Supreme Court of Canada Bulletin, Nov 4 & 5, 2021 – Appeals decided and Applications for leave to appeal decided

Emily Parkin

H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44 – Private international law — Foreign judgments — Reciprocal enforcement

On appeal from a judgment of the Ontario Court of Appeal (2020 ONCA 12) affirming a decision of Perell J. (2019 ONSC 1445).

Antigua and Barbuda (“Antigua”), a country comprised of several islands in the Caribbean, expropriated property owned by H.M.B. Holdings Limited (“HMB”), a private company incorporated in Antigua. Litigation ensued at the Judicial Committee of the Privy Council, and Antigua was ordered to compensate HMB for the expropriation. Years later, HMB brought a common law action in British Columbia to enforce the foreign judgment in that province. Antigua did not defend the action, and as a result, HMB obtained a default judgment. HMB then commenced an application in Ontario to enforce the British Columbia judgment by having it registered under the Reciprocal Enforcement of Judgments Act (“REJA”). The application judge found that ss. 3(b) and 3(g) of the REJA which prescribe, as conditions of registration, that the judgment debtor be carrying on business within the jurisdiction of the original court and that the judgment debtor have no good defence on the original judgment barred registration. A majority of the Court of Appeal upheld the application judge’s conclusion on the basis of s. 3(b) alone.

Held (4-1): The appeal should be dismissed.

Per Wagner C.J. and Karakatsanis, Rowe and Kasirer JJ.:Section 3(b) of the REJA effectively bars HMB from registering the British Columbia judgment in Ontario. The term “carrying on business” set out in s. 3(b) was given a generous and liberal interpretation by the courts below consistent with the Court’s jurisprudence. There is no error of law in their interpretation of s. 3(b), nor is there any palpable and overriding error in the conclusion that Antigua was not carrying on business in British Columbia. In light of this finding, it is unnecessary to consider whether s. 3(g) also bars HMB from registering the British Columbia judgment under the REJA.The REJA allows a person who has obtained a judgment in another jurisdiction (the “judgment creditor”) to apply to register the judgment in Ontario and creates a process by which the person against whom the judgment was obtained (the “judgment debtor”) can resist its registration. A judgment registered under the REJA is treated as if it were a judgment originally issued by an Ontario court. Though not the only route available to applicants, the REJA constitutes an easy, economical and expedient mechanism for enforcing foreign judgments. It provides a number of statutory benefits, such as registration without notice to the judgment debtor and a short window, following notice of registration, during which the judgment debtor can seek to set aside the registration. However, this process occurs at a cost: only judgments from reciprocating jurisdictions may be registered under the REJA. Moreover, recognition of judgments under the REJA is subject to seven defences, set out in s. 3. If any one defence is established, the judgment cannot be registered.The section 3(b) defence to registration places two burdens on a judgment debtor. First, the judgment debtor must establish that they were not carrying on business or ordinarily resident in the jurisdiction of the original court. Second, the judgment debtor must also show that they did not voluntarily appear or otherwise submit to the original court’s jurisdiction during the proceedings the judgment creditor brought in that court. If the judgment debtor shows the Ontario court that these two conditions are met, then s. 3(b) bars the registration of the judgment.The REJA does not define “carrying on business” for the purposes of s. 3(b), but this concept has a long history at common law. As a matter of statutory interpretation, common law terms and concepts are presumed to retain their common law meaning when used in legislation. At common law, the concept of “carrying on business” forms part of the law on the traditional bases of jurisdiction, which recognize and enforce a foreign judgment only if the defendant in the original action had been present in the foreign jurisdiction or had consented in some way to the foreign court’s jurisdiction. Section 3(b) codifies the traditional common law bases of jurisdiction as a prerequisite for registration. The Canadian common law of recognition and enforcement has however developed beyond the traditional bases of jurisdiction to recognize the judgment of a court in one province in another province on the basis of a “real and substantial connection” to the original jurisdiction. Nonetheless, the common law bases of presence and consent remain important, and are critical to understanding s. 3(b) of the REJA.To determine whether a defendant is carrying on business in a jurisdiction, the court must inquire into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time. Whether or not a corporation is carrying on business is a question of fact assessed in reference to a number of indicia. Some kind of actual presence, whether direct or indirect, is required. A physical presence in the form of maintenance of physical premises will be compelling, but a virtual presence that falls short of an actual presence will not suffice. “Carrying on business” for the purpose of establishing traditional presence‑based jurisdiction is a stricter standard than “carrying on business” as a mere presumptive connecting factor for assumed jurisdiction. Despite these differences, the requirements for “carrying on business” under the standard of assumed jurisdiction must also apply for the purposes of traditional presence‑based jurisdiction. In both cases, some form of tangible presence in the jurisdiction is required, such as maintaining a physical office.The REJA applies only to a judgment or an order of a court in any civil proceedings whereby any sum of money is payable. It remains an open question whether a derivative judgment which in itself enforces a judgment of a non‑reciprocating jurisdiction falls within the definition of “judgment” in s. 1(1) of the REJA and can therefore be registered under the statute.Per Côté J.:There is agreement with the majority’s analysis under s. 3(b) of the REJA, and with its disposition of the appeal. However, to the extent that the majority’s reasons suggest the REJA might not apply to derivative judgments, there is divergence of opinion. A judgment resulting from a common law action that recognizes a foreign judgment, such as the British Columbia judgment in this case, falls squarely within the broad definition of “judgment” in s. 1(1) of the REJA, provided that the recognition judgment was rendered in a reciprocating jurisdiction.Statutory interpretation entails discerning legislative intent by examining statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. The REJA contains a plain language provision that defines the judgments to which it applies. Under s. 1(1) of the REJA, “judgment” means a judgment or an order of a court in any civil proceedings whereby any sum of money is payable. Understood in its grammatical and ordinary sense, the definition undoubtedly encompasses recognition judgments such as the British Columbia judgment. Reading into s. 1(1) an exception applicable to derivative judgments is counter‑intuitive and supported neither by the text nor by the ordinary rules of statutory interpretation.The REJA’s overarching purpose is to provide a convenient and inexpensive mechanism to register foreign judgments that saves creditors and courts time and resources. Such advantages promote access to justice and are particularly valuable to judgment creditors who are less familiar with Ontario’s legal environment. The main benefit of the REJA’s registration mechanism is that it reverses the litigation burden by permitting registration unless the debtor succeeds in an action to set it aside. Comity between reciprocating jurisdictions is crucial to attain this purpose. Relying on the legally non‑existent notion of derivative judgments would do little to keep the REJA’s mechanism accessible and convenient to judgment creditors.This interpretation meets the standard of commercial certainty, and accords with the Court’s jurisprudence acknowledging that recognition judgments are capable of being registered in other provinces. But there is an important caveat. While the REJA permits the registration of recognition judgments, it forbids the registration of a judgment that has itself been registered, as the latter does not make money payable. Allowing registration of judgments that have themselves been registered would unduly expand the list of jurisdictions to which the REJA applies by including all of the jurisdictions that are reciprocal to those listed in accordance with the statute.Reasons for judgment: Wagner C.J. (Karakatsanis, Rowe and Kasirer JJ. concurring)Concurring Reasons: Cote, J.Neutral Citation: 2021 SCC 44Docket Number: 39130https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19047/index.do

