Year in Review

Supreme Court of Canada 2016 Year-in-Review

This special year-end review is a complete legal snapshot of all the law from the SCC in 2016, and includes:

Each section is arranged in alphabetical order below by area of law so you can more easily find the decisions relevant to your practice.

Appeals

Aboriginal Law: Métis & Non-Status Indians

Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (35945)

Non-status Indians and Métis are “Indians” under s. 91(24) and it’s to the federal government they can turn.  Federal jurisdiction over Métis and non-status Indians does not mean all provincial legislation re same is inherently ultra vires.

Aboriginal/Municipal Law: Assessment

Musqueam Indian Band v. Musqueam Indian Band (Board of Review), 2016 SCC 36 (36478)

The narrow question here is whether a use restriction under a lease is to be considered in determining the value of land for tax assessment purposes. The plain wording of the relevant provisions, read in light of their purpose and context, does grant discretion to consider the use restriction in establishing value.

Administrative/Labour Law in Québec: Standard of Review

Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 (35898)

The principle that the motives of a legislative body are “unknowable” and deliberative secrecy do not apply to public employers, the School Board in this case, that decides to take disciplinary action against employees, even if an in camera meeting is ordered. The standard applicable to the arbitrator’s interlocutory decision is reasonableness, and whether the examination of the members of the Board’s executive committee should be allowed is ultimately an evidentiary issue. The arbitrator has exclusive jurisdiction over such matters.

Agriculture: Farm Income Stabilization; Compensation Methods; Interpretation Principles

Ferme Vi-Ber inc. v. Financière agricole du Québec, 2016 SCC 34 (36205)

The provincial government support program here is not a contract of insurance but simply an innominate contract under Québec civil law, and  is not subject to the rule of interpretation based on the reasonable expectations of the insured that applies to a contract of insurance as defined in the Civil Code.  The contract must be interpreted having regard to the public interest and to La Financière’s social objective, but it is nonetheless governed exclusively by private law, not by public law. In Québec law, the reasonable expectations rule applies “solely in its minimum dimension”, that is, only where there is ambiguity. La Financière exercised its contractual powers in accordance with the requirements of good faith and contractual fairness, and it was open to La Financière in fixing the compensation payable to choose to link the amounts they had received under two federal financial assistance programs collectively.

Agriculture: Farm Income Stabilization; Compensation Methods; Interpretation Principles

Lafortune v. Financière agricole du Québec, 2016 SCC 35 (36210)

Similar summary to that immediately above.

Banking/Privacy: Disclosure

Royal Bank of Canada v. Trang, 2016 SCC 50 (36296)

There must be disclosure to comply with a court order, or a party has impliedly consented. While not essential to have both of these bases to order Scotiabank to disclose a mortgage discharge statement to the Royal Bank, both are present herein, and each one of them, on its own, would suffice. The legitimate business interests of other creditors are a relevant part of the context which informs the reasonable expectations of mortgagors. The identity of the party seeking disclosure and the purpose for doing so is important: disclosure to someone who requires the information to exercise an established legal right is clearly different from disclosure to someone who is merely curious or seeks the information for nefarious purposes.

Business/Corporate Law: Oppression Remedy

Mennillo v. Intramodal Inc., 2016 SCC 51 (36124)

Based on the trial judge’s findings of fact, the oppression claim herein cannot proceed. All the corporation here can be accused of is sloppy paperwork, but sloppy paperwork on its own does not constitute oppression.

Although not strictly speaking necessary to do so, three points of corporate law:

  • it is not possible to retroactively cancel an issuance of shares by way of simple oral consent; issuance of shares can be cancelled only if (a) the corporation’s articles are amended or (b) the corporation reaches an agreement to purchase the shares, which requires the directors pass a resolution, the shareholder in question gives his or her express consent and the tests of solvency and liquidity are met
  • the corporation did not ascertain whether some of the CBCA corporate formalities were complied with by the parties when it registered the transfer of shares, but that cannot in and of itself invalidate any transfer between them
  • conditions attaching to shares need to be specified in the articles of the corporation and in the securities register, and the resolution authorizing the issuance of the shares would have needed to specify their conditional status.

Civil Procedure: Contempt

Morasse v. Nadeau-Dubois, 2016 SCC 44 (36351)

In Québec, the power to find someone guilty of contempt of court is an exceptional one; courts have consistently discouraged its routine use to get compliance with court orders, and it’s an enforcement power of last resort.  Contempt of court is the only civil proceeding that could result in jail and because of the potential impact on an individual’s liberty, the formalities must be strictly complied with  ̶  clear, precise and unambiguous notice of the specific contempt offence for which he or she is being charged must be given, and the elements required for a conviction proved beyond a reasonable doubt.

Class Actions: Jurisdiction

Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 (36087)

Even if underlying facts involve another jurisdiction, a Canadian court can, if there is a sufficient connection, assume jurisdiction over a tort claim. Van Breda identified four “presumptive connecting factors”. The four Van Breda factors differ in the way they respectively seek to reconcile flexibility and certainty. The fourth factor promotes certainty by premising the determination of when a contract will be “made” in a given jurisdiction on the traditional rules of contract formation. These rules are well known, as are their exceptions, limitations and governing principles. The parties’ ability to tailor these rules and principles also ensures “reasonable confidence” as to when jurisdiction will or will not be assumed under the fourth factor. They can, in other words, determine how and where a given contract will be formed. In addition, the fourth factor also promotes flexibility and commercial efficiency: as seen in Van Breda, all that is required is a connection between the claim and a contract that was made in the jurisdiction; “connection” does not necessarily require the alleged tortfeasor be a party to the contract; to narrow the fourth presumptive factor would unduly narrow the scope of Van Breda, and undermines the flexibility required in private international law. Also, flexibility in applying the fourth factor does not amount to jurisdictional overreach  ̶  conflict rules vary from one jurisdiction to another. And further, the real and substantial connection test has never been concerned with showing “the strongest” possible connection between the claim and the forum where jurisdiction is sought.

Class Actions: Pan-Canadian Settlements

Endean v. British Columbia, 2016 SCC 42 (35843) (36456)

The Court released two appeals jointly herein. Superior court judges in Ontario and B.C. have the discretionary statutory power under their class action legislation to sit outside their home provinces, and a video link to an open courtroom in the judge’s home jurisdiction is not required. A broad interpretation of these statutory powers, which confirms and reflects the inherent authority of judges to control procedure, helps fulfil the purpose of class actions and ensure that procedural innovations in accessing justice will not be stymied by unduly technical or time-bound understandings of the scope of a class action judge’s authority.

Constitutional Law/Charter: Judicial Independence; Financial Security

Conférence des juges de paix magistrats du Québec v. Québec (Attorney General), 2016 SCC 39 (36165)

Committee review of remuneration (in this case, Justices of the Peace) is required for any new judicial office, can be done retroactively within a reasonable time after the appointments, and is so even where those appointed to the new judicial office were transferred from a previous judicial office. Because ss. 27, 30 and 32 of the provincial Act in question here did not provide for retroactive Committee review within a reasonable time after the appointments, these sections violate the financial security guarantee of judicial independence.

Also:

  • the Committee must review all proposed changes to remuneration, and cannot be “reduced, increased, or frozen” without prior recourse to a committee
  • the Committee is to review overall remuneration – salary, pensions, and other benefits are part of that
  • the Committee’s recommendations are not binding
  • government may depart from the Committee’s recommendations provided it gives “rational reasons”.

And re s. 1:

  • an infringement of judicial independence can only be justified where there are “dire and exceptional financial emergencies caused by extraordinary circumstances such as the outbreak of war or imminent bankruptcy”
  • to justify an infringement, government must adduce evidence to justify why the independent, effective and objective process has been circumvented
  • there is nothing here that would meet the high threshold of s. 1 justification.

Constitutional Law/Telecommunications: Division of Powers

Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 (36027)

The siting of a radio communication antenna system represents an exercise of federal jurisdiction. The municipal notice is therefore ultra vires Québec. The notice is also is inapplicable by reason of the doctrine of interjurisdictional immunity.

Constitutional/Municipal Law: Division of Powers

Windsor (City) v. Canadian Transit Co., 2016 SCC 54 (36465)

As to whether the Federal Court has jurisdiction to decide whether the bridge corporation here must comply with the City’s by-laws and repair orders, the answer is no.  Whether the City’s by-laws apply to the corporation’s acquired residential properties, that issue must be decided by the Ontario Superior Court of Justice.  Provincial superior courts recognized by s. 96 “have always occupied a position of prime importance in the constitutional pattern of this country”, and the Federal Court, by contrast, has only the jurisdiction conferred by statute, and being a statutory court, created under the constitutional authority of s. 101, does not have inherent jurisdiction (emphasis in original).

Contracts in Québec/Tax: Amendments

Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55 (36505)

The written or oral expression of a contract can be amended if there is a discrepancy between it and the parties’ true agreement, and cannot (be amended) where there is no such discrepancy but that true agreement merely produces unintended or unanticipated consequences. Amendments must align the written documents with the true agreement they are meant to record and implement, not with the parties’ motivations for entering into the agreement or their expectations as to its consequences. When unintended tax consequences result from a contract whose desired consequences, whether in whole or in part, are tax avoidance, deferral or minimization, amendments to the expression of the agreement in accordance with art. 1425 C.C.Q. is available only under two conditions: (a) if the unintended tax consequences were originally and specifically sought to be avoided, “through sufficiently precise obligations which objects, the prestations to execute, are determinate or determinable”; (b) “when the obligations, if properly expressed and the corresponding prestations, if properly executed, would have succeeded in doing so”.

