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Thursday, November 17, 2016 @ 7:00 PM

Taxation - Customs and excise - Customs - Tariff classification - Imports - Preferential tariffs - Redetermination and appeals - Appeals - Canadian International Trade Tribunal - Federal Court

Appeal by the Attorney General from three decisions of the Canadian International Trade Tribunal upholding the ability of importers to correct certain declarations in order to obtain more favourable tariff treatment. In the three cases, goods qualifying under the North American Free Trade Agreement (NAFTA) were imported into Canada from the US duty-free using the Most Favoured Nation (MFN) tariff treatment. The importers declared certain tariff classifications for the goods. Later, as a result of CBSA audits, the importers discovered that the tariff classifications they had chosen for the goods were incorrect, and they filed a correction of the tariff classification. They also notified the CBSA of the change to the tariff treatment. The goods went from duty-free classification with MFN treatment to a duty-free classification with NAFTA treatment. The CBSA objected to what the importers had done, claiming that the MFN treatment was not incorrect and therefore could not be changed. The Tribunal saw nothing wrong with what the importers had done finding that the NAFTA tariff treatment was always available to the goods and the change simply maintained the status quo. The Tribunal further found that the CBSA followed a wrong methodology by focusing on a purported correction to tariff treatment and committed an abuse of process by re-litigating a prior decision. The Attorney General appealed the three decisions. It also challenged the Tribunal’s finding that the CBSA committed an abuse of process. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Commercial Law - UNJUST ENRICHMENT - Defences

Appeal by Ivancic from judgment in favour of the Palkowskis in their claim to have their former home re-conveyed to them by Ivancic, subject to a payment to Ivancic to reflect his contributions to the home including a cash payment. The parties entered into an agreement pursuant to which Ivancic would purchase the Palkowskis’ home at a price much below its market value in an attempt to defraud their creditors, by tricking them into believing that the Palkowskis could not pay their debts. They had an oral agreement allowing the Palkowskis to live in the home, reimburse Ivancic for the carrying costs of the mortgage, real property and taxes, and that Ivancic would re-convey the home sometime later. Litigation ensued in 2015, when Ivancic refused the Palkowskis’ demand that the property be re-conveyed to them. They claimed that Ivancic held the property in an express trust for them. They also claimed unjust enrichment and a constructive trust. The judge found the property sale agreement a sham. The express trust claim was dismissed because the parties had no agreement in writing. The judge found that Ivancic was enriched and that the Palkowskis were correspondingly deprived of their interest in the home, with no juristic cause. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Conflict of Laws - Conflicts by legal area - Contracts - Choice of law - Expressly chosen by terms of contract - Interpretation

Appeal by the plaintiff from a decision of a motions judge granting a stay of proceedings based on a forum selection clause. The appellant sued the respondent company, its principals and a related company for wrongful termination of an Exclusive Sales Agreement to which the appellant and respondent company were parties. The agreement contained a forum selection clause that any disputes would be arbitrated in Germany. The appellant argued the motions judge erred in finding that the language of the forum selection clause was broad enough to capture both the contract and tort claims pleaded against the principal and in relying on the forum selection clause to stay the action against the respondents who were not parties to the Agreement. ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Family Law - Marital property - Equalization or division - Partition and sale of real property - Deductions from proceeds

Appeal by the wife from a decision ordering her to pay 25 per cent of the real estate commission payable on the sale of the former marital home. The parties had entered into a settlement agreement that was incorporated into a consent order which was silent on payment of real estate commission. Pursuant to the order, the wife was entitled to a specified lump sum payment for her interest in the marital home payable from the net sale proceeds. While the wife claimed she was not responsible for payment of any commission, the husband argued that she was liable for one-half of the commission payable. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Civil Litigation - Civil procedure - Contempt of court - What constitutes - Impairing order or dignity of the court - Judgments and orders - Disobedience or non-compliance with - Knowledge requirement

