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Bankruptcy and Insolvency

PROPERTY

Tax obligations were given no special protection under Bankruptcy and Insolvency Act (Can.)

Applicant sought declarations that transaction between EFG and TFI was bulk sale; that transaction was void for failure to comply with Bulk Sales Act (Ont.) (“BSA”); that respondent was liable to account to trustee for value of property purchased in transaction; and for order requiring respondent to pay trustee consideration paid for transaction. Sale was found to be bulk sale and did not comply with BSA. Sale was declared void in part. Sale proceeds were used to pay secured creditor and TFI was not liable to any creditors for that amount. Parties could not agree on terms of formal order. Disagreement arose from fact that reasons failed to deal with disputed point. Plain and ordinary meaning of “value of stock in bulk” did not include HST exigible on goods sold. Principal meaning of value was worth, and there was no evidence that stock acquired by TFI was worth anything other than what it agreed to pay in arms’ length transaction. TFI had an offset for tax. Tax obligations and HST obligations were given no special protection under Bankruptcy and Insolvency Act (Can.), in bankruptcy situation. CRA might qualify as creditor under BSA, but that did not mean that HST owed to CRA qualified as part of value of stock in bulk that TFI acquired.
Ellen’s Food Group Inc. (Trustee of) v. TFI Foods Ltd. (Apr. 7, 2015, Ont. S.C.J., Penny J., File No. CV-14-10628-00CL) 252 A.C.W.S. (3d) 402.

Civil Procedure

COSTS

Delay in provision of redacted documents to citizenship applicant did not justify solicitor-client costs

Citizenship judge rejected application as permanent resident did not meet residency test. Permanent resident applied for judicial review which was dismissed. Permanent resident’s File Preparation and Analysis Template (FPAT), document was originally redacted from Certified Tribunal Record and then confidentially disclosed to permanent resident’s counsel. Minister had argued against disclosure of FPAT as disclosure of FPAT document could lead to individuals learning methods of fraud detection used by government. Permanent resident requested costs on solicitor-client basis regardless of outcome of judicial review. Request for costs denied. There was no evidence before court that Minister’s refusal to disclose redacted documents unnecessarily lengthened proceedings. Permanent resident’s basis for requesting solicitor-client costs was that he asked for redacted documents to be disclosed and Minister defended redactions. This was not basis for solicitor-client costs. Minister was entitled to object to disclosure of certain information pursuant to R. 318(2) of Federal Court Rules (Can.), and to defend his position in good faith. Minister did not unduly lengthen or delay proceedings. It took approximately three months before counsel for permanent resident was able to view redacted documents. This delay hardly rose to level of “reprehensible, scandalous or outrageous conduct” that was necessary to justify costs on solicitor-client basis.
Boland v. Canada (Minister of Citizenship and Immigration) (Mar. 25, 2015, F.C., Yves de Montigny J., File No. T-1090-14) 252 A.C.W.S. (3d) 405.

Administrative Law

JUDICIAL REVIEW

Press release was not decision and had no legal effect

So-called “decision” was made public in press release by Canadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to review all issues and submit report to Canadian Judicial Council. Applicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, because it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee.
Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT

Minimum sentence legislation did not minimally impair rights

Accused convicted of carrying loaded prohibited firearms. Crown proceeded by indictment. Accused N subject to three-year minimum sentence. Accused C subject to five-year minimum sentence as repeat offender. N and C challenged constitutionality of the minimum sentences. Court of Appeal held that minimum sentences under s. 95(2) of Criminal Code violated s. 12 of Charter. Crown appeals dismissed. Section 95 covers wide spectrum of conduct including minor violations of gun licences. Minimum sentences will impose grossly disproportionate punishment in reasonably imaginable situations. Legislation does not minimally impair rights. Parliament could have drafted minimum sentence capturing only offences with significant moral blameworthiness.
R. v. Nur (Apr. 14, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35678, 35684) Decisions at 110 W.C.B. (2d) 264 and 110 W.C.B. (2d) 479 were affirmed.  121 W.C.B. (2d) 117.

