APPEAL ALLOWED

R. v. Javanmardi, 2019 SCC 54

Criminal law — Unlawful act manslaughter — Criminal negligence causing death

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords
38590 Her Majesty the Queen v. Sam Tsega ON Criminal law — Evidence — Hearsay
38579 Ark Angel Foundation v. Minister of National Revenue FC Taxation — Income tax — Registration as charitable foundation
38704 Feng Yun Shao, also known Shao Feng Yun, also known as Amy Barsha Washington v. Mei Zhen Wang BC Contracts — Formation — Contract of sale and purchase of residential property
38697 Mary Ann Parker and Stephen Colville-Reeves, in their capacity as Estate Trustees of the Estate of David Colville-Reeves v. Canadian Home Publishers Inc., in its capacity as the General Partner of Canadian Home Publishers ON Commercial law — Partnerships
38752 Malgorzata Szpyrka v. Her Majesty the Queen ON Criminal law — Preliminary inquiry
38710 Canada’s National Firearms Association and Philippe Simard v. Attorney General of Quebec and Attorney General of Canada QC Constitutional law — Division of powers
38716 Université du Québec à Montréal v. Ville de Montréal QC Municipal law — Taxation — Tax exemption
38775 J.T. v. Her Majesty the Queen BC Criminal law — Evidence — Assessment
38768 Brigitte Gratl v. Her Majesty the Queen FC Taxation — Appeal of income tax assessments
38738 Peoples Trust Company, Peoples Card Services Limited Partnership, Peoples Card Services Ltd., Vancouver City Savings Credit Union, Citizens Bank of Canada and All Trans Financial Services Credit Union Ltd. v. Ying Jiang BC Civil procedure — Class actions — Preferable procedure
37831 Justin Milette v. Her Majesty the Queen QC Criminal law — Offences — Distribution of child pornography
38679 Guilian Li also known as Gui Lian Li v. Tong Wei BC Private international law — Foreign judgments
38729 Robert Mitchell v. Ville de Lévis, Attorney General of Quebec and Attorney General of Canada QC Appeals — Evidence — Bad faith — Collusion
38740 Milagros Jacinto Queano v. Maria Angeles Robledano BC Wills and estates — Intestacy — Common law spouses
38698 Doug C. Thompson Ltd. operating as Thompson Fuels v. Wayne Allan Gendron and Technical Standards and Safety Authority ON Torts — Negligence — Duty of care — Breach of Regulation
38761 Birchcliff Energy Ltd. v. Her Majesty the Queen FC Taxation — Income tax — Assessment
38746 Catalyst Capital Group Inc. v. VimpelCom Ltd., Globalive Capital Inc., UBS Securities Canada Inc., Tennenbaum Capital Partners LLC, 64NM Holdings GP LLC, 64NM Holdings LP, LG Capital Investors LLC, Serruya Private Equity Inc., Novus Wireless Communications Inc. and West Face Capital Inc. ON Civil procedure — Abuse of process — Estoppel
  APPEAL ALLOWED

R. v. Javanmardi, 2019 SCC 54

Criminal law — Unlawful act manslaughter — Criminal negligence causing death

On appeal from a judgment of the Quebec Court of Appeal (2018 QCCA 856), substituting the acquittal for unlawful act manslaughter entered by Villemure Prov. Ct. J., C.Q., No. 500‑01‑013474‑082.

On June 12, 2008, M and his wife visited the accused’s naturopathic clinic. M was 84 years old, had heart disease and was frustrated with the treatment he had received at conventional medical clinics. After an hour‑long consultation, the accused recommended intravenously administered nutrients. M reacted negatively to the injection and he died of endotoxic shock some hours later. The accused was charged with criminal negligence causing death and unlawful act manslaughter. The trial judge acquitted the accused of both charges but the Court of Appeal set aside both acquittals, substituted a conviction on the charge of unlawful act manslaughter, and ordered a new trial on the criminal negligence charge.

