35773 Jamieson v. The Queen, et al. (Charter – Sections 9.1 and 9.2 of the Provincial Offences Act)
On appeal from the judgment of the Court of Appeal for Ontario pronounced December 19, 2013. The applicant, a driving instructor, was convicted on separate occasions of two provincial offences, one for providing driving instructions in a restricted area and one for failing to stop at a red light. Both offences were entered under s. 9.1(1) of the Provincial Offences Act. In both cases, the applicant filed a standard form Notice of Intention to Appear (“NIA”). The applicant also indicated on the NIA that he intended to challenge the evidence of the provincial offences officers who completed the certificates of offence. The applicant was also issued a standard from Notice of Trial (“NT”) which provided the date, time and location of his trial. In both cases, the trials were adjourned a number of times and on the dates the matters were finally spoken to, the applicant was not present. The applicant was not present when the charge of instructing in a restricted area was spoken to. After a review of the certificate of offence, he was convicted under s. 9.1 of the POA. A judge of the Ontario Court of Justice refused the applicant’s request to reopen the matter and the applicant then filed an appeal with the Ontario Court of Justice which was dismissed. At a rehearing of the second matter, the applicant did not appear but sent a friend to seek an adjournment. The adjournment was refused and the applicant was deemed not to dispute the charge and was convicted. His appeal was dismissed. The two cases were heard together at the Ontario Court of Appeal. The applicant challenged the constitutionality of s. 9.1 on the basis that it was used against him when he manifestly wanted a trial for each charge. He asserted that he was denied the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, contrary to s. 11(d) of theCharter of Rights and Freedoms. The Court of Appeal dismissed his constitutional challenge. The City of Toronto, however conceded that the applicant should have new trials on both matters because he did not receive a fair hearing on his appeals before the Ontario Court of Justice. On that basis, the appeal was allowed.
35930 Levin v. The Queen (Criminal law – Cross-examination)
On appeal from the judgment of the Court of Appeal for Alberta pronounced April 23, 2014. The applicant was convicted of three counts of sexually assaulting former patients. The Court of Appeal dismissed the applicant’s appeal.
35809 Couture, et al. v. The Queen (Legislation – Goods and services tax)
On appeal from the judgment of the Federal Court of Appeal pronounced February 6, 2014. In 1988, the applicants purchased a large piece of land near the Magog River with the intention of building a real estate development accompanied by a marina; cadastral subdivisions were even made for that purpose. However, when their plan did not materialize, they sold nine of the lots at a loss between 2003 and 2008. On the basis of expert advice, they believed that they did not have to collect or remit GST on those sales. The tax authorities did not agree and, in 2009, issued an assessment against the applicants as suppliers of “taxable supplies” for a total of $17,059; in 2013, they made a seizure before judgment of each applicant’s movable property and bank accounts for the total amount. The Tax Court of Canada dismissed the applicants’ appeal from their administrative review of the assessments. The Federal Court of Appeal dismissed the appeal.
35854 Somji v. Wilson, et al. (Civil procedure – Motion to strike pleadings)
On appeal from the judgment of the Court of Appeal for Alberta pronounced January 30, 2014. In a previous action, the applicant noted in default certain defendants and obtained default judgments from Wilson J. of the Court of Queen’s Bench of Alberta. The respondent law firm and lawyer, acting as counsel for those defendants, brought an application to set aside the default judgments on the basis of Rules 9.15(1)(a) and 9.16, arguing that the defendants had not been served notice. Wilson J. set aside the default judgments. The applicant appealed that decision but subsequently discontinued the appeal. The applicant now brings an action against the respondents alleging that the counsel had acted deceitfully to obtain the setting aside of the default judgments and that Wilson J. was functus officio and had no capacity to set them aside. The respondents brought separate applications to strike the Statement of Claim. The Court of Queen’s Bench of Alberta struck the claims against Wilson J. on the basis of Rules 9.15 and 9.16 and also due to judicial immunity. It further found that since the other respondents owed no duty to the applicant, no reasonable claim against them could be made. The Court of Appeal dismissed the appeal.
35473 Vuozzo v. The Queen (Charter of Rights – Criminal Law – Mr. Big operation)
On appeal from the judgment of the Court of Appeal for Alberta pronounced August 13, 2013. The applicant stabbed a man with a machete during a botched home invasion robbery. To prove second degree murder, the Crown relied in part on statements obtained in a Mr. Big operation as proof of intent. During the undercover Mr. Big operation, the police prepared the applicant for his meeting with “the boss” by staging a false traffic stop. During the stop, an undercover officer told the applicant to reveal his true name, a uniformed officer obtained the applicant’s name, and the uniformed officer told the applicant to contact a homicide detective who wanted to talk to him. Two days later the applicant met the “boss”. He confessed to the boss but he also made false statements. In a voir dire into the admissibility of the Mr. Bigevidence, the applicant argued that the traffic stop breached the rights to silence and to be free from arbitrary detention. He also argued that the Mr. Big evidence was unreliable. The Court of Queen’s Bench of Alberta admitted the statements obtained in the Mr. Big operation into evidence and entered convictions for second degree murder and break and enter. The Court of Appeal dismissed an appeal.
