Year in Review

Supreme Court of Canada 2017 Year-in-Review

This special year-end review is a complete legal snapshot of all the law from the SCC in 2017, and includes:

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

For Leaves to Appeal granted, a hyperlink to the C.A. being appealed is also included.

Appeals

Aboriginal Law: Document Retention/Destruction

Canada (Attorney General) v. Fontaine, 2017 SCC 47 (37037)

The Indian Residential Schools Settlement records can be destroyed.  The interpretation of the Agreement is a question of mixed fact and law reviewable for palpable and overriding error. Contractual interpretation generally involves questions of mixed fact and law subject to appellate deference, though this rule is not absolute. The general rule stated in Sattva applies here, such that the palpable and overriding error standard governs appellate review of the supervising judge’s interpretation.

Aboriginal Law: Duty to Consult

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (36776)

As explained in Clyde River, the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult.  The NEB’s written reasons (in this case) were sufficient to satisfy the Crown’s obligation.  Unlike the NEB’s reasons in Clyde River, the discussion of consultation here was not subsumed within an environmental assessment.

Aboriginal Law: Duty to Consult

Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (36692)

The content of the duty [to consult] once triggered, falls along a spectrum ranging from limited to deep consultation, depending upon the strength of the claim, and seriousness of the potential impact; each case must be considered individually; flexibility is required, as the depth of consultation required may change as the process advances and new information comes to light.  While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility. Where the regulatory process does not achieve adequate consultation or accommodation, the Crown must take further measures to meet its duty; this might entail filling any gaps on a case-by-case basis or more systemically through legislative or regulatory amendments, or, it might require making submissions to the regulatory body, requesting reconsideration of a decision, or seeking a postponement in order to carry out further consultation in a separate process before the decision is rendered. The NEB is not the Crown; nor an agent of the Crown, since ‒ as the NEB operates independently of the Crown’s ministers ‒ no relationship of control exists.  But as a statutory body, the NEB acts on behalf of the Crown when making a final decision on a project application. The NEB is the vehicle through which the Crown acts; it does not matter whether the final decision maker on a resource project is Cabinet or the NEB. In either case, the decision constitutes Crown action that may trigger the duty to consult.

Aboriginal Law: Freedom of Religion

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (36664)

The claim here (approval of a ski resort development) does not engage the right to freedom of conscience and religion under s. 2 (a) of the Charter. Section 2 (a) protects the freedom of individuals and groups to hold and manifest religious beliefs. The Ktunaxa’s claim does not fall within the scope of s. 2 (a) because neither the freedom to hold beliefs nor freedom to manifest those beliefs is infringed by approval herein.

Aboriginal Law: Treaty Rights

First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 (36779)

Yukon did not here have the authority to make the extensive changes it made to the Final Recommended Plan, and the trial judge appropriately quashed Yukon’s approval of its plan. The effect this quashing was to return the parties to the stage in the land use plan approval process where Yukon could “approve, reject or modify” the Final Recommended Plan after consultation, as per s. 11.6.3.2 of the Final Agreements (the Court of Appeal erred in returning the parties to an earlier stage in the process). As no further judicial direction was required, the other parts of the trial judge’s order are set aside.

Administrative Law in Québec: Arbitral Jurisdiction; Standard of Review; Standing

Québec (Attorney General) v. Guérin, 2017 SCC 42 (36775)

The council of arbitration here decided that Dr. Guérin’s objection could not give rise to an arbitrable dispute under the Act and Framework Agreement and that, in any event, only the Fédération  has standing. The council’s award is restored: it was reasonable for the council to conclude that, under the Framework Agreement, the Protocol and the Act, Dr. Guérin’s proceeding did not raise an arbitrable dispute, because the Fédération and the Ministère had reserved for themselves the full discretion to designate the medical imaging laboratories that would be eligible to receive the digitization fee; and also reasonable for them to conclude that, in any event, Dr. Guérin did not have standing.  Physicians who feel aggrieved are not without recourse: sue the organization representing them if it has breached its duty of fair representation.  The courts below were right to apply the reasonableness standard: when an arbitrator interprets his or her enabling legislation to determine whether a dispute is arbitrable, applying the reasonableness standard undermines neither the rule of law nor the other constitutional bases of judicial review.

Banks: Cheque Fraud

Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51 (36918)

All payees of a fraudulent cheque scheme by an employee of Teva were either (1) known customers of Teva’s; or (2) companies whose names could reasonably have been mistaken for its actual customers, such that all payees existed. As a result, the defence in s. 20(5) the Bills of Exchange Act did not apply and the banks are liable for conversion.

Civil Procedure/Class Actions: Discovery; Disclosure

Canada (Attorney General) v. Thouin, 2017 SCC 46 (36869)

Provincial rules on discovery do not apply to the Crown in proceedings where it’s not a party. Without a clear and unequivocal expression of legislative intent, it’s not open to the courts to depart from a recognized common law rule in this regard.

Civil Procedure/International Law: Forum Selection Clauses

Douez v. Facebook, Inc., 2017 SCC 33 (36616)

While s. 4 of the B.C.  Privacy Act does not override forum selection clauses, strong reasons not to enforce the clause has been established here: the grossly uneven bargaining power between the parties and the importance of adjudicating quasi-constitutional privacy rights in the province are reasons of public policy that are compelling, and when considered together, are decisive. In addition, the interests of justice, and the comparative inconvenience and expense of litigating in California, all support a finding of strong cause here.

Civil Procedure/Technology: Worldwide Interlocutory Injunctions

Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (36602)

Can Google be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company. Classic interlocutory injunction jurisprudence: is there a serious issue to be tried; would irreparable harm result if the injunction were not granted; and does the balance of convenience favour granting or refusing the injunction. The ultimate question is whether granting the injunction would be just and equitable in all the circumstances of the case.  When a court has in personam jurisdiction, and where necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world.  Because the Internet has no borders, the only way to ensure the interlocutory injunction attained its objective is to have it apply where Google operates — globally. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is free to apply to the B.C. courts to vary the interlocutory order accordingly. This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. The S.C.C. has not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

Contracts/Arbitration/Natural Resources: Standard of Review

Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32 (36595)

In B.C. the scope of appellate intervention in commercial arbitration is narrow: there is limited jurisdiction for appellate review of arbitration awards because B.C. is statutorily limited to questions of law (Arbitration Act, s. 31); even where such jurisdiction exists, the S.C.C. held that a deferential standard of review — reasonableness — “almost always” applies to arbitration awards (Sattva Capital v. Creston Moly Corp., [2014] 2 S.C.R. 633, at paras. 75, 104 and 106).

Constitutional/Administrative Law: Charter Damages; Judicial Review

Ernst v. Alberta Energy Regulator, 2017 SCC 1 (36167)

The claim for Charter damages is struck. Whether Charter damages could be an appropriate remedy concerns how to strike an appropriate balance to best protect two important pillars of our democracy: constitutional rights and effective government.  Charter damages may vindicate Charter rights, provide compensation and deter future violations, but may also inhibit effective government, and remedies other than damages may provide substantial redress for claimants without having broader adverse impact.

Contracts in Québec: Renewal Clauses

Uniprix Inc. v. Gestion Gosselin & Bérubé Inc., 2017 SCC 43 (36718)

No matter what approach is taken in analyzing the situation, the trial judge made no palpable and overriding error in concluding the contract of affiliation here is for a fixed term and that, under clause 10, the member pharmacists have a unilateral option to renew every five years, and Uniprix is unable to oppose such a renewal. Because the contract is not for an indeterminate term, Uniprix may not resiliate it on reasonable notice, and art. 1512 C.C.Q. cannot be applied to fix a term.  Nothing in the Code prohibits contracts such as the contract of affiliation from having effects that could be perpetual; nor is there any basis for concluding such contracts are contrary to public order.

Corporations: Oppression Remedy

Wilson v. Alharayeri, 2017 SCC 39 (36689)

Section 241(3) of the C.B.C.A. allows a court to “make any interim or final order it thinks fit” to rectify matters complained of in an action for corporate oppression, and this includes finding a director personally liable.

Criminal Law: Bail

R. v. Antic, 2017 SCC 27 (36783)

The “ladder principle”, codified in s. 515(3) of the Code, requires imposition of the least onerous form of release unless the Crown shows why that should not be. Principles and guidelines for bail in a contested hearing:

  • Accuseds are constitutionally presumed innocent; corollary to the presumption of innocence is the constitutional right to bail.
  • Section 11 (e) guarantees both right not to be denied bail without just cause and right to bail on reasonable terms.
  • Save for exceptions, unconditional release on an undertaking is the default position when granting release: s. 515(1).
  • The ladder principle articulates the manner in which alternative forms of release are to be imposed; “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”, Anoussis, at para. 23; this principle must be adhered to strictly.
  • If the Crown proposes an alternative form of release, they must show why this is necessary; more restrictive the form of release, greater the burden on the accused; thus, one cannot impose a more restrictive form unless Crown has shown it to be necessary having regard to the statutory criteria for detention.
  • Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release; where parties disagree on form of release, it is an error of law to order a more restrictive form of release without justifying the decision to reject less onerous forms.
  • A recognizance with sureties one of the most onerous forms of release and should not be imposed unless all less onerous forms of release have been considered and rejected as inappropriate.
  • Not necessary to impose cash bail if accuseds or their sureties have reasonably recoverable assets and able to pledge those assets to the court’s satisfaction; a recognizance is functionally equivalent to cash bail and has same coercive effect; thus, under s. 515(2)(d) or 515(2)(e), cash bail is to be relied on only in exceptional circumstances where release on a recognizance with sureties is unavailable.
  • When exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order; as corollary there is a positive obligation, when setting the amount, to inquire into the ability of the accused to pay; the amount of cash bail must be proportionate to the means of the accused and the circumstances of the case.
  • Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure accused can be released, and not be imposed to change an accused’s behaviour or to punish.
  • Where a bail review is applied for, the court must follow the process set out in St-Cloud.

Where the Crown and accused negotiate a plan of release and present on consent, principles and guidelines outlined above do not strictly apply. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have discretion to reject. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.

Criminal Law: Bail Pending Appeal

R. v. Oland, 2017 SCC 17 (36986)

Detaining Mr. Oland on the public interest criterion was clearly unwarranted in the circumstances. Appellate judges will draw on their legal expertise and experience in evaluating factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. When conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public  ̶  someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. Public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.  There is no precise formula that can be applied to resolve the balance between enforceability and reviewability; a qualitative and contextual assessment is required. A panel reviewing a decision of a single judge under s. 680(1) is to be guided by three principles: absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact; the review panel may intervene and substitute its decision for that of the judge where it is satisfied the judge erred in law or in principle, and the error was material to the outcome; in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes  the decision was clearly unwarranted.

