Year in Review

Supreme Court of Canada 2014 Year-in-Review

This special year-end review is a complete legal snapshot of all the law from the SCC in 2014, and includes:

Each section is arranged in alphabetical order by area of law so you can more easily find the decisions relevant to your practice. We have also included direct quotes from judgments or headnotes in some cases if they provide a useful summary for the reader.

If you’re a wee bit time-deprived (or sleep-deprived) and would like to receive our complete (and much shorter) “Supreme One-Liners” for 2014, email me (Eugene).

Appeals

Aboriginal Law: Harvesting Rights; Taking-Up Power

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (35379)
Ontario has the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone has the ability to take up treaty land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982.

Aboriginal Law: Title; Duty to Consult

Tsilhqot’in Nation v. B.C., 2014 SCC 44 (34986)
The S.C.C. held:

  • aboriginal title flows from occupation in the sense of regular and exclusive use of land
  • in this case, Aboriginal title is established over the area designated by the trial judge
  • B.C. breached its duty to consult.

Access to Information: Confidential Provisions for Sex Offenders

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31 (34949)
Limited sex offender information can be disclosed; reasonableness standard generally applies to tribunals interpreting their home statute or statutes closely connected to their function.

Access to Information: Disclosure

Ontario (Finance) v. Ontario (Information and Privacy Commissioner), 2012 ONCA 125 (34828)
Legislative policy options prepared in the course of government decision-making process such as those contained in the Records here, whether communicated or not, are within the meaning of “advice or recommendations” and qualify for exemption from disclosure.

Civil Procedure in Québec: ‘No Reasonable Chance of Success’ Dismissal

Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49 (35124)
Although the proper administration of justice requires that courts’ resources not be expended on actions bound to fail, the cardinal principle of access to justice requires the power be used sparingly, where it is clear that an action has no reasonable chance of success.

Civil Procedure/Torts: Summary Judgments

Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 (34645)
Summary judgment may not be granted where a genuine issue for trial exists; summary judgment is OK where: (1) the judge can make the necessary findings of fact, (2) can apply the law to the facts (3) is a proportionate, more expeditious and less expensive means to achieve a just result.  Based only on the record, the judge can ask if the need for a trial can be avoided by the new powers provided under Rules 20.04(2.1) and (2.2).

Civil Procedure: Summary Judgments

Hryniak v. Mauldin, 2014 SCC 7 (34641)
Same summary as that immediately above.

Civil Procedure In Quebec: Settlement Privilege  v. Mediation Confidentiality

Bombardier inc. c. Union Carbide Canada inc., 2012 QCCA 1300 (35008)
Although open to the parties to contract out of the exception to settlement privilege, they did not do so in this case.

Class Actions in Québec: Certification/Authorization

Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (34800)
The Quebec legislature laid down the essential conditions that must be met to authorize a class action; one of these conditions is there be one or more questions of law or fact that are “identical, similar or related” for all the members of the group; Quebec law requires not a common answer, but a common question that can serve to advance the resolution of the litigation with respect to all the members of the group.

Class Actions in Québec: Credit Card Conversion Charges

Bank of Montreal v. Marcotte, 2014 SCC 55 (35009)
The Consumer Protection Act (“CPA”) applies to credit card issuers, and any conversion charge imposed by an issuer without sufficient disclosure to the cardholder must be repaid.  All relevant provisions of the CPA are constitutionally applicable and operative, and the Plaintiffs herein have standing to bring this class action.

Class Actions in Québec: Credit Card Conversion Charges; Bills of Exchange

Marcotte v. Fédération des caisses Desjardins du Québec, 2014 SCC 57 (35018)
Many of the issues raised in this appeal are addressed in the BMO decision immediately above.  Two additional issues here. Payment by credit card does not fall under the exclusive federal jurisdiction over bills of exchange.  The application of the CPA to credit cards issued by Desjardins is consistent with the division of powers, and neither the interjurisdictional immunity nor the paramountcy doctrines apply.  The trial judge erred in finding that a new contract is formed with every subsequent renewal of a credit card. The replacement of a credit card does not create a new contractual relationship, so it is not possible for consumers to have known about an external clause providing the rate of the conversion charge at the time they entered into the cardholder agreement, given that the clause was only available in the first monthly credit card statement, i.e. after the first use of the credit card. As a result, Desjardins breached s. 12 of the CPA by imposing a charge that was not disclosed in its contract with consumers, namely the cardholder agreement.

Class Actions in Québec Credit Card Conversion Charges; Restitution

Amex Bank of Canada v. Adams, 2014 SCC 56 (35033)
Most of the issues raised in this appeal are also addressed in the BMO decision.  The Court here need only consider whether or not the adhering parties — here, the non-consumer cardholders — were obliged to pay the conversion charge.  There was no obligation on the part of Amex cardholders to pay the conversion charge, but under art. 1699 of the CCQ Amex owes restitution of the conversion charges to the non-consumer class members.

Constitutional Law/Immigration: Security Certificates Regime

Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (34884)
The Immigration and Refugee Protection Act regime is constitutional; in the present case, the process was fair, the Federal Court judge committed no reviewable errors in finding the ministers’ decision to declare Mr. Harkat inadmissible to Canada was reasonable.

Constitutional Law: Senate Reform

Reference re Senate Reform, 2014 SCC 32 (35203)
Majority of changes can only be achieved through amendments to the Constitution, with substantial federal-provincial consensus.

Contracts: Arbitrations

Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (35026)
The historical approach that contractual interpretation of a written contract is always a question of law should be abandoned. Contractual interpretation involves issues of mixed fact and law as principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. Reasonableness, not correctness, is the appropriate standard for a review of the arbitrator’s decision on contractual interpretation in this case. The arbitrator’s decision (Leon Getz, Q.C.) was reasonable here, the B.C.C.A. being overturned (“with costs throughout”), and the arbitrator’s award reinstated.

Contracts: Honest Performance

Bhasin v. Hrynew2014 SCC 71  (35380)
Justice Cromwell: “Does Canadian common law impose a duty on parties to perform their contractual obligations honestly? And, if so, did either of the respondents breach that duty?  I would answer both questions in the affirmative. Finding that there is a duty to perform contracts honestly will make the law more certain, more just and more in tune with reasonable commercial expectations. …at this point in the development of Canadian common law, adding a general duty of honest contractual performance is an appropriate incremental step, recognizing that the implications of the broader, organizing principle of good faith must be allowed to evolve according to the same incremental judicial approach. A summary of the principles … (1) There is a general organizing principle of good faith that underlies many facets of contract law. (2) In general, the particular implications of the broad principle for particular cases are determined by resorting to the body of doctrine that has developed which gives effect to aspects of that principle in particular types of situations and relationships. (3) It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations.”

Courts: Court “Hearing” Fees

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 (35315)
Chief Justice McLachlin:  “The issue in this case is whether court hearing fees imposed by the Province of British Columbia that deny some people access to the courts are constitutional.  The trial judge, upheld on appeal, held that the legislation imposing the fees was unconstitutional.  I agree. … the fees at issue here violate s. 96 of the Constitution Act, 1867. Although the province can establish hearing fees under its power to administer justice under s. 92(14) of the Constitution Act, 1867, the exercise of that power must also comply with s. 96 of the Constitution Act, 1867, which constitutionally protects the core jurisdiction of the superior courts … the fees impermissibly infringe on that jurisdiction by, in effect, denying some people access to the courts”.

Courts/Supreme Court: Appointment

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (35586)
A lawyer with 10 years standing at the Barreau du Québec cannot be appointed to the S.C.C. pursuant to sections 5 and 6 of the Supreme Court Act, and Parliament cannot (except as a constitutional amendment) pass correcting legislation.

Criminal Law: Abuse of Process; Stays

R. v. Babos, 2014 SCC 16 (34824)
Two types (of abuse of process): where state conduct compromises the fairness of an accused’s trial (the “main” category); where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category).  The test is the same for both: 1. prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; 2. no alternative remedy capable of redressing the prejudice; 3. where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. While the framework is the same for both, the test may — and often will — play out differently depending on whether the “main” or “residual” category is invoked.

Criminal Law: Circumstantial Evidence

R. v. Wills, 2014 ONCA 178 (35804)
Rothstein J. — “The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A.”

Criminal Law: Dangerous v. Long-Term Offender Designations

R. v. Sipos, 2014 SCC 47 (35310)
The S.C.C. took a somewhat narrower view of the role of fresh evidence in relation to the question of whether the sentencing judge’s legal error was harmless, and held the C.A. was correct to uphold the dangerous offender designation in this case.

Criminal Law: Disclosure

Imperial Oil v. Jacques, 2014 SCC 66 (35226, 35231)
Justices LeBel and Wagner: “The question raised by the appeals [herein] is whether a party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. … When all is said and done … there is no factual or legal impediment to disclosure of the documents requested by the respondents under art. 402 C.C.P. In our opinion, this suffices to dispose of the constitutional arguments. There is no basis for concluding that this provision of the Code of Civil Procedure is inconsistent with the provisions and principles relied on by the appellants. Moreover, it seems to us that such a conflict is implausible, if not impossible, given the scheme of art. 402, para. 1 C.C.P. itself.  By giving judges the power to refuse to order disclosure where a barrier to disclosure is provided for in legislation or has been established by the courts, this paragraph already provides that, where necessary, the principle of disclosure it codifies will yield to any applicable federal provision that prohibits disclosure.”

Criminal Law: Drug Couriers

R. v. Sekhon, 2014 SCC 15 (35180)
The testimony of an expert police witness about the customs and practices of the drug trade was admissible, except for one aspect that strayed beyond the proper scope of expert testimony.

Criminal Law: Hospital Right to Counsel

R. v. Taylor, 2014 SCC 50 (35609)
Hospitals are not Charter-free zones. Where an individual requests counsel and is in custody at a hospital, the police have a s. 10(b) obligation to ensure private access to a phone is available. Proactive steps are required to turn the right to counsel into access to counsel.

Criminal Law: Hospital Treatment Orders

R. v. Conception,2014 SCC 60 (34930)
The main issue: whether courts may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition.  The answer to this question is “no” in all but the rare case in which a delay in treatment would breach the accused’s rights under the Charter, and an order for immediate treatment is an appropriate and just remedy for that breach.

Criminal Law: Inmate Transfer; Habeas Corpus; Standard Of Review; Concurrent Jurisdiction

Mission Institution v. Khela, 2014 SCC 24 (34609)
Federal inmates can access provincial superior courts.

