APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No. Case Name Province of Origin Keywords
38877 Jeffrey Kompon v. Her Majesty the Queen ON Charter of Rights and Freedoms — Right to be tried within a reasonable time
38930 Raul Bulhosen v. Her Majesty the Queen ON Charter of Rights and Freedoms — Right to be tried within a reasonable time
38864 Reem Yousef Saeed Kreishan, et al. v. Minister of Citizenship and Immigration FC Charter of Rights  — Right to life, liberty and security of the person
38819 Chanel Holdings Ltd. and 1598356 Ontario Inc. v. Pezzack Financial Services Inc. ON Trusts — Resulting trust — Corporation and director
38867 Play for Fun Studios Inc. v. Registrar of Alcohol, Gaming and Racing ON Legislation — Interpretation — Gaming
38830 Radomir Nikolajev v. Syndicat de copropriété Le S.O.M.O. QC Civil procedure — Abuse of procedure
38887 Federation of British Columbia Naturalists carrying on business as BC Nature v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation FC Administrative law — Judicial review
38892 Raincoast Conservation Foundation, Living Oceans Society v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation FC Administrative law — Judicial review
38894 Tsleil-Waututh Nation v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation FC Administrative law — Judicial review
38898 Squamish Nation v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation FC Administrative law — Judicial review
38900 Olivier Adkin-Kaya, et al. v. Attorney General of Canada, et al. FC Administrative law — Judicial review
38847 Marine Atlantic Inc. v. RJG Construction Limited NL Contracts — Performance — Breach — Termination
38928 Virushan Premanathan v. Her Majesty the Queen ON Criminal law — Evidence — Assessment
38954 Her Majesty the Queen v. Nicholas Walker ON Criminal law — Charge to jury — Fairness of trial
38923 North Bank Potato Farms Inc., et al. v. Canadian Food Inspection Agency, et al. AB Torts — Negligence — Crown liability
38881 Diorite Securities Limited, as Trustee of The Fern Trust v. Trevali Mining (New Brunswick) Ltd. ON Property — Civil procedure — Appeals  

 

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38877

Jeffrey Kompon v. Her Majesty the Queen

(Ont.)

Charter of Rights and Freedoms — Right to be tried within a reasonable time

Mr. Kompon and thirteen co-accused were charged with counts for conspiring to import cocaine, laundering proceeds of crime and participating in a criminal organization. Crown counsel originally indicated intent to hold a preliminary hearing but, thirteen months after arrest and before the preliminary hearing, Crown counsel preferred a direct indictment. Mr. Kompon and other co‑accused applied to the Superior Court of Justice to stay the proceedings for breach of the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter of Rights and Freedoms. The motions judge dismissed the applications, applying a 30‑month presumptive ceiling, and finding delay beyond the ceiling was attributable to the exceptional circumstance of the complexity of the case. Mr. Kompon was convicted. The Court of Appeal dismissed a joint appeal from the dismissal of the s. 11(b) applications.

38930

Raul Bulhosen v. Her Majesty the Queen

(Ont.)

Charter of Rights and Freedoms — Right to be tried within a reasonable time

Mr. Bulhosen and thirteen co-accused were charged with counts for conspiring to import cocaine, laundering proceeds of crime and participating in a criminal organization. Crown counsel originally indicated intent to hold a preliminary hearing but, thirteen months after arrest and before the preliminary hearing, Crown counsel preferred a direct indictment. Mr. Bulhosen and other co‑accused applied to the Superior Court of Justice to stay the proceedings for breach of the right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter of Rights and Freedoms. The motions judge dismissed the applications, applying a 30‑month presumptive ceiling, and finding delay beyond the ceiling was attributable to the exceptional circumstance of the complexity of the case. Mr. Bulhosen was convicted. The Court of Appeal dismissed a joint appeal from the dismissal of the s. 11(b) applications.

38864

Reem Yousef Saeed Kreishan, Giovani Acevedo Arango (a.k.a. Giovanni Acevedo Arango), Cristian Camilo Acevedo Gomez, Mohammed Zakir Hossain, Suad Sulieman Odeh Abu Shabab, Abdalla Mahmoud Aboushabab, Tagi Mahmoud Mohamed Aboshabab, Huda Marwan Kashtem, Mhd Nazir Deirani, Bara'a Derani, Maha Mahmoud Mohamed Oudah, Aly Mahmoud Mohamed Oudah, Mohamed Mahmoud Oudah v. Minister of Citizenship and Immigration

(F.C.)