Contracts/Insurance: Exclusion/Exception Clauses; Standard of Review

Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (36452)

How is one to interpret an exclusion clause in a common form of all-risk property insurance, variably referred to as “builders’ risk”, “contractors’ risk”, “all risks”, “multi-risk” or “course of construction” insurance. This type of insurance covers physical damage on a construction site and is usually issued to the owner of the property under construction and the general contractor, providing coverage for them as well as for all contractors and subcontractors working on the project. The exclusion clause at the heart of these appeals is a standard form clause that denies coverage for the “cost of making good faulty workmanship” but, as an exception to that exclusion, nonetheless covers “physical damage” that “results” from the faulty workmanship. The appropriate standard of review in this case is correctness. Where, like here, the matter involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to a correctness review.  And re the appropriate interpretation of the faulty workmanship exclusion, only the cost of redoing the faulty work is excluded. This interpretation: is dictated by the general rules of contractual interpretation; best represents the parties’ reasonable expectations, as informed by the purpose of builders’ risk policies; aligns with commercial reality; and is consistent with the jurisprudence.

Contracts/Tax: Rectification

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 (36606)

Rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of their agreement; it does not undo unanticipated effects of that agreement: “… a court may rectify an instrument which inaccurately records a party’s agreement respecting what was to be done, it may not change the agreement in order to salvage what a party hoped to achieve”.  Two types of error may permit rectification: (a) both parties subscribe to an instrument under a common mistake that it accurately records the terms of their antecedent agreement; rectification is predicated upon the applicant showing that the parties had reached a prior agreement whose terms are definite and ascertainable; that the agreement was still effective when the instrument was executed; that the instrument fails to record accurately that prior agreement; and that, if rectified as proposed, the instrument would carry out the agreement; (b) where the claimed mistake is unilateral  ̶  either because the instrument formalizes a unilateral act (such as the creation of a trust), or where the instrument was intended to record an agreement between parties, but one party says that the instrument does not accurately do so, while the other party says it does.

Criminal Law: Bestiality

R. v. D.L.W., 2016 SCC 22 (36450)

Penetration remains “as it has always been” an essential element of the offence of bestiality.

Criminal Law: Circumstantial Evidence

R. v. Villaroman, 2016 SCC 33 (36435)

Summary of basics of jury instructions:

  1. You may rely on direct evidence and on circumstantial evidence in reaching your verdict; let me remind you what these terms mean.
  2. Usually, witnesses tell us what they personally saw or heard; for example, a witness might say that they saw it raining outside – that is called direct evidence.
  3. Sometimes, however, witnesses say things from which you are asked to draw certain inferences; for example, a witness might say they’d seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet; if you believed that witness, you might infer that it was raining outside, even though the evidence was indirect – indirect evidence is sometimes called circumstantial evidence.

There is no particular required form of explanation.

Criminal Law: Delay

R. v. Vassell, 2016 SCC 26 (36792)

Here the Crown chose to prosecute all seven accused jointly, as it was entitled to do; but having done so, it was required to remain vigilant that its decision not compromise their s.11 (b) rights.  The Appellant’s counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline issues at trial, agreed to admit an expert report, made both the Crown and the Court aware of s. 11 (b) issues, and at all times sought early dates.  In these circumstances, a more proactive stance on the Crown’s part was required. Delay is unreasonable.

Criminal Law: Delay  ̶  “New Framework”

R. v. Jordan, 2016 SCC 27 (36068)

New framework: presumptive ceiling on time to bring an accused to trial  ̶  18 months in provincial court, 30 months in superior court. And given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling.

Summary:

  • the ceiling beyond which delay becomes presumptively unreasonable is 18 months for cases tried in provincial court, and 30 months for cases in superior court (or cases tried in the provincial court after a preliminary inquiry); defence delay does not count towards the presumptive ceiling.
  • once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances; exceptional circumstances that lie outside the Crown’s control: (1) reasonably unforeseen or reasonably unavoidable, and (2) cannot reasonably be remedied; if the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted; if the exceptional circumstance arises from the case’s complexity, the delay is reasonable.
  • below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable; to do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should.

Criminal Law: Effect of Retrospective Amendments

R. v. K.R.J., 2016 SCC 31 (36200)

The amendments to s. 161(1) (c) [sentencing judges can prohibit sexual offender from any contact with someone under 16] and (d) [prohibit using the internet or other digital network] of the Criminal Code  qualify as punishment such that their retrospective operation limits the right protected by s. 11 (i). Under s. 1, while the retrospective operation of the no contact provision in s. 161(1) (c) is not a reasonable limit on the s. 11 (i) right, the retrospective operation of the internet prohibition in s. 161(1) (d) is  ̶  the benefits of the law outweigh its deleterious effects.

Criminal Law: Infanticide

R. v. Borowiec, 2016 SCC 11 (36585)

The grammatical and ordinary sense of the words used in s. 233 of the Criminal Code supports the conclusion the legislator did not intend to restrict the availability of infanticide to situations where the psychological health of the woman was substantially compromised or where a mental disorder was established; the statutory language also shows there is no requirement for a causal connection between the disturbance of the accused’s mind and the act or omission causing the child’s death; but there is, however, a required link between the disturbance and not having fully recovered from the effects of giving birth to the child or of the effect of lactation consequent on the child’s birth  ̶  in either case the disturbance must be “by reason thereof”.

Criminal Law: Mandatory Minimums

R. v. Lloyd, 2016 SCC 13 (35982)

The one-year mandatory minimum sentence for a controlled substances offence, while permitting constitutional sentences in a broad array of cases, will sometimes mandate sentences violating the constitutional guarantee against cruel and unusual punishment; where the law requires a one-year sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 and is not justified under s. 1.

Criminal/Military Law: Constitutionality

R. v. Cawthorne, 2016 SCC 32 (36466, 36844)

The law recognizes as constitutional the principle that prosecutors must not act for improper purposes, such as purely partisan motives.  Whether a prosecutor’s purposes are “improper” depends on the facts of the case.  Recognition of this principle as fundamental justice does not affect the doctrine of abuse of process; the two are integrally related. Claims of improper prosecutorial conduct, including partisan-motivated conduct, can be brought and assessed under the doctrine of abuse of process, which determines the standard for improper conduct and the appropriate remedy.  There is no evidence of any improper prosecutorial conduct in the cases herein.  The Attorney General or other public officials with a prosecutorial function are entitled to a strong presumption of exercising prosecutorial discretion independently of partisan concerns. The mere fact of a Minister’s membership in Cabinet does not displace that presumption.  With regard to the Cawthorne matter, the decision not to grant a mistrial was within the military judge’s discretion: he made a reasonable attempt to remedy the error through two instructions, one immediate and another mid-trial; in his mid-trial instruction, he instructed the panel to disregard the evidence because it was both “unreliable and prejudicial”; nothing suggested to the judge that the panel was unwilling or unlikely to follow his instruction.

Criminal Law: New Delay Framework Applied

R. v. Williamson, 2016 SCC 28 (36112)

Applying the principles enunciated in R. v. Jordan, the delay here was unreasonable.

Criminal Law: Plea Bargains

R. v. Anthony-Cook, 2016 SCC 43 (36410)

Joint submissions on sentence are not sacrosanct and trial judges can depart from them. The proper test is not a “fitness of sentence” test, but rather whether the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. Brief guidance on the approach judges should follow when troubled by a joint submission on sentence:

  • approach the joint submission on an “as-is” basis, i.e. the public interest test applies whether the judge is considering varying the proposed sentence or adding something the parties have not mentioned, for example, a probation order
  • apply the public interest test when they are considering “jumping” or “undercutting” a joint submission
  • when faced with a contentious joint submission, judges will undoubtedly want to know about the circumstances leading to the joint submission ̶  and in particular, any benefits obtained by the Crown or concessions made by the accused
  • if not satisfied with the sentence proposed (quoting from another case) then “fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge’s concerns before the sentence is imposed”
  • if concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea
  • trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission (and as the S.C.C. wrote, these “[r]easons will … facilitate appellate review.”)

Criminal Law: Pre-Sentence Custody; Enhanced Credit

R. v. Safarzadeh-Markhali, 2016 SCC 14 (36162)

Removing a sentencing court’s discretion to give any enhanced credit to offenders for pre-sentence custody, if they were denied bail primarily on the basis of their criminal record, violates the right to liberty guaranteed by s. 7, and is not justified under s. 1.

Criminal Law: Search & Seizure; Weapon & Cocaine Possession

R. v. Diamond, 2016 SCC 46 (36816)

The full judgment of the Supreme Court, per Karakatsanis J. is: “The majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of Harrington J.A., 2015 NLCA 60, 371 Nfld. & P.E.I.R. 200, at paras. 22-26. Gascon and Côté JJ., dissenting, would have allowed the appeal, substantially for the reasons of White J.A., at paras. 44-48. The appeal is accordingly dismissed.”

Criminal Law: Search Incident to Arrest

R. v. Saeed, 2016 SCC 24 (36328)

A penile swab does constitute a significant intrusion on the privacy interests of the accused, but police may nonetheless take a swab incident to arrest if they have reasonable grounds to believe the search will reveal and preserve evidence of the offence the accused was arrested for (here, sexual assault causing bodily harm), and the swab conducted in a reasonable manner.

Criminal Law: Wiretaps; Third Party Production Orders

World Bank Group v. Wallace, 2016 SCC 15 (36315)

The World Bank Group took the position documents ordered produced by the trial judge are immune from production, and not relevant on a “Garofoli application”. The S.C.C. agreed.

Customs & Excise: Tariff Clarification

Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 (36258)

The decision of the Canadian International Trade Tribunal, that certain imported hockey blockers and catchers were each classifiable as a “glove, mitten or mitt”, is restored and upheld.  And reasonableness is the applicable standard of review here  ̶  the questions of law at issue are of “a very technical nature” which the CITT will often be better equipped than a reviewing court to answer. While in some respects the CITT’s reasons lack perfect clarity, a reasonableness review does not require perfection.

