36022  Montague, et al. v. The Queen  (Charter — Criminal law — Forfeiture of weapons and ammunition)

On appeal from the judgment of the Court of Appeal for Ontario pronounced June 3, 2014. The applicants were convicted of firearms offences in 2007.  Following the imposition of sentence, the trial judge deferred the forfeiture order until after the disposition of the appeals against conviction and sentence.  The appeal was dismissed and the Court of Appeal returned the issue of forfeiture to the trial judge.  At the forfeiture hearing, the applicants made a constitutional challenge to the mandatory forfeiture provision in s. 491(1)(b) of the Criminal Code.

36028  National Money Mart Company v. Briones (Contracts — Arbitration clause — Statutes —Unconscionable Transactions Relief Act, C.C.S.M., c. U20)

On appeal from the judgment of the Court of Appeal for Manitoba pronounced June 5, 2014. Between September 2001 and July 2006, the respondent obtained 99 Fast Cash Advances from the applicant.  Each time, she signed an agreement which contained a clause agreeing that any claim, dispute or issue arising in connection with the loan could be referred to mediation and/or arbitration by either party.  When she repaid the loans using the applicant’s cheque-cashing service, she was also charged cheque-cashing fees.  Arguing that those fees were “interest” resulting in interest in excess of the 60% permitted by s. 347 of the Criminal Code, R.S.C. 1985, c. C-46, she initiated an action on her own behalf and on behalf of the proposed class under the Class Proceedings Act, C.C.S.M., c. C130, seeking an accounting and repayment of all cheque-cashing fees.  She also sought declarations that the cheque-cashing fees paid are interest under s. 347 of the Criminal Code, and that the agreements under which the moneys were advanced were unlawful, failed to comply with The Consumer Protection Act, C.C.S.M., c. C200, and constituted harsh or unconscionable transactions within the meaning of the Unconscionable Transactions Relief Act, C.C.S.M., c. U20.  Finally, she claimed that the Dollar Financial Group, Inc. was jointly and severally liable for any liability of the applicant.  The applicant argued that the respondent’s’ claim should be stayed because she had entered into multiple written agreements requiring her to mediate and/or arbitrate the disputes.  It asked the court to compel her to proceed with arbitration and/or mediation of her disputes. Based on the Unconscionable Transactions Relief Act, the Consumer Protection Act, and Seidel v. TELUS Communications Inc., 2011 SCC 15, the motion judge dismissed the motion to stay or dismiss the action.  The Court of Appeal dismissed the appeal.

35992  Norman H. Solmon Family Trust v. Chandran as trustee of the Estate of Thambirajah Edward Chandran  (Law of professions — Barristers and solicitors — Conflict of interest)

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 5, 2014.  Norman Solmon was a chartered accountant who also operated a private lending business for several years.  In 2006, he made a loan of $125,000 to Mr. and Mrs. Rajmohan (the “mortgagors”), secured by second and third mortgages on their home.  He died on October 2, 2007.  Upon his death, those mortgages were assigned to the Norman H. Solmon Family Trust (the “Family Trust”).  Mr. Chandran was the lawyer who acted for Mr. Solmon on the mortgages.  He also acted for the mortgagors and registered both mortgage loans on Mr. Solmon’s behalf.  Mr. Chandran died on November 23, 2007.  His widow, Mrs. Chandran, is the trustee and executor of her late husband’s estate.  The mortgagors subsequently defaulted on the two loans and the Family Trust commenced default proceedings in September, 2008, which the mortgagors defended.  The mortgagors subsequently declared bankruptcy.  The Family Trust sought access to Mr. Chandran’s file and finally obtained it in April, 2009.  More than two years after the death of Mr. Chandran, the Family Trust commenced the third party action in 2010, alleging negligence by Mr. Chandran in handling the mortgages, fraudulent concealment and special circumstances.  Mrs. Chandran, on behalf of the estate, brought a motion for summary judgment arguing that the limitation period under s. 38(3) of the Trustee Act barred the third party claim. The Ontario Superior Court of Justice dismissed the third party claim against estate trustee. The Court of Appeal dismissed the Applicant’s appeal.

