Bankruptcy and Insolvency: CCAA

Agence du revenu du Québec v. FTI Consulting Canada Inc., et al., 2022 QCCA 1740 (40625)
The Respondent FTI Consulting Canada Inc., a monitor within the meaning of the Companies’ Creditors Arrangement Act filed a motion for directions with the Superior Court in which it sought, among other things, a declaration the Applicant, the Agence du revenu du Québec (“ARQ”), could not have compensation effected between a pre-filing debt and a post-filing claim in the context of the arrangement regarding Bloom Lake. The judge supervising the arrangement accepted the monitor’s arguments and did not authorize compensation in the circumstances. He found it is well established no compensation can be effected between a pre-filing debt and a post-filing claim under the applicable tax legislation, which, moreover, is clear and unambiguous. The Qué. C.A. found no error in the supervising judge’s conclusions and dismissed the ARQ’s appeal. “The application for leave to appeal…is dismissed with costs to the respondents, FTI Consulting Canada Inc., Quebec North Shore and Labrador Railway Company Inc. and Iron Ore Company of Canada.”

Civil Litigation: Court Fees Waivers

Hobbs v. Privacy Commissioner of Canada, 2023 NLCA 5 (40717)
Applicant Mr. Hobbs sought to bring an application for an extension of time to appeal a decision of the Respondent Privacy Commissioner of Canada. Before doing so he applied for a waiver of court fees in the Supreme Court of Newfoundland and Labrador, pursuant to Rule 7.19 of the Rules of the Supreme Court. A judge dismissed the fee waiver application. The N.L. C.A. allowed Mr. Hobbs’ appeal, granted the fee waiver, and ordered the Registrar of the Supreme Court of Newfoundland and Labrador to return any court fees Mr. Hobbs had paid in respect of the matter. “The application for leave to appeal…is dismissed.”

Civil Litigation: Security for Costs

Rebello v. Del Property Management, et al., 2022 ONCA 720 (40644)
The Applicant commenced a claim against the Respondents, arising from events that took place during her tenancy in a rental condominium unit in Toronto. A judge of the Superior Court declined to dismiss the claim as frivolous on its face, pursuant to r. 2.1.01 of the Rules of Civil Procedure. The Respondents then brought a motion seeking security for costs, pursuant to r. 56.01(e), on the grounds there was good reason to believe the action was frivolous and vexatious, and the Applicant lacked sufficient resources to pay any eventual costs order. A Master of the Superior Court ordered the Applicant to pay an amount as security for the Respondents’ costs, and barred her from taking further steps in the action until the security amount was posted; in a second decision, the Applicant was also ordered to pay the Respondents’ costs of their security for costs motion itself. A judge of the Superior Court dismissed the Applicant’s appeals from both decisions, and awarded costs to the Respondents on a substantial indemnity basis. A unanimous panel of the Ont. C.A. granted the Respondents’ motion to quash the Applicant’s Notice of Appeal from the single judge’s decision, quashed her appeal, and dismissed her cross-motion (seeking leave to appeal two other costs orders), with partial indemnity 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 with costs.”

Condos: Registered Covenants

The Owners, Strata Plan NW 2364 v. The Owners, Strata Plan NW 2301, 2023 BCCA 55 (40669)
The Applicant strata corporation sought to unilaterally terminate its responsibilities under a registered covenant to share the use and costs of amenities located on an adjacent strata property. The Respondent strata corporation brought a petition seeking to enforce the covenant. Although not included in its prayer for relief, it argued the terms of the covenant were duplicated in a post-incorporation contract between the two strata corporations. The Applicant countered this argument was precluded because it had not been asserted in the Respondent’s pleadings and could not be dealt with through a petition. It argued if such a contract exists it can be terminated upon reasonable notice. The B.C.S.C. rejected the Applicant’s objections to the pleadings, finding they sufficiently identified the matters in dispute. The court held the Respondent could not enforce a s. 219 covenant, but found the parties had entered into a post-incorporation contract on the same terms as the covenant, which could not be terminated unilaterally by the Applicant. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Corporations/Debtor-Creditor: Oppression Remedy; Paulian Action

O’Connor v. Giancristofaro, et al., 2022 QCCA 1544 (40553)
After a 12 year legal battle, the Applicant, Mr. O’Connor, was partly successful at trial in an oppression application awarding him damages in the amount of $350K against the Respondent Ms. Malobabic. Unable to execute the oppression judgment, he instituted a Paulian Action against Ms. Malobabic and her spouse, the Respondent Ezio Giancristofaro. Since 2010, Mr. Giancristofaro is the full owner of a building; though initially a part owner, Ms. Malobabic transferred her 50% share of the building to him. A successful Paulian Action required the showing of injury sustained by a creditor through the juridical act of a debtor in fraud of the creditor’s rights. Mr. O’Connor alleged Ms. Malobabic’s transfer in 2010 was effected with an intent to defraud him — that is, to render herself insolvent and to isolate her sole asset from her creditors. The courts below disagreed, and dismissed Mr. O’Connor’s claim. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Delay