Charter of Rights  — Right to life, liberty and security of the person — Immigration

The applicants are Safe Third Country Agreement-excepted asylum seekers whose claims were rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). They attempted to appeal the negative RPD decisions to the Refugee Appeal Division (RAD) of the IRB. The RAD dismissed the appeals on jurisdictional grounds, as under paragraph 110(2) (d) of the Immigration and Refugee Protection Act  (IRPA ) the applicants had no right of appeal to the RAD. The applicants filed applications in the Federal Court for leave to judicially review the RAD’s dismissals of their appeals. The Federal Court granted leave and dismissed the applications, concluding that paragraph 110(2) (d) of the IRPA  is constitutionally valid. The Federal Court of Appeal dismissed the appeal, concluding that paragraph 110(2) (d) of the IRPA  does not engage s. 7 .

38819

Chanel Holdings Ltd. and 1598356 Ontario Inc. v. Pezzack Financial Services Inc.

(Ont.)

Trusts — Resulting trust — Corporation and director

Mr. Raso owes the respondent, Pezzack Financial Services Inc. money. Pezzack served Mr. Colacci with a notice of garnishment calling on Mr. Colacci to pay Pezzack any money that Mr. Colacci owes Mr. Raso. Mr. Raso had sued Mr. Colacci on a mortgage and the action was settled for $790, 000.

The applicants, Chanel Holdings Ltd., and 1598356 Ontario Ltd., brought a motion resisting garnishment on the basis that Raso held the mortgage in trust for 1598356 pursuant to an express or a resulting trust. They claimed the money should be paid out to them instead of to Pezzack. The sum of $790, 000 was ordered to be paid into the court pending disposition of the motion and any appeals arising from it.

The motion judge found that there was no trust and dismissed the motion. The Court of Appeal upheld that decision and dismissed the appeal. Pezzack was entitled to the proceeds of the settlement of the mortgage action.

38867

Play for Fun Studios Inc. v. Registrar of Alcohol, Gaming and Racing

(Ont.)

Legislation — Interpretation — Gaming — “Game of mixed chance and skill”

Play for Fun Studios Inc. applied for a declaration that a game it distributes, GotSkill, is not “a game of chance or mixed chance and skill”, which are prohibited by the Criminal Code, R.S.C. 1985, c. C‑46, s. 197(1) . It was agreed that it was not a game of pure chance. A player of GotSkill uses a touchscreen to choose how many credits to wager by selecting a “Potential Next Win” from among those offered in that instance. The player must then complete a skill task which consists of stopping a cursor moving at a constant speed through 21 bars arrayed across the screen as close to the middle as possible. Nothing about the game seeks to defeat the player’s ability to stop the cursor. Stopping it at the first bar results in a value of 55%; the values rise regularly until the exact middle, which has a value of 110%, and then fall regularly back to 55% at the last bar. The credits are adjusted accordingly, and the player can redeem their credits or select a new Potential Next Win over any of the themes. Players only know the Potential Next Win for the current game.

First‑time players in Ontario play for approximately 25‑30 minutes and use an average of $16 in credits, not including those awarded as part of the game. The ultimate reward received by the player depends on the Potential Next Win level chosen by the player and the player’s ability to perform the skill task. However, while a player who achieves 110% in all 1,000 tickets in a group would receive a modest benefit, achieving 100% would result in a net loss.

Schreck J. made the requested declaration. The Court of Appeal allowed the appeal and declared GotSkill to be a game of mixed skill and chance for the purpose of s. 197(1)  of the Criminal Code .

38830

Radomir Nikolajev v. Syndicat de copropriété Le S.O.M.O.

(Que.)

Civil procedure — Abuse of procedure

The applicant, Mr. Nikolajev, owned two units of an immovable held in divided co‑ownership. The respondent, the Syndicat de copropriété Le S.O.M.O. (“Syndicat”), was responsible for the preservation, maintenance and administration of the immovable.

In 2016, Mr. Nikolajev, who questioned the validity and conformity of a number of decisions made by the Syndicat, its board of directors or the co‑owners as a body, filed an originating application in which he asked the Quebec Superior Court to annul certain decisions of the general meeting of co‑owners. He subsequently amended his initial application and then, some time before the scheduled date for the hearing of the Syndicat’s motion to dismiss and application for abuse, discontinued his amended application.