Criminal Law: Mandatory Minimums; Aboriginal Status

R. v. Anderson, 2014 SCC 41 (35246)
The Crown is not constitutionally required to consider the aboriginal status of an accused with regard to mandatory minimum sentences for impaired driving.

Criminal Law: Mr. Big Confessions

R. v. Hart, 2014 SCC 52 (35049)
The law as it stands today provides insufficient protection to accused persons who confess during Mr. Big operations, which raise three distinct concerns — reliability, prejudice, and the potential for police misconduct. Trial judges must have the tools they need to address these issues. A solution that strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime is a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct.

Criminal Law: New Issues on Appeal

R. v. Mian, 2014 SCC 54 (35132)
An appellate court will be found to have raised a new issue when the issue was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require parties be given notice of the issue to make informed submissions, and issues forming the backdrop of appellate litigation will typically not be “new issues”.  Appellate courts have the discretion to raise a new issue, but the discretion is to be exercised only in rare circumstances, only when failing to do so would risk injustice, and consider whether there is a sufficient record on which to raise the issue and whether raising the issue would result in procedural prejudice.

Criminal Law: Mr. Big; Wiretaps; Vetrovec warnings

R. v. Mack, 2014 SCC 58 (35093)
Justice Moldaver:  “The appellant advances three grounds of appeal.  First, he contends that the trial judge should have excluded the confessions he made to undercover officers during a Mr. Big operation.  Second, if the confessions were admissible, he argues that the trial judge did not adequately instruct the jury on the dangers associated with them.  Third, he submits that the trial judge failed to properly instruct the jury on the dangers associated with the evidence of a central Crown witness … I would not give effect to any of these grounds and would dismiss the appeal … At the end of the day, these were the problems the trial judge had to convey to the jury in his charge.  In my view, that is exactly what he did”.

Criminal Law: Parole

Canada (Attorney General) v. Whaling, 2014 SCC 20 (35024)
The retrospective application of delayed day parole eligibility violates the s. 11(h) right not to be “punished . . . again”, and is not justified under s. 1.

Criminal Law: Pre-Sentence Credit

R. v. Carvery, 2012 NSCA 107 (35115)
Ineligibility for early release/parole may justify pre-sentence credit under the Truth in Sentencing Act.

Criminal Law: Pre-Sentence Credit; Retrospectivity

R. v. Clarke, 2014 SCC 28 (35487)
Being charged after the Truth in Sentencing Act came into effect means the Act applies.

Criminal Law: Pre-Sentence Credit

R. v. Summers, 2013 ONCA 147 (35339)
No particular “circumstance” is excluded from consideration for pre-sentence credit under the Truth in Sentencing Act.

Criminal Law: Robbery

R. v. Steele, 2014 SCC 61 (35364)
The accused here robbed a drugstore, telling cashiers he had a gun, but there was no evidence he actually had a gun, or that physical force was used.  A threat of violence suffices to ground a conviction for robbery, and by threatening to harm his victims while committing robbery, the accused used violence against them.

Criminal Law: Search & Seizure

R. v. MacDonald, 2014 SCC 3 (34914)
Two stages: the court must ask whether the action falls within the general scope of a police duty imposed by statute or recognized at common law; if the answer is affirmative, the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. To determine if a safety search is reasonably necessary, and therefore justifiable, the court must weigh a number of factors to balance the police duty against the liberty interest in question, including: the importance of the performance of the duty to the public good; the necessity of the interference with individual liberty for the performance of the duty; the extent of the interference with individual liberty. If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an “unjustifiable use of . . . police power[s]”, and if both above stages are satisfied, the court will then be able to conclude that the search in question was authorized by law.

Criminal Law: Search & Seizure; Cellphones

R. v. Fearon, 2014 SCC 77 (35298)
Searches of cell phones incident to arrest is permitted, provided the search (both what is searched and how it is searched) is strictly incidental to the arrest and police keep detailed notes of what has been searched and why.

Criminal Law: Search & Seizure; Child Porn; IP Addresses

R. v. Spencer, 2014 SCC 43 (34644)
Four issues, answered as follows: (1) Police obtaining subscriber information matching the IP address from the ISP constitute a  search? Yes. (2) Search authorized by law? No. (3) Evidence excluded? No, not excluded. (4) Trial judge err re fault element of “making available” offence? Yes, new trial ordered.

Criminal Law: Sexual Offences; Disclosure

R. v. Quesnelle, 2014 SCC 46 (35390)
The “Mills regime” applies to police occurrence reports not directly related to charges against the accused.  While the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.

Employment Law in Québec: Indeterminate Terms

Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 (35375)
Can an employer who receives a notice of termination from an employee terminate a contract of employment before the notice period expires without in turn having to give notice of termination or pay an indemnity in lieu of such notice – the S.C.C. says no.

Extradition: Information Sharing

Wakeling v. United States of America, 2014 SCC 72 (35072)
Inter-agency cooperation is critical to the prevention, detection, and punishment of cross-border crime. Recognizing this, Parliament has authorized the cross-border sharing of wiretap communications under s. 193(2) (e) of the Criminal Code. The disclosure here was lawfully authorized by that provision, and the legislation, taken as a whole, does not violate s. 8 of the Charter. In addition, there is no evidence that the manner of disclosure was unreasonable.

Immigration: Refugees

Febles v. Canada (Citizenship and Immigration), 2014 SCC 68  (35215)
The refugee claimant herein does not qualify for refugee protection because of the serious crimes committed in the U.S. before seeking admission to Canada as a refugee.  The exclusion of those who have committed serious crimes may support a number of subsidiary rationales: prevent people fleeing from justice; prevent dangerous and particularly undeserving people from entering the host country; preserve the integrity and legitimacy of the refugee protection system, and, hence, the necessary public support for its viability; deter states from exporting criminals by pardoning them or imposing disproportionately lenient sentences while supporting their departure elsewhere as refugees; allow states to reduce the danger to their society from all serious criminality cases taken together, given the difficult task and potential for error when attempting to determine whether criminals from abroad (on whom they have more limited sources of information than on domestic criminals) are no longer dangerous.

Labour Law In Québec: Business Closures

United Food and Commercial Workers Union, Local 503 v. Wal‑Mart Canada Corp., 2014 SCC 45 (34920)
The arbitrator’s finding that “resiliation” of all employment contracts constituted a “prohibited unilateral change” is upheld and the matter referred back for disposition.

Labour Law: Pensions

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc., 2014 SCC 11 (34763)
New pension plan violated legal duties arising re Manitoba Telephone System Reorganization and Consequential Amendments Act; is not inconsistent with a MOU signed with representatives of plan members.

Labour Law: Privacy

Bernard v. Canada (Attorney General), 2014 SCC 13 (34819)
The Public Service Labour Relations Board’s conclusion that an employer was required to provide home contact information to a union to carry out its representational duties, is reasonable.

Labour Law: Standard Of Review; Copyright; Good Faith Bargaining

Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42 (35353)
Reasonableness continues to be the presumptive standard of review. No reason to overturn the Tribunal’s conclusion re interpretation of “provision of artists’ services”. Tribunal upheld re failure to bargain in good faith.

Languages: Airlines

Thibodeau v. Air Canada, 2014 SCC 67 (35100)
When properly interpreted, there is no conflict between the general remedial powers under the Official Languages Act and exclusion of damages under the Montreal Convention and no need to consider which would prevail if there were; and Federal Court of Appeal was correct to set aside the structural order as it was impermissibly vague and unclear.

Maritime Law: Cap On Damages; Statutory Insurance Exclusions

Peracomo Inc. v. TELUS Communications Co., 2014 SCC 29 (34991)
The limit on liability under the maritime Convention applies, but the loss is excluded from insurance coverage because of “willful misconduct”, the defendant being personally liable.

Municipal Law In Quebec: Non-Conforming Uses; Promissory Estoppel

Immeubles Jacques Robitaille inc. v. Québec (Ville), 2014 CSC 34 (35295)
Estoppel is no defence to a strict liability regulatory offence.

Occupational Health & Safety: Pregnancy

Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (34854)
A pregnant supply teacher is entitled to a safe work environment, and can substitute that with a safe task or withdraw.

Professions/Employment Law/Human Rights: Mandatory Retirement

McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 (34997)
An equity partner is not in an employment relationship with the partnership.

Public International Law: State Immunity

Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (35034)
The current state of the law in Canada does not allow the appellants to sue the respondents for damages in a Canadian court. Foreign states, as well as their heads of state and public officials, are immune from civil suit in Canada except as expressly provided in the federal State Immunity Act, which does not withdraw immunity in cases alleging acts of torture committed abroad.

Torts: Unlawful Interference With Economic Relations

A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 (34863)
The tort should be kept within narrow bounds, and be available in three party situations where the defendant commits an unlawful act against a third party that intentionally causes economic harm to the plaintiff. Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result. The “unlawfulness” requirement is not subject to principled exceptions. If the unlawful means tort is not available, there can still be liability for breach of a fiduciary duty.

Transportation: Rates; Standard Of Review

C.N.R. v. Canada (Attorney General), 2014 SCC 40 (35145)
Cabinet is empowered to vary or rescind a decision of the Canadian Transportation  Agency on a point of law.

Workers’ Comp: Federal Employees; Chronic Stress; “Accidents”; Reasonableness

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 (35052)
Provincial boards and authorities are required under federal legislation to apply their own provincial laws and policies, provided they do not conflict, and here the Commission’s decision to reject the claim was reasonable.

Oral Judgments

Criminal Law: (Alleged) Ineffective Assistance Of Counsel

R. v. W.E.B., 2014 SCC 2 (35089)
Moldaver J.: “The Court of Appeal rejected the appellant’s submissions.  While the court did not specifically address all of the appellant’s many, and continually growing list of ineffective assistance claims, it found that they either lacked an evidentiary foundation or did not result in prejudice.  In so concluding, the court carefully considered the record at trial, along with the fresh evidence filed on the appeal, and applied the correct legal principles. … In sum, we see no error in the Court of Appeal’s analysis or conclusion.  For these reasons, we would dismiss the appeal.”

Criminal Law: (Alleged) Unreasonable Search & Seizure

R. v. Day, 2014 SCC 74 (35822)
The Chief Justice — “In spite of the able argument of Mr. Mahoney, we are all of the view to dismiss the appeal for the reasons of Hoegg J.A.”

