38274APPLICATIONS FOR LEAVE TO APPEAL GRANTED

SCC No. Case Name Province of Origin Keywords

38165 Javid Ahmad v. Her Majesty the Queen ON Criminal law – Defences – Entrapment

38304 Landon Williams v. Her Majesty the Queen ON Criminal law – Defences – Entrapment

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords

38274 Harold Edward McKenna v. Her Majesty the Queen NB Criminal law – Offences – Elements of offence

38122 Godfred Kwaku Hiamey v. Toronto Community Housing Corporation ON Administrative law — Boards and tribunals

38100 Martin Green v. Heather Bush and George Bush MN Civil procedure — Appeal

38101 Martin Green v. Don Metz, Neil Besner and University of Winnipeg MN Civil procedure — Appeal

38318 W.G. c. V.L., ès qualités de tutrice à X.C., et D.C. – et – Directeur de l'état civil QC Family law – Filiation

38143 Her Majesty the Queen v. Graham Elmer Johnson SK Criminal law – Evidence

38140 Municipal Corporation of the Town of Fort Erie v. Wanda Labanowicz ON Torts —Occupier's liability

38314 Nathan Robert Wayne Field v. Her Majesty the Queen BC Criminal law – Evidence – Admissibility

38178 John Charles Beima v. Minister of National Revenue FC Taxation – Income tax – Assessment

38162 Ryan Zaroski and 1853780 Ontario Inc. o/a Kee to Bala v. Ryan Turcotte, Rick Turcotte and Kerry Turcotte – and between – First Student Canada and David Ribble v. Ryan Turcotte, Rick Turcotte and Kerry Turcotte ON Torts – Negligence – Standard of Care

38303 Pascal Gaudreault v. Attorney General of Canada representing the United States of America and Minister of Justice Canada – and between – Pascal Gaudreault v. Minister of Justice Canada QC Criminal law – Extradition – Committal hearings

38079 SaskEnergy Incorporated v. ADAG Corporation Canada Ltd. and Geschlossene Grundstücksgesellschaft GGG No. 10 SK Commercial law – Partnerships – Contracts

38119 Randy T. Jalava v. Terry Webster and Planet Café Inc. BC Appeals – Damages

38221 Pimicikamak and Cross Lake Band of Indians v. Her Majesty the Queen in Right of Manitoba, Manitoba Hydro Electric Board and Incorporated Community of Cross Lake MN Constitutional law — Aboriginal peoples

38102 Rodney J. Gillis v. Bank of Nova Scotia NB Civil Procedure – Summary Judgment

38041 Phoenix Interactive Design Inc. and 1932780 Ontario Inc. v. Alterinvest II Fund L.P. by its General Partner, Business Development Bank of Canada ON Financial institutions – Banks – Contracts

38148 Guy Joseph Sanders v. Royal Bank of Canada ON Judgments and orders – Summary judgment

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

38165

Javid Ahmad v. Her Majesty the Queen  (Ont.)

Criminal law – Defences – Entrapment – Dial-a-dope schemes

In 2012, the police received a tip from a tipster unknown to them, that a person called "Romeo" would answer the cell phone at the number provided and sell drugs. Without further investigation, an undercover officer called the number and Mr. Ahmad answered. After a quick exchange, and after calling the undercover officer back, Mr. Ahmad and the officer agreed on a price and a time and place to meet. The drugs were sold and Mr. Ahmad was arrested. At trial, Mr. Ahmad conceded that if he was found to be in possession, then he was in possession of the drugs for the purpose of trafficking, and he conceded that the drug was cocaine. The only issue to be decided was whether he had knowledge and control of the drugs. On that issue, Mr. Ahmad implied in his testimony that it was a friend of his, not he, who had sold the drugs to the undercover officer. The trial judge did not find Mr. Ahmad credible, and she found him guilty as charged. Mr. Ahmad then applied for a stay of proceedings on the basis of entrapment. The application judge refused to grant a stay on the basis that the police officer had acquired the requisite reasonable suspicion at the time Mr. Ahmad said "What do you need?" In her view, the conversation up until that point constituted legitimate investigative steps and had not reached the point of an opportunity to commit an offence. The Court of Appeal dismissed the appeal. It agreed that the defence of entrapment had not been made out, and that the trial judge had not erred in her credibility analysis by using Mr. Ahmad's silence against him and by making inconsistent findings of fact.

