APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Gary Neinstein, Neinstein & Associates LLP v. Cassie Hodge
Civil procedure – Class actions – Certification
Ms. Hodge was injured in a motor vehicle accident and retained the law firm Neinstein & Associates to represent her. The contingency fee agreement that Ms. Hodge signed with the law firm entitled the firm to a percentage of damages recovered on her behalf, costs and disbursements. Ms. Hodge's accident benefits claim settled for $85,000. She received $66,089.49 from that amount, and the law firm deferred a portion of the fees due to be repaid from the settlement or judgment in the tort action. Ms. Hodge's tort action settled for $150,000. She received $41,906.41 of that amount, after legal fees, costs and disbursements plus interest on disbursements.
Ms. Hodge brought a motion to certify a class proceeding against the law firm on behalf of all its contingency fee clients since October 2004. She sought a declaration that the contingency fee agreement and the amounts charged are in violation of ss. 28.1(8) and (9) and 33 of the Solicitors Act, R.S.O. 1990, c. S. 15. She further alleged a breach of fiduciary duty and a breach of contract, and sought an order that the firm repay any costs in addition to a percentage of damages. The motion to certify class proceeding was dismissed and the Court of Appeal dismissed the appeal.
Frederick Radcliffe v. Her Majesty the Queen
Criminal law – Sentencing – Dangerous offenders
Mr. Radcliffe was convicted of sexual interference, sexual assault and failure to comply with a recognizance. Crown counsel applied for a dangerous offender designation. Mr. Radcliffe, a Cree, was adopted when he was four months old. At the dangerous offender hearing, his counsel led into evidence a letter from the Native Inmate Liaison Officer at Mr. Radcliffe's detention centre. The officer states that Mr. Radcliffe had self-identified as Aboriginal and he had participated in Aboriginal programs. Defence counsel sought a long term offender designation. The sentencing judge declared Mr. Radclifffe a dangerous offender. He referred to the Native Inmate Liaison Officer's letter but he did not refer to Gladue factors or R. v. Gladue,  1 S.C.R. 688, and no Gladue report was ordered. The Court of Appeal dismissed the appeal.
Jason Osborne v. Her Majesty the Queen
Criminal law – Evidence – Evidence of victim or witness who has disability
After a trial by judge and jury, the applicant, Mr. Jason Osborne, was convicted of first degree murder in the death of Ms. Karina Neff. He was sentenced to life imprisonment without eligibility for parole for 25 years. Mr. Osborne appealed his conviction on two grounds. First, he argued that the trial judge erred in admitting under s. 715.2 of the Criminal Code the video-recorded police statement of Mr. Osmond, a Crown witness who has a disability and whom at trial no longer had any memory of the events described in the statement. Second, Mr. Osborne argued that the trial judge erred in dismissing his application for a mistrial after Crown counsel made certain remarks in his closing address about the evidence of the defence's expert forensic psychologist. The Court of Appeal dismissed the appeal. The issue in the proposed appeal to this Court is whether the courts below erred by interpreting s. 715.2 as permitting the statement to be adduced for its truth even though Mr. Osmond's lack of memory made meaningful cross-examination impossible.
Gandhi Jean Pierre v. Canada Border Services Agency
Charter of Rights and Freedoms – Judicial review
The applicant participated in an advertised internal appointment process for a position at the Canada Border Services Agency. His application was screened out on the basis that he did not meet three of the essential qualifications established for the position. The applicant later filed a complaint with the Public Service Staffing Tribunal ("Tribunal") alleging abuse of authority in the application of merit in the appointment process. He also argued that the assessment board was biased and had discriminated against him. The Tribunal dismissed the complaint filed by the applicant, who then applied for judicial review of the decision. The application for judicial review was dismissed as was the appeal.
Cash House Inc., Osman Khan and 2454904 Ontario Inc. v. Trade Capital Finance Corp
Civil procedure – Contempt of court – Mareva order
Trade Capital Finance Corp. ("Trade Capital"), is in the business of purchasing accounts receivable. It alleges that it was defrauded of approximately $6,500,000 in a sophisticated scheme in which it unknowingly purchased fictitious accounts receivable. It alleges that the majority of its lost funds was eventually deposited in bank accounts owned by the applicant, The Cash House Inc. ("Cash House"). Cash House is owned by 2454904 Ontario Inc., which in turn is owned by Osman Khan. Trade Capital obtained an ex parte Mareva Order freezing the assets of all defendants to its action, including Cash House, and an order for financial disclosure. The applicants' motion to set aside or vary the Mareva Order was dismissed. Trade Capital made numerous attempts to obtain production of documents and to schedule Mr. Khan for examination but was unsuccessful. Trade Capital then brought a motion, seeking to have the applicants found in contempt and to strike Cash House's statement of defence and crossclaim. The Ontario Superior Court of Justice found to the applicants to be in contempt for breaching the Mareva Order. The Court then issued an order imprisoning Mr. Khan for 90 days and requiring him to provide a written inventory of documents. The Court also struck Cash House's statement of defence and cross-claim without prejudice for leave to amend once the contempt was purged. The Court of Appeal dismissed the applicants' appeal.
With more than 1,400 legal professionals in 19 cities worldwide, we provide our clients with in-depth expertise in key global sectors and a suite of legal services at home and abroad. We see the world through our clients’ eyes, and collaborate across countries, offices, service areas and sectors to help them succeed, no matter how challenging the circumstances.