APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37997 St. James No.1 Inc. v. Ed Vanderwindt, Chief Building Official and City of Hamilton (Ont.)

Municipal law – Heritage properties – Demolition or removal of structure

The applicant, St. James No.1 Inc., is the owner of a building designated by the City of Hamilton as a property of cultural heritage under s. 29 of the Ontario Heritage Act, R.S.O. 1990, c. O.18. In 2015, it applied to the City for permission to demolish the building on the property. The City refused the application and notified St. James No.1 Inc. by registered letter sent to the address of its sole director and officer instead of to the company’s registered address. Section 34(4) of the Act deems a municipality to have consented to an application if it fails to notify pursuant to s. 34(2)(b) the owner of the property within the specified time. By failing to serve the notice to the owner’s registered address, St. James No.1 Inc. argued that the City did not comply with s. 67(1)(b) of the Act and was therefore deemed to have consented to the demolition. St. James No.1 Inc. applied unsuccessfully for declaratory relief to that effect. The Court of Appeal dismissed the appeal.

37962 9071-3975 Quebec Inc. v. Fernand Pascoal, Multi-Portions inc. (Que.)

Contracts – Non-performance – Resiliation

The parties entered into an agreement whereby the applicant, 9071-3975 Quebec Inc., would provide the respondent Multi-Portions inc. with 2 million dollars in financing in exchange for a certain amount of its preferred and common shares. 9071-3975 Quebec subsequently provided two advances to Multi-Portions to ensure that the latter could continue to operate. Less than a year after entering into the agreement, 9071-3975 Quebec proposed to change the terms of the agreement: a loan secured by a hypothec on all of Multi-Portion’s movable assets would replace the transfer of preferred shares in the company. The proposal was never accepted, and following several exchanges between their legal counsel, the parties considered the agreement to have been resiliated. Multi-Portions sought financial assistance elsewhere, and 9071-3975 Quebec brought an action against Multi-Portions seeking repayment of the advances it had provided. Multi-Portions counter-claimed for damages resulting from 9071-3975 Quebec’s alleged breach of contract arising out of its unilateral resiliation of the agreement without cause. The Superior Court allowed 9071-3975 Quebec’s claim for restitution of the funds and ordered repayment, but dismissed Multi-Portion’s counter-claim in damages. The Court of Appeal allowed the appeal in part, finding that Multi-Portions was entitled to damages.

37939 Fun Club International FCI Inc. and Café Yala Habiziz inc. v. Attorney General of Quebec (Que.)

Legislation – Interpretation

Fun Club International FCI Inc. had been operating a cigar room in Ville Saint-Laurent since at least 2002. In May 2006, s. 8.1 of the Tobacco Control Act came into force. It required such establishments to meet certain conditions in order to continue operating. In 2014, Fun Club International FCI Inc. moved its room to a building located near the previous building. The government then informed it that this extinguished its right to operate a cigar café. In response, Fun Club International FCI Inc. instituted the proceedings that gave rise to this leave application.

The Superior Court was of the view that the action was late and should be dismissed on that basis alone. It was also of the view that s. 8.1 of the Tobacco Control Act was not ambiguous and that, properly interpreted, the right it created was attached to a specific place. Fun Club International FCI Inc.’s right to operate the cigar room had therefore been extinguished when its business moved. The Court of Appeal interpreted the applicable provision in the same manner as the Superior Court.

38091 Myriam Mamouni v. Her Majesty the Queen (Alta.)

Charter of Rights and Freedoms – Unreasonable delay

In March 2010, border services in Toronto intercepted four packages containing cocaine shipped to different addresses in Calgary. After a police investigation, on March 31, 2010, Ms. Mamouni was charged with importing cocaine and possession of cocaine for the purposes of trafficking. She was convicted on both counts. The joint trial with co-accused did not start until May 6, 2013, and time from the swearing of the Information until conviction was 5 years and 3 days. Ms. Mamouni and her co-accused brought a Jordan/Cody motion seeking a stay of proceedings for breach of s. 11(b) of the Charter. At issue in part was delay caused by Crown counsel’s disclosure deficiencies. The motions judge dismissed the motion for a stay of proceedings. On appeal, time taken by the trial judge to reach a decision and to prepare reasons for judgment also was raised in issue. The Court of Appeal dismissed an appeal.

37970 Jesslyn Ellis Byrn also known as Jackie Byrn v. Farris, Vaughan, Wills & Murphy LLP (B.C.)

Torts – Duty of care – Wills and estates – Intestacy

The applicant’s mother died intestate in 1981. Prior to her death, the applicant alleges that her mother had instructed her solicitor to sever the joint tenancy in the matrimonial home she owned with her husband. The solicitor did not carry out those instructions. Her legal interest in the home passed to her husband without passing through her estate. The applicant’s father died in 1991, leaving a will in which he divided his estate into four equal shares amongst his four children. His estate sold the home to a third party in 1993. The applicant obtained a statutory declaration signed by her mother’s solicitor in 1981, just prior to the mother’s death, that made reference to severance of the joint tenancy in the matrimonial home. The Land Titles Office had no record of the statutory declaration. The applicant was granted leave to file a claim against the respondent law firm for professional negligence in failing to sever the joint tenancy. The respondent law firm moved for summary judgment order, dismissing the action as statute-barred. The chambers judge granted the motion, a decision that was upheld on appeal.

