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Business Associations

Legal proceedings involving business associations

Practice and procedure in proceedings involving corporations

Appeal was transferred to Divisional Court

Shareholders commenced action against corporations in negligence for failing to prevent or detect fraud. Corporations moved to strike portions as amended statement of claim. In response, shareholders moved under s. 246 of Ontario Business Corporations Act (Act) for leave to commence derivative action. Motion judge found shareholders’ motion was statute-barred by virtue of s. 4 of Limitations Act, 2002. Shareholders appealed to Ontario Court of Appeal. Appeal transferred to Divisional Court. Order under appeal was order within meaning of s. 255 of Act, and appeal lay to Divisional Court.
1186708 Ontario Inc. v. Gerstein (2016), 2016 CarswellOnt 18627, 2016 ONCA 905, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Bankruptcy and Insolvency

Discharge of bankrupt

Conditional discharge

Condition imposed was not unreasonable

Bankrupt misappropriated over $5 million from clients while employed as investment advisor by creditor. Bankrupt was ordered to pay restitution to creditor but did not do so. Creditor petitioned bankrupt into bankruptcy and filed proof of claim for amount it had reimbursed its clients. During bankruptcy, bankrupt received disability payments of $13,000 to $15,000 per month but paid no surplus income. Master ordered that, as condition of discharge, bankrupt was to pay $284,346 to Trustee as surplus income up to certain date, payable at $5,000 per month. Master also ordered bankrupt to pay additional $5,000 per month to Trustee for further six years, referring to amounts as surplus income payments. Master suspended discharge from bankruptcy for two years, subject to payment of surplus income. Bankrupt appealed, alleging Master erred in ordering him to pay further $5,000 per month of “surplus income” for six years as condition of discharge. Appeal dismissed. When viewed in their entirety, Master’s reasons did not refer to surplus income within meaning in s. 68 of Bankruptcy and Insolvency Act but instead referred to income which is available for payment pursuant to condition of bankrupt’s discharge under s. 172 of Act. Master was clear that further payment was imposed as condition of bankrupt’s discharge without any reference to surplus income under s. 68. Condition imposed was not unreasonable. Duration of payments was not unduly long. Circumstances of case were exceptional, both in terms of breach of trust and fraud that gave rise to creditor’s claim and in terms of amount of claim.
Cole v. RBC Dominion Securities Inc. (2016), 2016 CarswellOnt 19513, 2016 ONSC 7110, H.J. Wilton-Siegel J. (Ont. S.C.J.).

Pensions

Federal and provincial pension plans

Federal pension plans

There was no erroneous advice or administrative error

Pension recipient obtained Canada Pension Plan (CPP) disability benefits and Disabled Contributor’s Child Benefits (DCCB) in 1991 when he had three young children. Recipient had fourth child in 1993 but did not apply for benefits for this child until 2011. Recipient’s application for DCCB benefits for child was approved and he was provided with 11 months of retroactive DCCB benefits, which was maximum permitted under legislation. Recipient’s attempts to challenge this decision were unsuccessful. Delegate of Minister of Employment and Social Development Canada determined that no erroneous advice or administrative error had been made that resulted in denial of additional benefits. Second delegate made same determination. Recipient brought application for judicial review of delegate’s decision. Application dismissed. Delegate’s decision was not unreasonable. Recipient’s initial application kit clearly indicated that it was necessary to make written application for benefits for childre. Recipient’s complaint that he did not receive sufficient advice was not basis for relief under s. 66(4) of Canada Pension Plan. Recipient’s honest but mistaken understanding that he did not have to apply for benefits for youngest child did not entitle him to relief. There was no legal obligation on part of Employment and Social Development Canada to inform individuals of their entitlement to benefit or to remind recipients of their obligation to inform Department of any changes to status.
Consiglio v. Canada (Attorney General) (2016), 2016 CarswellNat 6262, 2016 FC 1123, Anne L. Mactavish J. (F.C.).