R. v. Cowan, 2021 SCC 45– Criminal law — Parties to offence — Abetting

On appeal from a judgment of the Saskatchewan Court of Appeal (2020 SKCA 77) setting aside a decision of Zarzeczny J. (2018 SKQB 75).

Two individuals robbed a Subway restaurant. One wore a mask and brandished a knife, while the other stood watch at the front door. C was arrested in relation to the robbery and provided police with a statement denying involvement in the robbery but admitting that he had told a group of individuals — including his friends T and L — how to commit the robbery. C was subsequently charged with armed robbery and tried by a judge alone. At trial, the Crown advanced two alternative theories of liability: that C was the masked robber and guilty as a principal offender under s. 21(1)(a) of the Criminal Code, or that C was guilty as a party to the armed robbery in that he either abetted the commission of the offence under s. 21(1)(c), or counselled its commission under s. 22(1). The trial judge rejected both theories of liability and acquitted C. In his view, the evidence fell short of proving that C was one of the principal offenders. Regarding party liability, he found that C could only be convicted as a party if the Crown established that C’s friends T and L had committed the robbery, but he concluded that the evidence also fell short in this regard.

A majority of the Court of Appeal allowed the Crown’s appeal, set aside C’s acquittal and ordered a new trial. It found no error in the trial judge’s analysis concerning C’s role as a principal but held that the trial judge made a serious error on the issue of party liability, which may have affected the verdict. Accordingly, it ordered that the new trial be limited to the question of C’s guilt as a party, on the basis of abetting or counselling. The dissenting judge would have dismissed the appeal in its entirety. C appeals as of right to the Court from the setting aside of his acquittal, and the Crown appeals with leave from the order of the Court of Appeal limiting the scope of the new trial.

Held (5-2): C’s appeal should be dismissed and the Crown’s appeal should be allowed.