Evidence

ADMISSIBILITY

Evidence of strikingly similar offence committed while accused in custody was admissible

Accused charged with second degree murder. Accused alleged to have abducted and killed school girl. Accused applied to introduce evidence of strikingly similar abduction of school girl that took place nine months later while he was in custody. Trial judge rejected proposed evidence on basis that he was not satisfied on balance of probabilities other abduction even took place. Court of Appeal allowed appeal from acquittal and ordered new trial. Appeal dismissed. Trial judge erred in putting burden on accused to show that similar offence took place. Proposed evidence raised air of reality to possibility that subsequent crime occurred and was committed by same perpetrator as murder for which accused was charged.
R. v. Grant (Mar. 5, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35664) Decision at 110 W.C.B. (2d) 133 was affirmed.  121 W.C.B. (2d) 139.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second-degree murder upheld

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second-degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Evidence

HEARSAY

Propensity reasoning could be controlled by limiting instructions and cross-examination

Crown sought to admit statements accused made to acquaintances of victim and victim’s ante-mortem statements as prior discreditable conduct in relation to first-degree murder charge. Accused had threatened victim but not by name with witnesses clearly believing accused was referencing victim. Ante-mortem statements involved victim wanting to move out due to problems with accused as Crown’s theory was accused despised victim who was living with accused. Threats were alleged to be relevant to animus, identity and motive and critical to rebut defences of provocation, intoxication, third-party suspect and self-defence, should these defences be raised. Evidence admissible. Evidence was clearly probative and accused would have opportunity to cross-examine witnesses. Issue was not whether admitting statements would increase chance that accused would be convicted, but whether statements would be improperly used by jury. Propensity reasoning could be controlled by both limiting instructions and cross-examination. Jury could be reminded that they must consider all evidence; that they were not to determine guilt or innocence based on threats alone and that just because accused made threats did not mean he was bad person.
R. v. Martineau (Apr. 22, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket CR-12-00002982) 121 W.C.B. (2d) 38.

Defences

INSANITY

No error in jury charge on NCR defence in murder trial

Accused charged with two counts of first-degree murder. Accused drowned her two young daughters. Defence position was that accused was driven by psychotic delusions and not criminally responsible due to mental disorder (“NCR”). Defence expert testified that accused believed her actions were necessary to protect children from estranged husband. Crown expert testified that accused was motivated by anger at her husband and understood her actions were morally wrong. Appeal from convictions dismissed. Charge to jury on standard to apply contained no error. Charge correctly told jury that issue was whether accused was incapable of knowing her actions were contrary to society’s morality.  
R. v. Campione (Feb. 2, 2015, Ont. C.A., R.A. Blair J.A., S.E. Pepall J.A., and P. Lauwers J.A., File No. CA C54939) 121 W.C.B. (2d) 131.

Corporations

DIRECTORS

Defendant liable for payment of default judgment against corporation

Plaintiff had obtained default judgment against corporate defendants, but had been unable to recover. Plaintiff’s claim against respondent defendant was for repayment of US $1,000,000 debt and interest of $400,000, with liability arising from his alleged agreement to repay or by piercing the corporate veil. By means of defendant’s representations, plaintiff agreed to invest in energy project by way of US $1,000,000 loan, structured as convertible debenture: upon maturity, plaintiff had option of repayment with 30 per cent interest or converting investment to shares. Defendant directed funds to account controlled by corporate defendant, which he admitted was a shell and he personally and totally controlled funds. Issues arose on project and parties agreed to extension of one month with interest rate increased to 40 per cent. Plaintiff sent over 20 emails to defendant confirming terms of revised agreement and repayment obligations but he chose not to respond, other than sending text acknowledging he would make partial repayment of $700,000, though he did not repay anything, ignored repayment demands and now denied all liability. Motion by plaintiff for summary judgment of US $1.4 million. Motion granted in part. Defendant offered no credible evidence to address plaintiff’s allegations or explain his bald denials and some of his denials were contradicted by his own admission he received emails confirming he would cause $1.4 million to be repaid and his text message assuring he would repay $700,000. While loan agreement and debenture were not entered with defendant personally, and he did not execute guarantee, evidence established loan proceeds of US $1 million were transferred to company he controlled and had since disappeared without explanation. However, as defendant was not signatory or party to debenture, evidence fell short of establishing with necessary clarity that he had agreed to be responsible for repayment of interest provided for. Summary judgment for US $1 million granted against defendant but his personal liability for interest was a triable issue.
Irani v. Cheung (Mar. 24, 2015, Ont. S.C.J., Stewart J., File No. CV-13-494071) 252 A.C.W.S. (3d) 472.
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