APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

SCC No.

Case Name

Province of Origin

Keywords

38672

Her Majesty the Queen v. Michael Philip Simard

BC

Charter of Rights and Freedoms — Right to liberty

38769

Les Placements Antis inc., et al. c. Raymond Chabot inc.

QC

Bankruptcy and insolvency —  Trustee

38841

Cadine Boechler, et al. v. Regina

BC

Criminal law — Criminal contempt of court

38741

Marc Bibeau c. La Presse Ltée, et al.

QC

Criminal law — Publication ban on content of informations in support of applications for search warrants 

38793

Betty Ann Wasylynuk v. Bernie Bouma, Lori Lee Scheck, Rick Bouma, Lindy Hager, The Estate of Tette (Ted) Bouma

AB

Wills and estates — Wills — Resulting trust

38810

Michael Davies v. Her Majesty the Queen

FC

Taxation — Appeals — Discontinuance

38843

Tonu Elmar Petersoo v. Karinna Margaret Gerda Petersoo

ON

Family law — Custody — Mobility rights

38792

Kenneth Hill v. Brittany Beaver

ON

Civil procedure — Case management

38706

Roger Townsend v. Her Majesty the Queen

ON

Charter of Rights  – Right to a fair trial

38809

Sean Lyndon Horse v. Her Majesty the Queen

SK

Criminal law — Defences — Colour of right

38815

Many Mansions Spiritual Center, Inc. v. Minister of National Revenue

FC

Taxation — Charitable status — Revocation

38789

Her Majesty the Queen in Right of the Province of British Columbia v. Teal Cedar Products Ltd.

BC

Civil Procedure — Appeal

38816

Susan Leah Santics v. Bob Cristofoli, Animal Control Officer for the City of Vancouver

BC

Municipal law — Animals — Dangerous dogs

38971

Rain Coast Water Corp. v. Her Majesty the Queen in Right of the Province of British Columbia, Bill Vander Zalm, Richard Roberts (also known as Dick Roberts)

BC

Torts — Municipalities — Misfeasance in public office

38711

West Van Holdings Ltd., West Van Lions Gate Dry Cleaners Ltd. v. Economical Mutual Insurance Company, Intact Insurance Company

BC

Insurance — Insurer’s duty to defend

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38672

Her Majesty the Queen v. Michael Philip Simard (B.C.)

Charter of Rights and Freedoms — Right to liberty — Criminal law — Provocation

Mr. Simard fatally shot his girlfriend and her former boyfriend after she cancelled weekend plans with him so that she could spend the weekend with her former boyfriend. At his trial on two counts of second degree murder, Mr. Simard claimed provocation. Section 232  of the Criminal Code  sets out that culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. However, s. 232(2) of the Criminal Code  in part limits provocation to conduct of the victim that would constitute an indictable offence punishable by five or more years of imprisonment. Mr. Simard applied for a declaration that this limitation breaches s. 7 of the Charter of Rights and Freedoms and a constitutional remedy. The trial judge granted the motion and severed the words that set out the limitation. The trial judge rejected Mr. Simard’s claim of provocation and convicted Mr. Simard as charged on both counts of second degree murder. Mr. Simard did not appeal the convictions. Crown counsel seeks leave to appeal from the constitutional decision.

38769

Les Placements Antis inc. and Claudia Russo v. Raymond Chabot inc. - and - Royal Bank of Canada, Toronto-Dominion Bank (Que.)

