Year in Review
Supreme Court of Canada 2015 Year-in-Review
This special year-end review is a complete legal snapshot of all the law from the SCC in 2015, 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.
Administrative Law/Public Utilities: “Prudent Investment Test”
ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 (35624)
The Commission here was not statutorily bound to apply a particular methodology to the costs at issue in this case. Use of the word “prudent” in the legislation cannot by itself be read to impose upon the Commission any specific no-hindsight methodology.
Administrative Law/Public Utilities: Rate-Setting Process
Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (35506)
In this case, the nature of the disputed costs and the environment in which they arose provide a sufficient basis to find that the Board here did not act unreasonably in disallowing the costs. And re the Board’s role on appeal, the Board did not act improperly in arguing the merits of this case, nor did the arguments raised on appeal amount to impermissible “bootstrapping”.
Charter/Criminal Law/Civil Damages: Wrongful Convictions
Henry v. British Columbia (Attorney General), 2015 SCC 24 (35745)
A cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. Proof of malice is not required.
Charter: Freedom of Religion
Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (35201)
Prescribing to a Catholic school how to explain Catholicism to its students seriously interferes with freedom of religion, while representing no significant benefit to the Ethics & Religious Culture Program’s objectives; and in the Québec context, where private denominational schools are legal, represents a disproportionate, and therefore unreasonable interference with the values underlying freedom of religion of those individuals who seek to offer and who wish to receive a Catholic education. There is however no significant impairment of freedom of religion in requiring a course that explains the beliefs, ethics and practices of other religions in as objective and neutral a way as possible, rather than from the Catholic perspective.
Charter: Freedom of Religion
Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (35496)
The S.C.C. upheld the Quebec Human Rights Tribunal’s finding that the recitation of the prayer is in breach of the state’s duty of neutrality and that it interfered in a discriminatory manner with freedom of conscience and religion.
Charter (Québec): Discrimination; Two-Step Process
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (35625)
The context of this case and the fact racial profiling is recognized as a prohibited form of discrimination does not change the two-step process that applies in the context of a complaint under the Québec Charter. In this case, it was not shown on a balance of probabilities there is a connection between a prohibited ground of discrimination and the decision to deny the training request. But the Court’s conclusion in this case does not mean a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability.
Civil Procedure: Expert Evidence; Auditors
White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23 (35492)
Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance, and a proposed witness who is unable or unwilling to comply with this duty is not qualified. Judges must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence.
Civil Procedure: Mareva Injunctions; Contempt
Carey v. Laiken, 2015 SCC 17 (35597)
Civil contempt has three elements to be established beyond a reasonable doubt: the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”; the party alleged to have breached the order must have had actual knowledge; the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
Civil Procedure/Torts/Environmental: Jurisdiction; Foreign Judgments
Chevron Corp. v. Yaiguaje, 2015 SCC 42 (35682)
In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute. Nor is it necessary that the foreign debtor contemporaneously possess assets in the enforcing forum. Jurisdiction to recognize and enforce a foreign judgment exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment. Jurisdiction also exists if validly served at a place of business operated in the province.
Class Actions: Limitation Periods & Related Issues
Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (35807, 35811, 35813)
Section 28 of the Class Proceedings Act operates to suspend the limitation period in s. 138.14 of the Ontario Securities Act applicable to a statutory cause of action under s. 138.3 when the action is commenced, that is, when leave is granted under s. 138.8. Courts have the inherent jurisdiction to issue orders nunc pro tunc for leave to proceed with an action where leave is sought prior to the expiry of the limitation period. The doctrine of special circumstances is of no avail to any of the plaintiffs herein since neither the limitation period in s. 138.14 nor the leave requirement in s. 138.8 can be defeated by amending the pleadings to include a statutory claim under s. 138.3. The threshold that must be met by a plaintiff applying for leave under s. 138.8 is that there must be a reasonable or realistic chance that the action will succeed.
Constitutional/Aboriginal Law: s.15
Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (35518)
To establish a prima facie violation of s. 15(1), a claimant must demonstrate the law at issue has a disproportionate effect on the claimant based on membership in an enumerated or analogous group. The specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing a claimant’s historical position of disadvantage” will be relevant: Withler, at para. 38; Quebec v. A, at para. 327.
Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 (35696)
Ontario’s Highway 407 Act, which sets out a debt enforcement mechanism in favour of the private owner and operator of an open-access toll highway, conflicts with the federal Bankruptcy and Insolvency Act, which provides that a discharged bankrupt is released from all provable claims. It offends the doctrine of federal paramountcy and is inoperative to the extent of the conflict.
Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
Alberta (Attorney General) v. Moloney, 2015 SCC 51 (35820)
The doctrine of paramountcy dictates that s. 102 of Alberta Traffic Safety Act is inoperative to the extent that it conflicts with the federal Bankruptcy and Insolvency Act, and in particular s. 178(2). Therefore, Alberta cannot withhold driving privileges on the basis of an unsatisfied but discharged judgment debt.
Constitutional Law: Division of Powers; Bankruptcy and Insolvency; Property & Civil Rights
Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53 (35923)
The Court of Appeal’s conclusion that Part II of the Saskatchewan Farm Security Act is constitutionally inoperative where an application is made to appoint a receiver pursuant to s. 243(1) of the Bankruptcy and Insolvency Act , is set aside. Provincial farm legislation does not conflict with a national federal receivership regime.