35825  Sietzema v. Economical Mutual Insurance Company  (Limitation of actions – Insurance Law)

On appeal from the judgment of the Court of Appeal for Ontario pronounced February 11, 2014. The applicant was injured in a car accident in 2005.  On December 19, 2005, the respondent denied Non-Earner Benefits, stating that it did so because the applicant was employed at the time of the accident.  It paid Income Replacement Benefits of $400 per week until March 2, 2006.  The applicant returned to work in February, 2006. Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, subsequently clarified that a person able to continue to work may nevertheless qualify for Non-Earner Benefits.  The applicant filed for arbitration seeking Non-Earner Benefits in April 2012 and then filed a Statement of Claim on April 14, 2011.  The respondent applied for summary judgment dismissing the claim, arguing it was statute-barred by a two year limitation period that began when it denied Non-Earner Benefits. The Ontario Superior Court of Justice granted summary judgment and held that the claim was statute-barred. The Court of Appeal dismissed the appeal.

36008  Goebel v. The Queen  (Charter of Rights — Criminal law — Alternative measures — Discretion of Attorney General — Expert evidence)

On appeal from the judgment of the Court of Appeal for Ontario pronounced June 3, 2014. The applicant suffers from schizophrenia.  In April 2010, he was charged with aggravated assault and threatening death.  When the respondent Crown refused to agree to a mental health diversion of the charges, the applicant made an application, asserting that the Crown was engaged in an abuse of process by insisting on a trial.  He sought various extraordinary remedies arising out of alleged violations of ss. 7 and 15 of the Charter, including a stay of proceedings and the quashing of the criminal proceedings in provincial court.  The Superior Court granted a motion to dismiss filed by the Crown and dismissed the applicant’s application.  Among other things, the Court noted that the Ontario directive to Crown counsel on the use of diversions where an accused has mental health problems prohibits diversion where the offence caused serious bodily harm.  In his view, that policy was not arbitrary.  Rather, it was rationally connected to the objective explicitly mentioned in s. 717(1) of the Criminal Code of protecting society.  In addition, the Court found that the applicant, in any event, had not met the criteria of s. 717(a)(e), since there was no evidence that he had accepted responsibility for the act or omission that formed the basis of the charges.  In May 2014, the Crown withdrew the charges against the applicant and he entered into a peace bond.  In June 2014, the Court of Appeal quashed the applicant’s appeal on the basis that it was moot.

36018 Bédard v. Minister of Justice of Canada  (Charter of rights — Extradition — Delay before surrender)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 27, 2014.  In July 2009, the United States requested the applicant’s extradition for prosecution on charges of conspiracy to traffic in a large quantity of marijuana and ecstasy.  In December 2010, the Minister of Justice of Canada responded by signing an order to surrender the applicant.  The applicant applied to the Court of Appeal for a review of that decision.  Before his application for judicial review was heard, and while he was subject to release conditions, he was arrested for impaired driving causing bodily harm.  In January 2012, the Court of Appeal dismissed the application for judicial review.  On March 8, 2012, the Minister of Justice amended the surrender order against the applicant to order his immediate surrender notwithstanding the pending charges for impaired driving causing bodily harm, as permitted by s. 64 of the Extradition Act.  The next day, the applicant was surrendered to the American authorities.  In late March 2012, the applicant applied for leave to appeal the decision of the Court of Appeal dismissing his application for judicial review.  In June 2012, the Court dismissed the application.  This application for leave to appeal concerns a decision of the Court of Appeal dated May 27, 2014, dismissing a second application filed by the applicant seeking judicial review of the amended surrender order and damages under s. 24(1) of theCharter.  The applicant is currently serving a four-year prison sentence in the United States after pleading guilty on September 28, 2012 to charges on which his extradition was based.

35988  Marcheterre v. Rollin, et al.  (Fault — Proof — Presumption of liability established by s. 108 of Automobile Insurance Act, CQLR, c. A-25)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 20, 2014.  In June 2000, Mr. Labrosse and Ms. Rollin (the respondents) called upon some friends to help them move.  The friends included the applicant and her spouse, Mr. Paquette.  Early in the afternoon, the respondents provided alcoholic beverages for their guests.  In the evening, Mr. Paquette borrowed Mr. Labrosse’s uninsured and unregistered all-terrain vehicle (ATV) without asking his permission.  Mr. Paquette, who was intoxicated at the time, fell from the vehicle while driving off road and was seriously injured.  He brought an action in extracontractual liability against the respondents seeking $7,396,084 in damages on a solidary basis.  (The applicant later continued the action as liquidator of the succession.)  The Superior Court dismissed the action, and the Court of Appeal dismissed the appeal.  The Court of Appeal found that the respondents’ conduct was consistent with what would have been done by an ordinarily prudent and diligent person placed in the same circumstances, in accordance with the civil liability rules applicable in Quebec law.  It held that Mr. Paquette’s accident could be explained by his advanced state of intoxication and his [translation] “sudden decision to take a ride on a three wheeler without the respondents’ knowledge” (para. 69) and that the accident “could result only from an error in judgment on his part” (para. 57).  The Court of Appeal stated that the rules in ss. 108 to 114 of the Automobile Insurance Act create a scheme of presumptions that applies only where there is a victim who is neither the owner nor the driver of the vehicle involved.

