Ontario Court Of Appeal Summaries (October 1 - 5, 2018)

This was a light week at the Court of Appeal, as there were only three substantive civil decisions.

In Wang v Canada, the Court of Appeal held that habeas corpus applies not only to detention in prison, but in any situation where the applicant's liberty is curtailed, such as house arrest.

Other topics included a professional negligence claim against a lawyer, a jurisdictional dispute in respect of an oppression claim, a summary judgment for fraud, and an appeal of a jury's damage award in an MVA trial.

Table of Contents

Civil Decisions

Wang v. Canada, 2018 ONCA 798

Keywords: Immigration Law, Admissibility, Refugee Claims, Unlawful Detention, Habeas Corpus, Immigration and Refugee Protection Act, S.C. 2001, c. 27, May v. Ferndale Institution, 2005 SCC 82, Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, R. v. Gamble, [1988] 2 S.C.R. 595

Inspektor v. Solmon, 2018 ONCA 796

Keywords: Solicitor and Client, Professional Negligence, Settlements

RJM56 Holdings Inc. v. Michel Bazinet, 2018 ONCA 791

Keywords: Corporations, Oppression, Torts, Fraudulent Misrepresentation, Civil Procedure, Jurisdiction, Forum Non Conveniens, Applications, Canadian Business Corporations Act, R.S.C. 1985, c. C. 44 s. 241, Black v Breeden, 2012 SCC 19, [2012] 1 S.C.R. 666, Incorporated Broadcasters Ltd. v Canwest Global Communications Corp., 63 O.R. (3d) 431 (C.A.), Rules of Civil Procedure, Rule 14.05(3)(h)

1802248 Ontario Ltd. (Anytime Fitness) v. Allen, 2018 ONCA 808

Keywords: Torts, Fraud, Damages, Reasonable Foreseeability, Corporations, Remedies, Piercing Corporate Veil, Transamerica Life Insurance Company of Canada v Canada Life Assurance Company et al. (1996), 28 OR (3d) 423 (Gen Div), affd [1997] OJ No 3754 (CA)

Mamado v. Fridson, 2018 ONCA 806

Keywords: Torts, Negligence, Motor Vehicle Accident, Damages, Trial Fairness, Jury Charge, Reasonable Apprehension of Bias, Kelly v. Palazzo, (2008), 89 O.R. (3d) 111 (C.A.)

Short Civil Decisions

Jensen v. Chicoine, 2018 ONCA 793

Keywords: Real Estate, Agreements of Purchase and Sale of Land, Deposits, Contracts, Interpretation

Juneau-Tripp v. Rilkey, 2018 ONCA 797 (Appeal Book Endorsement)

Keywords: Family Law, Child Support, Section 7 Expenses, Access, Costs

McLaughlin v. Canadian Service Management Inc., 2018 ONCA 799 (Appeal Book Endorsement)

Keywords: Real Estate, Agreements of Purchase and Sale of Land, Abatement of Purchase Price, Palpable and Overriding Error, Welsh v. Karan, 2018 ONSC 804

Visnjic Estate v. LaSalle (Town), 2018 ONCA 803

Keywords: Real Estate, Easements, Promissory Estoppel, Negligent Misrepresentation, Punitive Damages

Wood v. CTS of Canada Co., 2018 ONCA 804

Keywords: Civil Procedure, Offers to Settle, Costs, Rules of Civil Procedure, Rule 49

Criminal Decisions

R. v. Burnett, 2018 ONCA 790

Keywords: Criminal Law, Drug Trafficking, Evidence, Admissibility, Expert Evidence, Jury Instructions, Mens Rea, Motive, Wilful Blindness, Controlled Drugs and Substances Act, SC 1996, c19, s. 6(3)(a)(i)