Constitutional Law: Language Rights
Caron v. Alberta (including Boutet v. R.), 2015 SCC 56 (35842)
Absent some entrenched guarantee, a province has the authority to decide the language or languages to be used in its legislative process, and a province may choose to enact its laws and regulations in French and English. Courts cannot infer a guarantee of legislative bilingualism that would override this exclusive provincial jurisdiction absent clear textual and contextual evidence to support an entrenched right.
Construction Law: Builders’/Mechanics’/Construction Liens
Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43 (35777)
Filing of a lien has no effect on the subsistence of a statutory trust. A lien bond secures a contractor’s or subcontractor’s lien claim rather than satisfying it through payment, and does not extinguish an owner’s or contractor’s obligations under a statutory trust.
Contracts in Québec: Brokerage; Formation; Commission; Conditions; Warranties
Société en commandite Place Mullins v. Services immobiliers Diane Bisson inc., 2015 SCC 26 (35461)
Clarification as to the above-noted issues, and “[i] sum, the appellants committed no fault in relation to their obligations under either the promise to purchase or the brokerage contract. They therefore did not voluntarily prevent the free performance of that contract within the meaning of clause 6.1(4o).”
Competition: Mergers; “Prevention”; Efficiencies Defence; Balancing Test
Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 (35314)
The Appellant’s argument: to establish a merger is likely to substantially prevent competition, a party to the merger must be a potential competitor based on the assets, plans and businesses of the party at the time of the merger. The S.C.C. was unable to agree with the Appellant, and instead agreed with the Commissioner that the “Prevention” wording of s. 92 generally supports the analysis and conclusions of the Tribunal and the Federal Court of Appeal. For a party to gain the benefit of the s. 96 “efficiencies” defence, the Tribunal must be satisfied that the merger or proposed merger has brought about or is likely to bring about gains in efficiency, and the gains in efficiency would not likely be attained if a s. 92 order were made. In addition, and despite the paramountcy given to economic efficiencies in s. 96, s. 96(3) prohibits the Tribunal from considering a “redistribution of income between two or more persons” as an offsetting efficiency gain. The limitation in s. 96(3) demonstrates Parliament did not intend for all efficiency gains, however arising, to be taken into account under s. 96.
Criminal Law: Automatic Roadside Prohibitions
Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (35864)
The “ARP” scheme is valid provincial legislation and s. 11 of the Charter is not engaged because the provincial regime does not create an “offence”. But the S.C.C. upheld the chambers judge’s finding that the scheme as constituted from September 2010 to June 2012 violated the s. 8 rights of drivers subject to a roadside breath demand who subsequently registered a “fail”, and is not saved by s. 1.
Criminal Law: Automatic Roadside Prohibitions
Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 (35959)
215.41 (3.1) of the B.C. Motor Vehicles Act is not ambiguous, and the adjudicator’s interpretation was the only reasonable one. A genuine ambiguity exists only when there are two or more plausible readings, each equally in accordance with the intentions of the statute. Charter values may not be used “to create ambiguity when none exists” and consequently has no role to play as an interpretive tool in this case.
Criminal Law: Bail
R. v. St-Cloud, 2015 SCC 27 (35626)
The power of a judge hearing an application under ss. 520 or 521 to review is not open ended; exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. A reviewing judge cannot simply substitute his or her assessment of the evidence for that of the original justice; it is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.
Criminal Law: Cheating; Fraud
R. v. Riesberry, 2015 SCC 65 (36179) (Appeal & judgment Oct. 13, 2015; Reasons Dec. 18, 2015)
There was evidence that could establish horse racing is a game as defined for the cheating offences charged. Fraudulent conduct is not limited to deception, such as by misrepresentations of fact; rather, fraud requires proof of “deceit, falsehood or other fraudulent means”, encompassing “all other means which can properly be stigmatized as dishonest.” Where the alleged fraudulent act is not in the nature of deceit or falsehood, such as a misrepresentation of fact, the causal link between the dishonest conduct and the deprivation may not depend on showing that the victim relied on or was induced to act by the fraudulent act.
Criminal Law: Colour of Right Defence
R. v. Simpson, 2015 SCC 40 (35971)
To put the defence of colour of right into play, an accused bears the onus of showing that there is an “air of reality” to the asserted defence ̶ i.e., whether there is some evidence on which a trier of fact, properly instructed and acting reasonably, could be left in reasonable doubt about colour of right. The evidential burden of showing an air of reality is lower than the persuasive burden of establishing s. 8 is engaged. To engage s. 8, an accused has to go one step further ̶ show this expectation was objectively reasonable.
Criminal Law/ Constitutional Law/Charter: Doctor-Assisted Dying
Carter v. Canada (Attorney General), 2015 SCC 5 (35591)
The prohibition on doctor-assisted dying is void insofar as it deprives a competent adult of such assistance where: (1) the person affected clearly consents to the termination of life; (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) causing enduring intolerable suffering. The declaration of invalidity is suspended for 12 months.
Criminal Law/Constitutional Law: Long-Gun Registration Data; Division of Powers
Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (35448)
Section 29 of the federal Ending the Long-gun Registry Act, which requires the destruction of all records contained in registries related to the registration of long guns, is constitutional, and Quebec has no legal right to the data.
Criminal Law: Impaired Driving Causing Death
R. v. Lacasse, 2015 SCC 64 (36001)
Trial judges have wide latitude regarding sentencing. They have, inter alia, the advantage of having heard and seen the witnesses, and are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Code. That judges deviate from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where sentencing judges make an error of law or an error in principle that has an impact on the sentence, appellate courts may not vary sentence unless demonstrably unfit. And, judges may consider the fact that a type of offence occurs with particular frequency in a given region as a relevant factor in determining a just and appropriate sentence.
