Canada: Top 5 Civil Appeals From The Court Of Appeal (May 2012)

Last Updated: May 29 2012
Article by Stuart Zacharias and Emily Da Silva
  1. Universal Settlements International Inc. v. Duscio, 2012 ONCA 215 (O'Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)), April 4, 2012
  2. MacGregor v. Potts, 2012 ONCA 226 (Feldman, MacPherson and Hoy JJ.A.), April 11, 2012
  3. The Equitable Trust Company v. Marsig, 2012 ONCA 235 (O'Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)), April 13, 2012
  4. 1420041 Ontario Inc. v. 1 King West Inc., 2012 ONCA 249 (Cronk and Blair JJ.A. and Strathy J. (ad hoc)), April 20, 2012
  5. Dhingra v. Dhingra, 2012 ONCA 261 (Rosenberg, Cronk and Watt JJ.A.), April 24, 2012

1. Universal Settlements International Inc. v. Duscio, 2012 ONCA 215 (O'Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)), April 4, 2012

The issue in this appeal was whether the application judge erred in setting aside an arbitrator's final award and three interlocutory orders, as well as ordering that the arbitrator be removed. The decision re-affirms the court's relatively limited scope for intervention in the arbitration process.

The case arose out of an arbitration pursuant to a shareholder agreement. The parties were: Universal Settlements International Inc. ("Universal"), a financial services company owned by Martina Capital Corporation ("Martina Capital"), whose principal was Duscio; The Brokerwise Group Inc. ("Brokerwise"), whose principal was Panos; and 1508211 Ontario Inc. ("1508211"), whose principal was Hallas.

The complicated procedural history began in November, 2006, when Hallas and Panos accused Duscio of misappropriating Universal's funds. Duscio responded by triggering the shotgun provision in the shareholder agreement. Hallas and Panos then commenced an action seeking, amongst other things, relief from oppression. The action was subsequently stayed and the dispute was submitted to arbitration pursuant to the shareholder's agreement.

Universal, Brokerwise and 1508211 were claimants in the arbitration against Duscio and Martina Capital. Pursuant to the arbitration agreement, the arbitrator was permitted to make interlocutory and final orders as if he were a judge of the Superior Court of Justice.

The arbitrator made an interim award allowing Brokerwise and 1508211 to purchase Duscio's and Martina Capital's interest in Universal. The parties subsequently entered into an escrow agreement requiring Brokerwise and 1508211 to pay the $1 million purchase price, to be held pending disposition of the arbitration.

The arbitrator also granted Duscio's and Martina Capital's motion seeking the release of part of the escrow funds to pay their lawyers as well as Duscio's living expenses. Brokerwise and 1508211 subsequently brought a motion seeking repayment of the funds, alleging that Duscio had led false evidence in support of the motion for release of the funds. When the repayment motion was argued, Duscio and Martina Capital were in bankruptcy, but orders had been made lifting the automatic stay of the arbitration.

At the repayment motion, Brokerwise and 1508211 asked the arbitrator to make a finding that Duscio and Martina Capital had obtained the funds fraudulently to ensure that any repayment order would survive the bankruptcies pursuant to s. 178(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. The arbitrator directed that the funds released to Duscio and Martina Capital be repaid, but declined to make a finding of fraud. In their costs submissions, Brokerwise and 1508211 again asked the arbitrator to make a finding of fraud. The arbitrator awarded costs but once again declined to make such a finding. Duscio and Martina Capital then filed a court application to set aside the repayment order and costs award, and to have the arbitrator removed.

Meanwhile, in the context of the arbitration, Brokerwise and 1508211 brought a motion for an order striking Duscio's and Martina Capital's statement of defence on the basis of non-compliance with the repayment and costs orders. Duscio and Martina Capital argued that the arbitrator had no jurisdiction to enforce repayment, which was a matter for the Bankruptcy Court and trustees in bankruptcy. However, the arbitrator struck the statement of defence and noted Martina Capital and Duscio in default pursuant to Rule 60.12 of the Rules of Civil Procedure.

Duscio and Martina Capital then amended their notice of application to request that the order striking their statement of defence in the arbitration be set aside. At the same time, Brokerwise and 1508211 brought a motion without notice for a default award in the arbitration. That motion proceeded in the absence of Duscio and Martina Capital and the arbitrator found that Duscio had fraudulently converted money from Universal to his own use. He awarded damages of $5,511,160.85 and ordered that the escrow funds be paid to Universal.