35960  Charlton, et al. v. Niedermeyer  (Insurance — Automobile insurance — Release clause)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced April 30, 2014. In 2008, the respondent had been working as a teacher in Singapore for twenty years, when she travelled to British Columbia with a group of her students to attend an international conference in Victoria.  Following the conference, the respondent had arranged other activities for her group including a zip line tour in the valley between Whistler and Blackcomb mountains.  Upon arrival at the lodge in Whistler Village, the group was given helmets and harnesses and received some training.  The respondent was given releases provided by Ziptrek to sign on behalf of herself and her students.  In accordance with Ziptrek policies, staff advised them that a signed release was required before they could participate in the activity.  The group was then taken up the mountain by van to the start of the zip line course.  On the return trip to Whistler Village, the bus operated by the applicant, Charlton, an employee of Ziptrek, went off the road, overturned and rolled down a hill.  The respondent suffered significant  injuries and brought an action for damages against Ziptrek and Charlton.  Ziptrek admitted liability for the accident.  The parties agreed that the issue of whether the release signed by the respondent should bar her from succeeding in the action should be decided prior to a trial on the issue of damages and contributory negligence. The Supreme Court of British Columbia dismissed the respondent’s action for damages on ground that she had waived all claims for damages. The Court of Appeal allowed the respondent’s appeal and remitted the matter to the trial court for assessment of her damages.

36012  Malcolm on his own behalf and on behalf of all commercial halibut licence holders in British Columbia v. Minister of Fisheries and Oceans, et al.  (Administrative law – Permits and licences – Ministerial discretion – Promissory estoppel)

On appeal from the judgment of the Federal Court of Appeal pronounced May 20, 2014.  The applicant and those he represents are commercial fishermen holding licences to harvest halibut off the coast of British Columbia.  They brought an application for judicial review of a 2012 decision by the Minister of Fisheries and Oceans that changed their allocation of the total allowance catch (TAC) for halibut from 88% to 85%, with the lost 3% being allocated to the recreational fishing industry without using a market based mechanism to effect the transfer.  The applicant alleged that the corresponding reduction in his individual transferable quota and the pounds of halibut that he can land and sell, injuriously affects his ability to earn a livelihood from the fishery.  He argued that the decision was unreasonable in that it lacked justification, transparency and intelligibility; was contrary to previous assurances from the Minister upon which commercial fishermen relied in good faith to their detriment; and was contrary to the recommendations of the Department.  He also relied upon the doctrine of promissory estoppel and claimed that the Minister violated legitimate expectations that a market based process would be followed in adjusting the allocation of TAC. The Federal Court dismissed the application for judicial review. The reviewing judge held that there was no basis upon which to interfere with the decision or to invoke public law promissory estoppel, and that the doctrine of legitimate expectations had no application to the decision.  The Court of Appeal dismissed the applicant’s appeal.

35966  Esrabian v. The Queen  (Criminal law – Charge to jury – First-degree murder)

On appeal from the judgment of the Court of Appeal for Ontario pronounced December 18, 2013.  The victim, Mr. Hassan, a drug dealer, was lured to a remote location near Ottawa and fatally shot.  The Crown alleged that he was murdered because he had tried to circumvent his cocaine supplier, Mr. Saleh, and deal directly with Mr. Saleh’s supplier.  The Crown’s theory was that Mr. Saleh enlisted the help of the applicant, also a drug dealer, and Mark Yegin.  The Crown argued that the three men, together, lured the victim to the murder site.  There was conflicting evidence as to who fired the fatal shots but, on the Crown’s theory, it did not matter because the Crown argued that the applicant was guilty of first-degree murder either because he was the shooter or because he had been a party to the planning, deliberation and murder of Mr. Hassan.  The applicant acknowledged that he drove with Mr. Saleh to meet Mr. Hassan at the murder site but he testified that he only had anticipated committing an assault.  He testified that Mr. Yegin unexpectedly shot Mr. Hassan.  A jury convicted the applicant of first-degree murder. The Court of Appeal dismissed the appeal.