Criminal Law: Delay

R. v. Auclair, 2014 SCC 6 (35372)
The Chief Justice: “We all agree, essentially for the reasons given by Doyon J.A… that this appeal should be dismissed…”

Criminal Law: “Equally Plausible Explanation”

R. v. Vokurka, 2014 SCC 22 (35510)
Abella J.: “The dissenting judge was of the view that the trial judge erred in failing to adequately consider and explain why, in her view, the “equally plausible explanation” supporting the defence of accident was not accepted.  We do not agree, and agree instead with the majority that the trial judge adequately explained why he rejected the possibility of accident and found that the charge was proved beyond a reasonable doubt.”

Criminal Law: Firearms Offences

R. v. Dunn2013 ONCA 539 (35599)
The Chief Justice: “For the reasons of Justice Rosenberg in the Court of Appeal, we are all of the view that the appeal should be dismissed.”

Criminal Law: HIV Status; Aggravated Sexual Assault

R. v. Wilcox, 2014 SCC 75 (35758)
Karakatsanis J.: “This is an appeal as of right on a question of law.   We agree with the majority of the Quebec Court of Appeal that it was open to the trial judge to conclude beyond a reasonable doubt that the complainant would not have engaged in sexual relations had he known about the appellant’s HIV positive status.  The fact that the trial judge also found that it was possible that the sexual relationship continued after disclosure, despite the complainant’s denial, does not necessarily render that first finding unreasonable.  While it would have been preferable for the trial judge to more fully explain his reasoning relating to the complainant’s credibility, we are not satisfied that the trial judge erred in the analytical process set out in R. v. W. (D.), [1991] 1 S.C.R. 742, or that he failed to analyze the evidence as a whole relating to an ultimate issue.  The appeal is dismissed.”

Criminal Law: Murder 1; Parole Ineligibility

R. v. Jackson2014 SCC 30 (35622)
Abella J.:  “The trial judge made no error in determining … the minimal probative value of the proposed evidence … substantially outweighed by its prejudicial effect”.

Criminal Law: Police Use Of Deadly Force To Arrest

R. v. Davis, 2014 SCC 4 (35327)
LeBel J.:  “… the trial judge made an error in allocating the burden of proof. But … this error may have tainted the evaluation of the evidence as to whether excessive force had been used by a police officer.”

Criminal Law: Provocation

R. v. Bouchard, 2013 ONCA 791 (35690)
Cromwell  J.: “… We agree with Doherty J.A., writing for a majority of that Court, that the trial judge’s instructions may well have led the jury to understand that the deceased’s allegedly provocative acts and the respondent’s reaction to them had relevance to the mens rea issue only if they met the narrow legal definition of provocation in s. 232 of the Criminal Code and that this constituted misdirection. We therefore dismiss the appeal and affirm the Court of Appeal’s order for a new trial.”

Criminal Law: ‘Psychological’ Detention

R. v. Koczab, 2014 SCC 9 (35411)
The Chief Justice: “The appeal is allowed for the reasons of Monnin J.A., dissenting in the Court of Appeal.”

Criminal Law: Retrospectivity (Credit For Pre-Sentence Custody)

R. v. Clarke, 2014 SCC 28 (35487)
Abella J.: “The appeal is dismissed. Reasons to follow.”

Criminal Law: Sexual Assault

R. v. James, 2014 SCC 5 (35373)
Moldaver J.: “… the trial judge’s reliance on evidence that did not form part of the record may have coloured his thinking on the issue of consent, particularly in assessing whether the complainant may have consented to sexual relations but forgot that she had done so due to memory blackout, or, as she claimed, that she was unconscious at all material times and never consented to sexual relations. … we agree with the majority of the Court of Appeal that a new trial must be ordered.”

Criminal Law: Sexual Assault

R. v. L2013 NWTCA 08 (35665)
Cromwell  J.: “… Unlike the majority of the Court of Appeal we see no reason to be in any way critical of the conduct of defence counsel at trial. However, we are not persuaded that the trial judge’s handling of the jury’s question, either in the timing or content of her response, constituted legal error or gave rise to a miscarriage of justice. The jury was immediately reminded not to deliberate until they had heard the addresses of counsel and the judge’s charge provided complete and correct legal instructions that were responsive to their question. The appeal is dismissed.”

Criminal Law: Unreasonable Verdict

R. v. Yelle, 2014 SCC 10 (35361)
The Chief Justice: “We agree with the majority of the Court of Appeal that the verdict was not unreasonable.  The appeal is therefore dismissed.”

Criminal Law: Voluntariness/Intent

R. v. Leinen, 2014 SCC 23 (35531)
LeBel J.: “We are all of the view that the charge to the jury, read as a whole, contained no reversible error in relation to either voluntariness or intent. For these reasons, the appeal is allowed and the convictions are restored.”

Crown Liability: Wrongful Convictions

I.W.M.H. R. v. British Columbia (Attorney General), 2014 BCCA 15 (35745)
There is a publication ban in this case, in the context of alleged prosecutorial liability for a wrongful conviction.

Labour Law: Good Faith Bargaining

Canadian Artists’ Representation v. National Gallery, 2014 SCC 42 (35353)
Chief Justice: “The appeal is allowed, with reasons to follow.”

Labour Law: Supplemental Employment Benefits Re Maternity/Parental Leave

British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2013 BCCA 405 (35623)
Karakatsanis J.: “The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits.  The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy.  The appeal is allowed with costs and the Arbitrator’s award is restored.”

Leaves to Appeal Granted

Aboriginal Law: Jurisdiction Over Métis/Non-Status Indians

Canada (Indian Affairs) v. Daniels, 2014 FCA 101 (35945)
In 1999, the Applicants instituted proceedings in Federal Court in order to resolve a long-standing issue as to which of Canada or the provinces has jurisdiction over the Métis and non-status Indian peoples. Specifically, they sought to obtain a determination the federal government has constitutional jurisdiction pursuant to s. 91(24)  of the Constitution Act, 1867  over Métis and non­status Indians.  In Federal Court, they sought the following declarations: (a) that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867 ; (b) the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people; and (c) the Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. Federal Court: declaration issued that “those persons who are Métis and those who are non-status Indians […] are ‘Indians’ within the meaning of the expression ‘Indians and Lands reserved for the Indians’ contained in s. 91(24)  of the Constitution Act, 1867 ”; further declaratory relief, denied. C.A.: appeal allowed, in part; cross-appeal dismissed; declaration set aside and restated by deleting reference to “non-status Indians”.

Administrative Law: Utilities; Pensions

Atco Gas and Pipelines Ltd. v Alberta (Utilities Commission), 2013 ABCA 310 (35624)
ATCO Gas and Pipelines Ltd. and ATCO Electric Ltd. (“ATCO”) participated in pension plans which accumulated an actuarial unfunded liability of $157.1 million at the end of 2009.  Each year, the Management Pension Committee decided how much of a cost of living adjustment (“COLA”) increment should be granted, having regard to the Consumer Price Index (“CPI”) for Canada, but to a maximum of 3%.  The Committee, based on historical practices and on advice received from the pension fund actuary, decided the COLA benefit should be 100% of the CPI increase, to the maximum of 3%.  ATCO applied to the Alberta Utilities Commission (the “Commission”) to include their full pension costs in their revenue requirements.  The Commission reviewed other pension plans and rejected ATCO’s contention a cost of living adjustment of 100% of CPI was an acceptable standard practice and it was necessarily a reasonable expense for inclusion in the revenue requirement for regulated utilities.  The Commission concluded a reduction to the cost of living adjustment in the amount of 50% of CPI up to the maximum 3% represented a reasonable level for setting the cost of living adjustment amount for the purposes of determining the pension costs for regulatory purposes for all employees.  ATCO brought an application for review and variance before the Commission which was denied.  A subsequent appeal to the C.A. was dismissed.

Bankruptcy & Insolvency: MV Claims

Moloney v. Alberta (Administrator, Motor Vehicle Accident Claims Act)2014 ABCA 68 (35820)
Mr. Moloney was an uninsured, at-fault motorist involved in a car accident in 1989.  In 1996, the Administrator of the Motor Vehicle Accident Claims Act, 2012 ABQB 644, obtained a default judgment against him for $194,875.  On June 17, 2011, Mr. Moloney was granted an absolute discharge from bankruptcy.  His bankruptcy proceeding discharged the 1996 judgment debt. Notwithstanding the discharge, the Government of Alberta suspended Mr. Moloney’s operator’s licence and vehicle registration privileges indefinitely until the judgment debt was satisfied or discharged otherwise than in bankruptcy.  Mr. Moloney applied for an order staying enforcement of the 1996 judgment and staying the suspension of his driving and motor vehicle registration privileges. Court of Queen’s Bench of Alberta: Traffic Safety Act held to be in operational conflict with Bankruptcy and Insolvency Act: declaratory relief granted to Respondent; suspensions of driving privileges for non-payment of discharged judgment debt stayed. C.A.: appeal dismissed.

Bankruptcy & Receivership: Application of Provincial Statutes

Attorney General for Saskatchewan v. Lemare Lake Logging Ltd.2014 SKCA 35  (35923)
The Respondent, Lemare Lake Logging Ltd. (“Lemare Lake”), a secured creditor, brought an application for the court appointment of a receiver and manager of assets, excluding livestock, against a debtor, pursuant to s. 243(1)  of the Bankruptcy and Insolvency Act.   The debtor, a “farmer” within the meaning of the Saskatchewan Farm Security Act. (“SFSA”), took the position Lemare Lake first had to comply with Part II of the SFSA before seeking the appointment of a receiver under s. 243(1)  of the BIA. Lemare Lake argued the doctrine of federal paramountcy rendered the relevant provisions of the SFSA inoperative.  The Applicant, Attorney General for Saskatchewan, intervened on the constitutional issue pursuant to the Sask. Constitutional Questions Act. The chambers judge dismissed the application.  She found there was no operational conflict between the provincial and federal statutes, and the SFSA was not incompatible with the purpose of s. 243(1) of the BIA, which is to allow for the appointment of a national receiver.  In the chambers judge’s view, Part II of the SFSA did not frustrate that objective.  In the event she was wrong, the chambers judge explained she would nevertheless have dismissed the application on the basis the foreclosure procedure was the appropriate remedy in this case. In her view, it would be neither convenient nor just to appoint a receiver.  The C.A. agreed it was not appropriate to appoint a receiver, and the appeal was dismissed.  However, the Court nevertheless addressed the constitutional issue, finding Part II of the SFSA to be inoperative by virtue of the doctrine of federal paramountcy.