Appeal by Morasse from a judgment of the Quebec Court of Appeal setting aside Nadeau-Dubois’ conviction and sentence for contempt of court. Nadeau-Dubois was the spokesperson for one of the most active student organizations in the province, which organized protests and picket lines in various post-secondary institutions over proposed increases in university tuition fees. Morasse was a student in his final year at Laval University. On April 12, 2012, Morasse obtained a provisional interlocutory injunction that mandated free access to the facilities in which classes for the visual arts program were held. It also ordered all persons who were then boycotting classes to refrain from obstructing or otherwise blocking access to classes by way of intimidation or through other actions likely to have this effect. On May 2, 2012, the Court renewed the injunction through a safeguard order valid until September 14, 2012. That order reaffirmed the prohibition against obstructing or otherwise preventing access to classes, but made no specific reference to picketing generally. Eleven days later, Morasse filed a motion under art. 53 of the Quebec Code of Civil Procedure (Code) for contempt against Nadeau-Dubois in relation to comments he made during a television interview. He alleged that Nadeau-Dubois publicly incited people to contravene the order. The motion alleged a violation of art. 761 of the Code, which created an offence for contempt that related specifically to breaching injunctions. On the merits of the contempt motion, the Court concluded that because the order had not been served on Nadeau-Dubois, he could not be found guilty of contempt of court under art. 761. However, the Court found Nadeau-Dubois guilty under art. 50 of the Code, which provided that a person was guilty of contempt of court if he/she disobeyed any process or order of the court or of a judge thereof, or acted in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court. Nadeau-Dubois was sentenced to 120 hours of community service. The Quebec Court of Appeal unanimously allowed the appeal. It concluded that the statements made during the television interview fell short of establishing that Nadeau-Dubois knew of the existence and content of the court order. The conviction and sentence were consequently set aside and an acquittal entered. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Contracts - Misrepresentation - What constitutes - Negligent misrepresentation

Appeal by the plaintiffs from orders dismissing their motions for partial summary judgment in their actions for rescission and damages and dismissing their claims against the respondents Talon International (Talon), Trump, Levitan and Shnaider. The appellants purchased Hotel Units as investments, expecting that they would profit by participating in the hotel’s “Reservation Program” pursuant to which the units would be rented out by the hotel’s operator. Talon was the developer. Shnaider was a Director and Chairman of Talon. Levitan was a Director and the Chief Executive Officer and President of Talon and had no previous experience in construction, hotel management or operations. Pursuant to a licence agreement, Talon used the Trump name and trademarks for the building. Prior to construction, Talon obtained a decision from the Securities Commission exempting the sale of the Hotel Units from the dealer registration and prospectus requirements on the basis that the Hotel Units would not be marketed or structured as investments for profit or gain and that prospective purchasers would not be provided with rental or cash flow forecasts or guarantees by Talon. The motions judge found that the Hotel Units were sold as an investment with a potential for capital gain and with ongoing income gains that would more than cover expenses. The marketing materials included Estimates that showed various expenses and revenue scenarios from different hotel suites. The motions judge found that the Estimates were deceptive and replete with misrepresentations. The actual maintenance fees and monthly costs were significantly higher than those set out in the Estimates and the rental income was significantly lower than set out in the estimates. All the purchasers lost substantial amounts of money in all three of the start-up quarters. The appellants’ motions for partial summary judgment proceeded against Talon, Shnaider, Levitan and Trump and were with respect to the alleged breach of the Commission’s ruling and the misrepresentation by Talon. The motions judge rejected the appellants’ claim that Talon breached the Commission’s ruling by marketing the Hotel Units as investment contracts and held that the Estimates did not constitute misrepresentation. The motions judge held that the appellants had made out negligent misrepresentation, but failed to establish reasonable reliance. The motions judge also held that the negligent misrepresentation claim was defeated by the entire agreement clause and the other exculpatory provisions of the contracts. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Construction Law - Liens - Obtaining a lien - Claim - Filing - Defects and formalities - Notice of lien - Failure to provide - Vacating, loss or discharge of lien

Appeal by Superior Construction Solutions (Superior) from an order vacating its written notice of lien and a claim of lien. Superior performed work in respect of City property and other property under a subcontract to Hamilton Construction (Hamilton). The last day Superior performed work under its contract was November 19, 2013. Hamilton brought the present application on December 10, 2015. Superior had commenced a claim against Hamilton and several others on July 16, 2015 in Regina, but had failed to serve Hamilton with the claim or to give Hamilton notice of the claim. Superior obtained an order extending time for service, and served Hamilton with the claim. In the meantime, before Superior had effected service of its statement of claim, Hamilton searched the local registry and, finding no statement of claim, applied to vacate Superior’s written notice and claim of lien on the ground that no action had been commenced within two years. The judge allowed the application and vacated the written notice of lien and claim of lien. He found that s. 86(2) of the Builders’ Lien Act applied and he interpreted that section as requiring a lien claimant to file its statement of claim in the judicial centre nearest to the land over which the claim related. He also found Superior was required to provide the court with an evidentiary and legal basis for the claim to permit a determination that there was an arguable case and thus justification to maintain the extraordinary remedy of claim of lien and that Superior had failed to do so. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Digest - Alternative Dispute Resolution - Binding arbitration - Voluntary binding arbitration - Agreement to arbitrate - Interpretation

