Court of Appeal Decision of the Week

If at First You Don’t Succeed: The Test for “Leave to Re-Argue” an Appeal

Case: Kostic v Piikani Nation, 2017 ABCA 263 (CanLII)

Keywords: Contracts; Enforceability; Misapprehension of Evidence; Test for Re-Arguing an Appeal


Following the Court of Appeal’s decision in Kostic v Piikani Nation, 2017 ABCA 53 (CanLII), the Applicant, Piikani Nation, seeks leave to re-argue the appeal on the basis the court is misled with respect to the evidence, and misapprehended/overlooked critical evidence.

At the first appeal, the issue to be determined is enforceability of business agreements executed by the parties. The Applicant’s argument is that the agreements are not enforceable as they are not supported by consideration. The Respondent successfully appeals the Trial Judge’s declaration the agreements are unenforceable; the Court of Appeal concludes the business agreements are both supported by consideration and enforceable.

The Court of Appeal dismisses the Applicant’s application for leave to re-argue the appeal. The Court of Appeal concludes that arguments advanced by the Applicant in support of re-arguing the case are collateral to the decision made on enforceability.


Citing Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 171 (CanLII) at para 3, the Court of Appeal noted that leave to re-argue an appeal is only granted in exceptional circumstances:

The test for leave to re-argue requires exceptional, special or unusual circumstances and it is understood that the practice is to be discouraged: Strichen v Stewart, 2005 ABCA 201 (CanLII) at para 5, 367 AR 188, citing Portage Credit Union Ltd v DER Auctions Ltd (#2) (1994), 1994 ABCA 50 (CanLII), 18 Alta LR (3d) 185. When it is alleged that a court overlooked or misapprehended the evidence, the applicant must show that the overlooked or misapprehended evidence would have affected the outcome: Arrowhead Auto and Truck Parts Ltd v Calgary (City), 1997 ABCA 77 (CanLII), 196 AR 57. The applicant must provide support for the allegation that the court misled itself or was misled having regard to the record or the issues raised: Greater Montreal Protestant School Board v Quebec (Attorney General), 1989 CanLII 76 (SCC), [1989] 2 SCR 167, 97 NR 143. Disagreement by the appellant with certain findings does not warrant leave to re-argue. (See para. 4, citing para. 3 in Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 171 (CanLII)).

The Applicant argued the Court of Appeal overlooked/misapprehended the evidence in two ways:

  • by finding the second agreement had a seven-year term, and
  • by finding significance in a reference to a Band Council Resolution contained in the Investment Management Agreement with Raymond James, which purported to direct the appointment of the respondent as an investment advisor to the institutional investment counsellor (Raymond James) named by the applicant to manage certain of the applicant’s trust funds.

The Court of Appeal found that none of the alleged misapprehensions challenged the ratio of its previous decision. That being said, the Court was prepared to accept that it misstated certain factual elements. For example, with respect to the seven-year term,

The panel thought the term of the contract was limited to five years; but erroneously stated that it was seven. In so doing, the panel did not intend to make a binding statement one way or the other on the duration of the arrangement. Any statement the panel made about the duration of the contract was clearly obiter and ought not to affect the assessment of damages, if any. The length of the contracted arrangement is a matter best left to be addressed by the court below in assessing damages. The panel’s reasons make it abundantly clear that it was not in a position to assess damages. Its decision went only to enforceability. (See para. 9).

Ultimately when assessing both of the Applicant’s concerns the Court of Appeal concluded that its past interpretation of the evidence, faulty or not, did not impact its determination of the issue of enforceability of the business agreement executed between the parties. (See para. 11).

Counsel for the Respondent: William Klym (William S. Klym Professional Corporation, Calgary)

Counsel for the Applicant: Robert Hawkes, Q.C., and Sarah Lulman (Jensen Shawa Solomon Duguid Hawkes LLP, Calgary)

Discuss on CanLii Connects (to be linked Tom!)

Posted: Thursday, August 17, 2017

Court of Appeal Decision of the Week

MVA’s: Whether “Knew or Ought to Have Known” is an Objective or Subjective Test for Insurance Purposes?

Case: Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 (CanLII)

Keywords: MVA; Negligence; Owner’s Consent; Insurance (Vehicle) Act, RSBC 1996, c 231


Five teenagers, including the Respondent Ms. Schoenhalz, take a 1986 Camaro to the campgrounds near Dry Lake. Once at the campsite, the Respondent and Ms. Reeves take the keys to the Camaro and set out to purchase hotdogs. The Respondent is 17 and has her driver’s licence. Ms. Reeves is 15, and does not.