Duscio and Martina Capital then further amended their notice of application requesting that the arbitrator's final award be set aside. The application ultimately came before Justice Lederer, who set aside the repayment order, the costs award, the order striking out the statement of defence and the final arbitral award. He also ordered that the arbitrator be removed. Brokerwise and 1508211 appealed, with leave, to the Court of Appeal.

Perell J., relying on the Court of Appeal's decision in Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, held that the court does not have jurisdiction to overturn interlocutory orders of an arbitrator and that it was an error for the application judge to do so. He noted that judicial intervention in arbitrations is strictly limited to the circumstances identified in the Arbitration Act, 1991, S.O. 1991 c. 17, citing Sharpe J.A. in Inforica, who observed that the modern approach "sees arbitration as an autonomous, self-contained, self-sufficient process pursuant to which the parties agree to have their disputes resolved by an arbitrator, not by the courts".

With respect to the order striking out the statement of defence, Perell J. determined that different considerations applied because it was a final order. He found that the application judge had jurisdiction to set aside both the order striking out the statement of defence and the final award pursuant to s. 46(1)(6) of the Arbitration Act, which permits the court, on application, to set aside an award on the grounds (amongst others) that "[t]he applicant was not treated equally and fairly" or "was not given an opportunity to present a case or respond to another party's case".

Perell J. agreed with the application judge that the order striking out the statement of defence and the default arbitral award were unfair, since Duscio and Martina Capital were denied an opportunity to respond and because their compliance with the repayment order would not have been possible or lawful in light of the bankruptcies. Perell J. concluded that, while the arbitrator did not make any jurisdictional error in striking out the statement of defence and making the final award, these were reversible pursuant to s. 46(1)(6) of the Arbitration Act, above.

Perell J. found no error, however, in the application judge's decision to remove the arbitrator. Section 15(1) of the Arbitration Act authorizes the court to remove an arbitrator if he or she does not conduct the arbitration in accordance with s. 19 of the Act, which provides:

19. (1) In an arbitration, the parties shall be treated equally and fairly.

(2) Each party shall be given an opportunity to present a case and to respond to the other parties' cases.

Perell J. observed that the arbitrator showed "extraordinary patience and judiciousness" in this difficult case, but, in view of the fairness issue, held that it was appropriate for the matter to be decided by a new arbitrator - "like the situation when a new trial is ordered".

Finally, Perell J. addressed the application judge's opinion that Universal, Brokerwise and 1508211 had been disrespectful to the court by continuing the arbitration after the court scheduled dates for Duscio's and Martina Capital's application. Perell J. noted that this opinion was not necessary for the application judge's decision. Moreover, with respect to the convention that a party ought not to take steps that would prejudicially affect the rights of the other parties once a notice of motion is served, Perell J. held that this does not prevent the continuation of an ongoing arbitration proceeding. In particular, s. 17(1) of the Arbitration Act provides that "[w]hile an application is pending, the arbitral tribunal may continue the arbitration and make an award".

No order was made as to costs of the appeal.

2. MacGregor v. Potts, 2012 ONCA 226 (Feldman, MacPherson and Hoy JJ.A.), April 11, 2012

This appeal arose from a medical malpractice case in which the infant plaintiff was born with catastrophic injuries after a difficult delivery. The plaintiffs were successful at trial. The issues on the appeal included whether the trial judge erred in granting the plaintiffs' motion to strike their own jury notice. The plaintiffs cross-appealed with respect to the damages awarded for future care costs. The decision reiterates the court's discretion on a motion to strike a jury notice, and calls for caution in reviewing a single component of a complex damages award when the overall award is reasonable.

MacPherson J.A., for the court, acknowledged that the plaintiffs' motion to strike their own jury notice was somewhat unusual. Nevertheless, the court recognized that the decision to discharge a jury is a discretionary one: there need only be "a reasonable basis" for the exercise of the trial judge's discretion. In the complex case at bar, the judge's decision was held to have been "entirely reasonable".

