36287 Karl-Heinz Arthur Lilgert v. Her Majesty the Queen (Charter of Rights and Freedoms – Criminal Law – Liberty)
On appeal from the Court of Appeal for British Columbia. Mr. Lilgert was the officer in charge of the operation and navigation of the Queen of the North, a ferry that ran aground off Gil Island and sank. Two passengers were killed. Mr. Lilgert was charged with two counts of causing death by criminal negligence. The ferry’s route required a turn in Wright Sound. Based on an expert’s opinion interpreting navigational data recorded by the ferry’s Electronic Chart System, Crown counsel argued that the ferry failed to turn and it followed a straight course at a high speed directly towards Gil Island without any course change. Mr. Lilgert testified in part that he delayed turning and he then made course changes in response to the circumstances at the time, including weather and the presence of another boat. Mr. Lilgert was convicted by jury on two counts of criminal negligence causing death. The Court of Appeal for British Columbia dismissed the appeal,
36273 Taylor v. Murray Summerville, et al. - and between -Taylor v. Ministry of the Attorney General of Ontario, et al. - and between - Taylor v. London Police Service, et al. (Civil procedure)
On appeal from the Court of Appeal for Ontario. The applicant is the plaintiff in three actions commenced in Ontario. One action was commenced in 2000 while the remaining two were initiated in 2008. The actions sought millions of dollars in damages for various alleged wrongdoings having occurred between 1997 and 2004. His initial action, against the London Police Service and its constables, was dismissed as statute barred in 2000. One defendant to that action did not participate in the proceedings. Accordingly, the action was not dismissed with respect to that individual.
The defendants to the two actions filed in 2008 filed motions for summary judgment, as did the one remaining defendant to the 2000 action. Those motions were heard together by the Superior Court of Justice. The motions for summary judgment were granted and the action against the remaining defendant to the 2000 action was dismissed The action against the London Police Service et al. was dismissed in its entirety, without leave to amend. The action against Ministry of Attorney General of Ontario et al. was dismissed in its entirety without leave to amend. The Court of Appeal dismissed a motion for an extension of time to appeal.
36266 Robert E. MacKenzie v. John J. Rogalasky - and between - Chandi v. Ebenezer Garvey Atwell, et al. (Civil Procedure – Costs)
On appeal from the Court of Appeal for British Columbia. The plaintiff in Chandi v. Atwell was five years old when he was injured in a motor vehicle accident in 2004. His case was settled before trial for a certain amount plus taxable costs and disbursements. The plaintiff sought to include $25,668.92 owed in interest to a third party lender as a disbursement. The loan was taken to fund the disbursements required to prove his case. In MacKenzie v. Rogalasky, the plaintiff was also injured in a motor vehicle accident. He did not have money to finance litigation and borrowed $25,000 from a specialized disbursement lender. He collected his judgment and repaid the loan on which $11,324.71 in interest had accrued. Both plaintiffs sought to claim the interest expense on their litigation loans as disbursements on taxation. The Plaintiff’s claim for the interest expense was allowed in part in the first action. The Plaintiff’s claim for interest expense was disallowed in the second action. The Plaintiffs’ appeals were allowed in part and the matter was referred back to the Registrar to quantify reasonable interest. The Respondents’ appeals were allowed and the out-of-pocket interest expense incurred to finance disbursements were not recoverable.
36330 Chung Jin Park v. Her Majesty The Queen (Criminal procedure – Prosecution)
On appeal from the Court of Appeal for Ontario. The Applicant attempted to pursue criminal charges against two business associates of his for what he alleges is a fraudulent scheme involving a company that the parties attempted to establish to sell health food that the company was to manufacture. Two individuals invested $130,000 in the company while the third was to obtain approval from the U.S. Food and Drug Administration as his contribution. The company also received a government-backed loan of $350,000. The Applicant advances a myriad of allegations regarding what the other two individuals did with the company including apparently creating a Korean Spa within it, all over his objections. At its core, his complaint appears to be that he has lost, or will lose, his investment in the company. The Applicant was initially denied his application for charges to be laid against his business partners, but ultimately, the matter was remitted to a Justice of the Peace for a fraud charge to be laid against the business partners. He subsequently claimed Hong stole and defrauded Park of $25,297. He also claimed Hong forged certain invoices concerning equipment allegedly purchased for the company's benefit. The Applicant relied upon the material he had submitted to the court in respect of the allegations against his business partners. He claimed Hong failed to deliver the equipment for which the company paid, as part of a conspiracy with his business partners, one of whom had written the $25,297 cheque to Hong's company. The Applicant conceded the partner had authorization to write cheques on behalf of the company and that Hong had done some work for the company. The Justice of the Peace conducted a hearing under s. 507.1 of theCriminal Code and held the evidence only gave rise to a suspicion, but nothing more, that Hong was involved in fraudulent activity with Park's business. She concluded that there was no prima facie case made out by the Applicant regarding the charges of fraud and related matters. She declined to issue a summons or warrant of arrest. The Court of Appeal for Ontario dismissed the appeal.
