APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37768 Callidus Capital Corporation v. Her Majesty the Queen (F.C.)

Taxation – Customs and excise – Bankruptcy and insolvency

The applicant, a lender, entered into agreements with a debtor. Funds received by the debtor from all sources were held in trust for the applicant, segregated, deposited into blocked bank accounts, transferred to the applicant, and applied to the debt. The debtor collected GST and HST and included those amounts in the funds transferred to the applicant. The Crown claimed a deemed trust under the Excise Tax Act, R.S.C. 1986, c. E-15. The debtor made an assignment in bankruptcy. The Crown commenced a proceeding against the applicant. The applicant brought a motion on consent asking to have the following question answered: “Does the bankruptcy of a tax debtor and subsection 222(1.1) of the ETA render the deemed trust under section 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust?” McVeigh J. of the Federal Court answered the question in the affirmative. Near and Rennie JJ. A. of the Federal Court of Appeal allowed the appeal and answered the question in the negative (Pelletier J.A. dissenting).

37722 TELUS Communications Inc. v. Avraham Wellman (Ont.)

Civil procedure – Class actions – Consumer protection

The action involves claims by consumer and business customers against TELUS Communications Inc. Mr. Wellman, the representative plaintiff claims that during the class period, TELUS overcharged customers by rounding up calls to the next minute without disclosing this practice. TELUS’ contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS conceded that the effect of s. 7(2) of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A is that claims in respect of consumer contracts can proceed in court. It submits, however, that non-consumer claims, that is the claims of the business customer, are governed by the mandatory arbitration clause and ought to have been stayed.

The motions judge certified the class to include both consumers and non-consumers. It was determined that it would be unreasonable to separate the consumer and non-consumer claims and the motions judge declined to grant a partial stay. The issue on appeal was whether the motions judge erred in refusing to stay the non-consumer claims pursuant to s. 7(5) of the Arbitration Act, 1991, S.O. 1991, c. 17 which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect of which the proceeding was commenced and it is reasonable to separate the matters dealt with in the agreement from the other matters. On appeal, it was concluded that the motions judge was correct in applying Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481 to determine whether a partial stay of proceedings should be granted under s. 7(5) of the Arbitration Act in a proposed class proceeding involving both consumer and business customer claims. The appeal of TELUS was therefore dismissed.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37804 Andrew Wilby v. Her Majesty the Queen (Ont.)

Criminal law – Offences – Elements of offence

Officer Wilby was an on-duty police officer driving a cruiser when he received a dispatch call informing him that a suspect was fleeing and was being chased by fellow on-duty Officer Fisher. Officers Wilby and Fisher knew that the suspect was a fast runner who was known to run from police. For the purpose of assisting in apprehending the suspect, Officer Wilby executed a U-turn and accelerated his vehicle. The trial judge held that Officer Wilby deliberately drove onto the sidewalk and collided with the suspect while he was running on the sidewalk. Officer Wilby was convicted of dangerous driving. Tranmer J., sitting as a summary conviction appeal judge, held that the trial judge did not err and dismissed the appeal. The Court of Appeal declined to grant leave to appeal.

37776 Nicole Senécal and Roger Southin v. Jackie Boulay, Marie-Yvonne Paint, Royal LePage Héritage (David A. Mellor consultants inc.) and Richard Poirier (Que.)

Sale ‒ Immovable ‒ Defect of consent ‒ Essential element of contract

In June 2015, the applicants Nicole Senécal and Roger Southin purchased, from the respondent Richard Poirier, a prestigious, recently renovated residence in the City of Westmount on the island of Montréal for $1,725,000. When they took possession, the applicants discovered that the outdoor space next to their residence was not a parking space, contrary to the property description provided by the real estate brokers and to the information provided by one of the brokers during the first visit. After checking the location certificate, they realized that the space was not actually part of the property they had just purchased. In response, they instituted an action against Mr. Poirier and the other respondents, the real estate agency, Royal LePage Héritage (David A. Mellor consultants inc.), and the real estate brokers, Jackie Boulay and Marie-Yvonne Paint, seeking the annulment of the sale of the immovable, the restoration of the parties to their original positions and damages. The Superior Court declared the act of sale declared and allowed a motion by Richard Poirier to institute proceedings in warranty. The Court of Appeal dismissed the principal appeal filed by Jackie Boulay, Marie-Yvonne Paint and Royal LePage Héritage (David A. Mellor consultants inc.) and allowed the incidental appeal filed by Richard Poirier.

37797 Her Majesty the Queen v. J.L.M. (B.C.)

Charter of Rights and Freedoms – Section 12 of the Charter

The respondent, J.L.M., was convicted of one count of communicating with a person under the age of 18 years for the purpose of obtaining sexual services, and obtaining sexual services for consideration contrary to s. 212(4) of the Criminal Code, R.S.C. 1985, c. C-46. The offence carried a mandatory minimum sentence of six months’ imprisonment. J.L.M. was sentenced to seven months’ imprisonment. The majority of the Court of Appeal allowed the appeal, declared the mandatory minimum sentence in s. 212(4) of the Code to be of no force or effect, and imposed a sentence of nine months to be served conditionally in the community. The dissenting judge, Saunders J.A., would have held that s. 212(4) of the Code does not violate s. 12 of the Charter. Saunders J.A. would have reduced the sentence to the mandatory minimum.

37661 A.H. v. K.Z. (Que.)

Family law – Divorce – Default proceeding – Failure to file defence

A.H. and K.Z. solemnized their marriage twice: first in Morocco in 1990 and a second time in Quebec in 1991. In a 2016 judgment, a court declared the marriage solemnized in Quebec null. In 2016, the Superior Court granted the parties a divorce. A.H. contested the conclusions of the divorce judgment. The Court of Appeal dismissed the motion for leave to appeal.

37885 Katherine Lin v. Toronto Police Service Board, Information and Privacy Commissioner Ontario (Ont.)

Civil procedure

Ms. Lin made a request for access to records with the Toronto Police Services Board under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56, in relation to an investigation into an alleged assault. The police granted Ms. Lin partial access to the records. They withheld personal information of other individuals, relying on the discretionary personal privacy exemption in s. 38(b) of the Act, and information that was not responsive to the request. Ms. Lin appealed the police decision to the Information and Privacy Commissioner of Ontario. An adjudicator of the Commissioner partially upheld the police decision. The adjudicator ordered that some of the information, already within Ms. Lin’s knowledge, be released. The police complied with the adjudicator’s order and released the information to Ms. Lin. Ms. Lin sought reconsideration of the order, which the adjudicator denied. She then sought judicial review of the Commissioner’s decision in the Ontario Superior Court of Justice, Divisional Court. The application for judicial review was dismissed as frivolous, vexatious and abuse of process. The Court of Appeal dismissed the motion for leave to appeal.'