36039 Dhillon v. Jaffer  (Law of professions – Barristers and solicitors – Breach of fiduciary duty – Damages)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 6, 2014. In 1974, Mr. Dhillon purchased a home in Vancouver on East 57th Avenue, and registered in his name.  He lived there with his wife and children until 1985, when he moved back to India.  Ms. Dhillon and the children remained in that home for several years.  In 1992, Ms. Dhillon signed a contract to sell the house, using a fraudulent power of attorney that purported to authorize her to sell and to receive the proceeds of sale on behalf of Mr. Dhillon. Mr. Dhillon’s signature on the power of attorney was forged. Ms. Dhillon subsequently changed her mind and refused to complete the sale.  The purchasers took action against Mr. Dhillon and obtained a vesting order for the property.  Mr. Dhillon was unaware at the time about the purchase and sale agreement or that an action had been brought against him.  Ms. Dhillon retained Mr. Jaffer to attempt to set aside the vesting order.  Mr. Jaffer knew nothing of the fraudulent background of the transaction, but did know that it was Mr. Dhillon in whose name the property was registered.  The sale of the property went ahead and according to the court order, Mr. Jaffer received most of the sale proceeds of approximately $187,000 into his trust account, which he then paid out to Ms. Dhillon without notice to Mr. Dhillon.  Ms. Dhillon eventually purchased another residence, in part, with the monies paid to her from the proceeds of sale.  Mr. Dhillon remained in India for several years. When he returned to Vancouver, he found out that the 57th Avenue property had been sold.  He brought a fraud action against his wife and son.  He was awarded a money judgment and Ms. Dhillon was ordered to transfer title to her new property to Mr. Dhillon.  This decision was upheld on appeal.  Mr. Dhillon subsequently brought an action against Mr. Jaffer in negligence, breach of contract and breach of fiduciary duty.  The trial judge dismissed Mr. Dhillon’s claims against Mr. Jaffer but the decision was overturned on appeal, based on the finding that Mr. Jaffer breached his duty of care to Mr. Dhillon, a non-client, and was liable in negligence for damages.  The assessment of damages was remitted back to the Supreme Court, which awarded Mr. Dhillon damages in the amount of $187,200 for sale proceeds, $5,000 for lost opportunity and general damages of $40,000. The Court of Appeal for British Columbia allowed Mr. Jaffer’s appeal and set aside the damages award with the exception of the award of $5,000.

35999 M.B. v. Ville de Montréal and Commission des lésions professionnelles  (Civil procedure – Quarrelsome litigant)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 1, 2014. The applicant introduced a proceeding to contest a decision of the Commission des lésions professionnelles.  He amended his pleadings to claim $90,000 in damages from the respondent city for impairment of his dignity, honour and reputation. The Superior Court dismissed the proceeding against the city in a preliminary order on the basis that it was prescribed.  It could be seen from the allegations that the proceeding was based on facts that had occurred more than one year before it was brought.  Article 2929 C.C.Q. provides that in such a case, an action for defamation is prescribed by one year from the day on which the defamed person learned of the defamation.  Judge Poirier also held that the applicant should be required to obtain prior judicial authorization before bringing any proceeding in the Superior Court or the Court of Québec, or in any court or administrative tribunal that is subject to the superintending and reforming power of the Superior Court. The Court of Appeal refused leave to appeal out of time.

35914  Aslan v. Harris & Partners Inc. in its capacity as Trustee in Bankruptcy of Ibrahim Aslan  (Bankruptcy and Insolvency)

On appeal from the judgment of the Court of Appeal for Ontario pronounced April 1, 2014. The applicant, Ms. Aslan is the former spouse of the bankrupt Ibrahim Aslan.  Ms. Aslan and the bankrupt were married in 1986.  They separated prior to the assignment of bankruptcy on May 21, 2010.  The bankrupt, Mr. Aslan was discharged February 22, 2011 and the parties were divorced July 19, 2011. The spouses jointly owned their matrimonial home.  There was a fire in the matrimonial home which resulted in substantial losses.  They jointly filed a “Fire Proof of Loss” for the replacement costs for the home’s contents.  The respondent, Trustee took over the bankrupt’s claim.  The contents claim settled for $384,500.00 net of legal fees and disbursements. The Trustee agreed to the release of $192,500.00, to Ms. Aslan, i.e. 50% of the settlement proceedings.  The Trustee then sought a declaration from the court that 50% of the settlement was the property of the bankrupt. The motion judge dismissed the Trustee’s claim.  The Court of Appeal set aside this order and allowed the Trustee’s claim for half of the net proceeds of the insurance claim for the contents of the matrimonial home. 

