Hello Everyone,

There was only one substantive civil decision of the Court of Appeal this week. It involved an appeal of a motion judge’s order that a garnished bank account of the State of Libya enjoyed diplomatic immunity and was therefore not subject to garnishment. However, the court only dealt with the preliminary question of whether hearing the appeal was premature, having regard to Libya’s pending rule 38.11 motion in Superior Court to set the underlying order aside. The appeal was adjourned sine die and the stay of enforcement was continued pending the outcome of the motion.

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John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

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Table of Contents

Civil Cases

Canadian Planning and Design Consultants Inc. v. Libya, 2015 ONCA 661 (click on the case name to read the summary)

Keywords: International Law, Commercial Law, International Arbitration, Waiver of Diplomatic Immunity, Registration and Enforcement of Arbitral Award, Notices of Garnishment, Rules of Civil Procedure, Rule 38.11, Motion to Set Aside Order Made Without Notice, , Stay Order, Adjournment of Appeal, Premature Appeal, Mootness, Multiplicity of Proceedings, Inconsistent Findings, Irreparable Harm, RJR-MacDonald Inc. v. Canada, State Immunity Act, s. 11, Vienna Convention, Article 25

For a list of Criminal Law decisions, click here

For a list of Ontario Review Board Decision  decisions, click here

Civil Cases

Canadian Planning and Design Consultants Inc. v. Libya, 2015 ONCA 661

[Cronk, Hourigan and Benotto JJ.A.]

Counsel:

J. Adair and D. Quayat, for the appellant

J. Melia, J. Radford and K. Humphries, for the respondent, the State of Libya

C. Francis, for the respondent, Royal Bank of Canada

J. Dais-Visca and J. Winbaum, for the intervener, the Attorney General of Canada

Keywords: International Law, Commercial Law, International Arbitration, Waiver of Diplomatic Immunity, Registration and Enforcement of Arbitral Award, Notices of Garnishment, Rules of Civil Procedure, Rule 38.11, Motion to Set Aside Order Made Without Notice, , Stay Order, Adjournment of Appeal, Premature Appeal, Mootness, Multiplicity of Proceedings, Inconsistent Findings, Irreparable Harm, RJR-MacDonald Inc. v. Canada, State Immunity Act, s. 11, Vienna Convention, Article 25

Facts:

Litigation began as a claim by Canadian Planning and Design Consultants Inc. (“Canadian Planning”) against the respondent sovereign state, Libya, arising out of a hospital management agreement made in Libya in 2007. The dispute was heard before the International Chamber of Commerce International Court of Arbitration (“ICC”), which ordered Libya to pay an award of approximately $11 million dollars.

Canadian Planning brought an application for registration and enforcement of the ICC award in Ontario. The court issued the requested order (“REO”), which included language stating that Libya had waived its immunity from the attachment.  In December 2014, the Superior Court issued notices of garnishment naming Libya as the debtor. Canadian Planning served the notices of garnishment on the respondent, RBC. Shortly after, Libya moved to set aside the REO pursuant to rule 38.11. This motion is yet to be heard.

This appeal arises out of a motion judge’s order to quash the notices of garnishment, order that no new notices be issued and restraining the appellant, Canadian Planning, from any further enforcement against the bank accounts listed in the notices of garnishment. This order was made on the basis that the bank accounts enjoy diplomatic immunity. A stay of this order (“Stay Order”) was granted by MacFarland J.A. pending determination of this appeal.

At the outset of the hearing, the court requested that the parties address whether the hearing of the appeal on the merits was premature due to Libya’s pending rule 38.11 motion in Superior Court.

Issues:

  1. Whether the hearing of the appeal on the merits is premature having regard to Libya’s rule 38.11 motion in the Superior Court?
  2. Should the Stay Order continue as a term of the adjournment of this appeal?

Holding:

The appeal is adjourned sine die and the Stay Order is continued.

Reasoning:

(1)Yes. The court was concerned that the issues for adjudication in the Superior Court could be relevant to those raised on this appeal or render this appeal moot depending on the outcome of the rule 38.11 motion.

RBC’s position was that if Libya succeeds on its rule 38.11 motion, an application would be required to address whether state immunity applies and only after this was decided, would the question of diplomatic immunity arise. The court disagreed with RBC’s argument that these are stand-alone issues and that the appeal should proceed.

The court concluded that it was not an efficient or appropriate use of judicial resources to have two courts determining the same issues in what is essentially the same litigation. This risks inconsistent rulings being made. There is also the possibility that additional evidence may be introduced on the rule 38.11 motion that may have bearing on this appeal.

