Ian David Collins

Following the release of reasons for decision on three motions in a bankruptcy proceeding, the parties could not agree on the terms of the resulting orders.

The applicant argued the orders should be dated when signed and that he was not properly served with the Receiver's motion via an email link.

The court held that the orders are effective from the date the reasons were released, as no substantial matters remained to be determined.

The court also found that service via an email link is valid and routine.

The applicant's subsequent motion for reconsideration was dismissed as an abuse of process, and costs were awarded to the responding parties.

Multiple motions were brought in a long-running dispute over an on-reserve business partnership between a father and son.

The father sought his share of a bankruptcy dividend from his son's estate, arguing it was protected from seizure by his former lawyer's solicitor's lien and a receivership order under s. 89 of the Indian Act.

The court held that the bankruptcy dividend, held off-reserve by the Trustee, was not protected by s. 89.

The court confirmed the validity of the former lawyer's solicitor's lien, finding it attached to the father's off-reserve assets, including the dividend once transferred to the Receiver.

The court approved the Receiver's fees, which took priority over the solicitor's lien, and authorized the transfer of the dividend to the Receiver for distribution.

The moving party sought security for costs in relation to pending motions brought by the responding party in bankruptcy and related proceedings.

The court found that there were outstanding unpaid costs awards totaling over $41,000 against the responding party.

While declining to order security for costs, the court imposed a condition that the responding party must pay the outstanding costs awards by a specified deadline or face automatic dismissal of the motion.

The court found that the responding party's arguments deserved consideration on their merits and were not frivolous or vexatious.

The respondent brought a motion seeking recusal of the judge on grounds of reasonable apprehension of bias.

The respondent alleged that the judge made derogatory comments about Indigenous peoples, made ad hominem attacks, directed an unfair motion structure, relied on outdated case law while ignoring a reversal by the same judge, predetermined a paramountcy issue, and intended to benefit the applicant through a solicitor's lien.

The judge dismissed the motion, finding that the allegations lacked merit, were raised well over a year after the impugned conduct, and appeared tactical in nature.

The judge awarded costs to the applicant.

The applicant sought security for costs in relation to a pending motion by the respondent seeking the judge's recusal based on apprehension of bias.

The respondent conceded he had insufficient assets to pay costs.

The court declined to order security on the ground that the recusal motion was frivolous and vexatious, as doing so would effectively prejudge the bias allegation.

However, the court ordered security for costs in the amount of unpaid costs awards previously made against the respondent, to be deposited into counsel's trust account prior to the hearing of the recusal motion.

The moving party, a lawyer, brought a motion for security for costs and security for judgment pending an appeal by his former client regarding unpaid legal fees.

The former client had previously successfully appealed a receivership order on the basis that his on-reserve assets were protected under the Indian Act.

The motions judge found that while the appeal was not frivolous, the former client's history of avoiding payment and lack of cooperation regarding off-reserve assets justified an order for security for costs.

The court ordered $115,026.90 to be paid into court for outstanding costs and appeal costs, but declined to order security for judgment.

This endorsement addresses costs arising from multiple motions and applications.

Andrew Clifford Miracle's applications (vexatious litigant, security for costs, bankruptcy motion) were dismissed.

Glenn Bogue's motions (solicitors' lien, summary judgment) were largely successful.

Rod Gram's summary judgment motion was dismissed, but his motion to dismiss Miracle's counterclaim was granted.

The court awarded partial indemnity costs to Glenn Bogue for his successful motions and to the Receiver for an abandoned motion by Miracle.

The court declined to award substantial indemnity costs, finding Miracle's conduct not egregious enough, and reserved costs between Gram and Miracle.

The accused, Muhammed Ali Malik Sher, was charged with impaired operation of a conveyance, failure/refusal to comply with a breath demand, and breach of a probation order (operating a vehicle with any alcohol in blood).

The accused testified that his symptoms (swerving, unsteadiness, vomiting) were due to illness (COVID-19) and not alcohol.

The court rejected the accused's explanation, finding it illogical and contradicted by evidence, particularly the strong odour of alcohol.

The court found that alcohol was at least a contributing factor to the impairment.

Regarding the refusal to provide a breath sample, the court found an unequivocal refusal based on words and actions, despite the accused's claim of disorientation.

The court also found that the impaired operation by alcohol logically inferred a blood alcohol concentration above zero, breaching the probation order.

The accused was found guilty on all three counts.

Manuel Maric appealed his conviction for refusing to comply with a breath demand, alleging errors by the trial judge regarding judicial notice of duty counsel advice, consideration of his Covid-19 fear as a reasonable excuse, handling of his Charter application, and limitations on cross-examination.

The Superior Court dismissed the appeal, affirming the trial judge's assessment of credibility, the finding that Covid-19 fear was not a genuine excuse, and the proper disposition of Charter issues and control over cross-examination.

This appeal concerned the interpretation of s. 89 of the Indian Act and whether a court could place an on-reserve business into receivership at the instance of a non-Indian creditor.