Bankruptcy: Driving Tolls

Superintendent of Bankruptcy v. 407 ETR Concession Company Limited2013 ONCA 769 (35696)
The Applicant was a private company that owned and operated Highway 407.  The Highway 407 Act, 1998 enabled it to enforce tolls, administration fees and interest for use of the highway. Toll debt may be enforced through suspension of vehicle permits by Ontario’s Registrar of Motor Vehicles.  Matthew Moore, a truck driver, owed toll debt when he made an assignment into bankruptcy. He was denied a motor vehicle permit. Moore obtained an absolute discharge and a Registrar in Bankruptcy declared him released from all claims provable in bankruptcy, including his toll debts. The Registrar in Bankruptcy directed the Ministry of Transportation to issue licence plates to Moore upon payment of licensing fees. A motions judge granted a motion and set aside the Registrar’s decision. The C.A. allowed an appeal by the Superintendent of Bankruptcy and restored the Registrar’s decision.

Charter: Minority Language Educational Rights

Association des parents de l’école Rose‑des‑vents et al. v. Ministry of Education of British Columbia, et al., 2013 BCCA 407 (35619)
École Rose‑des‑vents is a French‑language elementary school that was established in Vancouver in 2001 and has about 350 students. It is the only French‑language elementary school serving those living west of Main Street. It is near a French‑language secondary school, with which it has shared school facilities for some time. For many years, the parents of students attending the school have called for an educational facility whose quality is equivalent to that of the educational facilities provided to the English‑speaking majority in the same catchment area. In 2010, a group of parents whose children attended the school filed a petition in the B.C.S.C. seeking a declaration that their Charter rights had been infringed because their school facilities did not meet the standards in s. 23 of the Charter. The Applicants argued that École Rose‑des‑vents was overcrowded and not as easily accessible as English‑language schools in the area and that its facilities were of poor quality. A judge sitting as a case management judge ordered that the petition be heard in three phases, the first of which would involve determining whether the facilities and transportation afforded to the Applicants were equivalent to the facilities and transportation afforded to students attending English‑language schools in a comparable situation. The same judge ordered that certain paragraphs be struck from the response of the A.G. of B.C. on the basis that they were irrelevant to this phase of the litigation. B.C.S.C.: declaration made that rights‑holder parents living west of Main Street in Vancouver not provided French‑language educational facilities guaranteed to them by s. 23 of Charter. B.C.C.A.: appeal allowed; declaration concerning s. 23 of Charter set aside and petition remitted to B.C.S.C.; order striking paragraphs from A.G.’s amended response set aside.

Charter: Suicide; Euthanasia

Carter v. Canada (Attorney General)2013 BCCA 435 (35591)
Ms. Kay Carter and the Applicant Ms. Gloria Taylor both suffered from intractable and progressive diseases and are now deceased.  They had joined with the others in bringing a civil claim before the B.C.S.C. challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia, specifically ss. 14, 21(1)(b), 21(2), 22, 222(1)-222(5), and 241.  They focused their case, however, on s. 241, which prohibits aiding another person to commit suicide.  They succeeded at trial notwithstanding the S.C.C. decision in Rodriguez v. B.C. [1993] 3 S.C.R. 519, that s. 241 did not infringe certain Charter rights under ss. 7 and 15.  A majority of the C.A., however, allowed A.G. Canada’s appeal.

Civil Procedure: Foreign Judgments

Yaiguaje v. Chevron Corporation2013 ONCA 758 (35682)
There is a sealing order in this case, in the context of enforceability in Canada of foreign judgments.

Civil Procedure: Recusal

Commission scolaire francophone du Yukon no. 23 v. Yukon (Procureure générale)2014 YKCA 4 (35823)
There is a publication ban in this case, in the context of a recusal motion based on alleged reasonable apprehension of bias.

Civil Procedure: Injunctions; Contempt

Sabourin and Sun Group of Companies v. Laiken2013 ONCA 530 (35597)
The Applicant, Mr. Carey, was a lawyer.  While acting for one of his clients subject to a Mareva injunction obtained by the Respondent, Ms. Laiken, he returned certain funds to his client from his trust account.  Ms. Laiken and Mr. Carey’s client were involved in protracted litigation and she eventually obtained judgment against him in the amount of $820,000.00. Mr. Carey’s client ultimately went out of business and disappeared.  Ms. Laiken brought a contempt motion against Mr. Carey, arguing by returning the money to his client, he had violated the Mareva injunction which, by its terms, applied to monies held in trust.  The motion judge initially found Mr. Carey in contempt and adjourned the matter pursuant to rule 60.11(5) and (8) of the Rules of Civil Procedure.  When the matter resumed, the motion judge allowed Mr. Carey to reopen the contempt motion, and she found, on the basis of Mr. Carey’s testimony, she was not satisfied beyond a reasonable doubt Mr. Carey had deliberately violated the Mareva order or his interpretation of it was willfully blind.  Accordingly, she set aside her previous order.  The C.A. allowed the appeal and reinstated the contempt order for two reasons.  First, it found that Mr. Carey should not have been permitted to re-open the finding of contempt.  Second, it found that Mr. Carey knew of the Mareva injunction and violated it, and that while he did not desire or knowingly choose to disobey the order, ‘contumacious’ intent is not an essential element of civil contempt.

Class Actions in Quebec: Authorization

Theratechnologies inc. v. 121851 Canada inc., 2013 QCCA 1256 (35550)
In the spring of 2010, the Applicant company was awaiting approval of a new drug, tesamorelin, from the U.S. Food and Drug Administration.  A public information meeting was scheduled for May 27, 2010.  On May 25, in accordance with its procedure, the FDA published the information on its site.  The information attracted the attention of stock market rating companies such as Bloomberg, Dow Jones and Thomson Reuters, which expressed their reservations in a press release.  The Respondent 121851 Canada sold its 190,000 shares in Thera the same day.  It incurred a net loss of $271,752 in relation to the market value of the shares on May 21, the business day preceding the press release.  In fact, the share price fell 58% in a sudden high volume of trading.  On May 27, a halt in trading in Thera’s securities was ordered.  However, on May 27, the drug was approved following a scheduled public meeting.  On May 29, the value of the share went back to normal. Quebec Superior Court: class action led by Respondent authorized. C.A.: appeal dismissed.

Class Actions: Limitation Periods

Green v. Canadian Imperial Bank of Commerce2014 ONCA 90 (35807)
In a class action proceeding, representative plaintiffs claimed damages under Part XXIII.1 of the Ontario Securities Act (“OSA”) for misrepresentations alleged to have been made in respect of shares trading in the secondary market.  In addition to common law negligent misrepresentation claims, they make a claim based on the new statutory cause of action found at s. 138.3 of the OSA, which can only be commenced with leave of the court.  The statutory claim is also subject to a three-year limitation period, found at s. 138.14(1) of the OSA.  The class action was commenced within the three-year limitation period and a motion for leave to commence the statutory claim was brought, but leave was not obtained within the limitation period.  Applying the C.A.’s 2012 decision in Sharma v. Timminco, 2012 ONCA 107, the motions judge dismissed the leave application and the statutory action as time-barred.  However, on appeal, a five-judge panel of the C.A. concluded that the decision in Timminco should be overturned, and therefore that the action was not statute-barred.

Class Actions: Limitation Periods

IMAX Corporation, et al. v. Marvin Neil Silver et al., 2014 ONCA 90 (35811)
Similar summary to that immediately above.

Class Actions: Limitation Periods

Celestica Inc. et al. v. Trustees of the Millwright Regional Council of Ontario Pension Trust Fund et al.2014 ONCA 90 (35813)
Similar summary to that immediately above.

Class Actions: Payday Loans

Meeking v. Cash Store Inc. et al2013 MBCA 81 (35608)
The Cash Store, and its subsidiary, 1152919 Alberta Ltd., carrying on business as Instaloans, offered short-term loans and other financial services as an alternative to traditional lending institutions. Mr. Meeking filed a statement of claim in the Manitoba Court of Queen’s Bench pursuant to The Class Proceedings Act on his own behalf and on behalf of “all residents of Manitoba” and “any persons resident outside of Manitoba who have elected to claim in this action, in a manner to be determined by the Court” concerning broker fees collected in The Cash Store’s loan business. Mr. Meeking’s claim was preceded by similar claims in Ontario, British Columbia and Alberta. The settlement judgment in the Ontario action defined the class to which it applied as including persons in Manitoba who had obtained a payday loan from both The Cash Store and Instaloans: McCutcheon v. The Cash Store Inc. (2006), 80 O.R. (3d) 644 (S.C.J.).  Notice of the settlement was given to each potential claimant via first class mail to the last known address of all class members, posted notices in Canadian Cash Store locations outside British Columbia and Alberta, on the Cash Store’s website, in press releases, on counsel’s website, and by counsel on request.  Mr. Meeking neither opted out nor indicated he wished to participate in the distribution plan, and filed the within statement of claim well after the deadline for opting out. The defendants filed a notice of motion requesting an order the McCutcheon settlement judgment be recognized in Manitoba and it be enforced against Mr. Meeking. The motions judge held the McCutcheon judgment should only be enforced against The Cash Store with respect to payday loans. It did not apply to Instaloans, and it did not apply to The Cash Store with respect to signature or title loans. C.A.: appeal and cross-appeal dismissed.

Constitutional Law: Bilingual Statutes

R. v. Boutet et al.2014 ABCA 71 (35842)
The Applicant Pierre Boutet was charged with an offence under the Traffic Safety Act, an Alberta statute enacted in English only. At trial, he argued the Traffic Safety Act was unconstitutional because it had not been enacted in English and French.  His case was joined to that of Gilles Caron, which raised the same issues.  At the conclusion of a trial lasting nearly 90 days, Judge Wenden of the Alberta Provincial Court ruled in the Applicants’ favour and declared the Royal Proclamation of 1869 and the Rupert’s Land and North-Western Territory Order (“1870 Order”) imposed an obligation on the Legislative Assembly of Alberta to enact legislation in English and French.  That decision was set aside by the Court of Queen’s Bench in a judgment affirmed by the C.A.

