36173  Sharon Baron v. the Queen and Attorney General of Canada, Attorney General of Quebec  (Criminal law – Victim Surcharges

On appeal from the judgment of the Quebec Court of Appeal, dated September 17, 2014. The applicant is part of a group of applicants who filed a motion for permission to raise a new constitutional issue before the Court of Appeal. The group wished to be granted permission to debate, on appeal, the constitutionality of the rules applicable to victim surcharges, a question that was not raised at the trial level. The applicants had all pled guilty to various counts that require the mandatory payment of a victim surcharge (s. 737 of theCriminal Code, R.S.C. 1985, c. C-46). This surcharge was payable for each count of which they were convicted. Since October 24, 2013, the victim surcharge represents 30 percent of any fine that is imposed; or if no fine is imposed, $100 for a summary conviction offence or $200 for an indictable offence (Increasing Offenders’ Accountability for Victims Act, S.C. 2013, c. 11). Since then, too, the court sentencing an offender no longer has the discretion to exempt the offender from paying the surcharge. If the offender is unable to pay the surcharge, the offender can perform community service where such a program exists, as it does in Quebec. The prosecution appealed the applicants’ sentences on the basis that the trial judges erred in applying the mandatory surcharge provisions. It argued that, to some extent, the judges had refused to give effect to the Increasing Offenders’ Accountability for Victims Act.

36183 Jesse Sabey v. Warren Scott Beardsley as executor of the will of Kim Louise von Hopffgarten, deceased, Burgi Rommel (Property – Proprietary estoppel – Gifts – Wills and estates – Restitution)

On appeal from the judgment of the Court of Appeal for British Columbia dated September 22, 2014. The case involves a dispute over a horse farm in Langley, B.C. (the “farm”). The owners were dressage trainers who took the applicant under their wing when he was 14 years old. He trained with them in the U.S. and later worked at the farm in exchange for room, some board, dressage lessons and the use of a horse. He studied at college in Bellingham and then worked at an accounting firm in Seattle so that he could continue to work and ride at the farm on weekends and some evenings. He was paid less than other working students, but the husband assured the applicant through various statements over time that the farm would stay in the family and that “some day when you have this farm you’ll appreciate this”. The applicant developed an evolving understanding that he would inherit the farm. The owners prepared handwritten codicils to their wills leaving the farm to the applicant, however they were invalid for non-compliance with the Wills Act, R.S.B.C. 1996, c. 489. The husband died, and when the wife died her will left the farm to the respondent (a neighbour) on the condition that she take care of the animals on the farm for the remainder of their lives. The wife also had an American will which created a trust for the respondent to care for the animals and provided a $100,000 bequest each to the applicant and another student.

The applicant commenced an action against the executor of the estate for an equitable interest in the farm based on proprietary estoppel or, alternatively, unjust enrichment or an express or implied trust. The Supreme Court of British Columbia allowed the action and held the applicant entitled to legal and beneficial title in the farm under the doctrine of proprietary estoppel. The Court of Appeal for British Columbia (MacKenzie, J.A. dissenting) allowed the appeal and set aside the award on the basis that the lower court failed to address the extent of the equity and the requirement to satisfy it in a manner proportionate to the detriment. The case was remitted to the trial judge to assess the issue of proportionality and the outstanding claims.

36192 Shawn Curtis Keepness v. the Queen (Criminal law — Evidence — Sentencing — Considerations )

On Appeal from the judgment of the Court of Appeal for Saskatchewan dated October 29, 2014. The applicant was convicted of one count of manslaughter and two counts of aggravated assault in relation to a violent home invasion in Regina in June 2007. His conviction was largely based on the testimony of accomplices and acquaintances. The applicant did not commit the actual acts, but he was found guilty as a party by virtue of his role in directing the venture that resulted in the acts of violence committed by others.

From the time of his arrest to his sentencing, the applicant spent over 4 years in remand custody. At the time that he was convicted, he was serving sentences totalling 32 months for other offences committed both before and shortly after he was taken into custody for the predicate offences. Those sentences expired after he was convicted for the predicate offences but before he could be sentenced for them. Accordingly, he served his time for the other offences while in remand on the manslaughter and aggravated assault charges.