36054 O'Donnell v. The Queen, et al.  (Criminal law – Mental disorder)

On appeal from the judgment of the Court of Appeal for Ontario pronounced January 10, 2014. The applicant was found to be not criminally responsible by reason of mental disorder relating to a number of criminal charges.  He has been detained at the Oak Ridge Division of the Waypoint Centre for Mental Health Care since 2006.  On the 2013 annual review of his detention by the Ontario Review Board, his detention at Oak Ridge was confirmed on terms and conditions set out in the order.  He had argued that there was a treatment impasse, and that he should have been transferred to a less secure facility.  The Court of Appeal dismissed an appeal.

35986 Morin v. The Church of Jesus-Christ of Latter Day Saints in Canada, et al. (Civil procedure)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 5, 2014. On June 7, 2012, the applicant filed against the respondents, including his parents, a [translation] “motion to institute proceedings in damages for injuries resulting from the Mormon doctrinal teachings and rituals of the ‘baptism for the dead” in which he claimed more than $4.5 million.  He alleged that he had developed serious mental health problems after being subjected to various Mormon rituals in 1992, when he was 12 years old. The respondents contested the action by means of a motion to dismiss on the basis that it was prescribed and was clearly unfounded. The Quebec Superior Court granted the motion to dismiss.  The Court of Appeal dismissed the appeal in a preliminary proceeding on the basis that it was bound to fail.

36073 Harrison v. The Queen, et al. (Charter of Rights – Summary judgments)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced May 29, 2014. In 2006, the applicant’s employment was terminated and his civil action for damages for defamation and malfeasance was dismissed by the British Columbia Court of Appeal in 2010.  He brought a subsequent action against the respondents and their counsel in the previous action and sought to have the province’s submissions in that action amended or damages in lieuthereof, damages for the dismissal of his civil action, damages for the loss of his career and reputation, breach of s. 11(d) of the Charter and emotional distress.  The respondents brought a motion for summary judgment. The Court of Appeal dismissed the application for review and variation of the chambers judge’s order.

36006 Bohémier v. Barreau du Québec, et al.  (Civil liability – Immunity of professional orders)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 15, 2014. In 2005, the assistant syndic of the Barreau du Québec lodged two disciplinary complaints against the applicant with the Barreau’s Committee on Discipline (the Committee); each of the complaints involved a number of charges.  The assistant syndic alleged that between 2003 and 2005, the applicant had sent letters to various judges, lawyers and members of the provincial and federal governments that contained comments that were uncalled-for, hurtful, ill-timed, discourteous, undignified and immoderate.  The assistant syndic also filed a motion for a provisional order striking the applicant off the roll.  Two months later, the Committee – the members of which were the respondents Bélanger, Panet-Raymond and Sauriol – ordered that the applicant be provisionally struck off the roll.  A year later, the Professions Tribunal quashed the Committee’s decision, finding bias on the part of its members.  The tribunal ordered that the applicant be re-entered on the Roll of the Order of Advocates.  In 2013, the disciplinary complaints, which remained pending, were withdrawn and the file was closed. The applicant then brought a motion in the Superior Court to claim damages ($1,170,655) from, among others, the Barreau and the members of the Committee that had provisionally struck her off the roll.  The Superior Court dismissed the applicant’s action on the basis that she had failed to show that the members of the Committee had acted in bad faith, and that the latter were accordingly shielded from prosecution by s. 193 of theProfessional Code.  The Court of Appeal dismissed her appeal.