Since Ms. Reeves has experience operating a standard transmission and the Respondent does not, Ms. Reeves takes the wheel. There is no discussion or concern on the part of either the Respondent or Ms. Reeves as to whether they have permission to drive the Camaro. A few miles down the road, Ms. Reeves loses control at a corner, her attention having been diverted by problems with the vehicle’s CD player. The car rolls over. The Respondent suffers serious injuries and third degree burns. (more…)

Posted: Wednesday, August 16, 2017

Court of Appeal Decision of the Week

When is a “Stay Order” Effectively an (Appealable) Injunction?

Case: Maxwell’s Plumbing and Heating Ltd. v. British Columbia, 2017 BCCA 285 (CanLII)

Keywords: Mootness; Provincial Sales Tax Act, SBC 2012, c 35; Crown Proceeding Act, R.S.B.C. 1996, c. 89); Injunctions Against the Crown


The Appellant appeals the order of a Chambers Judge staying enforcement of a $14,298.88 provincial sales tax assessment against the Respondent (pending the determination of its appeal). The Respondent’s appeal is subsequently dismissed, rendering the underlying Provincial Sales Tax Act, SBC 2012, c 35 issues moot. Despite its mootness, the Province advances the argument that the Court of Appeal should consider the issues on appeal so as to address the precedential value of the Chambers Judge’s order and since other taxpayers will likely pursue the same interim remedy.

The Court of Appeal determines it is appropriate to hear and consider the Province’s first ground of appeal (that because the Chambers Judge’s order restrains the lawful conduct of a government official, it is in the nature of an injunction and thus not available pursuant to s. 11 of the Crown Proceeding Act, R.S.B.C. 1996, c. 89), despite the fact that the matter is moot and the present appeal was conducted without an adversarial context.


Posted: Wednesday, August 09, 2017

Court of Appeal Decision of the Week

Can a Municipal Bylaw Prohibit a Dock on Waterfront Property?

Case: Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2017 BCCA 267 (CanLII)

Keywords: Dock; Municipal Bylaw; Private Moorage Facility; Permanent Moorage


The Appellant owns waterfront property on Bowen Island at Cape Roger Curtis in B.C. and wants to build a dock. Bowen Island Municipality has a bylaw amendment (adopted by council after the Appellant applied for a building permit) prohibiting construction and refuses to issue a building permit. The Appellant’s application for judicial review is dismissed, based on a determination that, as amended, the bylaw prohibits the dock.

On appeal, the Appellant raises the following questions:

  • whether the amendment actually prohibits construction of the dock;
  • whether the Appellant has satisfied the test for an order in the nature of mandamus (compelling the Municipality to issue a building permit); and
  • whether it has established some alternative legal right to construct the dock despite the prohibition.


Posted: Wednesday, August 02, 2017

Court of Appeal Decision of the Week

Prosper Warnings & The Right to Counsel Without Delay

Case: R. v. Fountain, 2017 ONCA 596 (CanLII)

Keywords: Right to Counsel Without Delay; Prosper Warning; Exclusion of Evidence


General Overview

The Appellant, Mr. Jason Fountain appeals against his convictions for armed robbery, forcible confinement, and breaking/entering to commit an indictable offence. His grounds of appeal include arguments that the investigating officer should have given him a “Prosper warning”, that the Trial Judge erred in finding his s. 10(b) rights were not breached, and that the Trial Judge erred in failing to exclude statements he made prior to speaking with a lawyer.

The Court of Appeal agrees Mr. Fountain’s s. 10(b) rights were violated by the investigating officer. Paciocco J.A. finds that a “Prosper warning” is required, that the Trial Judge erred in finding Mr. Fountain had waived his right to consult counsel without delay, and that the Trial Judge erred in finding a police caution would be an adequate substitute for the warning. On the 24(2) analysis, the Court of Appeal determines Mr. Fountain’s statements, the “lynch-pin” of the Crown’s case, must be excluded. The Court of Appeal therefore quashes Mr. Fountain’s convictions and enters acquittals. (more…)

Posted: Wednesday, July 19, 2017

Court of Appeal Decision of the Week

Civil Procedure/Employment Law: When is an Expert Needed/Not Needed?

Case: Lau v. Royal Bank of Canada, 2017 BCCA 253 (CanLII)

Keywords: Employment; Wrongful Dismissal; Dismissal for Cause; Aggravated Damages; Evidence; Mental Distress; Saadati v. Moorhead, 2017 SCC 28 (CanLII)


The Respondent, Mr. Marco Lau, is a Royal Bank of Canada (RBC) employee subject to the Royal Mutual Funds Inc. (RMFI) compliance manual. Following a complaint and investigation by RBC’s “Corporate Investigation Services” (CIS), it is discovered Mr. Lau tracks sales incorrectly – recording them as “new money” to artificially increase his sales figures.