Criminal Law: Confessions; Warrantless Entry

R. v. Paterson, 2017 SCC 15 (36472)

The confessions rule has no application here. The police entry into the residence was not justified by exigent circumstances making it impracticable to obtain a warrant. The evidence obtained therefrom is excluded under s. 24(2).  It is unnecessary to decide whether a late and incomplete report could itself be a ground for a finding of an infringement of s. 8, and whether there was in fact such a breach.

Criminal Law: Dangerous Offenders; Indeterminate Sentencing

R. v. Boutilier, 2017 SCC 64 (37168)

Four issues:

A. Does s. 753(1) preclude sentencing judges from considering future treatment prospects before designating an offender as dangerous? If so, is this section overbroad under s. 7?

No. Consideration of future treatment prospects has always been part of the prospective assessment of risk required by s. 753(1). There is no overbreadth.

B. Does s. 753(4.1) lead to a grossly disproportionate sentence, contrary to s. 12, by presumptively imposing indeterminate detention and preventing sentencing judges from imposing a fit sentence consistent with the principles and objectives of sentencing?

No. It does not create a presumption in favour of indeterminate detention, and sentencing judges must apply the principles and objectives of sentencing to impose a fit sentence.

C. Is s. 753(4.1) overbroad in violation of s. 7 because it applies to offenders that could have been monitored under the long-term offender scheme?

No.

D. Did the sentencing judge here err by sentencing the accused to an indeterminate period of detention?

No.

Criminal Law: Doubling-down on Jordan

R. v. Cody, 2017 SCC 31 (37310)

Every actor in the justice system has a responsibility to ensure criminal proceedings are carried out in a manner consistent with the right to a trial within a reasonable time.  A number of provincial Attorneys General who intervened herein asked to modify the Jordan framework to provide for more flexibility in deducting and justifying delay.  Jordan must be followed, cannot be lightly discarded or overruled ; the framework now governs the s. 11 (b) analysis and, properly applied, already provides sufficient flexibility and accounts for the transitional period of time required for the criminal justice system to adapt.  When considering transitional exceptional circumstances, trial judges should be mindful what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt.

Criminal Law: Drug Impaired

R. v. Bingley, 2017 SCC 12 (36610)

The drug recognition expert can, in this case, testify about their determination under s. 254(3.1) of the Criminal Code without a voir dire to determine expertise.  The determination by the expert is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug; their task is to determine whether the evaluation indicates drug impairment; the expert evidence cannot presume the ultimate issue of guilt; it is “merely one piece of the picture for the judge or jury to consider.”

Criminal Law: DUI

R. v. Alex, 2017 SCC 37 (36771)

It is not necessary to determine whether Rilling (S.C.C. 1976) was correctly decided under the law as it then existed.  When ss. 258(1)(c) and 258(1)(g) are analyzed in accordance with modern principles of statutory interpretation, the Crown need not prove the demand was lawful in order to take advantage of statutory “shortcuts”. If the taking of the samples is subjected to Charter scrutiny, and the evidence of the breath test results found to be inadmissible by virtue of ss. 8 and 24(2), that will end the matter, and resort to the evidentiary shortcuts is a non-issue. But if the taking of the samples is subjected to s. 8 scrutiny, and the breath test results found to be admissible (either because no s. 8 breach occurred or because the evidence survived s. 24(2) scrutiny), the shortcuts remain available to the Crown.

Criminal Law: Hearsay

R. v. Bradshaw, 2017 SCC 35 (36537)

Hearsay may exceptionally be admitted under the principled exception when it meets the criteria of necessity and threshold reliability.

In deciding whether corroborative evidence is of assistance in a substantive reliability inquiry, trial judges should:

  1. Identify the material aspects of the hearsay statement tendered for their truth.
  2. Identify the specific hearsay dangers raised in the particular circumstances of the case.
  3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
  4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Criminal Law/Immigration: “Serious Criminality”

Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 (36784)

The phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence an accused person could have received at the time of the commission of the offence. The maximum sentence that Mr. Tran here could have received at that time was seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”.

Criminal Law: Joint Trials

R. v. Sciascia, 2017 SCC 57 (37155)

Joint trials are both permissible and desirable where the provincial charges and the summary conviction criminal charges share a sufficient factual nexus and it is in the interests of justice to try them together.  At common law, courts have broad discretion to conduct joint trials in the interests of justice. Policy considerations are in favour of this pragmatic approach.  And in the absence of an express statutory prohibition, or clear legislative intent to the contrary, there is no justification to oust this discretion.

Criminal Law: Mistake of Age Defence

R. v. George, 2017 SCC 38 (37372)

It is a criminal offence to sexually touch a child aged 14 or more but younger than 16 when one is five or more years their senior, even if one honestly believes they are older than 16, unless one has taken “all reasonable steps” to ascertain their age; nothing more is required. To suggest that exploitation is a requirement for the offence belies: the scheme of the Criminal Code, which already prohibits sexual exploitation (s. 153 ) and sexual activity where “consent” is procured through abuse of trust, power or authority (s. 273.1(2) (c)); Parliament’s recognition that adult/youth sexual relationships are inherently exploitative. Overt indicia of exploitation may diminish the credibility of an accused’s purported mistaken belief in the complainant’s age, or the reasonableness of the steps taken by that accused, but they are not required for the offence itself.

Criminal Law/Securities: Trial by Jury

R. v. Peers, 2017 SCC 13 (36865), R. v. Aitkens, 2017 SCC 14 (36866)

These are two separate appeals. The S.C.C. gave judgment and identical “reasons” in the following one paragraph by “The Court”: “The appeal is dismissed. We conclude that the appellant was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal, 2015 ABCA 407, 609 A.R. 352.”

Criminal Law: Status of Tipline Callers

R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45 (37052)

This appeal was released on the following publication ban basis: “There is a ban on the publication of evidence, under ss. 517 and 539(1) of the Criminal Code, and an order under s. 648 of the Criminal Code. No information regarding evidence at the show cause hearing and the preliminary inquiry shall be published in any document nor broadcast or transmitted in any way before the trial has ended. No information regarding any portion of the trial at which the jury is not present shall be published in any document nor broadcast or transmitted in any way before the jury retires to consider its verdict. Although the reasons for judgment cannot be posted on our website while these publication bans are in effect, print copies are available from the Registry of the Supreme Court of Canada.”  The S.C.C. (unanimously) dismissed the appeal.

Criminal Law: Text Messages; Production Orders

R. v. Jones, 2017 SCC 60 (37194)

The appeal raised three questions, all answered in the affirmative: at his s. 8 application, was the appellant entitled to rely on the Crown’s theory that he authored texts to establish his subjective expectation of privacy in them; if so, was the appellant’s subjective expectation of privacy objectively reasonable such that he had standing to make a s. 8 claim; did the production order here provide lawful authority for seizing records in the hands of a service provider. An accused mounting an s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. Further, it is objectively reasonable for the sender of a text to expect a service provider maintain privacy over texts stored in its infrastructure.  However, the appellant’s s. 8 rights were not breached here because records of historical texts were lawfully seized by means of a production order under s. 487.012 (now s. 487.014). Production orders: must be carefully circumscribed to ensure authorized police techniques comply with s. 184(1); must not authorize, or potentially authorize, the production of any texts either not yet in existence or are still capable of delivery at the time the order is issued; and this should be clear from the face of the order.

Criminal Law: Text Messages; Reasonable Expectation of Privacy

R. v. Marakah, 2017 SCC 59 (37118)

Depending on the totality of the circumstances, texts sent and received can in some cases be protected under s. 8, though the conclusion a text conversation can, in some circumstances, attract a reasonable expectation of privacy “does not lead inexorably to the conclusion that an exchange of electronic messages will always attract a reasonable expectation of privacy”.  Whether a reasonable expectation of privacy is present in any particular case must be assessed on the facts by the trial judge.

Elections: “Small-Scale” Advertising; s.1 Requirements

B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6 (36495)

B.C.’s Election Act, which requires individuals or organizations wishing to “sponsor election advertising” to register with the province’s Chief Electoral Officer, does not catch small-scale election advertising such as displaying homemade signs in windows, putting bumper stickers on cars, or wearing T-shirts with political messages.  Re s.1, by not leading social science evidence, A.G.B.C. seriously diminished its ability to justify the infringement of a Charter right, but has not eliminated it – “though logic and reason, without assistance, can only go so far, they can go far enough”.

Employment Law/Human Rights: Discrimination

British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (37041)

The discrimination that occurred here was “regarding employment”.  The scope of s. 13(1)(b) of the (B.C. Human Rights) Code is not limited to protecting employees solely from discriminatory harassment by superiors in the workplace; its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context; and may include discrimination by their co-workers, even when those co-workers have a different employer.

Extradition

India v. Badesha, 2017 SCC 44 (36981)

The Minister of Justice received assurances from the Indian government re concerns about health and safety in custody, and concluded there was no substantial risk of torture or mistreatment. The S.C.C. was of the view the Minister’s conclusion was reasonable, and the surrenders were not otherwise unjust or oppressive.

Human Rights: Drug Dependency

Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (36636)

The main issue is whether the employer terminated Mr. Stewart because of his addiction to cocaine (raising a prima facie case of discrimination), or whether the employer terminated for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms (not raising a prima facie case of discrimination). This is essentially a question of fact, for the Tribunal to determine.  After a thorough review of all the evidence, the Tribunal concluded the employer terminated for breach of its Policy. The Tribunal’s conclusion was reasonable.

Insurance in Québec: Third Party Injury

Godbout v. Pagé, 2017 SCC 18 (36385)(36388)

Additional bodily injury suffered by Ms. Godbout and by Mr. Gargantie is an injury “suffered . . . in an accident” within the meaning of the Automobile Insurance Act. They are therefore entitled to the compensation provided for in the Act but not entitled to bring further civil liability proceedings against the respondents in order to obtain additional or complementary compensation.

Insurance: Underinsured Motorist Coverage

Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7 (36575)

The SEF 44 endorsement for excess insurance is a standard form contract that exists in similar terms across the country. Sometimes called Special or Family Protection Endorsements, they indemnify insureds for any shortfall in payment of a judgment for damages against an underinsured tortfeasor, subject to the deductions set out in the endorsement itself.  Any average person applying for this additional insurance coverage would understand a “policy of insurance” to mean an optional, private insurance contract and not a mandatory statutory scheme such as the CPP; so future CPP disability benefits do not reduce the amount payable by the insurer under the endorsement.