Bankruptcy and insolvency —  Trustee

Michael Mazzaferro, the bankrupt debtor in this case, was the principal shareholder and director of three companies specializing in the preparation of frozen pizza, which were declared bankrupt by judgment dated December 22, 2015. In December 2014, when the companies had already obtained, with their principal shareholder, several agreements for an extension of time in order to remedy defaults in payment, and when an application to appoint a receiver was pending before the courts, Mr. Mazzaferro was replaced as the president of the companies. At the same time, the applicant Les Placements Antis inc., which was controlled by the parents of Mr. Mazzaferro’s spouse, the applicant Claudia Russo, obtained two promissory notes: one for $5,656,255 issued by Les Placements Letizia inc. (a company controlled by Ms. Russo) and a second for $3,500,000 issued by Mazzaruss inc. (a company controlled by Mr. Mazzaferro). The two promissory notes were guaranteed personally by Mr. Mazzaferro and Ms. Russo, who agreed the same day to grant hypothecs on their properties in Senneville and Florida. The purpose of the notes was allegedly to safeguard advances of funds made to Les Placements Letizia inc. and Mazzaruss inc. On November 30, 2015, Mr. Mazzaferro declared bankruptcy and the respondent Raymond Chabot inc. was appointed trustee. The trustee then sought to exercise its seisin of Mr. Mazzaferro’s undivided share of the properties in Senneville and Florida. It applied for a declaration that the hypothecs granted by Mr. Mazzaferro to Les Placements Antis inc. could not be set up against it because they constituted a preference given to related persons pursuant to s. 95(1) (b) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3 . The Superior Court dismissed the trustee’s application. The Court of Appeal allowed the appeal, set aside the trial decision and declared that the two deeds of hypothec on Mr. Mazzaferro’s properties could not be set up against the trustee.

38841

Cadine Boechler, Victor Brice, Corina Bye, Rob Dramer, Aaron Goodbaum, Brandon Gosnell, Dianna Hardacker, Robert Allen Henrichson, Judy Kalyan, Tavin Kemp, Sharon B. Kravitz, Louise Leclair, Quin Laurence, Meeka Marsolais, Anneke Rotmeyer, Anne-Marie Mobach, Alexa Wood, Frankie McGee, Patricia White v. Regina (B.C.)

Criminal law — Criminal contempt of court

The applicants were convicted of criminal contempt of court for having defied an injunction restraining protestors from blocking access to Trans Mountain Pipeline’s worksites. The applicants filed an application, seeking an opinion on the state of the law of criminal contempt of court. The applicants took the position that the law on criminal contempt as set out in the majority judgment in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, should not be followed. Crown counsel took the position that United Nurses was a binding authority. The applicants’ application was dismissed. The appeals were dismissed by the Court of Appeal.

38742

Marc Bibeau v. La Presse Ltée, Media QMI Inc., Montreal Gazette, Director of Criminal and Penal Prosecutions, The Honourable Julie Riendeau, J.C.Q. (Que.)

Criminal law — Publication ban on content of informations in support of applications for search warrants

The applicant was a target of the Mâchurer criminal investigation initiated by the permanent anti‑corruption unit in 2013, which was an investigation into political financing and the awarding of public contracts in Quebec. Two general warrants were issued concerning premises linked to the applicant, but nothing was seized and no charges had yet been laid against him. The parties originally applied for and obtained access to the warrants and to the informations that led to the issuance of general warrants. The applicant then applied for publication bans, at least until the Director of Criminal and Penal Prosecutions decided whether the applicant would be charged, to ensure that his right to a fair hearing was not jeopardized. The respondent media organizations opposed the application and intervened in order to have the general warrants and the informations made public. The Court of Québec dismissed the motion for a publication ban on the content of the informations and related documents in support of the applications for general warrants. It held that, in the circumstances of the case, greater openness concerning facts that were already public could not create a risk of prejudice requiring intervention to limit publication based on the tests established by the applicable jurisprudence. The Superior Court dismissed the applicant’s motion for a writ of certiorari, finding that the trial judge had not made any reviewable error in distinguishing the jurisprudence from the applicant’s situation. The Superior Court held that the trial judge had not made a reviewable error in finding that there was a presumption of openness because the applicant had not discharged his burden of displacing that presumption. It also found that the trial judge had not exceeded her jurisdiction. The Court of Appeal unanimously dismissed the appeal and found that the trial judge had not made any jurisdictional error or any error of law on the face of the record and that no intervention was warranted.

