APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Her Majesty the Queen v. Steven Lee Nelson (Sask.)
Criminal law – Offence – Elements of Offence
The respondent, Constable Nelson, of the Saskatoon Police Service, investigated an alleged domestic assault at the residence of Ms. Johnson. The respondent observed her to be injured and bleeding. After obtaining a verbal account from her, the respondent obtained a written statement in which she says she was struck by Mr. Campeau. The next day, Ms. Johnson called the respondent and told him that she had lied about the assault and that she was going to recant her statement. The respondent told her that she would have to speak to the Crown. Ms. Johnson went to the Police Service and spoke with Cst. Melynchuk. Ms. Johnson wrote a new statement recanting the statement that she had given the day before. There was a telephone conversation between Cst. Melynchuk and the respondent. Cst. Melynchuk’s evidence was that he had no intention of destroying this statement. He said that he agreed with the respondent to rip up the statement only to end the telephone conversation. Cst. Melynchuk said he kept the statement until the respondent returned to the Police Service later that evening and then personally handed it to him. No one has seen this statement since that night. Neither Cst. Melynchuk nor the respondent made any note concerning the receipt of this second statement or their contact with Ms. Johnson on August 13, 2012, nor were there any reports filed by either officer. The respondent testified that he did not have any memory of the incidents that night. The respondent agreed in cross-examination that he updated the file on August 20, 2012, after Curtis Campeau was arrested and released, but he did not mention Ms. Johnson’s recanting statement at that time. The respondent in his testimony agreed that the failure to take notes or provide a report in relation to the recanting statement of Ms. Johnson was bad police work but he maintained that he did not attempt to intentionally or wilfully influence the Campeau trial or destroy the statement. The respondent testified that he did not know what became of the statement although he agreed that he may have thrown it away in frustration. The respondent was convicted of obstructing justice. The Court of Appeal allowed the appeal and ordered a new trial.
Emmanuel Cuenco Gonzalez v. Ellen D’Atri Gonzalez(B.C.)
Civil Procedure – Abuse of Process – Issue Estoppel
The parties divorced after ten years of marriage and their three children live with the respondent. When the applicant stopped making his monthly support payments under the separation agreement, the respondent commenced proceedings under the Family Law Act. The applicant sought cancellation or reduction of his arrears, a variation of the child support and an order for production of documents. The respondent filed two affidavits, and the applicant brought unsuccessful applications to strike parts of an affidavit and certain exhibits referring to documents the respondent had retrieved from a computer in the home. The applicant claimed a reasonable expectation of privacy over the computer and demanded its return. On an unsuccessful rehearing of the applicant’s application to strike, a Judge found that the computer belonged to the respondent, had been used by other family members and was not password-protected, and that the applicant carried around a hard drive for his private documents. He found that the applicant had left the documents “in readily accessible conditions” and that “any expectation of privacy that he may have had would have been slight”.
The applicant then commenced an action against his former spouse for invasion of privacy pursuant to the Privacy Act, R.S.B.C. 1996, c. 373. The respondent brought an application to strike the pleadings. A Judge of the Supreme Court of British Columbia struck the applicant’s claim on the basis of issue estoppel and abuse of process, finding that the issues had already been litigated before Butler J. The Court of Appeal for British Columbia agreed that the action was an abuse of process and dismissed the appeal.
Mac’s Convenience Stores v. Attorney General of Canada and Agence du revenu du Québec (Que.)
Taxation – Income tax – Rectification
On April 14, 2005, the applicant took out a loan for $185 million from Sildel Corporation under which it had to pay interest. On April 25, 2006, while the loan was still in effect, the applicant declared and paid a dividend of $136,000,000 to Couche‑Tard Inc., as recommended by a tax expert, to reduce its retained earnings. In 2007, the applicant learned that the decision had changed the ratio between its “borrowed capital” and “equity”, taking it above the maximum ratio and preventing the applicant from deducting the interest paid on its loan in computing its income. The Canada Revenue Agency disallowed the deduction of the interest paid on the $185 million loan. The applicant subsequently sought rectification of an instrument without restitution of prestations, that is, without reimbursement of the dividend of $136,000,000. The Quebec Superior Court dismissed the motion to institute proceedings. The Quebec Court of Appeal dismissed the appeal.
Jean Grondin, both personally and in his capacity as tutor to his minor child Coralie Grondin, Sandra Lamothe, both personally and in her capacity as tutor to her minor child Coralie Grondin v. Marie-Claude Nadeau, Marcelo Lannes, the late Hélène Langis, Maxime Descoteaux, Pierre-Olivier Descoteaux (Que.)