The Syndicat decided to continue its cross‑application for damages for alleged abuse of procedure on Mr. Nikolajev’s part. The trial judge granted the respondent’s application in part, ordering Mr. Nikolajev to pay $10,000 in damages. The Court of Appeal dismissed the applicant’s motion for leave to appeal.

38887

Federation of British Columbia Naturalists carrying on business as BC Nature v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation

(F.C.)

Administrative law — Judicial review — Boards and tribunals

By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Twelve sets of parties applied to the Federal Court of Appeal for leave to judicially review that decision. A single judge of the Federal Court of Appeal wrote reasons for its dismissal of six of the twelve applications for leave.

38892

Raincoast Conservation Foundation, Living Oceans Society v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation

(F.C.)

Administrative law — Judicial review — Boards and tribunals — National Energy Board

By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Twelve sets of parties applied to the Federal Court of Appeal for leave to judicially review that decision. A single judge of the Federal Court of Appeal wrote reasons for its dismissal of six of the twelve applications for leave.

38894

Tsleil-Waututh Nation v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation

(F.C.)

Administrative law — Judicial review — Boards and tribunals — National Energy Board 

By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Twelve sets of parties applied to the Federal Court of Appeal for leave to judicially review that decision. A single judge of the Federal Court of Appeal wrote reasons for its dismissal of six of the twelve applications for leave.

38898

Squamish Nation v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation

(F.C.)

Administrative law — Judicial review — Boards and tribunals — National Energy Board

By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Twelve sets of parties applied to the Federal Court of Appeal for leave to judicially review that decision. A single judge of the Federal Court of Appeal wrote reasons for its dismissal of six of the twelve applications for leave.

38900

Olivier Adkin-Kaya, Nina Tran, Lena Andres, Rebecca Wolf Gage v. Attorney General of Canada, Trans Mountain Pipeline ULC, Trans Mountain Corporation

- and -

Attorney General of Alberta

(F.C.)

Administrative law — Judicial review — Boards and tribunals — National Energy Board

By Order in Council P.C. 2019‑0820 dated June 18, 2019, the federal Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Twelve sets of parties applied to the Federal Court of Appeal for leave to judicially review that decision. A single judge of the Federal Court of Appeal wrote reasons for its dismissal of six of the twelve applications for leave.

38847

Marine Atlantic Inc. v. RJG Construction Limited

(N.L.)

Contracts — Performance — Breach — Termination

Marine Atlantic Inc. and RJG Construction Ltd. entered into a contract, based on a standard form construction contract, for the construction of a wharf structure. RJG also obtained a performance bond with a surety. Progress payments under the construction contract were to be forwarded to RJG periodically. The project was to be completed by June 15, 2013. Due to several delays, RJG failed to complete the project on time. Marine Atlantic sent RJG a written notice of default. Marine Atlantic, RJG and the surety engaged in discussions for a remediation agreement to correct the default. Marine Atlantic advised RJG that it would be freezing all payments to RJG for any work completed to date until an acceptable remediation agreement was established. RJG issued to Marine Atlantic its own notice of default, for failing to provide progress payments for the work completed to date. RJG then provided notice to Marine Atlantic and the surety of its decision to terminate the construction contract. Marine Atlantic issued its own termination notice, arguing that RJG had breached the contract when it failed to meet the established timelines and when it attempted to terminate even though the contract did not allow for such termination.

RJG commenced an action, seeking damages for breach of contract arising from Marine Atlantic’s failure of payment. Marine Atlantic brought a counterclaim on the basis that RJG had breached the contract. The trial judge held that RJG was not entitled to terminate the contract; that Marine Atlantic did not repudiate the contract when it withheld funds owed; that Marine Atlantic was entitled to freeze funds to ensure RJG’s compliance; that RJG was estopped from terminating the contract while simultaneously negotiating a remediation agreement; and that RJG’s notice of default and notice of termination were invalid, because they did not comply with the contract’s actual termination provisions. The trial judge dismissed RJG’s action and allowed Marine Atlantic’s counterclaim for damages. On appeal, the Court of Appeal of Newfoundland and Labrador overturned the trial judge’s decision and deemed RJG’s notices of default and termination to be valid; Marine Atlantic was not permitted to freeze any funds owed, and the freezing constituted a repudiation of the contract, to which RJG was entitled to respond by terminating the contract; RJG was not estopped from terminating the contract.