38304

Landon Williams v. Her Majesty the Queen  (Ont.)

Criminal law – Defences – Entrapment – Dial-a-dope schemes

Acting on a tip from a confidential source, the police contacted Mr. Williams and successfully purchased crack cocaine from him on two occasions. Mr. Williams was arrested about 3 weeks after the second transaction, and during a subsequent search, police found a handgun and a box of ammunition in his clothing, as well as a small amount of marijuana and two cell phones. Mr. Williams was charged with trafficking crack cocaine, possession of the proceeds of crime, and various firearms, ammunition and breach of recognizance offences. At trial, Mr. Williams acknowledged that the evidence established his guilt on each count, but he applied for and was granted a stay of proceedings with respect to the drug-related offences on the basis of entrapment. In the trial judge's view, the police did not have a reasonable suspicion that Mr. Williams was involved in drug trafficking when they first provided him with the opportunity to commit an offence. A stay with respect to the other charges was refused. On appeal, the Crown challenged the entrapment finding. Mr. Williams cross-appealed, arguing that the other charges should be stayed. The Court of Appeal allowed the Crown appeal and entered convictions on the drug charges. Mr. Williams' cross-appeal was dismissed.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38274

Harold Edward McKenna v. Her Majesty the Queen  (N.B.)

Criminal law – Offences – Elements of offence – Second degree murder

On May 1, 2013, Mr. Blair was shot after he opened the door to his residence. Mrs. Blair testified that she saw Mr. McKenna holding a shotgun at the door. He and Mr. Doucette entered the home and demanded the PIN number for Mr. Blair's bank account. Both men left the residence but Mr. McKenna came back and forced Mrs. Blair to go to his residence. When police arrived, she ran out of the residence. Mr. McKenna was arrested. In statements to the police, he made admissions. At trial, Crown counsel argued that Mr. McKenna committed a homicide in the course of effecting the unlawful purpose of break and enter with intent to extort money and the dangerous act which he knew or ought to have known was likely to cause death was pointing a loaded, cocked firearm at Mr. Blair with his finger on the trigger. Defence counsel argued that the gun went off accidentally when Mr. Blair grabbed it and Mr. McKenna was intoxicated at the time. A jury convicted Mr. McKenna of second degree murder. The Court of Appeal dismissed an appeal.

38122

Godfred Kwaku Hiamey v. Toronto Community Housing Corporation  (Ont.)

Administrative law — Boards and tribunals — Judicial review

Mr. Hiamey rented an apartment from the Toronto Community Housing Corporation ("TCHC"). He subsequently lost his employment and fell into arrears with his rent. The TCHC eventually applied to the Landlord and Tenant Board ("LTB") to evict him. In March 2013, the LTB made a consent order ratifying an agreement entered into by the parties stating that Mr. Hiamey was in arrears with his rent, that he would pay an amount to the TCHC and that he would then move out of his apartment. Mr. Hiamey did not move out and was evicted by the sheriff. More than 15 months after being evicted, Mr. Hiamey filed an application with the Human Rights Tribunal of Ontario ("Tribunal") alleging discrimination in respect of residential accommodation. He argued that he did not owe rent to the TCHC and should not have been evicted.

Following a preliminary hearing, the Tribunal dismissed his application on the ground that it was untimely, that it had no reasonable prospect of success and that it was an abuse of process. The Divisional Court dismissed Mr. Hiamey's application for judicial review, and the Court of Appeal refused to grant leave to appeal from that decision.

38101

Martin Green v. Don Metz, Neil Besner and University of Winnipeg  (Man.)

