Summaries Sunday

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern Matrimonial property, Covenants in easement agreement, Duties of trustee, Sufficiency of judicial reasons, Disqualification of refugees, & Definition of Indian:

Townshend v. Townshend 2012 ONCA 868
Family Law – Husband and wife – Marital property – Distribution orders – Exempt acquisitions – Gift, trust, bequest or award
A husband and wife separated and the husband sought a division of family property. The wife claimed an unequal division of net family property. The Ontario Superior Court, in a decision reported [2010] O.T.C. Uned. 6405, rejected the wife’s claim for an unequal division. The court addressed the disputed items and ordered the husband to pay the wife an equalization …

Terasen Gas Inc. v. Utzig Holdings (B.C.) Ltd. 2012 BCCA 444
Sale of Land – Restrictive or positive covenants – General principles – Breach of covenant – What constitutes
Utzig Holdings (B.C.) Ltd. owned a portion of a large peat bog (Burns Bog). Terasen (formerly BC Gas), a supplier and distributor of natural gas had statutory rights of way (Land Title Act) over the bog for a natural gas pipeline, pursuant to 1961 and 1981 rights of way agreements granted by Utzig’s predecessor. In 1988, Utzig agreed to permit a neighbouring landowner, …

Primo Poloniato Grandchildren’s Trust, Re 2012 ONCA 862
Trusts – Administration – Duties of trustee – Even hand rule
Canada Trust Co., trustee of the Primo Poloniato Grandchildren’s Trust, applied for advice and directions concerning the interpretation of certain terms of the trust, as varied. The trust had both income beneficiaries (grandchildren) and capital beneficiaries (great grandchildren).
The Ontario Superior Court, in a decision reported [2011] O.T.C. Uned. 731, issued directions accordingly. The application judge interpreted the trust deed as varied to require the trustee to make percentage distributions …

R. v. Kingsbury (J.D.) 2012 BCCA 462
Courts – Judges – Duties – Re reasons for decisions
The accused used fraudulent and dishonest means to seize and secure a trailer from the victim. He was acquitted of theft, but convicted of fraud (Criminal Code, s. 380(1)(a)). The accused appealed, arguing that the trial judge’s finding that the accused honestly believed he was entitled to seize the trailer negated the mens rea for fraud. Alternatively, the accused argued that the trial judge erred in law in failing to provide …

Febles v. Canada (Minister of Citizenship and Immigration) 2012 FCA 324
Aliens – Admission – Refugee protection, Convention refugees and persons in need of protection – Disqualifications – Serious non-political crime
Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status. The Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F(b) of the United Nations Convention relating to the Status of …

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. 2013 FC 6
Constitutional Law – Federal jurisdiction (s. 91) – Indians and land reserved for Indians – Indian defined
The plaintiffs sought declarations that Métis and Non-status Indians were “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s. 91(24) of the Constitution Act, 1867; (b) that the Queen (in right of Canada) owed a fiduciary duty to Métis and Non-status Indians as Aboriginal people; and (c) that the Métis and Non-status Indian peoples of Canada had the …

R. v. Anderson (F.) 2013 NLCA 2
Civil Rights – Liberty – Limitations on – Prisoners and imprisonment (incl. mandatory minimum sentences) 
Anderson was convicted of driving while having a blood-alcohol content over .08. The Crown gave Anderson notice of intention to seek a greater punishment by reason of four previous convictions he had for alcohol related driving offences (Criminal Code, s. 727(1)). For that number of convictions, s. 255(1)(a)(iii) of the Code provided for a minimum sentence of not less than 120 days’ imprisonment. Based on Anderson’s …