38928

Virushan Premanathan v. Her Majesty the Queen

(Ont.)

Criminal law — Evidence — Assessment

The police set up an advertisement on a website that advertises for sexual services. The advertisement specified that the woman was 18 years old, but advised that her “young friend” might be available. The applicant responded to the advertisement. The police officer posing as the “young friend” texted the applicant to tell him that she was 15 years old. They negotiated via text the specific sex acts, price, and meeting location. The applicant went to the hotel and was arrested. The applicant testified that he mistakenly texted the wrong number, thinking he had already broken off the conversation with the escort once he learned that she was 15 years old. The applicant testified that he intended to contact a different escort about a different sexual service. The applicant was convicted of communicating with a person under the age of 18 to obtain sexual services for consideration and to facilitate the offence of invitation to sexual touching, and breach of recognizance. The applicant appealed only the communication convictions. The applicant’s appeal was dismissed.

38954

Her Majesty the Queen v. Nicholas Walker

(Ont.)

Criminal law — Charge to jury — Fairness of trial 

The respondent, Nicholas Walker, was charged in 2012 of first‑degree murder in a fatal shooting. Of particular significance to this case is the shifting positions of the Crown on a critical piece of video evidence upon being made aware of the judge’s opinion on its nature. The jury returned with a guilty verdict of first degree murder, and this was entered by the Superior Court. The Court of Appeal allowed Mr. Walker’s appeal on the basis that, by offering a stronger opinion than the one he knew the Crown was prepared to advance, the trial judge found himself bolstering the Crown’s position. The court considered this to be fundamentally unfair to Mr. Walker, and ordered a new trial.

38923

North Bank Potato Farms Inc., Haarsma Farms Ltd. v. The Canadian Food Inspection Agency, Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada

- and -

Flying E Ranche Ltd.

(Alta.)

Torts — Negligence — Crown liability — Whether proceedings lie against Crown

In 2007, a pest harmful to potato plants was detected in soil samples taken from lands farmed by North Bank Potato Farms Ltd. and Haarsma Farms Ltd. The Canada Food Inspection Agency required they destroy their seed potato crops, prohibited production and sale of potatoes from their lands, and placed restrictions on their farm equipment. The United States and Mexico closed their borders to potato exports, causing industry losses in Alberta. Alberta Seed Potato Assistance Programs were set up in 2008 and 2009. North Bank Potato Farms Ltd. and Haarsma Farms Ltd. received assistance payments, then commenced an action claiming their soil was negligently tested. The Canadian Food Inspection Agency and the Attorney General of Canada applied to strike or summarily dismiss the action, arguing in part that s. 9  of the Crown Liability and Proceedings Act , R.S.C. 1985, c. C‑50, applies to bar the action. A Master dismissed the application. The Court of Queen’s Bench granted an appeal and dismissed the action. The Court of Appeal dismissed an appeal.

38881

Diorite Securities Limited, as Trustee of The Fern Trust v. Trevali Mining (New Brunswick) Ltd.

(Ont.)

Property — Civil procedure — Appeals — Arbitration decision

Trevali Mining is the operator of an underground base‑metal mine located near Bathurst, New Brunswick (Caribou Mine) under a mineral lease granted by the Province of New Brunswick. Diorite Securities (acting as trustee) owns a ten percent net profits interest in the Caribou Mine, granted to it by a former lessee in an agreement dated August 9, 1990 (the NPI Agreement). Ownership of the Caribou Mine changed hands a few times and Trevali became the owner in 2012. In 2016 Caribou Mine became commercially operational. According to the NPI Agreement, Trevali provided Diorite with a Statement of Net Profits for the third quarter of 2016 which included a ‘Loss Pool’ estimating losses that previous owners of Caribou Mine incurred or ought to have incurred and carried over since 1990. The Loss Pool reduced the net profits to zero. The disputed net profits went to arbitration. The arbitrator concluded, amongst other matters, that the expenses included in calculating net profits were not limited to the current owner. Diorite applied for leave to appeal the arbitrator’s decision. The Ontario Superior Court of Justice determined that Diorite failed to raise an issue of law as required by the Arbitration Act, 1991, SO 1991, c 17, and the application was dismissed.