37075  Jason Cain, Mark Cain v. Her Majesty the Queen


Criminal law – Defences – Alibi

Colves Meggoe was fatally shot by two assailants in a home invasion while a third assailant stood watch at the door. Jason Cain was charged with first degree murder. Mark Cain was charged with second degree murder. Several men were inside the home at the time of the shooting. Some of these witnesses claimed to have recognized Mark Cain and Jason Cain by their voices. At trial, Mark Cain and Jason Cain testified to alibis and called witnesses in support of their alibis. Mark Cain’s principal alibi witness was killed before trial began. Mark Cain entered into evidence a video-recording of an interview of that witness that had been conducted by his defence counsel before the witness was killed. The Superior Court of Justice convicted Jason Cain of first degree murder and Mark Cain of second degree murder. The Court of Appeal for Ontario dismissed the appeal from convictions.

37033  Christopher Alexander Falconer v. Her Majesty the Queen


Criminal law – Evidence – Admissions

The Crown and defence entered into a 32 paragraph agreed statement of facts pursuant to s. 655 of the Criminal Code. Many of the paragraphs documented agreements that statements of the applicant and expert reports were admissible without the necessity of a voir dire; further, that affidavits prepared pursuant to s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. were admissible for the truth of their contents. The applicant was convicted of first degree murder after a trial by judge and jury. The appeal was dismissed.

36948  Daniel Laforest v. Her Majesty the Queen


Taxation – Income tax – Assessments

The applicant Mr. Laforest objected unsuccessfully to the assessments made for the 2008, 2009 and 2010 taxation years. The Tax Court of Canada dismissed Mr. Laforest’s appeals from the assessments for the 2009 and 2010 taxation years. The Court explained that, since April 30, 1997, child support amounts paid were no longer deductible in computing a taxpayer’s income. The Court also explained that Mr. Laforest was not entitled to a tax credit for dependent children because his two children and his spouse’s five children had all been 18 years of age or older at all times during the taxation years in question. The Court allowed the respondent’s motion to dismiss the appeal from the assessment for 2008 on the ground that the notice of objection filed by Mr. Laforest was not valid. The Court also struck out the notice of constitutional questions filed by Mr. Laforest on the ground that it had not been served on the Attorneys General other than the Attorney General of Quebec, that it did not set out the provisions alleged to be inapplicable or of no effect in sufficient detail and that the grounds of constitutional invalidity were, on their face, without merit. The Federal Court of Appeal dismissed Mr. Laforest’s motion for an extension of time and the appeal.

36957  Ali Seyedi v. Nexen Energy ULC, formerly known as Nexen Inc.


Employment law – Intellectual property

The applicant is a foreign-trained engineer who participated in a three-month unpaid practicum with the respondent as part of a program to provide immigrants with local professional experience. At the conclusion of his practicum, the applicant was not offered employment. He sued the respondent for $50,175,000 in damages claiming misappropriation of intellectual property he had shared in the course of his practicum. He further claimed that the respondent’s refusal to hire him was discriminatory and that it had defamed him to other prospective employers. The respondent counterclaimed, asserting that the applicant had misappropriated confidential information. The Court of Queen’s Bench of Alberta dismissed the Applicant’s claim and awarded the Respondent’s counterclaim. The Court of Appeal of Alberta dismissed the Appeal.

37044  Samir Ibrahim v. Toronto Transit Commission


Appeals – Leave to appeal

The applicant, Samir Ibrahim, was denied Wheel-Transit service in December 2010. He commenced an action against the respondent, Toronto Transit Commission, by issuing a statement of claim consisting of 11 paragraphs setting out his complaints about the poor and unsatisfactory service provided to him, and the difficulties he suffered as a result of being denied service. The respondent brought a motion to strike. The motion judge dismissed the action. The Court of Appeal dismissed the applicant’s appeal.