Construction Law: Liens

Olson (Stuart) Dominion Construction Ltd. v. Structal Heavy Steel, 2014 MBCA 8 (35777)
The Applicant, Stuart Olson Dominion Construction Ltd. (“Dominion”) was the general contractor and the Respondent, Structal Heavy Steel (“Structal”) its subcontractor in respect of the structural steel work required for the construction of a new stadium. Structal filed a builder’s lien against the stadium property for the full amount of past due and future invoices, the statutory holdback and costs of delay. Dominion deposited a lien bond for the full amount of Structal’s lien claim.  Structal then discharged its lien, but continued to seek payment from Dominion for the monies owing for its subcontract work. Dominion refused payment arguing the lien bond fully secured Structal’s claim and thus extinguished Dominion’s obligations under the trust provisions of Manitoba’s Builders’ Lien Act, such that it was entitled to use the contract monies otherwise payable to Structal to pay other creditors. Structal had completed all work under the subcontract and all subcontractors had been paid by it in full. Structal had not been paid the outstanding invoices or the statutory holdback.  The motion judge found the filing of the lien bond by Dominion satisfied its trust obligations to Structal under the Act and, upon receipt of the progress payments from the owner, Dominion could disperse them to other creditors without being in breach of the trust provisions of the Act.  The motion judge dismissed Structal’s motion for payment of the progress payments finding the dispute pertaining to Structal’s delay claim, and Dominion’s claim for set-off under their contract, was a dispute could not be decided at this stage of the proceedings and on the materials before him.  The motion judge declared Dominion’s lien bond extinguished its trust obligations under the Act and dismissed Structal’s motion for payment.  The C.A. allowed the appeal in part.  The motion judge’s order declaring the provision of the lien bond extinguishes the trust obligations of Dominion was set aside. Structal’s appeal from the motion judge’s order dismissing Structal’s motion for payment was dismissed.

Criminal Law: Automatic Roadside Prohibitions

Wilson v. British Columbia (Superintendent of Motor Vehicles)2014 BCCA 202  (35959)
Mr. Wilson was stopped at a road check and asked to give a breath sample using an approved screening device (“ASD”).  He blew a “warn” which is defined in s. 215.41(2) of the Motor Vehicle Act, as “the concentration of alcohol in a person’s blood is not less than 50 milligrams of alcohol in 100 millilitres of blood”.  The officer noted Mr. Wilson had “an odour of liquor on his breath” and “admitted to four beers hours earlier”.  Mr. Wilson was subsequently issued a three-day driving prohibition.  He challenged the prohibition, arguing there was no evidence, other than the “warn” reading, that his ability to drive was affected by alcohol.  A delegate of the Superintendent of Motor Vehicles upheld the prohibition on the basis the “warn” reading alone was sufficient under s. 215.41(3.1) of the Motor Vehicle Act.  The decision was quashed on judicial review.  The Superintendent appealed.  The C.A. held the chambers judge incorrectly applied the reasonableness standard of review; courts must be deferential to a tribunal’s interpretation of its statute, so long as it is reasonable.  Having concluded the delegate’s interpretation of s. 215.41(3.1) was reasonable, given the wording of the provision as well as its context and purpose, the C.A. allowed the appeal.

Criminal Law: Automatic Roadside Prohibitions

Sivia v. British Columbia (Superintendent of Motor Vehicles)2014 BCCA 79  (35864)
In September, 2010, the B.C. legislature enacted amendments to the Motor Vehicle Act.  The amendments introduced ss. 215.41 to 215.51, referenced to as the “automatic roadside prohibition” regime (“ARP”) and sometimes referred to as the “immediate roadside prohibition” regime (“IRP”). Six motorists, who had received 90-day roadside driving prohibitions under ss. 215.41 to 215.51 of the MVA challenged the constitutionality of the ARP.  They challenged the provisions on the basis the amendments constitute criminal law and are beyond the legislative jurisdiction of the provincial government and that the amendments violate the motorists’ rights under ss. 8 , 10 (b) and 11 (d) of the Charter .  The motorists had each been given driving prohibitions by peace officers after they had either refused to supply a sample of breath, or having supplied a sample, registered a “fail” on an “approved screening device” (“ASD”) as described in the Criminal Code  and the MVA. The ARP regime provides for a mandatory driving prohibition when a motorist’s ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an ASD that registers either a “warn” (0.05 or over) or “fail” (0.08 or over).  A prohibition is also issued if a driver fails or refuses to comply with a demand made under the Criminal Code to provide a breath sample for analysis.  Registering a “fail” on an ASD automatically leads to 90-day driving prohibition (s. 215.43(2) ).  Refusing to provide a breath sample also results in a 90-day driving prohibition (s. 215.43(2) ).  Registering a “warn” leads to a 3-day suspension for a first prohibition, 7 days for a second prohibition, or 30 days for a subsequent prohibition (s. 215.43(1) ).  The number of prohibitions a driver has been subject to in the previous five years determines whether it is a first, second or subsequent prohibition (s. 215.43(4) ).  All persons that are issued a notice of driving prohibition are also liable to pay a monetary penalty.  Other possible costs are to attend a remedial program, impoundment, towing and storage fees, licence reinstatement fees and the use and installation of an ignition interlock device.  The estimated costs of a reading in the “fail” range, exclusive of legal costs, is $4,060.  A person who has been issued a driving prohibition under s. 215.41 may apply for a review of the prohibition under s. 215.48  within seven days of being served.  The adjudicator has very limited grounds in which to reverse the prohibition. Mr. Justice Sigurdson heard the petitions of Aman Sivia, Carol Beam, Jamie Chisholm and Scott Roberts together.  Carol Beam, Jamie Chisholm and Scott Roberts all registered a “fail” on the ASD.  Aman Sivia was issued an ARP for failing to provide a breath sample.  Sigurdson J. found the challenged legislation to be constitutionally sound except for the prohibitions and penalties resulting from a “fail” reading on an ASD.  He found that this part of the provincial legislation violated s. 8  of the Charter  and was not saved by s. 1 .  The declaration of invalidity was stayed to June 30, 2012.  On June 15, 2012, Bill 46, the Motor Vehicle Amendment Act, came into force which was intended to correct the constitutional defect in the legislation identified by Sigurdson J. The petitions of Robert Goodwin and Kenneth Thorne, who had been prohibited from driving for failing to provide breath samples into an ASD, were heard separately by Mr. Justice Dley who dismissed both petitions.  Dley J. relied on the reasons given by Sigurdson J. in the Sivia case.  Mr. Sivia, Mr. Thorne and Mr. Goodwin lost their cases, however Ms. Beam, Mr. Chisholm and Mr. Roberts were successful in obtaining an order that part of the legislation upon which their prohibitions were based was of no force and effect. The six petitioners appealed on different grounds, some of which were common to all appeals in one way or another.  The Attorney General and British Columbia (Superintendent of Motor Vehicles) filed cross appeals with respect to the part of the legislation that had been declared of no force and effect.  The C.A. dismissed the appeals and the cross appeals.

Criminal Law: Bail

St-Cloud v. R., 2013 QCCS 5021 (35626)
There is a publication ban in this case, in the context of aggravated assault captured on camera.

Criminal Law: Delayed Dial-a-Dope

R. v. Jordan2014 BCCA 241  (36068)
Between March and December 2008, the Applicant was the subject of a police investigation into a dial-a-dope operation selling cocaine and heroin.  The police executed a search warrant at the Applicant’s residence which yielded 42.3 grams of heroin, 1463.5 grams of cocaine and crack cocaine, $6640 in cash and an employee “shift calendar” for the dial-a-dope line.  The Applicant was charged with several drug trafficking related offences in 2008.  In September 2012 the Applicant brought an application for judicial stay of proceedings pursuant to s. 24(1) of the Charter  alleging his rights under s. 11 (b) had been infringed due to an unreasonable delay in bringing his case to trial.  The trial judge found that 32.5 months of delay in this case was due to institutional delay. B.C.S.C.: application for stay of proceedings dismissed; Applicant convicted of drug related offences contrary to the Controlled Drugs and Substances Act . B.C.C.A.: appeal dismissed.

Criminal Law: Failing to Provide Breath Sample

R. v. Goleski, 2014 BCCA 80 (35862)
The Applicant was pulled over by police.  When he was pulled over, he was informed he was being stopped for failing to obey two stop signs.  Having detected the odour of alcohol on his breath, the police officer demanded the Applicant give a roadside breath sample into an approved screening device.  Based on the result of that roadside sample, the police officer made a demand that the Applicant accompany him to the local detachment in order to provide breath samples into an approved instrument.  When the Applicant was transported to the detachment and asked to provide samples, he stated he would not comply. At trial, the Applicant testified he had come to a complete stop at each of the two stop signs.  His testimony on this issue was supported by the evidence of a passenger who had been in his vehicle at the time.  According to the Applicant’s testimony, he believed the police officer was lying when he testified the Applicant had failed to obey the stop signs and felt that he was being treated unfairly.  The Applicant testified he did not believe the police officer would prepare his report of the breath sample honestly and it was this suspicion that led him to refuse to provide the breath sample at the detachment. Provincial Court: Applicant convicted of failing to comply with a demand to provide breath samples pursuant to s. 254(5) of the Criminal Code. B.C.S.C.: summary conviction appeal allowed; verdict of acquittal entered. B.C.C.A.: appeal allowed and conviction reinstated.

Criminal Law: Firearms Offences

R. v. Dunn, 2013 ONCA 539 (35599)
The Applicant was seen pulling an object resembling a pistol from a jacket pocket and appearing to point it at another man.  The police went to his trailer and found an airgun that fired BB pellets and resembled a 9mm pistol.  He was charged with handling a firearm or imitation thereof in a careless manner; carrying a weapon or imitation thereof for a purpose dangerous to the public peace; carrying a concealed weapon or an imitation thereof; and, pointing a firearm.  The trial judge applied R. v. McManus, (2006), 214 O.A.C. 77, and required proof the airgun was a “weapon”, as defined in s. 2 of the Criminal Code.  She dismissed all charges because of a lack of evidence the airgun was used or intended to be used to kill, injure, threaten or intimidate any person.  The C.A. overturned McManus and ordered a new trial on the charges of handling a firearm or imitation thereof in a careless manner; carrying a weapon or imitation thereof for a purpose dangerous to the public peace; carrying a concealed weapon or an imitation thereof.  It upheld the acquittal on the charge of pointing a firearm based on a lack of evidence.

