36535 Adrian Stefanita Tuduce v. Her Majesty the Queen
Criminal law – Offences – Elements of offence
The applicant was found in possession of 48 LCBO gift cards and a Scotiabank debit card, each of which had been encoded with data from a valid debit card account. Some of the cards had been used to complete transactions. He was also found in possession of equipment used to skim data from credit and debit cards. He was convicted of seven credit card fraud-related offences and sentenced to two years less a day’s imprisonment followed by two years’ probation. He was granted leave to appeal his sentence. His conviction and sentence appeals were dismissed.
36270 Peter Michalakopoulos v. Daniel Chénard, in his capacity as syndic ad hoc of the Barreau du Québec
Law of professions – Lawyer – Disciplinary complaints
In March 2004, the syndic ad hoc of the Barreau du Québec filed three disciplinary complaints against Peter Michalakopoulos, alleging mainly that he had used many dilatory, vexatious and excessive proceedings and had not complied with the directions given by certain judges in relation to three cases in which he had acted in his personal capacity and as counsel. Mr. Michalakopoulos applied for judicial review of the Professions Tribunal’s decision, which confirmed his guilt on several counts and upheld the disbarment penalties imposed on him in January 2008 by the discipline committee of the Barreau du Québec.
The applicant’s application for judicial review was allowed in part by the Superior Court, which found that the committee had made an error in principle in imposing the penalties. The Court of Appeal allowed the syndic’s appeal and reinstated the penalties imposed by the committee.
36633 Ida Bazargani v. Ryan Mizael
Family law – Custody
The husband and wife were married in Iran in 2004. They moved to Australia in 2006, where their daughter was born in 2010. In 2012, the mother was diagnosed as having an anaphylaxis condition. Following that diagnosis, she decided to visit with her parents in the Toronto area and took the daughter with her. She did not communicate any intention to move to Canada on a permanent basis. The husband financially supported the wife and child in Canada and repeatedly tried to visit with them. Eight months after leaving, the wife had a custody agreement sent to the husband that ostensibly provided her with sole custody and the right to choose the child’s residence. The husband signed it without first obtaining legal advice. In August, 2013, the wife instituted property proceedings in Australia. In October, 2013, the husband demanded the child’s return and the wife refused. She commenced divorce proceedings in Canada. The husband made Hague Convention applications in Australia and in Canada. The Ontario Superior Court of Justice ordered the child to be returned to Australia and the Court of Appeal dismissed the mother’s appeal.
36546 2251420 Ontario Inc. v. 1289012 Ontario Inc, Ossom International Developments Inc.
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2251420 Ontario Inc., Aliasghar Hariri and Tayebe Vahidtary v. 1289012 Ontario Inc, Ossom International Developments Inc.
Commercial law – Contracts – Commercial leases
The applicant, 2251420 Ontario Inc., asserts that an agreement to lease a service station between it and the respondent, 1280012 Ontario Inc., is not a valid and enforceable lease. The applicant claims that the lease was void ab initio because the respondent had previously leased the service station to Imperial Oil and was collecting rent from Imperial. In a counterclaim, the applicants sought the return of the rent it paid, as well as damages for wrongful taking of possession.
The Ontario Superior Court of Justice held that the agreement was a valid and enforceable lease, and awarded damages for rent due under the lease to the respondents. The Ontario Court of Appeal dismissed the applicants’ appeal.
36477 Davinder Khaper v. Air Canada
Human rights law – One-year limitation period – Vexatious complaints
On January 22, 2009, Davinder Khaper’s employment with Air Canada was terminated due to a history of “stealing time” and insubordination. In August 2009 Mr. Khaper obtained a medical report with a diagnosis neither party had been aware of previously. Mr. Khaper’s request that his employment be reinstated in light of the medical report was refused by Air Canada on November 23, 2009. On February 10, 2010, Mr. Khaper filed a complaint with the Canadian Human Rights Commission (“CHRC”) alleging discrimination by Air Canada on the grounds of race, ethnic origin, colour and disability, in relation to his termination and the refusal to reinstate his employment. The CHRC subsequently made a decision not to deal with the complaint because it was not made within the requisite time period and was vexatious. Mr. Khaper applied for judicial review of the CHRC’s decision.
The Federal Court dismissed the applicant’s application for judicial review of the Commission’s decision. The Federal Court of Appeal dismissed the applicant’s appeal.
