37106 Patricia-Ann Truter, AvantGarde Coatings Inc. v. M.A Concrete Ltd., Steven Schwartz

(B.C.)

Commercial law – Joint ventures – Defamation

The Respondent, M.A. Concrete Ltd. (“MAC”) is a company in the business of installing concrete and gypsum underlayment of floors. Mr. Steven Schwartz purchased MAC in 1989. MAC and the Applicant, Ms. Truter and her company, Avantgarde Coatings Inc. entered into a Joint Venture Agreement (the “JVA”), with option to purchase, the terms of which provided that Ms. Truter and Avantgarde agreed to pay a non-refundable deposit amount of $100,000 for the option to purchase MAC within two years at a price of $1,400,000; Ms. Truter and MAC agreed to collaboratively develop MAC’s business during the JVA period; and MAC agreed to pay Ms. Truter a monthly consultancy fee. Ms. Truter ultimately decided not to proceed with the purchase of MAC and she withdrew all remaining funds from the new operating account without informing Mr. Schwartz. Litigation was commenced between the parties.

The trial judge awarded damages to both sides. After all appropriate credits were accounted for $1,815.93 was owed by the Applicants to the Respondents. On the defamation claim, the trial judge rejected Mr. Schwartz’s defence of justification and ordered damages of $25,000 in favour of Ms. Truter. The Court of Appeal dismissed the appeal on all grounds except to the extent to modify the order to provide that Ms. Truter be awarded 75% of her costs in respect of the counterclaim.

37125  Anica Visic v. Human Rights Tribunal of Ontario, University of Windsor

(Ont.)

Human rights – Discrimination

The Applicant, Ms. Visic entered first year law school at the University of Windsor in September 1999. She did not have a successful year academically. In June 2000, the Associate Dean at the University advised her that she was required to discontinue the study of law at the University because she had failed two courses and had not achieved a passing cumulative average. Ms. Visic successfully appealed this decision to the Academic Status Committee and was re-admitted to year one of Law School, based on medical grounds. Ms. Visic deferred that acceptance, but re-entered first year law school in September 2002. She completed her three years and graduated in 2005 with an LL.B. When Ms. Visic learned that the 1999/2000 year would be included in her official transcript, she made several attempts to persuade the University officials to remove the 1999/2000 year from her official transcript or to have the grades be shown as voluntary withdrawals. The University refused. Ms. Visic believes that the University’s insistence on including her failed year on her official transcript is discriminatory. The University’s position on this issue has led to considerable litigation and numerous human rights proceedings brought by Ms. Visic, including three judicial review applications before the Divisional Court.

In the decision under review in this application, the Adjudicator dismissed Ms. Visic’s complaint of discrimination against the University based on s. 34(11) of the Human Rights Code because she had also commenced a civil action against the University with respect to the same matter and s. 34(1) of the Code based on the fact that her complaint was filed more than one year after the incident to which the complaint relates. Ms. Visic’s application for judicial review and the subsequent motion for leave to appeal were also dismissed.

37126  Anica Visic v. Human Rights Tribunal of Ontario

(Ont.)

Human rights – Discrimination

The Applicant, Ms. Visic entered first year law school at the University of Windsor in September 1999. She did not have a successful year academically. In June 2000, the Associate Dean at the University advised her that she was required to discontinue the study of law at the University because she had failed two courses and had not achieved a passing cumulative average. Ms. Visic successfully appealed this decision to the Academic Status Committee and was re-admitted to year one of Law School, based on medical grounds. Ms. Visic deferred that acceptance, but re-entered first year law school in September 2002. She completed her three years and graduated in 2005 with an LL.B. When Ms. Visic learned that the 1999/2000 year would be included in her official transcript, she made several attempts to persuade the University officials to remove the 1999/2000 year from her official transcript or to have the grades be shown as voluntary withdrawals. The University refused. Ms. Visic believes that the University’s insistence on including her failed year on her official transcript is discriminatory. The University’s position on this issue has led to considerable litigation and numerous human rights proceedings brought by Ms. Visic, including three judicial review applications before the Divisional Court.

In this application, the Applicant, Ms. Visic alleged that the Law Society of Upper Canada discriminated against her on the basis of disability when it required her to complete an additional period of articling when it commenced a “good character” review prior to processing her application for admission to the Ontario Bar. In the context of the complaint against the Law Society, Ms. Visic sought to add the University of Windsor as a party. In the decision under review in this case, the Human Rights Tribunal dismissed her discrimination complaint against the Law Society and declared Ms. Visic to be a vexatious litigant in relation to the University and its agents with respect to the matter of her official transcript. Her judicial review application and subsequent motion for leave to appeal were both dismissed.

37127  Anica Visic v. Ontario Human Rights Tribunal, Elia Associates Professional Corporation, Patricia Elia and Richard Elia

(Ont.)

Human rights – Discrimination

The Applicant, Ms. Visic entered first year law school at the University of Windsor in September 1999. She did not have a successful year academically. In June 2000, the Associate Dean at the University advised her that she was required to discontinue the study of law at the University because she had failed two courses and had not achieved a passing cumulative average. Ms. Visic successfully appealed this decision to the Academic Status Committee and was re-admitted to year one of Law School, based on medical grounds. Ms. Visic deferred that acceptance, but re-entered first year law school in September 2002. She completed her three years and graduated in 2005 with an LL.B. When Ms. Visic learned that the 1999/2000 year would be included in her official transcript, she made several attempts to persuade the University officials to remove the 1999/2000 year from her official transcript or to have the grades be shown as voluntary withdrawals. The University refused. Ms. Visic believes that the University’s insistence on including her failed year on her official transcript is discriminatory. The University’s position on this issue has led to considerable litigation and numerous human rights proceedings brought by Ms. Visic, including three judicial review applications before the Divisional Court.