38793

Betty Ann Wasylynuk v. Bernie Bouma, Lori Lee Scheck, Rick Bouma, Lindy Hager, The Estate of Tette (Ted) Bouma (Alta.)

Wills and estates — Wills — Resulting trust 

The testator, Mr. Bouma, died in 2007, leaving five surviving children. The applicant is one of Mr. Bouma’s daughters. The respondents are Mr. Bouma’s other children. Prior to his death, with the assistance of counsel and other professionals, Mr. Bouma executed the following documents:  four separate beneficiary documents in relation to insurance products; a1998 Will; a deed of gift in 2001; and a 2001 Will. The insurance policies all named Mr. Bouma’s son, Bernie, as the sole beneficiary. The deed of gift transferred all of Mr. Bouma’s assets to Bernie. The 2001 Will also designated Bernie as the sole beneficiary of the estate. The lawyer who prepared the deed of gift and the 2001 Will had Mr. Bouma obtain independent legal advice. He also sent Mr. Bouma to see two medical doctors who conducted independent assessments of Mr. Bouma’s mental capacity and signed certificates of competency. Following her father’s death, the applicant filed a statement of claim against the respondents alleging that Mr. Bouma lacked the requisite mental capacity to transfer his assets and that the transfers were unconscionably procured. She sought a share of Mr. Bouma’s estate and punitive damages. By way of summary judgment applications, the judge was asked to determine if the deed of gift, 2001 Will and beneficiary designations were valid. The application judge held that all documents executed by Mr. Bouma were valid. This decision was upheld on appeal.

38810

Michael Davies v. Her Majesty the Queen (F.C.)

Taxation — Appeals — Discontinuance

The applicant, Mr. Davies, was part of a group of appeals involving approximately 25 to 30 taxpayers.  The initial appeal concerned Mr. Davies’ 2005, 2006 and 2007 taxation years and involved the deductibility of certain capital cost allowance in respect of a purchased software licence. Mr. Davies was reassessed in 2009 and his claimed capital cost allowance was disallowed. He and certain other investors retained counsel to file appeals. Shortly after the appeals were filed, a meeting was held between the investors’ counsel and the group the investors. Mr. Davies attended the conference call and general parameters of settlement were discussed. Authority was given to resolve the appeals within the range of 20‑40 percent of deductibility of the capital cost. The investors’ counsel was to pursue resolution, the usual litigation steps and report periodically to the clients. From early December 2010 until September 2013, Mr. Davies had no communication with the investors’ counsel. The investors’ counsel and respondent’s counsel executed minutes of settlement and notices of discontinuance and the respondent issued notices of reassessments to Mr. Davies and the others based on the settlement reached.  Mr. Davies was not in agreement with the settlement. The respondent’s counsel proceeded to file the notices of discontinuance.

Mr. Davies sought to set aside the minutes of settlement and prevent the filing of the notice of discontinuance. The motions judge dismissed Mr. Davies’ request to set aside the notice of discontinuance and to reinstate his appeals. The respondent’s motion to dismiss the appeals was granted.  The Federal Court of Appeal dismissed Mr. Davies’ appeal.

38843

Tonu Elmar Petersoo v. Karinna Margaret Gerda Petersoo (Ont.)

Family law — Custody — Mobility rights — Administrative law — Natural justice

The parties were married in 2003 and have three children: a daughter born in 2007, and twin boys in 2009. The parents separated in 2011. They agreed to joint custody in a separation agreement with the children residing primarily with the mother and parenting time for the father on alternate weekends and sometime midweek. The children suffered emotionally and academically under this arrangement.  According to the mother, they were in crisis. She initiated the custody review procedure under the separation agreement. It was recommended by a physician that the children be enrolled in a school that offered a “direct instruction” system to address their educational needs. Unable to find an affordable and suitable place in Toronto, the mother found an appropriate school in Kitchener. The father did not agree that the children were having difficulties at school. He wanted them to stay at their current school and he wanted more time with them. The parties appeared before the lawyer for an arbitration. Shortly before the arbitration began, the mother gave notice that she wished to move from Toronto to Guelph so that the children could attend the school that she had found. The father did not object to the short notice nor did he request an adjournment at the arbitration hearing. The mother was awarded custody and was permitted to move from Toronto to Guelph with the children. The arbitrator awarded the father parenting time on a scheduled basis that eliminated his midweek parenting time. On appeal, the arbitration award was set aside on the basis that the short notice the father received on the mobility issue resulted in procedural unfairness. A re‑hearing of the parenting issues was ordered. The mother’s appeal from that decision was allowed and the arbitration award was restored.