Civil procedure — Appeal — Court of Appeal dismissing appeal from summary judgment

Mr. Metz, a university professor, received a phone call from Mr. Bush, another university professor. Mr. Bush described an incident at the front door of his residence. Mr. Green had attempted to deliver some papers but his wife, Mrs. Bush, refused to accept them. She tried to close the door. Mr. Green forcibly pushed back against the door with his arm extended through the doorway. Mrs. Bush became frightened. Mr. Metz emailed Mr. Besner, a senior administrator of the university and set out in part that Mr. Green "tried to break in" the Bushes' home. Mr. Besner sent two emails to other staff and set out in part that Mr. Green tried to "force his way in" the Bushes' home. The university's Chief of Security published barring notices prohibiting Mr. Green from being on university property. Notice was served at Mr. Green's residence to his son. Security staff were told of the incident, the incident was discussed at meetings and extra security personnel were hired to keep Mr. Green off university property. Mr. Green was arrested on campus on three occasions. Mr. Green commenced an action pleading defamation. The defendants filed a motion for summary judgment. The motions judge dismissed the action. The Court of Appeal dismissed an appeal.

38100

Martin Green v. Heather Bush and George Bush  (Man.)

Civil procedure — Appeal – Court of Appeal dismissing appeal from summary judgment

Mr. Green arrived at the front door of the residence of Mr. Bush, a university professor. Mrs. Bush answered the door.  Mr. Green  attempted to deliver a statement of claim but Mrs. Bush did not know what the documents was and refused to accept it. She tried to close the door. Mr. Green forcibly pushed back against the door with his arm extended through the doorway. Mrs. Bush became frightened. After a few moments, she was able to close the door. She described the incident to Mr. Bush. Mr. Bush reported the incident by telephone to the police and to a colleague, another university professor. Mr. Green commenced an action pleading defamation. He claims that Mrs. Bush and Mr. Bush falsely portrayed him as having had intent to force his way into their home and falsely described him as angry, vindictive, irrational and violent. Mr. and Mrs. Bush brought a motion for summary judgment. The motions judge dismissed the action. The Court of Appeal dismissed an appeal.

38318

W.G. c. V.L., ès qualités de tutrice à X.C., et D.C. – et – Directeur de l'état civil  (Que.)

Family law – Filiation

The respondent D.C. is legally recognized to be the father of a child born in 2015. The applicant, W.G., is the child's biological father. W.G. brought an action to claim paternity in the Superior Court.

The Superior Court dismissed his action, relying for that purpose on art. 530 of the Civil Code of Québec. The majority of the Court of Appeal agreed with that conclusion, expressing the opinion that art. 530 of the Civil Code of Québec barred W.G. from claiming the possession of status in this case. Dutil J.A., dissenting, would have declared W.G. to be the child's father: in her view, it was not possible to block biological filiation in this case.

38143

Her Majesty the Queen v. Graham Elmer Johnson  (Sask.)

Criminal law – Evidence – Admissibility – Hearsay – Principled exception to hearsay rule

Both Ms. Hunter and Mr. Thomson were physically assaulted. Within hours of the alleged assaults, both Mr. Thomson and Ms. Hunter gave videotaped statements to the police identifying Mr. Johnson as the individual who had assaulted them. Both Mr. Thomson and Ms. Hunter were called by the Crown as witnesses at trial. Ms. Hunter testified she remembered very little of the night in question, but did state Mr. Johnson had punched her giving her a black eye and that he had thrown keys at her. Ms. Hunter did not adopt her videotaped statement as true and claimed she could not remember making it. Mr. Thomson testified he had no recollection of the events surrounding the assaults. Mr. Thomson did not adopt his videotaped statement as true and he testified he could not remember making the statement. The trial judge admitted both Mr. Thomson's and Ms. Hunter's videotaped statements as evidence of the truth of their content. Mr. Johnson was convicted of two counts of aggravated assault. Mr. Johnson's conviction appeal with respect to the aggravated assault on Mr. Thomson was allowed. The conviction was set aside and a new trial was ordered. Mr. Johnson's conviction appeal against the aggravated assault conviction pertaining to Ms. Hunter was dismissed.