In this application, Ms. Visic filed an application under the Human Rights Code alleging that the Respondents, Elia Associates Professional Corporation, Patricia Elia and Richard Elia harassed, discriminated and reprised against her with respect to employment and membership in a vocational association on the basis of disability. In the summer of 2007, when applying for a position as an articling student with the Respondent law firm, Ms. Visic submitted unofficial grade reports from 2002-2005 as her law school transcript. About three months after being hired, Ms. Visic was asked to produce a copy of her final school transcript. She complied and in addition provided a letter from the university’s Academic Status Committee which indicated that Ms. Visic was readmitted to first year based on medical grounds. Elia Associates terminated Ms. Visic’s employment approximately seven weeks after she supplied them with the official transcript and Committee letter. Ms. Visic’s discrimination claim was dismissed. Her subsequent application for judicial review was dismissed and her further motion for leave to appeal to the Court of Appeal was also dismissed.

37004  Fang Hu v. Alberta Law Enforcement Review Board, Chief of the Edmonton Police Service, D. White, K. Martin, D. Lakusta and R. Mills

(Alta.)

Police – Complaints of service

Following his arrest in 2013, Mr. Hu, applicant, filed a conduct complaint against several police officers. Mr. Hu made several allegations, including that the police officers involved in his arrest and detention placed him in a cell that was too cold, falsely charged him because of his “minority status”, used excessive force when handcuffing him, and refused to feed him or allow him to use the washroom while he was in the holding cell. The Chief of Police dismissed the complaint on the basis that there was no reasonable prospect of establishing the facts necessary to obtain a conviction at a disciplinary hearing. Mr. Hu’s appeal to the Alberta Law Enforcement Review Board was also dismissed. The Board found that the investigation conducted following the complaint was thorough and that the Chief’s decision was reasonable. The Court of Appeal dismissed Mr. Hu’s application for permission to appeal on the basis that the application disclosed no significant question of law with a reasonable prospect of success. Indeed, the Court found that there was nothing in the Board’s decision that raised an arguable question of fairness, nor anything to suggest that it selected or applied the wrong standard of review.

37048  Jacqueline Sanderson v. May Ostos Mangadlao

(Que.)

Civil procedure – Removal of counsel

Ms. Sanderson sued Ms. Mangadlao, her former live-in nanny, in damages for a total amount of $24,000. She alleged lost business opportunities due to her nanny’s sudden departure without the required notice and stress, pain and suffering for a breach of confidence because of the departure and the circumstances in which the departure occurred. An associate in the law firm Davies Ward Phillips & Vineberg (“Davies”) represented Ms. Mangadlao on a pro bono basis in that action.

Ms. Sanderson brought a motion to remove Davies as counsel in this matter pursuant to articles 2, 20 and 46 of the Code of civil procedure, C.Q.L.R. c. C-25.01. Ms. Sanderson, who had practiced with Davies as a tax lawyer between 1999 and 2005, alleged that her prior association with the law firm and the circumstances of her departure would prevent Davies from having sufficient distance and objectivity in the matter. Ms. Mangadlao, via its counsel Davies, opposed the motion. The Court of Quebec granted the motion to disqualify respondent’s counsel. The Court of Appeal allowed the appeal.

37150  Michael Joseph Jerace v. Her Majesty the Queen

(Alta.)

Criminal law – Evidence – Similar fact evidence

Mr. Jerace was convicted of unlawful confinement and attempted sexual assault of a 15 year old girl. His appeal was dismissed.

37121  Lumumba Olenga v. Her Majesty the Queen

(Que.)

Criminal law – Prerogative writs – Certiorari

Following a preliminary inquiry, a judge of the Court of Québec committed Mr. Olenga for trial on one count of intimidation and one count of uttering threats. He had been accused of intimidating and threatening a representative of the Direction de la protection de la jeunesse during telephone calls. In response, Mr. Olenga filed a motion for certiorari. The Superior Court dismissed the motion. The Court of Appeal dismissed the appeal.

36972  ByTheOwner Inc. v. Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ)

(Que.)

Charter of Rights and Freedoms – Presumption of innocence under s. 11(d)

In 2013, the respondent, the Organisme d’autoréglementation du courtage immobilier du Québec (“the OACIQ”), filed a motion to institute proceedings, asking the court to declare that the Real Estate Brokerage Act, CQLR, c. C-73.2, applied to the activities of the applicant, ByTheOwner Inc.

In 2015, ByTheOwner filed a motion to dismiss the action on the ground that such an action was not the appropriate remedy in this case. ByTheOwner argued that the OACIQ was trying to have its activities declared to be illegal and that the motion for a declaratory judgment would therefore have the effect of circumventing the penal process and jeopardizing its fundamental rights. The Quebec Superior Court dismissed the motion to dismiss action. The Quebec Court of Appeal dismissed the motion for leave to appeal.