Labour Law: Dismissal; Standard of Review

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (36354)

At common law non-unionized employees could be dismissed without reasons if he or she is given reasonable notice or pay in lieu. Parliament’s intention behind amendments to the Canada Labour Code (in 1978) was to offer an alternative statutory scheme consisting of expansive protections much like those available to employees covered by a collective agreement.  Nothing Dunsmuir says about the rule of law suggests that constitutional compliance dictates how many standards of review are required; the only requirement is that “there be judicial review in order to ensure, in particular, that decision-makers do not exercise authority they do not have” (emphasis in original).  There “is nothing in its elaboration of rule of law principles that precludes the adoption of a single standard of review, so long as it accommodates the ability to continue to protect both deference and the possibility of a single answer where the rule of law demands it, as in the four categories singled out for correctness review in Dunsmuir(again, emphasis in original).

Mortgages: Interest Rates

Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18 (36123)

Rate increases triggered by the passage of time alone do not infringe s. 8 of the federal Interest Act but rate increases triggered by default do, irrespective of whether the impugned term is cast as imposing a higher rate penalizing default, or as allowing a lower rate by way of a reward for the absence of default.

Municipal Law: Assessment Value; Standard of Review

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (36403)

The standard of review for an assessment board’s decision is reasonableness, and it was reasonable here for the board to find it had the power to increase the assessment. The S.C.C. quoted Slatter J.A. below: “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review”, the S.C.C. adding “that day has not come, but it may be approaching”.

Professions/Insurance: Solicitor-Client/Litigation Privilege

Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (36373)

Although there are differences between solicitor-client and litigation privilege, the latter is nonetheless a fundamental principle of the administration of justice, central to the justice system both in Québec and in other provinces and territories. It is a “class privilege” exempting communications and documents falling within its scope from compulsory disclosure, except where one of the limited exceptions to non-disclosure applies.

Professions/Privacy: Solicitor-Client Privilege

Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (36460)

Section 56(3) of the Alberta Freedom of Information and Protection of Privacy Act does not require a public body to produce to the Information and Privacy Commissioner documents over which solicitor-client privilege is claimed. Solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. The provision here does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege. Solicitor-client privilege is no longer merely a privilege of the law of evidence, but has evolved into a substantive protection.

Professions: Professional Secrecy in Québec

Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 (35892)

Professional secrecy is a principle of fundamental justice within the meaning of s. 7, and is also a civil right of supreme importance in the Canadian justice system; professional secrecy must remain as close to absolute as possible, and courts must adopt stringent standards to protect same. A requirement under the federal Income Tax Act constitutes a seizure within the meaning of s. 8 of the Charter; the seizures made in this case are unreasonable and are contrary to that section, because the requirement scheme and the exception for accounting records do not provide adequate protection for the professional secrecy of notaries and lawyers. The procedure does not require that the client, who is the holder of the privilege, be informed of the requirement or of any proceeding brought by CRA to obtain an order to provide information or documents; the procedure places the entire burden of protecting the privilege on the notary or lawyer. Finally, A.G. Canada and CRA have not established it is absolutely necessary here to impair professional secrecy, and because the impugned provisions do not minimally impair the right to professional secrecy, they cannot be saved under s. 1.

Professions: Solicitor-Client Privilege

Canada (National Revenue) v. Thompson, 2016 SCC 21 (35590)

Given the holding in Chambre des notaires that the exception contained in the definition of “solicitor-client privilege” in s. 232(1) is constitutionally invalid, the CRA’s request that the lawyer be compelled to disclose the documents he has been withholding must be rejected; the information contained in those documents is presumptively privileged, and its disclosure cannot be required unless a court first determines whether solicitor-client privilege actually applies.

Real Property: What Runs with the Land

Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (36301)

Even though s. 29(3) of the Alberta Historical Resources Act provides a condition/covenant relating to preservation or restoration of any land or building registered on title under s. 29(2) runs with the land and can be enforced whether positive or negative, the only covenants that run with the land under the Act are those in favour of the person/organization listed in s. 29(1). But here, though Calgary falls under the listed organizations, the covenant to pay Incentive Payments herein, is not in its favour. The Incentive Payments do not run with the land. In addition the Incentive Payments were not sold in the judicial sale of the building herein.

Torts/Medmal: Causation; Adverse Inferences

Benhaim v. St‑Germain, 2016 SCC 48 (36291)

Standard of review: correctness for questions of law; palpable and overriding error for findings of fact and inferences of fact. Causation is a question of fact; so trial judges’ findings on causation are owed deference on appeal. An adverse inference of causation may discharge the plaintiff’s burden of proving causation. Whether an inference of causation is warranted, and how it is to be weighed against the evidence, are matters for the trier of fact. The ordinary rules of causation are to be applied in medical malpractice cases.  Appellate courts should generally not interfere with trial judges’ decisions not to draw an inference from a general statistic to a particular case.  Statistics themselves are silent about whether parties themselves would have conformed to the trend or been an exception from it. Without an evidentiary bridge to the specific circumstances of the plaintiff, statistical evidence is of little assistance, which is why such general trends are not determinative in particular cases.

Transportation: Railway Interswitching

Canadian Pacific Railway Co. v. Canada (Attorney General), 2016 SCC 1 (36223)

Amendments to interswitching regulations, re distance limits and rates, are valid.

Workers’ Comp/Torts: Standard of Review; Causation

British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (36300)

The applicable standard of review requires curial deference, absent a finding of fact or law that is patently unreasonable.  Simply put, this standard precludes curial re-weighing of evidence, or rejecting the inferences drawn by the fact-finder from that evidence, or substituting the reviewing court’s preferred inferences for those drawn by the fact-finder. The central problem in the handling of causation in the courts below arose not in their failure to have appropriate regard to the less stringent standard of proof required by the legislation here, but from their fundamental misapprehension of how causation  ̶ irrespective of the standard of proof  ̶  may be inferred from evidence.  The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not determinative of causation; it is open to a trier of fact to consider, as this Tribunal considered, other evidence in determining whether it supported an inference that the workers’ breast cancers were caused by their employment.  Causation can be inferred  ̶  even in the face of inconclusive or contrary expert evidence  ̶   from other evidence, including merely circumstantial evidence. This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker’s breast cancer was caused by an occupational disease. It does mean, however, that it may suffice. Whether or not it does so depends on how the trier of fact, in the exercise of his or her own judgment, chooses to weigh the evidence: subject to the applicable standard of review, that task of weighing evidence rests with the trier of fact  ̶  in this case, with the Tribunal.

Oral Judgments

Contracts: Arbitration

Urban Communications Inc. v. BCNET Networking Society, 2016 SCC 45; 2015 BCCA 297 (36639)

The Chief Justice: “We are all of the view that the appeal should be dismissed substantially for the reasons of the Court of Appeal of British Columbia.”

Criminal Law: Arbitrary Detention; Exclusion of Evidence

R. v. Gagnon, 2016 SCC 6; 2015 QCCA 1138 (36581)

Justice Cromwell: “This is an appeal as of right. We all agree, essentially for the reasons given by Doyon J.A. of the Quebec Court of Appeal, that it should be dismissed. The appeal is dismissed.”

Criminal Law: (Alleged) Ineffective Assistance of Counsel

R. v. Meer, 2016 SCC 5; 2015 ABCA 141 (36448)

The Chief Justice: “This appeal as of right comes to us based on the dissent of Berger J.A. in the Court of Appeal of Alberta. The learned Justice of Appeal was of the view that trial counsel’s conduct of the case (not counsel before us) was “woefully incompetent” and that “it cannot be safely concluded that the appellant received a fair trial”: reasons on appeal, at para. 153 (2015 ABCA 141, 600 A.R. 66). We are all of the view that the appeal must be dismissed. To succeed in setting aside a trial verdict on the basis of the ineffective assistance of counsel, the appellant must show “first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted”: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26. Aside from finding that “[c]ounsel’s ineffectiveness pertains to critical aspects of the trial”, the learned dissenting Justice did not indicate how the instances which he identified of counsel’s incompetence had occasioned a miscarriage of justice: reasons on appeal, at para. 153. As this Court noted in G.D.B., miscarriages of justice may take many forms in the context of ineffective assistance of counsel. While the Court of Appeal addressed a wide range of issues, we need comment only on one: we are not persuaded that there was any miscarriage of justice in any of its forms in this case. The appeal is dismissed.”

Criminal Law: Driving Offences; Arbitrary Detention; Right to Counsel

R. v. Rowson, 2016 SCC 40; 2015 ABCA 354 (36777)

Justice Abella: “A majority of this panel is of the view that the appeal should be dismissed substantially for the reasons of Justice O’Ferrall [Charter-infringing police conduct not serious, impact on Charter-protected interest minimal, not established admission of breath sample evidence would bring the administration of justice in disrepute]. Justice Côté and I would allow the appeal primarily on the basis that the cumulative effect of the multiple breaches warranted the exclusion of the breathalyzer evidence.”

Criminal Law: Hearsay; Confirmatory Evidence

R. v. Seruhungo, 2016 SCC 2; 2015 ABCA 189 (36523)

Justice Moldaver: “A majority of the Court would allow the appeal and restore the acquittal substantially for the reasons of O’Ferrall J.A.  Moldaver and Gascon JJ. would dismiss the appeal substantially for the reasons of Brown J.A. In the result, the appeal is allowed and the acquittal is restored.”

Criminal Law: Homicide

R. v. Shaoulle, 2016 SCC 16; 2015 SKCA 101 (36704)

The Chief Justice: “The appeal is dismissed for the reasons of the majority of the Court of Appeal.”