Shaheen v. R., 2022 ONCA 734 (40416)
Mr. Shaheen was charged with trafficking fentanyl, fraud and mischief. The trial judge dismissed a pre-trial motion to stay charges for breach of the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter. Mr. Shaheen was convicted for trafficking in fentanyl, fraud and public mischief. The Ont. C.A. dismissed an appeal from the convictions. “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: Driving Offences

Tweedie v. R., 2023 NSCA 11 (40690)
Mr. Tweedie was driving a vehicle that struck and killed a young girl on a bicycle at dusk. He did not stop and later told police he thought he had hit a deer. After Mr. Tweedie’s arrest, breath samples were taken and analyzed for blood alcohol concentration (BAC). Mr. Tweedie was taken into custody and ultimately charged with four offences: dangerous driving causing death; having a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a vehicle and thereby causing death; failure to stop, without reasonable excuse, after knowing or being reckless as to whether his vehicle had been involved in an accident resulting in death of a person; and obstruction of justice. On the second day of trial, Mr. Tweedie changed his plea to guilty for the obstruction of justice charge. He admitted to lying to the police about who was driving. The N.S. S.C. acquitted Mr. Tweedie of the remaining charges. The N.S. C.A. allowed the appeal, set aside the acquittals, and ordered a new trial. “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: Jury Instructions

R. v. Merritt, 2023 ONCA 3 (40634)
Respondent Melissa Merritt’s former spouse was fatally attacked in Ontario on August 23, 2013. Ms. Merritt was interviewed by police that day. During the interview she recounted her movements from the evening before, including a visit to a shopping mall. However, Ms. Merritt did not tell police that while at the mall, her common law spouse had purchased shoes. Those shoes were later forensically linked to the killing of Ms. Merritt’s former spouse. Shortly after the killing, Ms. Merritt moved to Nova Scotia. Several months later, Ms. Merritt and her common law spouse were arrested, charged with murder, and transported back to Ontario. While at the airport awaiting transport, police intercepted and recorded a conversation between them. Following a trial before a jury, Ms. Merritt was convicted of first degree murder. Ms. Merritt appealed from her conviction, arguing the trial judge committed significant errors in his jury instruction concerning: (1) her failure to mention the shoe purchase to police; and (2) the intelligibility of a statement she made in the recorded conversation from the airport. The Ont. C.A. allowed Ms. Merritt’s appeal, set aside her conviction, and ordered a new trial. “The application for leave to appeal…is dismissed.”

Criminal Law: Post-Offence Conduct

McCullough v. R., 2021 ONCA 71 (40730)
The Applicant admitted to stabbing the victim and dismembering the victim’s body. The Applicant testified the stabbing was a reaction to an unexpected sexual advance and it was not planned or deliberate. The trial judge admitted evidence of rap lyrics by the Applicant and statements to a psychiatric nurse suggesting a desire to commit cannibalism. The Crown referred to the Applicant’s post-offence conduct of dismembering the victim, cleaning the hotel room, attempting to dispose of the body, lying to the police and remaining calm the day after. After a trial by judge and jury, the Applicant was convicted of first-degree murder and committing an indignity to a human body. The conviction appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Offences

R.G.S. v. R., 2023 BCCA 52 (40607)
There is a publication ban in this case, in the context of sexual assault and interference of a child under 16. “The application for leave to appeal…is dismissed.”

Family Law: Disclosure; Contempt

Mais v. Shoman, 2023 SKCA (40737)
The parties were married and have two children. They separated in 2019. The Respondent commenced proceedings seeking a divorce, custody, child support, spousal support and an unequal division of family property. In April 2020, the Applicant was served with a notice to disclose and notice to file income information. In July 2020, the Applicant was ordered to provide disclosure and income information by August 31, 2020. He made partial disclosure on September 1, 2020. At a hearing the following day, the Applicant was given one month to provide the additional disclosure. In November 2020, the Respondent served a notice asking the Applicant be held in contempt for failure to disclose the materials as ordered. Counsel for the parties appeared in chambers and the Applicant was found guilty of civil contempt but Applicant could purge his contempt by providing full and proper disclosure by January 30, 2021. The appeal with respect to the contempt finding was dismissed. “The application for leave to appeal…is dismissed with costs.”

Municipal Law: By-Laws

Fang v. City of Repentigny, 2022 QCCA (40639)
Mr. Fang sought leave to appeal his convictions under the municipal by-laws of the City of Repentigny for leaving his land, buildings, yard and appurtenances in a state of uncleanliness or dilapidation. The Superior Court dismissed Mr. Fang’s appeal, and the Qué. C.A. refused leave to appeal, noting leave is only granted on a “question of law alone”, which was not established in this application. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. 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.”