SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-487378
DATE: 20140801

BETWEEN: ATTORNEY GENERAL OF ONTARIO, Applicant

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KITTIWAKE SAILBOAT (Registration #50E83594) (In Rem), Respondent

BEFORE: D.L. CORBETT J.

COUNSEL:
James Vlasis and Baaba Forson, for the Attorney General of Ontario

Mr. Valetin Chygyrynskyy, unrepresented, owner of the sailboat

Justin Safayeni, amicus curiae

HEARD: In Chambers

ENDORSEMENT

[1] The issue on this application is the proposed forfeiture of a leisure-use sailboat under the Civil Remedies Act. It is not alleged that the boat was acquired with the proceeds of crime, or that it is used a criminal enterprise. Rather, the basis on which forfeiture is sought is that Mr. Chygyrynskyy operated his sailboat while he was impaired from alcohol or drugs.

[2] Mr. Chygyrynskyy says that he was not the person operating the boat. This is a contested factual issue and Mr. Chygyrynskyy has been advised how to place his evidence before the court on this point.

[3] Assuming without deciding that the facts are as alleged by the A.G. Ontario, there is a significant legal question as to whether the Civil Remedies Act can and does extend to forfeiture of property in these circumstances.

[4] These are important issues that could have significant implications for a great many people. I appreciate Mr. Vlasis’ offer to assist the court in any way that he can on these issues. Mr. Chygyrynskyy, who cannot afford counsel, who has no legal training, and who does not speak English, cannot help the court with the legal issues.

[5] In a previous endorsement in this case I invited the A.G. Ontario to consider whether this was a good case in which to obtain a decision of first impression, given that the sailboat is not high-powered and the owner of the sailboat is not well-equipped to defend his position on the facts, let alone to assist the court on the difficult legal issues presented by the case. The A.G. Ontario has determined that it wishes to proceed with this case, despite these concerns.

[6] I do not consider it appropriate to appoint publicly-funded counsel to assist Mr. Chygyrynskyy in this case, given the property interest at stake and the limited scope of legal aid services. In simple terms, this is not a case where legal aid is available for Mr. Chygyrynskyy.

[7] The potential impact of this case on forfeiture practices generally, and thus on the general public, is a matter of concern, however. The A.G. Ontario is no sense neutral on these questions. Before deciding them, I wish to hear any contrary legal arguments. Therefore, I have concluded that it is appropriate to appoint amicus curiae to assist the court. At my request, Mr. Safayeni has provisionally agreed to undertake this role for which I am grateful.

[8] Ms. Forson asked the court not to devise its own financial terms. for retainer of Mr. Safayeni. I accede to that request: Mr. Safayeni shall settle the financial arrangements for his appointment as amicus curiae with Ms. Forson’s office. If those arrangements cannot be agreed between Mr. Safayeni and the A.G. Ontario, either may seek directions from me. I would ask that both sides ensure that these arrangements are concluded by August 22nd, failing which counsel shall arrange a conference call with me during the week of August 25th.

[9] Mr. Vlasis is asked to provide Mr. Safayeni forthwith with copies of all materials filed on this application to date together with copies of my prior handwritten endorsements in this matter.

[10] Mr. Safayeni’s role is limited to assisting the court with legal issues raised by the A.G. Ontario’s proposed recourse to the Civil Remedies Act to effect forfeiture of the sailboat in this case. Mr. Safayeni is to take the record as he finds it and not to deliver evidence or participate in cross-examinations. This direction does not preclude Mr. Safayeni from compiling materials properly considered during legal argument such as, for example (without limitations) materials on the use of statutes similar to the Civil Remedies Act in jurisdictions other than Ontario and materials in respect to the purpose and legislative history of the Civil Remedies Act.

[11] Any issues arising from this direction may be addressed by any interested person to me, initially, by way of informal written inquiry copied to each of the A.G. Ontario, Mr. Chygyrynskyy, and Mr. Safayeni.

[12] Mr. Safayeni has provided a list of convenient dates on which he is available for return of the application. I direct that the motion be returned before me for argument on the merits on October 9, 2014, at 10:00 a.m., for an estimated three hours. If this date poses a difficulty for Mr. Vlasis, he should so advise my office as soon as possible.

D.L. Corbett J.

Date: August 1, 2014