Indemnification and Real Estate Fraud: The Use of ex turpi causa non oritur actio in Tran v Kerr

In Tran v Kerr, 2014 ABCA 350, the Alberta Court of Appeal (“ABCA”) clarified the circumstances under which a lawyer, involved in a fraudulent real estate transaction, is liable for the losses of the ultimate purchaser, a straw buyer. In this case, Kerr was a lawyer who represented the straw buyer, Tran, in addition to other parties to the fraud.

While this case involved several issues, this post will focus on the ABCA’s application of the doctrine of ex turpi causa non oritur actio (“ex turpi causa”). Tran v Kerr provides an example of an unusual discussion of the doctrine.

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[filed: Contracts Restitution and Unjust Enrichment Torts]

Supreme Court of Canada Defers to Adjudicators: Sattva Capital Corp v Creston Moly Corp

On August 1, 2014, Canada’s highest court released its reasons in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, marking an end to a series of long and protracted proceedings intended to be confined to arbitration. The highlight of the decision was the Supreme Court of Canada’s (“SCC”) limitation on the circumstances when a court can and should review arbitral decisions that involve contractual interpretation.

Similar to Ontario legislation, British Columbia’s Arbitration Act, RSBC 1996, c 55 (the “Act”), limits arbitral appeals to those concerning questions of law and where leave from the court has been granted (unless otherwise provided in the agreement). The SCC narrowed the instances where parties may appeal arbitral decisions involving contractual interpretation by departing from the previous standard whereby the exercise of contractual interpretation always amounts to a question of law. Instead, outside limited exceptions, such questions will involve a question of mixed law and fact.

The decision also clarified several other important considerations: (i) the role and scope of factual evidence to be considered by an adjudicator in the process of interpreting a contract (herein referred to as the “factual matrix”), (ii) the standard of review for appeals arising from arbitration awards under the Act, and (iii) whether the decision rendered by a leave to appeal court would bind the court that ultimately decides the appeal on its merits.

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[filed: Administrative Law Contracts]

Live from the Supreme Court of Canada: The Unconstitutionality of Section 95 in R v Nur and R v Charles

On November 7, 2014, the Supreme Court of Canada (“SCC”) heard oral arguments for the case Her Majesty the Queen, et al v Hussein Jama Nur, et al [Nur] and Her Majesty the Queen, et al v Sidney Charles, et al [Charles] regarding the constitutionality of the section 95 Criminal Code, RSC 1985, c C-46 [Criminal Code] provision (possession of prohibited or restricted firearms with ammunition). Nur addresses the three-year mandatory minimum for first time offenders and Charles, the five-year mandatory minimum for second or subsequent offences. The plaintiffs argue that the three-year and five-year mandatory minimums impose a punishment that is grossly disproportionate to the offence, contrary to section 12 of the Charter.

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[filed: Constitutional Law Criminal Law]

Revisiting “Mr. Big” Confessions: R v Mack 

In R v Hart, 2014 SCC 52 [Hart], the Supreme Court of Canada (“SCC”) set out a new framework for the admissibility of confessions elicited during “Mr. Big” operations. (I wrote about the decision in a previous post.) In this post, I will look at the companion decision in R v Mack, 2014 SCC 58 [Mack], which provides another opportunity to consider this evolving area of the law.

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[filed: Criminal Law Criminal Procedure Evidence Law]

X(Re): A Check on CSIS Powers or a Roadmap for Expanding Them?

On July 31, 2014, the Federal Court of Appeal (“FCA”) released its judgment in X(Re), 2014 FCA 249, largely upholding a Federal Court finding that limited the scope of powers that may be exercised by the Canadian Security Intelligence Service (“CSIS”) while carrying out surveillance of Canadians abroad. The matter arose after the Federal Court became aware that CSIS had used surveillance warrants as grounds for working with foreign intelligence agencies to intercept the communications of Canadians in foreign nations. Both the Federal Court and the FCA found that CSIS failed to be candid in obtaining these surveillance warrants and undertook illegal surveillance.

While the decision declares current limits on the powers of CSIS in undertaking foreign surveillance, the FCA’s explanation of the law in this area may now serve as a means for expanding those powers. Following recent attacks on soldiers in Ottawa and St-Jean, Quebec, the Federal Government has proposed new legislation to give greater surveillance powers to CSIS. The proposed legislation applies the logic set out by the FCA in X(Re) in order to provide basis for permitting surveillance warrants of precisely the type that the FCA rejected in its decision.

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[filed: International Law Privacy]

7UP for Your Rights: Thibodeau v Air Canada

In what has been dubbed “the 7UP case,” a majority of the Supreme Court of Canada (“SCC”) has ruled in Thibodeau v Air Canada, 2014 SCC 67, that Michel and Lynda Thibodeau are not entitled to a damage award that would have required Air Canada to take steps to ensure compliance with the Official Languages Act, RSC 1985, c 31 (4th Supp). (NB: Although I admit the name of the case did influence my decision to write on it, I have no known relation to these Thibodeaus; the name “Thibodeau” is as common as “Smith” in some places.)

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[filed: Constitutional Law International Law Official Languages Statutory Interpretation]

Judge Raises Questions About the Neutrality of Expert Witnesses: Moore v Getahun

A recent Ontario Superior Court ruling has the potential to have a serious impact on evidence law. The medical malpractice suit has sparked conversations among lawyers throughout Ontario and across Canada and has prompted civil litigators to ask what meets the test of allowable communication with their expert witnesses.

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[filed: Civil Procedure Torts]

Matheson v Lewis: Farm ATVs Require Insurance

The recent Ontario Court of Appeal (“ONCA”) decision in Matheson v Lewis, 2014 ONCA 542 [Matheson], held that an unmodified all-terrain vehicle (“ATV”) owned by a farmer and used in farm operations does not fall within the Highway Traffic Act, RSO 1990, c H.8 (“HTA”) exception for “self-propelled implement of husbandry”, and must be insured while on a public roadway. In doing so, the ONCA creates narrow and somewhat unrealistic restrictions on the definition of farm vehicles.

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[filed: Agricultural Law Insurance]

Similar Fact Evidence and Unknown Third Party Suspects: Her Majesty the Queen v Mark Edward Grant

On November 14, 2014, the Supreme Court of Canada (“SCC”) will hold a hearing for the appeal of Her Majesty the Queen v Mark Edward Grant [Grant]. The main issues the SCC will address are what the test should be for admitting evidence relating to a third party suspect that is unknown and what the appropriate threshold is for admitting similar fact evidence put forward by the accused.

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[filed: Criminal Law]

Supreme Court Affirms Protection for Private Records: R v Quesnelle

This summer in R v Quesnelle, 2014 SCC 46, the Supreme Court of Canada held that police occurrence reports that relate to complainants or witnesses in sexual offence cases, and that are not directly related to charges an accused is facing, are subject to the Mills regime. As such, these records may only be released if they are “likely relevant” and disclosure is in the “interests of justice.”

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[filed: Criminal Law]