Held (Wagner C.J. and Rowe J. dissenting): The appeal should be allowed and the acquittals restored.

Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ. :

The Court of Appeal erred in holding that an intravenous injection is objectively dangerous regardless of the circumstances in which it is administered or the training, qualifications and experience of the person who administers it. The Court of Appeal also erred in disturbing the accused’s acquittals based on its conclusion that her conduct markedly departed from that of a reasonable person. These conclusions cannot be squared with the trial judge’s findings of fact which the Court of Appeal replaced with its own.

The actus reus of criminal negligence causing death requires that the accused undertook an act — or omitted to do anything that it was his or her legal duty to do — and that the act or omission caused someone’s death. The fault element is that the accused’s act or omission shows wanton or reckless disregard for the lives or safety of other persons. As with other negligence‑based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For some negligence‑based offences, such as dangerous driving, a “marked” departure satisfies the fault element. In the context of criminal negligence causing death, however, the requisite degree of departure is as an elevated one — marked and substantial.

The actus reus of unlawful act manslaughter under s. 222(5) (a) of the Criminal Code  requires the Crown to prove that the accused committed an unlawful act and that the unlawful act caused death. The underlying unlawful act is described as the “predicate” offence. Where the predicate offence is one of strict liability, the fault element for that offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances. The Crown is not required to prove that the predicate offence was objectively dangerous. An objective dangerousness requirement adds nothing to the analysis that is not captured within the fault element of unlawful act manslaughter. An unlawful act, accompanied by objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, is an objectively dangerous act. As a result, the actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death. There is no independent requirement of objective dangerousness.

The fault element of both offences require that an accused’s conduct be measured against the standard of a reasonable person in their circumstances. An activity‑sensitive approach to the modified objective standard should be applied. While the standard is not determined by the accused’s personal characteristics, it is informed by the activity. Evidence of training and experience may be used to rebut an allegation of being unqualified to engage in an activity or to show how a reasonable person in the circumstances of the accused would have performed the activity.

In measuring the accused’s conduct against this standard in the instant case, the trial judge was obliged to consider the accused’s prior training, experience and qualifications as a naturopath. The trial judge found that the accused was properly qualified to administer intravenous injections and took the necessary precautions at every stage of administering the intravenous injection, including observing sufficient protocols to prevent sepsis. All of the trial judge’s factual findings, which were based on the evidence, amply support the conclusion that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances.

Per Wagner C.J. and Rowe J. (dissenting):

The appeal should be allowed in part: the conviction for unlawful act manslaughter should be set aside and a new trial ordered on this charge. Entering a conviction on an appeal from an acquittal is an exceptional measure, and the error of law at issue here is also a rare occurrence. A conviction for manslaughter was not so inevitable as to justify the measure ordered by the Court of Appeal.

The offence of unlawful act manslaughter requires proof of an underlying unlawful act. The actus reus of the offence has three elements: (1) an underlying unlawful act; (2) the objective dangerousness of that act; and (3) a causal connection between the act and the death. Unlawful act manslaughter also has two cumulative fault elements: the mens rea of the underlying act and the mens rea specific to manslaughter.

The second element of the actus reus, the objective dangerousness of the unlawful act, is assessed without reference to the accused’s personal characteristics. It will be proved if the court is satisfied that the accused did something that a reasonable person would have known was likely to subject another person to a risk of bodily harm. In considering the actus reus, the court is not to assess the extent to which the accused’s conduct departed from this standard of care or the accused’s state of mind. This evidentiary threshold reflects the fact that, at this stage of the analysis, the court is considering whether the accused committed the physical element of the offence, not whether the accused had the state of mind required for a conviction.

Injecting a substance across physiological barriers is an inherently dangerous activity. The accused’s experience does not alter this. The dangerousness of the act would have been established even if it had been performed by a health professional who was authorized to do so. By refusing to find that the unlawful injection was objectively dangerous, the trial court failed to arrive at the legal conclusion that was necessary in light of the facts as found. This was an error of law whose impact is such that it requires a new trial.

