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Thursday, November 24, 2016 @ 7:00 PM

Natural Resources Law - Public utilities - Regulatory tribunals - Appeals - Provincial boards, tribunals and commissions -

Application by the Office of the Utilities Consumer Advocate of Alberta for permission to appeal two decisions by the Alberta Utilities Commission. In 2004, FortisAlberta (Fortis) acquired lands for construction of a proposed centralized inventory facility. In 2015, Fortis reviewed its plans and decided the lands were not required, as a decentralized approach was more desirable. Fortis accordingly requested the Commission’s consent to disposition of the property. The Commission concluded the lands were no longer required by Fortis, and that customers would not suffer a rate or service impact by the proposed disposition. The Commission determined that the lands would remain in the determination of the rate base until rebasing in 2017. The applicant took issue with the timing of the land’s removal from Fortis’s rate base, alleging removal should have occurred in 2011. The applicant sought permission to appeal the Commission’s approval of the proposed disposition and a second review and variance ruling that upheld the approval decision. ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Taxation - PROVINCIAL AND TERRITORIAL TAXATION - Ontario - Income tax - Administration and enforcement

Appeals by two trust entities from assessment of provincial taxes as residents of Ontario. The appellants were two family trust entities assessed provincial taxes for various taxation years between 2006 and 2009. The family trust was settled in Ontario and the spousal trust was settled in Alberta. The family companies were incorporated in Ontario. In 2005, the family trust borrowed money from a family company and invested the proceeds in a securities portfolio. The borrowing was repaid using a dividend declared by one of the family companies. The family trust also held a partnership unit in an Alberta company. During the relevant period, the appellants filed income tax returns as residents of Alberta. The Minister of National Revenue reassessed the appellants as residents of Ontario, subject to Ontario provincial tax. The Minister took the position that all decisions regarding the appellants were made in Ontario. The reassessment gave rise to a $4.7 million difference in taxes owed between the provinces. The appellants appealed on the basis they were Alberta residents during the years at issue, and therefore not liable for Ontario provincial taxes. ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Tort Law - Conspiracy - Practice and procedure -

Appeal by the plaintiff, Green, from an order of summary judgment dismissing his claim of conspiracy to injure, breach of contract and breach of duty of care against the defendants, Woloshyn, Stewart, Anchan and the University of Winnipeg (the “university defendants”). In 2011, as part of his Faculty of Education program at the university, the plaintiff was placed at a high school for his teaching practicum. His supervising teacher had concerns about his teaching methods, which he expressed to the principal. The principal met with the plaintiff to discuss the concerns. During the meeting, the plaintiff became agitated and confrontational and, as a result, was directed to leave the school. The principal contacted Woloshyn, the Director of Student Teaching at the Faculty and advised her of what had happened. Independently, the University received complaints from classmates and instructors of the plaintiff concerning his in-class conduct. The day after the plaintiff was removed from his practicum, Anchan, the Associate Dean of the Faculty, forwarded the complaints to the University Registrar. The complaints were investigated and it was recommended that the plaintiff be suspended from the Faculty and barred from campus. Subsequently, the President of the University did so. The plaintiff unsuccessfully appealed his suspension. The plaintiff took no further steps with respect to the decision, but commenced legal proceedings against the high school and university defendants claiming they conspired to injure him by depriving him of the opportunity to become a certified teacher. He also claimed defamation against the high school defendants. The high school defendants’ motion for summary judgment to dismiss the claim against them was allowed. The University defendants also brought a motion for summary judgment to dismiss the claim against them. The Master was not convinced that the plaintiff’s action must necessarily fail and he dismissed the motion. The university defendants appealed. The plaintiff amended his statement of claim as to claims for breach of contract and breach of duty of care against the university defendants. At the hearing of the appeal, he sought leave to admit new evidence consisting of a transcript from criminal proceedings. The judge disallowed the new evidence. He further found that the matter involved discipline imposed by the University and therefore the appropriate remedy was judicial review of that decision and not a statement of claim for damages. He further found that the plaintiff had not established a genuine issue for trial and that summary judgment should be granted. The plaintiff appealed arguing that the judge erred in refusing to admit the additional evidence, erred in finding that the plaintiff’s claim was essentially an academic dispute and erred in granting summary judgment in favour of the university defendants. ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Wills, Estates & Trusts Law - Gifts - Inter vivos - Presumption against gift, resulting trust - Rebuttal - Presumption of advancement - Person in loco parentis - Rebuttal - Validity of transfer