Per Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ.:

There is agreement with the majority of the Court of Appeal that the trial judge erred in law in his analysis of party liability, which had a material bearing on the acquittal. However, the appropriate remedy is to set aside the acquittal and order a full new trial. While appellate courts have broad powers under s. 686(8) of the Criminal Code to make any order that justice requires, this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge.

For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Sections 21 and 22 codify both liability for an accused who participates in an offence by actually committing it (principal liability), and liability for an accused who participates in an offence by abetting or counselling another person to commit the offence (party liability). Where an accused prosecuted as an abettor or counsellor is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove the accused’s guilt as a party. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence. As for the mens rea, the abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence. The actus reus of counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. The person encouraged or induced by the counsellor must also actually participate in the offence. As for the mens rea, the counsellor must have either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was likely to be committed as a result of the accused’s conduct. Whether the person counselled is a principal or party is irrelevant since the focus on a prosecution for counselling is only on the counsellor’s conduct and state of mind.

In the instant case, the trial judge erred in law in assessing C’s liability as a party for having abetted or counselled the commission of the offence. By reasoning that the Crown was required to prove that T and L were the principals as a prerequisite to establishing C’s guilt as a party, the trial judge misdirected himself on the law and failed to correctly assess the relevant evidence. The Crown was only required to prove that any one of the individuals encouraged by C went on to participate in the offence either as a principal offender — in which case C would be guilty as both an abettor and a counsellor — or as a party — in which case C would be guilty as a counsellor. C could still have been found guilty of being a party to the offence even if the precise identity or part played by each individual who participated in the commission of the offence was uncertain, so long as C had committed the necessary act with the requisite intent. There was therefore no need for the trial judge to focus on the identity of a given principal, whether or not the Crown identified specific individuals as principals to the offence.

To have an acquittal set aside due to a legal error, the Crown must satisfy an appellate court to a reasonable degree of certainty that the impugned error might have had a material bearing on the acquittal. In the present case, the Crown has met its burden. The trial judge structured his analysis of the evidence based on the erroneous premise that the Crown had to prove T and L were the principals before C could be convicted. He failed to recognize that the evidence before him was reasonably capable of establishing that C committed the prohibited act with the requisite intent for party liability on the basis of abetting or counselling. The verdict may well have been different if the trial judge had considered the evidence in light of the correct legal principles.

Where an appellate court allows an appeal and sets aside an acquittal, it has the power, under s. 686(4)(b)(i) of the Criminal Code, to order a new trial and to make any order, in addition, that justice requires under s. 686(8). Three conditions must be met for s. 686(8) to apply. First, the appellate court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7). Second, the order issued must be ancillary to the triggering power in that it cannot be at direct variance with the court’s underlying judgment. Third, the order must be one that justice requires. In the instant case, the second and third conditions were not met. In separating the Crown’s theories of liability in its ancillary order, the Court of Appeal bifurcated the offence of armed robbery into two separate offences: robbery as a principal and robbery as a party, be it as an abettor or counsellor. The effect was to uphold C’s acquittal on the single charge of armed robbery in part. This is at odds with the underlying judgment allowing the Crown appeal and setting aside the verdict rendered on that charge as a whole. The ancillary order was also not one that justice required as it threatens the integrity of the criminal process by distorting the truth‑seeking function of the courts. A trier of fact must be able to consider all theories of liability that have an air of reality based on the evidence adduced at the new trial. To prospectively deny a trier of fact the ability to consider a viable theory of liability would be to undermine their ability to carry out their core function: to determine whether the Crown has proven that the accused committed the offence(s) charged.

Finally, the doctrine of issue estoppel does not prevent the relitigation of the Crown’s theory that C is guilty of armed robbery as a principal offender. No issue can be said to have been finally decided in the first trial because the result of that trial has been entirely set aside.

Per Brown and Rowe JJ. (dissenting):

C’s acquittal should be restored for the reasons of the dissenting judge at the Court of Appeal. It is not necessary to deal with the Crown’s appeal; however, there is concern with what the majority has written in this regard.

Issue estoppel precludes the Crown from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding. There are three requirements for its application: the issue must have been decided in a prior proceeding; the decision must be final; and the parties to the two proceedings must be the same. The Court of Appeal found no error as to the acquittal based on C having committed the robbery as a principal. This finding should not be set aside. Preventing the Crown from relitigating issues resolved in favour of the accused during the first trial is a question of fairness to the accused, integrity and coherence of the criminal process, and finality. An accused should not have to mount a second defence in the absence of a relevant reversible error. There is also disagreement with the majority’s conclusion relating to the exercise by courts of appeal of their powers under s. 686(8) of the Criminal Code. In the present case, no error in principle has been shown and the Court of Appeal order is not clearly wrong. First, the order is not at direct variance with the underlying judgment. There is no rule that a charge as a whole must be retried if a new trial is ordered on a count alleging an offence which may be committed in different ways. Rather, whether or not a full new trial should be ordered depends on the degree to which counts, and modes of committing offences charged as a single count, are interconnected. The question is one of being able to isolate the legal error. Second, the Court of Appeal’s order was not contrary to what justice requires. The order promoted fairness to C, the efficient use of the court’s resources, and the integrity of the criminal justice process.