Citation: R. v. Javanmardi, 2019 SCC 54

SCC File No.: 38818

Joint Reasons for Judgment: Abella J. (Moldaver, Karakatsanis, Côté and Brown JJ. concurring)

Dissenting Reasons: Wagner C.J. (Rowe J. concurring)

https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18015/index.do

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38590

Her Majesty the Queen v. Sam Tsega

(Ont.)

Criminal law — Evidence — Hearsay

Three men invaded a marihuana dealer’s home. They shot and killed the dealer. They stole drugs, money, cell phones and other items. After they were arrested and a subsequent police investigation, two of the home invaders gave statements to the police implicating Mr. Tsega in planning the home invasion and preparing. He was charged with second degree murder. The co‑accused refused to testify at his trial. The trial judge admitted the police statements for the truth of their contents, before R. v. Bradshaw, 2017 SCC 35, was released. Mr. Tsega was convicted for manslaughter. The Court of Appeal applied Bradshaw and held the police statements were not admissible. It allowed an appeal and ordered a new trial.

38579

Ark Angel Foundation v. Minister of National Revenue

(F.C.)

Taxation — Income tax — Registration as charitable foundation

The Ark Angel Foundation was incorporated in 1998 under the Canada Corporations Act, R.S.C. 1985, c. C‑32. It was registered as a charitable foundation in the same year. Having conducted an audit of the Foundation for the period from December 1, 2008, to November 30, 2010, the CRA’s Audit Division sent the Foundation an “administrative fairness letter”, which described the areas of non‑compliance identified in the audit (failure to maintain adequate books and failure to devote all of the Foundation’s resources to charitable activities) and provided the Foundation with a chance to respond. The CRA indicated that the books did not provide sufficient information to allow the Minister to determine whether there were grounds for revoking the charity’s registration and, in particular, whether certain payments to one of the Foundation’s board members were made for charitable purposes. When it had reviewed the Foundation’s response, a Revocation Proposal was issued. It reiterated the concerns and explained the requirements imposed on charitable foundations by the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). The Foundation filed a notice of objection which outlined its concerns with the process. The Appeals Directorate reiterated the original concerns, confirmed the Revocation Proposal, and allowed further representations from the Foundation. The Foundation’s representations alleged further deficiencies in the Appeals Directorate’s letter and made no meaningful response to the substantive concerns. The Revocation Proposal was confirmed by letter on the basis that the Foundation had not addressed the areas of non‑compliance addressed by the Appeals Directorate.

The Foundation appealed directly to the Federal Court of Appeal under the Income Tax Act, s. 173(1)(a.1). The Court of Appeal dismissed the appeal.

38704

Feng Yun Shao, also known Shao Feng Yun, also known as Amy Barsha Washington v. Mei Zhen Wang

(B.C.)

Contracts — Formation

This case concerns the collapsed sale of a luxury home in Vancouver. The central issue concerns the response that that vendor, Ms. Wang, gave to the intended buyer, Ms. Shao, when the latter inquired about why the vendor wanted to sell the property. Ms. Shao was told that the reason for selling was that the vendor’s grand‑daughter had moved to a school in a different part of the city. The vendor and buyer entered into a contract of sale and purchase. Before the closing date, the buyer learned that an alleged gangster had been shot fatally near the front entrance of the property. The death was an unsolved murder and the victim was the vendor’s son‑in‑law, who had resided at the property. The buyer decided not to complete the transaction. The vendor initiated a civil claim against the buyer for breach of contract. The buyer counterclaimed, asserting that the vendor had fraudulently misrepresented the state of the property and the prior incidents on the property. The trial judge held that the vendor had made a fraudulent representation that vitiated the contract of purchase and sale. The Court of Appeal overturned the trial judge, finding he had erred in characterizing the vendor’s representation about the reason for selling as incomplete and designed to conceal the place and manner of her son‑in‑law’s death.