At trial, the focus of the liability issue was the defendant physician's handling of the infant plaintiff's delivery with forceps. Following the evidence of Mrs. MacGregor and two of the plaintiffs' medical experts, the trial judge granted the plaintiffs' motion to strike their own jury notice, over the defendant's objection. In a lengthy ruling on the issue, the trial judge recognized that "[c]learly it is possible for a jury to hear and decide a medical malpractice case". He nevertheless concluded – with reference to the "obstetrical issues", the "scientific issues relating to causation" and the "complicated future care cost claim" – that "because of complexity, justice for the parties in this case is best served by the discharge of the jury".

In respect of the appeal on the issue of negligence, the finding of liability was affirmed. However, the court saw fit to observe that, on the basis of the record, it would have been "possible" for the trial judge to accept the defendant's testimony and make findings sufficient to dismiss the action. The court further observed that the trial judge nevertheless "decided against him", albeit in reasons that were factually and legally "supportable".

On the cross-appeal, the plaintiffs argued that the trial judge erred by "co-opting" Mrs. MacGregor into her son's future care. The trial judge attributed 14 hours of nighttime care, per week, for 40 weeks each year, to Mrs. MacGregor at the same hourly rate as a personal support worker. The plaintiffs submitted that this was a reversible error, even though Mrs. MacGregor would be compensated under the trial judge's award.

The court found that the trial judge based his assessment on evidence about the infant's care at the time of trial. The court also emphasized the complexity of the overall damages award and the potential for the parties to "co-operate" to address any perceived problems:

[T]here is nothing in the record to suggest that, through communication, flexibility and co-operation, the parties cannot make sensible adjustments to the future care of [the child]. Appellate courts should be very cautious about intervening in a single component of a complex damages award after a long trial, especially when the award, viewed globally, appears to be quite reasonable.

Clearly reluctant to re-open the issue of damages, the court also refused the plaintiffs' request to admit fresh evidence.

In the result, both the appeal and cross-appeal were dismissed. The plaintiffs were awarded costs of the appeal and cross-appeal in the total amount of $100,000.

3. The Equitable Trust Company v. Marsig, 2012 ONCA 235 (O'Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)), April 13, 2012

The issue in this appeal was whether a guarantee included within a registered mortgage document is a demand obligation subject to the two year limitation period pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, as opposed to the ten year period under s. 43 of the Real Property Limitations Act, R.S.O. 1990, c. L.15. The court clarified that the latter limitation period applies.

The background to the appeal was that, pursuant to a mortgage commitment letter, First National Financial Corporation ("First National") agreed to lend $1,347,281 to a corporation to be formed. The appellant, Marsig, and another individual agreed to guarantee the mortgage loan. Prior to the advance of funds, First National assigned the commitment to Equitable Trust, the respondent.

A charge from a numbered company encumbering a property in Chatham, Ontario, was then registered in favour of Equitable Trust. Marsig signed the mortgage on behalf of the numbered company and also signed in his personal capacity as guarantor. The numbered company defaulted on payment of the loan and Equitable Trust issued a notice of sale under the mortgage, which was also served on Marsig. The property was sold under the power of sale but a deficiency remained. Equitable Trust commenced an action against Marsig, amongst others, for payment of the deficiency.

Marsig defended the action on the ground that it was barred under the Limitations Act, 2002. He took the position that his guarantee was a demand obligation subject to the two year limitation period, and, accordingly, moved for summary judgment. The motion judge held that the guarantee was not a demand obligation and that the action on the guarantee was governed by the Real Property Limitations Act. Marsig appealed.

At the outset of its reasons, the Court of Appeal noted that the Limitations Act, 2002 (as set out in s. 2(1)(a)) does not apply to proceedings to which the Real Property Limitations Act applies. The court assumed, without deciding, that the guarantee signed by Marsig was in fact a demand obligation. Although demand obligations are provided for in s. 5(3) of the Limitations Act, 2002, the court held that it does not follow that all demand obligations are governed by that Act.