36119 Lebreux v. The Queen (Criminal law)

On appeal from the judgment of the Court of Appeal for Quebec pronounced August 5, 2014. On March 25, 2013, the applicant was found guilty of indecent assault, gross indecency, sexual assault and assault causing bodily harm.  The victims of the offences were the applicant’s minor nieces.  On April 9, 2014, the applicant applied to the Court of Appeal for an extension of the time to apply for leave to appeal the convictions.  The Court of Appeal dismissed his motion.  The Court of Appeal subsequently dismissed a second motion for an extension of time in which the applicant alleged new circumstances and raised grounds of appeal to the effect that the verdicts were unreasonable.

36113 Lemonnier v. The Queen (Charter – Criminal law – Sentencing – Evidence)

On appeal from the judgment of the Court of Appeal for Quebec pronounced August 7, 2014. The applicant pleaded guilty to a number of charges having regard to his spouse, namely criminal harassment, assault with a weapon, common assault and uttering death threats.  At the sentencing stage, he did not testify, and the prosecution adduced in evidence, without any objection from the defence, an out-of-court statement he had made to the police.  The judge used this evidence to find that the applicant had expressed no empathy for the victim or remorse for the physical abuse he had inflicted on her.  The judge sentenced him to concurrent terms of imprisonment of 12 months for criminal harassment, 22 months for assault with a weapon, 15 months for common assault and 12 months for uttering death threats.  On appeal, the applicant maintained, inter alia, that evidence of his out-of-court statement should not have been admitted without avoir dire.  The Court of Appeal rejected that argument.  The appeal was nevertheless allowed in part, but solely to reduce the sentences imposed for assault with a weapon and common assault.

36069 Logan v. The Queen (Income tax)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 20, 2014. The applicant is a professional engineer who was charged with six counts of failing to comply with six notices of requirement to file completed and signed tax returns for the years 2001 to 2006.  The notices of requirement were personally served on him.  In 2007, the Canada Revenue Agency (“CRA”) realized that he had not filed income tax returns for a number of years.  A CRA officer served the applicant with six separate notices of requirement advising him that pursuant to s. 231.2(1) of theAct, he was required to provide a completed return within 90 days of service.  The 90-day compliance period expired in November 2007.  The applicant filed six income tax returns that were unsigned and were essentially blank.  Eventually, between July and November 2008, his accountant filed amended returns with the CRA.  The applicant was convicted of six counts of failing to file tax returns.  The Supreme Court of British Columbia and the Court of Appeal dismissed his appeals.

35987 Leduc v. City of Montreal, et al.  (Judicial review)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 5, 2014. The applicant was hired as Clerk of the city of Montreal under a contract dated October 23, 2001 for a fixed term of five years.  When the contract expired, the city advised the applicant that her contract would be terminating. The applicant filed a complaint with the Commission des relations du travail (“Commission”) under s. 72 of the Cities and Towns Act, R.S.Q., c. C-19 (“C.T.A.”).  The city filed a motion to dismiss on the ground that the Commission lacked jurisdiction to hear the complaint, because the term of the applicant’s contract had quite simply expired.  She had not therefore been “dismiss[ed]” within the meaning of s. 71 C.T.A.; rather, her contract for a fixed term had terminated.  Commissioner Denis dismissed the applicant’s complaint on the basis that the termination of her employment was due to the expiration of the contract, since the decision not to renew her fixed-term contract could not on its own constitute dismissal from employment.  The Superior Court, on an application for judicial review, observed that the applicant had been unable to call witnesses even though she had asked the Commission for permission to do so, and that the rule of audi alteram partem had accordingly been violated.  The court quashed the Commission’s decision and remanded the case for a decision by another commissioner.  The Court of Appeal dismissed a motion for leave to appeal on the basis that the applicant should be allowed to adduce her evidence and that such evidence could help in deciding the merits of the case.  The Supreme Court dismissed an application for leave to appeal filed by the city of Montreal, and the case was accordingly remanded for a decision by another commissioner of the Commission des relations du travail.