RBC dismisses Mr. Lau for cause and provides a letter stating as follows:

… your employment with Royal Bank of Canada is terminated for cause … as a result of your falsification of bank records and failing to tell the truth when questioned regarding an alleged joint session with a client. In particular, you claimed existing money as new to bolster your sales, and maintained that you participated in a joint session with a client despite evidence to the contrary. (more…)

Posted: Wednesday, July 12, 2017

Court of Appeal Decision of the Week

The Commercial Activity Exemption: When are Foreign States or State ‘Actors’ Immune from Canadian Claims?

Case: Homburg v Stichting Autoriteit Financiële Markten, 2017 NSCA 62 (CanLII)

Keywords: State Immunity from Civil Lawsuit; State Immunity Act, R.S.C. 1985, c. S-18; Sovereign Equality of States


The Appellants are licensed by the Respondents (a group of Dutch regulatory agencies) for the purpose of offering collective investment schemes to investors in the Netherlands. The Appellants offend aspects of the Dutch legal standard for offering securities, and are sanctioned by the Respondents. The Appellants sue the regulators in the Supreme Court of Nova Scotia, claiming the regulatory agencies’ sanctions are tortious.

A judge of the Supreme Court of Nova Scotia dismisses the action pursuant to the State Immunity Act, R.S.C. 1985, c. S-18 (under s. 3 of which “organs” of a foreign state are immune from civil action in a Canadian court). Although the Act provides state immunity does not protect “commercial activity”, the Trial Judge determines the Respondents’ activities would not meet the definition. (more…)

Posted: Wednesday, July 05, 2017

Court of Appeal Decision of the Week

Trial Judges’ Sentencing ‘Discretion’; Assignment of Judges

Case: R. v. Gashikanyi, 2017 ABCA 194 (CanLII)

Keywords: Sentencing; Stare Decisis; “non-random assignment”

Note: This case has a Restriction on Publication as follows:

Restriction on Publication

Identification Ban – See the Criminal Code, section 486.4.

By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way.

NOTE: This judgment is intended to comply with the restriction so that it may be published


Two young women run away from home. The Respondent, age 33, spots the young women, ages 14 and 18 (the latter her cousin) at a bus stop. The Respondent offers to take them to his home and feed them. All three spend the night with the Respondent. He twice has protected sexual intercourse with each young woman and, the following morning, further and unprotected  intercourse with the fourteen year old. (See para. 55). (more…)

Posted: Wednesday, June 28, 2017

Court of Appeal Decision of the Week

Spelling Bee Question: Spell “Summary Judgment”

Case: Parsaei v. Toronto (Police Services Board), 2017 ONCA 512 (CanLII)

Keywords: Wrongful Arrest; Reasonable and Probable Grounds; Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] S.C.J. No. 7 (S.C.C.)


This matter arises from the Appellant’s complaints about the way in which her son was treated by school staff and disagreements regarding who won (or should have won) a spelling bee at the school. The Appellant appeals from a summary judgment decision dismissing her action against the Respondents, Toronto Police Services Board and Detective Constable Andrew MacPhail, for wrongful arrest and negligent investigation of criminal charges. The appellant and two other women were charged criminally in connection with:

  • a series of threatening letters posted around and mailed to residents near Perth Avenue Public School in Toronto;
  • a series of related hostile and harassing phone calls to staff, the principal of the school, and members of the Toronto District School Board; and
  • an harassing letter sent to a member of the Board.


Posted: Wednesday, June 21, 2017

Court of Appeal Decision of the Week

Appealing from CCAA Proceedings: Court of Appeal Rejects Application for Leave

Case: Essar Steel Algoma Inc. (Re), 2017 ONCA 478 (CanLII)

Keywords: CCAA Proceedings; Restructuring; Leave to Appeal


GIP Primus LP and Brightwood Loan Services LLC (collectively “GIP”) and Port of Algoma Inc. (“Portco”) apply for leave to appeal an order made in the context of insolvency proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). The proceedings involve Essar Steel Algoma Inc. (“Algoma”) and related companies.

Algoma addresses its need for “cash injection” via solvent restructuring under the CCAA. This results in a transaction involving four basic components:

  1. the sale by Algoma to Portco of port facilities at Sault Ste. Marie, Ontario;
  2. a lease of the port lands to Portco for a period of 50 years;
  3. a “Cargo Handling Agreement” under which Algoma pays Portco for the use of port and cargo-handling facilities at a cost of $36 million annually (in monthly instalments); and
  4. a “Shared Services Agreement” which requires Portco to pay Algoma $11 million annually in exchange for Algoma providing operation and maintenance services at the port. (See para. 2).


Posted: Wednesday, June 14, 2017