APPLICATION FOR LEAVE TO APPEAL GRANTED
SCC No. Case Name Province of Origin Keywords
38741 Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation BC Contracts — Pre incorporation contracts — Positive covenants
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
SCC No. Case Name Province of Origin Keywords
38667 Pieter Adriaan Vandenberg, et al. v. Robert Wilken, et al. ON Judgments and orders — Summary judgment — Partial summary judgment
38764 Travis Edward Vader v. Her Majesty the Queen AB Charter of Rights — Right to be tried within a reasonable time— Criminal law
38750 Rawia Salman v. Shawn Patey, et al. ON Torts — Professional liability — Negligence
38762 Eric Van Steenis v. Her Majesty the Queen Federal Court Taxation — Income tax
38778 Derek Shawn Froese v. Her Majesty the Queen MB Criminal law – Appeals – Powers of the Court of Appeal
38757 Michael Frank Okemow v. Her Majesty the Queen MB Charter of Rights — Search and seizure — Standing
38693 Helmut Oberlander v. Attorney General of Canada Federal Court Immigration and citizenship — Appeals to Federal Court of Appeal
38717 Stella Pinnock, et al. v. Birchcliffe Core-Harbour Inc. ON Contracts — Breach — Real property
 
 
 
 
 
 
APPLICATION FOR LEAVE TO APPEAL GRANTED

38741

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation (B.C.)

Contracts — Pre‑incorporation contracts — Positive covenants

Crystal Square is a mixed‑use retail complex, office tower, residential tower and hotel complex in Burnaby, B.C. Its developer, the Crystal Square Development Corporation and the City of Burnaby entered into an agreement that contains easements for access to parking facility and covenants to pay for that access (the “ASP Agreement”) in March 1999. The ASP Agreement, which was registered as an easement in the Land Titles Office on March 17, 1999, contained covenants to pay money and covenants that the Development Corporation and the City would have their successors assume the ASP Agreement. Strata Plan LMS 3905 was deposited on May 26, 1999, bringing the applicant, a strata corporation comprised of 64 strata lots in Air Space Parcel 2 (the “Owners”) into existence. The Owners never signed an assumption agreement adopting the terms of the ASP Agreement, as required by clause 16.3, and there was no evidence that they adopted custom bylaws. The respondent, Crystal Square Parking Corporation (“CSPC”), owns Air Space Parcel 5, the parking facility within Crystal Square. CSPC purchased the parking facility, took an assignment of the ASP Agreement and became “the ASP 5 Owner” in the ASP Agreement on June 28, 2002. Although the Owners generally abided by the ASP Agreement, they took issue with certain matters under that agreement. Those disputes eventually led to the Owners’ decision to seek an order that the positive covenants, and, in particular, the promises to pay the annual base rate and a percentage of operating expenses related to the parking facility were unenforceable against the Owners. The trial judge found that the payment provisions were not binding on or enforceable against the owners, allowed the claim, and dismissed CSPC’s counterclaim. The Court of Appeal allowed CSPC’s appeal.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38667

Pieter Adriaan Vandenberg, Catherine Ann Vandenberg and 1060205 Ontario Inc. v. Robert Wilken and Angela Wilken (Ont.)

Judgments and orders — Summary judgment — Partial summary judgment

Mr. and Ms. Wilken are the owners of two farm properties located in Howick Township that they purchased in January 2015. Each of the properties is approximately 100 acres and their custom home is located on one of those properties. In 2016, Mr. and Ms. Wilken entered into listing agreements for the two properties and permitted the agents to erect signs on the properties advertising that they were for sale. They allowed Mr. and Ms. Vandenberg onto the properties.  Mr. and Ms. Vandenberg made an offer to purchase the properties that was not accepted by the Wilkens. The Wilkens signed the offer back at a higher price that the Vandenbergs accepted. The Wilkens indicated a few days later that they wanted to cancel the listing and that they had decided not to sell the properties. The Vandenbergs brought an action for specific performance and damages for breach of the APS. The Wilkens defended the action on the basis that the agreement was an unconscionable transaction and that they had been misled, pressured and coerced by the agents, who had represented both sides on the transaction, into signing it. The Wilkens also made allegations of non est factum, collusion and conspiracy against the Vandenbergs and the third party real estate agents. The Vandenbergs subsequently moved for summary judgment enforcing the APS and granting specific performance. The motion judge granted partial summary judgment. He held that the agreement was valid and binding, and had been breached by the Wilkens, but declined to grant specific performance. He sent the issue of damages to trial. This decision was reversed on appeal and the issues were remitted to the trial judge for determination.