Criminal Law: Intoxication; General v. Specific Intent
R. v. Tatton, (35866) 2015 SCC 33
Intoxication short of automatism is not a defence to arson.
Criminal Law: Jury Representation
R. v. Kokopenace, 2015 SCC 28 (35475)
Representativeness focusses on the process used to compile the jury roll, not its ultimate composition, and the state satisfies the right to a representative jury by providing a fair opportunity for a broad cross-section of society to participate in the jury process; and that happens where the state makes reasonable efforts to: (1) compile the roll using random selection from lists drawing from a broad cross-section; (2) deliver jury notices to those who have been randomly selected.
Criminal Law: I.D; Photographs; Confessions
R. v. Araya, 2015 SCC 11 (35669)
Trial judge’s instructions were “adequate”; though not perfectly phrased, the totality of the instructions, viewed in the context of the case as a whole, adequately guarded against the possibility that the jurors might use the photographs as the basis for impermissible reasoning. Because the burden remains on the Crown to establish identity, and the trial judge found the photographs were probative in showing that the accused fit within the class of individuals described by the eyewitnesses, the trial judge’s decision on admissibility should not be disturbed.
Criminal Law: Mandatory Minimums
R. v. Nur (R. v. Charles), 2015 SCC 15 (35678) (35684)
The mandatory minimum sentences imposed by s. 95(2) (a) of the Criminal Code violates s. 12 of the Charter. In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment, but in some reasonably foreseeable cases that are caught by s. 95(1) they may do so. Not saved under s. 1 of the Charter, so follows that s. 95(2) (a) is unconstitutional as presently structured. Judges are not prevented from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstance, and Nur and Charles fall into this category.
Criminal Law: Medical Marihuana; Shaken And Stirred
R. v. Smith, 2015 SCC 34 (36059)
The medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person contrary to s. 7 of the Charter. The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable.
Criminal Law: Military Justice System; Overbreadth; s. 52
R. v. Moriarity (including appeals of R. v. Vezina & R. v. Arsenault) 2015 SCC 55 (35755) (35873) (35946)
Both ss. 130(1) (a) and 117 (f) of the National Defence Act engage the liberty interest of individuals subject to the military Code of Service Discipline. So for these provisions to comply with s. 7 of the Charter, deprivation of liberty must be done in accordance with the principles of fundamental justice. That a law must not be overbroad is a principle of fundamental justice, and is one of the minimum requirements for a law that affects a person’s life, liberty or security of the person.
Criminal Law: Money Laundering
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 (35399)
The federal proceeds of crime/money laundering/terrorist financing legislation (including regulations) “taken as a whole, interfere with the lawyer’s duty of commitment to the client’s cause, which … is a principle of fundamental justice [and] there is no need to conduct a separate analysis relating to the proposed principle of fundamental justice relating to solicitor-client privilege”. They are contrary (viz-a-viz lawyers) ss. 7 & 8 of the Charter, and not saved under s. 1.
Criminal Law: Pornography; Private Use Exception
R. v. Barabash, 2015 SCC 29 (35977, 36064)
The test in Sharpe requires a determination the sexual activity depicted is lawful ̶ and so did not arise in the context of an exploitative relationship. Because the trial judge did not consider this specific question, a new trial is ordered.
Criminal Law: Post-Offence Conduct
R. v. Rodgerson, 2015 SCC 38 (35947)
The trial judge here erred in his jury instructions on concealment and clean-up, and that error ̶ in conjunction with the erroneous instructions on the accused’s flight from and lies to the police ̶ was fatal, necessitating a new trial. The Court also indicated their “concerns” about the proliferation of long and unnecessarily complex jury charges “… taming the unchecked expansion of jury charges is not merely advisable ̶ it is a legal necessity.”
Criminal Law: Third Party Suspect Evidence; Similar Fact; Role of Trial Judge as Evidentiary Gatekeeper
R. v. Grant, 2015 SCC 9 (35664)
Tests governing known third party suspect evidence and similar fact evidence should not be stretched beyond particular circumstances they were designed to address. Instead, first principles governing admissibility of evidence properly balance the competing interests. Trial judges must determine if evidence is logically relevant to an available defence ̶ one that can be put to the jury. The air of reality test requires trial judges, taking the proposed evidence at its greatest strength, to determine whether the record would contain (by quotation) “a sufficient factual foundation for a properly instructed jury to give effect to the defence”.
Criminal Law: Wrongful Convictions; “Mercy” Power
Hinse v. Canada (Attorney General), 2015 SCC 35 (35613)
The exercise of the Minister’s power of mercy is protected by a qualified immunity and the Crown can be held liable only if the decision was made in bad faith, and with malice. In the absence of bad faith or serious recklessness on the Minister’s part, and of a causal connection between his actions and the alleged damage, an action (for mercy and a pardon, resulting from an “unjust sentence” of 15 years for armed robbery) against AG Canada must fail.
Employment Law: Constructive Dismissal
Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (35422)
Not necessary to articulate a rigid framework for determining whether a particular administrative suspension is wrongful because approach and factors depend on the nature and circumstances of the suspension. Overriding question is whether suspension was reasonable and justified, but certain factors, always relevant: duration of suspension, whether suspension with pay, good faith on employer’s part, including demonstration of legitimate business reasons.
Extradition: Legal Test; Comity
Canada (Attorney General) v. Barnaby, 2015 SCC 31 (35548)
The question is whether the Minister’s decision to surrender was reasonable, which requires the Minister to engage in a balancing exercise. The C.A. below failed to consider the principle of comity and Canada’s international obligations.