Criminal Law: Inmate Transfer

Khadr v. Edmonton Institution2014 ABCA 225  (36081)
The Respondent, Mr. Omar Khadr, is a Canadian citizen who was found fighting in Afghanistan in 2002 at 15 years of age.  Mr. Khadr was detained for eight years by the U.S. government in Guantanamo Bay, Cuba, before he pled guilty to five offences (the equivalent offences under Canadian law were first degree murder, attempted murder, participation in terrorist group activities, commission of offences for a terrorist group and spying for the enemy).  He was sentenced to eight-years’ imprisonment, with the first year to be served in the custody of the U.S.  After that first year, Mr. Khadr applied under the International Transfer of Offenders Act, to serve the remainder of his sentence in Canada.  Upon Mr. Khadr’s transfer to Canada, correctional officials assigned a sentence value to each of his offences.  They interpreted the sentence as five separate concurrent sentences of eight years each, with Mr. Khadr to serve the balance of his sentence in a federal correctional facility.  Mr. Khadr applied for habeas corpus on the basis that the ITOA  mandated his placement in a provincial correctional facility.  Under s. 20  of the ITOA , an adult Canadian who committed offences between the ages of 12 and 17 was to be detained in a provincial correctional facility for adults if the sentence imposed by the foreign entity could have been a youth sentence had the offence been committed in Canada.  The chambers judge dismissed Mr. Khadr’s habeas corpus application, but the C.A. allowed his appeal, granted his habeas corpus application and ordered his transfer to a provincial correctional facility.

Criminal Law: Mandatory Minimums

R. v. Nur, 2013 ONCA 677 (35678)
A young man approached a staff member at a community centre and said  someone was waiting outside to “get him.”  The staff member put the community centre on lockdown and called the police.  When the police arrived, they saw four men outside an entrance run off in different directions.  One officer chased the Respondent who was seen throwing something away, later determined to be a fully operable, 22-calibre semiautomatic hand gun, a prohibited firearm, fully loaded with an oversized ammunition clip containing 23 bullets.  The Respondent was 19 years old at the time of the offence and was not licensed to possess a firearm which was not itself registered.  The Crown elected to proceed by indictment.  In 2010, the Respondent pled guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, but challenged the three-year mandatory minimum sentencing regime under s. 95(2)(a)(i) of the Criminal Code. Ontario Superior Court of Justice: Respondent’s motion challenging constitutionality of s. 95(2)(a)(i) of the Criminal Code dismissed. C.A.: s. 95(2)(a)(i) of the Criminal Code declared of no force or effect as contrary to s. 12 of the Charter to the extent that it imposes a mandatory three-year minimum term of imprisonment when Crown proceeds by indictment.

Criminal Law: Mandatory Minimums

R. v. Charles, 2013 ONCA 681 (35684)
The police seized a loaded semi-automatic handgun and ammunition from the Respondent’s room at a boarding house.  He did not have a licence to possess the prohibited firearm, nor was the gun registered.  The serial number on the gun had been removed.  The Crown elected to proceed by indictment. The Respondent pled guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, and to other offences including possession of a firearm and ammunition while subject to a prohibition order, but challenged the five-year mandatory minimum sentencing regime under s. 95(2)(a)(ii) of the Criminal Code.  The Respondent had a criminal record, which included two convictions in the prior ten years for predicate offences listed in s. 84(5) that trigger the increased mandatory minimum prison sentence in s. 95(2)(a)(ii). Ontario Superior Court of Justice: Respondent’s motion challenging constitutionality of s. 95(2)(a)(ii) of the Criminal Code dismissed. C.A.: s. 95(2)(a)(ii) of the Criminal Code declared of no force and effect as contrary to s. 12 of the Charter to the extent that it imposes a mandatory five-year minimum term of imprisonment for a second or subsequent offence when Crown proceeds by indictment.

Criminal Law: Unknown Third Party Evidence

R. v. Grant (M.E.)2013 MBCA 95 (35664)
Mr. Grant appealed his conviction by judge and jury for second degree murder.  On November 30, 1984, Candace Derksen, 13 years old, went missing after school and was never again seen alive.  Her body was discovered on January 17, 1985, hogtied and frozen, in a shed in an industrial yard.  She had died of hypothermia as a result of exposure.  No one was arrested in connection with her death until May 16, 2007, when Mr. Grant was arrested and charged with first degree murder on the basis of newly obtained DNA testing.  During the trial, a voir dire was held with respect to whether Mr. Grant could adduce evidence of an alleged, unknown third party suspect.  That evidence related to an alleged abduction which occurred on September 6, 1985, some nine months after Ms. Derksen’s body was found and while Mr. Grant was in custody.  It was argued the modus operandi and other physical evidence suggested the same person had abducted both P.W. and Ms. Derksen. The trial judge found the incident involving P.W. had not occurred and refused to admit the new evidence as to that incident.  Mr. Grant was convicted by judge and jury of one count of second‑degree murder.  The C.A. allowed Mr. Grant’s appeal, finding the trial judge had applied the wrong tests and should have permitted the unknown third party suspect evidence to go to the jury.

Criminal Law: Wrongful Convictions

Canada (Procureur général) v. Hinse, 2013 QCCA 1513 (35613)
On November 3, 1964, Réjean Hinse was convicted of robbery and sentenced to imprisonment for 15 years.  From that time on, Mr. Hinse repeatedly, and by various means, sought recognition he was a victim of a miscarriage of justice, including by trying to obtain a pardon from the Governor in Council and by appealing to the Crown’s power of mercy.  It was not until 33 years later, on January 21, 1997, that Mr. Hinse was acquitted by the S.C.C. after obtaining an extension of the time for appealing his conviction.  Following the acquittal, Mr. Hinse brought an action against the town of Mont‑Laurier, the Attorney General of Quebec and the Attorney General of Canada ‘solidarily’.  However, a settlement agreement was reached with the town ($250,000) and the Attorney General of Quebec ($5,300,000).  Against the Attorney General of Canada, Mr. Hinse alleged the federal government had helped to perpetuate and exacerbate the prejudice he had suffered as a result of the miscarriage of justice and was guilty of systemic contributory fault in failing to act to acknowledge and remedy the miscarriage.  He also argued the conduct of the federal authorities in his case [translation] “was indicative of reprehensible carelessness, recklessness and total denial, which must be denounced and condemned”.  He claimed $1,079,871 in compensation for pecuniary damage, $1,900,000 in compensation for non‑pecuniary damage and $10,000,000 in punitive damages.  The Superior Court allowed the action and ordered the Attorney General of Canada to pay nearly $5.8 million.  Finding Mr. Hinse had not discharged his burden of establishing the fault of the federal authorities, the C.A. set aside the decision.

Extradition

Caplin v. Canada (Attorney General)2013 QCCA 1305 (35527)
The U.S. requested the extradition of the Applicant to stand trial in New Hampshire. The Applicant was accused of the first and second degree murders of Charlene Ranstrom and Brenda Warner. Both women were stabbed to death in their apartment on the night of October 2-3, 1988 in Nashua, New Hampshire. The Applicant was charged with those offences in 1990 but prior to his trial, defence motions to exclude evidence were granted and were upheld on appeal. As a result, the charges against the Applicant were dismissed. In 2010, the New Hampshire State authorities reopened their investigation and a new warrant was obtained for the Applicant’s arrest. Minister of Justice of Canada: Order of surrender issued. C.A.: Application for J.R. dismissed.

Extradition

Barnaby v. Canada (Attorney General, 2013 QCCA 1305 (35548)
Same summary as that immediately above.

Extradition

M.M. v. Canada (Minister of Justice) (U.S.A.)2014 QCCA 681  (35838)
There is a publication ban in this case, in the context of missing children.

Family Law: Support Guidelines

Strickland v. Canada (Attorney General), 2013 FC 475 (35808)
The Applicants brought an application for J.R.  in the Federal Court seeking to have the Federal Child Support Guidelines  (“Guidelines”), declared ultra vires the Divorce Act.
The Federal Court dismissed the application for several reasons.  First, all but one of the Applicants lacked standing to bring the application.  Second, the application constituted, in the court’s view, an impermissible collateral attack and an abuse of process in the case of one of the Applicants.  Finally, the Federal Court was not the appropriate forum in which to address the issue, given the minor role the court plays in issues under the Divorce Act  and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support.  The Fed. C.A. dismissed the appeal.

Human Rights: (Alleged) Discrimination

Bombardier inc. (Bombardier Aerospace Training Center) v. Commission des droits de la personne et des droits de la jeunesse2013 QCCA 1650 (35625)
Mr. Latif has been a Canadian citizen since 2001.  His American and Canadian pilot’s licences are valid for life, but for each type of aircraft, specific continuing training is required under the Canadian or American licence.  Bombardier trained pilots in Montréal and Dallas.  After being offered a job piloting a Challenger 604 in 2004, Mr. Latif applied to Bombardier to take the necessary training under the American licence.  At the same time, he applied to the American authorities for a security check as required by the Alien Flight Students Program.  In April 2004, when Mr. Latif had a reserved spot in the Dallas course that spring, the company received notification of denial from the Department of Justice on the ground that Mr. Latif was a threat to air safety.  The denial was maintained until August 2008, with the result that Mr. Latif had to change jobs several times and was without employment for some time.  Although he asked Bombardier to enrol him in the training in Montréal under the Canadian licence, Bombardier refused, saying it was obliged to comply with the American decision. Quebec Human Rights Tribunal Commission’s action in favour of complainant allowed; over $200,000 in material damages, $25,000 in moral damages and $50,000 in punitive damages awarded; Bombardier ordered to cease automatically applying American government decisions to training under Canadian licence. C.A.: Bombardier’s appeal allowed; action dismissed.

Immigration & Refugees: ‘Human Smuggling’

R. v. A., 2014 BCCA 163 (35958)
There is a publication ban in this case, in the context of charges against the captain and crew of a ship.

Immigration: Refugees

B306 v. Minister of Public Safety and Emergency Preparedness, 2013 FCA 262 (35685)
There is a publication ban in this case, in the context of refugee/people smuggling.

