Civil Litigation: Dismissal for Delay

Licensing IP International S.À.R.L., et al. v. Sweet Productions Inc., et al., 2022 CAF 111 (40354)
The underlying dispute is a copyright infringement action before the Fed. Court. The Applicants were defendants before the Fed. Court and brought a motion to dismiss the Respondents’ action for undue delay. The motion was denied by a Prothonotary of the Fed. Court, granted by a judge of the Fed. Court on appeal, and denied again upon further appeal to the Fed. C.A. “The application for leave to appeal…is granted. The appellants apply for an order, pursuant to s. 70 of the Supreme Court Act, reversing the judgment of the Federal Court of Appeal and restoring the judgment of the Federal Court. The appellants bring the motion under s. 70 of the Supreme Court Act on the basis that the parties have settled their dispute and have made a reversal on consent order a condition of their settlement. Upon reading the materials filed by the parties, and noting the consent of the respondents to a reversal of the judgment pursuant to s. 70 of the Supreme Court Act

IT IS HEREBY ORDERED THAT: The motion to reverse the judgment of the Federal Court of Appeal is granted. The judgment of the Federal Court of Appeal…is set aside, and the judgment of the Federal Court…is restored.”


Bankruptcy & Insolvency: Provable Claims

Fuoco, et al. v. MacCommeau, et al, 2023 QCCA 448 (40724)
On November 9, 2009, the Respondents, Jacques MacCommeau and Linda Boisclair, purchased a building from the Applicants, Dino Fuoco and Suzanne Charette. The Applicants also provided a legal warranty at the time of the purchase. On March 20, 2013, the Applicants filed a proposal with a trustee, Raymond Chabot inc., under the Bankruptcy and Insolvency Act. The Respondents were not notified of the proposal and did not file any proof of claim. Under the proposal, the trustee distributed a dividend to the creditors in the amount of $51,728.81, which was equivalent to 7.20% of the proved claims. A certificate of full performance was issued by the trustee on June 16, 2014, and an order discharging the trustee made on September 14, 2016. On August 2, 2019, the Respondents filed an action against the Applicants claiming $38,291.71 in damages as compensation for the injury suffered as a result of latent defects affecting the building. In reply to that action, the Applicants filed an application for a declaratory judgment with the Superior Court, seeking recognition the Respondents’ claim was a “provable claim” in their proposal and they had therefore been discharged of that obligation, apart from an amount equal to the 7.20% dividend paid under the proposal. The Superior Court dismissed the motion for a declaratory judgment, and a majority of the Qué. C.A. dismissed the 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.”

Civil Litigation: Dismissal for Delay

Alston, et al., v. District of Foothills No. 31, 2023 ACNL 46 (40686)
The Applicants sued the Respondent municipality for approximately $8M in damages, arising from the alleged contamination of groundwater on their property. The Applicants’ Statement of Claim and the Respondent’s Statement of Defence were both filed by the summer of 2010. In 2017, the municipality applied to have the action dismissed for reasons of delay, under the Alberta Rules of Court. The Applicants opposed the motion. The Court of Queen’s Bench refused to grant the municipality’s application to have the claims against it dismissed for delay. The Alta. C.A. unanimously allowed the municipality’s appeal, and dismissed the Applicants’ claims against it, for reasons of delay. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Summary Judgments

Primeau v. Ricci, et al., 2023 QCCA 112 (40679)
The Applicant, Michel Primeau, commenced an action in the Court of Québec seeking damages against the Respondent bailiffs, Ricci, Teasdale, Huissiers de Justice Inc. The action was brought after a vehicle the Applicant was given use and possession of by the intervener debtor, Mr. Hooper, as collateral for a loan the debtor owed the Applicant, and which was registered by a lien, was seized by the Respondent and returned it to the debtor. The Respondent applied to dismiss the Applicant’s action as abusive in that it was manifestly unfounded pursuant to art. 51 of the Code of Civil Procedure. The Court of Québec granted the Respondent’s application and dismissed the Applicant’s originating application against it. One judge at the Qué. C.A. dismissed the Applicant’s application for leave to appeal that decision. “The application for leave to appeal…is dismissed.”