Criminal Law: Homicide; Alibi Evidence

R. v. Laliberté, 2016 SCC 17; 2015 QCCA 1633 (36712)

Wagner J. (translation): “This appeal as of right is based on the dissent of Hilton J.A. in the Quebec Court of Appeal. In Hilton J.A.’s view, the trial judge erred in not admitting in evidence out-of-court statements made by one of the victims and in giving the jury an instruction, the content of which was also erroneous, with respect to the fabrication of an alibi even though sufficient evidence had not been adduced to link the appellant to the fabrication of an alibi. The dissenting judge found that the trial judge’s instruction was so inappropriate and so seriously in error that the curative proviso of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, was inapplicable. The majority agreed with Hilton J.A.’s conclusion regarding the out-of-court statements of one of the victims and also agreed that the content of the instruction with respect to the fabrication of an alibi was erroneous. However, they found that deference was owed to the trial judge’s decision to give an instruction in that regard. Concluding that the case against the accused was overwhelming, they applied the curative proviso of s. 686(1)(b)(iii) of the Criminal Code.  We agree with the majority and with the dissenting judge that the instruction the trial judge gave with respect to the fabrication of an alibi was erroneous. A trial judge must specify in such an instruction that the fabrication of an alibi supports an inference of consciousness of guilt, but no more than that. The instruction in this case did not satisfy this requirement. Moreover, there must be other evidence independent of the finding that the alibi is false on the basis of which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury: R. v. O’Connor (2002), 62 O.R (3d) 263 (C.A.); R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.) (per Ryan J.A.).  However, we are of the opinion that, despite the trial judge’s errors, the evidence in the case at bar is so overwhelming that the trier of fact would inevitably have entered a conviction against the accused: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. For these reasons, the appeal is dismissed.”

Criminal Law: Homicide; Forcible/Unlawful Confinement

R. v. Newman, 2016 SCC 7; 2015 BCCA 237 (36524)

The Court:  “This is an appeal as of right. We are of the view that the appeal should be allowed. On the evidence, it was open to the trial judge to conclude that the act of forcible or unlawful confinement, which occurred when the respondent prevented the victim from escaping through the front door of the apartment, was distinct and independent. The trial judge’s conviction for first degree murder is reinstated.”

Criminal Law: Sexual Assault

R. v. Spicer, 2016 SCC 3; 2015 ABCA 190 (36532)

Justice Moldaver: “The sole issue before us is whether the trial judge’s failure to instruct the jury on the need to take reasonable steps to ascertain consent might reasonably be thought to have had a material bearing on the acquittal. A majority of the Alberta Court of Appeal found that it did. We agree. Accordingly, we would dismiss the appeal.” (Publication ban).

Criminal Law: Sexual Offences

R. v. C.K-D., 2016 SCC 41; 2016 ONCA 66 (36877)

Justice Wagner: “The trial judge’s charge to the jury as a whole conveyed the correct instruction to the jury on the proper approach [as to how a young person’s evidence is to be considered] to assessing A.Y.’s evidence and credibility. On this basis, the appeal should be allowed and the convictions restored.”

Criminal Law: Trafficking; Parties to an Offence

R. v. Knapczyk, 2016 SCC 10; 2015 ABCA 258 (36612) (36613)

The Chief Justice: “We are agreed that the appeals should be dismissed. We agree with the following statement of the Court of Appeal: On the correct application of the legal principles to the facts found by the trial judge, it is an inescapable conclusion that the respondents aided and abetted the offence of trafficking through distribution. Their acts prevented or hindered interference with the accomplishment of a criminal act. In this way, the respondents provided assistance and encouragement to Mr. Caines in the commission of the offence of trafficking. There is a clear link between the respondents’ acts and the commission of the offence. [para. 15] The appeals are dismissed and the order of the Court of Appeal affirmed.”

Labour Law: Collective Bargaining

British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49; 2015 BCCA 184 (36500)

The Chief Justice: “The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald. Justices Côté and Brown would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal.”

Motion

Charter/Constitutional Law: Physician-Assisted Dying

Carter v. Canada (Attorney General), 2016 SCC 4 (35591)

Federal government’s request to extend previously-given 12-month suspension of judgment granted at 4, not 6 months. Québec gets a constitutional exemption. Non-Québecois may apply for an individual exemption to their Superior Court.

Leaves to Appeal Granted

Aboriginal Law: Duty to Consult

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., National Energy Board, and Attorney General of Canada, 2015 FCA 222 (36776)

Enbridge applied to the National Energy Board to approve a pipeline project – specifically, to reverse the flow of one section of an existing pipeline, expand the capacity of the pipeline, and exempt the project from certain regulatory requirements and procedures to allow for the transportation of heavy crude oil. The NEB approved the project, on specified terms and conditions. The Chippewas of the Thames First Nation appealed the NEB’s decision, citing, among other things, inadequate consultation. A majority of the Fed. C.A. dismissed the appeal, finding that, in the absence of the Crown as a participant in the original application, the NEB was not required to determine whether the Crown was under a duty to consult, and if so, whether the duty had been discharged. Nor was there any delegation by the Crown to the NEB of any power to undertake the fulfillment of any such duty. In dissent, Rennie J.A. would have allowed the appeal, concluding the NEB was required to undertake a consultation analysis as a precondition to approving Enbridge’s application.

Aboriginal Law: Duty to Consult

Hamlet of Clyde River et al. v. Petroleum Geo Services Inc. (PGS) et al., 2015 FCA 179 (36692)

The Respondents (the project proponents) applied to the National Energy Board for authorization to undertake a marine seismic survey program in coastal waters in Nunavut. Local Inuit groups and communities objected to the project. The NEB issued the requested authorization to the project proponents, on specified terms and conditions. The NEB also provided an environmental assessment report which outlined the consultation steps and activities undertaken by the project proponents and by the NEB itself. The Inuit of Clyde River brought an application for judicial review of the authorization, on various grounds including inadequate consultation. The Federal Court of Appeal dismissed the application for judicial review, finding the NEB was statutorily mandated to undertake Aboriginal consultation activities and to assess the sufficiency of the consultation, and the Crown could rely on the NEB’s regulatory process to help satisfy the Crown’s duty to consult affected Aboriginal groups. In this case, the Fed. C.A. found the Crown’s duty was discharged, that the Inuit were meaningfully consulted on their rights, and an appropriate level of accommodation was undertaken in response to their concerns.

Aboriginal Law: Duty to Consult & Accommodate

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352 (36664)

The Respondent Minister approved a master development agreement for the development of a ski resort by the Respondent company on Crown land in the Jumbo Valley in the southeastern Purcell Mountains of B.C.  The Applicants brought a petition for judicial review of that decision, arguing it violated their freedom of religion guaranteed under s. 2 (a) of the Charter and breached the Minister’s duty to consult and accommodate asserted Aboriginal rights under s. 35 of the Constitution Act, 1982 .  The Applicants assert the proposed resort lies at the heart of a central area of paramount spiritual significance, being the Grizzly Bear Spirit’s home or territory (“Qat’muk”). They argue allowing the development of permanent overnight human accommodation within Qat’muk would constitute a desecration and irreparably harm their relationship with the Grizzly Bear Spirit.  The Spirit would leave Qat’muk, leaving them without spiritual guidance and rendering their rituals and songs about the Spirit meaningless.  The B.C.S.C.: dismissed the petition for judicial review on the basis i) s. 2 (a) of the Charter did not confer a right to restrict the otherwise lawful use of land on the basis such use would result in a loss of meaning to religious practices carried on elsewhere; and ii) the process of consultation and accommodation of asserted Aboriginal rights was reasonable.  The B.C.C.A.: dismissed the appeal.

Aboriginal Law: Specific Claims Tribunal; Fiduciary & Other Duties

Canada v. Williams Lake Indian Band, 2016 FCA 63 (36983)

Williams Lake Indian Band filed a specific claim against Canada with the Specific Claims Tribunal, pursuant to the federal Specific Claims Tribunal Act, based on: 1) the alleged failure of the pre-Confederation colony of B.C. to act in the Band’s best interests by protecting their lands; 2) the alleged failure of Canada to create reserves for the Band, following B.C.’s entry into Confederation in 1871. The claim involves two lots totalling nearly 2,000 acres. The claim alleged B.C. failed to meet its legal obligation to prevent settlers from pre-empting lands on these two lots, and Canada failed to meet its legal obligations to create reserves for the Band once B.C. entered Confederation in 1871. Reserve lands were eventually set aside for Williams Lake as reserves, in 1881; although the amount of land (over 4,000 acres) exceeded the area covered by the two lots, the lands in question were different than those in the original claim.  The claim was bifurcated into validity and compensation (if necessary) phases. The Specific Claims Tribunal determined Williams Lake had established the validity of the claim against the federal Crown: there were pre-emptive purchases of the lands by settlers, in contravention of colonial policy and law; such contraventions constituted a breach of a legal obligation, pursuant to colonial legislation pertaining to reserved lands; B.C. failed to act honourably and was in breach of its fiduciary duties at common law, by failing to put the Indian interest in settlement lands ahead of settlers’ interests; Canada was liable for B.C.’s pre-Confederation breaches of legislation and fiduciary duty, pursuant to the Act; and Canada also breached its post-Confederation fiduciary duties by failing to provide reserve lands to Williams Lake. The Federal C.A. allowed the Crown’s application for judicial review, concluding Canada’s post-Confederation actions remedied any potential earlier fiduciary breaches by B.C. and fulfilled any fiduciary duty owed by Canada. The C.A. concluded Canada did not breach any post-Confederation legal obligation to Williams Lake, and was not liable for any breaches of pre-Confederation legal obligations by B.C. By way of remedy, the specific claim was dismissed.