36256 EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586 (Administrative law — Estoppel — Ontario Labour Relations Board)
On appeal from the Court of Appeal for Ontario. A copy of the Sarnia Working Agreement (“SWA”), signed in Sarnia by representatives of EllisDon and the Building and Construction Trades Council in 1958, was found in a box of files in the offices of a union associated with the Sarnia Building Trades Council. In the interim, a series of amendments were made to the Labour Relations Act, previously local agreements applying province-wide. Those amendments led to negotiations with the provincial government regarding restricting the reach of other similar working agreements. EllisDon stopped pursuing similar restrictions of the SWA after a representative of the building trade unions assured it that the unions would not actively promote or rely on the SWA. After the SWA was rediscovered, the Conference and the IBEW referred grievances complaining that EllisDon had breached the SWA. The Ontario Labour Relations Board found that EllisDon was bound by the SWA throughout the province, but imposed a two-year estoppel. The Divisional Court held that the estoppel should be permanent, but the Court of Appeal restored the two-year limitation on the estoppel. The Court of Appeal for Ontario allowed the appeal and restored the decisions of the Ontario Labour Relations Board with a two-year estoppels taking effect on the date of the order.
36322 Rajinder Dheensaw v. Saanich Police Department, et al. (Charter of rights – Limitations – Adjournments)
On appeal from the Court of Appeal for British Columbia. Ms. Dheensaw commenced an action against a number of defendants arising from a series of events that took place between January 27 and February 17, 2009. The trial judge noted that during that time, Ms. Dheensaw was suffering from mental health issues. She was certified under the Mental Health Act and involuntarily hospitalized from February 2, 2009 to February 17, 2009. In her Notice of Civil Claim, which was filed on February 28, 2011, Ms. Dheensaw sought damages and other relief on a variety of grounds, including: intimidation; violation of the Canadian Human Rights Act; violation of the Charter; trespass; assault and battery; medical malpractice; false imprisonment; intentional infliction of emotional distress; and violation of privacy. The Respondents brought summary trial applications and made a number of arguments, including that the action was statute-barred. After numerous adjournments and orders that the dates were peremptory on Ms. Dheensaw, her claim was dismissed. Ms. Dheensaw filed an appeal, but failed to file her appeal record in time. She was granted one extension but failed to file her appeal book and factum in time. The subsequent application for an extension of time was denied by a single justice of the Court of Appeal. Her application to vary the order denying the extension of time was also dismissed.
36206 Bryan Michael Evans v. Her Majesty the Queen (Charter of Rights and Freedoms – Right to counsel)
On appeal from the Court of Appeal of Alberta. On March 21, 2011, in Edmonton, Mr. Evans was detained on reasonable grounds to suspect he was operating a motor vehicle while having alcohol in his body. Mr. Evans had a cell phone and the officer had the number for legal aid with him. A roadside breath sample was demanded at 4:24 pm. The detaining officer did not have an approved screening device. He made a call for a device. Seventeen minutes later, another officer delivered a device. Mr. Evans provided his first sample at 4:41 pm. He was arrested after his fourth sample and, for the first time, advised of his right to counsel. At trial, he raisedCharter challenges to the evidence, including that s. 10(b) was breached because he was not afforded his right to counsel during the 17 minutes while waiting for delivery of an approved screening device. The Provincial Court of Alberta issued a declaration that s. 10(b) of the Charter of Rights and Freedoms was not breached and entered a conviction for operating motor vehicle with alcohol/blood concentration over 80 mg per 100 ml. The charge of impaired driving was dismissed. The Court of Queen’s bench dismissed the summary conviction appeal and the Court of Appeal dismissed the application for leave to appeal.