Reasons for judgment: Moldaver J. (Wagner C.J. and Côté, Martin and Kasirer JJ. concurring)

Dissenting Reasons: Rowe J. (Brown J. concurring)

Neutral Citation: 2021 SCC 45

Docket Number: 39301

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19066/index.do

39672

Atwater Investment LP v. BMO Life Assurance Company(Sask.)

Legislation — Interpretation — Insurance

In 2002, an insurer (now BMO Life) issued two identical ULPs recording a numbered company as the applicant, insured and beneficiary and insuring the lives of its principal and each of his two daughters. The numbered company later assigned its interests under the ULPs to the applicant (“Atwater”), at which time Atwater added one of its principals as a life insured. An ULP is a contract for life insurance that allows the insured to take advantage of accrual‑tax exemption provisions under tax legislation. The ULP provides a tax advantage on investment income held in an exempt account (provided the sums in the account do not exceed certain limits) and sets up a non‑exempt side account through which the insurer may receive, hold and invest additional sums on behalf of the insured. Issues arose between Atwater and BMO Life when the latter refused to accept payments made by Atwater under the two policies to be credited to its side accounts. Atwater brought two originating applications, seeking declarations that it is entitled to invest unlimited amounts into the guaranteed-interest options within the side accounts and other declarations with respect to the tax‑exempt status of the policies and the premiums that could be paid into the investment accounts. The 2018 Regulation and later the 2020 Regulation subsequently came into effect prohibiting insurers from receiving payments for deposit in excess of the amounts required to pay the life insurance premiums for these policies.

The Saskatchewan Court of Queen’s Bench held, based upon the meaning it ascribed to the term premiums that the ULPs did not provide for unlimited stand‑alone investment opportunities within the side accounts. It also held that the 2018 Regulation did not apply to ULPs entered into prior to its enactment. The Saskatchewan Court of Appeal allowed Atwater’s appeal and held that properly interpreted, the ULPs permitted unlimited stand-alone investments within side accounts. However, the court also allowed BMO Life’s cross‑appeal and held that both the 2018 Regulation and successor 2020 Regulation prohibited insurers as of the date of their enactment from receiving or accepting for deposit funds or payments in excess of amounts required to pay the life insurance premiums. Atwater applies for leave to appeal that decision, and BMO Life applies for leave to cross‑appeal the decision on the issue of contract interpretation.

39674

Mosten Investment LP v. Manufacturers Life Insurance Company o/a Manulife Financial(Sask.)

Legislation — Interpretation — Insurance

In 1997, an insurer issued an ULP recording Dr. B as the applicant, insured and beneficiary. In 2004, the respondent (“Manulife”) acquired the insurer’s rights, liabilities and obligations under Dr. B’s ULP and in 2010, the applicant (“Mosten”) acquired Dr. B’s interests under the ULP and added one of its principals as an insured life. An ULP is a contract for life insurance that allows the insured to take advantage of accrual‑tax exemption provisions under tax legislation. The ULP provides a tax advantage on investment income held in an exempt account (provided the sums in the account do not exceed certain limits) and sets up a non‑exempt side account (a Carrier Fund under in this policy) through which the insurer may receive, hold and invest additional sums on behalf of the insured. Issues arose between Mosten and Manulife when Manulife took the position that the Carrier Fund was not intended to accept payments that had no prospect of being transferred back into the life insurance policy. Mosten brought two originating applications, seeking declarations that it is entitled to invest unlimited amounts into the guaranteed‑interest options within the Carrier Fund and other declarations with respect to the tax‑exempt status of the policies and the premiums that could be paid into the investment accounts. The 2018 Regulation and later the 2020 Regulation subsequently came into effect prohibiting insurers from receiving payments for deposit in excess of the amounts required to pay the life insurance premiums for these policies.