Aboriginal Law: Treaties: Interpretation; Implementation

The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18 (36779)

The Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin had traditional territory in the Peel Watershed, which covers approximately 68,000 square kilometers representing 14% of the Yukon. On May 29, 1993, Canada, Yukon and the Yukon First Nations, represented by the Council for Yukon Indians, entered into an Umbrella Final Agreement (“UFA”). Its terms were incorporated into the Final Agreements of Canada and Yukon with various First Nations including Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin. The terms established a consultative and collaborative process for the development of land use plans in various regions, including the Peel Watershed. The process required an independent planning Commission to create an initial Recommended Plan, and Yukon to consult on that plan before approving, rejecting or proposing modifications to it (s. 11.6.2). The Commission was then required to reconsider the plan and propose a Final Recommended Plan, followed by another obligation on Yukon to consult on that plan before final approval, rejection, or modification of it (s. 11.6.3.2).  In this case process began for the Peel Watershed in 2004 and led to the creation of the Recommended Plan in late 2009. The process broke down in 2012 when Yukon changed the plan over the objections of the First Nations, who took the position Yukon did not have the authority under the Final Agreements to make the changes it had made. The Government of Yukon had provided very general suggestions at the s. 11.6.2 stage, and then proposed its own plan at the s. 11.6.3.2 stage. The Nacho Nyak Dun, Tr’ondëk Hwëch’in and others commenced an action against Yukon. The trial judge held Yukon had breached the Final Agreements when it changed the land use plan for the Peel Watershed. The judge quashed Yukon’s final land use plan and ordered the process be remitted to the point in time at which Yukon came to engage in final consultation with the First Nations. The C.A. upheld the trial judge’s order quashing the Government Plan. However, the C.A. ordered the matter be remitted to the point at which Yukon had received the Recommended Plan.

Banking: Cheque Fraud

Teva Canada Limited v. Bank of Montreal, 2016 ONCA 94 (36918)

The Applicant (“Teva”) was a large manufacturer of generic pharmaceuticals. Teva and the respondent banks fell victim to a fraudulent scheme orchestrated by a Teva employee, M. M was responsible for administering Teva’s rebate programme but had no authority to requisition or authorize cheques. From 2002 to 2006, M took advantage of the fact that Teva’s internal payment approval policies were not followed. He requisitioned cheques payable to six entities to whom Teva owed no monies: two entities whose names he had invented, and four who were current or former customers of Teva. M requisitioned 63 fraudulent cheques totalling $5,483,249.40, which he and five accomplices deposited into small business accounts they had opened at the respondent banks. Teva sued the banks for damages for conversion, and the banks raised defences under ss. 20(5) and 165(3) of the Bills of Exchange Act, and under the Ontario Limitations Act.  Each party brought motions for summary judgment. The motion judge granted summary judgment in favour of Teva, but this was reversed on appeal.

Charter: Voting Rights

Frank v. Attorney General of Canada, 2015 ONCA 536 (36645)

The Applicants were Canadian citizens residing in the U.S. for employment reasons, intending to return to Canada if circumstances permit. Both Applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The Applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the Applicants’ right to vote under s. 3 of the Charter, and the violation was not justified under s. 1. A majority of the C.A. allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to the laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.

Civil Procedure/Class Actions: Forum conveniens

Douez v. Facebook, Inc., 2015 BCCA 279 (36616)

The Applicant commenced an action and sought certification as a class action against the Respondent. She alleged it used her name and portrait in an advertisement product known as “Sponsored Stories” without her consent, contrary to the statutory tort created by subsection 3(2) of the B.C. Privacy Act. When a Facebook member “likes” a post on Facebook that relates to an entity that has purchased an advertising service, the respondent sometimes features the name and/or likeness of that member, together with the advertising logo and other product or service information of that entity, in a Sponsored Story sent to the member’s Facebook contacts. The member is not notified about the Sponsored Story. The Respondent argued it had obtained either the express or implied consent of its users through its terms of use, other disclosure on its website, and through a user’s actions such as their privacy settings. It also submitted the court should decline jurisdiction on the basis that California was the designated choice of jurisdiction and applicable law in the terms of use. The B.C.S.C. dismissed the Respondent’s application to decline jurisdiction and certified the Applicant’s action as a class action. The B.C.C.A. allowed the appeal, holding the forum selection clause should be enforced and granting a stay of proceedings.

Civil Procedure: Document Retention/Preservation

Fontaine et al. v. Canada (Attorney General), 2016 ONCA 241 (37037)

In the context of Indian residential schools litigation/process, what documents are to be kept, and for how long.

Civil Procedure: Injunctions; Non-Parties; Worldwide Effect

Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 (36602)

The plaintiffs sued their former distributors for unlawful appropriation of trade secrets, alleging the distributors designed and sold counterfeit versions of their products. The plaintiffs obtained injunctions against the distributors, prohibiting them from carrying on any business online. When this proved ineffective, the plaintiffs sought a court order against Google, to prohibit it from displaying search results that included the distributors’ websites.  The B.C.S.C. granted a worldwide injunction against Google, finding it had territorial competence over Google and it possessed an inherent jurisdiction to maintain the rule of law and protect its processes, which in appropriate circumstances may include an injunction against non-parties. In this case, the balance of convenience favoured granting an injunction. The C.A. agreed the court held jurisdiction over Google with respect to the injunction application. It also concluded it was permissible to seek interim relief against a non-party. The power to grant injunctions is presumptively unlimited, and injunctions aimed at maintaining order need not be directed solely at the parties involved in litigation. In this case, an injunction with worldwide effect was justified.

Civil Procedure: Striking Out; Self-Reps

Pintea v. Johns, 2016 ABCA 99 (37109)

Should the action herein be struck.

Competition: (Alleged) Price-Fixing

Canada (Attorney General) v. Thouin, 2015 QCCA 2159 (36869)

There is a sealing order in this case, in the context of alleged gasoline price-fixing in Québec.

Contracts: Arbitration

Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 297 (36639)

Under s. 31 of the B.C. Arbitration Act, an arbitrator had to determine whether the Respondent BCNET Networking Society properly and validly exercised its options under the agreement between itself and the Applicant Urban Communications Inc. The arbitrator ruled in favour of the Respondent finding the options had been properly exercised.  The chambers judge granted leave to appeal, allowed the appeal and amended the arbitrator’s award. The C.A. dismissed the appeal and reinstated the arbitrator’s award.

Contracts in Québec: Renewal Clauses; Injunctions

Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2015 QCCA 1427 (36718)

The parties had a contract of affiliation since 1998. A clause in the contract provided the contract would be renewed automatically every five years unless the Respondents gave notice to the contrary. Six months before the contract term expired, the Applicant sent a notice of non-renewal. The Respondents, the beneficiaries of the renewal clause in the contract, refused to allow the Applicant to terminate the contract in that way and brought a motion before the courts for a declaratory judgment and permanent injunction. Quebec Superior Court: declaratory judgment and permanent injunction allowed in part. C.A.: appeal dismissed.

Corporate Law: Oppression

Wilson v. Alharayeri, 2015 QCCA 1350 (36689)

The Respondent was the Chief Executive Officer and a major shareholder of a corporation named Wi2Wi, which specialised in manufacturing Wi-Fi modules. As result of recurring cash issues, Wi2Wi considered merging its operations with another business called Mitec Telecom Inc. While negotiating the merger, the Respondent decided to negotiate separately the sale of his own shares in Wi2Wi with Mitec Telecom Inc. in order to solve his personal financial problem. When the details of the Respondent’s share purchase agreement reached the Board of Directors of Wi2Wi, the reaction of its members triggered his resignation as Chief Executive Officer of Wi2Wi. After the resignation of the Respondent, further negotiations were conducted but neither merger nor share purchase transactions occurred. In order to manage the financial crisis of Wi2Wi, the Board of Directors decided to proceed with the Private Placement of convertible secured notes. As a result of this Private Placement, the proportion of the common shared owned by the Respondent was significantly reduced. After several attempts to reach the Board in order to get a decision on the conversion of his preferred shares, the Respondent brought an action for oppression against the corporate directors. Superior Court of Quebec: motion granted in part. C.A.: appeal dismissed; cross-appeal dismissed.

Criminal Law: Bail

Her Majesty the Queen in Right of Canada v. K.A., 2015 ONSC (36783)

There is a publication ban in this case, in the context of an accused not residing within 200 km of place of custody.

Criminal Law: Costs Payable by Lawyer

Director of Criminal and Penal Prosecutions v. Jodoin, 2015 QCCA 847 (36539)

The Respondent is a lawyer who, in this case, was representing clients charged with having had the care or control of a motor vehicle while impaired by alcohol or while their blood alcohol levels exceeded the legal limit. After a hearing in the Court of Québec on a motion for the disclosure of evidence, the Respondent filed in the Superior Court, on behalf of his clients, motions for writs of prohibition challenging the jurisdiction of the Court of Québec judge. The Applicant, the Director of Criminal and Penal Prosecutions, objected. Quebec Superior Court: writs of prohibition dismissed; Respondent ordered to pay costs. C.A.: appeal allowed solely to set aside award of costs against Respondent.

Criminal Law: Dangerous Offenders; Constitutionality

R. v. Boutilier, 2016 BCCA 235 (37168)

The Crown brought a dangerous offender application. Pursuant to s. 752.1 of the Code, the Applicant was remanded for an assessment. After the evidence in the dangerous offender hearing was completed, and after the Crown had completed its submissions, counsel for the Applicant served a notice of constitutional question in relation to several amendments to s. 753.  The judge concluded an aspect of s. 753(1) infringed s. 7 of the Charter and could not be saved under s.1.  In consideration of the interests at stake, the judge held this declaration of invalidity would be suspended for one year. The judge also designated the Applicant a dangerous offender and sentenced him to an indeterminate prison term. The Respondent appealed the declaration of constitutional invalidity with respect to s. 753(1). The Applicant appealed the dismissal of his application to have s. 753(4.1) declared constitutionally invalid as well as his designation as a dangerous offender and indeterminate sentence. The Respondent’s appeal was allowed. The Applicant’s appeal dismissed.