38140

Municipal Corporation of the Town of Fort Erie v. Wanda Labanowicz  (Ont.)

Torts — Duty of Care — Occupier's liability — Municipalities — Recreational use of land

On July 31, 2006, Ms. Labanowicz was riding a bicycle on a trail in Fort Erie. Where the trail intersected roads, the Town had installed bollards. A wooden post had been removed from one of the bollards, leaving its metal sleeves exposed. Ms. Labanowicz's bicycle struck the sleeves and she flew off her bicycle. She suffered injuries. The trial judge found the Town of Fort Erie liable pursuant to s. 4(1) of the Occupiers Liability Act, R.S.O. 1990, c. O.2, and awarded $995,000 in damages and interest. The Court of Appeal dismissed an appeal.

38178

John Charles Beima v. Minister of National Revenue  (F.C.)

Taxation – Income tax – Assessment

On April 16, 2014, the Canada Revenue Agency ("CRA") notified the applicant, Mr. Beima by letter that his income tax returns for the 2006 to 2010 tax years, which were under objection, and his returns for the 2011 and 2012 taxation years, which were not yet assessed, were under review. The CRA provided Mr. Beima with a list of specific records that it required in order to carry out the audit. It was agreed that the audit would begin on a particular date. When the two auditors and team leader arrived at the agreed upon location, Mr. Beima would only allow one auditor into the premises and further advised that he would be videotaping the audit process. The CRA officials decided not to proceed with the audit at that time. The CRA subsequently notified Mr. Beima by letter that it had the authority under s. 231.1  of the Income Tax Act  to inspect requested records and that failure to submit the requested records by the specified date would result in the CRA seeking a compliance order. The application judge issued the compliance order, requiring Mr. Beima to produce the requested documents for inspection. This decision was upheld on appeal.

38314

Nathan Robert Wayne Field v. Her Majesty the Queen  (B.C.)

Criminal law – Evidence – Admissibility

There was a robbery and the sole issue at trial was identification. The trial judge conducted a voir dire in order to determine the admissibility of the recognition evidence. The trial judge admitted the recognition evidence of the probation officers. Mr. Field was convicted of robbery and wearing a mask to commit an indictable offence. The Court of Appeal held that the trial judge did not err and the appeal was dismissed.

38162

Ryan Zaroski and 1853780 Ontario Inc. o/a Kee to Bala v. Ryan Turcotte, Rick Turcotte and Kerry Turcotte – and between – First Student Canada and David Ribble v. Ryan Turcotte, Rick Turcotte and Kerry Turcotte  (Ont.)

Torts – Negligence – Standard of Care – Summary judgments

On a summer night in 2012, Ryan Turcotte was punched and fell to the ground in the parking lot of plaza in Barrie, moments after getting off a chartered bus that had returned him and a busfull of other passengers – including one of his assailants – from a resort night at a bar in the Muskokas, the Kee to Bala (the venue). As a result of the assault, Mr. Turcotte sustained a serious head injury which resulted in permanent deficits including problems with his cognitive function and memory. Mr. Turcotte and his parents sued against the alleged assailants, who have been noted in default; the venue and its security guard who was on-duty on the chartered bus, Ryan Zarosky; and the chartered bus company, First Student Canada, and its bus driver, David Ribble. Mr. Turcotte's action in negligence claimed that the assault was foreseeable and that the venue and the bus company had failed to take reasonable care to prevent it. The venue and the bus company sought to have the suit dismissed on summary motions, which were granted. The Court of Appeal overturned the summary judgment and remitted the matter for trial, holding that the motions judge had failed to fully articulate and apply the standard of care.

38303 

Pascal Gaudreault v. Attorney General of Canada representing the United States of America and Minister of Justice Canada – and between – Pascal Gaudreault v. Minister of Justice Canada  (Que.)