The Saskatchewan Court of Queen’s Bench held, based upon the meaning it ascribed to the term premiums, that the ULP did not provide for unlimited stand-alone investment opportunities within the Carrier Fund and that the 2018 Regulation did not apply to ULPs entered into prior to its enactment. The Saskatchewan Court of Appeal allowed Mosten’s appeal and held that properly interpreted, the ULP permitted unlimited stand‑alone investments within the Carrier Fund. However, the court also allowed Manulife’s cross‑appeal and held that both the 2018 Regulation and successor 2020 Regulation prohibited insurers as of the date of their enactment from receiving or accepting for deposit funds or payments in excess of amounts required to pay the life insurance premiums. Mosten applies for leave to appeal that decision, and Manulife filed a conditional application for leave to cross‑appeal the decision on the issue of contract interpretation.

39675

Ituna Investment LP v. Industrial Alliance Insurance and Financial Services Inc.(Sask.)

Contracts — Interpretation — Insurance

In 1999, an insurer issued a Flex Account or Special Flex 5 ULP, recording Mr. Z as applicant, insured and the life insured and his wife as beneficiary. In 2005 the insurer transferred the ULP and its other business assets to the respondent (Industrial Alliance) and in 2009 Mr. Z assigned the ULP to the applicant (Ituna). An ULP is a contract for life insurance that allows the insured to take advantage of accrual‑tax exemption provisions under tax legislation. The ULP provides a tax advantage on investment income held in an exempt account (provided the sums in the account do not exceed certain limits) and sets up a non‑exempt side account (called an Express Account in this ULP) through which the insurer may receive, hold and invest additional sums on behalf of the insured. Ituna requested that Industrial Alliance modify the investment allocations within the various accounts to be 100% to the 10‑year term Guaranteed Interest accounts and substituted one of its principals as the life insured under the ULP. Issues arose between Ituna and Industrial Alliance such that Ituna brought two originating applications seeking declarations that it is entitled to invest unlimited amounts into the guaranteed‑interest options within the Express Accounts and other declarations with respect to the tax‑exempt status of the policies and the premiums that could be paid into the investment accounts. The 2018 Regulation and later the 2020 Regulation subsequently came into effect prohibiting insurers from receiving payments for deposit in excess of the amounts required to pay the life insurance premiums for these policies.

The Saskatchewan Court of Queen’s Bench held, based upon the meaning it ascribed to the term premiums, that the ULPs did not provide for unlimited stand‑alone investment opportunities within the Express Accounts and that the 2018 Regulation did not apply to ULPs entered into prior to its enactment. The Saskatchewan Court of Appeal dismissed Ituna’s appeal, holding that properly interpreted, the ULP did not permit unlimited stand‑alone investments within the Express Accounts. The court allowed Industrial Alliance’s cross‑appeal and held that both the 2018 Regulation and successor 2020 Regulation prohibited insurers as of the date of their enactment from receiving or accepting for deposit funds or payments in excess of amounts required to pay the life insurance premiums. Ituna applies for leave to appeal the decision, and Industrial Alliance filed a conditional application for leave to cross‑appeal the decision on the issue of contract interpretation.

39574

N.M. v. Her Majesty the Queen(Que.)

In April 2012, the applicant left Canada with her two daughters, both aged under 14. Although she had been granted custody in divorce proceedings, the girls’ father also had access rights. When the applicant returned to Canada in 2017, charges of parental child abduction were laid against her. The Court of Québec rejected the defences of consent and danger of imminent harm and found the applicant guilty of parental child abduction, concluding that she had had the specific intent to deprive her ex-husband of possession of his two daughters. The Court of Appeal dismissed the motion for an extension of the time to appeal.

39659

Government of Yukon as represented by the Minister of the department of Energy, Mines and Resources v. Yukon Zinc Corporation, Welichem Research General Partnership(Y.T.)

Bankruptcy and insolvency — Receiver — Real property

The Yukon Zinc Corporation’s principal asset is a zinc-silver-lead mine (the Wolverine Mine) located in Yukon. The mine operated for about three years before it entered financial difficulties. It made a filing under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36, and successfully reorganized in October 2015 with funds provided by its sole shareholder.

When Yukon Zinc was deemed to have made an assignment into bankruptcy, the Government applied for declarations that it has a provable claim in the bankruptcy for the undisputed estimated future costs for the remediation and final closure plan for the mine ($35,548,650); and that its claim is secured as described in s. 14.06(7) of the BIA.

The chambers judge concluded that the estimated cost for remediation and closure of the mine was not sufficiently certain to make it into a provable claim in bankruptcy. Those costs, beyond the security held, will be a provable claim in bankruptcy once they are actually incurred. That claim will rank in priority over any other claim, right, charge or security against the property, including the mineral claims.

The Court of Appeal concluded that the Government did not have a provable claim, contingent or otherwise, in bankruptcy because mineral claims are interests in real property, not real property.

