36910   Sam Yehia, Cambie Malone's Corporation, Cambie Holdings (Vancouver) Corp., 494989 B.C. Ltd., Cambie Holdings (Nanaimo) Corp., 0828508 B.C. Ltd., Esquimalt Holdings Corp. and 0790012 B.C. Ltd. v. Paul Jacobs, 657947 B.C. Ltd. and Columbia Cottage Ltd.

(B.C.)

Contracts – Breach – Interest

Between the years 2002 and 2004, Mr. Jacobs, respondent, loaned, through his company, a total of $967 000 to Mr. Yehia, applicant. The two intended to enter into a partnership but it never came to fruition. The first two loans were secured by a promissory note and bore interest at the rate of 12%, which Mr. Yehia only paid for a short time. The third loan was not secured by a promissory note, there were no express terms as to interest, and no interest was paid. In 2005, Mr. Jacobs and Mr. Yehia signed two agreements, one addressed Mr. Jacobs’ participation in Mr. Yehia’s businesses, and one addressed the loans, setting out in unspecified terms that the loans would be converted to equity. In 2009, Mr. Jacobs and Mr. Yehia entered into another agreement in which the latter recognized his obligation to repay the loan amount of $967 000. In 2010, the loan amount was repaid in full and Mr. Yehia advised Mr. Jacobs that he was being paid out. Mr. Jacobs and his businesses sued. The trial was bifurcated. On the issue of liability, the trial judge found Mr. Yehia in breach of contract, in addition to having been unjustly enriched at Mr. Jacobs’ expense. The Court of Appeal allowed the appeal.

36896   R.A. v. S.T.

(Que.)

Civil procedure – Removal of Counsel – Abuse of process

The applicant filed a motion to disqualify the respondent’s counsel in the main action opposing them. The Superior Court found the motion to be an abuse of procedure, dilatory and an attempt to defeat the ends of justice. The applicant contests this decision. The Superior Court of Quebec granted the motion to dismiss the application to disqualify counsel for S.T.. The Court of Appeal of Quebec dismissed the leave to appeal.

36947 Bryan Ralston Latham v. Attorney General of Canada

(Sask.)

Charter of Rights – Habeas corpus – Criminal law

The applicant was designated a dangerous offender in 1987 and is serving an indeterminate sentence of imprisonment for violent sexual offences. In May 2013, the Parole Board of Canada (the “PBC”) authorized his release on day parole. Approximately two years later, the applicant was advised that a parole supervisor would be supervising his existing Saskatoon parole officer. A few weeks later, the applicant’s parole was suspended by the parole supervisor under s. 135 of the Corrections and Conditional Release Act, R.S.C. 1992, c. C-30 (the “Act”), on the basis that the risk posed by the applicant was no longer manageable in the community. The record showed that the applicant had inappropriately propositioned a female employee at a facility where he resided while on parole. The applicant was arrested and, upon returning to the Saskatchewan penitentiary, had his service classification upgraded from “minimum” to “medium”.

The applicant alleged that the suspension of this parole was an unlawful deprivation of this residual liberty because it was unreasonable; that his parole supervisor was biased; and that his procedural rights were breached due to the delay between the date of his suspension and the date he received an explanation and disclosure. In accordance with the Act and its regulations, the applicant’s case was referred to the PBC for review and decision. The applicant also brought an application before the Court of Queen’s Bench seeking a writ of habeas corpus with certiorari in aid and sought a postponement of the PBC’s review of his parole suspension pending the decision of the Chambers judge. The Court of Queen’s Bench of Saskatchewan declined jurisdiction in the matter and dismissed the application on the basis that the issues had been referred to the Parole Board of Canada. The Court of Appeal for Saskatchewan dismissed the applicant’s appeal.

36988  Rachel Exeter v. Attorney General of Canada (Deputy Head, Statistics Canada)

(FC)

Courts – Procedural law – Reasonable apprehension of bias

The applicant brought an appeal in the Federal Court of Appeal against a decision of St-Louis J. made on December 4, 2014. The appeal was scheduled for hearing on November 4, 2015, and Stratas J.A. was assigned to sit on the panel.

On October 30, 2015, the applicant wrote to the Chief Justice of the Federal Court of Appeal asking for the “reclusion of Justice Stratas” from the appeal hearing and the substitution of another judge. The request was based on the fact that Stratas J.A. had written reasons for judgment in Exeter v. Canada (Attorney General), 2014 FCA 119 which contained this statement: “In submissions before us, the appellant suggested that the Prothonotary used harsh words such as ‘you’re holding me in bondage.’ The audio recording reveals no such thing.” The applicant submitted that this was false, and therefore Stratas J.A. would not be impartial in the hearing of the new appeal.

The matter was referred to Stratas J.A., who treated the letter as an informal motion for recusal. The motion was dismissed.

36975  Her Majesty the Queen v. Darrin Green

(Que.)

Criminal law – Sentencing – Offences

In September 2008, when he was 19 years old, the applicant was arrested near his residence in possession of a loaded prohibited firearm in the back pocket of his pants. He had no criminal record. At the time of sentencing, he had not been charged with any new crimes. The trial judge was of the view that neither of the suggested sentences, that is, 40 months by the prosecution and 12 months by the respondent, was appropriate, and he imposed a 24‑month sentence. The Quebec Court of Appeal dismissed the appeal against the sentence.