Appeal by the plaintiff, the Thorsteinson Estate, from a judgment dismissing an action and upholding a gift in favour of the defendant, Olson. The testator had served as the defendant’s nanny and they subsequently developed a close relationship akin to parent and child. As an adult, the defendant lived at the testator’s property for several years. In 2000, the testator signed a deed of gift transferring nine parcels of farmland to herself and the defendant as joint tenants. In 2001, a dispute arose between the parties and the testator subsequently commenced an action seeking to have the transfers set aside on the basis of resulting trust, undue influence and breach of fiduciary duty, and seeking an accounting for the defendant’s use and occupation of the land. The testator’s Estate continued the action following the testator’s passing. The trial judge dismissed the action in its entirety and upheld the gift. The trial judge found no evidence of undue influence, and concluded that if the presumptions of either undue influence or resulting trust had arisen, both were rebutted by evidence of an intention to provide a complete and unconditional gift to the defendant. The Estate appealed. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Appeals - Grounds - Miscarriage of justice

Appeal by Shafia, his wife Tooba and his eldest son Hamed from their convictions for first degree murder. Three of the victims were the teenaged daughters of Shafia and Tooba. The fourth victim was Rona Amir, Shafia’s 58-year-old first wife. Shafia married Rona in Afghanistan in 1978. Shafia took a second wife when Rona consented, because she was unable to have children. The family lived together as a unit and, except for Rona, moved to Canada in 2007. Rona joined them in 2009. The three daughters who died had been dating men their father did not approve of and dressing in a manner he considered embarrassing. Hamed often reported their behaviour to Shafia. The girls had made complaints about being abused at home that they retracted in the presence of their father. Shafia had conversations with family members about killing the oldest daughter. A laptop computer belonging to Hamed showed searches relating to drives near water, bodies of water and “where to commit a murder”. The victims all died by drowning. They were found inside a Nissan Shafia had recently purchased, submerged in the water at the Kingston Mills Locks. The three accused reported the four missing the day they were found, claiming that they were on a family road trip and that the oldest daughter had left the hotel where they were all staying to retrieve belongings from the Nissan the night that they all disappeared. After being arrested, Hamed told an acquaintance that he followed the four victims and struck their car accidentally before it went into the water at the Locks. In another statement that she later disavowed, Tooba claimed she was at the Locks and saw the Nissan go into the water, then fainted. Intercepted conversations between the three accused established that the daughters’ honour was a source of anger for Shafia. Dr. Mojab, a professor with expertise in violence against women in Middle Eastern cultures, was permitted to testify about honour killings, but not to compare previous examples to the present case. Physical evidence established that the Nissan could not have entered the water without being pushed, and that the other family car, a Lexus, had front-end damage consistent with pushing the Nissan into the water. Pieces of plastic from the Lexus were found near the Locks. Hamed sought to adduce fresh evidence on appeal that he was actually 17 years old at the time of the killings and therefore should have been tried as a young person. Despite numerous immigration documents that stated his birthday as December 31, 1990, Hamed adduced a document from Afghanistan called a tazkira that stated his birthdate was a year later. Experts questioned the bona fides of the tazkira given the different ink used in various areas, the stamp of a country that was not in existence at the time the document was issued, and the reliability of the evidence of a neighbour that formed its basis. Prior to the appeal, the three accused acknowledged that Hamed was 18 years old when the killings took place. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Voluntariness

Appeal by the Crown from the respondent’s acquittal on a charge of arson. The appellant had entered a police station stating that he set fire to his mother’s house. During the course of a police interview, the respondent advised that he was homeless and wanted to go to jail. The police officer advised the respondent that arson was a serious offence, which may be punishable by imprisonment, and cautioned the respondent that anything he said to the officer could be used in evidence. The officer also repeatedly suggested to the respondent that he obtain legal advice. After finally agreeing to speak to duty counsel and obtaining legal advice, the respondent proceeded to give a statement implicating himself in the fire that had destroyed his mother’s house. The trial judge found that a combination of oppressive conditions and inducement rendered the confession involuntary. The trial judge concluded that the officer had induced the respondent to confess through presenting the quid pro quo of jail in return for a confession, given the respondent’s stated desire to find shelter. The trial judge found that the fact that the respondent was homeless and in desperate need of shelter meant that he was suffering under oppressive conditions. The Crown argued that the trial judge erred in finding that the statement was involuntary and that the trial judge misapplied the law regarding the issues of inducement and oppression. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Criminal Law - Appeals - Grounds - Bias