39660

Welichem Research General Partnership v. Government of Yukon, as represented by the Minister of the Department of Energy, Mines and Resources, Pricewaterhousecoopers Inc., in its capacity as court-appointed receiver of the assets, Undertakings and Property of Yukon Zinc Corporation(Y.T.)

Bankruptcy and insolvency — Receiver — Pre-existing agreements

The Yukon Zinc Corporation’s principal asset is a zinc‑silver‑lead mine (the Wolverine Mine) located in Yukon. The mine operated for about three years before it entered financial difficulties. It made a filing under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36, and successfully reorganized in October 2015 with funds provided by its sole shareholder. While owing significant amounts to the Yukon Government for security for adverse environmental effects from the licensee’s activities, Yukon Zinc received loans totalling $8,550,000 from the respondent Welichem Research General Partnership on the security agreements covering all of its assets. It used $5,060,000 to exercise a purchase option under a lease with Maynbridge Capital Inc. for the equipment used in the mine. It then sold the equipment to Welichem for the same amount. Welichem then leased the equipment back to Yukon Zinc under a master lease agreement which carried monthly payments of $110,668 (“Master Lease”).

A Receivership Order appointed the PricewaterhouseCoopers Inc. as receiver of all of the assets, undertakings and property of Yukon Zinc, and empowered it to, inter alia, enter into agreements, cease to perform any contracts of Yukon Zinc, and take any steps reasonably incidental to the exercise of those powers. Having assessed the items under the Master Lease, Pricewatershouse found that 79 pieces of leased equipment were essential for the care and maintenance of the mine. It spent approximately $200,000 to bring the essential heavy equipment up to minimum operating standards, and, when it was unable to negotiate a new lease with Welichem, it sent a notice disclaiming or resiling from the Master Lease, except in relation to the essential items. Based on the monthly rental rate using the number and value of the essential items against the number and value of all of the leased items, it reached a reasonable rental rate of $13,500 per month. Those steps were reported to the court. Welichem applied for a declaration that the notice of partial disclaimer is a nullity and of no force and effect, that the Master Lease had been affirmed, and that Pricewaterhouse is bound by the entirety of its terms and must pay all amounts owing under the Master Lease from the date of the its appointment.

The chambers judge found that Pricewaterhouse had not affirmed the contract with Welichem by its actions and was not required to make the monthly payments to Welichem under the Master Lease, other than the $13,500 per month for the use of the Essential Items. The Court of Appeal declared Receiver’s purported appropriation of the Essential Items to be of no force and effect. The order dismissing Welichem’s application and granting its application in part was set aside.

39705

Kathleen Chung v. Her Majesty the Queen(Ont.)

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment

Ms. Chung was convicted of fraud and possession of property obtained by crime. She was sentenced in part to a $2.3 million fine in lieu of forfeiture with 6‑years of imprisonment in the event of default of payment of the fine. The sentencing judge held that s. 462.37(4) of the Criminal Code which required determining the term of imprisonment for default at the time of imposing the fine in lieu of forfeiture and which set a 5‑year mandatory minimum sentence in Ms. Chung’s circumstances does not breach ss. 7 or 12 of the Charter of Rights and Freedoms. The Court of Appeal allowed an appeal from sentence in part, altering other parts of the sentence but not the fine in lieu of forfeiture or the 6‑years of imprisonment in the event of default of payment of the fine.

39677

Samuel Cozak v. Barreau du Québec(Que.)

In December 2019, the applicant, who had a bachelor of law degree, was convicted of assaulting a correctional officer. After passing the examination of the École du Barreau in 2020, he requested entry on the Roll of the Order (“Roll”) of the Barreau du Québec (“Barreau”). On December 18, 2020, the applicant was sworn in and entered on the Roll. On December 23, 2020, the Barreau informed him that his entry on the Roll was being revoked because he had been sworn in before the committee for access to the profession made a decision on his admission. The applicant applied for an interlocutory injunction in order to be re‑entered on the Roll. The Quebec Superior Court dismissed the application for an interlocutory injunction. The Quebec Court of Appeal dismissed the applicant’s motion for leave to appeal.

39689

Kevin Jeremy Greif v. Her Majesty the Queen(B.C.)

Criminal law — Offences — Sexual assault

At trial, the applicant, Kevin Jeremy Greif, was convicted of sexual assault. The primary issue was the credibility of the complainant and applicant who both testified as to the events that occurred on the day the sexual assault was alleged to have taken place.

The Court of Appeal unanimously dismissed the applicant’s appeal from conviction. It rejected the applicant’s arguments that the trial judge erred by reversing the burden of proof, by misapprehending photographic evidence, by placing weight on the complainant’s post‑event behaviour and by subjecting the defence and Crown evidence to uneven scrutiny.

