Dismissed

Civil Litigation: Time Extensions

Ghareeb Awad, et al. v. Dover Investments Limited, et al., 2023 ONCA 542 (40874)
The parties were involved in joint oil-well ventures in Egypt which resulted in years of ongoing litigation. The Applicants were ordered to pay the Respondents a sum of money. The decision was confirmed by Cavanagh J. of the Ontario Superior Court. The Applicants brought a judicial review application to the Divisional Court to challenge this decision but were directed to file a notice of withdrawal as the matter was not properly brought to that court. The Applicants sought an extension of time from the Ont. C.A. to appeal the decision of Cavanagh J. The motion for an extension of time was dismissed. The Applicants’ motion to set aside the decision was dismissed by a three-member panel of the Ont. C.A. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Want of Prosecution

Shang Chen Shen v. Youti Wan, 2023 BCCA 244 (40844)
Shang Chen Shen commenced an action against Youti Wan for damages alleged to have been caused by the ingress of water into Ms. Shen’s condominium. Ms. Wan passed away in 2014. In 2021, the B.C.S.C. dismissed Ms. Shen’s claim for want of prosecution. The B.C.C.A. held that the lower court did not err as it had inherent jurisdiction to strike a claim for want of prosecution when the delay amounted to an abuse of process. “The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Dangerous Offender Designation

N.T. v. R., 2022 ONCA 866 (40993)
There is a publication ban in this case, certain information not available to the public, in the context of a dangerous offender designation. “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: Presence of Accused 

C.D.S. v. R., 2023 NLCA 12 (40789)
There is a publication ban in this case, certain information not available to the public, in the context of presence of accused in court. “The application for leave to appeal…is dismissed.”
 

Family Law: Support

Matthew Eric Roeske v. Amana Roeske aka Amana Dighe, 2023 BCCA 358 (41014)
The parties were married for approximately four years and have two children. An interim order was made providing for equal parenting on a week-on week-off basis. The order also provided for interim child support and spousal support to be paid by the Applicant. At trial, the Applicant was ordered to pay ongoing and retroactive child and spousal support. The B.C.C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”
 

Government Liability: Professional Recognition

Landry Louis Mballa Eloumou v. Attorney General of Québec, 2022 QCCA 1366 (40516)
Mr. Eloumou brought an action in civil liability against the Attorney General of Québec. He alleged that the representatives of Quebéc’s Ministère de l’Immigration, de la Diversité et de l’Inclusion had misled him by representing to him that his professional training as an engineer would be recognized if he decided to immigrate to Quebéc and by undervaluing his academic degrees. The trial judge dismissed his action claiming damages, moral damages and punitive damages. The Qué. C.A. dismissed the appeal, finding that it had no chance of success. “The motion for an extension of time to serve and file the application for leave to appeal is granted. 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.”
 

Judges: Discipline

L’honorable Gérard Dugré v. Canadian Judicial Council, 2023 QCCA (40827)
There is a publication ban and sealing order in this case, certain information not available to the public, in the context of judicial discipline. “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 from Report of the Canadian Judicial Council to the minister of Justice pursuant to s. 65 of the Judges Act in relation to the inquiry into the conduct of the Honourable Gérard Dugré…is dismissed with costs. Wagner C.J., Côté and Moreau, J.J. took no part in the judgment.”
 

Labour Law: Examination re J.R.

Claudiu Popa v. Université de Sherbrooke, et al., 2023 QCCA (40893)
The Applicant, Mr. Popa, has been a lawyer since 2013, is a lecturer with the university Respondent and is a member of the union Respondent. The dispute arises from an application made by Mr. Popa to the university for acknowledgment that he was qualified to teach a criminal law course, which was denied in arbitration. Mr. Popa applied for judicial review, alleging that the arbitrator had violated the rules of natural justice and procedural fairness. During a written examination relating to his application, Mr. Popa refused to answer questions concerning the agreement entered into with the union regarding the representation mandate. The Qué. Superior Court disallowed the objections raised by Mr. Popa and ordered him to answer all of the questions submitted and transmit the documents requested by the university in his written examination, with the exception of documents exchanged only between him and his lawyer. It found, among other things, that Mr. Popa waived professional secrecy by using elements from the agreement and discussions in his application for judicial review. The Qué. C.A. granted the university’s motion for dismissal of the appeal, finding that Mr. Popa could not, concurrently, raise the existence of an agreement and contest the right to conduct an examination on the circumstances and content of that agreement. “The application for leave to appeal…is dismissed.”
 

