APPLICATION FOR LEAVE TO APPEAL GRANTED
Yulik Rafilovich v. Her Majesty the Queen
Criminal law – Sentencing – Fine in lieu of forfeiture
Mr. Rafilovich was charged with multiple offences. When executing search warrants in relation to the offences, the police seized $41,130.51 (Cdn) and $651 (US). In October 2009, the court ordered all seized funds released to defence counsel to meet Mr. Rafilovich’s legal expenses. Mr. Rafilovich pleaded guilty to all five charges. At the sentencing hearing, Crown counsel in part requested a fine in lieu of forfeiture of $41,9761.39 (Cdn). The sentencing judge declined to order a fine in lieu of forfeiture. The Court of Appeal allowed an appeal and imposed a fine in lieu of forfeiture.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Tzvi Lexier v. Attorney General of Canada
Extradition – Committal hearing – Evidence
The applicant, Mr. Lexier, manages a business that sold pharmaceuticals to doctors and clinics in the U.S.A. The companies managed by Mr. Lexier generated some $18 million in revenue by acquiring drugs in other countries and selling them in the U.S.A. at a much lower price than those approved by the American regulatory agencies. The Authority to Proceed (“ATP”) authorized the Attorney General to seek a committal on the Canadian charges of fraud and possession of property obtained by crime. Mr. Lexier was ordered committed for extradition. The Minister then surrendered Mr. Lexier to the U.S.A. for the Canadian offences set out in the ATP. The appeal and the application for judicial review were dismissed by the Court of Appeal.
F. Marc Holterman and Thomas S. Tiffin v. S. Andrew Fish and Attorney General of Canada
Charter of Rights and Freedoms — Fundamental justice — Civil procedure
The applicants commenced a civil action for misfeasance in public office against the respondents stemming from fraud and tax evasion charges laid against them. The action was subsequently discontinued on consent. Approximately one month after the discontinuance, the applicants discovered new information and brought a motion to set aside the discontinuance on the basis of “exceptional circumstances” and reopen the trial.
The motion to set aside the discontinuance was dismissed by the Superior Court. The Court of Appeal dismissed the applicants’ further appeal.
Jerry Reddick v. Attorney General of British Columbia
Charter of Rights and Freedoms – Criminal Law – Appeal
Mr. Reddick was convicted on two counts of assault causing bodily harm in 1988. He filed a notice of appeal in 1989. After a period of time during which no action was taken to proceed, the Crown applied to dismiss the appeal for want of prosecution. The Court of Appeal granted the motion and dismissed the appeal.
Robert Perron v. Josée Tremblay, in her capacity as Warden of Donnacona Institution, Jacques Bouchard, in his capacity as Vice Chairperson of the Parole Board of Canada, Correctional Service of Canada, Attorney General of Canada
Courts – Jurisdiction – Prerogative writs – Habeas corpus
After serving two thirds of a 54-month sentence for various sexual offences committed against teenagers, luring by means of a computer system and drug possession, Mr. Perron was released on statutory release in September 2016, but his release was revoked about a month later. Mr. Perron objected to that revocation to the Parole Board of Canada (PBC), which held a hearing in January 2017 and ordered that his parole be revoked. Mr. Perron appealed the revocation of his parole to the NPB’s Appeal Division, which dismissed his appeal in June 2017. In parallel with his appeal to the Appeal Division, Mr. Perron filed a motion in the Superior Court for a writ of habeas corpus with certiorari in aid. The Attorney General of Canada argued that the Superior Court lacked jurisdiction to intervene in a process with respect to an inmate’s parole. The Superior Court dismissed Mr. Perron’s motion for habeas corpus with certiorari in aid. The Court of Appeal dismissed the appeal aside from amending the Superior Court’s judgment to indicate that that court was declining jurisdiction over the motion.
Volodymyr Hrabovskyy v. Her Majesty the Queen
Courts – Federal court – Appeals
The applicant sought to appeal an order made by a judge, order of but his Notice of Appeal could not be accepted for filing as he had failed to follow Directions provided and it was out of time. The applicant attempted to file further documentation and motions but the Federal Court of Appeal issued three Directions to the Registry not to accept the applicant’s documents for filing for various reasons. The applicant filed two applications for leave to appeal.
Coast Capital Savings Credit Union v. Liberty International Underwriters, Liberty Mutual Insurance Company
Insurance – Insurer’s duty to defend – Contracts
A class proceeding was brought against the applicant for claims of breach of contract and deceptive acts or practices under s. 5 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2. The plaintiffs allege that during an eight year period, the applicant charged its members with undisclosed surcharges when they made foreign-currency withdrawals from their personal accounts through automated teller machines outside of Canada. The applicant denied the claim and reported it to the respondent insurers, who denied coverage on the basis of an exclusion. The Supreme Court of British Columbia dismissed a petition by the applicant to enforce indemnification by the respondents for the costs to defend against the class action. The court held that the class action fell within an unambiguous clause which excluded from coverage “any Claim based upon or arising from charges for services, including commissions and fees”. The Court of Appeal for British Columbia dismissed the appeal, rejecting the argument that the claims of misrepresentations and deceptive practices did not fall within the exclusion because they are concurrent, independent causes of the loss. The charges for service were at the foundation of those claims, since they arose from alleged incongruence between stated and imposed charges.