36056 Savarin Limited, et al. v. Koury, et al.  (Civil procedure – Abuse of process)

On appeal from the judgment of the Court of Appeal for Ontario pronounced February 11, 2013. The respondent Robert Pogue deceased, of the accounting firm Pogue & Company (incorrectly called Pogue, Betsworth & Brown throughout the litigation), and Mr. Koury acted as the executors of Edward Assaf’s estate between 1971 and 1983.  Pogue & Company also provided accounting and auditing services for The Savarin and the Estate of Edward Assaf.  The claims brought against them by the Assaf estate, including allegations of conflict of interest, were settled separately and final releases were obtained.  The applicant corporation and William Assaf, son of Edward, continue to bring claims of alleged misconduct against the respondents and argue that the Releases were improperly executed on behalf of the estate. The applicants seek to file a motion for an extension of time to serve and file an application for leave to appeal one year after the Court of Appeal for Ontario decision quashing their appeal of a Superior Court of Justice decision.  That decision denied a request for adjournment and dismissed the applicants’ action against Pogue, Betsworth & Brown as being an abuse of process and statute barred.

36072 Muhammad 'Isa v. AG Canada on behalf of the United States of America (Charter – Criminal law – Extradition)

On appeal from the judgment of the Court of Appeal for Alberta pronounced August 11, 2014. In 2011, the U.S. requested the applicant’s extradition to stand trial on charges of conspiracy to murder Americans abroad and provision of material support to terrorist conduct.  The U.S. alleged he was a member of a terrorist facilitation network whose members recruited Jihadist fighters in Tunisia and transported them to Iraq to execute attacks against U.S. and coalition forces there.  It alleged this network was responsible for two suicide bombings in which both Iraqis and U.S. soldiers were killed.  The applicant was arrested in Edmonton.  The authority to proceed identified the Canadian offences of conspiracy to commit murder and facilitating terrorist activity as equivalent to the U.S. charges against the applicant.  The record of the case tendered by the U.S. included evidence obtained by intercepting communications between him and other fighters and facilitators within the network. On a voire dire, the Court of Queen’s Bench of Alberta allowed the Crown’s application to incorporate interview portions of Applicant by police into the committal hearing record of the case and issued a committal order. The Minister of Justice issued an order of surrender. The Court of Appeal of Alberta dismissed the applicant’s application for judicial review of the Minister’s surrender decision and dismissed the Applicant’s appeal from the committal order.

36080& 36125 Chemama v. The Queen  (Criminal law – Appointment of counsel)

On appeal from the judgment of the Court of Appeal for Ontario pronounced March 26, 2014. The Ontario Superior Court of Justice dismissed the applicant’s application for a stay of proceedings and entered convictions for unlawful entry, mischief, attempted obstruction of justice, obstruction of justice, criminal harassment; obstruct police officer; breach of probation and uttering death threats. The applicant wanted to have counsel appointed to represent him.  This motion was dismissed by the Court of Appeal.

36095  Milani v. The Queen  (Charter of Rights –Right to be tried within reasonable time)

On appeal from the judgment of the Court of Appeal for Ontario pronounced July 9, 2014. The applicant was charged with a number of offences and was discharged following a preliminary inquiry.  The applicant was charged with the same offences under a preferred indictment some 20 years later.  The applicant brought an application seeking a stay of proceedings under s. 24(2) of the Charter, alleging the infringement of his rights under s. 11(b) of the Charter.  The applicant’s application for a stay was granted.  The Court of Appeal allowed the Crown’s appeal.  The stay application was dismissed and the matter was remitted back to the trial judge for trial.

36077 Estate of the Late Eisig Rossdeutscher, et al. v. Organisation d'Éducation et d'Information Logement de Côte-des-Neiges (OEIL), et al.  (Civil procedure – Strategic lawsuit against public participation (SLAPP) – Whether Articles 54.1et seq. of Code of Civil Procedure)

On appeal from the judgment of the Court of Appeal for Quebec pronounced July 8, 2014. On November 9, 2012, the applicants filed a motion to institute proceedings in which they claimed more than $11 million from the respondents solidarily.  A month later, they amended their motion and reduced the amount of their claim to $5,560,400.  This amount was intended to compensate them for loss of income, harm to their reputation, dignity and honour, harassment and abuse of rights, and hardship and inconvenience.  They also claimed damages for moral injury and punitive damages.  Before filing a defence, the respondents filed a motion to dismiss the action under arts. 54.1 et seq. of the Code of Civil Procedure.  They argued that the action was clearly unfounded or that it amounted to a strategic lawsuit against public participation (“SLAPP”) and was therefore improper. The Superior Court granted the respondents’ motion.  According to Mainville J., even if the applicants’ proceeding was not clearly unfounded, it amounted to a SLAPP.  She held that, in the circumstances, the action should be dismissed under art. 54.3 C.C.P. and the respondents should retain their right to claim punitive damages and damages for moral injury.  The Court of Appeal refused to grant leave to appeal, finding that this is not a case in which leave should be granted (art. 26 C.C.P.).  In any event, the applicants had not shown that an appeal would have a reasonable chance of success.  The Court of Appeal found that the trial judge had followed its jurisprudence on this point, and that no palpable and overriding error had been demonstrated in her findings.

