined by the negligent or wrongful conduct of the provincial’s regulator in the exercise of its statutory powers. The Ontario Superior Court of Justice dismissed Aylmer’ action but the Ont. C.A. allowed the appeal in part. “The application for leave to appeal…is dismissed with costs.”
Wills & Estates: Undue Influence
Vincent v. Vincent, et al., 2022 QCCA 1010 (40373)
In the Québec Superior Court, the Applicant, Mr. Vincent, argued two of his sisters, the Respondents Johanne and Hélène Vincent, had used fraudulent tactics to induce their mother, now deceased, to change her will twice in order to disinherit him. The trial judge dismissed the Applicant’s application. In the Qué. C.A., the Applicant criticized the trial judge for refusing to apply s. 48 of the Québec Charter of human rights and freedoms on the ground his mother’s capacity to make a will had not been challenged. He argued because of his mother’s vulnerability due to her age, the judge should have held the Respondents to a higher standard of conduct. He also submitted the judge had erred by refusing to recognize there had been undue influence. The Qué. C.A. unanimously dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Johanne Vincent, in her capacity as liquidator and Hélène Vincent, in her capacity as liquidator.”