38764

Travis Edward Vader v. Her Majesty the Queen (Alta.)

Charter of Rights — Right to be tried within a reasonable time — Criminal law

Mr. and Mrs. McCann disappeared on July 3, 2010, and have not been seen since. Based on information connecting Mr. Vader to the McCanns’ vehicle and cell phone, as well as other evidence, Mr. Vader was charged with two counts of first degree murder, on April 18, 2012. The trial was scheduled to begin in April 2014. However, in March 2014, the prosecution entered a stay of proceedings as a result of disclosure issues; proceedings resumed in December 2014, with the trial scheduled for March 2016. In October 2015, Mr. Vader filed an application for a stay of proceedings, alleging an abuse of process and a breach of his right to be tried within a timely manner under s. 11(b) of the Charter. The application was dismissed. Mr. Vader pled not‑guilty at the opening of the trial in March 2016. The trial (by judge alone) concluded in June 2016, and a verdict was reached in September 2016; Mr. Vader was found guilty of second degree murder.

Mr. Vader filed an application asking to vacate the guilty verdicts and declare a mistrial, arguing that the trial judge erroneously relied on s. 230 of the Criminal Code, which had previously been declared unconstitutional, and raising a reasonable apprehension of bias. The application was dismissed. While the trial judge admitted he had relied on s. 230 in error, he refused to declare a mistrial, and substituted manslaughter convictions for the second degree murder convictions. Mr. Vader was sentenced to life imprisonment on January 25, 2017. Mr. Vader’s appeal was unanimously dismissed on May 17, 2019. The Court of Appeal found that although the delay exceeded the presumptive ceiling for a reasonable length of trial, it was not unreasonable in this case, due to its complexity. The Court of Appeal also rejected Mr. Vader’s argument that the doctrine of functus officio prevented the trial judge from correcting his mistake.

38750

Rawia Salman v. Shawn Patey and Patey Law Group (Ont.)

Torts — Professional liability — Negligence

On June 3, 2006, Rawia Salman was involved in a motor vehicle accident. She brought a statement of claim against the respondents, a lawyer and his firm, alleging that they were negligent in their representation of her for the motor vehicle accident, her statutory accident benefits, her disability claims, and her life insurance. The motion judge found that Ms. Salman knew of Mr. Patey’s alleged negligence in January of 2009 when she dismissed him as her counsel. As a result, she was barred by the Limitations Act, 2002, SO 2002, c 24, Sch B, from bringing an action against Mr. Patey and his firm many years later. The judge granted the motion for summary judgment and dismissed Ms. Salman’s action. The Court of Appeal for Ontario subsequently dismissed a motion for an extension of time to appeal the summary judgment. No reasons were provided beyond the order. In a separate three paragraph judgment, the Court of Appeal for Ontario reviewed the dismissal of the motion for an extension of time to appeal. It determined that the motion judge applied the correct test and made no error. It dismissed the appeal.

38762

Eric Van Steenis v. Her Majesty the Queen (F.C.)

Taxation — Income tax

Mr. Van Steenis borrowed $300,000 to buy units of a mutual fund trust in 2007. Between 2007 and 2015, he received distributions from the mutual fund totalling nearly $200,000. The fund characterized the distributions as “represent[ing] distribution[s] or return[s] of capital” in the T3 Statements of Trust Income Allocations and Designations that were issued to Mr. Van Steenis. Mr. Van Steenis used some of the money to reduce the loan’s outstanding principal, but the majority of the money was used for personal purposes. Relying on the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), Mr. Van Steenis deducted all of the interest paid on the loan from his taxable income in 2013, 2014 and 2015.

The Minister reassessed Mr. Van Steenis’ taxable income for those years and denied a portion of the income deducted on the grounds that the distributions used for personal purposes were no longer being used for the purposes of earning income. Mr. Van Steenis’ appeals of the reassessments were dismissed, as was his subsequent appeal.

38778

Derek Shawn Froese v. Her Majesty the Queen (Man.)

Criminal law — Appeals — Powers of the Court of Appeal

The police observed the applicant driving while the tail lights on his truck were not illuminated. The police conducted a traffic stop. The police noted the smell of alcohol from the applicant’s breath. Samples of his breath were provided to the police. The applicant was arrested for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood. The applicant was convicted of “over 80”. The applicant was sentenced to a fine of $1,800 and a one-year driving prohibition. The applicant appealed his conviction, and the summary conviction appeal is scheduled for hearing on November 19, 2019. The applicant also filed a motion seeking to stay his driving prohibition pending the appeal. The motion for a stay of the driving prohibition was dismissed. The applicant sought leave to appeal pursuant to s. 680 of the Criminal Code, R.S.C. 1985. c. C-46. Hamilton J.A. held that the Court of Appeal had no jurisdiction to review the decision and dismissed the application.