Extradition: “Shock the Conscience”
Caplin v. Canada (Justice), 2015 SCC 32 (35527)
To satisfy the Minister that extradition should be refused, it must be shown surrender would “shock the conscience” and thereby violate s. 7 of the Charter, or be “unjust or oppressive” under s. 44(1) of the Extradition Act.
M.M. v. United States of America, 2015 SCC 62 (35838)
The Minister’s decision to extradite was upheld: reviewed the relevant facts, applied the correct legal principles to the submissions and evidence, gave serious consideration to the best interests of the children and weighed them with other relevant considerations.
Family Law: Support Guidelines; Jurisdiction
Strickland v. Canada (Attorney General), 2015 SCC 37 (35808)
Canada’s Superior courts have jurisdiction regarding Federal Child Support Guidelines.
Immigration Law: People Smuggling & Admissibility
B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 (35388, 35688, 35685, 35677)
Section s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. Acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling. Section 37(1) (b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime, so that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1) (b).
Immigration Law: People Smuggling & Refugee Status
R. v. Appulonappa, 2015 SCC 59 (35958)
Similar summary to that immediately above.
Immigration & Refugees: Humanitarian and Compassionate Relief
Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (35990)
The proper approach is more consistent with the goals of s. 25(1) of the Immigration and Refugee Protection Act and focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process, seeing the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but without treating them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion.
Intellectual Property: Broadcast Licences
Canadian Broadcasting Corp v. SODRAC 2003 Inc., 2015 SCC 57 (35918)
Broadcasting a program that uses copyright-protected music engages the right to communicate the work to the public by telecommunication, a right that rests exclusively with the copyright holder for that musical work, so that broadcasters must secure a licence. The Board here was correct in finding that broadcast-incidental copying engages the reproduction right, consistent with this Court’s decision in Bishop v. Stevens,  2 S.C.R. 467, and the context of the statutory scheme set out in the Copyright Act. However, the Board erred herein, failing to consider the principles of technological neutrality and balance in setting the valuation of this particular licence, and the matter is remitted back to the Board for reconsideration of the valuation.
Labour Law: Freedom of Association; Police Unions
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (34948)
The s. 2 (d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests; the current RCMP labour relations regime denies that choice, and imposes a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence. The exclusion of RCMP members from collective bargaining under para. (d) of the definition of “employee” in s. 2(1) of the Public Service Labour Relations Act infringes s. 2 (d) of the Charter, and is not justified under s. 1
Labour Law: Expenditure Restraint Act
Meredith v. Canada (Attorney General), 2015 SCC 2 (35424)
Despite deficiencies in the “Pay Council process”, it nonetheless constitutes associational activity that attracts Charter protection. The question here is whether the Expenditure Restraint Act amounted to substantial interference with that activity despite its constitutional deficiencies. The S.C.C. concluded it does not.
Labour Law: Essential Services; Right to Strike; Freedom of Association
Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (35423)
The prohibition against strikes in the Public Service Essential Services Act substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2 (d) of the Charter; the infringement is not justified under s. 1; the declaration of invalidity suspended for one year; and the appeal with respect to The Trade Union Amendment Act, 2008 is dismissed.
Language Rights/Education: School Equivalency
Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (35619)
When comparing equivalence between minority and majority language schools, the quality of instruction and facilities may both be strong indicators. Ultimately, the focus of the assessment is the substantive equivalence of the educational experience.
Language Rights/Judges: Minority Language Rights; Reasonable Apprehension of Bias
Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (35823)
The test for reasonable apprehension of bias is undisputed and first articulated in Committee for Justice and Liberty v. National Energy Board, 1 S.C.R. 369. This test ̶ what would a reasonable, informed person think ̶ has consistently been endorsed and clarified by S.C.C. The objective is to ensure not only the reality, but the appearance of a fair adjudicative process (emphasis in original). Judges should avoid affiliations with certain organizations, such as advocacy or political groups, but are not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest. Yukon has not delegated the function of setting admission criteria for children of non-rights holders to the Board, and in the absence of any such delegation, there is no authority for the Board to unilaterally set admission criteria different from what is set out in the Regulation. As to whether the Yukon is required, by virtue of s. 6(1) of the Languages Act, to communicate with and provide services to the Board and its employees in French, there should be a new trial with the benefit of a full evidentiary record, not a dismissal of the claims.
Securities: Evidence for Class Actions
Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18 (35550)
The S.C.C. agreed with the C.A. and Motions Judge that the “reasonable possibility” of success required under s. 225.4 sets out a different and higher standard than the general threshold for the authorization of a class action under art. 1003 of the C.C.P.
Tax: Characterization of Penalties/Proceedings
Guindon v. Canada, 2015 SCC 41 (35519)
Proceedings under s. 163.2 are of an administrative nature, so the Appellant herein is not a person “charged with an offence” and accordingly the protections under s. 11 of the Charter do not apply.
Wagner J.: “We are all of the view that the appeal should be dismissed, essentially for the reasons given by the Québec Court of Appeal. The appellants have not persuaded us that the Court of Appeal erred in interpreting s. 98 of the Constitution Act, 1867. The arguments based on Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21,  1 S.C.R. 433, do not stand up to analysis. As the Court of Appeal mentioned in paras. 26-36 of its opinion, this appeal concerns different constitutional and statutory provisions, and the reasoning and conclusions from that reference do not apply to it. For these reasons, the appeal is dismissed.”