Labour Law: Management Rights; s. 7 Liberty Interests

Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55 (37014)

An adjudicator’s decision that a DoJ directive contravened the collective agreement is reasonable, and the order that the employer stop applying the directive is reinstated.  The directive however did not engage the lawyers’ liberty interests under s. 7, and so not engage their constitutional rights.

Pharmaceutical Patents: “Promise of the Patent” Doctrine re Utility

AstraZeneca Canada Inc. v. Apotex Inc., 2017 SCC 36 (36654)

The Promise Doctrine is not the correct approach to determine whether a patent has sufficient utility. To determine whether a patent discloses an invention with sufficient utility under s. 2, courts should: identify the subject-matter of the invention as claimed in the patent; ask whether that subject-matter is useful — is it capable of a practical purpose (i.e. an actual result)?  The Act does not prescribe the degree or quantum of usefulness required, or that every potential use be realized — a “scintilla of utility will do”. A single use related to the nature of the subject-matter is sufficient, and the utility must be established by either demonstration or sound prediction as of the filing date.  The utility requirement serves the purpose of avoiding granting patents prematurely, and thereby limiting potentially useful research and development by others; the case law has imposed a requirement that an invention’s usefulness be demonstrated or soundly predicted at the time of application, rather than at some later point. The application of the utility requirement in s. 2 is to be interpreted in line with its purpose — to prevent the patenting of fanciful, speculative or inoperable inventions.  Even though utility of the subject-matter is a requirement of patent validity, a patentee is not required to disclose the utility of the invention to fulfill the requirements of s. 2.

Professions: Costs Against Lawyers Personally

Québec (Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 (36539)

The courts’ power to award costs against a lawyer personally is not limited to civil proceedings, but criminal cases also, and can sometimes be exercised against defence lawyers, though rare. The power to control abuse of process and the judicial process by awarding costs personally applies together with: courts’ jurisdiction to punish by way of contempt of court and law societies to sanction unethical conduct. Costs against a lawyer personally is justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice.

Professions in Québec: Legal Fees; Prescription

Pellerin Savitz LLP v. Guindon, 2017 SCC 29 (36915)

Under art. 2880 para. 2 of the Civil Code of Québec what is the date on which the law firm’s right to claim its fees arose? Framed this way, the question requires nothing more than a factual determination based on the circumstances of the specific case before the court.  In the circumstances of this appeal, the C.A. below answered the question correctly: having regard to the wording of the fee agreement and the content of the invoices sent by the law firm, prescription began to run on the 31st day after each invoice was sent, not upon termination of the parties’ contractual relationship.

Professions: Non-lawyers

Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56 (37034)

It was reasonable for the Administrative Tribunal of Québec to conclude that, under the Act respecting administrative justice, a person who is not an advocate may, in certain proceedings, do everything needed for the representation of the Minister of Employment before that tribunal’s social affairs division, and this power is not in conflict with the Act respecting the Barreau du Québec.

Professions: Mandatory CLE

Green v. Law Society of Manitoba, 2017 SCC 20 (36583)

If lawyers fail to complete the required hours of mandatory CLE even after having been warned, temporary suspension until those hours are completed is a reasonable way to ensure compliance.  Suspension is administrative, not punitive, in nature.

Real Property/Civil Procedure: Adverse Possession; Inconsistent Use Doctrine; Evidentiary Gaps; Role of Trial Judges v. C.A.; Costs

Nelson (City) v. Mowatt, 2017 SCC 8 (36999)

The inconsistent use requirement forms no part of B.C. law governing the proof of adverse possession. It is not the role of appellate courts to second-guess weight to be assigned to evidence. Absent palpable and overriding error — that is, absent an error “plainly seen” and has affected the result — an appellate court may not upset a fact-finder’s findings of fact.  The standard of palpable and overriding error applies both to the underlying facts relied on by trial judges to draw an inference, and to the inference-drawing process itself.

Real Property in Québec: Acquisitive Prescription

Ostiguy v. Allie, 2017 SCC 22 (36694)

The Code of Québec has not changed the process of acquisitive prescription, which may be set up against the registered owner regardless of when his or her right was registered. This conclusion is based on the legislative history of the provisions at issue and reflects the need for consistency between the relevant books of the Code. Although the primary function of acquisitive prescription is to ensure the stability of property rights by helping true owners prove their rights, it also enables third parties to acquire property by the lapse of time in accordance with the conditions established by law.  On the one hand, acquisitive prescription remains a recognized means of acquiring immovable real rights in Québec civil law and, on the other hand, the publication of rights system provided for in the Code retains the limited role it had under the C.C.L.C.  The effect of these distinct roles is that rights validly acquired by prescription apply regardless of the rights registered in the land register.

Torts/Municipal Law in Québec: Prescriptive Periods

Montréal (City) v. Dorval, 2017 SCC 48 (36752)

There is a conflict between the application of an exceptionally short 6-month prescriptive period for actions against municipalities under the Québec Cities and Towns Act, and the interpretation of art. 2930 C.C.Q., under which the three‑year general law prescriptive period in art. 2925 C.C.Q. applies where an action in damages is “based on the obligation to make reparation for bodily injury caused to another”. When art. 2930 applies, it precludes the application of the six‑month prescriptive period in the Act. Per 2930, any civil liability action to claim reparation for the direct and immediate consequences of interference with a person’s physical integrity must be based on the obligation to make reparation for bodily injury caused to another, and this leads to the conclusion that the action herein is not prescribed.

Torts: Negligence; Negligent Misrepresentation

Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 (36875)

Deloitte is here liable for the increase in Livent’s liquidation deficit which followed the statutory audit. Application of the Anns/Cooper framework, coupled with the basis for auditor liability specifically identified by the S.C.C. in Hercules, means the trial judge’s finding of liability in relation to the negligently prepared statutory audit is upheld.

Torts: Proving Mental Injury

Saadati v. Moorhead, 2017 SCC 28 (36703)

The S.C.C. has never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury; nor would it be desirable for it to do so now. The elements of the cause of action of negligence, together with the threshold in Mustapha v. Culligan of Canada Ltd. [2008] 2 S.C.R. 114, at para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims.

Wills & Estates: Proprietary Estoppel

Cowper-Smith v. Morgan, 2017 SCC 61 (37120)

Unfairness or injustice, sometimes referred to as “unconscionability” (but not in the sense that term is used in contract law), are not stand-alone criteria; they are what proprietary estoppel aims to avoid by keeping someone to their word.  It has commonly been understood in Canada that proprietary estoppel is concerned with interests in land, but one need not decide, in this case, whether proprietary estoppel may attach to an interest in property other than land.  Nor need one determine whether equity more broadly enforces non-contractual promises on which claimants have detrimentally relied. Proprietary estoppel can “prevent the inequity of unrequited detriment where a claimant has reasonably relied on an expectation” that he/she will enjoy a right or benefit over property, even when the party responsible for that expectation does not own an interest in the property at the time of the claimant’s reliance.

Oral Judgments

Civil Procedure: Civil Contempt; Self-Reps

Pintea v. Johns, 2016 ABCA 99; 2017 SCC 23 (37109)

Justice Karakatsanis: “The common law of civil contempt requires that the respondents prove beyond a reasonable doubt that Mr. Pintea had actual knowledge of the Orders for the case management meetings he failed to attend. The case management judge failed to consider whether Mr. Pintea had actual knowledge of two of the three Orders upon which she based her decision. The respondents concede that the requirements of Rule 10.52(3)(a)(iii) of the Alberta Rules of Court, Alta. Reg. 124/2010, were not met with respect to these two Orders. As a result, the finding of contempt cannot stand. We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council. The appeal is allowed, the action is restored and the costs award vacated.”

Criminal Law: Alibi; Similar Fact

R. v. Clifford, 2016 BCCA 336; 2017 SCC 9 (37140)

Justice Abella: “A majority of this Court would dismiss the appeal, substantially for the reasons of Willcock J.A. While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court. Justice Rowe would have allowed the appeal, based on the dissenting reasons of Newbury J.A., as set out in paras. 22-26 of her reasons.”

Criminal Law: DNA Evidence

R. v. Awer, 2016 ABCA 128; 2017 SCC 2 (37021)

Justice Moldaver: “… Because we have concluded that a new trial must be ordered, we need not finally decide whether the impugned evidence of the Crown’s DNA expert as to the source of the complainant’s DNA … was or was not admissible.  If an attempt is made to tender that evidence at the new trial, a voir dire may be required to determine whether it is sufficiently reliable to warrant its reception. It could conceivably amount to circumstantial evidence, derived from the expert’s experience, from which an inference as to the origin of the complainant’s DNA could reasonably be drawn. Alternatively, it might prove to be purely speculative, with little or no scientific foundation. Whatever the case, I note that it differs qualitatively from the impugned evidence in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, where false logic, devoid of any probative force, was used to infer the state of mind of persons transporting large quantities of illicit drugs across the U.S.-Canada border … In our respectful view, the materially different levels of scrutiny to which the evidence of the two experts was subjected – none for the Crown expert and intense for the defence expert – was unwarranted, and it tended to shift the burden of proof onto the appellant. In these circumstances, we feel obliged to quash the conviction and order a new trial.”

Criminal Law: Historical Sexual Offences

R. v. Savard, 2016 QCCA 380; 2017 SCC 21 (36908)
Justice Wagner: “This appeal as of right is based on the dissent of one judge in the Québec Court of Appeal. The appellant was found guilty by Judge Michel Boudreault of the Court of Québec of having committed a number of sexual offences on his nephews and niece dating back to the 1960s. A majority of the judges of this Court agree with the reasons of the majority of the Court of Appeal. Côté J. would have ordered a new trial for the reasons of the dissenting judge in the Court of Appeal. For these reasons, the appeal is dismissed.”

Criminal Law: K.G.B. Statements

R. v. Brown, 2016 ABCA 192; 2017 SCC 10 (37153)

Justice Abella: “In all the circumstances of this case, we are satisfied that Mr. Sahal’s K.G.B. statement was admissible, was reasonably capable of belief, and could reasonably have affected the outcome. The appeal is therefore dismissed.”

