35998       Léon-Fabrice Aka v. Her Majesty the Queen (Criminal law – Fraud and use of forged document)

The applicant was charged with fraud and with use of a forged document.  These offences arose when the applicant deposited a forged cheque for $105,825.88 in a former spouse’s bank account.  At trial, the Crown adduced in evidence the applicant’s statement to the police, in which he claimed to have received a letter from the United States addressed to his former spouse that contained the cheque, which he had then deposited.  The applicant did not testify at trial, nor did he present any evidence in his defence.  The trial judge found, in light of the whole of the evidence, that the circumstances showed beyond a reasonable doubt that the applicant had known the cheque he deposited to be a forgery.  He found the applicant guilty of fraud and, on the basis of Kienapple v. R., [1975] 1 S.C.R. 729, ordered a stay of proceedings on the count of use of a forged document.  The Court of Appeal dismissed the applicant’s appeal, finding, first, that a series of facts drawn from the evidence as a whole showed beyond a reasonable doubt that the applicant had used a cheque he knew to be a forgery and had participated in acts entailing a risk of economic harm for third parties, and, second, that the circumstantial evidence could only lead to the conclusion that the applicant had intended to commit fraud.

36031      J.L. v. N.G.  (Family law — Divorce — Spousal support — Variation)

The parties separated in 2004 after 23 years of marriage.  At that time, the judgment of separation from bed and board ratified a corollary relief agreement that governed, among other things, the dissolution of the matrimonial regime and the partition of the family patrimony.  When they were granted a divorce in 2009, the applicant and the respondent were aged 58 and 56, respectively.  The divorce judgment also ratified a corollary relief agreement under which, among other things, the applicant was to continue to pay the respondent $944 a month in support.  In 2012, the applicant applied under s. 17 of the Divorce Act for an order that his support payments to the respondent be first reduced, and subsequently rescinded.  In support of his application, he relied on a significant change in his situation, as he was to be taking early retirement in 2013 owing to the abolition of his position, and his resources would be reduced accordingly. The Quebec Superior Court granted his motion in part. The Court of Appeal allowed an appeal.

35996     Jack Klundert v. Her Majesty the Queen (Income tax — Reassessment — Evidence)

35997     Jack Klundert v. Her Majesty the Queen

For the taxation years between 1993 and 1997, the applicant either filed tax returns showing nil income or failed to file tax returns.  He was investigated by the Canada Revenue Agency (“the CRA”) pursuant to its administrative audit powers.  He was also subsequently subject to a criminal investigation and charged with tax evasion.  The applicant had three trials before the Ontario Superior Court of Justice on tax evasion, two appeals before the Ontario Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied. Following the third trial, the applicant was convicted of tax evasion under s. 239 of the Income Tax Act.  He was unsuccessful in challenging that conviction on appeal.  Based on the findings of the third trial, in which the applicant was found to have failed to report respective amounts of $241,625, $270,403, $434,931, $254,520 and $272,910 for the years from 1993 to 1997, the CRA reassessed his income taxes on exactly the same basis. The applicant filed a notice of appeal seeking to quash the reassessments for the 1993 to 1997 taxation years.  The applicant alleged that the information obtained pursuant to the CRA’s audit powers were used in pursuance of its criminal investigation, thus infringing his s. 7 and s. 8 Charterrights.  According to the applicant, any evidence obtained from such improper searches, including any admission made by him in any criminal proceeding, should be excluded as evidence for the purposes of reassessments.  The respondent brought a motion to strike the notice of appeal and dismiss the appeal. The Tax Court of Canada allowed the motion and dismissed the appeals. The Federal Court of Appeal dismissed the applicant’s appeal.