39718

Vaclav Jirasek v. Catherine Zhao (property owner/employer)(B.C.)

The applicant filed an application with the Workers’ Compensation Board (the “Board”) under s. 55 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”) seeking compensation for injuries he claims were sustained while performing excavation work on the property of the respondent. He claims he was hit on the top of his head by a hydraulic power shovel bucket on an excavator as he worked spreading gravel on a lower level. The applicant’s claim was first denied by the Board and the Board’s review Division, but on appeal to the Worker’s Compensation Appeal Tribunal (“WCAT”), WCAT found he had suffered a minor neck strain. The Board determined in a series of subsequent decision that: the applicant should receive no benefits beyond June 2015, by which time his neck strain injury had been resolved; no wage loss benefits were payable; the applicant’s workplace injury did not aggravate his pre‑existing degenerative disc disease; there was no evidence of a psychological condition caused by the workplace injury; and the applicant’s request to have his chronic pain accepted as part of his claim should be denied. These decisions were all confirmed by the Board’s Review Decision, and the applicant has filed two petitions for judicial review.

The applicant also filed the notice of claim against the respondent alleging criminal negligence. The respondent applied to strike the applicant’s action under Rule 9‑5(1) of the Supreme Court Civil Rules,BC Reg 168/2009 as an abuse of court process and an impermissible collateral challenge to the decisions of the Board and WCAT. The Supreme Court of British Columbia granted the application, finding it plain and obvious that the applicant’s claim disclosed no reasonable cause of action given the statutory limits on his common law right of action. The court also found it to be an abuse of process to the extent it sought to overturn the final adjudicative decisions of the Board and WCAT other than through the statutory appeal or judicial review process. The Court of Appeal for British Columbia dismissed the applicant’s appeal.

39601

Amanda Lee Manuel v. Her Majesty the Queen(Alta.)

Criminal law — Evidence

The charges arose out of a series of verbal and physical altercations that took place between the complainant and the applicant. In the applicant’s version of events, the fight was brief and relatively minor. The applicant denied strangling, suffocating, kissing, biting or punching the complainant. The applicant was convicted of sexual assault, unlawful confinement, and assault causing bodily harm. The conviction appeal was dismissed.

39738

Yi Wang v. Owners, Strata Plan LMS 2970, Chao Wang(B.C.)

Ms. Wang brought a proceeding before the Civil Resolution Tribunal claiming the strata council of the strata complex in which she owns a unit refused to post a notice describing vandalism to her car and her allegation that Mr. Chao Wang vandalized her car and that the strata council refused to allow her husband to attend the meeting reviewing her request. The Tribunal dismissed the claims. The Supreme Court of British Columbia denied leave to appeal. The Court of Appeal dismissed an appeal.

39747

Yi Wang v. Owners, Strata Plan LMS 2970(B.C.)

Ms. Wang owns a strata unit in a strata corporation. She filed a notice of dispute with the Civil Resolutions Tribunal alleging that strata council members improperly included themselves as named insured in the strata corporation’s insurance policy and failed to provide insurance documents upon request. The Tribunal dismissed the claims. The Supreme Court of British Columbia denied leave to appeal. The Court of Appeal dismissed an appeal.

39706

Natalia Makeeva v. Andrey Makeev(Ont.)

The parties married in 2000 and separated in 2015. They have two children, born in 2006 and 2011. Custody and access of the children was resolved by way of a consent order. At trial, the respondent was ordered to pay monthly child support of $428, the applicant was ordered to pay monthly spousal support of $905 and the applicant was ordered to pay $17,419 as an equalization payment to the respondent. The applicant’s appeal was dismissed but the respondent’s cross-appeal was allowed and the equalization payment ordered by the trial judge was amended to $50,812.

39735

William Edward Adams v. Her Majesty the Queen(F.C.)

An audit by Canada Revenue Agency of several companies and Mr. Adams led to litigation before the Tax Court of Canada. The Tax Court of Canada issued interlocutory decisions in the litigation. The Federal Court of Appeal denied an extension of time to appeal from some of the Tax Court’s decisions and dismissed a motion for reconsideration.

39613

Richard Boies v. Agence du revenu du Québec(Que.)

The applicant, Richard Boies, was the subject of a personal tax audit for the 2005, 2006 and 2007 taxation years. The respondent, the Agence du revenu du Québec, applying the indirect cash flow audit method, attributed unreported income to Mr. Boies and issued notices of assessment for the years in question.