Criminal Law: Cheating; Fraud
There was evidence that could establish horse racing is a game as defined for the cheating offences charged. Fraudulent conduct is not limited to deception, such as by misrepresentations of fact; rather, fraud requires proof of “deceit, falsehood or other fraudulent means”, encompassing “all other means which can properly be stigmatized as dishonest.” Where the alleged fraudulent act is not in the nature of deceit or falsehood, such as a misrepresentation of fact, the causal link between the dishonest conduct and the deprivation may not depend on showing that the victim relied on or was induced to act by the fraudulent act. Cromwell J.: “We are all of the view that the appeal should be dismissed.”
Criminal Law: Dangerous Driving Causing Death; Test For Mens Rea
Abella J.: “The majority is of the view that the appeal should be dismissed substantially for the reasons of Willcock J.A. Justices Moldaver and Karakatsanis would allow the appeal substantially for the reasons of Tysoe J.A.” The B.C.C.A. (by majority) ordered a new trial; clarification of subjective v. objective conduct.
Criminal Law: Homicide
Abella J.: “We are all of the view that the appeal should be dismissed. The errors of law in connection with the failure to identify the unlawful act and to properly instruct the jury on the elements of manslaughter are such that the curative proviso is inapplicable”. New trial ordered because of jury instructions regarding defence of accident, murder s. 2, and manslaughter.
Criminal Law: Direct Indictment Delay
McLachlin J.: “This is an appeal as of right based on the dissenting view of Bennett J.A. of the B.C.C.A. that the five-month delay caused by the Crown’s preferment of a direct indictment, which was not considered by the trial judge, established an unreasonable delay in violation of s. 11(b) of the Charter. MacKenzie J.A., for the majority of the B.C.C.A., concluded (at para. 148): “It is my view that if [the trial judge] erred in not attributing to the Crown responsibility for the five months’ delay arising from the direct indictment, . . . such error does not upset the overall result, as I have found that other factors weigh more heavily on the other side of the balance.” The majority of the Court sees no error in the conclusion of the majority of the B.C.C.A. The majority would accordingly dismiss the appeal. Karakatsanis and Côté JJ., dissenting, would allow the appeal for the reasons of Bennett J.A. The appeal is dismissed.”
Criminal Law: Federal or Provincial Prison
McLachlin J.: “… if Mr. Khadr’s eight-year sentence is treated as a single global sentence for all the offences to which he pleaded guilty, the sentence is under the minimum for an adult sentence, with the result that s. 20 (a)(ii) of the International Transfer of Offenders Act applies and his sentence is to be served in a provincial facility … a proper interpretation of the relevant legislation does not permit Mr. Khadr’s eight-year sentence to be treated as five distinct eight-year sentences to be served concurrently. For the purposes of placement, whatever interpretation is taken of the provisions, s. 20 (a) … applies in this case, with the result that placement should be in a provincial correctional facility.”
Criminal Law: Importing & Possession for the Purposes
McLachlin J.: “We are all of the view that the appeal should be allowed, substantially for the reasons of Laskin J.A. The conviction is set aside and a new trial is ordered.” Justice Laskin (dissenting in the C.A.) focused on a ‘litany of errors’ in assessing the appellant’s evidence and in rejecting the appellant’s denial of allegations which materially affected credibility assessment.
Criminal Law: Jury Instructions re Homicide
McLachlin C.J.: “This is an appeal as of right. We would allow the appeal. The jury in its final question asked the judge to clarify the distinction between “to kill” and “to murder”. This raised the question of intent in relation to the charges of murder and attempted murder. The judge should have clarified the nature of the concern, and then addressed it. Instead, the judge merely referred the jury to the written instructions he had previously given the jury. Viewing the record as a whole, we are satisfied that there is a possibility that the jury could have misunderstood what had to be proved for them to return guilty verdicts. We note in this regard the Crown’s concession that the decision tree given to the jury was in error on the issue of provocation. The evidence is not so overwhelming as to permit us to conclude that the error would have had no effect on the verdicts. The appeal is allowed, the verdicts are set aside, and a new trial ordered on both charges.”
Criminal Law: Refusal to Blow
Section 794(2) properly interpreted, imposes a persuasive burden on the accused to prove an “exception, exemption, proviso, excuse or qualification prescribed by law”.
Criminal Law: Sexual Assault
Abella J: “The majority is of the view that the appeal should be dismissed for the reasons of Justices Watson and Rowbotham in the Court of Appeal. Justice Côté is dissenting and she would allow the appeal substantially for the reasons of Justice Wakeling.”
Criminal Law: Sexual Assault (where is internal quote marks?)
McLachlin C.J.: “We are all of the view that the appeal must be dismissed. We agree with Justice Monnin of the Court of Appeal, for the majority, when he stated at para. 48: I am of the view that the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of the witness taking into account the areas of concerns which she outlined. The appeal is therefore dismissed.”
McLachlin C.J.: “We are all of the view that the appeal should be allowed. The appeal is allowed and the decision of the Minister of Justice is reinstated with reasons to follow.”
The Court: “We are all of the view that the appeal should be dismissed. The appeal is dismissed with reasons to follow.”
Insurance: SABS Priorities
The Court: “We are of the view that the appeal should be allowed with costs for the reasons of Juriansz J.A.”
Pharmaceuticals: Amending Pleadings
McLachlin C.J.: “We are all of the view to dismiss the appeal substantially for the reasons of the majority of the Court of Appeal. The appeal is dismissed with costs.”
