37026 Steven Paul Boone v. Her Majesty the Queen
Criminal law – Offences – Elements of offence
Mr. Boone and a co-accused failed to disclose that they were HIV-positive before a group sexual encounter with two male complainants that included unprotected anal intercourse. Both complainants knew that one of them had syphilis but neither disclosed this to Mr. Boone or his co-accused. The accused were charged with aggravated sexual assault. The complainants testified at trial that they would not have consented to the sexual activity had the accused disclosed that they were HIV-positive. Defence counsel were allowed to cross-examine the complainants in regards to casual, unprotected sexual acts on other occasions with each other and with strangers, including group sex with others of unknown HIV-status. A jury convicted Mr. Boone on two counts of aggravated sexual assault. The Court of Appeal dismissed an appeal.
37025 Conserve Oil 1st Corporation v. Alberta Treasury Branches
Bankruptcy and insolvency – Procedure – Appeals
The applicant Conserve Oil 1st Corporation (“Amalco”) is the amalgamation successor of several old general partners. The old general partners acted as guarantors of credit facilities that the respondent Alberta Treasury Branches (“ATB”) had granted to other related entities in the partnership. Subsequently, those other related entities attempted to restructure. As a result, all of their assets and liabilities were transferred to a new limited partnership, COGI Limited Partnership (“COGI LP”), and Canadian Oil & Gas International Inc. (“COGI GP”) became the general partner of COGI LP. The related entities were dissolved, their credit facilities were repaid and cancelled, and COGI LP assumed their obligations and liabilities and entered into a new credit facility with ATB. ATB did not request that the old general partners or Amalco provide security for the new credit facility, nor did ATB ask them to acknowledge that the old guarantees secured the new debt. Amalco, created soon thereafter, has no direct contractual relationship with ATB.
The restructuring was unsuccessful, and ATB applied for and obtained a receivership order with respect to COGI LP, COGI GP and Conserve Oil Group Inc. ATB then sought a second receivership order adding Amalco to the receivership proceedings. The Court of Queen’s Bench of Alberta granted the receivership order. The Court of Appeal of Alberta dismissed the application for leave to appeal.
36786 Abdelhakim Bouarfa v. Attorney General of Canada representing the French Republic
Canadian Charter of Rights and Freedoms – Public international law
The applicant, Mr. Bouarfa, was convicted in absentia by French courts, first in 1993 and then in 1996. The convictions gave rise to prison sentences of 15 years in the first case and 10 years in the second. Mr. Bouarfa was arrested in Algeria a few years later and charged again with the crime of which he had been convicted in 1996, at the instigation of the French Republic. The case ended in a verdict of acquittal upheld by an Algerian appeal court. Mr. Bouarfa was arrested again, this time in Canada, still at the request of the French authorities, who sought a surrender order against him. The order was made by the respondent Minister in 2011. In 2012, the Quebec Court of Appeal allowed Mr. Bouarfa’s application for review in part. In accordance with the Court of Appeal’s conclusions, the Minister sent the French authorities a request for additional information. After receiving a reply to his request as well as submissions from Mr. Bouarfa’s counsel, the Minister made a new surrender order in 2014. Mr. Bouarfa applied for a second review of that decision but was unsuccessful.
37076 Elroy Ellis v. Ontario College of Teachers
Charter of Rights and Freedoms – Constitutional law – Right to fair hearing
Starting in 2005, the applicant’s behaviour began to concern the school where he worked, the School Board and eventually the Ontario College of Teachers. Among other things, he made a series of complaints to the Board that students were being abused at the school and that officials at the school were seeking to cover up indictable offences. However, when pressed for basic details on the alleged incidents, he refused to provide identifying information or respond to questions not in writing. The applicant was reprimanded for failing to comply with his legal obligation to report such matters and was suspended. The College was notified about the suspension and after investigation ordered the matter be referred to the Fitness to Practice Committee. The Fitness to Practice Committee found the applicant was incapacitated under the Ontario College of Teachers Act. It concluded the applicant was unfit to carry out his professional responsibilities and revoked his certificate. The applicant appealed this decision. The Ontario Superior Court dismissed the appeal on June 30, 2011. After a lengthy delay, the applicant brought a motion for an extension of time to the Court of Appeal for leave to appeal the Superior Court decision. The Court of Appeal dismissed the motion on April 27, 2016.
37058 Her Majesty the Queen v. Michael Chapman
Criminal law – Appeals – Mistake of age defence
Following a trial by judge alone, the respondent was acquitted of six sexual offences involving two underage girls: two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching and one count of obtaining for consideration the sexual services of a person under the age of 18 years, all contrary to the Criminal Code. The Crown appealed against the acquittals, except the acquittal on the procuring offence. The appeal was dismissed.
37031 Benson Group Inc., carrying on business as The Benson Group Inc. v. John Howard
Contracts – Breach – Remedies – Damages
The respondent was employed as a manager at an automotive service centre in Bowmanville Ontario under an employment contract for a five year term. The applicant terminated the respondent after 23 months, without cause, and advised that the respondent would be paid effectively two weeks’ severance pay. The respondent brought an action for breach of contract seeking his compensation for the unexpired portion of his contract. The Ontario Superior Court of Justice determined as a question of law under Rule 21 that a termination clause in the employment contract was unenforceable. The Court granted the respondent’s motion for summary judgment, but awarded him common law damages in lieu of reasonable notice for wrongful dismissal, with the quantum to be determined at a mini trial. The Court of Appeal for Ontario allowed Mr. Howard’s appeal and declared that he was owed an amount equal to his salary and benefits to the end of the term of his employment contract.