Criminal law – Extradition – Committal hearings – Evidence

In October 2011, police executed a search warrant at an apartment in Montreal where a telephone scam was taking place. The persons involved in the scam would use lead sheets with contact information to call elderly victims in the United States and falsely claim to be their grandchild, saying they were in trouble in a foreign country and asking the elderly person to send money to help them. During the search, several individuals were caught in or near the apartment, including Mr. Gaudreault. In February 2014, the United States requested the extradition of Mr. Gaudreault and other co-conspirators to stand trial in California for the offenses of wire fraud, attempted wire fraud, and aiding and abetting wire fraud. The extradition hearing proceeded on the basis of evidence provided in a certified record of the case. The extradition judge held that the evidence of the requesting state met the test for committal pursuant to section 29(1) (a) of the Extradition Act on the offence of conspiracy to commit fraud. The Court of Appeal affirmed that judgment.

38079

SaskEnergy Incorporated v. ADAG Corporation Canada Ltd. and Geschlossene Grundstücksgesellschaft GGG No. 10 

(Sask.)

Commercial law – Partnerships – Contracts

ADAG, a respondent, is the general partner of a limited partnership. The limited partners are 1200 German residents, also respondents. In 1991, ADAG acquired a property in Regina. In 2000, ADAG entered into a long-term lease agreement of the property with SaskEnergy, the applicant. As a schedule to the lease agreement, an options agreement was executed, granting SaskEnergy purchase options of the property. In 2011, SaskEnergy attempted to exercise a purchase option. ADAG refused, relying on the partnership agreement, which required limited partner approval to sell the property. SaskEnergy commenced proceedings for breach of contract and seeking specific performance.

The trial judge sided with SaskEnergy. He found SaskEnergy reasonably believed ADAG had the authority to grant the options to purchase and that the relevant provisions of the The Partnership Act (R.S.S. 1978, c. P-3) were of no assistance to the respondents. The Court of Appeal unanimously disagreed. It found that the relevant provisions of The Partnership Act, correctly interpreted and applied, did effectively restrict ADAG's ability to bind the partnership with options to purchase the property.

38221

Pimicikamak and Cross Lake Band of Indians v. Her Majesty the Queen in Right of Manitoba, Manitoba Hydro Electric Board and Incorporated Community of Cross Lake  (Man.)

Constitutional law — Aboriginal peoples — Treaty rights

The applicants are a First Nation collective who allege that Manitoba and Manitoba Hydro improperly entered into an agreement to settle lawsuits (concerning damage caused by flooding from a nearby hydro-electric development project, with an allegedly potential impact on the applicants' Aboriginal and treaty rights) with only a subset of the First Nation's members who reside in a neighbouring municipal community. The applicants brought an application for judicial review, asserting that Manitoba did not sufficiently fulfill its constitutional obligation to consult with and accommodate them prior to entering into the agreement.

The Manitoba Court of Queen's Bench and dismissed Pimicikamak's and the Band's application for judicial review and upheld Manitoba's consultation and accommodation process as being reasonable. The Manitoba Court of Appeal dismissed Pimicikamak's and the Band's appeal.

38119

Randy T. Jalava v. Terry Webster and Planet Café Inc.  (B.C.)

Appeals – Damages – Whether lower courts erred in the treatment of the assessment of damages

In 1998, Mr. Randy T. Jalava, a self-represented litigant, obtained a default judgment against the respondents. Over the years, Mr. Jalava made a number of attempts to proceed with the assessment of damages. When the assessment of damages finally came on for hearing in 2014, the court refused to assess damages on the basis of lack of evidence. Mr. Jalava obtained legal counsel and appealed to the Court of Appeal for British Columbia. The Court allowed his appeal, and assessed damages at $100.

On February 2, 2018, Mr. Jalava wrote to the Court of Appeal asking that the Court amend its order by remitting the question of damages to the Supreme Court of British Columbia or permitting additional submissions regarding the damages. By letter dated March 5, 2018, the applicant was advised that the Court of Appeal declined the request.