35970  Vacca v. Golf North Properties Inc.  (Contracts — Vendor take-back mortgage agreement)

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 1, 2014.  In 2006, the applicant and her father owned land neighbouring a golf course belonging to the respondent.  The respondent agreed to purchase the Vaccas’ land for $1,600,000, $800,000 of which was paid in cash.  The Vaccas then took back a mortgage for the remaining $800,000.  It was agreed that the respondent had five years to obtain golf course zoning, failing which it was to notify the Vaccas.  At that point, the respondent could choose to pay out the mortgage in full, otherwise the Vaccas would have the option to repurchase the property “for $1,200,000 free of liens and encumbrances with the exception of the Mortgage.” The agreement also included the following statement: For greater clarity and in conjunction with the Option described above, the Mortgagee [the Vaccas] shall upon exercising the Option, purchase the Property by paying to the Mortgagor [Golf North] the sum of $1,200,000.00 whereupon the Mortgagor shall be deemed to have satisfied the Mortgage in full.  When the respondent did not obtain the golf course zoning and refused to pay out the mortgage in full, the Vaccas exercised their repurchase option.  However, the parties disagreed on the amount payable and applied to the Ontario Superior Court of Justice to have the repurchase price judicially determined.  The Superior Court of Justice ruled in favour of the respondent, and the Court of Appeal dismissed the appeal.

35954  Molea v. Rains  (Civil procedure – Costs – Both parties represented by counsel on a pro bono basis)

On appeal from the judgment of the Court of Appeal for Ontario pronounced April 25, 2014.  The respondent sued the applicant for copyright infringement, seeking damages of about $6 million.  The Ontario Superior Court of Justice dismissed the action.  Both parties were represented by counsel acting on a pro bono basis.  The applicant then requested costs on a substantial indemnity basis.  Relying on1465778 Ontario Inc. v. 1172077 Ontario Ltd. (2006), 82 O.R. (3d) 757, he asserted that a pro bono party should be entitled to costs.  The trial judge agreed, but decided to only award the applicant his disbursements ($18,724.41 plus tax) in the circumstances.  The Court of Appeal dismissed an application for leave to appeal on the costs issue, without reasons.

35983  Szostak v. The Queen  (Criminal law — Evidence — Sentencing — Dangerous Offender)

On appeal from the judgment of the Court of Appeal for Ontario pronounced January 10, 2014.  The applicant was found guilty of the following: assault causing bodily harm, aggravated assault, assault with a weapon, possession of a dangerous weapon, threaten death, obstruct justice and breaching multiple probation orders.  The trial judge dismissed the respondent’s application to declare the applicant a dangerous offender.  A term of imprisonment of six years was imposed after allowing credit for pre-trial custody.  The Court of Appeal dismissed the applicant’s conviction appeal and allowed the respondent’s appeal against sentence.  The applicant was declared a dangerous offender.  A term of five years imprisonment and a ten-year supervision order was imposed.

36015  Lubecki v. Lavin  (Civil procedure — Appeals)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 26, 2014.  The applicant hired the respondent to represent him in the course of divorce proceedings initiated by his ex-wife in 2010.  He then sued the respondent, alleging that he had not properly executed his mandate during the proceedings on corollary relief.  The Superior Court dismissed the action.  Bénard J. found that the respondent did not commit any fault.  The Court of Appeal dismissed the appeal summarily, on the basis that it had no reasonable chance of success.

36049  Sanchez v. Minister of Citizenship and Immigration  (Immigration — Convention refugee — Exclusion for refugee protection)

On appeal from the judgment of the Federal Court of Appeal pronounced June 10, 2014.  In 2008, the applicant, a citizen of Mexico, sought refugee status in Canada, arguing that he feared persecution in Mexico by reason of his membership in a particular social group and due to his political opinions.  Before the Refugee Protection Division of the Immigration and Refugee Board of Canada, the Minister of Citizenship and Immigration brought an application requesting that the applicant be excluded from refugee protection because he had committed a serious non-political crime abroad prior to his admission to Canada as a refugee. In and around 1997, while living in the U.S., the applicant was arrested for, pled guilty and was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine.  At the time of the applicant’s offence (1996), the crime for which he was convicted was not a strictly indictable offence but rather was a hybrid offence.  However, at the time of the application for exclusion brought before the Refugee Protection Division (2011), that same offence, was an indictable, not hybrid, offence. The Immigration and Refugee Board rejected the applicant’s claim for refugee status. The Federal Court dismissed the applicant’s application for judicial review and the Federal Court of Appeal dismissed the appeal.