Criminal Law: Officially Induced Error of Law

R. v. Bédard2016 QCCA 807; 2017 SCC 4 (37071)

The Chief Justice: “The defence of officially induced error of law is intended to protect a diligent person who first questions a government authority about the interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the interpretation the authority gave him or her. We have serious reservations about the very possibility of a government official raising the defence of officially induced error of law in relation to the performance of his or her duties. This being said, we all agree that the conditions under which this defence is available are not met here: see Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420. In particular, considered objectively, the third and fourth conditions – that the advice obtained came from an appropriate official and that the advice was reasonable – are not satisfied. For these reasons, the appeal is dismissed.”

Criminal Law: Party to an Offence

R. v. Natewayes2015 SKCA 120; 2017 SCC 5 (36793)

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

Criminal Law: Pre-Charge Delay

R. v. Hunt, 2016 NCLA 61; 2017 SCC 25 (37314)

Justice Abella: “A majority of this Court is of the view that the appeal should be allowed substantially for the reasons of Hoegg J.A. Justice Côté would dismiss the appeal substantially for the reasons of the majority in the Court of Appeal.”

Criminal Law: Perjury

Millington v. R., 2016 BCCA 293; 2017 SCC 53 (37235)

Justice Abella: “A majority would dismiss the appeal substantially for the reasons of the Court of Appeal. Justice Côté, dissenting, would have ordered a new trial on the basis that the finding of collusion was unreasonable and tainted the other findings of the trial judge.”

Criminal Law: Perjury

Robinson v. R., 2017 BCCA 6; 2017 SCC 52 (37411)

Justice Abella: “A majority would dismiss the appeal substantially for the reasons of the majority in the Court of Appeal. Justice Côté, dissenting, would order a new trial for substantially the reasons of Willcock J.A.”

Criminal Law: Role of Courts of Appeal

R. v. S.B.,2016 NLCA 20; 2017 SCC 16 (37042)

The Chief Justice: “We would allow the appeal and order a new trial on all the charges, for the reasons of Chief Justice Green.” [C.J. Green was of the view that ‘it is not appropriate for appeal courts to draw their own conclusions re the strength and significance of evidence improperly admitted/excluded’].

Criminal Law: Sexual Assault

R. v. Bourgeois, 2017 ABCA 32; 2017 SCC 49 (37461)

Justice Moldaver: “This appeal comes to us as of right from the Court of Appeal of Alberta. A majority of the court concluded that there was no basis for overturning the appellant’s conviction for sexual assault. Justice Berger, dissenting, held that the verdict was unreasonable pursuant to s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 . We are not persuaded that the trial judge reached his decision by an illogical or irrational reasoning process; nor are we persuaded that his verdict was unreasonable within the meaning of s. 686(1) (a)(i). As a result, we would dismiss the appeal.”

Criminal Law: Sexual Assault

R. v. George, 2016 SKCA 155; 2017 SCC 38 (37372)

Justice Abella: “We are all of the view that the appeal should be allowed and the acquittals restored. Reasons to follow.”

Criminal Law: Sexual Assault Causing Bodily Harm

R. v. Olotu, 2016 SKCA 84; 2017 SCC 11 (37167)

There is a publication ban in this case; the appeal was dismissed “substantially” for the reasons of Jackson J.A., and no Beaudry error occurred here by the trial judge.

Criminal Law: Telewarrants

R. v. Clark, 2015 BCCA 488; 2017 SCC 3 (36813)

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

Insurance in Québec: Exclusions; Police Chases

Desjardins Financial Security Life Assurance Company v. Émond, 2016 QCCA 161; 2017 SCC 19 (36919)

Justice Wagner: “The appellant argues that the broad exclusion clause in the accident insurance contract to the effect that the insurer will pay no benefits if an accident occurred while the insured was participating in an indictable offence may be set up against the heirs of the insured. In this case, the offences of which the insured could have been convicted had he not died are hybrid offences that the Crown may choose to prosecute either as summary conviction offences or as indictable offences. For the reasons given by the Court of Appeal, we are all of the opinion that the exclusion from the insurance policy based on art. 2402 of the Civil Code of Québec may not be set up against the heirs of the insured, as that article must, even in light of s. 34(1) of the federal Interpretation Act, R.S.C. 1985, c. I-21 , be interpreted having regard to the principles of interpretation that apply in the area of insurance law so as to favour the precision and certainty of the grounds for exclusion in such matters. On this basis, art. 2402 of the Civil Code of Québec concerns only indictable offences, those that are punishable exclusively by way of indictment, and not, as in this case, hybrid offences. For these reasons, the appeal is dismissed with costs.”

Labour Law in Québec: Mootness

Lajeunesse (Re), 2017 SCC 24 (37320)

Justice Gascon:  “We all agree that the question before us is moot, as the strike of LANEQ (Les avocats et notaires de l’État québécois) is over. The appeal is therefore dismissed without costs. In doing so, we endorse neither the process followed nor the validity of the considerations identified by the Court of Appeal in its decision.”

Oral Hearing Ordered

Criminal Law: Search & Seizure; Right to Counsel

R. v. Patrick, 2017 BCCA 57 (37514)

In the early morning hours the Applicant and his three other passengers were stopped in a vehicle. The investigating officer believed the group was associated with a local drug house. Insurance inquiries made during the stop led the officer to believe the vehicle had been obtained fraudulently. Backup arrived on the scene. The Applicant and his passengers were asked to exit the vehicle. Upon exiting the vehicle, the officer observed a bulge in the Applicant’s jacket. She asked the Applicant, “Do you have anything on you?” The Applicant responded he had a shotgun. The firearm was seized and the Applicant placed under arrest. The Applicant was not afforded an opportunity to speak with counsel until arriving at the police detachment about 40 minutes after the roadside stop occurred. He was ultimately charged in an eight count indictment with a variety of firearm-related offences. B.C.S.C.: acquittal on all counts. B.C.C.A.: appeal allowed in part and new trial ordered on three counts. “An oral hearing of the application for leave to appeal…is ordered in accordance with s. 43(1.2) of the Supreme Court Act, R.S.C., 1985, c. S-26. The hearing date will be fixed by the Registrar.”

Criminal Law: Search Warrant Disclosure

R. v. McKay, 2016 BCCA 391 (37315)

The Applicant was charged with possession of cocaine for the purposes. The charge arose from the seizure from his townhouse of approximately one kilogram of cocaine and drug trafficking paraphernalia during a search conducted by officers acting under a search warrant issued by a judicial justice, pursuant to the Controlled Drugs and Substances Act.  Months before trial, the Applicant’s counsel informed the judge the only issue at trial would be the admissibility of the seized evidence, in particular whether it had been obtained in breach of s. 8 and should be excluded pursuant to s. 24(2). The Applicant intended to challenge the sufficiency of the grounds to support the warrant and would seek to cross-examine the officer who swore the information to obtain the search warrant. Several weeks before the anticipated trial, the Applicant applied for disclosure of materials relating to information provided to the police by informers. The trial judge granted the Applicant’s application in part. The trial judge required the Crown to disclose documents containing the intelligence from the informers, edited, if necessary, to protect informer privilege. The Crown declined to comply with the disclosure order and the judge granted the Applicant’s application for a judicial stay of proceedings. The Crown appealed the disclosure order and the consequential stay. The appeal was allowed. The disclosure order and resultant judicial stay of proceedings were set aside, and a new trial ordered by the C.A. “An oral hearing of the application for leave to appeal…is ordered in accordance with s. 43(1.2) of the Supreme Court Act, R.S.C., 1985, c. S-26. The hearing date will be fixed by the Registrar.”

Leaves to Appeal Granted

Aboriginal Law: Duty to Consult

Mikisew Cree First Nation v. Canada (Governor General in Council), 2016 FCA 311 (37441)

In 2012, the Minister of Finance introduced two Omnibus Bills that amended Canada’s environmental protection and regulatory legislative scheme. Canada did not consult the Applicant Mikisew Cree First Nation on the changes.  In 2013, the Mikisew First Nation filed a judicial review application seeking declaratory and injunctive relief, alleged the responsible federal Ministers and the Crown as a whole had a duty to consult Mikisew regarding the development of the legislative amendments, to the extent they had the potential to affect Mikisew’s treaty rights.  The Federal Court allowed the judicial review application in part, issuing a declaration on the duty to consult. Although there was no duty to consult before a bill is introduced into Parliament (by reason of the principle of parliamentary sovereignty and the doctrine of the separation of powers), the Crown was under a duty to consult Mikisew when the bills were introduced in Parliament; i.e., to give notice to Mikisew and a reasonable opportunity to make submissions.  The Federal C.A. allowed Canada’s appeal, set aside the declaration, and dismissed the application for judicial review, finding legislative action was not a proper subject for judicial review. The majority judgment ruled the Federal Court had no jurisdiction under the Federal Courts Act; the source of the power exercised by the Ministers was legislative in nature. As well, importing the duty to consult into the legislative process offended the doctrine of the separation of powers and the principle of parliamentary privilege. A concurring judgment concluded the duty to consult was not in fact triggered by laws of general application, as was the case here. Mikisew’s cross-appeal of the declaration was also dismissed.

Bankruptcy & Insolvency: Doctrine of Equitable Subordination

United Steel, et al. v. U.S. Steel Canada Inc. et al2016 ONCA 662 (37284) 

U.S. Steel Canada Inc. was in CCAA protection. Its American parent was United States Steel Corporation. After U.S. Steel Canada obtained a CCAA protection order in the Ontario Superior Court of Justice, the supervising judge made a claims process order, establishing a procedure for filing, reviewing and resolving creditors’ claims against U.S. Steel Canada. One of the claims involved approximately $2.2 B of debt against U.S. Steel Canada by its American parent company. The Applicant Union and a number of other stakeholders advanced various objections to these claims. The CCAA judge had to decide which objections should be dealt with within the CCAA process, outside it, or not at all. One such objection before the judge was based on the doctrine of equitable subordination, developed in American insolvency law and now codified in the U.S. Bankruptcy Code. The Union sought, among other things, an order subordinating U.S. Steel claims in whole or in part to its claims, based on the conduct of U.S. Steel in relation to the Canadian plants, pensioners, pension plan members and beneficiaries. Ontario Superior Court: determination that a CCAA judge has no jurisdiction to apply the doctrine of equitable subordination. C.A.: appeal dismissed.