36993  Roger Callow v. Board of School Trustees (S.D. #45 West Vancouver, B.C.)


Appeals – Leave to appeal

The applicant, Roger Callow, is a former employee of the respondent school board who was laid off in 1985. Since 1985, he has instituted multiple proceedings in multiple jurisdictions, including British Columbia, Ontario, Quebec, Saskatchewan and the Federal Court regarding his layoff. The Court of Queen’s Bench of Saskatchewan dismissed the application. The Court of Appeal for Saskatchewan dismissed the appeal.

37086  Revital Druckmann v. Pollard & Associates Inc., DUCA Financial Services Credit Union Ltd.


Bankruptcy and insolvency — Receivership

In the course of receivership proceedings, a debtor company received an HST refund. Although the debtor companies had been ordered to advise the monitor immediately upon receipt of any such refund, the monitor was not informed. The refund was eventually discovered and traced to a bank account over which Ms. Druckmann had power of attorney. A bank draft had been issued, cashed, and deposited into an unknown account. An ex parte motion for an interim “freeze and disclose” order (a “Mareva order”) was granted, allowing the receiver to trace the funds into various assets in Ms. Druckmann’s name. The Mareva order was later extended on consent. Ms. Druckmann applied for a review of the decision granting the ex parte Mareva order.

Hainey J. held that the HST refund was subject to the receivership order and that the receiver was entitled to the refund. He ordered it repatriated and continued the Mareva order until further order of the court. Ms. Druckmann’s motion for leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act was dismissed by van Rensburg J.A. Ms. Druckmann applied for leave to appeal van Rensburg J.A.’s denial of leave to a three-member panel of the Court of Appeal. That motion was dismissed for want of jurisdiction.

36893  1250264 Ontario Inc. v. Pet Valu Canada Inc.


Commercial law – Franchises – Good faith and fair dealing

The applicant franchisee commenced a class action against Pet Valu alleging that it had not shared with its franchisees volume rebates it received from suppliers. In the course of Pet Valu’s motion for summary judgment on the certified common issues, the applicant focussed on part of an affidavit which disclosed for the very first time that Pet Valu had little to no purchasing power. The applicant argued that the fact that Pet Valu did not possess substantial purchasing power and did not receive significant volume discounts had not been disclosed to the franchisees. This prompted the motion judge to invite the applicant to move to amend the certified common issues to add one addressing that non-disclosure. The motion judge ultimately dismissed the motion to amend. However, on his own volition, he read additional language into one of the remaining common issues to be decided. Ultimately, the motion judge found that Pet Valu breached s. 3 of the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c 3 (“AWA”). The Court of Appeal reversed that decision.

37082  BDO Dunwoody LLP v. Miller, Canfield, Paddock and Stone LLP


Contracts – Breach – Interpretation

The applicant BDO Dunwoody LLP (“BDO”) retained the respondent law firm to pursue certain civil claims on behalf of BDO and its two senior members, on a contingency fee basis. The retainer agreement contained a termination clause which gave BDO the right to cancel, with or without cause, the law firm’s services. In that event, BDO and its two members would be jointly and severally responsible to pay the value of all services to date.

The law firm prepared and issued a statement of claim. Subsequently, a judge of the Superior Court dismissed the action against several defendants and struck many of the causes of action. The law firm recommended that BDO appeal, but not having appeal counsel at that time, recommended retaining separate counsel for that purpose. An argument arose as to who would pay for the services of appeal counsel. BDO took the position that it was the law firm’s responsibility and treated the law firm’s refusal to pay as repudiation of the agreement. BDO advised the law firm that it accepted repudiation and directed the law firm not to take any further steps in the matter. The law firm took the position that BDO’s direction amounted to a cancelation of services.

The appeal was substantially successful. The law firm subsequently delivered an account to BDO in the amount of $427,891.57. BDO did not pay. The law firm commenced an action seeking a judgment in that amount. BDO brought a summary judgment motion to dismiss the action. The law firm also brought a motion seeking judgment in the amount of $427,891.57. The Ontario Superior Court of Justice granted the motion for summary judgment and dismissed the main action. The Court of Appeal allowed the appeal.