Civil liability – Civil procedure – Order of witnesses
The applicants filed a medical malpractice suit against the respondents, physicians who had treated their daughter, who was born prematurely and had periventricular leukomalacia and cerebral palsy. The courts below dismissed the action and found that the respondents were not at fault. The applicants are challenging those decisions.
Ahmed Baig v. Meridian Credit Union Limited - and - Miller Thomson LLP, Peter Kiborn (Ont.)
Civil procedure – Abuse of process – Parties
The respondent was the first priority creditor of a property sold by a court appointed receiver. The applicant offered to buy the property for approximately $6.2 million, but it was later discovered that prior to closing, he agreed to resell it to a third party for $9 million. Although the applicant could direct that the property be transferred into the name of a corporation incorporated for the purpose of holding title, he could only assign his rights under the purchase agreement to a third party with the consent of the receiver. The title direction and other documents prepared and executed by the applicant and his lawyer caused the receiver to believe the transferee was not a non-arm’s length corporation. The receiver claims that had it known about the re-sale, it would not have recommended court approval of the sale to the applicant. Since the respondent had not recovered the full amount owed to it, it took an assignment of the receiver’s cause of action against the applicant, seeking an accounting of his profit on the re-sale or damages of $2.1 million for breach of contract, fraudulent misrepresentation and conspiracy. The applicant brought a motion for summary judgment to dismiss the action against him. The Ontario Superior Court of Justice dismissed the motion and found the applicant liable for fraudulent misrepresentation in an amount to be determined at trial. The Ontario Court of Appeal dismissed his appeal and his motion for reconsideration.
CanMar Contracting Ltd. v. Labourers International Union of North America, Local 615, Labour Board (Nova Scotia), Sean Patrick McSween, Carlos Lopez and George Panteleios (N.S.)
Administrative law — Boards and tribunals — Labour Board of Nova Scotia
The respondent, Local 615 of the Labourers International Union applied to the Labour Board to be certified for a unit of labourers employed by the applicant, CanMar Contracting Ltd. The Board found that the Local 615 had supplied membership evidence of over 50% of the employees in the appropriate unit, and certified Local 615 without a vote under Part II of the Trade Union Act. CanMar claimed that membership cards signed by some employees did not represent their true wishes. But those employees didn’t intervene with the Board to support CanMar’s assertion. The Board held that, without an intervention by the employee whose wishes are questioned, CanMar had no standing to challenge the cards. Then, following its established policy, the Board considered the wishes of employees who were on site performing labourers’ work on the day of the application for certification. This meant that the views of two employees, on leave that day, were not counted.
CanMar sought judicial review. The Supreme Court of Nova Scotia set aside the Board’s certification order. The Union appealed. CanMar cross-appealed. The Court of Appeal allowed the appeal, overturned the decision on judicial review and restored the Board’s decision.
Dylan Robert Douglas Gogan v. Her Majesty the Queen (N.S.)
Criminal Law – Appeal – Leave to Appeal
A television and other items were stolen from a victim’s residence and shed. Mr. Gogan was convicted of break and enter with intent. Two Crown witnesses testified that, on the night of the theft, Mr. Gogan visited them and asked for help retrieving a television. He claimed that it was a gift left for him by a friend who had moved. He borrowed a wagon and retrieved a television from another residence. He left with the television in a taxi. He took the television to his father’s address. A witness heard the victim’s dogs barking, heard someone at the victim’s shed, and saw an individual walk down the street with a wagon carrying things. The victim’s television cords had been cut. Other items were missing from his house and shed. When the police arrested Mr. Gogan, he was hiding in a freezer. They searched his father’s residence and found a television matching the description of the stolen set, with cut cords. The Nova Scotia Court of Appeal dismissed the appeal.
Lynda Arcari v. John A. Dawson (Ont.)
Limitation of actions — Discoverability — Ought to have known
Ms. Arcari, a pedestrian, was struck by a motor vehicle on December 2, 2009. She hired a lawyer, who in turn hired an engineer to do accident reconstruction. In December 2010, a statement of claim was issued against the driver. A statement of defence was filed, discoveries were completed by March 2014, and the matter was set down for trial.
Ms. Arcari then changed counsel. Her new lawyer had a background in construction. Upon attending the accident scene, he concluded that obvious design flaws and missing safety features at the crosswalk had contributed to the accident. He moved to add the City of Kitchener and the Regional Municipality of Waterloo as party defendants. He sought to have the two-year limitation period extended to allow them to be added or, in the alternative, for the proposed defendants to be allowed to plead the limitation period so that the trial judge could rule on the issue.
The motions judge dismissed the motion and the Court of Appeal dismissed her further appeal.