Bankruptcy & Receivership/Oil & Gas: Orphan Wells

Orphan Well Association v. Grant Thornton Limited, 2017 ABCA 124 (37627)

Redwater Energy Corporation is a bankrupt company that held licences in oil and gas properties. Those properties included orphan wells at the end of their lives and are non-producing. The cost of remediation for disclaimed wells can exceed their value. The company’s receiver and subsequently its trustee in bankruptcy sought to disclaim the bankrupt’s interest in those wells but to sell the valuable assets.  The Alberta Energy Regulator has specific end-of-life rules on how a spent well must be rendered environmentally safe. Disclaimed wells become the responsibility of the Regulator and the Orphan Well Association. In this case, the Regulator opposed the trustee’s disclaimer on the basis the trustee had to comply with the end-of-life obligations prior to any distribution to the creditors. The Regulator issued abandonment and remediation orders in respect of the wells that had been disclaimed. The trustee did not comply with the orders. The Regulator and the Association applied to the Court of Queen’s Bench of Alberta, seeking compliance with the remediation orders. The trustee brought a cross-application for approval of the sale of some assets, and a ruling on the constitutionality of the Regulator’s position. Court of Queen’s Bench of Alberta: applications for compliance with environmental remediation orders dismissed; trustee’s cross-application for approval of sale of assets granted.  C.A.: appeal dismissed.

Charter: Religious Freedom

Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses v. Wall, 2016 ABCA 255 (37273)

Mr. Wall was a member of the Highwood Congregation of Jehovah’s Witnesses, an unincorporated religious association. He was disfellowshipped by a Judicial Committee of elders because he was not sufficiently repentant for two incidents of drunkenness, one of which included verbal abuse of his wife, and was shunned. He was a real estate agent and lost congregation members and other Jehovah’s Witnesses as clients. He appealed to an Appeal Committee which upheld the disfellowship decision. The Watch Tower and Bible Tract Society of Canada decided not to overturn the decision. Mr. Wall applied for judicial review of the religious decision. Wilson J. conducted a hearing to determine whether the Court of Queen’s Bench of Alberta had jurisdiction to hear the application. Court of Queen’s Bench of Alberta: declaration that Court of Queen’s Bench of Alberta has jurisdiction to hear application for judicial review of religious decision. C.A.: appeal dismissed.

Civil Procedure in Québec: Recognition of Foreign Judgments

Barer v. Knight Brothers LLC, 2017 QCCA 597 (37594)

The Applicant is a Canadian businessman residing and domiciled in Québec, who was operating a company based in Vermont (Barer Engineering Company of America, or “BEC”). The Respondent initiated legal proceedings in the U.S. District Court for the District of Utah (the “Utah Court”) against BEC and the Applicant personally, as well as a company based in Québec and run by the Applicant, for amounts claimed to be due under a contract. The Applicant made a motion to dismiss the lawsuit for lack of jurisdiction with respect to himself personally. The motion was dismissed and subsequently a default judgment was rendered against the Applicant. The Respondent thereafter sought recognition and enforcement against the Applicant of the judgment rendered by the Utah Court. Superior Court of Québec: recognition and enforcement against Applicant of Utah Judgment allowed. C.A.: suretyship to guarantee payment of Applicant’s appeal ordered. C.A.: appeal dismissed.

Civil Procedure: Jurisdiction

Haaretz.com et. al. v. Goldhar, 2016 ONCA 515 (37202) 

The Applicant Haaretz, Israel’s oldest daily newspaper, published an article criticizing the management style and business practices of the Respondent Mitchell Goldhar. Mr. Goldhar was a Canadian businessman who owned Maccabi Tel Aviv Football Club, a soccer team based in Tel Aviv. The article was available in print and on the newspaper’s Hebrew and English-language websites. Mr. Goldhar commenced a defamation action in Ontario against the newspaper, its former sports editor and the author of the article. Haaretz moved to stay the action, arguing that Ontario courts lack jurisdiction simpliciter or, alternatively, that Israel is a more appropriate forum. Ontario Superior Court of Justice: motion to stay action for lack of jurisdiction simpliciter or, alternatively, based on forum non conveniens dismissed. C.A.: appeal dismissed.

Civil Procedure in Québec: Good Faith Principle

Churchill Falls (Labrador) Corporation Ltd. v. Hydro-Québec, 2016 QCCA 1229 (37238)

On May 12, 1969, the Applicant Churchill Falls (Labrador) Corporation Limited and the Respondent Hydro‑Québec entered into a contract pursuant to which the Respondent undertook to purchase almost all the energy generated by a hydroelectric plant that was to be built on the Churchill River in Labrador. That contract, which had a 65‑year term, set a fixed price for the energy that was to decrease in stages over time. On February 23, 2010, the Applicant instituted an action against the Respondent in the Québec Superior Court, arguing the magnitude of the Respondent’s profits because of the current value of electricity had been unforeseeable in 1969 and was causing injustice. It submitted the obligation to act in good faith provided for, inter alia, in the C.C.Q. imposed a duty on the Respondent to renegotiate the terms of the contract.  The Superior Court dismissed the action and the C.A. affirmed the judgment. It found, except in cases of real hardship, the general principle of good faith set out in arts. 6, 7 and 1375 C.C.Q. was of no assistance to a party in the Applicant’s situation.

Civil Procedure: Official Languages

Mazraani v. Industrielle Alliance, Assurance et Services Financiers Inc., 2017 CAF 80 (37642)

The Applicant challenged a decision of the Minister of National Revenue finding his work as a professional agent for the Respondent Industrielle Alliance, Assurance et Services Financiers Inc. was not an insurable employment within the meaning of the Employment Insurance Act.  The Tax Court of Canada found the Applicant held insurable employment and varied the Minister of National Revenue’s decision. The Fed. C.A. granted the appeal, finding the witnesses’ language rights had been violated during the hearing before the Tax Court of Canada.

Civil Procedure: Third Party Discovery Orders

Rogers Communications Inc. v. Voltage Pictures, LLC, 2017 FCA 97 (37679)

The Respondent movie producers alleged persons are engaging in illegal file sharing of their movies over the Internet. They initiated a proposed class proceeding claiming declaratory, injunctive and other relief against a proposed representative Respondent whose identity was unknown to them. They brought a motion for an order compelling the Applicant (“Rogers”) to disclose any and all contact and personal information of a Rogers customer associated with an identified Internet protocol address and specified times and dates. The Respondents and Rogers are unable to agree whether Rogers should be compensated for providing the disclosure.  The Federal Court granted an order for disclosure of the customer’s name and address only. The Court held since the disclosure was not part of the notice and notice scheme under ss. 41.25 and 41.26 of the Act, Rogers could claim compensation for its hourly fee to assemble, verify and transmit the information. The Federal C.A. allowed the appeal and set aside the order requiring payment of Rogers’ fee and costs. The Court held since all but the transmitting of the disclosed information came under the services contemplated by ss. 41.25 and 41.26, Rogers should not be entitled to reimbursement for statutory obligations which the Legislator had decided not to remunerate at this time. Since Rogers had failed to meet its burden of proving what the costs of transmittal would be, no fee was payable. Do statutory obligations supplant ordinary principles from Norwich Pharmaceutical Co. v. Custom & Excise Commissioners (1973), [1974] A.C. 133 (UK HL) related to third party discovery orders, and in particular, the principle that a third party should be reimbursed for the costs it incurs.

Civil Procedure: Tobacco Litigation; Disclosure; Privacy

HMTQ v. Philip Morris International Inc., 2017 BCCA 69 (37524)

The Applicant brought an action pursuant to the Act to recover tobacco-related health care costs from tobacco defendants. The legislation, which substitutes the normal rules of evidence and procedure for those specifically mandated by statute, was upheld by the S.C.C. as constitutional and not unduly interfering with judicial independence or the rule of law: British Columbia v. Imperial Tobacco Canada Ltd.  The Crown offered to provide access to anonymized health information databases to the tobacco defendants, provided they agreed to the terms of a Statistics Canada Agreement whereby the experts of all signatories would have the same access and would be subject to the same restrictions. While some tobacco defendants entered into the agreement, the Respondent brought an application for an order the Applicant produce anonymized individual-level data from provincial health databases. The Applicant resisted on the basis the databases contain private health care information about millions of BC residents and its compellability is barred by s. 2(5)(b) of the Act. The B.C.S.C. granted the Respondent’s application. Declining to follow a subsequent, contradictory decision in Rothmans et al. v. Her Majesty the Queen in Right of the province of New Brunswick (leave to appeal to NBCA and SCC dismissed July 29, 2016, and January 26, 2017, respectively), the B.C.C.A. dismissed the appeal.

Constitutional Law: Interprovincial Trade

R. v. Comeau, 2016 CanLII 73665 (37398)

Mr. Comeau was intercepted by the police in Campbellton, New Brunswick. He was returning from Pointe-à-la-Croix and the Listuguj First Nation Indian Reserve, in the province of Québec, where he had purchased alcoholic beverages at a cheaper price than he would have paid had he purchased the alcohol in New Brunswick. Mr. Comeau was charged under section 134(b) of the New Brunswick Liquor Control Act for exceeding the limit on beer and liquor that could be brought into New Brunswick from another province, and the alcoholic beverages were seized. In his defence, Mr. Comeau claimed section 134(b) of the Liquor Control Act was an unenforceable provincial law, of no force and effect, as it contravened section 121 of the Constitution Act, 1867. Provincial Court of New Brunswick: s. 134(b) of the Liquor Control Act declared unconstitutional; charge dismissed. C.A.: leave to appeal denied.

Constitutional Law: Parliamentary Privilege

Chagnon v. Syndicat de la fonction publique et parapublique du Québec (SFPQ), 2017 QCCA 271 (37543)

Three security guards from the National Assembly of Québec were dismissed by the Applicant, the President of the National Assembly of Québec, following an investigation that revealed they were using a National Assembly camera to observe activities in the rooms of adjacent hotels. Since the guards were represented by the Respondent, the Syndicat de la fonction publique et parapublique du Québec, a grievance was filed contesting their dismissal.  The President of the National Assembly of Québec raised a preliminary objection to the tribunal’s jurisdiction, arguing he had acted in the exercise of two constitutional parliamentary privileges, namely the privilege over the management of employees and the privilege to eject strangers from the National Assembly and its precincts.  Tribunal d’arbitrage: preliminary objection dismissed; privileges inapplicable; Tribunal d’arbitrage has jurisdiction to hear grievances. Québec Superior Court: judicial review allowed; Tribunal d’arbitrage has no jurisdiction to hear grievances. C.A.: appeal allowed: Superior Court’s judgment set aside; motion for judicial review dismissed.