The Superior Court had found a "commercial mainstream" exception to s. 89, allowing a receiver to recoup profits from the appellant's on-reserve businesses to satisfy a debt owed to a non-Indian lawyer.

The Court of Appeal overturned this, clarifying that the "commercial mainstream" exception applies only to s. 90(1) of the Indian Act (personal property deemed on-reserve) and not to s. 89, which protects all real and personal property of an Indian or band situated on a reserve from seizure by non-Indians, regardless of its commercial nature.

The appeal was allowed, holding that the receiver could not seize on-reserve business profits but could seize off-reserve assets.

The appellant, Andrew Clifford Miracle, appealed an order appointing a receiver over his assets, which was granted to the respondent, Glenn Bogue, to satisfy a debt arising from an arbitration award.

The arbitration concerned the joint ownership of a store on Tyendinaga Mohawk Territory.

Andrew alleged the application judge erred by lacking authority for a final receiver order, miscalculating contingency fees, and, crucially, that the order contravened sections 29 and 89 of the Indian Act, which prohibit enforcement by a non-status Indian against assets situated on a reserve.

The Court of Appeal identified the Indian Act issue as a threshold matter, noting it was not fully litigated or determined in the lower court.

Consequently, the court remitted the matter to the application judge for a determination on the effect of the Indian Act, adhering to the principle that new issues are generally not decided on appeal.

No costs were awarded.

The accused, Furqan Akhtar and Saifullah Dero, were found guilty by a jury of criminal negligence causing death and two counts of criminal negligence causing bodily harm while street racing.

The offences involved racing at high speeds (up to 144 km/h in a 60 km/h zone) on a city street, resulting in a fatal collision that killed one person and seriously injured two others.

The court considered aggravating factors such as the extreme speed, dangerous driving on a busy city street, and the horrific consequences, balanced against mitigating factors including the youth of the first-time offenders and their rehabilitative prospects.

The court imposed a concurrent sentence of 30 months imprisonment for each accused, along with a 10-year driving prohibition, a 10-year weapons prohibition, a DNA order, and forfeiture of the vehicles.

The defendant was charged with driving a motor vehicle on a highway while his driver's licence was suspended, contrary to subsection 53(1) of the Highway Traffic Act.

The Crown alleged the defendant was driving his wife's pick-up truck from his residence to a casino parking lot on November 9, 2015.

The defence claimed the defendant's employee was driving and the defendant was a passenger.

The court found the defendant guilty after assessing credibility and applying the R. v. W.(D.) framework.

The defence evidence contained numerous inconsistencies regarding who was driving, the distance travelled, speeds, and the location of witnesses, rendering it unreliable.

The Crown's evidence from the police officer was straightforward and consistent.

The applicants sought judicial review to set aside an arbitration award that ordered the applicant son to pay his respondent father over $11 million to dissolve their gas bar partnership.

The applicants alleged procedural unfairness and a reasonable apprehension of bias by the arbitrator, raising issues regarding the non-attendance of a party, the removal of a party from the style of cause, the rules of procedure used, the treatment of expert testimony, and the refusal to admit post-arbitration financial evidence.

The Superior Court of Justice dismissed all grounds of the application, finding no procedural irregularities or bias on the part of the arbitrator, and noting that the applicants themselves were responsible for their expert witness not testifying.

The Superintendent of Financial Services proposed to revoke the mortgage brokerage licence of MSF Group Inc. and the mortgage broker licence of Lilia Reznik for providing false income and employment documents to Scotiabank in support of five mortgage applications.

The Financial Services Tribunal found that the applicants knowingly provided false documents, contravening sections 43(1) and 43(2) of the Mortgage Brokerages, Lenders and Administrators Act, 2006.

The Tribunal concluded that the applicants' past conduct afforded reasonable grounds for belief that they would not deal in mortgages in accordance with the law and with integrity and honesty, rendering them unsuitable to be licensed.

The Tribunal ordered the revocation of both licences.

The appellant appealed impaired care or control and “over 80” care or control convictions from the Ontario Court of Justice.

The appellant argued that police breached his s. 10(b) Charter right to counsel by failing to facilitate contact with his named counsel after he requested a specific lawyer.

The trial judge found a breach but admitted the breath evidence under s. 24(2).

The summary conviction appeal court held that the police made no effort to facilitate contact with counsel of choice and that the breath technician’s later administration of the right to counsel could not cure the earlier breach.

The trial judge therefore erred in law in concluding the breach was saved, and the conviction could not stand.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol level exceeding the legal limit, arguing ineffective assistance of trial counsel.

The alleged deficiencies included failure to allow the appellant to testify, inadequate note-taking, failure to seek severance of charges, failure to provide disclosure, and inadequate cross-examination.

The court applied the test for ineffective assistance requiring proof that counsel’s performance fell below reasonable competence and resulted in a miscarriage of justice.

The court found trial counsel was experienced, met with the client multiple times, considered strategic decisions carefully, and conducted a substantial cross-examination.

Any error in not providing a copy of the disclosure caused no prejudice because its contents were reviewed with the appellant.

The appellant failed to demonstrate either incompetence or resulting unfairness in the trial process.