At trial, the judge confirmed the presumption of validity of the notices of assessment for the 2005, 2006 and 2007 taxation years under ss. 1010 and 1014 of the Taxation Act, CQLR, c. I ‑3 (hereinafter “T.A.”). He allowed Mr. Boies’s appeal in part, but only to refer the matter back to the Minister of Revenue to vary the notices of assessment by taking revised amounts for the 2005, 2006 and 2007 taxation years into account and subtracting expenditures for 2007. The trial judge also confirmed the imposition of penalties under s. 1049 of the T.A. The Court of Appeal confirmed the assessments and penalties for the 2006 and 2007 taxation years, but allowed Mr. Boies’s appeal in part in respect of 2005, vacating the notice of assessment and related penalties for that year. The Court of Appeal concluded that the assessment for the 2005 taxation year was prescribed.

39723

Rustum Asaduzzaman v. 8703060 Canada Inc.(Que.)

In October, 2017, the respondent filed an originating application against the applicant and his spouse for forced surrender and taking in payment of two immovables, based upon alleged non-payment of loans secured by hypothecs. In March, 2018, a judgment by default was rendered by the Special Clerk, whereby the applicant and his spouse were ordered to surrender the properties and the respondent was declared to be the rightful owner. In June, 2018, the applicant filed a motion to revoke the Special Clerk’s judgment, alleging that he was never served with the originating application as he was travelling abroad at the time of service. On March 27, 2019, the Quebec Superior Court dismissed the applicant’s motion to revoke (2019 QCCS 1097). That decision was confirmed on appeal (2019 QCCA 1556).

In September, 2019, the applicant filed a second application in revocation against the judgment of the Special Clerk, asking for a modification of the 2019 QCCS 1097 judgment. On February 17, 2020, Blanchard J. of the Quebec Superior Court rejected the motion, finding it to be an abuse of process (QCCS File no.’s 500‑17‑105228‑171). On March 13, 2020, Mr. Asaduzzaman and another filed a joint appeal against the judgment of Blanchard J. The Court of Appeal granted a motion for dismissal, finding that the appeal presented no chance of success (2021 QCCA 200). The applicant now brings a motion for an extension of time and an application for leave to appeal the 2019 QCCA 1556 decision.

39724

Rustum Asaduzzaman, Peter Michalakopoulos v. 8703060 Canada Inc., 9188-6150 Québec Inc.(Que.)

In October, 2017, the respondent 8703060 Canada Inc. (“8703060”) filed an originating application against the applicant Mr. Asaduzzaman and his spouse for forced surrender and taking in payment of the two immovables, based upon alleged non‑payment of loaned amounts secured by hypothecs. In March, 2018, a judgment by default was rendered by the Special Clerk, whereby the borrowers were ordered to surrender the properties and 8703060 became the rightful owner. In June, 2018, Mr. Asaduzzaman filed a motion to revoke the Special Clerk’s judgment, alleging that he was never served with the originating application as he was travelling abroad at the time of service. On March 27, 2019, Castiglio J. of the Quebec Superior Court dismissed Mr. Asaduzzaman’s motion to revoke (2019 QCCS 1097) and that decision was confirmed on appeal (2019 QCCA 1556).

Meanwhile, 8703060 sold the properties to the respondent, 9188‑6150 Quebec Inc. (“9188‑6150”). In October, 2018, Mr. Asaduzzaman instituted proceedings against 8703060 and 9188‑6150, asking for a cancellation of the sale of the properties, but later filed a discontinuance. In September, 2019, Mr. Asaduzzaman filed a second application in revocation against the judgment of the Special Clerk, asking for a modification of the judgment of Castiglio J. He also filed a motion in the disavowal of his attorney, seeking to set aside a discontinuance of the proceedings to cancel the sale of the properties. On February 17, 2020, Blanchard J. of the Quebec Superior Court rejected the motions, finding them to be an abuse of process.

On February 17, 2020, the applicant Mr. Michalakapoulos filed a motion to intervene in both files, alleging that he had bought a 5% interest in one of the buildings through an unregistered agreement with Mr. Asaduzzaman. The motion was dismissed by Alary J. of the Superior Court of Quebec. She declared the applications abusive and declared that any further proceedings in the two files by either Mr. Asaduzzaman or Mr. Michalakapoulos must have the previous authorization of the court. In March, 2020, Mr. Asaduzzaman and Mr. Michalakapoulos filed a joint appeal against the judgments of Blanchard J. and Alary J. The Court of Appeal granted 9188‑6150’s application to dismiss, finding that the appeals presented no chance of success (2021 QCCA 200). Mr. Asaduzzaman and Mr. Michalakopoulos now seek leave to appeal that decision.

 

 

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