37085  Sean Foessl v. Attorney General of Ontario


Charter of Rights – Appeals – Leave to appeal

The applicant, Sean Foessl, was charged with assaulting his son. The allegations against him were made by his former domestic partner. In the context of the assault charges, he breached one of his bail conditions and was charged with breach of recognizance and obstruction of police. By error, these latter charges were assigned to Domestic Violence Court since it was assumed that the underlying assault involved the former domestic partner. Upon discovery of the error, after several pre-trial appearances, the charges were transferred to regular criminal court, where Mr. Foessl was tried and acquitted.

Mr. Foessl then brought an application in the Ontario Superior Court of Justice for a declaration that the name “Domestic Violence Court” be deemed invalid and for an order changing the name to “Domestic Court”. Mr. Foessl alleged that the name of the court violated his constitutional rights under ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms. The application judge dismissed the application and the Court of Appeal dismissed the appeal.

36966  Stanley James Tippett v. Her Majesty the Queen


Criminal law – Evidence – Sentencing

In August 2008, when the complainant was 12 years old, she went to a party with some older friends in Peterborough, Ontario. When she left the party, she was so impaired that she could not stand. Events led to her being left alone in a van with Mr. Tippett. At about 2 a.m., someone heard a girl screaming “please, no” and called 911. The officer dispatched to the scene saw someone coming out of nearby woods and unsuccessfully chased the van the person drove off in. He saw the driver for a few seconds and later identified him as Mr. Tippett. When the officer returned to the scene, the complainant stumbled out of the woods, unclothed from the waist down, soaked, muddy, incoherent, and crying, with red marks on her face and abrasions on her limbs. Her blood contained anti-depressants and a toxic level of alcohol. She had no memory of that night.

Mr. Tippett testified that, when she was in the van, he had been carjacked, robbed, and left in a ditch. He told a taxi driver that he had worked a night shift and then his friend’s car had broken down; when he called police after being dropped off, he reported the carjacking, but said that he had been at his uncle’s house since 1 a.m. He denied telling those versions. At 3:40 a.m., police found his van in Oshawa, Ontario, near the complainant’s jeans and underwear. Cell phone records did not support his story, but forensic testing was inconclusive, and Mr. Tippett’s semen was not found.

Mr. Tippett was charged with sexual assault, sexual interference, kidnapping, dangerous driving, failure to stop for police, breach of recognizance, and breach of probation, convicted on all counts and was declared a dangerous offender. He was given an indeterminate sentence under s. 753(1)(a)(i), (ii) and (b) of the Criminal Code, R.S.C. 1985, c. C-46. His conviction and sentence appeals were dismissed.

37097  [S.C.] v. Children's Aid Society of London and Middlesex


Family law – Child apprehension

The Children’s Aid Society of London and Middlesex sought and was granted an order declaring S.C.’s child a ward of the Crown and placing her in the care of the Society. S.C.’s appeals were dismissed.

36958  Normand St-Germain, Richard St-Germain and Les Promotions Normand St-Germain inc., 2316‑9147 Québec Inc., 176283 Canada Inc. v. Doris St-Germain


Commercial law – Corporations – Oppression remedy

Following a dilution of the shares of 176283 Canada Inc., the mis-en-cause, the respondent Doris St-Germain, a minority shareholder at the time, filed an application for leave to bring a derivative action making an oppression claim in the company’s name under s. 239 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44. The Quebec Superior Court dismissed the application and declared the proceedings and conclusions improper. The Quebec Court of Appeal allowed the Appeal and granted the leave to bring action.

37064  John C. Turmel v. Her Majesty the Queen


Criminal law – Appeals

In 2006, the applicant was convicted of possession of marihuana for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. His appeal was dismissed. His application for leave to appeal to this Court was also dismissed, Turmel v. The Queen, [2007] 2 S.C.R. viii. After this Court released its decision in R. v. Smith, 2015 SCC 34, the applicant sought to bring a fresh appeal in the Ontario Court of Appeal. His application to further appeal his conviction was dismissed by Doherty J.A. on the basis that he was not entitled to appeal the same conviction more than once. The applicant then brought a further application in the Court of Appeal seeking to set aside Doherty J.A.’s ruling. The Court of Appeal dismissed the application.