35955     Sean Murphy in his quality of attorney of fact in Canada for the marine and non-marine underwriters, member of Lloyd's London v. Syndicat des copropriétaires Dix sur le Main

             - and -

              123834 Canada Inc., Martin Pressman, Mary Pressman, Leon Pressman

    (Liability insurance – Insurer’s duty to defend)

The respondent, Syndicat des copropriétaires Dix sur le Main, owns and operates a multi-story building adjacent to the multi-story commercial building owned by the mis-en-cause Martin Pressman, Mary Pressman and Leon Pressman. The respondent holds a commercial general liability policy issued by the applicant insurer. The policy defines “property damage” as “physical injury to tangible property, including all resulting loss of use of that property” as well as “loss of use of tangible property that is not physically injured”.  A couple of years ago, the respondent raised its building by approximately 15 feet. The renovation allegedly caused more snow to accumulate on the adjacent building, and as a result, the mis-en-cause were forced to reinforce the roof of their building as a preventative measure.  They filed an action against the respondent seeking reimbursement of the cost of reinforcing their roof.  The respondent turned to its insurer, but the insurer refused the request for coverage on the basis that the damage claimed did not constitute “property damage” within the meaning of the policy. In response, the respondent brought a motion to compel its insurer to defend the action.  The Superior Court granted the motion.  The Court of Appeal denied leave to appeal.

36079     Ryan William Witvoet v. Her Majesty the Queen (Charter– Criminal law – Arbitrary Detention)

The owner of a stolen vehicle followed the tire tracks in the newly fallen snow and located the van. The location was given to the police.  The police and a police dog followed a set of footprints from the van to a house.  Police approached the house and the applicant and a woman were told they were being detained.  The woman went down the stairs of the house and an officer followed her.  At the bottom of the stairs, the officer saw the woman attempt to close a door to a room.  When he entered, the officer saw another man hiding in a closet, two shotguns within easy reach, along with numerous other weapons and ammunition.  The police obtained a search warrant for the house the next day when they seized stolen property and numerous weapons.  The woman and the applicant argued at trial that their section 8 and 9 Charter rights had been violated. The Provincial Court of Alberta dismissed the application for exclusion of evidence and convicted the applicant of unauthorized possession of firearms, careless storage of firearms, possession of stolen weapon, possession of prohibited weapon, and possession of stolen property. The Court of Appeal dismissed the appeal.

35985     Minibus Paquin inc. v. Centre hospitalier universitaire de Québec, Dessercom inc., Transport médical de la capitale-nationale(Contracts – Tendering process)

The respondent Centre hospitalier universitaire de Québec (CHUQ) issued a call for tenders for the purpose of awarding a contract for para-transport services.  The respondents Dessercom inc. and Transport médical de la capitale-nationale (Dessercom/TCMN), two para-transport service providers, submitted the winning tenders.  The applicant, Minibus Paquin inc. (Paquin), was the losing bidder. After the contract was awarded, Paquin asked the Superior Court for an order annulling the contract, for an injunction ordering the CHUQ to let it complete the contract, and for damages.  Paquin submitted that Dessercom/TCMN was using vehicles that did not satisfy the requirements set out in the call for tenders. The Quebec Superior Court dismissed Paquin’s action on the basis of the principles stated by the Supreme Court of Canada in Double N Earthmovers Ltd. v. Edmonton (City), [2007] 1 S.C.R. 116.  The Court of Appeal then dismissed Paquin’s appeal, stating that Paquin had failed to satisfy it that the trial judge had committed a fatal error in assessing the facts or in applying the law.

36009     51 Taylor Avenue, Chatham, Ontario (PIN: 00550-1103(R)) v. Attorney General of Ontario (Crown law – Real property – Forfeiture)

In August, 2007, the Attorney General of Ontario (“AGO”) brought an application under the Civil Remedies Act, seeking preservation and forfeiture of 51 Taylor Ave., a 12-unit residential apartment building located in the city of Chatham.  Mr. Van Dusen had purchased 51 Taylor in 1995 for $308,000 and it is presently valued at about $400,000.  In 2002, he transferred the property to his wife, but Mr. Van Dusen continued to be responsible for managing it and collecting the rents.  Other property owners in the vicinity gave evidence that the property had a negative impact on neighbouring owners and residents.  They reported constant foot and vehicle traffic on the property, the continual presence of people who appeared to be conducting drug transactions, incidents of vandalism, and threats, intimidation and violence.  Between 1989 and 1995, the police attended at 51 Taylor on only two recorded occasions.  Between March, 1995 and August 13, 2007, when the AGO obtained a preservation order, there were 392 documented police occurrences, 21 search warrants executed, 49 arrests, with 119 charges laid. The Ontario Superior Court of Justice granted the forfeiture order. The Court of Appeal dismissed the appeal.

