APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
38144 Ronald Baldovi v. Her Majesty the Queen
Courts – Judges – Reasonable apprehension of bias
In 2012, a large investigation of drug trafficking resulted in Mr. Baldovi and 22 others being charged with drug offences, proceeds of crime offences, firearms offences and conspiracy offences. The bulk of the Crown’s evidence was collected pursuant to six judicial authorisations for wiretaps and video surveillance issued by Mainella J., then on the Court of Queen’s Bench. Mr. Baldovi and others challenged the authorisations based in part on claims of reasonable apprehension of bias. Before he became a judge, Mainella J. had worked in the same office as the Crown counsel who applied for the authorizations. In an unrelated case, he had prosecuted Mr. Singh who was a named target in the authorisation applications. Joyal C.J. dismissed a motion to exclude the evidence, holding that there was no reasonable apprehension that Mainella J. had been biased. Mr. Baldovi was convicted of multiple offences. The Court of Appeal dismissed an appeal from the convictions.
38160 Jasdeep Singh Warraich v. Her Majesty the Queen
Courts – Judges – Reasonable apprehension of bias
In 2012, a large investigation of drug trafficking resulted in Mr. Warraich and 22 others being charged with drug offences, proceeds of crime offences, firearms offences and conspiracy offences. The bulk of the Crown’s evidence was collected pursuant to six judicial authorisations for wiretaps and video surveillance issued by Mainella J., then on the Court of Queen’s Bench. Mr. Warraich and others challenged the authorisations based in part on claims of reasonable apprehension of bias. Before he became a judge, Mainella J. had worked in the same office as the Crown counsel who applied for the authorizations. In an unrelated case, he had prosecuted Mr. Singh who was a named target in the authorisation applications. Joyal C.J. dismissed a motion to exclude the evidence, holding that there was no reasonable apprehension that Mainella J. had been biased. Mr. Warraich was convicted of multiple offences. The Court of Appeal dismissed an appeal from the convictions.
38277 Chandeep Dhaliwal v. Her Majesty the Queen
Courts – Judges – Reasonable apprehension of bias
In 2012, a large investigation of drug trafficking resulted in Mr. Dhaliwal and 22 others being charged with drug offences, proceeds of crime offences, firearms offences and conspiracy offences. The bulk of the Crown’s evidence was collected pursuant to six judicial authorisations for wiretaps and video surveillance issued by Mainella J., then on the Court of Queen’s Bench. Mr. Dhaliwal and others challenged the authorisations based in part on claims of reasonable apprehension of bias. Before he became a judge, Mainella J. had worked in the same office as the Crown counsel who applied for the authorizations. In an unrelated case, he had prosecuted Mr. Singh who was a named target in the authorisation applications. Joyal C.J. dismissed a motion to exclude the evidence, holding that there was no reasonable apprehension that Mainella J. had been biased. Mr. Dhaliwal was convicted of multiple offences. The Court of Appeal dismissed an appeal from the convictions.
38139 Duy Manh Le v. Agence du revenu du Québec
Taxation – Income tax – Assessment – Penalty – Gross negligence
In the course of an audit, the respondent, the Agence du revenu du Québec, determined that the applicant, Duy Manh Le, had failed to report income for 2007 to 2010. Reassessments were issued by the Minister of Revenue; Mr. Le was required to pay additional tax, interest and, under s. 1049 of the Taxation Act, penalties for gross negligence. Mr. Le appealed the reassessments. The Court of Québec dismissed the appeal from the notices of assessment on the basis that it was unfounded. The testimonial and documentary evidence was deficient and could not [translation] “demolish” the presumption that the notices were valid. The fact that Mr. Le was unable to produce certain documents to clearly explain his arguments reflected a lack of care and organization, and the Agence du revenu du Québec had discharged its burden under s. 1050 by showing that Mr. Le had been grossly negligent, specifically because of his carelessness. The Court of Appeal dismissed the appeal. The evidence that had been accepted met the tests recognized in the case law for gross negligence justifying the imposition of penalties.
38161 Alexander S. Clark v. Maurizio Pezzente, Toronto Dominion Bank, TD Canada Trust, TD Investment Services Inc. and TD Waterhouse Canada Inc.
Appeals – Costs – Access to justice
The original litigation arose out of the applicant, Mr. Clark’s claim that his retirement funds were mismanaged by the respondents. In 2012, Mr. Clark’s claims were dismissed after trial and the decision was upheld on appeal. Mr. Clark’s application for leave to appeal that decision to the Supreme Court of Canada was dismissed. In 2014, Mr. Clark brought a motion to re-open the trial, which was also dismissed. In 2015, Mr. Clark filed a new statement of claim that made allegations substantially similar to his first statement of claim. The statement of claim was struck as vexatious and an abuse of process. Mr. Clark’s appeal of that decision to the Court of Queen’s Bench was dismissed. He then launched a further appeal to the Court of Appeal. In October 2016, Mr. Clark was ordered to post security for costs on the appeal. He did not appeal the security for costs order but brought a further unsuccessful application for leave to appeal to the Supreme Court of Canada. He failed to post the necessary security for costs and his appeal was struck. Mr. Clark then brought a late application to restore his appeal which was dismissed. He sought permission to appeal but the request was dismissed and he was declared a vexatious litigant. He again sought permission to appeal this decision to a full panel of the court which was also dismissed.