Civil Practice and Procedure

Costs

Security For Costs

Company demonstrated it was impecunious

In action for patent infringement defendant brought motion for order requiring plaintiff company to post security for costs. Judge found that company and individual plaintiff, majority shareholder of company, did not have assets that could be used to post security for costs, but that minority shareholder was employed, had some assets and was able to post security for costs. Company was ordered to post security for costs of $195,785.70. Plaintiffs appealed. Appeal allowed. Company did not have sufficient assets in Canada available to pay defendant’s costs if ordered to do so. Company, on its own, was impecunious, and majority shareholder was not able to provide financial assistance to company. In deciding whether company was impecunious it was appropriate to distinguish between shareholders who were manipulating company and those who were not. If company was controlled by one person or group of persons, then it was appropriate to consider financial resources of that person or group in determining whether company was impecunious. If person was minority shareholder and was not part of group controlling company, then circumstances related to that shareholder should be examined to consider whether it was appropriate to take into account his or her financial resources in determining whether company was impecunious. Important factor was percentage of shares held by person, and smaller percentage of shares held, less likely it was that financial resources should be considered in determining whether company was impecunious. Minority shareholder here owned 10 percent of shares, she never had been involved in business and was unwilling to post security for costs. Judge erred in law in considering whether minority shareholder could be sole source of amount that company would be required to post as security for costs. Company demonstrated it was impecunious for purpose of Rule 417 of Federal Court Rules.
Swist v. Meg Energy Corp. (2016), 2016 CarswellNat 6184, 2016 FCA 283, Wyman W. Webb J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.).

Civil Practice and Procedure

Costs

Security for costs

Defendant was prima facie entitled to security for costs

Plaintiff was serving life sentence for murde­­r and, in recent years, commenced 17 actions, applications and appeals against defendant Canada in various courts. These appeals arose from plaintiff’s action for damages and two applications for judicial review of grievance decisions. Plaintiff conceded he was indebted to defendant for unpaid costs, now totaling over $31,000. In light of outstanding costs and R. 416(1)(f) of Federal Court Rules, defendant was prima facie entitled to security for costs, and motions judge found accordingly. R. 417 provided poverty should not be bar to litigation, and security for costs should be denied when it would preclude impecunious plaintiff from advancing otherwise meritorious claim. Motions judge found plaintiff did not meet threshold of impecuniosity as he was able to pay court fees to commence numerous proceedings, and able to pay those litigation disbursements. Plaintiff brought appeal from three orders for security for costs made by motions judge. Appeal dismissed. Plaintiff filed financial documentation that showed he had limited financial means, and motions judge’s inference was questionable, as plaintiff’s ability to pay court fees and disbursements was not indicative of ability to pay much larger amount of costs. Motions judge made decision on basis of one factor rather than assessment of plaintiff’s overall financial situation. Plaintiff also had to establish impracticality of borrowing from third party with robust particularity and failed to discharge his onus. Plaintiff’s family members had helped in in past and affidavits filed were short on particulars to explain change in circumstances. There was no direct evidence plaintiff’s wife was ill and unable to work, medical evidence was not up to date, and there was no information on her financial resources or assets.
Mapara v. Canada (Attorney General) (2016), 2016 CarswellNat 6498, 2016 FCA 305, J.D. Denis Pelletier J.A., A.F. Scott J.A., and Yves de Montigny J.A. (F.C.A.).

Criminal Law

Offences

Sexual assault

There was no basis to interfere with sentence

Accused and complainant met at social gathering at mutual friend’s home. Complainant fell asleep on couch. Trial judge found accused engaged in sexual intercourse with complainant while she slept, without her consent, knowing that she was not consenting. Accused was convicted of sexual assault and sentenced to incarceration of 30 months. Accused appealed conviction and sought leave to appeal sentence. Appeal dismissed. Leave to appeal sentence granted. Appeal of sentence dismissed. Trial judge’s credibility analysis was reasonable and supported by evidence, she properly instructed herself, and she did not improperly shift burden of proof onto accused. Forensic evidence was neutral. There was no basis to interfere with sentence, which was within range.
R. v. Sanderson (2016), 2016 CarswellOnt 18094, 2016 ONCA 866, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).