38697

Mary Ann Parker and Stephen Colville-Reeves, in their capacity as Estate Trustees of the Estate of David Colville-Reeves v. Canadian Home Publishers Inc., in its capacity as the General Partner of Canadian Home Publishers

(Ont.)

Commercial law — Partnerships

Canadian Home Publishers (“CHP”), a limited partnership, was formed having Canadian Home Publishers Inc. (“CHPI”), as its general partner and David Colville‑Reeves as its sole limited partner. CHPI was wholly‑owned by Lynda Reeves who married David in 1985. CHP was formed to acquire the business of Canadian House and Home magazine. Lynda ran the business as its publisher. David and Lynda verbally agreed that CHPI and David would each be entitled to 50% of the profits of the business. This profit sharing arrangement continued to the date of David’s death and afterward. In the early years of Lynda’s management of the business, David provided capital contributions to CHP totaling approximately $1.8 million. In 1991, David and Lynda divorced. David died on October 25, 2012. The parties had made no arrangements regarding what would happen to the business interests in the event of David’s death. There was no agreement that the estate or any beneficiary would become a substituted limited partner in CHP. The parties brought an application to determine, the effect of David’s death on the limited partnership and entitlement of the parties to the assets of the limited partnership upon dissolution, on the basis of the Limited Partnerships ActR.S.O. 1990, c. L.26 and the Partnerships Act, R.S.O. 1990, c. P.5.  The application judge determined that CHP was dissolved on David’s death. Any residual assets of CHP were to be distributed equally between Lynda and the Estate. The Court of Appeal confirmed that CHP was dissolved on David’s death but held that the Estate had no interest in the residual assets of CHP.

38752

Malgorzata Szpyrka v. Her Majesty the Queen

(Ont.)

Criminal law — Preliminary inquiry — Applicant committed for trial

After a lengthy investigation, the Ontario Provincial Police executed a search warrant at a warehouse building. Inside, the police located numerous marihuana plants and pounds of dried marihuana. The applicant and others were arrested inside the building. The applicant was committed for trial for charges of possession of marihuana for the purpose of trafficking and production of marihuana. The application for certiorari to quash the committal for trial was dismissed. The appeal was dismissed.

38710

Canada’s National Firearms Association and Philippe Simard v. Attorney General of Quebec and Attorney General of Canada

(Que.)

Constitutional law — Division of powers — Provincial firearms registration records

Following the enactment of the Firearms Registration Act, S.Q. 2016, c. 15, by the National Assembly in June 2016, the applicants, Canada’s National Firearms Association and Philippe Simard, applied to the Quebec Superior Court for a declaratory judgment and an injunction in order to challenge the constitutional validity of that Act based on the division of legislative powers established by the Constitution Act, 1867 . The National Assembly passed that Act as a result of the enactment by the Parliament of Canada in 2012 of the Ending the Long‑gun Registry Act, S.C. 2012, c. 6, which removed the requirement to register long guns and decriminalized the possession of an unregistered long gun. At the time, the federal authorities had refused to provide the Quebec government, as it had requested, with the registry data pertaining to the province of Quebec. The Quebec government had therefore brought court proceedings to obtain the data. In Quebec (Attorney General) v. Canada (Attorney General), [2015] 1 S.C.R. 693, the Supreme Court recognized the power of Parliament to dismantle the registry and destroy the data it contained. The application for a declaratory judgment and an injunction was dismissed by the Superior Court, and the appeal was dismissed by the Court of Appeal.

38716

Université du Québec à Montréal v. Ville de Montréal

(Que.)