Construction Law: Labour & Materials Bonds

Valard Construction Ltd v. Bird Construction Company, 2016 ABCA 249 (37272) 

Bird Construction Company, a general contractor on an oilsands project, hired a subcontractor. The subcontractor hired Valard Constructions Ltd. Neither Bird Construction Company nor the subcontractor notified Valard Constructions Ltd. that the subcontractor had obtained a labour and materials payment bond. The bond named Bird Construction Company as the Obligee. The subcontractor failed to pay Valard’s invoices. Valard did not notify Bird Construction Company of its payment dispute with the subcontractor until after a deadline for filing a claim set out in the bond had passed. When advised of the non-payment, Bird Construction Company informed Valard Constructions Ltd. about the bond. Valard Constructions Ltd. submitted a claim to the surety but the surety refused to pay the claim because the deadline for making a claim had passed. Valard Constructions Ltd. commenced an action against the surety, added Bird Construction Company as a defendant, and then pursued the action only against Bird Construction Company. Bird Construction Company applied for summary dismissal. Court of Queen’s Bench of Alberta: claim dismissed. C.A.: appeal dismissed.

Criminal Law: (Alleged) Inappropriate Police Actions

R., A.G. Canada v. D.B. et al., 2017 BCCA 84 (37476)

There is a publication ban in this case, as well as a sealing order, in the context of alleged inappropriate actions by four police officers re the “Surrey Six”.

Criminal Law: (Alleged) Ineffective Assistance of Counsel

Wong v, R., 2016 BCCA 416 (37367)

Mr. Wong, Applicant, pled guilty to one count of trafficking cocaine. At the time he entered the plea, his counsel had not informed him a conviction for trafficking cocaine would make him inadmissible to Canada on grounds of serious criminality pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act. Nor had his counsel discussed the defence of entrapment with him. On appeal, Mr. Wong argued his plea should be set aside on the basis of ineffective assistance of counsel. The B.C.C.A. dismissed the appeal. It found allowing the conviction to stand, despite Mr. Wong’s uninformed plea, would not amount to a miscarriage of justice, because there was no evidence he would not have pled guilty had he been informed of the collateral immigration consequences of his plea. Specifically, the court noted Mr. Wong did not depose in his affidavit had he known the jeopardy a conviction created to his permanent resident status, he would not have pled guilty.

Criminal Law: Child Luring

R. v. Morrison, 2017 ONCA 582 (37687)

The Respondent posted a personal advertisement on Craigslist in the section “casual encounters.” A person calling herself “Mia Andrews” responded to the ad, writing she was 14 years old. Unbeknownst to Morrison, “Mia” was in fact a police officer. The Respondent testified he thought he was participating in a sexual role-playing exchange with an adult female.  The trial judge held subsection 172.1(3) of the Criminal Code – the presumption of belief – infringed the Respondent’s s. 11 (d) of the Charter right. However, the trial judge held the reasonable steps requirement in subsection 172.1 (4) of the Code is constitutionally valid. The trial judge concluded the Crown had proven the elements of the child luring offence even without the benefit of the presumption of belief. The trial judge was satisfied beyond a reasonable doubt that the Respondent did not take reasonable steps to ascertain the age of the person he was communicating with over the internet as required by s. 172 (4) of the Code. The Respondent was convicted of child luring by means of a computer contrary to s. 172.1(1) (b) of the Criminal Code. The designated offence referred to in s. 172.1(1) (b) that formed the basis of the Respondent’s conviction was invitation to sexual touching at a person under 16 years of age, contrary to s. 152 of the Code. The sentencing judge went on to hold that the mandatory minimum sentence in subsection s. 172.1(2) of the Code was grossly disproportionate, contrary to s. 12 of the Charter. Refusing to apply it, he sentenced the Respondent to 75 days’ intermittent incarceration (after credit for pre-sentence custody was deducted) and made a number of ancillary orders. The C.A. dismissed both the Applicant’s and the Respondent’s appeals. The C.A. agreed with the trial judge’s conclusions regarding the constitutionality of each of the Code provisions. The C.A. held that the mandatory minimum sentence of one year of imprisonment contained in section 172.1(2)(a) of the Code is therefore of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

Criminal Law: Child Porn; Search and Seizure

T.R. v. R., 2017 ONCA 365 (37676)

There is a publication ban in case, in the context of seizure of material by police.

Criminal Law: Contempt

Canadian Broadcasting Corporation v. R., 2016 ABCA 326 (37360)

A 14 year-old girl was murdered, and CBC reported on the crime immediately, using the girl’s name and her picture. Several days later, the accused appeared in court, and pursuant to s. 486.4(2.2)  of the Criminal Code, the judge issued a mandatory publication ban directing that any information that could identify the victim not be published in any document or broadcast or transmitted in any way. CBC refused to remove the content it had posted prior to the ban. As a result, the Crown moved for an order citing CBC for criminal contempt and for an interim injunction requiring it to remove the content from its website pending the outcome of the contempt proceedings. The chambers judge refused to issue the injunction. Applying RJR MacDonald, he found that the Crown had not established a strong prima facie case of criminal contempt. The C.A. allowed the appeal and ordered the injunction.

Criminal Law: Disclosure

R. v. Awashish, 2016 QCCA 1164 (37207)

Ms. Awashish was charged with operating a vehicle with a blood alcohol level over the legal limit. Ms. Awashish filed a motion for disclosure accompanied by a McNeil motion. She sought an order requiring the Crown to tell her whether the information whose disclosure she was requesting existed and, if so, to tell her the identity of the persons holding that information. The Court of Québec allowed Ms. Awashish’s application. The Crown filed a motion for certiorari, which was allowed by the Superior Court. The C.A. allowed the appeal.

Criminal Law: DUI; Disclosure

Gubbins v. R., 2016 ABCA 358 (37395)

The Applicant, Mr. Gubbins, was detained, and samples of his breath analysed, which showed two blood alcohol readings of 120 mg/%, and he was charged with driving “over 80”. The Crown provided the standard breathalyzer disclosure package, and Mr. Gubbins then demanded the maintenance records for the approved instrument since it was imported into Canada and first put into use. The Crown took the view these records were not in the possession of the Crown, or even the police, but were actually held by the third party contractor that maintained the equipment. A voir dire was held, in which the Crown called expert evidence to demonstrate the requested records were irrelevant to making full answer and defence. The trial judge concluded she was bound by R. v Kilpatrick, 2013 ABQB 5, and the records were subject to first party Stinchcombe disclosure. She entered a stay. The Crown’s appeal of the stay was dismissed. The C.A., however, allowed the Crown’s further appeal, lifted the stay and sent the matter for trial.

Criminal Law: DUI; Disclosure

Vallentgoed v. R., 2016 ABCA 358 (37403)

Similar summary to that immediately above.

Criminal Law: Failure to Stop at the Scene

Seipp v. R., 2017 BCCA 54 (37513)

Following a break and enter into a home and a theft of a vehicle, one of the homeowners in another car saw Mr. Seipp driving the stolen car. He tried to overtake him and a collision resulted. A passenger in the vehicle driven by the homeowner was injured. Mr. Seipp fled from the scene of the accident without providing his name or address. At trial, he denied stealing the car. He admitted he had been driving the car. He claimed he fled the scene because he suspected it was stolen. At the end of the defence’s case, defence counsel admitted failing to stop and remain at the scene of an accident was made out. Provincial Court of B.C.: convictions for leaving the scene of an accident and other offences; acquittals on other counts. C.A.: appeal from convictions dismissed.

Criminal Law: First Degree Murder

Magoon v. R., 2016 ABCA 412 (37416)

There is a publication ban in this case in the context of the Court of Appeal entering a first degree murder conviction.

Criminal Law: First Degree Murder

Jordan v. R., 2016 ABCA 412 (37479)

There is a publication ban in this case in the context of constructive first degree murder.

Criminal Law: Inmates

Ewert v. Canada2016 FCA 203 (37233)

The Correctional Service of Canada (“CSC”) employed certain psychological tests, referred to as assessment tools or actuarial tests, to assess the risk of criminal recidivism and to assess psychopathy in inmates. The Applicant, Mr. Jeffrey Ewert, commenced an action in the Federal Court in which he alleged the assessment tools are unreliable when administered to Aboriginal inmates such as himself and that, in the result, their use violated rights protected by ss. 7 and 15. At trial, he sought injunctive and declaratory relief. A judge of the Federal Court found that the use of the assessment tools in respect of Aboriginal inmates was contrary to subsections 4 (g) and 24(1)  of the Corrections and Conditional Release Act, and violated s. 7  of the Charter in a manner that could not be justified. The Federal Court found it unnecessary to consider the application of s. 15.  The Fed. C.A. allowed the CSC’s appeal. It held the Federal Court judge erred in law in finding both a breach of the Act and a violation of s. 7.

Criminal Law: Internet Luring; Exclusion of Evidence

Mills v. R., 2017 NLCA 12 (37518)

Mr. Mills was charged with four counts of internet luring. Undercover police officers created two fictitious on-line identities of 14-year old females. The Crown’s evidence included emails sent to the on-line identities and fragments of emails found on Mr. Mills’ computer that match parts of the emails sent to the on-line identities. Some of the emails included sexual content and some made arrangements with one of the identities to meet at a park. Mr. Mills arrived at the park in circumstances matching the arrangements. Police officers linked some of the emails to Mr. Mill’s social media. The police officers used a screen shot program that captures the video display of personal computers to capture the email communications. Mr. Mills sought to exclude the screen shots and the emails from evidence. Provincial Court of Newfoundland and Labrador: application to exclude evidence dismissed. Provincial Court of Newfoundland and Labrador: conviction on one count of communicating by means of a computer with person believed to be under age of sixteen years for a sexual purpose; one count stayed; acquittals on two counts. Provincial Court of Newfoundland and Labrador: sentence to 12 months imprisonment and one year probation. C.A.: appeal from sentence granted; no s.8 violation and sentence 14 months; stay of service for the additional two months which were initially reduced due to Charter violation found by Provincial Judge (not found by Court of Appeal); cross-appeal against conviction dismissed.

Criminal Law: Perjury

Millington v. R., 2016 BCCA 293 (37235)

Following a public inquiry into the death of Robert Dziekanski, a visitor from Poland who was tasered by RCMP officers at the Vancouver International Airport and who was pronounced dead shortly thereafter, the Applicant, along with three other RCMP officers involved in the incident, were charged with perjury and tried in the B.C.S.C.  The Applicant and another officer were convicted. The other two officers were acquitted. The charge of perjury against the Applicant related to testimony he gave at the inquiry. The trial judge found the Applicant had lied at the inquiry about what he had perceived during the incident and about whether he discussed the details of the incident with the other officers before giving his statements to the investigators. The trial judge also found the Applicant’s account of the incident was unquestionably inaccurate in material respects when compared to a video of the incident taken by a bystander. The B.C.C.A. unanimously dismissed the Applicant’s appeal.