38792

Kenneth Hill v. Brittany Beaver (Ont.)

Civil procedure — Case management — Aboriginal law

In late 2015, Ms. Beaver commenced an application against Mr. Hill, pursuant to the Family Law Rules, seeking relief under the Family Law Act, R.S.O. 1990, c. F.3, and Children’s Law Reform Act, R.S.O. 1990, c. C.12. In July 2018, Mr. Hill issued a notice of application for an order to have a certain judge “recuse himself from presiding over any further matters in relation to” Ms. Beaver’s family law proceeding. At a subsequent case conference, the case management judge was asked by Mr. Hill’s counsel to schedule a hearing for the recusal application.

38706

Roger Townsend v. Her Majesty the Queen (Ont.)

 

Charter of Rights  – Right to a fair trial – Applicant’s application for legal aid denied

The applicant and his wife were married in 2004. They had one son together. They had a very tumultuous relationship. The wife brought a motion for a restraining order. A motions judge granted the restraining order. The applicant was convicted of two counts of breaching a court order, and one count of criminal harassment. The applicant’s appeal was dismissed. The applicant’s motion for leave to appeal was dismissed by the Court of Appeal.

38809

Sean Lyndon Horse v. Her Majesty the Queen (Sask.)

Criminal law — Defences — Colour of right

 

On January 4, 2016, the applicant, Mr. Horse, approached the complainant, Mr. Lalonde, asking to borrow his cell phone in an effort to help the applicant find his dog. Mr. Horse then abruptly left with the phone, which he then dropped on the ground nearby. Mr. Horse’s version of the facts suggests that he had heard his dog barking, which prompted him to run away, with the cell phone mistakenly in his hand. When Mr. Horse came to the realization that he still had the cell phone in his possession, he dropped it in close proximity to Mr. Lalonde’s property and apologized. Later that same day, a police officer noticed an individual matching the description of Mr. Horse, and arrested him. Mr. Horse was charged with theft of property of a value not exceeding $5,000.

The trial judge convicted Mr. Horse of theft, finding that it was clear that Mr. Horse took the phone away from Mr. Lalonde and left the property with the intention of stealing it. Although Mr. Horse may have had an initial colour of right defence to explain his continued possession of the cell phone while he was on Mr. Lalonde’s property, this alleged defence was no longer available once Mr. Horse ran away with the phone. Mr. Horse’s appeals from his conviction, before the Court of Queen’s Bench and then the Court of Appeal, were dismissed.

38815

Many Mansions Spiritual Center, Inc. v. Minister of National Revenue (F.C.)

Taxation — Charitable status — Revocation

The respondent, Minister of National Revenue revoked the applicant, Many Mansions Spiritual Center, Inc.’s registration as a charity. The Minister’s decision followed an audit of Many Mansions’ 2011 and 2012 fiscal periods, the issuance of a notice of proposed revocation, an objection by Many Mansions, and reconsideration of the proposed revocation by the Tax and Charities Directorate of the Canada Revenue Agency. Many Mansions appealed the Minister’s decision but the appeal was dismissed.

38789

Her Majesty the Queen in Right of the Province of British Columbia v. Teal Cedar Products Ltd. (B.C.)