35860 Karimi v. The Queen  (Criminal Law – Charge to jury – Fresh Evidence)

On appeal from the judgments of the Court of Appeal for Ontario pronounced April 28, 2014. The Crown alleged that the applicant accused three employees of theft and obtained payments and written confessions from them, before and after their employment, by threatening to call the police, causing them to be deported to Iran, and using connections with the Iranian Revolutionary Guard Corps against them and their family members in Iran.  The applicant argued that he used legal tactics to recover stolen money or money that he reasonably believed had been stolen and the employees colluded to have him charged.  A defence witness testified that he audio-recorded a confession by one complainant that all three complainants had colluded to steal from the applicant.  On appeal, the applicant applied for an order compelling the complainant to provide a voice sample to a voice-comparison expert.  He was convicted by jury on two counts of extortion, one count attempted extortion and two counts criminal harassment, no verdict on two counts of possession of proceeds of crime and acquitted on count of criminal harassment and count of attempted extortion.  The Court of Appeal dismissed an appeal.

36065 Wilson v. Canada Revenue Agency  (Summary judgment)

On appeal from the judgment of the Court of Appeal for Ontario pronounced January 18, 2013. The applicant launched an action against Revenue Canada (now Canada Revenue Agency) in 1999 to recover income tax refunds he believed were owing to him and damages.  His action was dismissed in 2003, as were all subsequent appeals.  He commenced a second action in the Federal Court that was dismissed, as was his appeal.  He subsequently brought an action in the Tax Court but his action and appeal were dismissed.  The applicant then commenced an action in the Ontario Superior Court of Justice, concerning the same issues.  His statement of claim was struck, and he was declared a vexatious litigant.  The Court of Appeal dismissed an appeal.

35706 MacQueen, et al. v. A.G. Canada and betweenMacQueen, et al. v. Sydney Steel Corporation, a Body Corporate and A.G. Nova Scotia  (Civil procedure – Class actions)

On appeal from the judgment of the Nova Scotia Court of Appeal pronounced July 15, 2014. The applicants (“plaintiffs”) are landowners and residents of Sydney, Nova Scotia.  The steel works located in Sydney opened in 1903 and were privately owned until 1967.  At that time, Sydney Steel Corporation (“Sysco”) was created to operate the coke ovens.  It did so with the exception of the period from 1968 to 1974, when the coke ovens were operated by a federal Crown corporation, until they were permanently closed in 1998. Sysco also operated the steel works from 1967 until they closed in 2000.  The plaintiffs started their action in 2004 and alleged that airborne emissions from the operation of the steel works caused damage to themselves and their properties.  Their action was framed in battery, strict liability, nuisance, trespass, negligent operation of the steel works, regulatory negligence and breach of fiduciary duty.  The plaintiffs sought to be appointed as representative plaintiffs for class members described as owners of real property and residents who had lived for a minimum of seven years within a described class boundary near the steel works.  They applied for certification under the Class Proceedings Act, S.N.S. 2007, c. 28, which was granted by the Supreme Court of Nova Scotia.  The Court of Appeal allowed the respondents’ appeal, and decertified the action.  The applicants’ motion for reconsideration was not accepted for hearing.