Criminal Law: Perjury

Robinson v. R., 2017 BCCA 6 (37411)

Similar summary to that immediately above.

Criminal Law: Production Orders

Vice Media Canada Inc. v. R., 2017 ONCA 231 (37574)

There is a publication ban in this case, a sealing order, and the Court file contains information not available for inspection by the public, in the context of police production orders.

Criminal Law: Refusal to Blow; Sentencing

Suter v, R., 2016 ABCA 235 (37247)

Mr. Suter pled guilty to refusing to provide a breath sample following a collision  causing death, contrary to s. 255(3.2).  He struck several people having dinner on a restaurant patio, including a two and a half year old boy who died of his injuries. While arguing with his spouse, he inadvertently pressed hard on the gas pedal thinking it was the brake and drove his car into the patio.  Once arrested and placed in a cell at the police station, Mr. Suter spoke to a lawyer who advised him not to provide a breath sample.  He followed that advice. The sentencing judge found as fact Mr. Suter was not impaired at the time of the collision.  He was sentenced to four months jail and to a 30-month driving prohibition.  The C.A. allowed the Crown’s appeal and imposed a period of imprisonment of 26 months.

Criminal Law: Victim Surcharges

Boudreault v. R., 2016 QCCA 1907 (37427)

Alex Boudreault plead guilty to four counts relating to various breaches of probation orders.  A few months later, Mr. Boudreault plead guilty to other counts relating to breaches of a recognizance, breaking and entering dwelling‑houses, attempted break and enter, possession of stolen property, assault with a weapon and possession of a prohibited weapon.  The Court of Québec sentenced Mr. Boudreault to 36 months and ordered a victim surcharge of $1,400.  The same judgment rejected Mr. Boudreault’s arguments to the effect the victim surcharge provided for in s. 737 of the Criminal Code infringed s. 12 of the Charter.  The majority of the C.A. held the surcharge did not amount to cruel and unusual punishment.  Duval Hesler C.J. would have allowed the appeal in part to declare s. 737 unconstitutional.

Criminal Law: Victim Surcharges

Larocque v. R., 2017 ONCA 552 (37783)

Mr. Larocque pleaded guilty to seven counts: two counts of mischief, three counts of assault, one count of uttering threats and one count of possession of narcotics. Under s. 737 of the Criminal Code, he was liable to a victim surcharge of $700, but the trial judge refused to apply it. The Superior Court overturned that decision. Mr. Larocque challenged the constitutionality of s. 737, arguing it infringed his rights protected by s. 12 of the Charter. Ontario Court of Justice: surcharge not imposed. Ontario Superior Court of Justice: appeal allowed. C.A.: appeal dismissed.

Criminal Law: Victim Surcharges

Eckstein v. R., 2017 ONCA 552 (37782)

Similar summary to that immediately above.

Criminal Law: Victim Surcharges

Tinker v. R., 2017 ONCA 552 (37774)

Similar summary to that immediately above.

Family Law: Hague Convention

Baggott v. Balev et al, 2016 ONSC 55 (37250)

The father and mother were married in Canada in 2000. The following year, they moved to Germany where they obtained permission to live and work. Their children were born in Germany in September, 2000 and in December, 2005 but are Canadian citizens. The family resided together in Germany until April, 2013 when the parents separated for a final time. The father and mother agreed the mother would return to Canada with the children for educational purposes and they could remain there until August 15, 2014. The mother and children arrived in Canada in April, 2013. In March, 2014, the father purported to revoke his consent. He commenced a Hague Convention application in Germany and a further one in Ontario. He also applied for custody of the children in Germany. The German court held the children should remain with their mother in Canada. On appeal, the court determined Germany lacked jurisdiction as the children were not German citizens and were resident in Canada at the time. Further, Canada had become their habitual residence over the course of 18 months. The father’s German Hague application and appeal were also unsuccessful on the grounds the children were no longer habitually resident in Germany at the time of the application. The father then pursued his Hague application in Ontario. In April, 2015, the application judge in Ontario ordered the Office of the Children’s Lawyer intervene. The OCL advised the court neither child wished to return to Germany. Ontario Superior Court of Justice: father’s application for return of children to Germany under terms of Hague Convention granted. Ontario Superior Court of Justice: mother’s application for stay granted. Divisional Court: mother’s appeal of Hague Convention decision granted; children’s habitual residence found to be in Canada. C.A.: father’s appeal allowed, decision of application judge restored. C.A.: Office of Children’s Lawyer’s motion for stay dismissed. S.C.C.: Office of Children’s Lawyer’s motion for stay dismissed.

Family Law: Life Insurance; Constructive Trusts

Moore v. Sweet, 2017 ONCA 182 (37546)

At issue in this Leave is entitlement to the proceeds of a $250K term life insurance policy obtained by M in 1985. At the time it was issued, the Applicant and M were married with three children, and the Applicant was named M’s beneficiary. The Applicant and M separated in December 1999 and divorced in October 2003.  In the summer of 2000, M moved in with the Respondent, with whom he lived until his death.  In September 2000, M executed a change of beneficiary form, designating the Respondent as his irrevocable beneficiary under the Policy.  The Respondent witnessed the change and the insurer recorded the change of beneficiary.  Until 2000, the Policy’s annual premium of $507.50 was paid out of an account jointly held by the Applicant and M.  From 2000 until M’s death in spring of 2013, the Applicant paid the premium from her own account. The Applicant was not advised of or aware of the change of beneficiary, and only learned of it upon M’s death. The Applicant and M had entered into a separation agreement May 2002, which was silent with respect to the Policy.  Upon M’s death, the proceeds of the Policy were paid into court by the insurer pending the resolution of the competing claims by the Applicant and the Respondent. The Applicant applied to court, claiming unjust enrichment and asking the court to impose a constructive trust in her favour over the proceeds of the Policy.  She argued she and M had agreed if she paid the premiums, she would be entitled to receive the benefit of the Policy as a way for M to support their children despite his financial irresponsibility. The Ontario Superior Court of Justice granted the application, holding the proceeds were impressed with a constructive trust in favour of the Applicant. The C.A. allowed the appeal, set aside the lower court decision, and held while the Applicant was entitled to be repaid her premiums, the Respondent was to receive the balance of the proceeds.

Human Rights/Charter/Aboriginal Law: Equality Challenges; Jurisdiction

Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (37208)

Several members of two First Nations filed complaints under the Canadian Human Rights Act with the Canadian Human Rights Commission. The complainants alleged the eligibility criteria in s. 6 of the Indian Act precluded the registration of their children as “Indians” in their particular circumstances, violated their human rights because the impugned restrictions constitute prohibited discrimination in the provision of a service “customarily available to the public” under s. 5 of the CHRA. In two decisions which relied on Public Service Alliance of Canada v. Canada (Revenue Agency) the Canadian Human Rights Tribunal dismissed the complaints for lack of jurisdiction. In doing so, the Tribunal found the complaints were direct challenges to provisions in the Indian Act and the adoption of legislation is not a service customarily available to the general public within the meaning of s. 5.  The Tribunal concluded such a challenge may only be brought under s. 15 of the Charter and therefore must be made to a court of law. Applying a reasonableness standard of review, the Federal Court held the Tribunal’s decisions were reasonable and dismissed the Commission’s applications for judicial review. The Federal C.A. dismissed the Commission’s appeal.

Insurance in Québec: “Care, Custody & Control” Exclusions

3091-5177 Québec inc. f.a.s.r.s. Éconolodge Aéroport v. Compagnie canadienne d’assurances générales Lombard et autre, 2016 QCCA 1903 (37421)

The Applicant Éconolodge Aéroport hotel offered a park and fly service that included accommodation, breakfast, parking for a car while out of the country and an airport shuttle service. A customer’s vehicle was stolen from the hotel’s parking lot, and filed a claim for the theft of his vehicle with his insurer, AXA Insurance Inc., which compensated him and, in return, brought an action in subrogation against the hotel. The hotel argued the claim was covered by its insurance policy, so it brought an action in warranty against the Respondent Lombard General Insurance Company.  However, Lombard refused to defend Éconolodge, arguing the [translation] “custody, control or management” exclusion in the insurance policy applied. Court of Québec: action in warranty allowed. C.A.: appeal allowed.

Insurance in Québec: “Care, Custody & Control” Exclusions

Promutuel Portneuf-Champlain, société mutuelle d’assurance générale v.  Compagnie canadienne d’assurances générales Lombard, 2016 QCCA 1903 (37422)

Similar summary to that immediately above.

Labour Law: Capacity of Union & Directors To Be Sued

International Brotherhood of Electrical Workers v. Lawrence, 2017 ONCA 321 (37617)

Having been terminated from her employment with the International Brotherhood of Electrical Workers, Local 773, Ms. Lawrence sought damages for wrongful dismissal, naming Local 773 as a defendant. Although Local 773 pleaded, as a trade union, it could not be named as a party based on Rights of Labour Act, Ms. Lawrence obtained a consent order adding several directors of Local 773 as defendants and amended the statement of claim to plead they were jointly and severally liable for her claim rather than obtaining a representation order under Rule 12.07 of the Rules of Civil Procedure. The action proceeded normally. Once the limitation period expired, Local 773 and the individual defendants moved under Rule 21 for an order dismissing the action on the ground Local 773 was not a suable entity and the individual defendants were not personally answerable to the claim. The motions judge refused to strike the claim as disclosing no reasonable cause of action because the motion had not been brought in a timely manner. Leave to appeal that decision was dismissed. Ms. Lawrence then moved for and was granted a representation order under Rule 12.07 and leave to amend her statement of claim to add the individual Applicants as representatives of all members of Local 773. A majority of the C.A. dismissed both Ms. Lawrence’s motion to quash the appeal for want of jurisdiction and the Applicants’ appeal.