Civil Procedure — Appeal

The respondent, Teal Cedar Products Ltd. (Teal), held two licenses to harvest timber on Haida Gwaii. Teal brought an action against the applicant, the Haida Nation and the Haida Gwaii Management Council (HGMC) to recover losses it says flowed from the reduction of its allowable annual cut and restrictions on harvesting in certain areas of Haida Gwaii. The applicant brought an application under the British Columbia Supreme Court Civil Rule 6‑2 to remove the HGMC as a party on the basis that it lacked capacity to be sued and to strike Teal’s claim against the HGMC. The applicant’s application was dismissed by the chambers judge. The Court of Appeal dismissed the appeal.

38816

Susan Leah Santics v. Bob Cristofoli, Animal Control Officer for the City of Vancouver (B.C.)

Municipal law — Animals — Dangerous dogs

An animal control officer applied to the Provincial Court of British Columbia to have the applicant’s dog, Punky, destroyed pursuant to s. 324.1(10) of the Vancouver Charter, following its attack on a woman in a park in Vancouver. The Provincial Court of British Columbia found that Punky was a “dangerous dog” within the meaning of s. 324.1(1) of the Vancouver Charter and ordered that he be “destroyed” by a qualified veterinarian pursuant to s. 324.1(10). Both the Supreme Court of British Columbia and the Court of Appeal for British Columbia dismissed the applicant’s appeal from the Provincial Court of British Columbia’s order.

38791

Rain Coast Water Corp. v. Her Majesty the Queen in Right of the Province of British Columbia, Bill Vander Zalm, Richard Roberts (also known as Dick Roberts) (B.C.)

Torts — Municipalities — Misfeasance in public office

Rain Coast Water Corp was incorporated in 1983 for the bulk export and bottling of fresh water from British Columbia. Rain Coast obtained a foreshore licence of occupation over Crown land and licences to acquire provincial water. However, Rain Coast failed to pay, or was late in paying, the rentals due for these licenses and did not make use of them. As a result, the government terminated Rain Coast’s licenses. In November 1996, Rain Coast filed a claim against the respondents due to alleged conduct throughout the 1980s and 1990s. The statement of claim alleged the manipulation and curtailment of an export market for the sale of Crown water resulting in the loss of business opportunities for Rain Coast. The Supreme Court of British Columbia determined that British Columbia was liable for the misfeasance of public office by the Deputy Comptroller of Water Rights, Premier Bill Vander Zalm, and Richard Roberts. The trial judge also determined that Bill Vander Zalm and British Columbia committed the unlawful means tort. The Court of Appeal for British Columbia unanimously overturned the lower court decision and dismissed the action in its entirety.

38711

West Van Holdings Ltd., West Van Lions Gate Dry Cleaners Ltd. v. Economical Mutual Insurance Company, Intact Insurance Company (B.C.)

Insurance — Insurer’s duty to defend — Civil procedure — Costs

Since 1976, the applicants (collectively, “West Van”) have owned and operated a dry cleaning business on land in West Vancouver (“West Van Lands”). Between 1998 and 2002, Intact Insurance Company insured West Van under a commercial general liability insurance policy (“CGL”). The policy included coverage for property damage liability, but also contained a clause limiting coverage for property damage liability arising from pollutants. Between 2002 and 2012, Economical Mutual Insurance Company insured West Van under a CGL. The policy included coverage for property damage liability, but similarly contained a clause limiting coverage arising from pollutants. In 2014, the owners of lands situated adjacent to the West Van Lands filed a Notice of Civil Claim against West Van, alleging that West Van had allowed dry‑cleaning chemicals and petroleum products to be discharged or deposited into the soils and groundwater of the plaintiffs’ lands, thereby damaging and contaminating their lands. The action was pleaded in strict liability, negligence, nuisance, and a statutory cause of action under the Environmental Management Act, S.B.C. 2003, c. 53, The insurers refused to defend West Van on the basis that the underlying action was outside the scope of their policy coverage based on the pollution exclusion clauses. West Van filed a notice of civil claim seeking declarations that Intact and Economical were required to defend them. The application judge held that the insurers had a duty to defend and awarded costs to West Van on a full indemnity basis. The Court of Appeal overturned this judgment.