38102

Rodney J. Gillis v. Bank of Nova Scotia  (N.B.)

Civil Procedure – Summary Judgment

The respondent, Bank of Nova Scotia sued the applicant, Rodney Gillis and his business partners to recover a debt they had personally guaranteed. The action was defended and therefore the Bank applied for summary judgment. A judge of the Court of Queen's Bench ruled in favour of the Bank and summarily ordered judgment. The appeal of the decision was dismissed.

38041

Phoenix Interactive Design Inc. and 1932780 Ontario Inc. v. Alterinvest II Fund L.P. by its General Partner, Business Development Bank of Canada  (Ont.)

Financial institutions – Banks – Contracts – Commercial contracts

Alterinvest II Fund L.P. ("ALP") established the Business Development Bank of Canada ("BDC"), to provide financing to small and medium sized businesses in Canada. The applicant, Phoenix Interactive Design Inc. ("Phoenix"), sought such financing. It was in the business of developing, distributing, and supporting automated teller machine and bank branch automation software. Ms. MacDonald was its president and chief executive officer. She was also the principal of the respondent, 1932780 Ontario Inc. ("193"), which was formed in March 2015 when number of predecessor companies were amalgamated as part of a restructuring.

In November 2010, ALP/BDC offered Phoenix and 193's predecessors (the "Borrowers") a loan for $2.25 million with a November 23, 2015 maturity date. The parties agreed that ALP/BDC would be paid a bonus of one per cent of the net proceeds of sale, after transaction costs, if any of the Borrowers were sold prior to the maturity date of the loan. The loan agreement also precluded a sale or reorganization of any of the Borrowers without ALP/BDC's consent.

In the fall of 2014, Diebold Inc. ("Diebold") approached Phoenix regarding a possible purchase of the company. Ms. MacDonald met with ALP/BDC to advise that Phoenix was not willing to pay the bonus under the loan agreement because that fee would be disproportionate to the amount outstanding on the loan. In March 2015, Phoenix prepaid the full amount that was outstanding under the loan agreement for principal, fees, and royalties. That amount did not include any sum on account of the bonus.

Prior to the closing of the stock purchase transaction with Diebold, 193's predecessor companies amalgamated to achieve tax efficiency. A $55.125 million certified debt was created as an intellectual property sale between the Borrowers' related companies. On March 13, 2015, Diebold bought Phoenix for $92.5 million. The $55.125 million of debt formed part of the purchase price and was repaid by Diebold.

ALP/BDC and Phoenix were unable to agree on the amount of the bonus payable to ALP. ALP/BDC commenced an application against the Phoenix parties seeking information on the sale price, and a declaration that the bonus was payable. The Phoenix parties then commenced an application for a declaration that the bonus provision contravened the criminal rate of interest in s. 347 of the Criminal Code, was unconscionable and was ultra vires the statutory objects of BDC. The application judge deducted the $55.125 million debt amount from the purchase price, and after other deductions, ordered Phoenix to pay a bonus of $242,552.79. The Court of Appeal allowed the respondents' appeal and increased the amount of the bonus to be paid by Phoenix to $793,800.48, a calculation that included the disputed $55.125 million.

 

38148

Guy Joseph Sanders v. Royal Bank of Canada  (Ont.)

Judgments and orders – Summary judgment – Procedural fairness in motions for summary judgment

The applicant Guy Sanders was sued by the Respondent Bank for overdraft debt, credit card debt and debt arising from a joint loan with his ex-wife Gloria. Mr. Sanders counterclaimed against the bank. The Bank brought a motion for summary judgment. A timetable was set by a judge establishing the deadlines for filing documents and a date for hearing the summary judgment motion. The applicant did not meet the deadline for filing responding materials. His lawyer did not diarize the deadline, and believed that he did not need to deliver the material until the undertakings were answered. The motions judge refused to allow him to file the material at the hearing of the motion. Judgment was issued requiring the Applicant to pay the respondent $105,231.68 and dismissing the counterclaim.