The applicant was sentenced to a total of 15 years imprisonment, reduced by 4 years and 6 months as a credit for time spent in pre-sentence custody. The applicant appealed his convictions and sentence. The Crown appealed his sentence, more specifically, the credit allowed by the sentencing judge. The Applicant’s appeal from conviction and sentence was dismissed. The Crown’s appeal from sentence was allowed and the Applicant’s sentence of 15 years imprisonment was reduced by 11 months, for a total of 14 years and 1 month imprisonment.

36132 Strand Theatre Ltd. v. City of Prince Albert (Environmental law — Torts — Nuisance )

On Appeal from the judgment of the Court of Appeal for Saskatchewan dated August 19, 2014. The applicant, Strand Theatre, operated a drive-in movie theatre in a Prince Albert industrial park near which the City operated several landfill sites. A sale of the theatre property fell through in 2000 when the buyer pulled out after it was reported that the landfill sites might be contaminating the groundwater, and Strand Theatre commenced an action. Experts and other assessors provided evidence challenging the methodologies used to test the groundwater for contamination, and ultimately the trial judge concluded that contamination did not occur as a result of chemicals released from the City’s landfills. He also found no interference with Strand Theatre’s use or enjoyment of its property and no damages, in the event a nuisance existed. The Court of Appeal dismissed the appeal.

36202 Harold Coombs, Joan Coombs, Percy G. Mossop v. Attorney General of Canada - and between - Harold Coombs, Joan Coombs, John F. Coombs, Oleg Volochkov, Anne Volochkov v. Attorney General of Canada (Charter of rights – Search and seizure – Right to equality – Administrative law – Judicial review – Procedure )

On Appeal from the judgment of the Federal Court of Appeal dated October 7, 2014. The applicants brought various applications challenging a search and seizure of documents at 660 Eglington Avenue East in September 2006, as well as certain tax reassessments by the Canada Revenue Agency (“CRA”). The CRA sent a team to conduct the search pursuant to a search warrant issued by the Ontario Court of Justice under the Criminal Code. One of the members of the team that executed the search warrant was not named on the warrant, and assisted in the search and seizure by physically moving boxes. The applicants allege that he seized documents that have been unaccounted for in the inventory of documents provided by the CRA, thus constituting an illegal seizure. The challenged tax reassessments were for the taxation years between 2001 and 2007 of Select Travel Inc, a company in which Harold and Joan Coombs are majority shareholders. Others were for certain taxation years of the individuals Oleg and Anne Volochkov and John and Harold Coombs, and of Sun Air Travel Inc., a company for which Harold Coombs acted as president, sole director and a shareholder.

The Federal Court dismissed the applicants’ appeal seeking to set aside the Prothonotary’s Order in Docket T-441-13 and to conduct a de novo review (2014 FC 232). In a separate decision, the Federal Court dismissed the application for judicial review in T-1744-13 and granted the respondent’s motion to strike the applications for judicial review in T-1725-13 and T-1834-13 (2014 FC 233). The Federal Court of Appeal dismissed the appeal of 2014 FC 232 without costs and dismissed the appeal of 2014 FC 233 with costs.

36195 Can-Win Leasing (Toronto) Limited v. Rafael Moncayo (Appeals — Indemnification — Guarantee — Surety/Co-surety)

On Appeal from the judgment of the Court of Appeal for Ontario dated October 8, 2014. Can-Win Truck Sales Inc. was owned and operated by Clifford Irwin and the respondent, Rafael Moncayo. Together, Mr. Moncayo, Mr. Irwin and the applicant, Can-Win Leasing (Toronto) Limited (“Can-Win Leasing”), guaranteed the debt of Can-Win Truck to the Royal Bank of Canada (“RBC”). Mr. Irwin, who passed away after the trial, was the sole shareholder of Can-Win Leasing. He caused Can-Win Leasing to pay down Can-Win Truck’s guaranteed debt in 2008 and 2009, without informing Mr. Moncayo and in the absence of any demand by RBC on either Can-Win Truck or any surety.

Can-Win Leasing, as surety, sought indemnification against its co-surety, Mr. Moncayo. The trial judge dismissed Can-Win Leasing’s action for equitable contribution from Mr. Moncayo for the amounts paid to RBC. The majority of the Court of Appeal dismissed the appeal. Justice Lauwers, dissenting, would have allowed the appeal.