36431 Erich Chemama v. Her Majesty the Queen

Criminal law — Appeals to Supreme Court of Canada

On appeal for the Court of Appeal of Québec. The applicant, Mr. Chemama, applied pursuant to s. 684 of the Criminal Code for Mr. Daniel Brodsky, a member of the Law Society of Upper Canada, to represent him in his various appeals to the Québec Court of Appeal. The Court of Appeal was willing to appoint Mr. Brodsky, but the latter would not accept the fee schedule agreed upon by the Barreau du Québec and the Minister of Justice. Therefore, the Court of Appeal dismissed the motion to have Mr. Brodsky appointed, and instead ordered that amicus curiae be appointed. Savard J.A. of the Court of Appeal granted Mr. Chemama’s subsequent motion to stay the appointment of amicus curiae but dismissed his motion for release from custody pending appeal to the Supreme Court. Later, Duval Hesler C.J.Q. dismissed Mr. Chemama’s motions for release pending determination of his leave application in the Supreme Court, for review by the Court of Appeal of Savard J.A.’s decision to the same effect, and for appointment of counsel.

36411   Peter Rowe v. Corporation of the Township of St. Joseph

Municipal law – Taxation – Property assessments

On appeal from the Court of Appeal for Ontario. In April, 2004, Mr. Rowe and the respondent Township entered into an offer to lease for restaurant space located at the Richards Landing Municipal Marina.  The marina lands were owned by the federal Crown and leased by the Township.   The offer provided that the tenant would be “responsible to pay any and all realty taxes and assessments applicable to the leased premises”.  At the time, the Marina had not yet been assessed for municipal realty taxes.   In June, 2004, Mr. Rowe’s lawyer advised him by letter that: “You should determine in advance what those realty taxes are so you can determine whether you can afford to lease the premises”.  Rowe did not do so.  The formal sublease signed on May 19, 2005 provided that the subtenant would be “responsible to pay all realty taxes and assessments applicable to the subject property”.  The Municipal Property Assessment Corporation did not provide the Township with a property assessment notice until November, 2007. The following month, the Township sent Mr. Rowe tax notices for the years 2005, 2006 and 2007 in the principal amount of $11,345.68.  Mr. Rowe did not pay the Township any amount for realty taxes. The Township gave Mr. Rowe notice that unless he paid the arrears due under the sublease, including the realty tax arrears, the subtenancy would be terminated and the Township would sue for the arrears.  Mr. Rowe vacated the leased premises in September, 2008 without paying the arrears.  The Superior Court granted judgment for the Township in the amount of $35,176.41 and dismissed Mr. Rowe’s claims and counterclaims. The Court of Appeal dismissed Mr. Rowe’s appeal.

36395   John H. Ho v. Alberta Association of Architects

Administrative law — Appeals — Alberta Association of Architects

On appeal from the Court of Appeal of Alberta. Mr. Ho, an architect in British Columbia, acknowledged that he prepared plans, drawings and specifications for a Buddhist temple in Edmonton under the terms of a contract dated March 1, 2004, between Mr. Ho and the temple. Those activities are clearly included in the practice of architecture within the meaning of s. 1(1) of the Architects Act of Alberta, R.S.A. 2000, c. A-44. Mr. Ho was not registered with the Association until June 20, 2011. The membership of the Alberta architect listed as a field review architect for the project ceased to be a member in November 2005, and it was later found that he had passed away. Mr. Ho failed to complete the contract and his actions impeded the temple’s ability to engage the services of a different registered architect to complete the work after relations between Mr. Ho and the temple soured. The temple Master complained to the Association about Mr. Ho’s conduct. Mr. Ho later indicated that he would not be renewing his annual membership when it expired. The complaint was investigated by the Chair of the Complaint Review Committee, who referred the complaint to a hearing Committee. He rephrased the complaint into three distinct counts. The Committee heard the complaint on January 16, 2013, and, by operation of s. 24 of the Act, Mr. Ho’s application to de-register became effective when it was approved by Council on January 18, 2013. The Committee found that the Association had established two of the three counts of unprofessional conduct, and ordered Mr. Ho to pay $10,000 penalty for each count, plus costs. It also ordered Mr. Ho to take a course, and a summary of the case was to be published. The Council dismissed Mr. Ho’s appeal, confirmed the Committee’s findings of unprofessional conduct and the sanctions imposed, plus costs. The Court of Appeal dismissed Mr. Ho’s appeal.

36398   Canadian National Railway Company v. Corporation of the City of Kitchener, et al.

Civil procedure – Motion to dismiss action for delay

On appeal from the Court of Appeal for Ontario. In 1989, the applicant (“CN”) commenced an action alleging that from 1924 to 1958 coal tar was dumped on land now owned by the respondent Hogg Fuel & Supply Limited (“Hogg Fuel”), some of which migrated onto CN’s lands. The CN and the respondents embarked on a cooperative process of exploring remediation options and jointly retaining experts. In November 1994, CN demanded statements of defence, which were filed by the City and Hogg Fuel in 1996 and 1997 respectively. The parties continued to cooperate, however by 2001 a new case management master required adherence to a tighter schedule to complete discoveries and proceed to trial. Despite this, there were further postponements and delays. CN set the matter down for trial on December 16, 2011, while advising the Court of the steps not yet complete.

The respondents brought a motion to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure, RRO 1990, Reg. 194. Ultimately, steps that had been undertaken by CN to be completed by February 2005, were not delivered until just before the motion to dismiss for delay. The Ontario Superior Court of Justice granted the respondents’ motion, holding that while the first 14 years of delay were excusable, the delay between the years 2003 and 2014 was inordinate and inexcusable, creating a substantial risk that there could not be a fair trial of the issues. While the court did not make a finding of actual prejudice to the respondents, it held that the “presumption or inference of prejudice is very strong in this case”, being 25 years old, and  had not been rebutted by CN. The Court of Appeal for Ontario dismissed the appeal.

36115    Romandale Farms Limited, et al. v. First Elgin Mills Developments Inc.

Sale of land — Agreement of purchase and sale — Interpretation

On appeal from the Court of Appeal for Ontario. The respondent, First Elgin Mills Developments Inc., purchased development land from the applicants for approximately $12.5 million, secured by an interest-free vendor take-back mortgage payable over seven years.  The agreement of purchase and sale contained a price adjustment clause by which the purchase price could be reduced if the amount of developable land was less than expected.  First Elgin applied for a declaration that, as a result of the operation of the price adjustment clause, nothing was owed on account of the purchase price.  First Elgin also sought a consequential order discharging the mortgage.

The applicants cross-applied for a declaration that the price adjustment clause would not operate to reduce the purchase price because it had expired and, as a result, First Elgin was obliged to pay the remaining balance of about $1.4 million to the applicants.

The application judge dismissed First Elgin’s application and allowed the applicants’ cross-application. The Court of Appeal allowed First Elgin’s appeal and allowed the purchase price reduction in the contract.  A re-hearing request at the Court of Appeal was dismissed.