Appeal by the defendants Gunam and Feng from a decision of a motions judge refusing to stay the action in favour of an arbitration agreement. The co-defendant Viscardi did not appeal. The parties entered into a shareholder agreement respecting the operation of a restaurant. When the restaurant failed, the respondent sued the appellants and Viscardi for fraudulent misrepresentation which he alleged induced him to sign the shareholders’ agreement. The shareholders’ agreement contained an arbitration agreement. The alleged misrepresentation largely related to the failures of Viscardi and the appellants to perform their obligations under the shareholders’ agreement. The motion judge found that the claims were not in pith and substance contractual, but related only to fraudulent misrepresentation, apart from the oppression claim. The motion judge took the view that the scope of the arbitration agreement did not extend beyond contractual claims. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Sentencing - Criminal Code offences - Offences against person and reputation - Homicide - Manslaughter - Particular sanctions - Imprisonment - Probation - Sentencing considerations - Submissions - Joint submissions

Appeal from a judgment of the British Columbia Court of Appeal affirming a sentencing decision which set aside a joint submission regarding Anthony-Cook’s sentence. Anthony-Cook entered a plea of guilty to manslaughter on the basis of a joint submission as to sentence. The trial judge rejected the joint submission and imposed a longer custodial sentence than the sentence proposed by the Crown and the defence counsel. He also imposed a probation order for three years, even though the joint submission did not contemplate a period of probation. The Court had to determine whether the trial judge erred in departing from the joint submission proposed by the parties. The trial judge expressed two concerns with the joint submission. First, he noted that counsel had mistakenly overestimated by some six months the amount of credit to which Anthony-Cook was entitled for time spent in pre-sentence custody. Second, the trial judge was concerned that without a probation order, the sentence would not adequately protect the public. Applying the “fitness of sentence” test, the trial judge rejected the joint submission. While giving it careful consideration, he concluded that it did not give adequate weight to the principles of denunciation, deterrence, and protection of the public. The Court of Appeal for British Columbia unanimously dismissed Anthony-Cook’s sentence appeal. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Criminal Law - Appeals - Grounds - Misapprehension of or failure to consider evidence - Unreasonable verdict

Appeal by Lemaigre from his conviction for assault causing bodily harm. At the time of the alleged offence, Lemaigre was serving the community portion of his sentence as a long-term offender. The long-term supervision order prohibited Lemaigre from having any contact with his former spouse. She was the complainant. She testified that she found Lemaigre at her home, where he punched her once in the face, knocking her unconscious. She had a small scar as a result. Under cross-examination, the complainant admitted she had a history of alcohol problems and that she had been drinking the day before the incident with Lemaigre. No one witnessed the assault. The daughter of Lemaigre and the complainant, and the daughter’s boyfriend, testified for the defence. The daughter stated that the complainant had come to her home drunk, looking for a place to stay. When the daughter refused her entry, the complainant fell outside the home. The daughter and her boyfriend noted that the complainant had the eye injury that the complainant attributed to Lemaigre after the fall. The daughter also started to testify about the complainant punching Lemaigre at the daughter’s home some days later, but the Crown objected to the daughter testifying in chief about the events of any day other than the day in question, April 3, 2012. She rejected the suggestion that Lemaigre may have hit the complainant the next day after the complainant got up and left. The daughter was adamant that Lemaigre was out of town on April 3, 2012. Both she and her boyfriend stated that Lemaigre always called them when he was in town. The judge noted that neither the daughter nor her boyfriend were sure what the complainant may have encountered after she left their home. He found that the daughter angry with the complainant because of her drinking, protective of Lemaigre, and generally unbelievable. He found the complainant straightforward and credible in her account of being punched by Lemaigre and suffering a black eye that constituted bodily harm. ... [read more]