Labour Law: Pay Equity

Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2016 QCCA 1659 (37347)

The Attorney General of Québec sought a leave to appeal decision of the Québec C.A. upholding the unconstitutionality of ss. 76.3, 76.5 and 103.1 of the Pay Equity Act. Those sections were enacted in 2009 under the Act to amend the Pay Equity Act.  The provisions were challenged, inter alia, by unions representing employees working in predominantly female job classes. They alleged the sections had the effect of substantially reducing the rights and benefits conferred on them by the Pay Equity Act as enacted in 1996, which, in their view, was contrary to ss. 15 and 52 of the Charter and ss. 10, 16, 19, 50.1 and 52 of the Charter of human rights and freedoms.  Under the 2009 reform, among other things, the jobs concerned were reviewed every five years to determine whether there were changes to them that justified a compensation adjustment, and there were no retroactive payments during the review process. Québec Superior Court: sections 76.3 and 76.5 of Pay Equity Act declared unconstitutional. C.A.: appeal dismissed; incidental appeal allowed; second paragraph of s. 103.1 of Pay Equity Act declared unconstitutional.

Municipal Law in Québec: By-Laws

Lorraine (Town of) v.2646-8926 Québec inc., 2016 QCCA 1803 (37381)

On July 7, 1989, the Respondent 2646‑8926 Québec inc. paid $1,286K to purchase land in a residential zone of the Applicant Town of Lorraine. In 1991, the Town passed a by‑law (by‑law U‑91, replaced in 2010 by by‑law URB‑03) that changed the zoning for 60% of the Respondent’s land in order to create a conservation zone, thereby preventing any residential development on that part of the land. In late 2001, the Respondent’s majority shareholder learned of the by‑law and discovered the Applicant had put in some infrastructures for hiking and cross‑country skiing on part of its land, including culverts, stairs, fences and public benches. After contacting the Town, which refused to amend its by‑law, the Respondent brought an action in nullity against the by‑law in November 2007, seeking damages and the removal of the infrastructures. It also brought an action in nullity against by‑law 10‑02 of the Applicant Regional County Municipality of Thérèse‑de‑Blainville, which implemented a development plan that also changed the zoning for the Respondent’s land. Québec Superior Court: action in nullity dismissed. C.A.: appeal allowed.

Municipal Law in Québec: Riot Damage

Montréal (City of) v. Lonardi et al., 2016 QCCA 1022 (37184)

A riot erupted following a win by the Montréal Canadiens hockey team in 2008, in Montréal. Ten of the police vehicles belonging to the City were destroyed during the riot. Some of the rioters were identified, and the City instituted separate civil actions against each of them, asking the court to find them solidarily liable for the full value of the vehicle they had played a part in destroying. The courts below found the Respondents liable but refused to find them solidarily liable, except for two of them. Court of Québec: claim allowed; Respondents found jointly liable for compensatory and punitive damages; Respondents in file 500-22-179174-118 found solidarily liable for damages. C.A.: appeal and incidental appeals dismissed.

Professions: Discipline

Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (37112)

The Applicant, Mr. Groia was a barrister and solicitor licensed by the Law Society to practise law in Ontario. As an experienced securities litigation counsel, he defended the accused in the case of R. v. Felderhof, 2007 ONCJ 345. The accused was acquitted of all charges.  The litigation was complex and protracted. From the onset, disputes arose between counsel which escalated to the point of Mr. Groia alleging prosecutorial misconduct by the Ontario Securities Commission (“OSC”) prosecutors. After 70 days of trial, the OSC applied for judicial review in the Superior Court. They argued Mr. Groia had engaged repeatedly in uncivil conduct in violation of the Law Society’s Rules of Professional Conduct and, by failing to control this unacceptable conduct, the trial judge lost jurisdiction. This application was dismissed and the matter was remitted back to the trial judge for continuation of the trial. The OSC appealed this decision to the C.A. and it was dismissed.  After the trial had concluded, the Law Society of Upper Canada initiated disciplinary proceedings against Mr. Groia alleging he had engaged in professional misconduct during his defence of his client. Neither the trial judge nor the OSC prosecutors complained to the Law Society about Mr. Groia’s conduct.  The Hearing Panel concluded the Law Society had proven all its professional misconduct allegations against Mr. Groia. It imposed a penalty of two months’ suspension of his licence and a reprimand. On appeal, the Appeal Panel allowed Mr. Groia’s appeal in part. It affirmed the findings of professional misconduct; however, it varied the length of Mr. Groia’s licence suspension to one month. On appeal, the Divisional Court dismissed the appeal. A further appeal to the C.A. was dismissed.

Professions in Québec: Liability for Referral

Salomon v. Matte-Thompson, 2017 QCCA 273 (37537)

The Respondents, Ms. Judith Matte-Thompson and 166376 Canada Inc., invested millions of dollars with Mr. Thémistoklis Papadopoulos (“Papadopoulos”), a representative of Triglobal Capital Management Inc. The funds in which the Respondents invested, Focus and iVest, turned out to be a Ponzi scheme.  Papadopoulos disappeared and the Respondents lost their investments.  The Respondents sued Papadopoulos and his associate Mario Bright, as well as the Applicants, Kenneth Salomon, Ms. Thompson’s lawyer who referred her to Papadopoulos, and his law firm, Sternthal Katznelson Montigny LLP.  Superior Court of Québec: action against the Applicants dismissed.  C.A.: appeal allowed.

Professions/Universities: First Christian Law School in Canada

Trinity Western University et al. v. The Law Society of Upper Canada, 2016 ONCA 518 (37209)

There being no Christian law schools in Canada, and by contrast approximately 50-faith based law schools in the U.S., a university in B.C. decided to establish Canada’s first. The Law Society of Upper Canada (“LSUC”) denied accreditation to the law school of the Applicant Trinity Western University (“TWU”). TWU is a private post-secondary institution in B.C. that provides an education founded on evangelical Christian principles. TWU’s approach to community development was expressed in a Community Covenant, a code of conduct that encouraged or discouraged certain behaviour based on evangelical Christian principles of Biblical teaching and morality. The covenant prohibited sexual intimacy that violated the sacredness of marriage between a man and a woman. Unmarried individuals were expected to live chaste, celibate lives. TWU fully accepted admission of lesbian, gay, bisexual or transgendered (LGBTQ) students, and the covenant specifically prohibited any forms of discrimination or prejudice. However, TWU did prohibit admission to its law school if a student refused to sign the covenant. On judicial review, the court held the LSUC was entitled, in the exercise of its statutory mandate to act in the public interest, to refuse to accredit TWU’s law school based on the discriminatory nature of the community covenant. The reviewing court found although the decision breached the freedom of religion rights of the Applicants, TWU and its representative student (“TWU et al.”), the LSUC had engaged in a reasonable and proportionate balancing of the Charter protections at issue. Therefore, the reviewing court concluded the LSUC’s refusal decision was reasonable. The C.A. dismissed TWU et al.’s subsequent appeal.

Professions/Universities: First Christian Law School in Canada

The Law Society of British Columbia v. Trinity Western University et al., 2016 BCCA 423 (37318)

Similar summary to that immediately above, except that here the Law Society’s decision (to deny accreditation) was overturned.

Tax: Liability For Tax Planning

Brunette v. Legault Joly Thiffaut, 2017 QCCA 391 (37566)

Between 2004 and 2008, the Melior Group, made up of a large number of corporations whose share capital was held in whole or in part by 9143 1304 Québec inc., developed projects to build, renovate and manage seniors’ residences. In 2009, Revenu Québec issued notices of assessment against several corporations in the Group. The issuance of the notices, which was accompanied by collection action, resulted in the bankruptcy of several of those corporations and of 9143 1304 Québec inc. The Applicants, Yves Brunette and Jean M. Maynard, trustees of Fiducie Maynard 2004, the sole shareholder of 9143 1304 Québec inc., instituted a civil liability action for the loss in the value of the trust patrimony against the Respondents, Legault Joly Thiffault LLP, LJT Fiscalité inc., LJT Corporatif inc., LJT Conseil inc., LJT Litige inc., LJT Immobilier inc., Lehoux Boivin Comptables Agréés, s.e.n.c., Marcel Chaput and Fiscaliste M.C. inc. The Respondents were alleged to have committed professional misconduct in setting up a tax structure to manage the corporations’ consumption taxes and turned out to be non-compliant with legislation. Québec Superior Court: motion to dismiss allowed; re-reamended motion to institute proceedings, with particulars, dismissed. C.A.: appeal dismissed.

Torts: MVA’s

J.C.R. v. J.J.2016 ONCA 718 (37323)

There is a publication ban in this case, a publication ban on the named party, and the court file contains information not available for inspection by the public, in the context of a single catastrophic MVA involving minors.

Transportation/Human Rights: Discrimination

Delta Air Lines Inc. v. Lukács, 2016 FCA 220 (37276)

Mr. Lukacs filed a complaint with the Canadian Transportation Agency alleging some of the Applicant Delta Air Lines’ policies with respect to the transportation of “large (obese)” passengers were discriminatory, contrary to R. 111(2) of the Air Transportation Regulations. The Agency dismissed the complaint on the basis Mr. Lukacs lacked standing to bring the complaint. The Federal C.A. reversed that decision on the basis the Agency’s decision to refuse to look into Mr. Lukacs’s complaint on the sole basis he did not meet the standing requirements developed by the courts of civil jurisdiction was unreasonable.

Trusts: How Are Trust Assets Characterized

S.A. v. Metro Vancouver Housing Corporation, 2017 BCCA 2 (37551)

There is a publication ban in this case, a publication ban on the names of the parties, in the context of how trust assets are characterized, and when they are considered property for certain purposes.

Workers Comp: Administrative Penalties

West Fraser Mills Ltd. v. B.C. (Workers’ Compensation Appeal Tribunal), 2016 BCCA 473 (37423)

E, a tree faller, was fatally struck by a rotting tree while working within the area of a forest licence held by the Applicant West Fraser Mills Ltd. West Fraser was the “owner” of the workplace, as defined in Part 3 of the B.C. Workers Compensation Act. West Fraser was not E’s employer who worked for an independent contractor. The Workers’ Compensation Board investigated the accident and found West Fraser had failed to ensure all activities of the forestry operation were both planned and conducted in a manner consistent with the Regulation and with safe work practices acceptable to the Board pursuant to s. 26.2 of the B.C. Occupational Health and Safety Regulation. The Board imposed on West Fraser an administrative penalty for the violation, pursuant to s. 196(1) of the Act.  West Fraser requested a review of the order. A review officer confirmed the Board’s penalty order and the finding of violation. On appeal to the Workers’ Compensation Appeal Tribunal, West Fraser argued s. 26.2 of the Regulation is ultra vires, and an administrative penalty can only be levied against a person who has, in the course of acting as an employer, committed a violation. The Appeal Tribunal dismissed West Fraser’s appeal. B.C.S.C.: judicial review dismissed.  B.C.C.A.: appeal dismissed.

Posted: Wednesday, January 03, 2018