Kenneth Muir v. Her Majesty the Queen
Criminal Law – Appeal – Leave to Appeal
Two assailants with a firearm and a hatchet robbed a victim in an apartment building hallway. They fled in a vehicle and were pursued by police, then one perpetrator fled on foot and was chased by a police officer. The police arrested Mr. Muir. The officer who gave chase on foot found a backpack containing a hatchet, a loaded firearm, the victim’s wallet and identification, a bandana, crack cocaine and other items. The sole issue at trial was identification. The victim and a witness were unable to identify Mr. Muir in two photo line-ups because the perpetrators wore masks. The Crown relied on brief video surveillance footage of the robbery from the apartment building to argue that the clothing worn by Mr. Muir when he was arrested matched the clothing worn by one of the perpetrators. The officer who gave chase on foot gave eyewitness identification of Mr. Muir. A jury convicted Mr. Muir of armed robbery, firearms offences, and possession of cocaine. The Court of Appeal dismissed an appeal.
Chief Melvin Goodswimmer, Jerry Goodswimmer, Walter Goodswimmer, Francis Goodswimmer, Pierre Chowace, Mildred Chowace and Donald Badger, Councillors of the Sturgeon Lake Indian Band and on behalf of the Sturgeon Lake Indian Band v. Attorney General of Canada, Her Majesty the Queen in Right of Alberta
Judgments and orders – Summary judgments
The Sturgeon Lake Indian Band is a signatory to Treaty No. 8. The size of the band’s reserve was not properly calculated when it was surveyed in 1908. In 1985, Canada accepted to negotiate the band’s claim for further land entitlement. In 1987, the band issued a statement of claim against Alberta alleging that Alberta was in possession of lands that were subject to its land claims. In 1990, Canada and the band signed a settlement agreement and there was a companion Canada-Alberta agreement. The settlement was then reflected in a consent order ending the 1987 action. The agreements contained release and indemnity provisions in favour of Canada and Alberta.
In 1997, the band filed a lawsuit claiming additional land as promised in Treaty No. 8. Canada and Alberta brought applications to strike or summarily dismiss significant portions of the claim, alleging that the action was an attempt to re-litigate settled matters and that the limitation period had expired with respect to many of the claims. The case management judge struck and summarily dismissed many parts of the claim. The Court of Appeal dismissed the appeal.
Terry Tremble v. Her Majesty the Queen
Criminal law – Appeal – Unreasonable verdict – Defence
Ms. Roberts advised Mr. Tremble that she wanted a divorce. Mr. Tremble became upset, screamed at her and assaulted their eight month old son. Ms. Roberts was sufficiently concerned for her safety and the safety of her son that she went to the police. Mr. Tremble was arrested for assaulting their son and placed on a restrictive bail that essentially prevented him from seeing his son. Ms. Roberts was found dead in her basement. Mr. Tremble was charged with her murder. Before trial, the defence applied to admit a third party suspect defence, also referred to as an O’Connor application (R. v. O’Connor,  4 S.C.R. 411). The application judge dismissed the O’Connor application. The trial judge dismissed the third party suspect defence. After a trial by judge and jury, Mr. Tremble was convicted of first degree murder. His conviction appeal was dismissed by the Court of Appeal.
Samson Mac, Wilson Mak v. Sally Kit Hing Mak, Mary Siu Hing Mak, Nancy Mak, Annie Mak, Hanson Mak, and the estate of Sau Har Mak, deceased
Property – Real property
The case involves a dispute over ownership of a house following the death of, Sau Har Mak, in August 2012. Title to the house was listed as jointly held between the deceased and two of her daughters, Mary Mak and Sally Mak. Following the mother’s death, the property transferred in legal title to these two daughters. The two eldest sons, Samson Mac and Wilson Mak, disputed the joint ownership and sought a declaration of beneficial ownership indicating that the property was instead held in resulting trust for the mother, Sau Har Mak, which would therefore form part of her estate, to be distributed pursuant to the intestacy rules of the Estate Administration Act.
The trial judge found that there was sufficient evidence of an agreement to hold the property in joint tenancy. She dismissed Samson Mac and Wilson Mak’s claim for a declaration that the home was held in trust for their mother’s estate and granted Sally Mak and Mary Mak’s declaration that they were legal and beneficial owners of the property.
On appeal, the central issue was whether Samson Mac and Wilson Mak were entitled to a “supplementary trial” of issues and defences they did not plead or raise at trial. The Court of Appeal dismissed the appeal.
Agnes Jane Whitfield v. Bryan Whitfield
The Ontario Superior Court of Justice dismissed the motion to correct judgment and the Court of Appeal for Ontario dismissed the appeal.
