Dan Phelan

The appellant, Wal-Mart Canada Corporation, appealed its conviction under the Occupational Health and Safety Act for failing to keep a floor free of hazards or obstructions.

An employee tripped over an empty skid in an aisle while moving merchandise backwards with a manual skid jack, fell, and hit his head.

The appeal court upheld the trial judge's finding that the empty skid constituted a hazard or obstruction under section 11 of Regulation 851.

The court also upheld the finding that the appellant failed to establish the defence of due diligence on a balance of probabilities, noting the absence of safety sweep logs for the backroom area.

The appeal was dismissed.

The applicant commenced an application under the Civil Remedies Act, 2001 seeking forfeiture of seized cash.

The proceeding settled pursuant to a Rule 49 offer to settle made by the respondent that returned most of the funds but left costs to be assessed by the court.

The respondent sought costs on the basis that it was largely successful.

The court held that under Rule 49.07(5)(a) of the Rules of Civil Procedure, where a defendant’s offer to settle does not address costs and is accepted, the plaintiff (or applicant) is entitled to costs to the date of service of the offer.

The court awarded the applicant partial indemnity costs to that date and also determined costs relating to a separate refusals motion.

The Attorney General sought forfeiture of a residential property under Part III of the Civil Remedies Act, 2001 on the basis that it had been used as a commercial marijuana grow operation.

The respondent had previously pleaded guilty to production of marijuana under the Controlled Drugs and Substances Act and received a fine in criminal proceedings where the property restraint order was lifted and no forfeiture was pursued.

The court found on a balance of probabilities that the property had been used as an instrument of unlawful activity generating profit and that the respondent was not a responsible owner.

However, applying the “interests of justice” exception under the Civil Remedies Act, the court held that forfeiture would be unfair in light of the circumstances surrounding the plea bargain and the respondent’s reasonable belief that his home would not later be subject to forfeiture.

The application for forfeiture was therefore dismissed.

Following judgment in a civil forfeiture proceeding, the court determined costs based on written submissions.

The applicant had made a formal Rule 49 offer to settle that the respondents rejected prior to cross-examinations and the hearing.

The court found that the judgment obtained was at least as favourable as the offer and therefore the cost consequences under Rule 49.10(1) applied, entitling the applicant to partial indemnity costs before the offer and substantial indemnity costs afterward.

Considering Rule 57.01 factors, including the complexity of the matter, the public interest role of the applicant, and credibility findings against the respondents, the court fixed costs payable to the applicant.

Costs of $10,000 inclusive of fees and disbursements were ordered jointly and severally against certain respondents.

The Attorney General sought forfeiture of $138,650 seized during a police search conducted in the course of a cocaine trafficking investigation.

The respondents asserted that the funds were legitimate family savings accumulated for education and housing.

The court rejected the respondents’ explanations as inconsistent and not credible, noting the storage method of the cash, the presence of a drug dealer’s fingerprint inside the safe where the majority of the funds were stored, and evidence linking the residence to ongoing drug trafficking.

The court also found that the respondents had misrepresented their financial circumstances and failed to disclose the cash assets while receiving government disability benefits.

The court concluded on a balance of probabilities that the funds were proceeds or instruments of unlawful activity under the Civil Remedies Act, 2001 and ordered forfeiture.

The Attorney General applied under the Civil Remedies Act for forfeiture of a 12‑unit residential apartment building alleged to be an instrument of unlawful activity.

Extensive police evidence showed persistent drug trafficking, frequent search warrants, arrests, and widespread criminal activity occurring throughout the building and surrounding areas.

The court found the property was used for unlawful activity likely to result in the acquisition of property through drug trafficking and therefore qualified as an instrument of unlawful activity under the statute.

The owner failed to establish that he was a responsible owner, having taken inadequate steps to prevent or address the criminal activity despite knowledge of it.

The court concluded that forfeiture was not clearly contrary to the interests of justice and ordered the property forfeited to the Crown.