Civil Remedies Act

The interesting decision in Ontario (Attorney General) v. Nock, 2008 CanLII 4256 (ON S.C.) deals with an application by the Provincial Crown for a forfeiture of property under the Remedies for Organized Crime and Other Unlawful Activities Act, 2001 (The Civil Remedies Act).  The Province sought the forfeiture of a house because the property was supposedly acquired, at least in part, as a result of unlawful activity -- a marijuana grow operation.

The entire decision is worth a close review by counsel involved in a Civil Remedies Act claim -- the sense of the decision is that the Court will be slow to grant forfeiture except in the clearest of cases.

Specifically the decision contains interesting language about the need to scrutinize evidence of wrongful acts closely. Such language may be of use in other civil cases for wrongful acts:

"[35]      It is worth noting at the outset that two of the purposes of the Act most relevant to these proceedings are to prevent persons who engage in unlawful activities from keeping property that was acquired as a result of those unlawful activities and to prevent property from being used to engage in unlawful activities.  As already noted, the Crown's burden is on a balance of probabilities but there is considerable merit in the respondents' submission that the evidence should be scrutinized with care because of the serious nature of the allegations being made. There is support for this proposition in Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (S.C.C.), [1982] 1 S.C.R. 164 and Sopinka and Lederman, "The Law of Evidence in Canada" 3rd Edition, p. 158.

[36]      Mr. Justice Rutherford set out this proposition in Sayeau v. Prudential of America, [2000] O.J. No. 4479 (Sup.Ct.) by noting that "I have tried, therefore, to weigh the evidence in this case in such a fashion as to judge whether the Defendant has proven fraud or arson by the Plaintiff to the standard described, namely, to a high probability, supported by clear and cogent evidence, and eliminating all reasonable probable innocent, fortuitous and accidental explanations for what happened that may be supported by the evidence."

[37]      This is the approach that I have taken to the evidence in these proceedings. "
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