Perell J. reviewed Feldman J.A.'s examination of the Limitations Act, 2002 in Bank of Nova Scotia v. Williamson, 2009 ONCA 754, and concluded that, contrary to Marsig's submission, the court in Williamson did not rule that all demand obligations are governed exclusively by the Limitations Act, 2002. In particular, Perell J. held that Williamson did not concern the applicability or inapplicability of the Real Property Limitations Act. Perell J. agreed with the motion judge's conclusion that guarantees found in a mortgage instrument are governed by what is now s. 43(1) of the Real Property Limitations Act, which provides:

43. (1) No action upon a covenant contained in an indenture of mortgage or any other instrument made on or after July 1, 1894 to repay the whole or part of any money secured by a mortgage shall be commenced after the later of,

  1. the expiry of 10 years after the day on which the cause of action arose; and
  2. the expiry of 10 years after the day on which the interest of the person liable on the covenant in the mortgaged lands was conveyed or transferred.

Perell J., for the court, also held that the motion judge's analysis was consistent with the Court of Appeal's decision in Martin v. Youngson (1924), 55 O.L.R. 658 (C.A.). In Martin, the court held that s. 49(1)(k) of the Statute of Limitations, R.S.O. 1914, c. 75 (now s. 43(1) of the Real Property Limitations Act) governed an action on a covenant contained in a mortgage such that a 10 year limitation period applied. In that case, the defendant had signed an indenture of mortgage containing a guarantee clause. When sued 13 years later, he successfully relied on the limitation period in s. 49(1)(k) of the former Statute of Limitations.

As stated by Perell J., the Limitations Act, 2002 "does not apply precisely because s. 43 of the Real Property Limitations Act applies". In his view, the legislature intended all limitation periods affecting land to be governed by the Real Property Limitations Act. Perell J. also observed:

The mortgage enforcement practice, as demonstrated in the case at bar, is to give guarantors notice of power of sale proceedings. In my view, it would cause much more confusion and uncertainty in the law, if the limitation period for enforcing the mortgage debt was different from the limitation period for enforcing guarantees of that debt.

In addition, Perell J. reasoned that accepting Marsig's position would not assist persons who have guaranteed mortgage debt, since mortgagees would respond to a shorter limitation by suing on the guarantee to collect the whole debt outstanding - rather than first realizing on the security in the real property and then suing only for any deficiency.

The appeal was therefore dismissed.

4. 1420041 Ontario Inc. v. 1 King West Inc., 2012 ONCA 249 (Cronk and Blair JJ.A. and Strathy J. (ad hoc)), April 20, 2012

The issue raised on this appeal was whether, and in what circumstances, an individual condominium unit owner has the legal capacity to sue for relief relating to the common elements. The court's decision confirms that the capacity to bring such an action does not rest solely with the condominium corporation.

In 2000 and 2001, the appellant purchased eight units in 1 King West, a high rise condominium complex in downtown Toronto, from the respondent developer. Four of these units were to be constructed for use as the appellant's head office, with custom design and finishes. These included exterior doors, windows and walls which formed part of the common elements of the condominium complex. When the building became available for occupancy in 2005, the appellant complained that the custom design features and the building's HVAC system (also a common element) were inadequate for the planned head office space. The appellant commenced an action seeking, as the primary ground of relief, specific performance of the agreement with respect to the custom design.

Subsequently, in March, 2007, the condominium corporation commenced a separate action on behalf of itself and the individual unit owners for alleged common element deficiencies. Notices were given to the individual unit holders under the Condominium Act, 1998, S.O. 1998, c. 19, advising that the action was being brought and that unit owners could opt out if they wished to pursue their own actions for damages to their units. The appellant did not opt out. The respondent condominium corporation subsequently brought a motion to strike the appellant's previously commenced personal action on the basis that he did not have standing to claim in relation to the common elements.

The respondent's motion was dismissed at first instance. On appeal to the Divisional Court, however, the respondent was granted the relief sought and the appellant's personal action was dismissed insofar as it related to the common elements. On the appellant's appeal to the Court of Appeal, the only issue was whether the appellant had standing to sue in relation to the common elements (as the action by the condominium corporation had been settled).

The condominium corporation argued that s. 23(1) of the Condominium Act gives it exclusive standing to commence an action in relation to common elements. Section 23(1) provides:

a corporation may, on its own behalf and on behalf of an owner,

  1. commence, maintain or settle an action for damages and costs in respect of any damage to common elements, the assets of the corporation or individual units; and
  2. commence, maintain or settle an action with respect to a contract involving the common elements or a unit, even though the corporation was not a party to the contract in respect of which the action is brought.