Leaves to Appeal Granted
Aboriginal Law/Municipal Law: Highest & Best Use
Musqueam Indian Band Board of Review v. Musqueam Indian Band, 2015 BCCA 158 (36478)
The Shaughnessy Golf and Country Club operated its golf course in Vancouver on reserve land belonging to the Musqueam Indian Band. Since 1958, the Club leased this land from the Band, and the lease restricts the use of the property to that of a golf course. During that time, the Club paid property taxes, first to the City of Vancouver, and then to the Band, based on the value of the land as a golf course. The Band appealed a 2011 tax assessment to the Musqueam Indian Band Board of Review, contending the true assessed value of the property should be its value as residential land. The Board sought a determination from the B.C.S.C. on whether the use of the land as a golf course could properly be considered in assessing the value of the property. The B.C.S.C answered the question in the affirmative, holding the use of the property as a golf course could be considered in assessing the value of the land to determine its highest and best use. On appeal by the Band, the B.C.C.A. upheld this result but varied the B.C.S.C.’s answers, finding the use of the land as a golf course constituted a “restriction” on use specified in the lease, which was “placed by the Band”, and was therefore to be considered by the Board in assessing the property’s value under the terms of the Band’s property assessment by-law.
Agriculture Law in Québec: Income Stabilization
Financière agricole du Québec v. Ferme Vi-ber inc., 2014 QCCA 1886 (36205)
The Applicants are farm businesses that participated in the Farm Income Stabilization Insurance Program (“ASRA Program”) administered by the Respondent, the Financière agricole du Québec, under the Act Respecting La Financière Agricole du Québec. The goal of the ASRA Program is essentially to provide program participants with a positive annual income regardless of market fluctuations. When the market price is lower than the production costs, the Financière pays participants compensation based on the parameters of a typical farm. The Applicants sought over $15M in compensation from the Respondent for the year 2007. The Superior Court allowed the Applicants’ actions, but the C.A. set aside this decision.
Agriculture Law in Québec: Income Stabilization
Lafortune v. Financière agricole du Québec, 2014 QCCA 1891 (36210)
Similar summary to that immediately above.
Arbitration: Court Review
B.C. (Ministry of Forests) v. Teal Cedar Products Ltd., 2015 BCCA 263 (36595)
The B.C. Forestry Revitalization Act permitted the Province to reduce by 20% the land base and allowable annual cut of forest tenures held by forestry companies, including the Applicant, Teal Cedar Products Ltd. (“Teal”). A dispute arose regarding compensation the Province must pay Teal for the “value of improvements made to Crown land” under s. 6(4) of the Revitalization Act. The parties settled Teal’s compensation under the Revitalization Act for the value of the lost harvesting rights. Although the Province had advanced a total of $4M, the parties did not agree on the final compensation for the value of the related improvements. This dispute went to arbitration under the B.C. Commercial Arbitration Act (renamed the Arbitration Act, effective March 18, 2013), as required by the Revitalization Act. The Revitalization Act did not specify a methodology for valuing the improvements so the arbitrator relied on expert evidence and chose a “cost savings approach” to valuation. On April 27, 2011, the arbitrator awarded Teal $5,150,000 (as shown in the calculations in the corrigenda issued June 30, 2011 by the arbitrator), plus compound interest, in addition to the $4M already advanced. The arbitrator denied compensation for improvements relating to one of Teal’s forest licences. Both parties applied to the B.C.S.C. for leave to appeal the arbitrator’s award. B.C.S.C.: portion of award set aside. B.C.C.A.: appeal of judge’s order allowed.
Civil Procedure/Charter: Fracking; Motions to Strike
Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (36167)
The Applicant owned land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owed her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the Respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleged from November 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the Respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the Respondent. The Respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the Applicant’s negligence and Charter claims. While the Court held the Charter claims were not doomed to fail and did disclose a cause of action, it held the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act. The C.A. dismissed the appeal.
Civil Procedure/Class Actions: Jurisdiction
Trillium Motor World Ltd. v. General Motors of Canada Limited, 2014 ONCA 497 (36087)
A group of over 200 General Motors dealerships from across Canada launched, in Ontario, a class action lawsuit against General Motors of Canada and the Respondent, Cassels Brock & Blackwell LLP. This class action resulted from a restructuring by General Motors of Canada Limited in which the company closed dealerships across the country. At that time, General Motors sent Wind-Down Agreements (“WDA”) to over 200 dealerships. The WDAs were accompanied by a letter indicating the dealerships were required to obtain legal advice with regard to the proposed agreements and any dealership wishing to accept the WDA also had to provide General Motors with a certificate signed by his or her legal counsel certifying he or she had explained the terms of the WDA to their client. During the restructuring, the law firm had provided legal advice to the Canadian Automobile Dealers’ Association (“Association”), the national association of franchised automobile and truck dealerships that sell new vehicles. In the class action, it was alleged the law firm was negligent in the legal advice it provided to the dealerships affected by the restructuring. In its defence, the law firm denied having had the mandate to represent individual dealerships, claiming the Association was its sole client. In the alternative, the law firm would commence third party actions against lawyers and law firms who provided legal advice to the independent dealerships before they accepted and signed the WDA. The law firm added over 150 lawyers and law firms from across the country as third party defendants. The Applicants were lawyers and law firms from the province of Quebec who provided legal advice to dealerships in Quebec with regard to the WDA. They filed, in the Ontario Superior Court of Justice, a motion seeking an order dismissing or staying the third party claim initiated against them, arguing Ontario courts did not have jurisdiction to hear the proceeding. Ontario Superior Court of Justice: Applicants’ motion to dismiss or stay the third party action, dismissed. C.A.: appeal dismissed.