Relying on British case law with similar facts, Libya also argued that the appeal should proceed regardless of prematurity or potential mootness concerns. The court disagreed for two reasons. First, the decision to adjourn proceedings on the grounds of prematurity is highly discretionary. Second, they distinguished the British case on the basis that at the time of that hearing, the issues on appeal had been rendered moot and the House of Lords chose to address the appeal on its merits because the issues raised were of “outstanding international importance”.

(2) Yes. The court found that the Stay Order should be continued. Libya, RBC and the Attorney General of Canada all opposed the Stay Order for the following reasons which the court rejected.

Libya argued that the effect of the Stay Order was that it essentially froze Libya’s use of its RBC bank accounts, impairing its ability to operate its embassy in Canada. The court found there was no evidence before it that showed Libya’s ability to operate its embassy had been adversely affected by the Stay Order.  Libya also argued that the Stay Order violates s. 11 of the State Immunity Act. The court held that until the waiver of immunity issues had been determined, the prohibition under s.11 could not operate.

The Attorney General, in its role as intervener, also opposed the Stay Order. The government argued it breached Canada’s obligation under Article 25 of the Vienna Convention. The court found there was no evidence that proved that the continuance of the Stay Order would violate Canada’s obligation under that Article.

The court concluded that if the Stay Order was lifted, there was a strong possibility that Canadian Planning would suffer irreparable harm because of the risk that funds could be removed from the accounts. Adopting the reasons of MacFarland J.A. in the stay motion and citing the factors enumerated in RJR-MacDonald Inc. v. Canada, the court ordered the continuation of the Stay Order.

Criminal Decisions

Haghparast-Rad v. Canada (Attorney General), 2015 ONCA 653

[Feldman, Rouleau and Watt JJ.A.]

Counsel:

Sam Haghparast-Rad, acting in person

David Aaron, for the Attorney General of Canada

Keywords:  Criminal Law, Drug Smuggling, Credit for Time Served, Custodial Sentence, Habeas Corpus, Days Served in Lieu of Payment, International Transfer of Offenders Act, Khadr v. Edmonton Institution, Appeal Dismissed

R. v. Owens, 2015 ONCA 652

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Mabel Lai, for the appellant

James Zegers, for the respondent

Keywords: Criminal Law, Impaired Driving, Breath Sample Evidence, Admissibility, Right to Counsel, Waiver, Canadian Charter of Rights and Freedoms, s.10(b),  s.24(2), R. v. Grant, R. v. R. (R.), R. v. Sinclair, Appeal Dismissed

R. v. Smethurst (Appeal Book Endorsement), 2015 ONCA 649 

[Doherty, Tulloch and Huscroft JJ.A.]

Counsel:

Ken J. Berger, for the appellant

Matthew Asma, for the respondent

Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Keywords: Criminal Law, Jurisdiction, Disease of the Mind, Public Safety, Canadian Charter of Rights and Freedoms, Criminal Code, s.672.54, s.672.45(1.1), s.672.46, R. v. Winko

R. v. Jones-Solomon, 2015 ONCA 654

[Watt, Brown and Roberts JJ.A.]

Counsel:

Kristin Bailey, for the appellant

Greg Skerkowski, for the respondent

Keywords: Criminal Law, First-Degree Murder, Manslaughter, Credit for Time Served, Preliminary Inquiry, Demonstrably Unfit Sentence, Misapprehension of Evidence, Vetrovec Warning, Criminal Code, s.715(1), R. v. Saleh, R. v. Potvin, R. v. H. (W.), Leave to Appeal Sentence Granted, Appeal from Conviction Dismissed

R. v. Arnaout, 2015 ONCA 655

[LaForme, Watt and Epstein JJ.A.]

Counsel:

David E. Harris, for the appellant

John Neander, for the respondent

Keywords: Criminal Law, Attempted Murder, Criminal Intent, Presumption of Integrity, Dangerous Offender, R. v. Teskey, R. v. Thompson, Appeal Allowed in Part

R. v. Gandhi, 2015 ONCA 660

[Doherty, Benotto, Miller JJ.A]

Counsel:

Paul Bursteuin, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Forcible Confinement, Credibility Analysis, Leave to Appeal Sentence Granted, Sentence Appeal Dismissed, Appeal from Conviction Dismissed

R. v. Wolynec, 2015 ONCA 656

[Gillese, Watt and Brown JJ.A.]

