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Thursday, September 29, 2016 @ 8:00 PM

Real Property Law - Condominiums - Condominium corporation - Rights and obligations - Building management

Appeal by the Condominium Corporation from an order allowing the respondent’s application for oppression relief. The respondent owned a number of commercial parking spots in a mixed-use condominium that it rented out on a monthly basis. The respondent then wanted to rent them out on an hourly basis. The appellant’s board of directors (Board) was concerned about the security implications of the changes requested because they would make it easier for trespassers to enter the building. Accordingly, the Board refused to approve changes to the common elements required to make that shift unless the respondent hired a full-time security guard who would monitor its operation. The respondent was unwilling to hire a full-time dedicated security guard. The application judge found that the appellant had unfairly disregarded the respondent’s interests, contrary to s. 135 of the Condominium Act. The judge ordered that the respondent be allowed to make the changes and dispensed with the need for a vote of the unit owners. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Procedure - Trial judge’s duties - Charge or directions - Evidence of witnesses - Onus and burden of proof

Appeals by the accused, Figueroa and Loayza-Penaloza, from convictions for first degree murder. A housekeeper was found strangled to death in a home the accused had broken into. The Crown took the position that the killing was committed by both accused in the course of an unlawful confinement of the victim. Figueroa’s DNA was found underneath the victim’s fingernails. No DNA evidence linked Loayza-Penaloza to the crime. Loayza-Penaloza testified that he was outside of the home in a van when the killing occurred. He claimed he was unaware of the killing, as Figueroa advised the deceased was tied up inside the home. Figueroa testified that he unexpectedly encountered Loayza-Penaloza in the basement in the act of killing the victim. Both accused were convicted by a judge sitting with a jury. They each appealed. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Government Law - CROWN - Actions by and against Crown - Negligence by Crown - Practice and procedure - Discovery

Application by the plaintiff, Lindgren, for leave to appeal a chambers order regarding an examination for discovery. The underlying litigation arose from a 2008 motor vehicle accident. The plaintiff, now age eight, suffered devastating injuries. Parks Canada, a federal Crown agency, was one of the parties to the litigation. The plaintiff alleged Parks Canada was negligent for failure to ensure the reasonable safety of the highway, failure to salt, sand or plow the highway, and failure to properly maintain the highway and respond to dangerous road conditions. The plaintiff sought to examine Bergeron, one of the two snow plow operators on duty just prior to the accident. Parks Canada opposed the examination of Bergeron and instead designated DeMone, the associate director for highway service, as its representative. Under s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations, the Crown was entitled to designate its representative to be examined. The chambers judge found that Parks Canada’s proposed designate was not demonstrably unsatisfactory. The plaintiff sought leave to appeal. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Maintenance and support - Child support - Child support guidelines - Practice and procedure - Appeals and judicial review

Appeal by the father from a determination of child support. The parties cohabited between 1996 and 2012. They had three children, ages seven, 12 and 17. The separation was high conflict. The mother remained in the family home with the children. The mother was on disability leave from her work as an insurance adjuster. The father’s work schedule generally involved a rotation of three weeks onshore and three weeks offshore, though some of the offshore time involved work onshore. The parenting time awarded to the father reflected increased days while onshore and amounted to 38 per cent of the time. The father was accordingly required to pay child support at the Guideline amount. He appealed on the basis that his parenting time, when calculated based on likely extra onshore work rotations, amounted to 40 per cent of the year, requiring support to be calculated using the setoff method. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Securities Regulation - Offences and enforcement - Offences - Materially-misleading or untrue statements

Appeal by Rooney and Leach from an order requiring them to elect whether to sue the offerors under a hostile takeover bid or their respective directors and signatories, and prohibiting security holders who transacted in the secondary market from asserting a claim in the present class action alleging violations of section 131(1) of the Securities Act. Rooney and Leach were security holders of Baffinland Iron Mines Corporation (Baffinland), the target of a hostile takeover bid by a group headed by the respondent Waheed. The takeover bid included a circular that was sent to all Baffinland security holders and filed with the Securities Commission. The directors and officers of Baffinland considered the bid and prepared a directors’ circular, which was distributed to the same parties. Rooney and Leach commenced a class proceeding alleging that the circulars failed to disclose material information and that the information disclosed was materially misleading and replete with misrepresentations about the business and affairs of Baffinland. They claimed that, as a result, they received less for their Baffinland securities than they otherwise would have. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Mortgages - Mortgagee’s remedies

Appeal by the Toronto-Dominion Bank (bank) from a decision dismissing its application to terminate a tenancy agreement. The bank registered a mortgage on a condominium owned by Hosein. Hosein had made no mortgage payments since November 2012. The bank commenced mortgage enforcement proceedings. After her default, Hosein leased the property to the Boodhoo for five years on terms very favourable to Boodhoo. The terms of the lease did not cover the monthly expenses associated with the condominium. The bank’s application to terminate the tenancy agreement pursuant to s. 52 of the Mortgages Act (MA) was dismissed on the basis that s. 52 of the MA conflicted with the Residential Tenancies Act (RTA) and was therefore of no effect. The bank submitted that provisions in the two Acts were not in conflict. Boodhoo submitted that s. 52 was in direct conflict with the provision of the RTA that allowed for the tenancy agreement to be terminated according to that Act. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Criminal Law - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Protection against cruel and unusual punishment