Criminal Law: Drug-Impaired Driving

R. v. Bingley, 2015 ONCA 439 (36610)

Police were called after the Applicant, Mr. Bingley, struck a car. The officer noted signs of impairment. The results of a roadside test revealed a blood alcohol concentration well below the legal limit and inconsistent with the observed indicia of impairment. A Drug Recognition Expert (“DRE”) also administered standard sobriety tests to Mr. Bingley at the scene. When he failed the sobriety tests, Mr. Bingley was charged with driving while drug impaired. He admitted he had smoked marijuana and taken two Xanax in the previous 12 hours. A urinalysis revealed the presence of cannabis, cocaine and Alprazolam. Mr. Bingley was tried for the offence of driving while drug impaired. He was acquitted but a summary conviction appeal led to the acquittal being overturned and a new trial ordered. The basis for overturning the acquittal was the trial judge had failed to consider the cumulative effect of the evidence. As indicated, at the first trial, Mr. Bingley was acquitted. This despite the DRE’s evidence, which the first judge found could be received without a Mohan voir dire. At the second trial, a second judge found the DRE evidence could not be received without a voir dire. On the voir dire, however, the judge determined the DRE evidence was inadmissible and therefore, acquitted Mr. Bingley again. And, again, the Crown brought a summary conviction appeal. The summary conviction appeal judge allowed the Crown appeal and ordered a third trial. Mr. Bingley appealed in turn, unsuccessfully; the C.A. dismissed the appeal.

Criminal Law: DUI

R. v. Alex, 2015 BCCA 435 (36771)

The Applicant was convicted for the offence of having care or control of his vehicle with a blood alcohol level in excess of the legal limit, contrary to s. 253 (b) of the Criminal Code  (the “over 80” count). He was also convicted of driving while prohibited, but not appealed that conviction. There was some uncertainty whether the trial judge found objective and subjective grounds for the officer’s suspicion. The summary appeal judge was unable to determine whether there had been a reasonable suspicion and did not reach a firm conclusion on whether the officer subjectively believed there were grounds to suspect impaired driving. Both the trial judge and summary appeal judge concluded, however, that R. v. Rilling, [1976] 2 S.C.R. 183 applied to make the breathalyzer certificate admissible in the absence of a challenge under s. 8 of the Charter. The C.A. dismissed the appeal on the basis that the Rilling decision remains good law in Canada.

Criminal Law: Joint Trials for Criminal Code & Highway Traffic Act Offences

R. v. Sciascia, 2016 ONCA 411 (37155)

Mr. Sciascia, was tried simultaneously for summary conviction criminal offences and provincial offences. On appeal, he argued the court did not have the authority to try the offences at the same time. The summary conviction appeal court judge dismissed the appeals on the basis the trial judge had the jurisdiction in both matters, the rules of procedure in both trials would essentially have been the same, and Mr. Sciascia was not prejudiced by any differences in the applicable rules of evidence. She also held the decision R. v. Clunas supports a more efficient and effective trial process unencumbered by artificial rules that serve no useful purpose and rest on no sound principle. The C.A. found it was an error for the joint trial to have occurred. It dismissed the appeal, however, on the basis that the jurisdictional error could be cured by s. 686(1) (b)(iv) of the Code.

Criminal/Military Law: Prosecutorial Independence

R. v. Gagnon, 2015 CMAC 2 (36844)

The two Respondents, who were members of the Canadian Forces, were charged with sexual assault in two separate cases and were successful at trial. When the Applicant appealed the verdicts, the Respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence. The Court Martial Appeal Court held s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The Respondents’ motions were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.

Criminal Law: Mr. Big

R. v. B., 2015 BCCA 195 (36537)

What is the appropriate contextual analysis to assess threshold reliability for a Mr. Big undercover operation.

Criminal Law: Parole

Attorney General of Canada, Parole Board of Canada v. Way, 2015 QCCA 1576 (36746)

In 2012, the Parliament of Canada enacted the Jobs, Growth and Long term Prosperity Act. Section 527 amended s. 140 of the Corrections and Conditional Release Act (“Act”). The effect of the amendment was to eliminate the mandatory oral hearing held by the Parole Board du Canada for reviews following the suspension, termination or revocation of parole or statutory release. The new s. 140(1)(d) of the Act limits the right to such a hearing to cases in which parole is cancelled. However, the Board has the discretion to conduct a review by way of an in person hearing in any case not referred to in s. 140(1). Before the amendment in question came into force, s. 140(1)(d) provided for a mandatory hearing where parole was suspended, terminated or revoked unless the offender waived the right to a hearing in writing or refused to attend the hearing. The Board revoked the day parole of Benoît Way and the parole of Maxime Gariépy (“Respondents”). In both cases, the decisions were made on consideration of the file and written representations, without holding a hearing. The Respondents filed applications for habeas corpus with the Superior Court and sought a declaratory judgment based, inter alia, on s. 7 of the Charter. Quebec Superior Court: motion allowed, s. 527 of Jobs, Growth and Long term Prosperity Act and s. 140(1)(d) of Corrections and Conditional Release Act declared of no force or effect. C.A.: appeal dismissed.

Criminal Law: Release Pending Appeal

Oland v. R., 2016 NBCA 15 (36986)

The Applicant, Mr. Oland, was tried for the second degree murder by a judge sitting with a jury. He was convicted and sentenced to life without eligibility for parole for 10 years. Mr. Oland filed a Notice of Appeal against his conviction in the N.B. C.A. on January 20, 2016. On that same date, he filed a motion for release pending appeal. The motion was dismissed by Richard J.A. and later, a three-member panel of the C.A. confirmed. The appeal against conviction is scheduled to be heard (before the N.B. C.A.), beginning October 18, 2016.  In the meantime, The Applicant applied to the S.C.C. for leave to appeal the release pending appeal decision only.

Criminal Law: Search & Seizure

R. Paterson, 2015 BCCA 205 (36472)

Mr. Paterson was convicted of nine offences: two counts of possession of illicit drugs, three counts of possession of illicit drugs for the purpose of trafficking and four counts of unlawful possession of firearms. He was sentenced to four-and-a half years. At trial, a Charter voir dire was held to address Mr. Paterson’s objection to the admission of the evidence seized by police as a result of their entry into and search of his apartment. The trial judge dismissed the application to exclude evidence.  On appeal, the C.A. found no reason to interfere with the findings of the trial judge, and dismissed the appeal.

Criminal Law/Securities: Trial by Jury

R. v. Peers, 2015 ABCA 407 (36865)

Jeremy Peers was charged with thirty-three offences under s. 194 of the Alberta Securities Act, including unregistered trading in securities, non-compliance with prospectus disclosure obligations, misrepresentation, and fraudulent use of investor funds. Robert Peers faced one count of investor fraud. Section 194 provided that a person who found guilty of an offence can be held liable to a fine of not more than $5M, or imprisonment not more than 5 years less a day, or both. Summary proceedings were commenced by way of Information brought in Provincial Court and Jeremy Peers sought a determination that 11 (f) of the Charter was engaged. He asked the court to quash the Information or stay the proceedings. The provincial court judge held the Applicant was entitled to trial by a jury and transferred the proceeding to the Court of Queen’s Bench. That Court allowed the appeal and transferred the matter back to the Provincial Court. C.A. appeal dismissed.

Criminal Law/Securities: Trial by Jury

R. v. Aitkens, 2015 ABCA 407 (36866)

Similar summary to that immediately above.

Criminal Law: Status of Tipline Callers

Durham Regional Crime Stoppers Inc. v. R., 2016 ONSC (37052)

There is a publication ban in this case, as well as a sealing order in the context of whether tipline callers are entitled to informer privilege. The S.C.C. also ordered other safeguarding procedures, including redaction.

Criminal Law: Telewarrant Validity

R. v. Clark, 2015 BCCA 488 (36813)

An R.C.M.P. officer obtained a telewarrant to investigate theft of electricity at a residence near Kelowna, British Columbia. During the execution of that warrant the police discovered not only an electrical by-pass, but a large marihuana grow-op. The Applicant, who was inside the residence when the police arrived, was charged with production of marihuana, possession of marihuana for the purposes, and theft of electricity. In his ruling, the trial judge found the telewarrant invalid because the judicial justice assisted the officer in preparing his information to obtain. The judge went on to hold that because the telewarrant was invalid its execution infringed the Applicant’s s. 8 Charter right to be secure against unreasonable search and seizure and that the admission into evidence of the drugs and other items seized by the police would bring the administration of justice into disrepute. The B.C.C.A. held that the telewarrant was properly issued, and the trial judge’s decision to exclude the evidence tendered by the Crown could not stand, and ordered a new trial.

Criminal Law: Text Messaging Production Orders

R. v. Jones, 2016 ONCA 543 (37194)

When can historical text messaging information be made available pursuant to a s. 487.012 production order.

Extradition

India v. Badesha, 2016 BCCA 88 (36981)

The Respondents are the uncle and mother, respectively, of the victim. They are alleged to have planned a long-distance “honour killing” in India from Canada because the victim had married a man whom the Respondents considered unsuitable. The Respondents are alleged to have resorted to hostility, violence and threats, failing which they hired hitmen who tracked the couple down in the state of Punjab, killed the victim and severely beat the victim’s husband.  Indian authorities charged several Indian nationals connected to the murder, three of whom have been convicted, as well as the Respondents. India sought the Respondents’ extradition for prosecution on the offence of conspiracy to commit murder. The Respondents were committed for extradition, and the Minister proceeded to issue a surrender order. The Respondents, who have health issues that require medical care in custody, placed before the Minister the record of human rights violations in India’s prison system. The Minister issued a surrender order conditional on receipt of formal assurances from India, including assurances regarding death penalty, fair trial and the Respondents’ health and safety in Indian custody.  B.C.C.A.: judicial review allowed.