36163 Lise Nathalie Lemay v. Thomas H. Peters (Torts – Negligence – Medical malpractice)
On appeal from the Court of Appeal of New Brunswick. In 2004, the applicant was self-employed as a hairdresser when she first noticed a lump in her neck. The respondent is a doctor with a specialty in thoracic and general surgery. Over the next several months, she was referred to three separate specialists who reassured her that there was nothing to be concerned about. In early 2005, she discovered a lump in her breast and was referred to Dr. Peters. When he was taking a history of the breast lump, Ms. Lemay mentioned to him that she also had lumps in her neck and suffered from night sweats. This information caused Dr. Peters to suspect lymphoma and he suggested a nodal biopsy for diagnostic purposes. He advised her that she would be left with scars from this biopsy and that she would be subject to the risks of general anesthesia. In June, 2005 Dr. Peters performed a biopsy of a node in Ms. Lemay’s neck. No complications were noted during the surgery but the pathology report indicated that the cervical node evidenced Hodgkin’s Disease. During the first few days after the surgery, Ms. Lemay noticed that her arm and shoulder were quite painful. She spoke on the phone to Dr. Peters’ receptionist, reporting that she was having “issues” with her arm. She was told that the pain was likely due to inflammation and should be fine in a few days. Ms. Lemay had no further contact with Dr. Peters or his office. Later, she complained of muscle wasting and pain in the area of her trapezius muscle affecting her shoulder function. In the fall of 2005, she was referred by her family physician to two specialists for further investigation. They reported that Ms. Lemay most likely had spinal accessory nerve damage in the area of the biopsy and discussed with her the possibility of surgical repair. Ms. Lemay declined to have the repair surgery. She sued Dr. Peters in negligence. The Court of Queen’s Bench dismissed the Applicant’s action for damages. The Court of Appeal of New Brunswick dismissed the Applicant’s appeal.
36276 Diana Zabanah v. Capital Direct Lending Corp., Chicago Title Insurance Company (Judgments and orders – Summary judgments)
On appeal from the Court of Appeal for Ontario. In 2007, Ms. Zabanah purchased a second mortgage on a property from the respondent, Capital Direct Lending Corp. (“Capital”), as an investment. The mortgagor had fraudulently informed Capital that the balance of the first mortgage on her home was about $83,000, when in reality it exceeded $200,000. The property was appraised at approximately $210,000. Ms. Zabanah advanced about $83,000 to the mortgagor through the broker, Capital. Capital bought title insurance on the second mortgage from the respondent, Chicago Title Insurance Co. (“Chicago”), and assigned the insurance policy to Ms. Zabanah when she purchased the mortgage. In February 2008, when Capital became aware of the mortgagor’s fraud, it advised her to get legal advice and offered to pay $500 in legal fees on her behalf. Capital also advised her that Capital itself could be liable to her for the loss in the value of her security. She nonetheless renewed the second mortgage in 2008, 2009 and 2010. The mortgagor made an assignment in bankruptcy in 2010. The first mortgagee exercised its rights under power of sale in February, 2011. The proceeds of sale were insufficient to pay off the first mortgage, leaving nothing for Ms. Zabanah as the second mortgagee. Ms. Zabanah issued the statement of claim on November 23, 2011, seeking damages for negligence, breach of contract and breach of fiduciary duty against Capital, and requested an order that Chicago cover her loss under the title insurance policy. Capital moved for summary judgment on the basis that the action was commenced after the two-year limitation period in theLimitations Act, 2002, S.O. 2002, c. 24 had expired. Chicago also moved for summary judgment based upon the exclusion clause in the title insurance policy that excluded coverage for any actions arising from the first mortgage. The Ontario Superior Court of Justice dismissed the applicant’s action for negligence, breach of contract and breach of fiduciary duty. The Court of Appeal for Ontario dismissed the Applicant’s appeal.
36268 Haruyo Taucar v. Human Rights Tribunal of Ontario, et al. (Charter of rights — Right to equality)
On appeal from the Court of Appeal for Ontario. The applicant, a member of the faculty at the University of Western Ontario, filed a complaint with the University alleging harassment on the basis of race, ethnic or national origin and discrimination on the part of a colleague. The University and the parties involved agreed to submit the complaint to an external investigator rather than to a Panel of Inquiry, the procedure foreseen by the collective agreement governing the University’s faculty. The investigator issued a report concluding that the evidence did not support a conclusion that there had been discrimination or harassment as defined under the collective agreement. The University subsequently communicated to the applicant its decision to dismiss her complaint.
The applicant filed two applications with the Human Rights Tribunal of Ontario, one against the University and another against the external investigator. In those applications, she alleged that the external investigator had discriminated against her in the preparation of his report by conducting an unfair investigation of her complaint and that the University had discriminated against her by accepting the allegedly discriminatory conclusions contained in that report. The applicant also claimed that the University had failed to accommodate her disability and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19. The applications were consolidated and dismissed. The Divisional Court dismissed the application for judicial review. The Court of Appeal for Ontario dismissed the motions for leave to appeal order dismissing application for judicial review and costs order.
36184 Francis Mazhero v. Andrew Fox, Jacques Roberge, Neal Sharkey (Civil procedure – Appeals – Applicant declared vexatious litigant)
On appeal from the Federal Court of Appeal. After multiple appeals and applications for leave, the Applicant was declared a vexatious litigant by the Federal Court of Appeal. The Applicant seeks leave to appeal from four Federal Court of Appeal judgments.