Immigration: Refugees

Kanthasamy v. Canada (Citizenship and Immigration)2014 FCA 113 (35990)
The Applicant, Mr. Kanthasamy, is a 21-year old Tamil from the northern region of Sri Lanka. He arrived in Canada in 2010, when he was 17 years old, and sought refugee protection under s. 96 and s. 97 of the IRPA. The Immigration and Refugee Board (“IRB”) refused his application.  Mr. Kanthasamy then applied for a Pre-Removal Risk Assessment (“PRRA”), claiming risk based on his past experiences, his profile and worsening conditions for Tamils in Sri Lanka.  That application was also refused. Mr. Kanthasamy also applied to the Minister under s. 25(1) of the IRPA to be allowed to apply for permanent resident status from within Canada. Under that provision, the Minister may grant this relief if he is of the opinion the exemption is “justified by humanitarian and compassionate [H&C] considerations relating to the foreign national, taking into account the best interests of a child directly affected”.  Subsection 25(1.3) , which came into force in 2012 as a result of the Balanced Refugee Reform Act, provides in making such a decision, the Minister may not consider the same factors that are taken into account in determining whether a foreign national is a Convention refugee (s. 96) or a person in need of protection (s. 97).  Rather, he must consider “elements related to the hardships that affect the foreign national.”  The Minister refused Mr. Kanthasamy’s application, the Federal Court dismissed the application for judicial review, and the Federal C.A. dismissed the appeal.

Immigration: Refugees

J.P., G.J. v. Minister of Public Safety and Emergency Preparedness, 2013 FCA 262 (35688)
There is a publication ban in this case, in the context of refugee/people smuggling.

Immigration: Refugees

J.R.H. v. Minister of Public Safety and Emergency Preparedness2013 FCA 262 (35677)
Mr. Hernandez was a Cuban national who had left Cuba for the U.S. While there, he and two others bought a boat and left Florida for Cuba, to pick up family members.  Forty-eight Cuban nationals boarded the vessel.  They were later apprehended 80 to 100 km from the U.S. coast. U.S. authorities convicted Mr. Hernandez of the offence of alien smuggling.  He was subject to deportation from the U.S.  He then came to Canada, where he made a refugee claim. The Immigration Division of the Board found Mr. Hernandez was inadmissible to Canada by reason of serious criminality (s. 36(1)(b)).  It also determined  Mr. Hernandez was inadmissible by reason of organized criminality, under s. 37(1)(b), since there were reasonable grounds to believe he had engaged, in the context of transnational crime, in the activity of people smuggling.  Here, although Mr. Hernandez did not participate in the smuggling operation for financial gain, he was a principal organizer. The Board issued deportation orders against Mr. Hernandez on both those grounds of inadmissibility. Mr. Hernandez sought judicial review of the finding of people smuggling only. The Federal Court allowed the application, but the Federal C.A. overturned the decision.

Insurance: Automobiles; “Pay First, Fight Later”

Zurich Insurance Company v. Chubb Insurance Company of Canada2014 ONCA 400  (36002)
Ms. Singh was injured in a single-vehicle accident while driving a vehicle rented from Wheels 4 Rent.  Despite having declined the opportunity to purchase an optional death and dismemberment policy offered by Chubb Insurance Company of Canada, she submitted an application for Statutory Accident Benefits to Chubb.  It declined benefits on the basis that the optional policy was not a motor vehicle policy, and had been declined.  Chubb argued the Statutory Accident Benefits scheme did not apply because it was not an “insurer” under the Ontario Insurance Act. Eventually, she received benefits from Zurich Insurance Company, which insured Wheels 4 Rent’s rental vehicles pursuant to a “motor vehicle liability policy”.  Zurich administered the claim on a “without prejudice” basis, arguing Chubb was the first insurer and should have paid first.  The Arbitrator chosen by Zurich and Chubb determined, based on agreed facts, that Chubb was not an insurer for the purposes of the Act and the Regulation because it had not issued a “motor vehicle liability policy” to Wheels 4 Rent or Ms. Singh.  Under the arbitration agreement, that meant Chubb was not obligated to pay her benefits under the “pay first, fight later” rules. The applications judge allowed an appeal on the grounds Chubb was an “insurer” under the statutory regime because its policy was a “motor vehicle liability policy” and there was sufficient nexus between Chubb and Ms. Singh to require the payment of Statutory Accident Benefits.  A majority of the C.A. allowed a further appeal.

Intellectual Property: Licences

Canadian Broadcasting Corporation v. Sodrac 2003 Inc et al., 2014 FCA 84  (35918)
SODRAC applied to certify a proposed tariff which related to royalties on copies of cinematographic works for retail, rental and theatrical use.  It also applied to set the terms and conditions of a licence for the reproduction of musical works in its repertoire by the CBC.  The Board consolidated the examination of the CBC and another arbitration matter. The application was allowed.  The tariff was certified, and licences were issued to CBC and the other broadcaster.  An interim order extended the 2008-12 licence pending a final determination of SODRAC’s s. 70.2 application concerning licences covering 2012-16. CBC sought judicial review to set aside several terms in a 2008-12 licence (Federal C.A. File No. A-516-12). It also sought judicial review of the extension of the 2008-12 licence (Federal C.A. File No. A-63-13). Fed. C.A.: applications for judicial review allowed in part; stays of execution of licences issued November 2, 2012, and January 16, 2013, dissolved.

Labour Law/Administrative Law: Standard of Review; ‘Prudence’ Reviews

Ontario Energy Board v. Ontario Power Generation Inc., et al., 2013 ONCA 359 (35506)
The Respondent, Ontario Power Generation Inc. (“OPG”) is Ontario’s largest electricity generator.  Some 90 percent of OPG’s regulated workplace is unionized.  The Respondent, Power Workers’ Union (“PWU”) represents approximately two-thirds of the unionized staff.  The Respondent, the Society of Energy Professionals (“the Society”) represents the remainder of its unionized workforce.  OPG entered into a collective agreement with the PWU for the period April 1, 2009 to March 31, 2012 and with the Society for the period January 1, 2011 to December 31, 2011.  These agreements prescribe the compensation rates for each staff position held by its represented employees.  They also provide strict terms regulating the staff levels at OPG’s stations.  Under these agreements OPG is not free to reduce compensation rates unilaterally.  Nor can it reduce staffing levels unilaterally, as it wishes. On May 26, 2010, OPG filed an application seeking approval of the rates its customers must pay for its electricity.  The rates sought provide the revenue required by OPG to cover its projected costs for operating and maintaining its assets, for making new investments, and for earning a fair rate on invested capital.  The application was for the period from January 1, 2011 to December 31, 2012.  The terms of the two collective agreements cover the same period, save for nine months, in the case of the PWU contract. OPG’s application was filed under s. 78.1 of the Ontario Energy Board Act, 1998 (“the Act”).  It empowers the Ontario Energy Board (“OEB” or “the Board”) to fix the rates OPG is entitled to charge its customers.  Section 78.1(5) requires those rates be “just and reasonable”.   The OEB reduced by $145,000,000 the nuclear compensation costs applied for by OPG:  $55,000,000 for the 2011 year, and a further $90,000,000 for the 2012 year.  The OEB did so because it concluded OPG’s compensation rates and its staffing levels were both too high.  The OEB treated both compensation rates and staffing levels as forecast costs OPG could manage downward.  Neither was treated as committed costs.  The majority of the Divisional Court found OEB’s decision was reasonable and should not be disturbed on appeal.  The dissenting judge concluded the collective agreements imposed compensation costs on OPG that are committed costs.  A prudence review was therefore required to determine whether the costs are just and reasonable. The C.A. concluded that the OEB acted unreasonably.  The appeal was allowed and the OEB’s decision set aside.  OPG’s application was remitted to the OEB to be heard in accordance with the principles set out in the reasons of the C.A.

Labour Law in Québec: In Camera Deliberations

Fédération autonome de l’enseignement v. Commission scolaire de Laval2014 QCCA 591 (35898)
On June 29, 2009, the executive committee of the Applicant Commission scolaire de Laval decided unanimously to terminate the employment of a teacher who was a member of the Syndicat de l’enseignement de la région de Laval (the “union”).  The meeting that led to this decision had been held partly in public and partly in camera.  The committee first ordered the union and the teacher be heard in camera, and then asked the union and the teacher to withdraw so it could deliberate, still in camera.  The resolution setting out the decision to dismiss the teacher was subsequently adopted in a public meeting.  That decision was contested by way of a grievance submitted to an arbitrator.  In the course of the arbitration proceeding, the union summoned three members of the executive committee who had been at the meeting of June 29, 2009 to testify before the arbitrator.  In a decision dated March 24, 2011, the arbitrator authorized the testimony of the three commissioner members, explaining the executive committee did not benefit from “deliberative secrecy” and it would be impossible to determine whether the termination of the employment relationship was consistent with the collective agreement [translation] “without a detailed knowledge of the deliberations”.  Quebec Superior Court: motion for judicial review granted; interlocutory arbitral decision dated March 24, 2011 set aside. C.A.: appeal allowed; motion for judicial review dismissed; interlocutory arbitral decision dated March 24, 2011 restored.

Labour Law: Grievances

British Columbia Public School Employers’ Association v. British Columbia Teachers’ Federation, 2013 BCCA 405 (35623)
A collective agreement provided birth mothers, birth fathers and adoptive parents with 95% of their salary for the two-week unpaid waiting period for EI benefits, and 70% of the difference between EI benefits and their salary for an additional 15 weeks.  Birth mothers could elect to take their supplemental employment benefits with their maternity leave or their parental leave. The British Columbia Teachers’ Federation and the Surrey Teachers’ Association filed a grievance alleging the B.C. Public School Employers’ Association and the Board of Education of School District No 36 (Surrey) had failed to provide supplemental employment benefits to birth mothers in relation to both maternity leave and parental leave. They alleged this failure was discriminatory conduct contrary to the B.C. Human Rights Code and s. 15 of the Charter. The Arbitrator allowed the grievance.  The C.A. allowed the appeal, set aside the Arbitrator’s decision and dismissed the grievance.

Military Law: Fraud

R. v. Arsenault2014 CACM 8 (35946)
Several charges were laid against the Applicant, including one count under s. 130 of the National  Defence Act  (“NDA”) of committing fraud contrary to s. 380(1)  of the Criminal Code, two counts under s. 117 (f) of the NDA  of committing acts of a fraudulent nature not particularly specified in ss. 73  to 128 of the NDA , and one count under s. 125 (a) of the NDA  of wilfully making a false statement in a document he had signed that was required for official purposes.  The charges related to a total of $30,725 he had been paid in separation expenses after being transferred from the base at Valcartier to the one at Gagetown, and to a total of $3,469 he had been paid as a post living differential.  He was, in particular, alleged to have made a number of false monthly statements regarding his marital status, and to the effect that he had dependants. Standing Court Martial: Applicant found guilty on (i) one count under s. 130(1) (a) of NDA  of committing fraud contrary to s. 380(1)  of Criminal Code; and (ii) one count under s. 125(a) of NDA of wilfully making false statement in document he had signed that was required for official purposes; Applicant’s motion for declaration that ss. 130(1) (a) and 117 (f) of NDA  unconstitutional dismissed. Court Martial Appeal Court of Canada: appeal dismissed.