36990  Jason Comtois, Robbie Dickson, Dwayne Ouimet v. Her Majesty the Queen

(Ont.)

Canadian Charter of Rights and Freedoms – Criminal law – Prerogative writs

The applicants Dickson and Ouimet are business partners operating a tobacco manufacturing business on a First Nation Reserve. The applicant Comtois was stopped while operating a motor vehicle on a highway and was allegedly transporting cigarettes manufactured by Dickson and Ouimet. The three applicants were charged with offences under the Excise Act, 2001, S.C. 2002, c. 22. The applicants Dickson and Ouimet also face charges under the Tobacco Tax Act, R.S.O. 1990, c. T.10. The three applicants were expected to be tried together for the offences under the Excise Act, 2001. The Crown proceeded by way of summary conviction.

The applicants sought to appear at their trial by counsel, rather than in person, pursuant to s. 800(2) of the Criminal Code. The federal Crown did not consent to the applicants appearing by counsel.

The Ontario Court of Justice ruled requiring applicants to attend personally at trial. The Ontario Superior Court of Justice dismissed the application to quash. The Court of Appeal for Ontario dismissed the appeal.

37028   Kenneth J. Rusnak v. Joseph M. Shafir

(Alta.)

Fiduciary duty

The applicant, a lawyer, was suspended by the Law Society of Alberta and the respondent was appointed custodian of his law practice. In 2015, the applicant commenced a claim alleging that the respondent owed him a fiduciary duty and breached that duty by not protecting his entitlement to certain accounts and by not properly ascertaining the amount of shortages in his trust account. The respondent applied to strike the action or for summary dismissal of the action. The Court of Queen’s Bench of Alberta dismissed the action and the appeal. The Court of Appeal of Alberta dismissed the application for leave to appeal.

36923  Bernard Tremblay v. Ultramar Ltée, Macogep inc.

(Que.)

Employment law – Motion to dismiss appeal

The applicant is an engineer by training. On March 2, 2011, he signed a letter of employment with the respondent Macogep inc. (“Macogep”) for the position of contract administrator for a construction project, Macogep having been retained by the respondent Ultramar Ltée (“Ultramar”) to provide it with staff. The applicant sued Macogep and Ultramar, arguing that Ultramar was his real employer, that the contract of employment he had signed was for an indeterminate term and that it could not be broken by either Ultramar or Macogep before it expired on December 31, 2012. He also argued that either he had been constructively dismissed or his contract of employment had been terminated unlawfully, wrongfully and/or unreasonably. The Quebec Superior Court dismissed the action. The Quebec Court of Appeal allowed the motion to dismissed appeal.

36921  Jean-Yves Archambault v. Agence du revenu du Québec

(Que.)

Canadian Charter of Rights and Freedoms – Taxation – Punitive damages

In 1990, the applicant established the Quebec corporation Groupe Enico inc. (“Enico”) and became its principal shareholder. The company, which provided automation integration and consulting services, was audited by the Agence de revenu du Québec (“ARQ”) for taxes (GST and QST). The audit was triggered by an anonymous tip in 2005 and dragged on for many years. The applicant and Enico subsequently brought an action in damages against the ARQ and the Attorney General of Quebec (“AGQ”) based on allegations concerning (i) the ARQ’s general practices; (ii) auditing and collection; and (iii) the ARQ’s use of its exceptional powers, including measures subsequent to judicial proceedings. The Quebec Superior Court allowed the action. The Quebec Court of Appeal allowed the appeal in part.

36950  Tan Tien Nguyen v. Her Majesty the Queen

(Ont.)

Criminal law – Offenses – Elements of offence

The applicant was the proprietor of a garden supply business, All Seasons Garden Supply (“ASGS”). Beginning in June 2009, police commenced surveillance on the applicant and his business. During surveillance, police followed ASGS customers and deliveries made using the company’s van. The police investigation examined the applicant’s business practices and discovered a number of marijuana grow operations linked to ASGS customers. The applicant was convicted of conspiracy to commit the offences of possession of marijuana for the purpose of trafficking and production of marijuana, and the substantive offences of possession of marijuana for the purpose of trafficking and production of marijuana. The applicant was acquitted of the charge of money laundering. The applicant was sentenced to 20 months’ concurrent incarceration on the conspiracy counts. The convictions on the substantive charges were stayed on the basis of Kienapple v. The Queen, [1975] 1 S.C.R. 729. The applicant was also subjected to a forfeiture inquiry, ordered to pay a fine of $2,809,211.40 in lieu of forfeiture of certain property and ordered to forfeit a number of properties. The Court of Appeal dismissed the Crown’s appeal and allowed the applicant’s appeal. The Court of Appeal held that the convictions on the two conspiracy counts were quashed; the stay was lifted on the two substantive counts, and the sentence and related orders made by the trial judge were affirmed.