36515 Peter Foustanellas o/a Argos Carpets, Argos Carpets Ltd. v. Ottawa Community Housing Corporation
Contracts – Commercial contracts – Breach
The applicant, Mr. Foustanellas, is the sole shareholder, president and director of Argos Carpets Ltd. (“ACL”), a carpeting contractor. Mr. Grimes, now deceased, was a former employee of ACL. The respondent, Ottawa Community Housing Corporation (“OCHC”), is an organization that provides subsidized social housing for low-income individuals in Ottawa. In 2004, OCHC invited competitive tenders for a one-year contract for the supply and installation of carpets and under pads in some of its housing units. It eventually accepted the lowest bid submitted by “Argos Carpets” (“Argos”). The bid was signed by Mr. Grimes and approved by Mr. Foustanellas. The contract between OCHC and Argos provided for a fixed charge per installed square yard of carpet and under pad, with no extra charge for wastage. It also set out certain quality criteria and other specifications for the product and services Argos was to provide. After the work began, OCHC began to suspect that Argos was overbilling them for the quantities of installed carpet and under pad in its units, and it conducted an investigation. In addition, much of the carpet supplied and the installations carried out by Argos were substandard. In May 2006, OCHC provided notice under the contract that it was withdrawing the remaining work from Argos. It also withheld payment allegedly due and owing to Argos for work performed. ACL responded by commencing an action against OCHC for amounts allegedly owing, together with damages for wrongful termination and breach of contract. OCHC sued Mr. Foustanellas, Mr. Grimes, Argos and ACL for compensatory, exemplary and punitive damages for breach of contract and fraudulent and/or negligent misrepresentation. The two actions were consolidated and heard together. OCHC’s action for breach of contract and fraudulent misrepresentation was allowed and the Court awarded compensatory and punitive damages on joint and several basis. The Court of Appeal set aside the trial judge’s award of punitive damages as against one respondent and the estate.
36573 Angela Carbone v. Peter Whidden, Peter G. Whidden Professional Corporation
Courts – Jurisdiction
In 2003, the applicant underwent a cosmetic liposuction surgery performed by the respondent. She alleged that the surgery was more extensive than that she had consented to and was unhappy with the results. She brought an action against the respondents alleging battery, lack of informed consent and medical negligence. The Court of Queen’s Bench of Alberta dismissed the Applicant’s action. The Appeal was dismissed.
36494 Dwayne Mullings v. Her Majesty the Queen
Criminal law – Evidence – Admissibility
The victim became involved in an altercation with a man who was trying to steal his car, which he had left running in his driveway. The man shot and wounded the victim as they struggled on the driveway. Their struggle moved into the garage, where the assailant shot him again, this time in the chest, before taking his wallet and fleeing in the car. The victim was found lying dead at the back of his garage. Two days later, the victim’s car was found in the parking lot of a high-rise in Scarborough, at the other end of the city. In statements made to police in April 2007, three associates said the applicant had confessed to the shooting while they were together in a car, on their way to buy guns. The trial judge ruled that Mr. Preddie’s evidence (one of the associates) at the preliminary hearing was admissible pursuant to the principled exception to the hearsay rule. The applicant’s first trial ended in a mistrial due to a hung jury. After a second trial, the applicant was convicted of first degree murder and sentenced to life imprisonment. The Court of Appeal dismissed the conviction appeal.
36533 Michael Witen v. Her Majesty the Queen
Charter of Rights – Criminal law – Trial within a reasonable time
The applicant was a tax preparer who was charged with two counts of fraud. At trial, the applicant unsuccessfully moved for a stay, claiming that his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter had been infringed. He then sought to exclude certain documents from evidence under s. 24(2) of the Charter, claiming that the authorities had seized the documents from his office and home in violation of his rights under s. 8 of the Charter. The trial judge dismissed the motions. The applicant was convicted of two counts of fraud. The applicant was sentenced to 3 years imprisonment and a fine of $448,000. The Court of Appeal dismissed the conviction and sentence appeals.
36628 E.L. v. G.B.
Family law – Divorce – Annulment of marriage contract
Following the parties’ divorce, E.L. sought to have the marriage contract establishing the matrimonial regime of separation as to property annulled on the basis that no independent legal counsel had acted in the case to explain the consequences of the chosen matrimonial regime. The Quebec Superior Court granted the divorce and the annulment was denied. The Appeal was dismissed.
36589 Gilles Patenaude v. City of Longueuil, Attorney General of Quebec
Criminal law – Appeal – Leave to appeal
Mr. Patenaude admitted that he had committed the offence in s. 310 of the Highway Safety Code but argued that he had a constitutional defence to raise. He alleged that s. 310 of the Highway Safety Code was contrary to s. 15.1 of the Canadian Charter. The Municipal Court rejected Mr. Patenaude’s defence. The Superior Court, which was of the opinion that the Municipal Court judge had been right to do so, found that the appeal had no reasonable chance of success and allowed the motion to dismiss the appeal. The Court of Appeal dismissed the motion for leave to appeal.