Military Law: National Defence Act/ Criminal Code‘nexus’

R. v. Moriarity; R. v. Hannah, 2014 CMAC 1 (35755)
The Applicant Moriarity was a Cadet Instructor Cadre officer.  While in a position of trust and authority with respect to cadets he interacted with, he engaged in inappropriate sexual relationships with two cadets.  He was charged with four Criminal Code offences:  two offences relating to sexual exploitation contrary to s. 153, one offence for sexual assault contrary to s. 271 and one offence for invitation to sexual touching contrary to s. 152 .The Applicant Hannah was a member of the Canadian Forces and a student at the Canadian Forces Base Gagetown.  He purchased and delivered a controlled substance to another engineering candidate and the drugs were found in that student’s quarters on the base.  He was charged with trafficking of a substance included in Schedule IV contrary to s. 5(1)  of the Controlled Drugs and Substances Act  and unlawful selling of a substance containing a drug included in Schedule F contrary to the Food and Drug Regulations and Food and Drugs Act .The Applicants confessed and made admissions but challenged the constitutionality of s. 130(1) (a) of the National Defence Act R. v. Moriarity, Standing Court Martial: Application for an order declaring s. 130(1) (a) of the National Defence Act  of no force or effect pursuant to s. 52  of the Constitution Act, 1982  dismissed;  Applicant convicted of four offences punishable under s. 130  of the National Defence Act R. v. Hannah, Standing Court Martial: Application for an order declaring s. 130(1) (a) of the National Defence Act  of no force or effect pursuant to s. 52  of the Constitution Act, 1982  dismissed;  Applicant convicted of two offences punishable under s. 130  of the National Defence Act.

Military Law: National Defence Act/ Criminal Code ‘nexus’

R. v. Private Alexandra Vezina, 2014 CMAC 3 (35873)
The Applicant was a member of a platoon at Canadian Forces Base Borden.  She was living off base and had a room located at building A-79 on CFB Borden where all female members of the platoon were temporarily accommodated.  Information was provided by confidential informants, Ontario Provincial Police and Barrie Police Services and an undercover operation was undertaken to confirm the Applicant was involved in trafficking in drugs. The undercover operator and Applicant became acquainted with each other and during a conversation, the undercover operator asked the Applicant “Can you get me some coke?”  Two exchanges were arranged and the Applicant twice delivered drugs to the undercover operator. The Applicant was found guilty of trafficking contrary to s. 5(1)  of the Controlled Drugs and Substances Act .  After the finding of guilt, defence counsel brought an application for a stay of the proceedings on the basis that the Applicant was entrapped into committing the offences by the military police. Standing Court Martial: Applicant found guilty of service offences punishable under s. 130 of the National Defence Act  for trafficking contrary to s. 5(1)  of the Controlled Drugs and Substances Act;  Application for a stay of proceedings on the basis of entrapment dismissed. Court Martial Appeal Court: appeal dismissed.

Municipal Law in Quebec: Prayers; Religious Symbols

Saguenay (Ville de) v. Mouvement laïque québécois, 2013 QCCA 936 (35496)
The Applicant Mr. Simoneau was a “non‑believer” and, at the relevant time, a citizen of the Respondent City of Saguenay.  He attended the meetings of the municipal council.  A municipal by‑law provided that council members who so wished could stand and say a prayer at the start of council proceedings.  In addition, near the mayor, there was a crucifix at the La Baie town hall and a statue of the Sacred Heart at the Chicoutimi town hall. Mr. Simoneau and the Mouvement laïque québécois eventually filed an application against the City and its mayor with the human and youth rights tribunal.  They alleged the Respondents had, in a discriminatory manner on the ground of religion, violated Mr. Simoneau’s freedom of conscience and religion and his right to respect for his dignity (ss. 3, 4, 10, 11 and 15 of the Charter of human rights and freedoms).  They asked the recitation of the prayer cease and the religious symbols be removed from the proceedings rooms.  They also claimed damages for the moral prejudice suffered by Mr. Simoneau and exemplary damages. The tribunal allowed Mr. Simoneau’s application in part, but the C.A. set aside the decision on the ground the content of the prayer did not violate the duty of neutrality imposed on the City and, in any case, even if the recitation of the prayer interfered with Mr. Simoneau’s moral values, the interference was trivial or insubstantial in the circumstances.

Pharmaceuticals: Delayed Market Entry

Apotex Inc. v. Sanofi-Aventis2014 FCA 68 (35886)
There is a publication ban in this case, in the context of generic delayed market entry issues.

Pharmaceuticals: Utility; Obviousness

Sanofi-Aventis v. Apotex Inc., 2013 FCA 186 (35562)
Plavix was a drug useful in inhibiting platelet aggregation activity in the blood which was developed, patented, and marketed by the Respondents (collectively, “Sanofi”).  The ‘777 Patent for Plavix is considered to be a selection patent that claims a subset of compounds which are already within the scope of the prior genus ‘875 Patent.  The active ingredient in Plavix is clopidogrel bisulphate, the dextro-rotatory isomer of the racemate, having beneficial properties over both the racemate and the levo-rotatory isomer.  Apotex Inc. (“Apotex”) attempted to market its own version of clopidogrel bisulfate. It applied for a Notice of Compliance from the Minister of Health, alleging that its version of clopidogrel did not infringe Sanofi’s patent.  Apotex also alleged that the ‘777 Patent for Plavix was invalid on several grounds.  Sanofi successfully obtained an order prohibiting the Minister from issuing the Notice of Compliance to Apotex.  This order was upheld on appeal and again at the S.C.C.  Apotex then commenced an impeachment action in the Federal Court seeking a declaration that the ‘777 Patent was invalid on several grounds including lack of utility.  Sanofi commenced its own action, alleging Apotex had infringed its patent by importing clopidogrel into Canada and then exporting it from Canada for sale in other countries including the U.S.  The two actions were consolidated.

Refugees: Inadmissibility

B010 v. Canada (Citizenship and Immigration)2013 FCA 87  (35388)
B010 is a Tamil from Sri Lanka, who arrived in Canadian waters on August 13, 2010 aboard the MV Sun Sea, an unregistered ship with 492 migrants on board also seeking refuge.  Until 2009, B010 had lived in an area of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam (“LTTE”), where he worked as a mechanic and fisherman.  When the Sri Lankan government regained control of the area, B010 was detained and interrogated on several occasions by government forces for suspected involvement in the LTTE.  Upon learning he was to be taken to a detention camp, B010 fled to Thailand where he eventually was offered a spot on the MV Sun Sea that was bound for Canada.  The vessel was abandoned by the Thai crew and the passengers decided to continue with the voyage.  B010 agreed to work six hours a day in the engine room, monitoring the engine equipment.  After the ship arrived in Canadian waters, the Canadian Border Services Agency conducted an investigation that revealed that the ship had been a part of a for-profit scheme to bring migrants to Canada.  It also determined that B010 was one of 12 on board who served as the ship’s crew during the three-month voyage.  An immigration officer reported him as inadmissible to Canada for people smuggling pursuant to s. 37(1) (b) of the Immigration and Refugee Protection Act . Immigration and Refugee Board of Canada: Applicant declared foreign national inadmissible under s. 37(1)(b) of the IRPA; deportation order issued. Federal Court: judicial review dismissed. Fed. C.A.: appeal dismissed.

Tax: Assessments

Canada v. Guindon2013 FCA 153 (35519)
Under s. 163.2 of the Income Tax Act in the amount of $546,747, for false statements she made in the context of a charitable donation program, the Minister took the position Ms. Guindon participated in, assented to or acquiesced in the making of 135 tax receipts she knew, or would reasonably be expected to have known, constituted false statements that could be used by participants in the donation program to claim an unwarranted tax credit under the Income Tax Act. Ms. Guindon appealed the assessment. She argued, among other things, the third party penalty imposed under s. 163.2 of the Income Tax Act is a provision with true penal consequences and therefore falls within the ambit of s. 11 of the Charter. Accordingly, she claimed she should have been entitled to the fundamental substantive and procedural legal rights for which that section provides, such as the right to be presumed innocent, which would raise the burden of proof from proof on a balance of probabilities to proof beyond a reasonable doubt. The Tax Court accepted Ms. Guindon’s argument and vacated the assessment. The C.A. reversed that decision.

Tax: Enforcement Proceedings; Solicitor-Client Privilege

Thompson v. Canada (National Revenue), 2013 FCA 197 (35590)
The Respondent was a lawyer, the subject of enforcement proceedings pursuant to the Income Tax Act.  The Canada Revenue Agency (CRA) issued a Requirement seeking information and documents pertaining the Respondent’s income and expenses, and assets and liabilities, including a current accounts receivable listing.  The Respondent provided some, but not all, of the information set out in the Requirement.  The CRA subsequently found he had provided no details regarding his accounts receivable other than a total balance owing. The Respondent challenged the Requirement, making solicitor-client privilege the focus of his objection. He sought a determination of whether s. 231.2(1) of the Income Tax Act can be interpreted, applied or enforced so as to require a lawyer who is the subject of enforcement proceedings by the CRA to divulge information about his clients, information which he argued is protected by solicitor-client privilege.  He also alleged the Requirement was akin to an unreasonable search or seizure and thus was contrary to s. 8 of the Charter. Federal Court: compliance order issued pursuant to s. 231.7 of the Income Tax Act requiring Respondent Thompson to comply with Requirement issued by Minister of National Revenue; Respondent ordered to provide unredacted financial records to Minister. C.A.: appeal allowed, in part; matter sent back to Federal Court for new hearing with respect to Respondent’s accounts receivable listing, notably determination of whether solicitor-client privilege protects the names of any of Respondent’s clients individually; Respondent ordered to produce unredacted versions of all other information and documents listed in application judge’s order.

Posted: Wednesday, December 17, 2014