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PROCEEDINGS - Appeals and judicial review – Practice and procedure – Notice – Orders – Setting aside

Thursday, June 15, 2017 @ 8:31 AM  

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Appeal by the Winberg Estate from an order granted pursuant to s. 490 of the Criminal Code in favour of the respondent pawnbroker, Floward Enterprises. Prior to his passing, Martin Winberg purchased a $40,000 diamond. The diamond was stolen from the home at which Winberg had arranged storage. The theft was promptly reported to police. The police investigated and arrested the perpetrator. The diamond was located at a pawnbroker business owned and operated by the respondent. Police took possession of the diamond from the pawnbroker and retained it throughout the criminal proceedings against the perpetrator. Following completion of the proceeding, the pawnbroker obtained an order for return of the diamond pursuant to s. 490 of the Criminal Code. Winberg's Estate appealed the order on the basis it was not given notice of the pawnbroker's application, and was entitled to participate in the application given its ownership interest in the diamond.

HELD: Appeal allowed. The s. 490 application was determined in the absence of full and frank disclosure by the pawnbroker. Although the pawnbroker was required to give notice solely to the Crown, it was proper to regard its application as ex parte in nature given the adverse interest of the Estate. The pawnbroker's written materials and oral submissions failed to disclose the material fact of the Estate's claim of an interest in the diamond, the Estate’s intention to assert its claim, its own unsuccessful attempts to secure the diamond’s release from police, and the police's prior refusal to release the diamond because of the adverse claims to the property. Given the complex factual and legal disputes between the Estate and the pawnbroker, the appropriate remedy was to set aside the order rather than require return of the diamond to the Estate.

Floward Enterprises Ltd. (c.o.b. H. Williams and Co.) v. Winberg Estate, [2017] O.J. No. 2857, Ontario Court of Appeal, E.E. Gillese, G. Huscroft and G.T. Trotter JJ.A., June 2, 2017. Digest No. TLD-June122017009