Appeal by the Crown from the sentence imposed on Oud for convictions for mischief causing actual danger to life (s. 430(1) of the Criminal Code) and intentionally discharging a firearm into a place knowing or being reckless as to whether another person is present (s. 244.2(1) of the Criminal Code). Oud gave money to a woman to buy crack cocaine for him at a house. When she failed to return, Oud knocked on the door, spoke to a man, returned to his vehicle, loaded a gun used earlier in the day for target shooting, and shot seven times at the door. The bullets entered the premises. One grazed the cheek of a person in the suite, and three lodged in a wall above a person. Section 244.2(3)(b) of the Criminal Code imposed a mandatory minimum sentence of four years for an offence under s. 244.2. The sentencing judge held that s. 244.2(3)(b) was unconstitutional as violating the bar in s. 12 of the Charter against cruel and unusual punishment, and that it had no force and effect. Applying the usual sentencing principles, without the influence of s. 244.2(3)(b), the judge sentenced Oud to four years’ incarceration less 153 days in pre-sentence custody. The Crown submitted that the judge erred in finding that the Charter was infringed, gave insufficient consideration to the sentencing principles of denunciation and deterrence, and that the sentence was not proportionate to the gravity of the offences and Oud’s degree of responsibility. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Administrative Law - Judicial review and statutory appeal - Standard of review - Reasonableness

Appeal by Allstate Insurance Company of Canada (Allstate) from a determination that Allstate was responsible for paying statutory accident benefits (SABs) owed to the claimants, Paula Chartrand and her two daughters. Paula left her husband and moved to another city with her daughters into Kyle’s home. Kyle was responsible for most of the claimants’ expenses, as Paula was not contributing to household expenses or paying any of the bills. The claimants were involved in an automobile accident. The daughters experienced catastrophic injuries. The claimants applied for and received accident benefits from Intact Insurance Company (Intact), the insurer of the vehicle they were riding in at the time of the accident. Intact argued that Allstate, who insured two vehicles owned by Kyle, should pay those benefits. Intact took the position that Allstate was obligated to pay because the claimants were dependent on Kyle at the time of the accident. The arbitrator found that the claimants were not principally dependent for financial support on Kyle at the time of the accident, therefore Intact was responsible for the accident benefits. Intact’s appeal was allowed. The appeal judge concluded that the arbitrator had committed an error of law by importing a permanency requirement into the analysis and an error in principle by speculating about future events. Because of these errors, the appeal judge reviewed the arbitrator’s decision on a correctness standard, set aside the arbitrator’s decision, and concluded that Allstate was responsible for paying the accident benefits owed to the claimants. Allstate submitted that the appeal judge erred by reviewing the arbitrator’s decision on a correctness standard and that the arbitrator’s decision should be restored because it was reasonable. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Family Law - Maintenance and support - Child support - Considerations - Ability to pay - Incomes over $150,000 - Agreement - Income of parties’ spouses - Child support guidelines

Appeal by the mother from the dismissal of her application for increased child support for the parties’ three children. The parties separated in 2011 after 10 years of marriage. In 2012, they entered into a separation agreement. The separation agreement provided for joint custody and equal parenting of the children, who were nine, 10 and 12 years old. The agreement provided for the father to pay monthly child support of $7,900, reviewable in 2015, and equal sharing of extraordinary expenses. Both parties had since remarried. The father was an investment advisor with an income of $775,149. His new wife had no income. The mother worked as an executive assistant with an income of $58,593. Her new husband’s income was $379,656. They also rented out a suite in their home. In October 2015, the mother brought an application to increase child support to $11,400 per month in accordance with the Federal Child Support Guidelines (Guidelines). The judge dismissed the mother’s application for increased child support finding that the child support paid by the father sufficiently covered the expenses that could be reasonably attributable to the children. She also found that the mother’s husband’s income and their rental income were relevant extra income available to her. She further found that any amount above the current child support would be a transfer of wealth as between the two parties. She ordered the father’s child support obligation to continue at $7,900. The mother appealed, arguing that the trial judge erred by treating her application as an application to vary child support, by failing to apply the principles embodied in s. 4 of the Guidelines and inappropriately applying s. 9(c) of the Guidelines in such a manner as to relieve the husband of his support obligations. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Civil Litigation - Civil procedure - Appeals - Stay of proceedings pending appeal - Balance of convenience - Irreparable harm - Serious issue to be tried

Motion by Ontario Electricity Financial Corporation (OEFC) to stay parts of a judgment requiring it to pay approximately $160 million to the respondents, pending the outcome of its application for leave to appeal to the Supreme Court of Canada and, if leave was granted, a determination on the merits. OEFC was a Crown agency whose objects included managing the former Ontario Hydro’s non-utility generator contracts. The responding parties were privately-owned non-utility generators (NUGs) who entered into power purchase agreements with the former Ontario Hydro between 1989 and 1994. In January 2011, a new regulation came into force. OEFC relied on it to amend the formula it used to calculate the payments it made to the NUGs. The new formula resulted in decreased payments to the NUGs. The NUGs commenced six separate applications alleging that the new formulas breached the power purchase agreements. In their applications, the NUGs asked for orders requiring OEFC to resume making payments in accordance with the way they had been calculated before the regulation came into force and requiring OEFC to pay them the difference between what they had been paid during the relevant period and what they would have been paid had OEFC not paid according to the new formula. The judge that heard the applications found that the new formula did not comply with the power purchase agreements. He granted the applications and ordered OEFC to make both “go-forward” and retroactive payments. OEFC’s appeal from that order was dismissed. It had made the go-forward payments, but the retroactive payments were stayed pending the decision from the Court of Appeal. OEFC had since applied for leave to appeal to the Supreme Court. ... [read more]