Criminal Law

Offences

Criminal negligence causing death


Appeal of conviction for criminal negligence causing death was dismissed

Truck driven by accused drifted into oncoming traffic and collided head-on with mini-van, killing its driver. Accused was convicted of dangerous driving causing death and criminal negligence causing death. Conviction for dangerous driving causing death was stayed in accordance with R. v. Kienapple. Accused appealed conviction for criminal negligence causing death. Appeal dismissed. Accused submitted that trial judge failed to adequately explain to jury elements of criminal negligence causing death and how that offence differs from offence of dangerous driving causing death, and to adequately relate evidence to offence. Trial judge properly instructed jury on elements of criminal negligence causing death and explained difference between that offence and lesser offence of dangerous driving causing death. In response to jury question seeking clarification about difference between dangerous driving causing death and criminal negligence causing death, trial judge repeated relevant portions of his charge and added that for criminal negligence causing death, conduct must be more marked than for dangerous driving in both physical and mental elements of offence. Trial judge reviewed elements of offence of dangerous driving and summarized relevant evidence.
R. v. Bhangal (2016), 2016 CarswellOnt 17933, 2016 ONCA 857, Alexandra Hoy A.C.J.O., Doherty J.A., and K. van Rensburg J.A. (Ont. C.A.).

Bankruptcy and Insolvency

Practice and procedure in courts

Appeals

Leave to appeal order approving sale process was dismissed

Company in which G was shareholder went bankrupt. Estate trustee sought offers for company’s assets and arranged auction. Only bidders were G and brother of another shareholder. Auction was unsuccessful. Trustee sought court approval to conduct second auction. G’s request to adjourn motion for approval was denied and order approving sale process granted. G did not participate in second auction and company’s assets were sold to other bidder. G brought motion for leave to appeal order approving sale process. Motion dismissed. Proposed appeal did not satisfy test for leave. Issues raised by G were not of general importance to practice of bankruptcy and insolvency matters or to administration of justice as whole. Motion judge’s decision not to adjourn proceeding and decision to approve sale process were highly fact-specific and were exercise of judge’s discretion. Neither ground of appeal was prima facie meritorious. There was nothing to suggest error in principle or improper exercise of discretion. Proposed appeal would unduly hinder progress of bankruptcy proceedings.
IceGen Inc., Re (2016), 2016 CarswellOnt 18630, 2016 ONCA 907, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Administrative Law

Requirements of natural justice

Right to hearing

Reasons of municipal police services board were inadequate

Applicant taxi company had license to run accessible taxi service revoked, by decision of municipal police services board. Taxi company claimed that decision was made without sufficient reasons. Taxi company applied for judicial review of board’s decision. Application granted. New hearing ordered. There was conflicting evidence as to whether taxi company had vehicles on road without insurance, and whether they had office open at all times. Board’s decision did not resolve conflicts. Reasons were inadequate as whole. Revocation had to remain in interim, before new hearing took place.
Guelph Taxi Inc. v. Guelph Police Service (2016), 2016 CarswellOnt 18684, 2016 ONSC 7383, Dambrot J., Hambly J., and Mew J. (Ont. Div. Ct.).

Human Rights

Practice and procedure

Commissions, tribunals and boards of inquiry

Commission’s decision was not unreasonable

Complainant alleged that she had been subject to harassment and discrimination on basis of race, national or ethnic origin, and colour in course of her employment with respondent. Investigator concluded that harassment likely did not occur. Canadian Human Rights Commission dismissed complaint, finding that evidence before it did not support complainant’s allegations against her employer and that further inquiry was not warranted. Complainant’s application for judicial review was dismissed. Federal Court judge found that investigator adequately identified various allegations made by complainant and that evidence was insufficient to support them. Judge reviewed both investigator’s report and Commission’s decision, and determined that investigator did not deny complainant procedural fairness and that her allegations were without merit. Judge further found that Commission’s decision was not unreasonable in light of evidence gathered by investigator. Appeal by complainant dismissed. Judge made no reviewable error either in respect of procedural fairness issue or with regard to reasonableness of Commission’s decision. Investigator concluded that complainant had not provided any evidence to support her allegation that she had been treated in differential manner by her three supervisors; and similarly, that she did not provide any evidence to support allegation that she was not provided with harassment-free environment.
Miakanda-Batsika v. Bell Canada (2016), 2016 CarswellNat 5905, 2016 CarswellNat 5906, 2016 FCA 278, 2016 CAF 278, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2014), 2014 CarswellNat 6482, 2014 CarswellNat 6483, 2014 FC 840, 2014 CF 840, George R. Locke J. (F.C.).
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