Human Rights: Discrimination; Drug ‘Disability’

Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (36636)

A worker was terminated from his employment with Elk Valley Coal Corporation when he tested positive for cocaine after a loader truck he was operating struck another truck. He had previously attended a training session and acknowledged his understanding of the employer’s policy of allowing workers with a dependency or addiction to seek rehabilitation without fear of termination, provided they sought assistance before an accident occurred. The worker admitted to regular use of cocaine on his days off but didn’t think he had a drug problem prior to the accident and testing. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability. The tribunal concluded while the complainant’s drug addiction was a disability protected under the legislation, there had been no prima facie discrimination. The worker was not fired because of his disability, but because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held the employer had shown accommodation to the point of undue hardship. The Court of Queen’s Bench of Alberta dismissed the appeal from the tribunal decision but disagreed with the alternative conclusion that the worker had been reasonably accommodated. The C.A. dismissed the appeal and allowed the cross-appeal.

Human Rights: Tribunal Jurisdiction; Discrimination

Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 (37041)

The Applicant Mr. Sheikhzadeh-Mashgoul (“Mr. Mashgoul”) was a civil engineer who represented a consulting engineering firm on a road improvement project. In that capacity, he supervised work of a construction company where the Respondent Mr. Schrenk worked as foreman. While working on the project, Mr. Schrenk made derogatory statements to Mr. Mashgoul and others with respect to Mr. Mashgoul’s place of origin, religion and sexual orientation and sent him derogatory emails. Mr. Mashgoul’s employer complained to Mr. Schrenk’s employer, and Mr. Schrenk’s employment was terminated.  Mr. Mashgoul filed a complaint with the British Columbia Human Rights Tribunal alleging discrimination with respect to employment by Mr. Schrenk. He also alleged the conduct was permitted or tolerated by Mr. Schrenk’s employer and the owner of the project.  Mr. Schrenk and his employer brought an application to dismiss the complaint pursuant to s. 27(1) of the Code on the basis the complaint was not within the jurisdiction of the Tribunal. Mr. Schrenk submitted the alleged conduct did not constitute “discrimination in employment” within the meaning of s.13 (1) of the Code because of the limited nexus between the conduct and employment. B.C. Human Rights Tribunal: application to dismiss complaint for want of jurisdiction dismissed, declaration that tribunal has jurisdiction. B.C.S.C.: petition for judicial review dismissed. B.C.C.A.: appeal allowed, complaint dismissed.

Immigration: Inadmissibility For “Serious Criminality”

Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 (36784)

Mr. Tran, a permanent resident in Canada, was convicted for operating a large marihuana grow op. with others and theft of electricity. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, permanent residents are inadmissible to Canada for “serious criminality” if they have been “convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed”. The maximum sentence for the marihuana offence was 7 years at the time of the offence but 14 years at the time of Mr. Tran’s conviction. Mr. Tran was given a 12-month conditional sentence order. A delegate of the Minister of Public Safety Canada referred Mr. Tran to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing to determine whether to order his removal from Canada for serious criminality. Federal Court: application for judicial review granted. Fed. C.A.: appeal dismissed.

Insurance in Québec: Criminal Exclusion Clauses

Desjardins Sécurité financière, compagnie d’assurance-vie v. Émond, 2016 QCCA 161 (36919)

The Applicant issued an accident insurance contract in the name of the late Sébastien Foisy, which provided, inter alia, for the payment of $56,000 if he died as a result of an accident. The estate, namely his legal heirs, was the beneficiary of payment. The day after the insurance contract was issued, Sébastien Foisy was intercepted by police riding his motorcycle alone at a speed exceeding the speed limit. After a high speed chase over about 20 kilometres in residential and rural areas, which ultimately ended with his death. During the chase, the police officer lost control of his vehicle in the same place where Sébastien Foisy himself already lost control of his motorcycle. The police car left the road and hit him, who was then cared for by paramedics, who took him to the hospital, where he died less than an hour later.  The accident insurance contract contained an exclusion clause stating that there was no entitlement to payment under the contract [translation] “if the accident occurs while the insured is participating in any indictable offence or any act related thereto”. The Applicant relied on that clause to support its refusal to pay. Court of Québec: action allowed. C.A.: appeal dismissed.

Labour Law: Collective Bargaining

B.C. Teachers’ Federation v. Her Majesty the Queen in Right of the Province of B.C., 2015 BCCA 184 (36500)

Are two statutes dealing with collective agreements for public sector workers in the field of education unconstitutional as infringing s. 2 (d) of the Charter.

Labour Law: Federal Justice Lawyers

Canada (Attorney General) v. Association of Justice Counsel, 2016 FCA 92 (37014)

Since the early 1990s the Immigration Law Directorate of the Quebec Regional Office of the Department of Justice Canada, required its counsel to perform standby duty, generally from 5:00 to 9:00 p.m. on weekdays and from 9:00 a.m. to 9:00 p.m. on weekends, to respond to or present stay applications in the Federal Court. Before April 1, 2010, standby duty was voluntary for counsel, who were compensated through management leave based on the number of days spent on standby, regardless of whether there was an emergency. Starting on April 1, 2010, DoJ informed its employees they would no longer be compensated for their standby hours. They would be paid in cash or compensatory time off only for the hours they worked in the evenings and on weekends. In response to that announcement, counsel stopped volunteering. DoJ’s reaction was to require all counsel be available for standby duty an average of one to three times a year, on a rotational basis, with authorization to arrange for replacements with one another. On May 18, 2010, the Applicant, the Association of Justice Counsel, filed a policy grievance challenging the new directive requiring standby duty outside normal work hours.  Public Service Labour Relations Board: grievance filed against directive adopted by Immigration Law Directorate of Quebec Regional Office of Department of Justice Canada allowed. Federal C.A.: application for judicial review allowed; adjudicator’s decision set aside; grievance returned to new adjudicator.

Labour Law in Québec: Freedom of Association; Essential Services

Lajeunesse et al. v. 9069-4654 Québec Inc. et al., 2015 QCCA (37320)

This Leave relates to the strike of Les avocats et notaires de l’État québécois (“LANEQ”), which began on October 24, 2016. On October 23, 2016, the day before the strike began, the Administrative Labour Tribunal (Essential Services Division) (“ALT”) issued a decision determining which essential services LANEQ’s members must maintain during the strike. The services determined by the ALT to be essential included applications for postponement, in respect of which the following appears in an appendix to the decision: [translation] “A lawyer who is responsible for a case scheduled for a strike day must apply for a postponement and must conduct the hearing should the court dismiss the application for postponement”. LANEQ then filed an application for judicial review of the ALT’s decision on the ground, among others, the ALT had [translation] “failed to analyze the requested essential services in relation to the decision of the Supreme Court of Canada [in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245]”.  The applicant lawyers, Pierre-Michel Lajeunesse and Annick Marcoux, who were members of LANEQ, were counsel for the Commission de la santé et de la sécurité du travail (now the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”)) in a case concerning the CNESST’s financing system. In that case, the Quebec Superior Court dismissed an application for judicial review of a decision of the Commission des lésions professionnelles. The case was appealed to the Quebec Court of Appeal, and the hearing of the appeal was scheduled for December 6, 2016. On November 8, 2016, the applicant lawyers applied to Justice Dutil, who chaired the panel of the Court of Appeal that was responsible for the case, to postpone the hearing until December 6, 2016 in light of their right to strike: application to postpone hearing in Québec Court of Appeal denied on the basis that [translation] “[t]he Chief Justice of Québec considers that the hearings of the Court of Appeal are an essential service”.

Labour Law: Pay Equity

Centrale des syndicats du Québec v. Québec (Procureure générale), 2016 QCCA 424 (37002)

The Applicants, the Centrale des syndicats du Québec et al., primarily represented employees working in childcare centres, most of whom were employed as day care educators and sign language interpreters. Under the Pay Equity Act (P.E.A.) those enterprises had no predominantly male job class (“PMJC”), or in other words, no male comparator, for the purposes of women’s right to pay equity. Under s. 37 P.E.A., enterprises with a PMJC had until December 21, 2001, or four years after the coming into force of the Act, to complete their pay equity plan and start paying the resulting compensation adjustments. However, s. 38 of the P.E.A. required enterprises with no male comparator to complete the exercise within a maximum of two years after the coming into force of a regulation on the subject, with no effect retroactive to December 21, 2001. The Applicants argued that s. 38 of the P.E.A. and time gap created discrimination contrary to s. 15(1) of the Charter. Québec Superior Court: motions to institute proceedings dismissed. C.A.: appeal dismissed.

Municipal Law/Police/Torts in Québec: Police Liability

Dorval v. City of Montréal, 2015 QCCA 1607 (36752)

The Respondents were members of the family of Maria Altagracia Dorval, who was murdered by her former spouse in October 2010. In October 2013, they filed a motion to institute proceedings claiming damages from the City of Montréal based on the inaction of its police force and the police officers of whom it was the principal, which had led to Ms. Dorval’s death. They claimed damages on behalf of the late Ms. Dorval’s estate for suffering, pain and inconvenience because of constant harassment by her former spouse and police inaction, and personally for solatium doloris, funeral expenses and loss of emotional support. The City of Montréal filed a motion to dismiss, alleging the direct personal action in damages brought by the immediate or indirect victims as a result of the death was prescribed by s. 586 of the Cities and Towns Act. Québec Superior Court: motion to dismiss allowed. C.A.: appeal allowed, motion to dismiss dismissed.

Patents: ‘Inutility’

AstraZeneca Canada Inc. v. Apotex Inc., 2015 FCA 158 (36654)

There is a sealing order in this case, in the context of patent invalidity for ‘inutility’.

Professions in Québec: Fees

Pellerin Savitz, LLP v. Guindon, 2016 QCCA 138 (36915)

The Respondent Serge Guindon retained the professional services of the Applicant law firm, Pellerin Savitz LLP, to defend him in litigation before the Superior Court. During the performance of the mandate, the Applicant sent the Respondent five accounts for fees between October 5, 2011 and March 1, 2012. None of the accounts was paid. On March 21, 2012, the Respondent informed the Applicant he was withdrawing the mandate. On March 10, 2015, the Applicant brought an action against the Respondent to recover claims for unpaid fees. The Respondent asked the action be dismissed because the claims arising from the unpaid accounts for professional fees were prescribed. Court of Québec: action dismissed. C.A.: appeal allowed for sole purpose of ordering payment of balance.