38757

Michael Frank Okemow v. Her Majesty the Queen (Man.)

Charter of Rights — Search and seizure — Standing

After shots were fired at three men walking on a downtown street in Winnipeg, resulting in a homicide and an injury, police responded to a “gun seen” call near a residence. Police then received another call regarding a man hiding in proximity to the same residence. On arrival, police officers observed the applicant, Michael Frank Okemow, whom they believed matched the shooting suspect’s description, enter another nearby residence. When police knocked on the door, Mr. Okemow answered and gave the officers permission to come inside and speak with him. Mr. Okemow then provided a false name and informed the police that although he stayed at the residence, he was unaware of the identity of the owner. As officers searched the house, Mr. Okemow was detained outside in order to confirm his identity. During the search, the police found two firearms, one of which was later identified as the weapon used in the shooting. Mr. Okemow was subsequently arrested and charged with murder and attempted murder.

At trial, Mr. Okemow challenged the admissibility of the evidence obtained by police, arguing that the search of the residence violated his right to be free from an unreasonable search or seizure, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms, and that his detention outside the premises violated his right to counsel pursuant to s. 10(b) of the Charter. Mr. Okemow therefore submitted that the evidence from the search of the residence, including the firearms, should be excluded from his trial. The trial judge found that Mr. Okemow did not have standing to invoke s. 8, and that despite a technical s. 10(b) violation, the evidence was admissible. Mr. Okemow was convicted of second degree murder and attempted murder. The Court of Appeal confirmed the trial judge’s decision, deemed the evidence admissible, and upheld the convictions.

 

 

38693

Helmut Oberlander v. Attorney General of Canada (F.C.)

Immigration and citizenship — Appeals to Federal Court of Appeal

This is the Governor in Council’s (GIC) fourth attempt to revoke Mr. Oberlander’s Canadian citizenship because he was found to have significantly misrepresented his wartime activities to Canadian immigration and citizenship officials when he applied to enter Canada. Mr. Oberlander was born in 1924, in Halbstadt, Ukraine, and became a German citizen during World War II. After the war, he applied with his wife to enter Canada in 1952, was admitted in 1954 as a permanent resident, and obtained Canadian citizenship in 1960. In 1995, RCMP officers commenced an investigation regarding his involvement in war crimes. Days later, the process of revoking his citizenship began. In 2000, the Federal Court first found that Mr. Oberlander had obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances. On three occasions — in 2001, 2007 and 2012 —, the GIC attempted to revoke Mr. Oberlander’s citizenship. Each time, the decision was set aside by the Federal Court of Appeal and the matter was remitted back to the GIC for reconsideration. On June 20, 2017, the GIC issued Order in Council PC 2017-793 to revoke Mr. Oberlander’s citizenship for a fourth time on the grounds that he was complicit in crimes against humanity, having made a voluntary, knowing and significant contribution to the crimes committed by Ek10a. Mr. Oberlander applied to the Federal Court for judicial review of the GIC’s decision. On May 1, 2018, the Federal Court dismissed Mr. Oberlander’s motion for recusation with costs. On September 27, 2018, the Federal Court dismissed Mr. Oberlander’s application for judicial review of the Governor in Council’s decision to revoke his Canadian citizenship with costs. On November 7, 2018, the court lifted the stay of the judgment, confirmed that the application for judicial review was dismissed, and found that no question of serious general importance was to be certified. On April 24, 2019, the Federal Court of Appeal ordered that Mr. Oberlander’s notice of appeal from be removed from the court file and that the file be closed.

38717

Stella Pinnock and Stainton Pinnock v. Birchcliffe Core-Harbour Inc. (Ont.)

Contracts — Breach — Real property

The case involves a failed real estate transaction. The respondent Birchcliffe Core‑Harbour Inc. sought a summary judgment in the amount of $187,500 against the applicants, the Pinnocks, as damages for loss of bargain and the return of its deposit in the amount of $25,000. The Pinnocks defended the claim and counterclaimed that the respondent bargained in bad faith.

The Superior Court found that summary judgment was appropriate in this case; the respondent was entitled to damages: its deposit was ordered returned but damages did not include any amount for loss of bargain. The Court of Appeal allowed the appeal finding the respondent was also entitled to damages for loss of bargain.