37100 E.DE. v. D.D.
Canadian Charter of Rights and Freedoms – Family law – Motion for leave to appeal
The parties married on August 10, 2001 and had two children together. The parties separated on August 17, 2011, and a judgment granting their divorce and corollary relief was rendered on November 29, 2012. The proceedings between the two former spouses related mainly to the support the father should pay the mother for the maintenance of their two children. The Quebec Superior Court dismissed the applicant’s motion concerning support. The Quebec Court of Appeal allowed the respondent’s motion to dismiss appeal.
37091 V.J.F. v. S.K.W. a.k.a. S.K.F.
Family law – Family assets – Division
The parties were married in 2004 and separated in March 2013. During the marriage, the parties adopted traditional roles with the wife remaining home to care for the children. At all material times, the husband was employed in a senior executive capacity in P. Co, where he was a member of a trusted inner circle of advisors, close to P. Co.’s principal. Mr. I. Early in their relationship, the husband purchased a home in his own name in Richmond, British Columbia, where the parties resided. That property was transferred into the wife’s name in 2010 for business purposes. The husband had a very close personal and business relationship with Mr. I, who died in 2011. At that time, Mr. F. was a director in 31 of Mr. I.’s related companies. Mr. I. had been concerned about Mr. F.’s potential liability as director and provided in his will for $2 million to be distributed to Mr. F to offset any personal liability that he might encounter. Mr. F. deposited that money into his personal bank account. In December, 2011, the parties purchased land in Vancouver to build a new home there. Title was taken in Ms. W.’s name alone, again for business purposes. Mr. F. transferred some of the $2 million from his own account into Ms. W.’s account to fund preconstruction costs. The parties separated in March, 2013 at an early stage in construction. They agreed to finish building and the home then sold in December, 2013. Approximately $2 million that was in dispute was deposited to a trust account following the sale. Mr. F. maintained that the $2 million gift had retained its character as excluded property despite the subsequent transactions, and was thus not subject to equal division. Ms. W. took the position that the money was no longer excluded property and was subject to equal division. The Supreme Court of British Columbia ordered that the husband’s inheritance was subject to equal division between spouses as family property. The Court of Appeal for British Columbia dismissed the Applicant’s appeal.
37072 Songyuan Liu v. Stephen Sik-Hong Wong
Torts – Negligence – Medical malpractice
Songyuan Liu sustained a serious knee injury in a motor vehicle accident in 2011. He had surgery to repair the knee involving the insertion of 19 staples. Approximately two weeks after the surgery, the staples were removed by his then family doctor, Dr. Wong. About a year later, Mr. Liu was assessed by a different doctor at the behest of the lawyer representing him in his tort claim arising out of the accident. That doctor’s assessment concluded that Mr. Liu’s knee was permanently injured and would not return to normal. The doctor was not asked to, and did not provide an opinion with respect to any injury that may have arisen as a result of the removal of the staples by Dr. Wong. On October 9, 2014 – more than three years after the removal of the staples and a follow up appointment with another doctor – Mr. Liu commenced an action for negligence against Dr. Wong, asserting that Dr. Wong did a poor job of removing the staples, breaking one of them in the process, causing him to suffer great pain and bleeding, and resulting in his knee becoming permanently injured.
Dr. Wong’s motion for summary judgment was granted by the Ontario Superior Court of Justice, and Mr. Liu’s medical malpractice action against Dr. Wong was dismissed on the basis that: the action was statute barred by a 2-year limitation period provided for in the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, s.4; and this was not one of “the clearest of cases” in which no expert’s report is required to support the plaintiff’s malpractice allegations. The Ontario Court of Appeal unanimously dismissed Mr. Liu’s appeal.
37023 Zigang Ren, Hart Fibre Trade Company Ltd. v. Shan Jin
Contracts – Unjust enrichment
In 2006, Zigang Ren went to China seeking investors for his Alberta-based hemp growing and processing business. On the basis of Mr. Ren’s promises, Shan Jin agreed to invest approximately $300,000 CDN for a controlling interest in the company. Mr. Ren never did identify other investors, and Mr. Jin’s shareholdings were never confirmed. By the spring of 2007, Mr. Ren had proposed to return Mr. Jin’s investment but only if Mr. Jin would guarantee that neither he nor any of his family members would be involved in any other hemp-related business in Canada or China. Mr. Jin refused those terms, and commenced an action to recover his investment monies.
The Alberta Court of Queen’s Bench allowed Mr. Jin’s action in unjust enrichment. The trial judge found Mr. Ren and Hart Fibre Trade Company jointly and severally liable for the return of approximately $300,000, plus pre-judgment interest, representing Mr. Jin’s investment in Hart Fibre that was never confirmed. The Alberta Court of Appeal unanimously dismissed the appeal, finding the trial judge had made no reviewable errors.