38244 Amy Sparks and Brian Fish v. AARC Society
Civil procedure – Discovery – Solicitor-client privilege
AARC Society operates a rehabilitation centre. Amy Sparks was a computer technician employed by a third party contractor who used her access to its computer systems to surreptitiously download 8,677 electronic records. She forwarded some documents to Brian Fish, a lawyer publicly critical of AARC Society. First, she did so anonymously. Later, she sought his legal advice with respect to the AARC Society records in her possession. Both sent documents to the Canadian Broadcasting Corporation. AARC Society commenced civil actions alleging unlawful interference with economic relations, trespass to chattels, and breaches of statutes. AARC Society applied for production of email correspondence between Amy Sparks and Brian Fish. The Court of Queen’s Bench dismissed the application, finding the communications are solicitor-client privileged and do not fall within a crimes and fraud exception. The Court of Appeal held that the evidence gives colour to an allegation that Amy Sparks approached Brian Fish to facilitate future unlawful conduct. It ordered that the communications be submitted to the Court of Queen’s Bench for inspection to determine whether the exception to solicitor-client privilege applies.
37986 Cesare Fedele v. Her Majesty the Queen
Criminal Law – Sentencing – Victim surcharges
Cesare Fedele pleaded guilty to two counts of theft under $5,000. The sentencing judge ordered concurrent victim surcharges of $100, meaning that Mr. Fedele was only required to pay $100 to satisfy both surcharges. The Ontario Superior Court of Justice dismissed an appeal by Crown counsel raising in issue whether a sentencing judge can order victim surcharges to be concurrent. The Court of Appeal allowed an appeal. The Supreme Court dismissed the application for leave to appeal “without prejudice to the applicant’s right to file a motion for further directions with respect to the victim surcharges ordered by the Ontario Court of Justice, dated September 9, 2015, if said further directions are needed in light of the Court’s recent decision in R. v. Boudreault, 2018 SCC 58.”
38201 Stephen A. Hayhurst and Janice M. Hayhurst v. Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Ontario
Charter of Rights – Fundamental justice – Civil procedure – Appeals
The Attorney General of Canada applied for an order dismissing the proceeding brought by the applicants as being on its face, frivolous, vexatious and otherwise an abuse of the process of the court pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure. The respondents submitted that the applicants’ application was res judicata. The applications judge granted the motion dismissing the applicants’ proceeding. The Court of Appeal dismissed the applicants’ application for an extension of time for filing their notice of appeal.
38138 Norman Rotter v. Attorney General of Canada and Canada Post Corporation - and - Canadian Union of Postal Workers
Judgments and orders – Parties – Substitution
Mr. Rotter, the applicant, filed a labour complaint before the Canada Industrial Relations Board against Canada Post Corporation, a respondent. His complaint was dismissed, as was his application for reconsideration. Mr. Rotter filed an application for judicial review before the Federal Court of Appeal. In the context of these proceedings, the Federal Court of Appeal issued an order for Canada Post Corporation to be substituted to the Attorney General of Canada as respondent.
38145 Barbara Kueber v. Royal Victoria Regional Health Centre, Barrie Medical Clinics Inc., Sayed Mostafa Amir Shourideh-Ziabari, Laurie Elizabeth Shaver, Angelo John Iocca, Heather Lynne Waterman, George Nicholas Karasmanis, Andrea Boyd May, Darren Jonathan Usher, David Boushy, Nazir Ahmad Malik, Triage Nurse J. Doe and County of Simcoe Paramedic Services and Paramedic J. Doe
Judgments and orders – Summary judgment
The applicant brought several claims including defamation, medical negligence and falsification of records against the respondent paramedic services, paramedic, doctors, medical clinic and hospital. The respondents brought motions to have these claims dealt with by summary judgment.
The Ontario Superior Court concluded that the motions for summary judgment should be allowed and went on to dismiss the actions against the respondents. The Court of Appeal dismissed the appeal (except that the action against the hospital should have not been dismissed in its entirety and the order was changed accordingly).
38263 Her Majesty the Queen v. A.H.
Criminal law – Sentencing – Dangerous offender application – Request to extend remand time to complete assessment
In 2016, A.H. was convicted of several offences against his partner. The Crown sought a dangerous offender designation. Accordingly, the Crown asked the court to remand A.H. so that the required assessment could be completed pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46 . The sentencing judge remanded A.H. for 60 days to a hospital. A.H. entered the hospital and the 60 days passed without an assessment being done. The Crown brought an application for an extension of the assessment order. The sentencing judge ruled that, while he had jurisdiction to do so, he declined to grant the extension in this case. The Court of Appeal dismissed the appeal.