36045  Gauchier et al. v. the Queen  (Criminal law — Aboriginal law — Hunting)

On appeal from the judgment of the Court of Appeal for Alberta pronounced June 6, 2014. The applicants were convicted of hunting in a wildlife sanctuary, contrary to s. 39 of the Wildlife Act, R.S.A. 2000, c. W-10 and fined $200 each.  The applicant, Mr. Gauchier is an Aboriginal person and permitted to hunt within 160 kms of the Peavine Métis Settlement.  The applicant, Mr. Legrande is also an Aboriginal person and is permitted to hunt on unoccupied Crown lands.  The hunters hit a decoy moose, set up by wildlife officers, on the Peace River Pulp Resource Road (also known as the DMI Road) that was part of a Road Corridor Wildlife Sanctuary. At trial, the applicants argued they did not realize they were not allowed to hunt in this area and asserted a mistake of fact defence.  The trial judge rejected that defence.  In the alternative, the trial judge found that even if the mistake could be characterized as a mistake of fact, the applicants’ mistake was not a reasonable one.  The Court of Queen’s Bench dismissed the appeals.  Leave to appeal this issue was granted.  The Court of Appeal dismissed the appeals.

36038 Fatunmbi v. The Queen  (Criminal Law – Cautions to Jury)

On appeal from the judgment of the Court of Appeal for Manitoba pronounced June 5, 2014.  The applicant was convicted by a jury on two counts of sexual assault of two employees.  One of the complainants was K.B.  Her accounts of what happened differed in some respects when she spoke to her friend after the assault, to the police, under oath at a preliminary inquiry, and when testifying at trial.  Defence counsel argued that the differences were material and requested a cautionary warning to the jury about relying on K.B.’s testimony.  Crown counsel agreed that the trial judge could advise the jury on the distinction between inconsistencies under oath and those not under oath, but argued that K.B.’s inconsistencies were immaterial and a cautionary warning would amount to an error of law in this case.  The trial judge did not respond to counsels’ arguments and did not give a cautionary warning beyond general instructions.  The Court of Appeal dismissed an appeal.

35956 Nwagwu v. The Queen  (Criminal Law )

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 27, 2014. Officers attended at a residential tower after a 911 caller reported an argument and gun shots. They arrested the applicant on the penthouse floor.  They discovered a firearm, prohibited due to its barrel length, on that floor.  They searched his apartment two floors down.  It was in disarray and bullets were lodged into furniture.  When police entered the apartment, they discovered and arrested a co-accused but he was discharged on all counts on a motion for a directed verdict.  At trial, the applicant testified that he regularly sold marijuana from his apartment.  He claimed that an unknown intruder came to his door to rob him of drugs and cash, and fired a gun twice inside the apartment before fleeing.  He claimed that he was chasing the intruder, who fired another shot at him, when he encountered the police. He was convicted on 15 counts related to possession, use and careless storage of a restricted handgun and obstructing and assaulting police officers.  The Court of Appeal dismissed an appeal.

36129 P.C. v. The Queen  (Charter of Rights – Right to retain counsel)

On appeal from the judgment of the Court of Appeal for Ontario pronounced August 12, 2014. The applicant brought an application seeking a declaration that s. 684(1) of theCriminal Code violates the applicant’s rights under the Charterand is of no force and effect.  The Court of Appeal dismissed the application and upheld the constitutionality of s. 684 of theCode.

36100 Stewart, et al. v. TD General Insurance Company  (Charter of Rights – Right to equality – Right to security of the person – Insurance)

On appeal from the judgment of the Court of Appeal for Ontario pronounced July 18, 2014. The applicants insured the contents of their residence with the respondent insurer.  Mr. Stewart has licences to possess and cultivate medical marijuana on his property.  On September 22, 2009 and again on June 21, 2010, a total of eleven marijuana plants were stolen from his backyard.  He made a claim under his policy and was paid $6,000 for the first theft and $5,000 for the second – one thousand dollars for each plant.  The applicants commenced two actions claiming compensation for the value of the plants, and damages of $360,000 for breach of contract, mental stress and physical pain, breach of fiduciary duty and infliction of mental and physical suffering.  TD General brought a motion under Rule 21 to determine a question of law raised by the pleadings.  The applicants moved for summary judgment on liability and to strike portions of the statement of defence that disputed liability.  The parties agreed that the motions judge should interpret the insurance contract.  The Superior Court of Justice granted the respondent’s Rule 21 motion and dismissed the applicants’ actions with costs to respondent on substantial indemnity basis.  The Court of Appeal dismissed an appeal.