Tax: Capital Gains

Michel Foix, et al. v. R., 2023 FCA 38 (40695)
Watch4Net Solutions inc. (W4N) was incorporated by the Applicants Michel Foix and Nicolas Souty in 2000. Unlike her spouse, Mr. Souty, who held his shares of W4N directly, the Applicant Sonia Lebel held her shares of W4N indirectly, as a beneficiary of the family trust, Fiducie Familiale Nicolas Souty 2007. Mr. Foix held his shares of W4N through Virtuose Informatique inc. (Virtuose). In 2006, EMC — a large American public corporation (EMC (US)) and its Canadian subsidiary (EMC Canada) — told the Applicants that it wanted to purchase W4N. Mr. Foix and Mr. Souty rejected the purchase offer because they were of the view that the price was too low. In 2011, EMC (US) made a new offer to purchase W4N. In January 2012, the parties agreed on the sale of all W4N shares for $50,000,000. The sale of the shares took place through a letter of interest dated January 20, 2012, which documented the agreement and was accepted by Mr. Foix, on behalf of W4N, on January 23, 2012. In April 2012, the parties agreed instead to a hybrid sale of W4N’s shares and assets for an amount over $70,000,000. The hybrid sale agreement stipulated that W4N was to sell EMC (US) its significant assets, namely, its intellectual property pertaining to the APG software, its ongoing contracts (unless the customers were located in Canada), the shares of its subsidiaries, and all of the goodwill associated with its business. Because the other assets would remain the property of W4N, EMC Canada would then purchase all of W4N’s capital stock directly from the shareholders. The reorganization of the capital stock of W4N and Virtuose unfolded through transactions that were completed between April 24 and May 30, 2012 in accordance with the sale agreement. The hybrid sale occurred between 11:30 p.m. on May 30 and 12:30 a.m. on May 31, 2012 in four steps, which were set out in the sale agreement. On June 1, 2012, W4N, Virtuose and EMC Canada amalgamated. With the exception of Virtuose, which ceased to act as a holding company, W4N and EMC Canada continued to operate under the name EMC Canada. In their 2012 tax return, the Applicants each declared a capital gain resulting from the sale of their shares and claimed the capital gains deduction provided for in the Income Tax Act. In 2017, the Minister of National Revenue issued reassessments with respect to the three Applicants’ 2012 taxation year, treating the capital gains originally declared as deemed dividends pursuant to s. 84(2) of the Income Tax Act. The Tax Court of Canada dismissed the three appeals from the three reassessments. The Fed. C.A. dismissed the three appeals from the decisions of the Tax Court of Canada. “The application for leave to appeal…is dismissed with costs.”
 

Tax: Partnerships

Michele Santarsieri Inc., et al. v. Deputy Minister of Finance (Manitoba), 2023 MBCA 61 (40886)
The Applicants were in business together operating hair salons in Winnipeg. They formed three separate partnerships to operate three hair salons; each partnership consisted of the four Applicants as equal partners with a 25 per cent ownership interest each. The Applicants were issued tax assessments on the basis that the Respondent deemed them to be a single employer under a provision of The Health and Post Secondary Education Tax Levy Act. The Applicants appealed the assessments to the Tax Appeals Commission. The chief commissioner of the Tax Appeals Commission affirmed the tax assessments. The Court of Queen’s Bench (as it then was) affirmed that decision. The Man. C.A. dismissed the appeal. It saw no reason to interfere with the Court of Queen’s Bench conclusion that a reasonable apprehension of institutional or specific bias was not established in this case. It also agreed with the Court of Queen’s Bench that the Tax Appeal Commission’s decision did not rest on credibility assessments or contested facts and that procedural fairness therefore did not require an oral hearing. “The application for leave to appeal…is dismissed with costs.”
 

Torts: Defamation; Anti-SLAPP

Catalyst Capital Group Inc., et al. v. Dow Jones and Company, et al., 2023 ONCA 533 (40867)
On August 9, 2017, a Wall Street Journal online story by Rob Copeland and Jacquie McNish reported that a series of whistleblower complaints had been filed with the Ontario Securities Commission (“WSJ article”). It said that the complaints accused Catalyst Capital Group Inc. and Callidus Capital Corporation (“the Catalyst parties”) of fraud and of deceiving borrowers. Mr. Copeland and Ms. McNish relied on information from Nathan Anderson, a private corporate fraud investigator and whistleblower, who told him that he, Jeffrey McFarlane and several other Callidus borrowers had filed complaints with securities regulators. The article was published online again later on the 9th and in print on the 10th with little variation. The Catalyst parties brought a defamation action against Dow Jones and Company, Mr. Copeland and Ms. McNish claiming that the WSJ article defamed them to an audience of approximately 2.4 million readers, that it had a devastating effect on their business, and that, as a whole, the article would lead the ordinary person to infer defamatory meaning. In addition, they said that certain statements amounted to innuendo or were simply false. Dow Jones, Mr. Copeland and Ms. McNish brought an anti-SLAPP motion against the Catalyst parties. The motion judge granted the anti-SLAPP motion and dismissed the Catalyst parties’ action. The Ont. C.A. dismissed the Catalyst parties’ 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.”
 

Torts: Defamation; Anti-SLAPP

Catalyst Capital Group Inc., et al. v. West Face Capital Inc., et al., 2023 ONCA 533 (40875)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to West Face Capital Inc., Gregory Boland, ClaritySpring Inc., Nathan Anderson, Rob Copeland, Jeffrey McFarlane and Bruce Livesey in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”
 

Torts: Defamation; Anti-SLAPP

Catalyst Capital Group Inc., et al. v. West Face Capital Inc., et al., 2023 ONCA 533 (40876)
Similar summary to that above. “The application for leave to appeal…is dismissed with costs.”

Oral Hearings Ordered

Criminal Law: Delay

S.F. v. R., 2023 ONCA 449 (41002)
There is a publication ban in this case, certain information not available to the public, in the context of a stay for delay. “The motion to join the application for leave to appeal with file 41003 is granted and the applications shall be joined under file 41002. The motions for an extension of time to serve and file the applications for leave to appeal are granted. An oral hearing of the applications for leave to appeal is ordered in accordance with s. 43(1.2) of the Supreme Court Act, R.S.C., 1985, c. S-26. The hearing date will be fixed by the Registrar.”
 

Criminal Law: Delay

P.A. v. R., 2023 ONCA 449 (41003)
There is a publication ban in this case, certain information not available to the public, in the context of a stay for delay. “The motion to join the application for leave to appeal with file 41002 is granted and the applications shall be joined under file 41002. The motions for an extension of time to serve and file the applications for leave to appeal are granted. An oral hearing of the applications for leave to appeal is ordered in accordance with s. 43(1.2) of the Supreme Court Act, R.S.C., 1985, c. S-26. The hearing date will be fixed by the Registrar.”