Civil Procedure/Employment Law: Freedom of Information v. Solicitor-Client Privilege
University of Calgary v. J.R., 2015 ABCA 118 (36460)
In the course of a wrongful dismissal suit by an individual against the Respondent University, the University asserted solicitor-client privilege over certain material. The individual made an access to information request under s. 7 of the Freedom of Information and Protection of Privacy Act seeking certain records about her in the University’s possession. The University provided some disclosure, but claimed solicitor-client privilege over some of the requested material. The Commissioner’s delegate eventually directed the University to the Commissioner’s “Solicitor-Client Privilege Adjudication Protocol”. When the University did not comply, the delegate issued a “notice to produce records” under s. 56(3) of the Act. It reads, in part, “[t]he Commissioner may require any record to be produced to the Commissioner and may examine any information in a record… [d]espite any other enactment or any privilege of the law of evidence”. The delegate indicated in an accompanying letter the purpose of the notice was to enable him to determine whether solicitor-client privilege had been properly asserted because the University had not provided sufficient evidence to allow him to make that determination. The University J.R.’d the delegate’s decision to issue the notice to produce. The Law Society of Alberta was granted intervener status at the Court of Queen’s Bench and the C.A. J.R. was dismissed, and the subsequent appeal allowed.
Civil Procedure in Québec: Contempt
Nadeau-Dubois v. Morasse, 2015 QCCA 78 (36351)
In the context of the student unrest over proposed increases in university tuition fees, the Applicant, Jean-François Morasse, filed a motion under Québec’s art. 53 C.C.P. asking the Respondent, Gabriel Nadeau-Dubois, be cited for contempt of court. In his view, the statements made by Mr. Nadeau-Dubois in a television interview constituted direct interference with a safeguard order extending an interim interlocutory injunction rendered several weeks earlier ordering any person not to obstruct or impede access to classes. Quebec Superior Court: interim interlocutory injunction allowed; safeguard order adopting conclusions of injunction allowed; Respondent guilty of contempt of court. C.A.: appeal allowed; Respondent acquitted.
Civil Procedure in Québec: Litigation Privilege; Lawyer-Client Privilege
Lizotte v. Aviva, compagnie d’assurances du Canada, 2015 QCCA 152 (36373)
For the purposes of an ethics inquiry against a claims adjuster employed by the Respondent, the syndic of the Chambre de l’assurance de dommages, requested documents concerning the claims adjuster from the Respondent under s. 337 of the Act respecting the distribution of financial products and services. The Respondent removed certain documents from the documentation provided in order to take account of litigation privilege and lawyer‑client privilege. The syndic applied to the Superior Court for a declaratory judgment to determine whether the Respondent could refuse to disclose the documents covered by those privileges. Quebec Superior Court: professional secrecy and litigation privilege could be raised against syndic of Chambre de l’assurance de dommages. C.A.: appeal allowed in part; wording of conclusion changed; professional secrecy and litigation privilege could still be raised against syndic of Chambre de l’assurance de dommages.
Class Actions: Multi-Jurisdiction Process
Endean v. British Columbia, 2014 BCCA 61 (35843)
In the context of a national class action, the settlement agreement assigned a supervisory role to Superior Court judges in Ontario, B.C. and Quebec. It also provided, although each of the three courts is to exercise an independent supervisory power over the settlement within its own jurisdiction, any order by a court only takes effect once there are materially identical orders of the other two courts. Contested motions were brought by class action counsel in each of the three provinces pursuant to the settlement agreement. Class counsel in each province proposed the most efficient and effective procedure for adjudicating the motions would be for the three supervisory judges to sit together in one location. The Attorneys General of the three provinces objected to the judges of their provinces sitting outside the territorial boundaries of their provinces. Class action counsel therefore brought applications for directions in their respective province for a determination on the jurisdictional issue. Ontario Superior Court of Justice: a judge of the Ontario Superior Court of Justice has the discretion to sit with his or her counterparts in a location in or outside Ontario to hear applications under the 1986-1990 Hepatitis C Settlement Agreement without the necessity of a video-conference link to a courtroom in Ontario, and may conduct the hearing in a location in or outside Ontario alongside the other supervisory judges from B.C. and Quebec. C.A.: appeal allowed in part; order amended to state that when a hearing is conducted from outside Ontario, it must be conducted with the necessity of a video-conference link to a courtroom in Ontario. The appeal will be heard with Dianna Louise Parsons et al. v. Her Majesty the Queen in Right of Ontario et al.
Class Actions: Multi-Jurisdiction Process
Parsons v. Ontario, 2015 ONCA 158 (36456)
Similar summary to that immediately above.
Corporations: Oppression Remedy
Mennillo v. Intramodal inc., 2014 QCCA 1515 (36124)
In July 2004, Mario Rosati incorporated the Respondent Intramodal Inc. under the Canada Business Corporations Act after discussions with the Applicant, his friend Johnny Mennillo. The two men agreed the Applicant would finance the company and Mr. Rosati would contribute his expertise. In the company’s books, there was a resolution appointing both men as directors. In addition, the common shares were shared in a proportion of 51/49 in favour of Mr. Rosati. On May 25, 2005, Mr. Mennillo resigned from his position as director and officer of Intramodal. The reasons given for his resignation were contradictory. The parties also had different interpretations of the scope of the resignation. Intermodal began operations in December 2009, and Mr. Mennillo continued to advance money to keep the company running smoothly. By the time this venture ended, he had advanced a total of $440,000. This amount was paid back to him from July 2006 to December 2009. According to the Applicant, when the last payment was made, he learned he was no longer a shareholder in Intramodal. Believing Intramodal and Mr. Rosati had unduly and illegitimately deprived him of his status, he filed an oppression action against Intramodal. The Quebec Superior Court dismissed the action. Poirier J. found Mr. Mennillo held 49 common shares on condition he guarantee all of Intramodal’s debts. He refused to do so and asked to withdraw from the company as shareholder and director, effective May 25, 2005, while agreeing to be no more than a lender to his friend Mr. Rosati. A majority of the C.A. dismissed the appeal. The dissenting judge would have declared Mr. Mennillo was still a shareholder in the company.