38141 Lawrence Watts v. Her Majesty the Queen (Ont.)

Appeal – Leave to Appeal

Mr. Watts prepared income tax returns for 241 taxpayers. The returns claimed non-existent losses from non-existent businesses. Over $2.7 million in refunds were issued. Mr. Watts took over $149,000 as fees. Canada Revenue Agency detected the fraud and obtained search warrants from the Ontario Court of Justice, under s. 487 of the Criminal Code, to investigate offences under the Criminal Code and the Income Tax Act. Crown counsel prosecuted Mr. Watts before a jury on two counts of fraud, the offence set out in s. 380(1)(a) of the Criminal Code. Mr. Watts applied for an order quashing the warrants. The trial judge dismissed the application. The jury convicted Mr. Watts on both counts. The Court of Appeal dismissed an appeal.

38042 Neil Alan Lymer v. Diane Jonsson, Georgina Porozni, Natalie Minckler, Keith Porozni, Willis Porozni, 1146601 Alberta Ltd., 1419253 Alberta Ltd., 782409 Alberta Ltd. (Alta.)

Civil procedure – Contempt of court – Bankruptcy and insolvency

In 2010 Mr. Lymer filed a proposal under the Bankruptcy and Insolvency Act, but it was rejected because it failed to account for more than $20 million owed by him and approximately twenty corporations (“Lymer Companies”) of which he was the sole shareholder and director. In March 2011, Mr. Lymer was deemed a bankrupt. In 2013 and 2014, the Registrar in Bankruptcy ordered Mr. Lymer to disclose records relating to his and the Lymer Companies’ financial affairs and directed how the documents should be described and bundled. Mr. Lymer did not meet the deadline for filing the affidavits of records. Subsequently, the Registrar held Mr. Lymer in contempt in relation to a false affidavit which he had sworn and for failing to file adequate affidavits of records as directed. Although Mr. Lymer challenged both the findings of contempt and the jurisdiction of the Registrar to make that finding on appeal, he was unsuccessful. The respondents then filed a second application to have Mr. Lymer held in contempt, renewing their complaints about his failure to comply with the disclosure orders and alleging other contemptuous behaviour. The respondents also obtained an order directing Mr. Lymer to provide further answers because his responses did not fully address their questions. The respondents’ application before the Registrar in Bankruptcy alleging new grounds for finding Mr. Lymer in contempt was dismissed. The Registrar also concluded that Mr. Lymer was non-compliant with the disclosure orders and that his answers to written questions were similarly evasive so that he had not purged his first contempt. Mr. Lymer’s appeal from that order was dismissed. His further appeal to the Court of Appeal was also dismissed.

38035 Hyunjin Chung also known as Hyunjin James Chung also known as James Chung, Dae Shik Chung also known as David Chung, Dae Shik Chung doing business as Geolica Vision, the said Geolica Vision, Kyung Ja Chung v. Jung Yip Shin (B.C.)

Arbitration – Civil procedure – Estoppel

Geo Medical Co. Ltd. (“Geo Korea”) is a Korean manufacturer and distributor of coloured contact lenses and related products. In early 2012, the applicant, Mr. James Chung, registered his sole proprietorship, Geo Medical Canada and obtained a business license to import, distribute and sell contact lenses. In March 2012, Mr. Chung approached the respondent, Mr. Shin, with a view to having him invest in the business. They agreed to incorporate a jointly held company, Geo Medical Inc., with the profits to be shared 60/40 in favour of Mr. Chung. Mr. Shin invested money in the business by way of a shareholder loan. Before the company was incorporated, Mr. Chung entered into the Exclusive Distributor Agreement and Asset Purchase Agreement with Geo Korea and agreed to assign and transfer all rights and benefits under those agreements to Geo Medical Inc. upon incorporation. Differences between Mr. Chung and Mr. Shin arose. Mr. Shin eventually brought two actions against Mr. Chung while a third action against Mr. Shin was commenced by Mr. Chung. The parties eventually agreed to submit all of the issues in the three actions to arbitration. The Arbitrator found in favour of Mr. Shin and he was awarded the sum of $259,700. The applicants sought leave to appeal from the arbitrator’s award. The application for leave to appeal was dismissed. That decision was upheld on appeal.

37750 Jean-Pierre Gilbert, Fiducie Jean-Pierre Gilbert and Jean-Pierre Gilbert Bénéficiare v. Josée Lacombe (Que.)

Civil procedure

The applicant Mr. Gilbert and the respondent Ms. Lacombe were de facto spouses for nearly 11 years. In 2015, Ms. Lacombe brought proceedings against the applicants in connection with her separation from Mr. Gilbert. At the case management stage, the applicants applied to strike allegations from Ms. Lacombe’s application. They also objected to disclosing certain documents for the purposes of the examination after defence of Mr. Gilbert.

The Superior Court dismissed the application to strike allegations, finding that the evidence could not justify it. It allowed in part the applicants’ objection to the disclosure of documents and ordered that certain documents be given to Ms. Lacombe. The Court of Appeal refused to hear the appeal.