38169 Manufacturers Life Insurance Company v. Lenard MacIvor
Insurance – Disability insurance – Group long term disability benefits – Coverage – Contracts – Standard form contracts – Interpretation
Mr. MacIvor sustained a serious back injury and brain injury during a work-sponsored trip in 2005 while covered under his employer Pitney Bowes’ group benefit policy with Manufacturers Life Insurance Company (“Manulife”). He was not aware of the permanent and disabling nature of his brain injury until after he resigned from his employment with Pitney Bowes in 2008. He then went to work for Samsung but continued to experience difficulties. Mr. MacIvor attempted to make a long term disability (“LTD”) claim through Samsung but was advised that he would have to make his claim through Pitney Bowes’ insurer, Manulife, as he was employed there when his injuries occurred. Mr. MacIvor’s claim was denied by Manulife in 2010. In 2011, he began an action at the Ontario Superior Court of Justice where he sought a declaration of entitlement to LTD benefits through Manulife. At the Ontario Superior Court, Pollak J. held that Mr. MacIvor was not qualified for benefits because at the time he made his claim he was not covered under the Manulife policy. The Ontario Court of Appeal allowed the appeal and set aside Pollak J.’s decision. It held that Mr. MacIvor was still entitled to coverage under the Manulife policy. In addition, the court granted relief from forfeiture to correct the untimely proof of claim and found that the claim was made within the proper limitation period.
38156 Ville de Fermont v. Bloom Lake General Partner Limited, Quinto Mining Corporation, 8568391 Canada Limited, Cliffs Quebec Iron Mining ULC, Wabush Iron Co. Limited, Wabush Resources Inc., Bloom Lake Iron Ore Mine Limited Partnership, Bloom Lake Railway Company Limited, Wabush Mines, Arnaud Railway Company Limited, Wabush Lake Railway Company Limited, FTI Consulting Canada Inc. and United Steelworkers Locals 6254 and 6285
Bankruptcy and insolvency – Priorities – Procedure – Municipal law – Taxation – Property assessments – Prior claim of municipalities for property taxes
This case concerns the reasonableness of an allocation methodology proposed by a monitor to distribute the proceeds of realization of a mine’s immovable assets pursuant to an arrangement under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36 (“CCAA ”). The respondents Bloom Lake General Partner Limited et al. (“CCAA parties”) commenced proceedings under the CCAA and entered into a contract with a third party purchaser for the sale of assets for $6.9 million in 2015. The proposed allocation was $4 million for the CCAA parties’ residential assets and $2.9 million for the mining assets. The applicant Ville de Fermont (“town”) had a prior claim against the CCAA parties for unpaid property taxes. It objected to the allocation methodology chosen by the monitor on the ground that it undervalued the mine. Since the town’s claim related primarily to the CCAA parties’ mining assets, the proposed allocation methodology had the effect of limiting the amounts it was entitled to collect in priority. The monitor brought a motion in the Quebec Superior Court seeking approval of the allocation methodology. The Superior Court concluded that the allocation was reasonable in the circumstances and granted the motion. It found, in particular, that the municipal property assessment of the mine was not a reliable indication of its value, especially given that the mine was no longer operational and that there were significant maintenance costs associated with it. The Quebec Court of Appeal dismissed the town’s appeal, finding no error in the trial judge’s exercise of discretion.
38086 Steven Duane John Rivard v. Janine Therese Morris and Julianne Phyllis Rivard
Wills and estates – Administration of estates – Executors and administrators – “Rule of convenience”
During his life Alexander Rivard gave his son, Steven Rivard, a tract of farmland. In a Will executed on August 1, 2013, he instructed that similar size farm properties be given to each of his two daughters, Janine Morris and Julianne Rivard. The balance of his estate was to be divided equally between the three children. However, on August 24, 2013, Alexander Rivard executed another Will in which he left the sisters legacies of $530,000 each. The brother would take the residue of the estate which consisted of significant farmland. Alexander Rivard appointed all three of his children as estate trustees. He died on October 24, 2013. The sisters challenged the second Will, alleging undue influence by their brother. This challenge delayed the division of the estate and it was not until August 8, 2016, that the dispute was settled with a finding that the second Will was valid. On consent, the lands held in the estate were to be conveyed to the brother on condition that he pay the money provided for in the Will to the sisters. Subsequently, another dispute arose. In addition to the face amount of their legacies, the sisters claimed that they were entitled to interest at 5% per year payable out of the residuary estate, commencing one year after their father’s death.
The Ontario Superior Court of Justice held that interest was not owed to the sisters, on the basis they had been estate trustees during the administration of the estate, and the delay in payment was caused by their own challenge to the Will. The Ontario Court of Appeal allowed the appeal, finding that if discretion was available to deny interest to legatees, it must apply only in the clearest of cases and this was not such a case.