Municipal law — Taxation — Tax exemption

The applicant, Université du Québec à Montréal, owns an immovable at 141 Avenue du Président‑Kennedy in Montréal. During the 2009 to 2011 taxation years, a company called Heavy2light Oil Technologies occupied space in the applicant’s immovable. Heavy2light, whose activities were not related to education, vacated the premises without giving notice and without having paid the property taxes, which amounted to $30,720.72 for the three taxation years. That company’s registration in the enterprise register has since been cancelled. In March 2014, the respondent, Ville de Montréal (“City”), filed a motion to institute proceedings seeking payment of the property taxes from the applicant and Heavy2light. The Municipal Court of Montréal dismissed the City’s motion to institute proceedings against the applicant but allowed the City’s motion to institute proceedings against Heavy2light, which was ordered to pay the arrears of property taxes being claimed. The Court of Appeal allowed the appeal.

38775

J.T. v. Her Majesty the Queen

(B.C.)

Criminal law — Evidence — Assessment — Credibility

J.T. was convicted of 10 counts of assault in relation to his wife and two of their three children. He appealed his convictions on the grounds that the trial judge erred (1) in her assessment of credibility, and (2) in failing to draw an adverse inference against his wife for destroying certain relevant evidence. The Court of Appeal dismissed the appeal. It declined to interfere with the trial judge’s credibility assessments and found that the trial judge had not engaged in any impermissible reasoning. The court further rejected the argument that the trial judge had shifted the burden of proof or had provided inadequate reasons with respect to her credibility assessments. As for the destroyed evidence, the court noted that its destruction had been inadvertent and that the trial judge’s discretionary decision in that regard was owed deference.

38768

Brigitte Gratl v. Her Majesty the Queen

(F.C.)

 

Taxation — Appeal of income tax assessments

 

In March 2009, the Minister of National Revenue reassessed the applicant’s 2003 and 2004 taxation years under the Income Tax Act, R.S.C. 1985, c. 1. The applicant’s accountant filed notices of objection to the March 2009 notices of reassessment. The Minister mailed a notice of confirmation to the applicant. The applicant filed applications for an extension of time to appeal the March 2009 notices of reassessment pursuant to s. 167 of the Act. The Tax Court judge dismissed the applications for an extension of time. The Federal Court of Appeal dismissed the appeal.

 

38738

Peoples Trust Company, Peoples Card Services Limited Partnership, Peoples Card Services Ltd., Vancouver City Savings Credit Union, Citizens Bank of Canada and All Trans Financial Services Credit Union Ltd. v. Ying Jiang

(B.C.)

Civil procedure — Class actions — Preferable procedure

Ms. Jiang bought a card issued by Citizens Bank and branded with a VISA logo from a retailer in Burnaby, B.C., for personal purposes. It had a face value of $25, but, as there was a $3.95 activation fee, she paid $28.95 for the card. The card was “good through 11/96”, had a monthly fee of $2.50 after that date, and was non‑refundable. She filed an action under Part 4 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, against the applicant financial institutions. The cards look and function like a credit card, are branded as VISA, American Express or MasterCard, and may be used for various purposes. She sought declarations; an accounting, restitution and restoration of fees; damages; and an injunction. She applied to have the action certified under the Class Proceeding Act, R.S.B.C. 1996, c. 50, with herself as representative plaintiff. The application to certify the action as a class proceeding was dismissed due to the inability to objectively identify the class members. The Court of Appeal allowed the appeal and remitted the application to the lower court for determination of the remaining issues. The action was certified as a class proceeding, Ms. Jiang was appointed representative plaintiff for the resident and non‑resident classes, and five common issues were certified. The Court of Appeal dismissed three further appeals.

37831

Justin Milette v. Her Majesty the Queen

(Que.)

 
   

Criminal law — Offences — Distribution of child pornography 

 

In 2015, Justin Milette was convicted of distributing child pornography and fraudulently personating another person. Mr. Milette appealed the double conviction to the Superior Court. The respondent moved to dismiss the appeal and to have Mr. Milette declared to be a quarrelsome litigant. The Superior Court allowed the respondent’s motions.