Civil Litigation: Summary Judgments

Daly v. Landlord and Tenant Board, et al., 2023 ONCA 152 (40729)
The Applicant made a series of applications to Ontario’s Landlord and Tenant Board (the “LTB”) between 2011 and 2017. In 2019, she commenced an action against the LTB, alleging misconduct by the LTB members who handled her applications. She also alleged the Crown was vicariously liable for these acts. The Crown and LTB moved to strike her claim. The motion judge held the action was certain to fail and struck the Applicant’s claim without leave to amend. He held the LTB is not an entity capable of being sued, and that the LTB is sufficiently independent from the Crown as to foreclose vicarious liability. The Ont. C.A. agreed with the motion judge and also noted the Crown is statutorily immune from claims arising from the acts of quasi-judicial tribunals like the LTB. “The application for leave to appeal…is dismissed.”

Corporations: Inter-Corporate Litigation

Groupe I. Quint inc., et al. v. Quintcap inc., et al., 2022 QCCA 1717 (40629)
There is a publication ban in this case, and a sealing order. Certain information not available to the public, in the context of inter-corporate litigation. “The application for leave to appeal…is dismissed with costs to the respondents.”

Criminal Law: Bail

S.T.R. v. R., 2023 ABCA 95 (40735)
There is a publication ban in case in this case, in the context of bail re a first degree murder charge. “The motion by His Majesty the King to adduce new evidence is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Contempt

George v. R., 2023 BCCA 115 (40651)
Mr. George, a member of the Tsleil-Waututh Nation, and other protestors blockaded a facility owned by Trans Mountain Pipeline ULC. Mr. George played a leadership role. He knew the protest contravened a court ordered injunction against obstructing, impeding and interfering with operations at various locations. Mr. George was convicted of contempt of court and was sentenced to 28 days imprisonment. The B.C.C.A. dismissed an appeal from the sentence. “The application for leave to appeal…is dismissed.”

Criminal Law: Experts

Abdulle v. R., 2023 ONCA 23 (40727)
The Applicant and his co-accused both fired shots at Mr. Ahmed and his companions. One of them fired a shot that struck Mr. Ahmed in the neck and he died. The Crown characterized the shooting as a planned and deliberate murder that capped a cycle of escalating violence between the Tandridge Cripz gang and a rival gang. The Applicant submitted it was self-defence. The Crown brought a pre-trial application seeking the admission of evidence of past gang violence and to qualify two police officers to provide expert opinion evidence. The evidence of the prior incidents of violence was a form of prior discreditable conduct and its admission was governed by the test set out in R. v. Handy. The trial judge applied the test set out in Handy and admitted six of the prior incidents of violence. After a trial by judge and jury, the Applicant was convicted of second degree murder. The Ont. C.A. dismissed the conviction 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: Mistrials

Umeadi v. R., 2023 ACNL 7 (40714)
The Canada Border Services Agency intercepted a package from Cameroon containing more than 500g of heroin, which was to be delivered to a post box at a “Pak Mail” location in Barrie, Ontario. Barrie police organized a controlled delivery of the package to investigate and apprehend the parties involved. Applicant Chibuzo Umeadi was arrested after he attended the store and picked up the package. Bad luck: while he was in custody, another package, also containing heroin, arrived at the same Pak Mail box. Police seized this second package as well. Mr. Umeadi was charged with four offences in relation to the packages. At trial, the manager of the Pak Mail store testified she had received phone calls and visits by men looking for the second package. The manager had informed the police about these men. At the end of her examination-in-chief, the parties discovered the police notes concerning the manager’s communication about these men had not been provided to Crown and defence counsel. Mr. Umeadi applied for a mistrial, arguing his right to full answer and defence had been prejudiced. The trial judge dismissed the application but granted other relief, including: an adjournment prior to the defence cross-examination; permitting the Crown to withdraw a charge relating to the second package; permitting the parties to amend an agreed statement of facts; and providing a limiting instruction to the jury. The trial continued, and Mr. Umeadi was ultimately convicted on all three remaining charges. 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: Narcotics

Narinesingh v. R., 2021 QCCA 396 (40721)
Ms. Narinesingh, was arrested at the Dorval Airport on her return from Africa when customs officers found 7.7 kg of heroin concealed in her luggage. The Crown preferred an indictment containing one count of importing and one count of possessing, for the purposes, a drug included in Schedule I of the Controlled Drugs and Substances Act, specifically heroin, as opposed to a “controlled substance”. The trial judge held the Crown had to show beyond a reasonable doubt the Applicant had subjective knowledge of the presence of heroin. He instructed the jury the Applicant’s recklessness and wilful blindness could be relied on as a basis for such knowledge. The jury convicted the Applicant of the charges. The Qué. C.A. unanimously dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”