36011     Juergen Hanne also known as Jurgen Hanne v. SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenrezidenz Hoppegarten - Neuenhagen KG, also known as SHN Grundstücksverwaltungsgesellschaft MBH & Co. Seniorenrezidenz Hoppegarten - Neuenhagen KG (Private international law – Foreign judgments – Recognition – Enforcement)

The respondent sued the applicant for breach of trust in the Regional Court of Berlin and seeks an order for recognition and enforcement in Alberta of the judgment.  The applicant, now a Calgary resident, participated in the proceedings in Germany with legal representation.  An appeal of the decision was dismissed, as was leave to appeal the dismissal and no complaint was lodged against the refusal of leave. The applicant opposes enforcement, arguing that the test for recognition and enforcement of foreign judgments in Canada had not been met and that he has valid defences to enforcement.  He also opposes the determination of enforcement by way of summary trial, arguing that viva voceevidence is necessary, the translation of German documents is unreliable; and the expert evidence regarding the German court system is conflicting and requires a trial. The Court of Queen’s Bench of Alberta held that the action was appropriate for summary trial, the test for enforcement of foreign judgments in Alberta was met and the defences raised were without merit.  An Order was issued recognizing and enforcing the German judgment in Alberta.  The Court of Appeal of Alberta dismissed the appeal and allowed a cross-appeal in part on the issue of the period of interest payable.

36037      Raymond Turmel v. Her Majesty the Queen (Criminal law — Motion to quash indictment)

In November 2012, the applicant was charged with producing marijuana contrary to sections 7(1) and 7(2)b) of theControlled Drugs and Substance Act, S.C. 1996, c. 19. Before his preliminary inquiry, the applicant filed three separate motions seeking to quash the indictment brought against him.  All three motions were dismissed.  The applicant appealed all three decisions to the Quebec Court of Appeal.  The Crown filed a motion to have the applicant’s appeal summarily dismissed. The Court of Appeal dismissed the appeals.

36074      Todd Michael Charles v. Her Majesty the Queen (Criminal law – Charge to jury)

Mr. Brown was shot and killed in a rooming house in Toronto.  Four men were present at the time of the shooting: Troy Hines, who lived in the room, the deceased, the applicant, and Cardinal Senior.  Mr. Hines testified that it was the applicant who shot Mr. Brown. After a trial by judge and jury, the applicant was convicted of first degree murder.  The conviction appeal was dismissed.

36043      Antonio Cerqueira, by his Estate Trustee Delfina Cerqueira, et a. v. Her Majesty the Queen in Right of Ontario, et al. (Charter of Rights — Wills and estates — Administration of estates — Limitation of actions)

Antonio Cerqueira was admitted to Toronto Western Hospital (the respondent University Health Network, referred to herein as the “Hospital”) on June 27, 1999, for gallstones and a bowel inflammation. He died in hospital on August 31, 2009.  The applicants issued the negligence action related to his death on September 19, 2011.  Although the Trustee Act, R.S.O. 1990, c. T.23, s. 38(2), provides that all actions by an estate must be brought within two years of the death of the deceased, the applicants argued that the limitation period was tolled to September 17, 2009, alleging that the respondents had fraudulently concealed Mr. Cerqueira’s risk of bleeding by telling the applicants that the cause of his death was unknown when they knew that Mr. Cerqueira’s INR result indicated a significant danger of bleeding.  Mrs. Cerqueira discovered that result on September 17, 2009.  Using that date as the commencement for the limitations period, they argued that the action was filed in time.  The motions judge dismissed the negligence action as statute barred by s. 38(2) of the Trustee Act. The applicants’ appeal to the Divisional Court was dismissed, and their motion for leave to appeal to the Court of Appeal was dismissed.