A key issue on appeal was whether the word "may" in the above provision should be read as mandatory (granting the condominium corporation the exclusive ability to pursue an action in relation to common elements) or permissive (simply granting the corporation non-exclusive standing to bring such an action). The court held that this issue was a question of law, reviewable on the standard of correctness.

Blair J.A., for the court, held that s. 23(1) of the Condominium Act did not preclude the appellant from advancing its claim under the agreement of purchase and sale in relation to the common elements. He reasoned that the legislature's intention to afford the condominium corporation a far-reaching right to sue did not imply an intention to deprive unit owners of rights of action that they already had. Section 23(1) protects the interests of the condominium community as a whole, whereas the unit owners' rights of action protect their individual interests in their units. In support of this proposition, Blair J.A. cited Wellington Condominium Corp. No. 61 v. Maryland Drive Holdings Ltd. (1998), 37 O.R. (3d) 1 (C.A.). In that case, Rosenberg J.A. noted that "these provisions manifest the legislative intention that the corporation be entitled to recover damages where the real injury is to the owners as a group rather than to any individual".

Blair J.A. further held that s. 23(1) of the Condominium Act is designed to empower a condominium corporation to bring an action where there is a "common" condominium issue to be addressed:

Such a remedy, broad as it is, is not inconsistent with the right of an individual unit owner to pursue contractual or other claims that are unique to the owner's unit, including those touching on common elements that immediately pertain the unit and that do not concern the owners as a group.

The Court of Appeal therefore held that the Divisional Court erred in concluding that s. 23(1) of the Condominium Act granted the condominium corporation exclusive standing to sue in relation to common elements. In particular, as outlined by Blair J.A., the Divisional Court erred in treating the appellant's claim primarily as a claim for damages, in placing too much emphasis on the provisions under the Act regarding the condominium corporation's responsibility to deal with common elements, and by failing to "recognize the illogical conclusion to which its reasoning leads", i.e., the deprivation of the individual unit owner's right to sue even in respect of his or her own unit.

The court thus concluded that the word "may" in s. 23(1) of the Condominium Act is permissive, not mandatory. The provision empowers, but does not require, the condominium corporation to sue on its own behalf and on behalf of all unit owners in relation to common element deficiencies. In no way does s. 23(1) take away a right or deny standing to individual unit owners. This interpretation was held to be consistent with the overriding principle of statutory interpretation, as the grammatical and ordinary meaning of "may" is generally permissive. Moreover, it was held to be harmonious with the intent of the legislature and the scheme and object of the Act, which emphasizes consumer protection. As well, the court observed that a "statute should not be interpreted as taking away a right of action unless it is explicit in doing so", emphasizing that the right of action at issue related to alleged defects that were "contractually unique" to the individual owner's unit.

The court was not persuaded that permitting individual unit owners to sue would lead to a multiplicity of proceedings or create a prospect of double recovery (with respect to any parallel action by the condominium corporation). The court held that, in any event, a stay of proceedings is available as a remedy to guard against any double recovery resulting from separate proceedings.

The appeal was allowed and the appellant's personal action was reinstated.

5. Dhingra v. Dhingra, 2012 ONCA 261 (Rosenberg, Cronk and Watt JJ.A.), April 24, 2012

This appeal considered the public policy rule that a person who kills another is barred from sharing in the deceased's estate. The issue was whether the rule applies to an insurance beneficiary who is tried for the killing and found not criminally responsible by reason of mental disorder. The Court of Appeal held that the rule does not apply in those circumstances.

The appellant and his wife had separated in 1992. The appellant had been suffering from a serious mental disorder for many years. In 1998, he took out a group life insurance policy with Scotia Life. Under the policy, he and his wife were both named as insured and beneficiary. In 2006, the appellant killed his wife and was tried on a charge of second degree murder. He was found not criminally responsible on account of mental disorder and was ordered to be held at the Whitby Mental Health Centre for a period of time. He was subsequently granted a conditional discharge.

After the criminal trial, the appellant's son, acting as administrator of his mother's estate, requested that the proceeds of the insurance policy be paid to the estate. Scotia Life brought an application pursuant to s. 320 of the Insurance Act, R.S.O. 1990 c. 18 to pay the proceeds of the policy into court. The application was granted. The appellant subsequently brought an application to have the proceeds paid to him, arguing that the public policy rule which would otherwise preclude recovery should not apply because, as a result of the court's finding that he was not criminally responsible for the killing by reason of mental disorder, it was not "intentional".