Criminal Law: NCR

Alexander v. Procureur général de l’Ontario, et al., 2023 ONCA 176 (40723)
The Applicant was charged with arson, and disregard for human life. She was found not criminally responsible. Her treating psychiatrist testified her mental state is very fragile, she is at high risk of decompensation and remains a significant threat to the public. The Applicant appealed the disposition of the Ontario Review Board (the “Board”), ordering she continue to be detained at the Women’s General Forensic Unit of the Centre for Addiction and Mental Health and providing the person in charge may, in his or her discretion, permit the Applicant hospital and grounds privileges, escorted by staff, and to enter the community, escorted by staff. The Ont. C.A. dismissed her appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Pre-Sentence Custody Credit

Diamond Sky Caribou v. R., 2022 MBCA 95 (40618)
After the Applicant was convicted by jury of manslaughter, the trial judge in the Court of Queen’s Bench of Manitoba imposed a sentence of 13 years’ imprisonment, less credit for pre-sentence custody at a rate of 1.5:1. At the sentencing hearing, the Applicant filed a motion asserting the cap on the credit for pre-sentence custody at 1.5:1 set out in s. 719(3) and (3.1) of the Criminal Code should be struck down for violating s. 7 of the Charter, which the trial judge dismissed. He found it unnecessary to resort to a Charter remedy as the issue raised by the Applicant could be addressed as part of the sentencing process. In the alternative, he concluded the limitation in those provisions does not violate s. 7. On appeal, the Applicant argued the trial judge erred in failing to consider the constitutional challenge, in alternatively finding the provisions did not infringe s. 7, and in imposing a sentence that was harsh and excessive. The Man. C.A. unanimously granted the application for leave to appeal the sentence, but dismissed the Applicant’s sentence 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/Securities: Guilty Plea Withdrawal

Charest, et al. v. Autorité des Marchés Financiers, 2022 QCCA (40617)
The Applicants, Mr. Charest and Mr. Desroches, established 2919-8050 Québec inc. in 2010 to solicit investments to take control of Global Immune Technologies (GIMU), a public company at the development stage operating in the United States in the field of home distribution of food products. The Applicants consulted a lawyer to find out their obligations in relation to the Québec Securities Act. The lawyer allegedly told them verbally they could look for investors through a private investment club without completing any other formalities. The Applicants subsequently solicited potential investors. They created a second company, 9279-7445 Québec inc. They solicited new investors along with their lawyer. The purpose was allegedly to create a group of investors, still with a view to taking control of GIMU. 24 investors were recruited through shareholdings in the two companies created by the Applicants. The total investment amount was $431,200. The Applicants informed all the shareholders the project had failed and their shares had no tangible value. The Autorité des marchés financiers began investigating the Applicants’ conduct. It served statements of offence on the Applicants. The Financial Markets Administrative Tribunal ordered the Applicants to cease transactions in securities and to cease acting as advisers. The Applicants admitted their guilt on 171 counts. The Tribunal then required the parties to make submissions on sentencing. Following numerous postponements resulting mainly from the Applicants’ actions. The Applicants were sentenced by the Court of Québec to fines and an 18-month term of imprisonment. The Applicants served and filed an amended notice of appeal, seeking to withdraw their guilty pleas. The Superior Court dismissed the motion for an extension of time to seek the withdrawal of the guilty pleas and dismissed the appeal from the sentence. The Qué. C.A. dismissed the motion for leave to appeal. “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.”

Criminal Law: Sexual Assault

A. v. R., 2023 NWTCA 3 (40761)
There is a publication ban in this case, in the context of a sexual assault conviction. “The application for leave to appeal…is dismissed.”

Extradition: Committal Orders

Jung, et al. v. Attorney General of Canada on behalf of the Republic of Korea, et al., 2023 BCCA 113 (40645)
Mr. Jung, a Korean citizen, entered Canada with visitor status. After Canada Border Services Agency commenced investigating his admissibility, he claimed refugee status. The Republic of Korea applied to extradite Mr. Jung to complete one trial process on a charge of fraud and to commence a second trial on another charge of fraud.  The committal judge dismissed an application by Mr. Jung to stay the extradition proceedings for abuse of process and committed Mr. Jung into custody. The Minister of Justice ordered Mr. Jung to be surrendered for extradition. The B.C.C.A. dismissed an appeal from the committal order and a JR of the surrender decision. “The application for leave to appeal…is dismissed.”