35503 J. Yuen, in the capacity as a Dispute Resolution Officer under the Manufactured Home Park Tenancy Act v. Sechelt Indian Band (Constitutional law — Interjurisdictional immunity — Federal paramountcy)
On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 5, 2013. In 1986, the enactment of the Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27 removed the Sechelt Indian Band from governance under the Indian Act, R.S.C. 1985, c. I-5. By virtue of that Act, the reserve lands of the Band were transferred to it in fee simple. In 2007, the Band sought to significantly increase the yearly rent to be paid by tenants of a manufactured home park situated on land owned by it. These proposed rent increases exceeded the limits provided for under the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 (the “MHPTA.). One of the tenants challenged the proposed increase before the provincial Residential Tenancy Board (the “RTB”), empowered under the MHPTA to consider and attempt to resolve disputes between landlords and tenants of manufactured home parks. The Band took the position that the RTB had no constitutional jurisdiction to hear this dispute as it concerned “Lands reserved for the Indians”, a matter of federal jurisdiction. The Dispute Resolution Officer of the RTB ruled that she did possess constitutional competence to adjudicate the dispute. She held that the proposed rent increases were ineffective. The Band filed an application for judicial review of that decision. The Supreme Court of British Columbia dismissed the application. The Court of Appeal for British Columbia allowed the appeal and issued a declaration that the MHPTA was constitutionally inapplicable to landlord-tenant relationships created by a lease on “Indian lands”.
35929 Badgerow v. The Queen (Charter of Rights – Criminal Law)
On appeal from the judgment of the Court of Appeal for Ontario pronounced April 8, 2014. The applicant has been tried three times for a murder that occurred in 1981. A conviction was quashed on appeal and two trials resulted in mistrials. Someone with knowledge of the murder called 911 two days after the murder. The Crown has not been allowed to lead evidence that the call was traced to a phone booth outside the applicant’s place of work. The Crown has commenced trial for a fourth time proceedings and will seek to put the call-trace evidence before a jury. A motions judge held that a fourth trial will breach s. 7 of the Charter and stayed proceedings. The Court of Appeal allowed an appeal and held that the call-trace evidence is admissible.
35916 Sundance Saloon Limited, et al. v. The Queen (Constitutional Law – Taxation)
On appeal from the judgment of the Supreme Court of Newfoundland and Labrador - Court of Appeal pronounced March 31, 2014. The applicants are lounges in the Province of Newfoundland and Labrador, licensed to purchase wines and spirits from the Newfoundland and Labrador Liquor Corporation for re-sale to customers. They paid a 10% levy to the Province on all of their purchases of wines and spirits between 2001 and 2006. On February 16, 2007, the class filed a Statement of Claim seeking a declaration that the levy was ultra vires the Province and seeking restitution of the monies paid under the levy. In 2008, in An Act to Amend the Liquor Control Act, S.N.L. 2008 c. 14, the Legislature amended the Liquor Control Act, R.S.N.L. 1990, c. L-18, and introduced, in s. 56.1, a retroactive tax on purchases of spirits and wines by the class members’ customers during the same time period as the levy. The amendments require the class to collect and remit the tax to the Province. The tax is calculated on retail sales prices but the Legislature deemed the amounts paid by the class pursuant to the levy to be payment in full for the tax. The applicants’ action was dismissed by the Supreme Court of Newfoundland & Labrador and their appeal was dismissed.
35935 Prince, et al. v. Air Canada (Civil procedure – Forum non conveniens)
On appeal from the judgment of the Court of Appeal for Ontario pronounced April 15, 2014. The plaintiffs brought a proposed class action in Ontario in 2008 that alleged that Air Canada had unlawfully charged them United States transportation taxes on Air Canada tickets that they had purchased. Ms. Prince is a U.S. resident who claimed that on several occasions she purchased tickets on the Air Canada website for travel exclusively within Canada. Whether she was located in the U.S. or Canada at the time of purchase, Air Canada charged her a “U.S.A. Transportation Tax” and a “U.S. Flight Segment Tax” on the basis that she was a U.S. resident. The other proposed plaintiff, Mr. Walach, is a Canadian citizen who claims that he purchased a ticket from Air Canada for a flight between Los Angeles and Calgary while in Canada at the time of purchase. He was charged with an “International Travel Facilities” tax. All charges for both plaintiffs were levied pursuant to the United States Internal Revenue Code, USC: Title 26 (the “Code”) on “taxable transportation”. At issue was whether Air Canada had in some cases improperly collected the U.S. taxes and whether it gave extra-territorial effect to U.S. tax laws in Canada. The plaintiffs sought various declarations against Air Canada and orders for, inter alia, restitution, accounting and damages for negligent misrepresentation. A preliminary question was whether the Canadian court had jurisdiction to adjudicate the dispute, raised in Air Canada’s motion to dismiss or stay the action. The Ontario Superior Court of Justice granted Air Canada’s motion in part, allowed the action to proceed in Ontario for tickets paid for in Canada by proposed the Canadian plaintiff and stayed the American proposed plaintiff’s claim for tickets purchased in U.S. The Court of Appeal dismissed the appeal and allowed the cross-appeal, staying the entire proceeding in Ontario pending pursuit of all the plaintiffs’ remedies and procedures in United States.