R. v. Onyedinefu, 2018 ONCA 795

Keywords: Criminal Law,Importing Heroin, Possession of Heroin for the Purpose of Trafficking, Mens Rea, Wilful Blindness, Evidence, Burden of Proof, Trial Fairness, Sentencing, Bell v. The Queen, [1983] 2 SCR 471, R. v. Foster, 2018 ONCA 53

R. v. K.L., 2018 ONCA 792

Keywords: Criminal Law, Assault, Sexual Assault, Trial Fairness, Cross-examination, Jury Charge

R. v. Marshall, 2018 ONCA 794

Keywords: Criminal Law, Fraud over $5,000, Sentencing, Conditional Sentence, R. v. Tran, 2017 SCC 50

R. v. Kizir, 2018 ONCA 781

Keywords: Criminal Law, Conspiracy to Traffic Illegal Substances, Dangerous Possession of Weapons, Conspiracy to Assault, Money Laundering. Sentencing, Principle of Parity, Enhanced Credit

R. v. LaPierre, 2018 ONCA 801

Keywords: Criminal Law, Second-Degree Murder, Assault, Sentencing, Fresh Evidence, Mental Illness, Not Criminally Responsible, Parole Ineligibility, R. v. Palmer, [1980] 1 S.C.R. 759

R v. Shute, 2018 ONCA 805

Keywords: Criminal Law, Aggravated Assault, Breach of Probation, Sentencing, Pretrial Custody, Fresh Evidence

CIVIL DECISIONS

Wang v. Canada, 2018 ONCA 798

[Hourigan, Nordheimer and Harvison Young JJ.A.]

Counsel:

R. Galati, for the appellants

J. Todd and N. Dodokin, for the respondents

Keywords:Immigration Law, Admissibility, Refugee Claims, Unlawful Detention, Habeas Corpus, Immigration and Refugee Protection Act, S.C. 2001, c. 27, May v. Ferndale Institution, 2005 SCC 82, Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, R. v. Gamble, [1988] 2 S.C.R. 595

Facts:

The appellants were foreign nationals who were in Canada on temporary resident visas. The Canada Border Services Agency ("CBSA") received information that the appellants had multiple identities, were fugitives from China, and had entered into a scheme in which they had defrauded approximately 60,000 people of approximately $180,000,000.

The CBSA arrested the appellants under s. 55 of Immigration and Refugee Protection Act and detained them for an admissibility hearing on the grounds of misrepresentation. That admissibility hearing never occurred. The appellants made refugee claims that, by operation of law, precluded the hearing.

Over a period of 14 months, the appellants were the subjects of three detention reviews. On each occasion, the Immigration Division ordered the appellants' continued detention, finding they were unlikely to appear and had both the willingness and financial means to elude detection in Canada. The appellants sought judicial review of all three of the Immigration Division's decisions, and each decision, in turn, was quashed by the Federal Court.

The appellants were released from detention following the third judicial review application, subject to terms and conditions that the appellants had proposed. Those terms and conditions amounted to virtual house arrest. In addition, the appellants were required to pay for the costs of armed security guards to maintain a 24/7 presence outside of their home, one positioned at the front of the home and the other at the rear. The cost of maintaining this security was borne by the appellants and cost approximately $130,000/month.

The appellants later requested and obtained modifications to their terms and conditions of release, which permitted them to spend time outside in their backyard, and to leave their home, under security escort, for outings related to groceries, banking, and church services.

The appellants then filed another application with the Immigration Division to make further modifications to their terms and conditions. That application was rejected. The appellants did not seek judicial review of this decision, instead filing the application for habeas corpus.

The application judge dismissed the application, giving detailed reasons. He identified the central issue as "whether the applicants' current house arrest amounts to a detention or deprivation of their liberty". He concluded that once the appellants were released from custody, they were no longer "detained" for the purpose of habeas corpus.

The appellants appealed.

Issues:

(1) Does habeas corpus apply where a person seeks to challenge a deprivation of liberty that arises from a situation other than being held in a custodial facility?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The Court of Appeal concluded that the application judge erred in two related respects: first...