Family Law: Motion Dismissal; Costs

Wang v. Li, 2023 ONCA 119 (40713)
As part of ongoing family law litigation, the Applicant made several allegations against the Respondent and her counsel. The Respondent sought an order dismissing the motion on the grounds the allegations were baseless, vindictive, and vexatious. The motion judge issued an order in favour of the Respondent, dismissing the motion and awarding costs on a full indemnity scale, in the sum of $24,353.24. The motion for leave to appeal to the Divisional Court was dismissed. The Ont. C.A. quashed the appeal. “The motion for an extension of time to serve and file the applicant’s reply is granted. The motion for a stay of costs is dismissed. The motion to set aside costs is dismissed. All other miscellaneous motions are dismissed. The application for leave to appeal…is dismissed with costs.”

Human Rights: Discrimination

JL by his litigation guardian PL v. Empower Simcoe, et al., 2022 ONCA (40664)
The Applicant was a child with a genetic condition that rendered him unable to communicate verbally. He relies on gestures, vocalizations, and touch to communicate with others, including his parents. The Respondent, Empower Simcoe (“Empower”), a not-for-profit funded by the Ontario Ministry of Children, Community, and Social Services (“MCCSS”), operated the group home where the Applicant lives. During the COVID-19 pandemic, against the backdrop of frequently-updated guidelines and recommendations from Ontario’s Ministry of Health and MCCSS, Empower restricted visitation for residents of its group homes in a manner that effectively prohibited physical contact between the Applicant and his family for approximately six months despite persistent advocacy and requests from the Applicant’s parents during this time. The Applicant’s parents declined visitation options that did not include physical contact. The Applicant, by his litigation guardian, complained to the Human Rights Tribunal of Ontario (“HRTO”) the policy prohibiting physical contact with his family during this period amounted to adverse impact discrimination against him on the basis of a disability. The HRTO upheld the Applicant’s complaint: Applicant’s disability is a protected characteristic; experienced an adverse effect from Empower’s policy because he could not have physical contact with his parents, and, because the policy in question applied exclusively to residents of group homes, all of whom are disabled, the Applicant’s disability was a factor in the adverse treatment; while the policy in question was rationally connected to a public health purpose and adopted in good faith for that purpose, Empower applied non-binding guidelines from MCCSS rather than investigating the real risk posed by the Applicant’s requested accommodation; it therefore failed to accommodate the Applicant to the point of undue hardship. The Divisional Court found multiple key conclusions of the HRTO to be unreasonable. The impugned policy was not the reason the Applicant did not see his family; his family declined alternatives. There was no link between the Applicant’s disability and the impact he experienced; the impugned policy was adopted in the unfortunate circumstances of a general medical catastrophe. The HRTO was bound by the Divisional Court’s decision in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335, on this point. It was also unreasonable to conclude Empower failed in its duty to accommodate when it made reasonable efforts to do so in the circumstances. The HRTO’s decision was set aside. The Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondent, Empower Simcoe.”

Insurance: Jurisdiction

North River Insurance Company v. Vale Canada Limited, et al., 2022 ONCA 862 (40605)
This leave arises from a jurisdiction dispute in the context of insurance coverage actions commenced in Ontario regarding indemnity for expenses incurred by a mining company — the Vale Respondents — to defend six Ontario legal proceedings and remediate sites located in Ontario and elsewhere around the globe on environmental grounds. The Applicant, North River Insurance Company (“North River”), is an American insurance company who issued excess insurance policies to Vale’s predecessor. North River moved to dismiss the Ontario actions for lack of jurisdiction. The motion judge found the North River policies were issued, delivered, and received in New York, and accordingly not made in Ontario. He found North River had no connections with Ontario at the time the policies were sold, and therefore was not carrying on business in Ontario. The Ont. C.A. reversed the motion as regards North River. It concluded North River was carrying on business in Ontario for the purpose of the jurisdiction analysis, noting that the lack of licencing, registration, any physical presence in Ontario, or lack of the policies being made in Ontario, was not determinative of the carrying on business test. “The application for leave to appeal…is dismissed with costs. Jamal J. took no part in the judgment.”