37012  Brian Wiliam Karam v. Attorney General of Canada

(FC)

Taxation – Income tax – Assessment

The Canada Revenue Agency (CRA) reassessed the applicant’s tax for the 2007 taxation year on the basis that the applicant’s reported capital gain on the sale of properties by a partnership was business income. The CRA determined the applicant’s share of profit from the sale to be $1,898,828.00 and allowed a reserve. His share of partnership income after taking into account the reserve was $978,850.00.

The applicant filed a notice of objection to the CRA regarding the reassessment on the basis that the gain was on account of capital and not income. The CRA confirmed the reassessment and in the notice confirmation described his income after reserve of $978,850 as a “profit”. The applicant appealed the CRA decision to the Tax Court of Canada. The Tax Court dismissed the appeal and held that the gain from the sale was business income, rather than capital gain.

Shortly after the disposition of the Tax Court appeal, the applicant requested that the CRA use the amount of $978,850.00 as the basis for his tax liability. The CRA took the position that the basis for his tax liability was the profit of $1,898,828.00. The applicant sought judicial review of that decision in the Federal Court. The application and the subsequent appeal were both dismissed.

36973  Canada Chrome Corporation v. 2274659 Ontario Inc.

(Ont.)

Natural resources – Mines and mining – Exploration rights

Canada Chrome staked more than two hundred mining claims along the 340-kilometre corridor of high ground northward from its deposit to Exton, Ontario. Canada Chrome wanted to build a railway along that corridor and drilled boreholes for that purpose. When a partner in that deposit decided to pursue a different deposit, it approached the Ministry of Natural Resources for easements allowing the construction of a road from that deposit to Nakina, Ontario. The requested easements pass directly over the boreholes drilled by Canada Chrome for its rail lines. When Canada Chrome refused to consent to the easements, the Minister referred the application to the Commissioner under s. 51(2) of the Mining Act, R.S.O. 1990, c. M.14.

The Commissioner dismissed the application. The Divisional Court allowed an appeal from that decision, imposing a remedy of its own devising. The Court of Appeal dismissed the appeal.

37024  1455257 Ontario Inc v. Her Majesty the Queen 

(FC)

Civil Procedure – Commencement of Proceedings – Judicial comity

In 2007, 1455257 Ontario Inc., a business incorporated under the Business Corporations Act, R.S.O. 1990, c. B.16, was dissolved. In 2010, the Minister of National Revenue issued a notice of assessment in respect to a related corporation’s taxes. 1455257 Ontario Inc. objected to the assessment. The Minister confirmed the assessment. 1455257 Ontario Inc. filed a Notice of Appeal in the Tax Court. The Crown objected to a dissolved company filing a notice of appeal and brought a motion for an order adjourning the appeal, to allow 1455257 Ontario Inc. time to revive its corporate status. The Tax Court granted the Crown’s motion and adjourned the appeal. The Federal Court of Appeal dismissed an appeal.

36989  G.B. v. Normand Haché, Jean-François Dolbec

(Que.)

Law of professions – Lawyers – Professional liability

The Applicant was unsuccessful in an action he had taken against Concordia University and two of its professors. He subsequently sued the Respondents, his former lawyers, in damages for professional negligence. The Superior Court of Quebec dismissed the action. The Court of Appeal of Quebec granted the motion to dismiss.

36982  Grand Financial Management Inc. v. Solemio Transportation Inc. 

(Ont.)

Torts — Intentional torts — Intentional interference with economic relations

Grand Financial Management Inc. entered into separate factoring agreements with Solemio Transportation Inc. and Wild Lions Inc. Under a factoring agreement, accounts receivable are assigned to a financing party (the “factor”) in return for immediate payment at a discount; the factor then collects from the third party responsible for payment, and takes the risk of delay and potential losses. Solemio held subcontracts for freight delivery with Arnold Bros. Transport Ltd. Solemio, in turn, subcontracted the Arnold Bros. work to Wild Lions. Grand’s agreement with Solemio was terminated shortly after it was entered into. Thereafter, although Solemio was receiving quick payment from Arnold Bros., it took advantage of the 45-90-day payment period in its contract with Wild Lions. Grand felt that it had been left out-of-pocket. It provided RBC and Arnold Bros. with copies of the security documentation related to the factoring agreement with Solemio. RBC turned over $35,000. The principal of Grand also demanded the amounts it thought Solemio owed from Arnold Bros., and threatened to pursue those amounts with Arnold Bros.’s customer. Its actions led Arnold Bros. to stop doing business with Solemio, even interrupting deliveries in process at the time. Grand sued Solemio, Mr. Ullah, and Arnold Bros. for defaults under the agreement with Solemio; no default was alleged under the agreement with Wild Lions. Grand’s action against Arnold Bros. was discontinued. Solemio and Mr. Ullah defended and counterclaimed for damages for the tort of intentional interference with economic relations.

At trial, Grand was awarded $200,000 from Solemio based on amounts it owed to Wild Lions, and Solemio was awarded $175,000 in damages at large for Grand’s intentional interference with its economic relations. At the Court of Appeal, an appeal was allowed in relation to the former award, but a cross-appeal was dismissed in relation to the latter award.