Counsel:

Erika Chozik, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Robbery, Evidence, Reasonableness, Criminal Code, s.686(1)(a)(i), R. v. R.E.M, R. v. Sinclair, Leave to Appeal Granted, Appeal from Conviction Dismissed, Appeal against Sentence Dismissed

R. v. Wong, 2015 ONCA 657

[Strathy C.J.O., Doherty and Gillese JJ.A.]

Counsel:

Mark C. Halfyard and Breana Vandebeek, for the appellant

Jason Wakely, for the respondent

Keywords: Criminal Law, Constitutional Law, Search and Seizure, Exclusion of Evidence, Detainment Prior to Arrest, Right to Counsel, Charter Breach, Canadian Charter of Rights and Freedoms, s.24(2), s.8, s.9, s.10(b), R. v. Grant, R. v. Oickle, Appeal Allowed

United States v. Angelov, 2015 ONCA 659

[Laskin, Feldman and Simmons JJ.A.]

Counsel:

Heather Graham, for the appellant

E. Chozik, for the respondent

Keywords: Criminal Law, Extradition, Fraud, Test for Committal, Criminal Code, s.342, Extradition Act, s.29(1)(a), United States of America v. Ferras, Danielson v. United States of America, Appeal Allowed

Must v. Shkuryna, 2015 ONCA 665

[Feldman, Juriansz and Brown JJ.A.]

Counsel:

Robert Must, acting in person

Emily Griffith, for the respondent the Public Guardian and Trustee

Annie Kenet, for the respondent Yana Shkuryna

Keywords: Interlocutory Order, Public Guardian and Trustee, Special Party, Appeal Dismissed

Sistem Mühendislik Insaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 666

[Hoy A.C.J.O., Feldman and Lauwers JJ.A.]

Counsel:

Brian Casey and Matt Saunders, for the appellant

George J. Pollack and Steven G. Frankel, for the respondent

Keywords: Disposition of Costs, Bad Faith

R. v. Rotman, 2015 ONCA 663

[Cronk, Epstein and Brown JJ.A.]

Counsel:

Catriona Verner, for the appellant

Allison Dellandrea, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Failure To Comply With A Prohibition Order, Failure To Comply With A Probation Order, Credit for Pre-Sentence Custody, Sentence Demonstrably Unfit, Long-Term Offender Supervision Order, Criminal Code, s.163.1(4)(a), s. 719(3.2), s. 753.1(3)(b), R. v. M.(C.A.), R. v. Summers, Leave To File Fresh Evidence Granted, Appeal From Sentence Granted, Appeal From Custodial Sentence Granted, Appeal Dismissed

R. v. Wu, 2015 ONCA 667

[LaForme, Watt and Epstein JJ.A.]

Counsel:

Howard Piafsky, for the appellant

Jill R. Presser and Leora R. Shemesh, for the respondent

Keywords:  Criminal Law, Constitutional Law, Possession of Controlled Substances, Surveillance, Search Warrant, Search Incident to Arrest, Exclusion of Evidence, Standard of Review, Constitutional Breach, Garofoli Review, Canadian Charter of Rights and Freedoms, s.24(2), s.8, s.9, R. v. Shepherd, R. v. MacKenzie, Appeal Allowed

United States v. Cavan, 2015 ONCA 664

[Watt, Pepall and Huscroft JJ.A.]

Counsel:

John Norris and Meara Conway, for the applicant

Nancy Dennison, for the respondents

Keywords: Criminal Law, Extradition, Conspiracy to Traffic, Parole, Committal Hearing, Standard of Review, Assessment of Prejudice,  International Transfer of Offenders Act, Extradition Act, Canadian Charter of Rights and Freedoms, s.7, s.11(b), Fischbacher v. Canada (Minister of Justice), United States of America v. Johnson, Hanson v. Canada (Minister of Justice), Appeal Dismissed

Ontario Review Board

Marzec (Re), 2015 ONCA 658

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

Janice Blackburn, for the respondent, the Person in Charge of Thunder Bay Regional Health Sciences Centre

Kevin Rawluk, for the respondent, the Attorney General of Ontario

Keywords: Criminal Law, Assault with a Weapon, Conditional Discharge, NCRMD, Criminal Code, s.267, s.672.78(1), Winko v. British Columbia (Forensic Psychiatric Institute), Appeal Allowed

Gonzalez (Re), 2015 ONCA 650

[Doherty, Tulloch and Huscroft JJ.A.]

Counsel:

Andrew Menchynski and Cate Martell, for the appellant

Kimberley Crosbie, for the Crown respondent

Keywords: Mental Health Law, Public Safety, Treatment Impasse, Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), Appeal Dismissed