Professions: Fees

Cao v. Monkhouse Law Professional Corporate, 2022 ONCA (40687)
Applicant Suyi Cao retained Respondent law firm to represent her in a wrongful dismissal and human rights claim against her former employer. Following a breakdown of the solicitor-client relationship, the firm rendered an account of approximately $93K, pursuant to the retainer agreement Ms. Cao had signed. An assessment officer would have reduced the account to approximately $60K. However, a motion judge, finding the assessment officer did not have jurisdiction, fixed the account at $45K inclusive of disbursements and HST. The Divisional Court dismissed Ms. Cao’s appeal. The Ont. C.A. dismissed Ms. Cao’s application for leave to appeal from the Divisional 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 to appeal…is dismissed with costs.”

Professions: Real Estate

Wong v. Li, et al., 2023 ONCA 42 (40657)
The Applicant was a lawyer. The Respondent, Jennifer Li, worked at his law firm as a real estate clerk. The Respondent, Raymond Ho, was her husband. The Law Society of Upper Canada started investigating the Applicant’s practice based on failure to supervise real estate transactions. The Applicant was suspended for four months, and ordered to pay $10K in costs.  The Law Society appealed, which resulted in an increased award of $50K in costs. The Applicant commenced an action against the Respondents and others. He alleged fraud and deceit/fraudulent misrepresentation, conspiracy, and breach of fiduciary duty in relation to real estate transactions addressed in the Law Society proceedings. The Applicant alleged his office was used as a platform to promote and facilitate fraudulent schemes and conspiracies. The trial judge dismissed all claims against Ms. Li and Mr. Ho. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs in the amount as agreed upon by the parties, failing which costs are granted in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Tax: Rectification

Agence du revenu du Québec v. Guy, 2023 QCCA 332 (40697)
The Respondent, Guy Samson, and La Bourgade St-Jean inc. (Bourgade) were shareholders in Résidence du Collège inc. (CRP). Because CRP incurred significant losses, Bourgade decided to sell 13 buildings to make up CRP’s cash shortfall. The sales generated a taxable capital gain for Bourgade. Mr. Samson, who was also a shareholder in Bourgade, used a tax specialist’s services to devise tax planning that would allow him and his companies to use CRP’s losses to reduce their tax liability. The tax planning, set out in a tax memo, involved a series of transactions falling into two categories: (1) the transfer by CRP of its CRP building and (2) the merger and liquidation of CRP. The tax planning was aimed in part at making a business investment loss (BIL) on CRP’s shares available to Mr. Samson and Bourgade and at making CRP’s non‑capital losses available to a new company, Résidences du Collège CRP (2014) inc. However, it appeared the tax memo concerning the tax planning contained an error that prevented Mr. Samson from claiming a BIL on CRP’s shares. Mr. Samson applied to the Superior Court for a declaratory judgment, seeking to amend or rectify the agreement for the sale of CRP’s shares and a related resolution in order to replace the date originally set in the alleged flawed tax planning with the date on which the documents were actually signed. The Applicant, the Agence du revenu du Québec, opposed the application. The Superior Court allowed the application in part, and the Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Torts: Assault; Negligent Misrepresentation; Emotional Distress

Zazula v. Nichol, 2023 SKCA (40691)
The Applicant agreed to rent an adjoining property to the Respondent’s daughter, on the Respondent’s recommendation. After the tenancy ended badly, the Respondent attended the property to retrieve his daughter’s belongings, and a confrontation with the Applicant ensued. Nearly two years after the confrontation, the Applicant filed a statement of claim against the Respondent, seeking damages for assault, negligent misrepresentation, and infliction of emotional distress. The Small Claims Court dismissed the Applicant’s claims. The Applicant appealed. A chambers judge at the Court of King’s Bench dismissed the Applicant’s appeal from the Small Claims Court decision. The Applicant then brought three applications before a single judge of the Sask. C.A.: an application for an extension of time in which to apply for leave to appeal, an application for leave to appeal, and an application for a stay of the Court of King’s Bench decision, pending appeal. All three applications were dismissed by the Sask. C.A. “The application for leave to appeal…is dismissed.”