Caiming Yang v. Re/Max Commercial Realty Associates, a.k.a. 482258 BC LTD. (Renamed as Re/Max Dwell Property Management Effective December 1, 2016), Strata Corporation of Strata Plan LMS 4084, Suzanna Laferte, Richard Achron, Doris Sze, Dan Martens, Olivia Lau, Real Estate Council of British Columbia, Government of British Columbia, City of Richmond
Property – Condominiums – Strata complex
Mr. Yang is the owner of a townhouse in a strata complex in Richmond, British Columbia. Since August, 2006 the complex has been managed by the respondent, Re/Max Commercial Realty Associates (“Re/Max”). Re/Max determined that the allocation of expenses between the Strata Corporation and its sections did not comply with legislation and bylaws and recommended that those expenses be reallocated to the Strata Corporation’s common budget. This recommendation was accepted by the owners, resulting in an increase in strata fees. Mr. Yang did not agree with the reallocation of expenses and brought three successive legal proceedings against Re/Max and other respondents. His first two actions were dismissed. After Mr. Yang commenced a third application, the respondents sought to have his claims dismissed on the grounds of, inter alia, res judicata and abuse of process. The chambers judge granted their application and dismissed Mr. Yang’s action. This decision was upheld on appeal.
James Patrick Boyer v. Her Majesty the Queen
Criminal law – Trial
The applicant, Mr. Boyer, owns and operates a licensed, domestic game farm which is stocked with elk. It is located in a zone that did not have an open elk season. Regulations required that all elk be tagged. A taxidermist, Mr. Moon, attended at the farm to shoot an elk. Mr. Moon shot two elk, one tagged and one untagged, which he later transported to B.C. Mr. Boyer was convicted of offences under The Wildlife Act, 1998, SS 1998, c W-13.12 and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, SC 1992, c 52. Mr. Boyer represented himself at trial. The appeal was dismissed by the summary conviction appeal judge. The Court of Appeal granted leave to appeal and dismissed the appeal.
Monica Loughlin v. Abigail Gordon, Colleen McLeod, Trademark Condominium Corporation 1024834
Charter of Rights – Right to fair hearing – Civil procedure
The applicant brought an action in Alberta against the respondents that was dismissed. Her subsequent appeal and application for leave to appeal were also dismissed. Costs were awarded against Ms. Loughlin in favour of Ms. McLeod at each stage of those proceedings. Ms. McLeod registered the costs judgements in New Brunswick, where Ms. Loughlin had relocated. A debtor examination followed, but no payment order was issued. Ms. Loughlin sought leave to appeal. Her motion was dismissed as was her application for leave to appeal. Ms. Loughlin then filed an application, requesting a stay of the enforcement of costs. This application was dismissed. The respondents’ motion to quash her notice of appeal or to dismiss the appeal was granted and her appeal was dismissed.
Dominic Vito Vetro v. Gabrielle Vetro
Family law – Support – Spousal support
Following the parties’ separation in November of 2008 after a 25 year marriage, the applicant failed to comply with interim orders requiring him to pay child support and to make full financial disclosure. He was frequently in arrears and there were numerous applications culminating in an order striking his pleadings prior to the hearing of the divorce action. An uncontested trial took place. The issues included spousal support and arrears, child support and arrears, arrears of s. 7 expenses and equalization of net family properties. The trial judge imputed income to the father and made orders for ongoing support and arrears of support. She also made an order vesting the father’s one-half interest in the matrimonial home in favour of the mother in partial satisfaction of his arrears and lump sum spousal support obligations. The father appealed the order striking his pleadings and the orders made by the trial judge. The Court of Appeal dismissed his appeal.
Haiden Suarez-Noa v. Her Majesty the Queen
Criminal law – Defence – Provocation
The applicant, Mr. Suarez-Noa, and Ms. Cowell began dating in July 2011, and they lived together. Their relationship was fractious and volatile from the outset. In September 2012, they had a baby boy. On March 8, 2013 they had a long argument via text messaging. Ms. Cowell told Mr. Suarez-Noa that the relationship was over. The next day, March 9, 2013, Ms. Cowell texted Mr. Suarez-Noa “baby wants daddy home”. Mr. Suarez-Noa returned to the apartment on the evening of March 9. In the late evening of March 9, the neighbours heard loud arguing in the apartment. On March 10, Mr. Suarez-Noa went to the police and told them that he had killed his girlfriend. The police went to the apartment and found Ms. Cowell’s body. Mr. Suarez-Noa’s counsel proffered the evidence of Dr. Julian Gojer, a psychiatrist. The trial judge allowed Dr. Gojer’s opinion evidence. After a trial by judge and jury, the applicant was acquitted of second degree murder and was convicted of manslaughter. The Court of Appeal held that Dr. Gojer’s opinion evidence that Mr. Suarez-Noa was provoked by Ms. Cowell’s comment went beyond the proper ambit of expert psychiatric opinion of disposition, that his opinion was also unnecessary in the relevant sense. The Court of Appeal set aside the acquittal on the charge of second degree murder and the conviction on the charge of manslaughter, and ordered a new trial on the charge of second degree murder.
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