Appeal by the accused from convictions of three counts of aggravated sexual assault and two counts of forcible confinement. The accused was an HIV-positive man with an undetectable viral load. He met the four male complainants at a bathhouse in Toronto. They smoked crystal meth together and returned to the accused’s home. The accused engaged in consensual sexual activity with two of the complainants and attempted sexual activity with the other two complainants, whom he admitted restraining until they asked to be released. Trial counsel requested and was granted the right to challenge prospective jurors for cause on the basis of potential bias against homosexuals. Although told that members of the jury could not discuss the case, the jury foreperson twice appeared on a radio show and discussed the case, once during trial and once after the trial had concluded. All of the participants in the radio show made derogatory comments about sexual activity between men and laughed and mocked the juror’s oath. The accused sought to appeal his convictions on the grounds that the trial judge should not have allowed the admission of evidence from his doctor and erred in not providing the jury with instructions on similar fact reasoning, discreditable conduct evidence, or a Vetrovec warning, and that trial fairness or the appearance of fairness was undermined by the conduct of the jury foreperson, who participated in radio broadcasts discussing the trial. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Municipal Law - MUNICIPAL BOARDS AND TRIBUNALS - Jurisdiction - Finances - Tax assessment

Appeal by the City of Edmonton from a judgment of the Alberta Court of Appeal which set aside a decision of the Assessment Review Board for the City of Edmonton (Board). For the 2011 taxation year, the City of Edmonton assessed the value of the Capilano Shopping Centre as approximately $31 million. The company that owned the shopping centre, Edmonton East (Capilano) shopping Centres Limited (Capilano), disputed this assessment by filing a complaint with the Board. It sought a reduction in the assessed value to approximately $22 million. When reviewing Capilano’s submissions and evidence, the City discovered what it determined was an error in its original assessment. The City therefore requested that the Board increase the assessed value to approximately $45 million. While Capilano expressed concern about the City’s change in position, it did not dispute the Board’s power to increase the assessment. The Board ultimately increased the assessment to approximately $41 million. Capilano appealed, submitting that when a taxpayer disputed an assessment the Board lacked the statutory power to increase the assessment and could only lower or confirm it. The Alberta Court of Queen’s Bench agreed with Capilano, as did the Court of Appeal. The Court of Appeal concluded that the decisions of a tribunal subject to a statutory right of appeal (or a right to apply for leave to appeal), rather than ordinary judicial review, should be reviewed on the correctness standard. On appeal, the Court had to determine the appropriate standard of review for the Board’s implicit decision that it could increase Capilano’s property assessment and whether the Board’s decision withstood scrutiny on that standard. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Real Property Law - Interests in land - Easements - Creation - By implication - By implied reservation from grant - Easements of necessity - Implied reservation by common intention

Appeal by Miles from a ruling in a dispute over ownership of a gravel road situated on Miles’ property. In 1971, the road served an oil and gas well. The road was subsequently used to access properties within a subdivision. In 1973, the north-east quarter of the lands owned presently by Miles was sold by Peel to Schiele. The agreement mentioned the strip of land used as the road, excepted it from the agreement, and provided for its transfer back to Peel. The agreement was never concluded by a formal transfer of the road back to Peel. Peel registered a caveat, which did not describe the road. The road was used, uninterrupted, for forty years to access lands on the north-west and south-west quarters. In 1991, Schiele entered into a surface lease with owners of a well license on the north-east quarter and received lease payments. In 2009, Miles sought to buy the north-east quarter from Schiele’s estate. It was a condition precedent that the caveat be removed. Notice was not provided to Peel’s successor in title, nor to the residents using the road to access their homes. Since then, Miles and the residents disputed the use of the road. Miles at one point sought to close the road with a gate. The Municipality declared it a temporary public road in 2014. The residents applied for lawful access and use of the road. The judge found that the road was not a public highway and that no easement arose by express reservation because the caveat did not expressly protect the road. He found an implied easement by necessary implication. He found that Peel and Schiele appreciated that the road was reserved to allow access to the local residents and that one of the residents enjoyed an implied easement by necessity. The judge enjoined Miles from denying access. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Government Law - CROWN - Ministries, departments and agencies - Authority and powers

Reference regarding warrants presented by the Canadian Security Intelligence Service (CSIS) pursuant to ss. 12 and 21 of the Canadian Security Intelligence Act. The reference hearing arose in the context of an ongoing discussion between CSIS and the Federal Court regarding protection of third-party information collected through operation of warrants. In January 2016, the Security Intelligence Review Committee filed an annual report which included new evidence concerning a CSIS program of collection and retention of information that had existed since 2006. The Court learned that the Operational Data Analysis Centre (ODAC) retained information which included a specific type of metadata and associated data obtained from service providers that extended beyond the targets of a particular warrant. The Court learned that the metadata was retained indefinitely by the ODAC for future investigative purposes. In the course of the ensuing en banc hearings, CSIS sought amendments to its warrant templates to reflect its current practice regarding retention and destruction of the information obtained by the ODAC. ... [read more]