The application judge dismissed the appellant's application, holding that "[t]here is no judicial support in Canada for the Applicant's submission that this Court ought to require a finding of intent to commit the crime in order to apply the public policy rule".

On appeal, Rosenberg J.A., for the court, reviewed the jurisprudence with respect to the principle underlying the public policy rule, i.e., that a person should not be permitted to profit from his or her own criminal act. Rosenberg J.A. identified the Supreme Court of Canada's decision in Nordstrom v. Baumann, [1962] S.C.R. 147 as determinative in this context. In Nordstrom, the deceased died in a fire set by his wife. She was never tried for the killing, and, at the time of proceedings to determine whether she was entitled to a share in her husband's estate, she was being held in a hospital for the "insane". The court held that the wife was entitled to share in the estate on the basis that she would have been found insane pursuant to the former s.16 of the Criminal Code. The wife appealed the decision on procedural issues, but the administrator of the husband's estate cross-appealed challenging the finding of insanity. On the cross-appeal, Ritchie J., for the court, commented that "[t]he real issue before the court was whether or not ... the appellant was insane to such an extent to relieve her of the taint of criminality which... would otherwise have precluded her from sharing in her husband's estate". Rosenberg J.A. interpreted this statement as accepting that the public policy rule would not apply if the wife was insane.

Rosenberg J.A. went on to conclude that the public policy rule does not preclude a person who is found not criminally responsible on account of mental disorder from taking under an insurance policy. Moreover, he noted several developments in the criminal law with respect to treatment of mentally disordered accuseds that have strengthened the policy basis for making an exception to the rule. In particular, in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, McLachlin J. (as she then was) noted that "[t]he mentally ill offender who is imprisoned and denied treatment is ill-served by being punished for an offence for which he or she should not in fairness be held morally responsible". Rosenberg J.A. reasoned that the public policy rule should not apply if a person found not criminally responsible on account of mental disorder is not "morally responsible" for his or her act. In his view, it was therefore an error for the application judge to refer to the appellant as having "committed second degree murder".

Rosenberg J.A. also noted that other common law countries, including the United States, the United Kingdom, Australia and New Zealand, generally exempt from application of the public policy rule those persons with a mental disorder giving rise to an insanity defence.

Rosenberg J.A. then considered the application of the Civil Remedies Act, 2001, S.O. 2001, c. 28. Section 1 of the Act sets out the purposes of the legislation which include "preventing persons who engage in unlawful activities and others from keeping property that was acquired as the result of unlawful activities". Section 3 of the Act provides for an order for forfeiture to the Crown of property obtained through "unlawful activity" upon application by the Attorney General. "Unlawful activity", as defined in s. 2 of the Act, includes an offence "under an Act of Canada". Section 17(2) provides that proof that a person was found not criminally responsible on account of mental disorder is proof that the person committed the offence. Thus, the Act contemplates the principle which underlies the common law public policy rule being applied even in the context of mental disorder. The Act only prohibits the court from making an order of forfeiture "where it would clearly not be in the interests of justice".

Rosenberg J.A. accepted that the statutory purpose of preventing persons from profiting from their crimes extends to those found not criminally responsible on account of mental disorder. Nevertheless, he found that the Act "does not supplant the common law rule of public policy that does not prevent an NCR [not criminally responsible] accused from taking under an insurance policy or will". The intent of the legislature, Rosenberg J.A. held, was to leave the rule intact by limiting forfeiture to applications made by the Attorney General as opposed to abrogating the common law rule altogether.

In the result, the court allowed the appeal, set aside the order of the application judge, and ordered that the insurance proceeds be paid to the law firm acting for the appellant, in trust. Rosenberg J.A. noted that it remained open for the Attorney General to apply for an order of forfeiture, at which time the court would "determine whether it would clearly not be in the interests of justice to forfeit the proceeds to the Crown".

Although the money was held to be "rightfully payable" to the appellant based on Supreme Court authority, no costs were awarded on the appeal as the impact of the Civil Remedies Act was held to be a novel issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stuart Zacharias
Emily Da Silva
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions