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CIVIL PROCEDURE - Settlements - Approval - Enforceability

Monday, April 24, 2017 @ 11:27 AM  

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Appeal by the Attorney General from an order forfeiting the entire amount of seized monies to the Crown. When the police responded to a call of an assault in process, a neighbour alerted them to an apparently abandoned suitcase on her driveway. The officers searched it in an attempt to identify its owners. During the search, they found $29,900 concealed in a shoe box inside the suitcase. They also found what appeared to be a robbery kit and identification in the name of Baffoe-Baadu. Rawana claimed that Baffoe-Baadue was her boyfriend and that the suitcase belonged to him. She claimed that the cash belonged to her and was her life savings. No charges were laid against Rawana or Baffoe-Baadu after the police found the cash in question. The parties reached an agreement for $4,000 to be returned to Rawana with the rest to be forfeited to the Crown. A signed consent and draft order were presented to the application judge. The judge, however, found that there was no basis under the Civil Remedies Act for the court to make an order, on terms agreed to by the parties, and, instead, granted full forfeiture of the funds.

HELD: Appeal dismissed. Even if the Rules of Civil Procedure accorded procedural rights to parties to a civil proceeding, they did not provide substantive rights. Furthermore, the enforcement rights relating to settlements under Rule 49 were discretionary. The Court was not obliged to enforce a settlement, just because an offer was made and accepted. In this case, there was no evidence as to who was the legitimate owner of the monies. Furthermore, the application judge made an express finding that Rawana was not the legitimate owner of any of the seized monies. In addition, there was no evidence that an order returning the sum of $4,000 to Rawana was necessary to protect the legitimate owner’s interest in the property. The application judge was correct in concluding, once he was satisfied that the monies were proceeds of unlawful activity, that the entire amount had to be forfeited, absent any evidence that could satisfy the court that any other order was necessary, either in the interests of justice, or in order to protect the interests of the legitimate owner of the monies.

Ontario (Attorney General) v. $29,000 in Canadian Currency (In Rem), [2017] O.J. No. 1583, Ontario Superior Court of Justice - Divisional Court, H.E. Sachs, I.V.B. Nordheimer and C. Gilmore JJ., March 30, 2017. TLD-Apr242017003