 

38679

Guilian Li also known as Gui Lian Li v. Tong Wei

(B.C.)

Private international law — Foreign judgments — Enforcement 

Guilian Li (also known as Gui Lian Li) and her husband Zijie Mei (also known as Zi Jie Mei) live in British Columbia and had business operations in China under a company they owned, Fenghui Ltd. In 2010 and 2012, Tong Wei loaned money to Fenghui Ltd. The 2012 loan was guaranteed by Ms. Li. The company defaulted on its loan payments and the guarantees were not fully honoured. Legal proceedings were initiated in China and a mediated settlement was reached. The settlement stipulated a lump sum payment covering the principle of the loans, interest and expenses for collection. As part of the settlement, it was agreed that any remaining unpaid balance was subject to default interest calculated at a rate of 0.2% of the unpaid balance per day (73% annualized). Two Chinese judgments confirmed the settlement agreement. The loans were not repaid on the date agreed in the settlement. Mr. Wei initiated enforcement proceedings in China and obtained a notice of enforcement against Fenghui Ltd, Ms. Li and Mr. Mei. Enforcement proceedings were then commenced in British Columbia against Mr. Mei and Ms. Li. In two separate decisions, a judge of the Supreme Court of British Columbia gave judgment enforcing the Chinese judgment, with a penalty interest rate of 60% rather than the 73% ordered by the Chinese court. On appeal to the Court of Appeal for British Columbia, a majority agreed with the trial judge’s conclusions that 60% interest was appropriate. Justice Willcock, in dissent, concluded that modifying the penalty interest impermissibly looked at the merits of the contract between the parties and interfered with a foreign judgment.

38729

Robert Mitchell v. Ville de Lévis, Attorney General of Quebec and Attorney General of Canada

(Que.)

Appeals — Evidence — Bad faith — Collusion

The applicant, Mr. Mitchell, sued the three respondents in response to various actions taken against him by the government and the public authorities since 2005. In answer, the respondents applied for the dismissal of Mr. Mitchell’s application. The Superior Court held that Mr. Mitchell’s application was unfounded and dismissed the action. The Court of Appeal unanimously dismissed the motion for leave to appeal out of time. It held that the criteria for appealing conclusions reached at trial were not met.

38740

Milagros Jacinto Queano v. Maria Angeles Robledano

(B.C.)

Wills and estates — Intestacy — Common law spouses

Barbara Jacinto died unexpectedly on April 14, 2014. She had executed a will that designated the respondent, Ms. Robledano, as her sole beneficiary. The original will was never found after her death and by application of the presumption of revocation, Ms. Jacinto was declared to have died intestate. In court proceedings, Ms. Robledano maintained that she was the sole beneficiary of the estate on the ground that she was in a marriage‑like relationship with Ms. Jacinto under s. 20 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). The applicant, Ms. Queano, one of Ms. Jacinto’s sisters, contended that while Ms. Robledano had at one time been in a marriage-like relationship with Ms. Jacinto, their relationship had ceased to be marriage‑like by the time Ms. Jacinto died. Ms. Queano argued that Ms. Robledano was not a spouse under the WESA and that the estate should be split among Ms. Jacinto’s six sisters and one brother. The trial judge held that Ms. Robledano was the surviving spouse under the Act and therefore entitled to the estate. This decision was upheld on appeal.

38698

Doug C. Thompson Ltd. operating as Thompson Fuels v. Wayne Allan Gendron and Technical Standards and Safety Authority

(Ont.)