Professions in Québec: Individual or Association Appeal Rights

Attorney General of Québec v. Guérin, 2015 QCCA 1726 (36775)

The Attorney General of Quebec applied for leave to appeal the judgment rendered by the C.A. on October 21, 2015 dismissing the appeal from the judgment rendered on December 18, 2013 by the Superior Court, which allowed the motion for judicial review brought by the Respondent, Dr. Ronald Guérin. Specifically, the Superior Court reversed the decision made by the council of arbitration on January 29, 2013 and found the council had jurisdiction to decide the dispute submitted by the Respondent on January 30, 2012. The Respondent had asked the council of arbitration to declare the clinics he represented met the necessary conditions for obtaining a special fee. The issue was whether a medical specialist, as an individual, may submit that dispute to the council of arbitration established by s. 54 of the Health Insurance Act or whether only the medical specialist’s representative association, the Fédération des médecins spécialistes du Québec, has the interest required. Quebec Superior Court: Respondent’s motion for judicial review allowed. C.A.: Attorney General’s appeal allowed.

Professions in Québec: Legal Documents by Non-Lawyers

Québec (Procureure générale) v. E.D., 2016 QCCA 536 (37034)

Before the social affairs division of the Administrative Tribunal of Québec (“ATQ”), in proceedings between the Minister of Employment and Social Solidarity (“Minister”) and individuals (the Respondents) dealing with the granting of social assistance, the Minister filed motions for review with the ATQ that had been prepared, drawn up, signed and filed by an official of the Ministère de l’Emploi et de la Solidarité sociale. The Respondents concerned, who were represented by counsel, filed motions to dismiss those proceedings on the ground they had not been drawn up by a member of the Barreau du Québec. Administrative Tribunal of Québec (social affairs division): motions to dismiss dismissed. Quebec Superior Court: judicial review allowed. C.A.: appeal allowed.

Real Property: Adverse Possession

Mowatt v. B.C. (Attorney General), 2016 BCCA 113 (36999)

Mrs. Mary Geraldine Mowatt and Mr. Earl Wayne Mowatt, the Respondents, lived at properties bearing the civil addresses 1112 and 1114 Beatty St. in the City of Nelson, B.C. They claimed to have purchased both lots at the same time in 1992 from the former owner, Ms. Marquis. The Applicant, the City of Nelson, however, took the view the lot bearing the civil address 1114 Beatty St. is a municipal road allowance and contends it was escheated to the Crown after the dissolution of the land company that had owned it pursuant s. 3A of the Escheat Act as amended in 1930-31. In the past, the City had directed Mrs. and Mr. Mowatt, and the former owner, to remove their buildings from the lot because it was City land. In order to clarify their title to the land, Mrs. and Mr. Mowatt took a petition seeking a judicial investigation of the disputed lot under the Land Title Inquiry Act a declaration they were the owners of the lot in fee simple in possession and an order they had established good, safe-holding and marketable title in fee simple. B.C.S.C.: declaration of title dismissed; summary trial application granted. B.C.C.A.: appeal on petition granted; appeal on summary trial application granted.

Real Property in Québec: Acquisitive Prescription

Ostiguy v. Allie, 2015 QCCA 1368 (36694)

The Applicants Mr. Ostiguy and Ms. Savard purchased a mountainside chalet on Mont Brome in Bromont, Quebec. A few months after they arrived, they noticed that their parking space, which could hold up to four cars, was being used by the Respondent Ms. Allie’s son. They gave him formal notice to stop using their parking space. Since he continued to do so, the Applicants applied to the Superior Court for a permanent injunction to assert the registration of their title of ownership in the register of land rights against the Respondent. By cross demand, the Respondent claimed ownership of half of the Applicants’ parking space by acquisitive prescription under the Civil Code of Québec. Quebec Superior Court: motion to institute proceedings dismissed and cross demand allowed in part. C.A.: appeal dismissed.

Torts/Professions/Class Actions: Auditors’ Liability

Livent Inc. v. Deloitte & Touche, 2016 ONCA 11 (36875)

Livent Inc. was a publicly traded company. In 1998, new management discovered serious accounting irregularities in its financial records and restated its revenues and expenses. Trading in Livent shares was suspended. Livent’s founders were convicted of fraud. Class actions were commenced against Livent. Livent was placed into receivership. Deloitte & Touche, now Deloitte LLP, was Livent’s auditor between 1989 and 1998. Deloitte prepared year-end financial statements and financial statements for seven share offerings and private placements. In 2001, Livent, through its receiver, commenced an action against Deloitte alleging its audits between 1992 and 1998 did not meet generally accepted auditing standards. Livent alleged Deloitte was negligent in failing to detect the fraud and Deloitte’s negligence caused it to realize a value on its assets upon liquidation less than it would have realised had Deloitte discovered and disclosed the fraud. The trial judge found Deloitte negligent in respect to some of its audits and awarded Livent $84,750,000 in damages. The C.A. dismissed an appeal and a cross-appeal.

Torts: Proving Psychological Injury

Saadati v. Moorhead, 2015 BCCA 393 (36703)

Between 2003 and 2009, Mr. Saadati was involved in five MVA’s, sustaining various injuries. He was declared mentally incompetent in 2010. This litigation arose out of the second accident whereby Mr. Saadati’s tractor-truck was hit by a Hummer driven by the Respondent Mr. Moorhead. Mr. Saadati started this action after the third accident. He sought non-pecuniary damages and past wage loss. The Respondents admitted liability for the accident, but opposed the claim for damages.  The evidence at trial focused on the injuries suffered in the second accident and the effect the third accident had on those injuries. Mr. Saadati was unavailable to testify at trial. The trial judge rejected Mr. Saadati’s claim for a physical injury arising from the accident. The trial judge also found Mr. Saadati had not established a psychological injury, based on the evidence of his expert psychiatrist. The trial judge, however, found the testimony of Mr. Saadati’s family and friends had established a psychological injury. B.C.S.C.: action allowed in part, $100,000 awarded in non-pecuniary damages. B.C.C.A.: appeal from award of damages allowed.

Wills & Estates: Undue Influence; Resulting Trusts; Proprietary Estoppel

Cowper-Smith v. Morgan, 2016 BCCA 200 (37120)

The late Elizabeth Cowper-Smith, who died in 2010 at the age of 86, was survived by her two sons, Max and Nathan and her daughter, Gloria. Her two major assets were her residence in Victoria and investments. She relied on Gloria and her brother-in-law to manage her financial affairs. In 2001, after receiving legal advice, Elizabeth executed a title transfer and Declaration of Trust, effectively providing her home and investments would become Gloria’s property “absolutely” upon her death, leaving her estate devoid of any significant assets. In 2002, Elizabeth executed a will, leaving one-third of her estate to each of her children. In 2007, Gloria convinced Max to leave his home and life in England to care for Elizabeth on a full-time basis in her home. Gloria in turn, agreed she would allow Max to purchase her one third interest in the house after Elizabeth’s death. Upon learning Gloria was a joint owner on title, Max and Nathan expressed concerns about the property transfer but were reassured by Gloria this was done simply to provide her with greater ease in the management of their mother’s affairs and eventually her estate. After Elizabeth’s death, however, Gloria maintained the residence and investments were hers absolutely. Max and Nathan brought an action against Gloria for declarations the assets held by Gloria were subject to a trust in favour of the estate. Max also sought a declaration that on the basis of proprietary estoppel, he was entitled to purchase Gloria’s interest in the house. B.C.S.C.: Applicant’s action for declaration of trust over assets held by Respondent, to be distributed in equal shares in accordance with Testatrix’s will, granted; Applicant entitled to purchase Respondent’s interest in Testatrix’s home on basis of proprietary estoppel. B.C.C.A.: Respondent’s appeal allowed in part; Applicant not entitled to purchase Respondent’s interest in property from estate.

Workers Comp in Québec: Duty to Accommodate

Commission de la santé et de la sécurité au travail v. Caron, 2015 QCCA 1048 (36605)

The Respondent, Alain Caron, developed a case of epicondylitis in the course of his work as an instructor at the Centre Miriam (the “employer”). He was given a temporary reassignment which the employer terminated three years later. The Respondent has not returned to work at the Centre Miriam since then. A year after the Respondent suffered his employment injury, the CSST declared this injury had consolidated with permanent impairment and functional disabilities, and the CSST then began a rehabilitation process to assess whether the Respondent could continue working for his employer. It eventually declared that the Respondent was fit to return to the position he had held before his injury, but the employer successfully challenged that decision before the CLP. The CSST, having been informed by the employer that it had no suitable employment to offer, then decided the rehabilitation process would continue and his occupational opportunities would be re-evaluated on the basis that the employer had no suitable employment to offer. The Respondent’s union asked the CSST to reconsider that decision, arguing the functional limitations resulting from the employment injury at issue made the Respondent a person with a handicap within the meaning of section 10 of the Québec Charter, he could not be discriminated against because of this handicap and that, in looking for suitable employment, the employer had to make every effort to facilitate his return to work without, however, imposing undue hardship on him. The CSST concluded the principle of reasonable accommodation could not be applied to disputes under the A.I.A.O.D. because the provisions of that statute are accommodation measures specific to employment injuries. The Respondent challenged the CSST’s decision before the CLP, which confirmed the CSST’s decision and therefore dismissed the Respondent’s application to subject the employer to a duty of accommodation under the Charter. Québec Superior Court: judicial review allowed. C.A.: appeal dismissed.

Posted: Wednesday, December 28, 2016