37016  Charles Larry Nichols v. Nam Nha Do


Contracts – Remedies – Interpretation

The applicant/vendor entered into an agreement of purchase and sale to sell to the respondent/buyer waterfront properties (the “development property”). The agreement obliged the applicant to subdivide the development property after the sale, and entitled him to have part of it retransferred to him. The agreement was never completed, and the parties entered into a new agreement which added several conditions. One was that the applicant grant the respondent a mortgage over his residential property, allegedly to secure the applicant’s obligation to subdivide the development property and its post subdivision value. The applicant failed to subdivide the development property within the required time and the respondent brought a petition for an order nisi of foreclosure on the mortgage and related relief.

The Supreme Court of British Columbia dismissed the respondent’ petition, holding that the contractual provision giving rise to the mortgage was a penalty clause and that there was substantial unfairness in the bargain that rendered it unconscionable. The Court applied s. 24 of the Law and Equity Act, R.S.B.C. 1996, c. 253 and declared the mortgage unenforceable. The Court of Appeal for British Columbia allowed the appeal, set aside the lower court judgment and granted an order declaring that the mortgage was in default and all monies secured by it now due and owing. The court referred the matter back to the trial court to determine the amounts due, the amounts necessary to redeem and the length of the redemption period.

37049  Steven Wise v. Minister of Public Safety and Emergency Preparedness


Taxation – Customs and Excise – Reporting currency

On February 14, 2009, a Canada Border Services Agency officer interviewed Mr. Wise and his spouse immediately before they boarded an international flight departing from Canada. The officer told them about their obligation to report any cash in the amount of $10,000 or more and asked if they had that much. They said they did not. A search revealed that Mr. Wise possessed $13,820.69. The officer imposed a $2,500 fine and allowed Mr. Wise to leave with the rest of the currency. The Federal Court upheld the officer’s decision. The Federal Court of Appeal dismissed an appeal.

37096  Bela Beke v. Her Majesty the Queen


Criminal law – Appeals

Mr. Beke was convicted on a marijuana charge in 2013. In November, 2015, Mr. Beke unsuccessfully sought an extension of time to appeal his conviction. He argued that the change in the law effected by R. v. Smith, 2015 SCC 34 should invalidate his conviction and he sought an extension of time so that he could advance that argument before the Court of Appeal. His motion was dismissed as was his subsequent request for a review of that decision.

37022  Victor Zdenek Prochazka v. Eva Prochazkova


Charter of Rights – Right to equality – Family law

On March 6, 2001, the court in Czechoslovakia ordered Mr. Prochazka to pay approximately $175 CDN per month to his spouse for the support of their son, who was born in 1995. In July 2012, Ms. Prochazkova sought to enforce the accumulated arrears and continuing support under that order in Alberta, where Mr. Prochazka resided. He sought to have those proceedings stayed. In 2014, the Czech court dismissed Mr. Prochazcha’s application to eliminate or vary his child support obligations and arrears. The Czech judgments were filed in Alberta. Mr. Prochazka’s subsequent variation and termination proceedings in Alberta were dismissed. His appeal was dismissed.

37105  Ade Olumide v. Her Majesty the Queen in Right of Canada


Charter of Rights – Fundamental justice – Abuse of process

Mr. Olumide brought proceedings in the Tax Court of Canada and other courts regarding a dispute with the Minister of National Revenue, seeking different forms of relief. After he failed to pay costs awarded against him, the respondent sought an order for security for costs and an order precluding Mr. Olumide from taking further steps in the proceedings until the costs orders had been paid. The Federal Court ordered the applicant to pay security for costs and prohibited from taking further steps in proceedings. The Federal Court of Appeal ordered the same judgment as the Federal Court.