Torts — Negligence — Duty of care — Breach of Regulation

On December 18, 2008, the applicant, Thompson Fuels delivered 700 litres of oil to the respondent Wayne Allan Gendron. Almost immediately after the delivery, the oil leaked from one of the two tanks that Mr. Gendron had installed himself. The leak was discovered by Mr. Gendron approximately one hour after the oil was delivered. He collected approximately 100 litres of fuel oil in Tupperware containers while some of it remained and soaked into the soil. The rest of the oil found its way to a lake nearby through a drainage system located under Mr. Gendron’s home and then through the city’s culvert. The Ministry of Environment (MOE) Spill Action Centre, informed of the leak, sent a report to the Technical Standards and Safety Authority responsible for the provincial regulation of fuel oil distribution. On December 22, 2008, a fuel safety inspector reviewed the report and did a visual inspection of Mr. Gendron’s property. On December 24, 2008, the inspector ordered Mr. Gendron to obtain a professional assessment on the full extent of the spill’s impacts to both soil and groundwater. On December 29, 2008, Mr. Gendron reported the matter to his insurer who retained an independent adjuster and remediation contractor. When informed by the contractor that the oil entered the lake nearby, the MOE ordered Mr. Gendron to undertake remediation. The on‑site remediation, which included the demolition of the house, was carried out until July 2009. The cost of the off‑site remediation ultimately reached close to $2 million. Mr. Gendron was eventually ordered to compensate the City of Kawartha Lake which had to complete remediation when Mr. Gendron’s off‑site insurance coverage was exhausted. On July 15, 2009 Mr. Gendron filed proceedings against Thompson Fuels and two more defendants for negligence. The Ontario Superior Court of Justice granted the action against Thompson Fuels. The Court of Appeal dismissed the appeals filed by Thompson Fuels and Mr. Gendron with the exception of granting a reduction in the damages equal to the amount paid in relation to Mr. Gendron line of credit.

38761

Birchcliff Energy Ltd. v. Her Majesty the Queen

(F.C.)

Taxation — Income tax — Assessment

In 2002, Veracel Inc. filed bankruptcy proceedings and ceased to carry on its medical equipment business. At the end of 2004, Veracel had a variety of tax attributes, including $16.2 million in non-capital losses. Later in 2005, Veracel and the applicant taxpayer, Birchcliff Energy Ltd. amalgamated and continued to use the name Birchcliff. There were many steps leading to their amalgamation including steps to obtain additional capital and resulting in the creation of Class B shares of Veracel before the amalgamation. As a result, in filing its 2006 tax return Birchcliff claimed these non‑capital losses. The respondent, Minister of National Revenue reassessed to deny the use of those non‑capital losses. The Tax Court agreed and dismissed the appeal from the reassessment finding the GAAR applied in this case. The Federal Court of Appeal also agreed and dismissed the appeal.

38746

Catalyst Capital Group Inc. v. VimpelCom Ltd., Globalive Capital Inc., UBS Securities Canada Inc., Tennenbaum Capital Partners LLC, 64NM Holdings GP LLC, 64NM Holdings LP, LG Capital Investors LLC, Serruya Private Equity Inc., Novus Wireless Communications Inc. and West Face Capital Inc.

(Ont.)

Civil procedure — Abuse of process — Estoppel

This case arises out of the failed attempt by the applicant, Catalyst Capital Group Inc., to purchase Wind Mobile from the respondent VimpelCom Ltd. VimpelCom’s interest in Wind Mobile was ultimately purchased by a consortium of purchasers (made up of most of the other respondents). Catalyst sued the respondents, alleging they committed the torts of inducing breach of contract, conspiracy, and breach of confidence which prevented it from acquiring Wind Mobile. It also alleged that VimpelCom breached its exclusivity agreement and confidentiality agreement. Catalyst’s claim was introduced five days before the commencement of the trial in another action it had initiated relating to its failed attempt at purchasing Wind Mobile. The Superior Court of Justice dismissed that action and the Court of Appeal upheld that dismissal. The defendants to the current action moved to dismiss Catalyst’s statement of claim on the basis of issue estoppel, cause of action estoppel, and abuse of process. The motions judge allowed the respondents’ motion. He dismissed the claim against all the defendants as an abuse of process and the claim against most of the defendants on the basis of issue estoppel and cause of action estoppel. The Court of Appeal dismissed Catalyst’s appeal.