Patrick Bakos

The appellant appealed an order varying a restraining order that permitted the sale of a property and directed the distribution of proceeds to a mortgagee.

The Court of Appeal quashed the appeal, finding that neither the Controlled Drugs and Substances Act nor section 490 of the Criminal Code provides a right of appeal from an order varying a restraining order in these circumstances.

The applicant mortgagee brought a motion to vary a restraint order under the Controlled Drugs and Substances Act to permit the sale of the subject property under power of sale.

The Crown consented to the sale, but the respondent owner opposed it, arguing the property had increased in value and disputing the mortgagee's claimed costs.

The court granted the motion to permit the sale, directing that the net proceeds be paid to the Crown.

The court declined to approve the mortgagee's claimed costs of over $388,000, directing that those funds be held by the Crown pending an assessment under Rule 58 and the final determination of the forfeiture proceedings.

A defendant against whom the action had been discontinued brought a motion under Rule 23.05 seeking costs of the action and delivery of a release.

The motion was brought more than 14 months after the notice of discontinuance, well beyond the 30‑day deadline prescribed by the Rules of Civil Procedure.

The court held that although the deadline may be extended under Rule 3.02, the moving party must provide a satisfactory explanation for the delay and demonstrate absence of prejudice.

While the responding plaintiffs would not have been prejudiced, the moving party provided no explanation for the delay.

The court also found there had been no agreement requiring delivery of a release because the parties had not reached a meeting of the minds on the terms of settlement.

The request for an extension of time was refused and the motion dismissed, with costs awarded to the plaintiffs.

The applicants, Fercan Developments Inc. and GRVN Group Inc., challenged the constitutional validity of sections 16 and 19 of the Controlled Drugs and Substances Act, which permit courts to order forfeiture of offence-related property.

The applicants raised three constitutional questions: whether the forfeiture provisions were ultra vires Parliament as relating to property and civil rights; whether they violated section 96 of the Constitution Act, 1867 by conferring jurisdiction on provincial courts; and whether they violated the Canadian Bill of Rights.

The court upheld the constitutional validity of all challenged provisions, finding that forfeiture is a valid exercise of Parliament's criminal law power, that the Ontario Court of Justice may constitutionally exercise forfeiture jurisdiction, and that procedural safeguards meet Bill of Rights requirements.