Royal Bank of Canada v. Trang, 2014 ONCA 883 (36296)
The Applicant, Royal Bank of Canada (“RBC”), had a judgment against the Respondents, Phat and Phuong Trang. The Trangs owned a property mortgaged to the Respondent, Bank of Nova Scotia (“Scotiabank”). The Sheriff refused to sell the property without a mortgage discharge statement. RBC sought to obtain this statement by examining the Trangs but they did not appear, and Scotiabank said PIPEDA precluded it from disclosing the statement. RBC then brought a motion to compel Scotiabank to produce the statement. The motion judge found he was bound by Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3, 103 O.R. (3d) 241 and dismissed the motion. The Ontario C.A. quashed RBC’s appeal because the motion judge’s order was interlocutory, finding RBC should seek to examine a Scotiabank representative and obtain the statement by motion under Rule 60.18(6)(a) of the Ontario Rules of Civil Procedure. Scotiabank appeared voluntarily on the examination, however, and not by court order issued under Rule 60.18(6)(a). It maintained PIPEDA prevented disclosure of the discharge statement. RBC brought another motion to compel production by Scotiabank, however the motion was not brought under Rule 60.18(6) (a), contrary to the instructions of the C.A. The majority of the C.A. dismissed RBC’s appeal.
Criminal Law: Bail; Pre-Sentence Custody
R. v. Safarzadeh-Markhali, 2014 ONCA 627 (36162)
The Applicant was charged with possession of marijuana and firearms-related offences. He appeared before a J.P. for bail. He did not wish to show cause for release and consented to detention. The J.P. endorsed the Information pursuant to s. 515(9.1) of the Criminal Code, noting his criminal record. Pursuant to ss. 719(3) and 719(3.1) of the Criminal Code, where such an endorsement has been made, credit upon sentencing for pre-sentence time spent in custody is limited to a 1-to-1 ratio and a 1.5-to-1 ratio is not permitted. The Applicant applied for a declaration that ss. 719(3) and 719(3.1), as applied in this case, breach s. 7 of the Charter. Ontario Court of Justice: declaration portion of s. 719(3.1) of Criminal Code violates s. 7 of Charter and is of no force and effect; 1.5-to-1 credit given for time served before sentencing. C.A.: appeal dismissed.
Criminal Law: Cheating; Fraud
R. v. Riesberry, 2014 ONCA 744 (36179)
The Applicant, Mr. Riesberry, was acquitted on charges of defrauding the public of money wagered on the outcome of a horse race exceeding $5,000, cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horse race, attempting to defraud the public of money to be wagered on the outcome of a horse race exceeding $5,000, and attempting to cheat while playing a game with the intent to defraud members of the public who would be engaged in the wagering of money on the outcome of a horse race. Mr. Riesberry was a licensed trainer of standardbred horses under the Ontario Racing Commission Act, 2000, and subject to the Ontario Racing Commission’s Rules of Standardbred Racing. He was videotaped injecting a substance into the trachea of a horse at a raceway and a syringe containing performance-enhancing drugs discovered in his truck. On the fraud and attempted fraud charges, the trial judge found the Crown had not proven deprivation beyond a reasonable doubt. On the cheating charges, the trial judge concluded horseracing is not a game within the meaning of s. 197 of the Criminal Code, the betting public was too remote from Mr. Riesberry’s act of cheating, and the betting public was not deceived by his cheating because there was no evidence that anybody placed any bet in reliance or non-reliance on the fact the horse may have been injected with a performance-enhancing drug. The C.A. allowed the appeal, ordered a new trial on the cheating and attempted cheating charges, and entered convictions on the charges of fraud and attempted fraud.
Criminal Law: DNA Swabs
R. v. Saeed, 2014 ABCA 238 (36328)
Mr. Saeed was arrested and charged with sexual assault and sexual interference. At the police station, he was compelled to swab himself for DNA testing while an officer watched. The police officer’s intent was to test the swab for the complainant’s DNA. The police did not obtain a warrant. DNA on the swab matched the complainant. In the trial proceedings, the admissibility of the DNA evidence and the identification of Mr. Saeed as the assailant were in issue. Court of Queen’s Bench of Alberta: convictions for sexual assault causing bodily harm and sexual interference. C.A.: appeal dismissed.
Criminal Law: Mandatory Minimums; Sentencing
R. v. Lloyd, 2014 BCCA 224 (35982)
The Applicant was convicted of possession for the purposes. He had a recent prior conviction for a similar offence and was subject to a mandatory minimum sentence of imprisonment for one year pursuant to s. 5(3) (a)(i)(D) of the Controlled Drugs and Substances Act. The Applicant challenged the constitutional validity of s. 5(3) (a)(i)(D). The trial judge ruled the mandatory minimum sentence required by s. 5(3) (a)(i)(D) constituted cruel and unusual punishment contrary to s. 12 of the Charter; it was not a reasonable limit within the meaning of s. 1 of the Charter and was declared of no force and effect. The C.A. allowed the Crown’s appeal, set aside the declaration and increased the sentence imposed.
Criminal Law/National Security: Foreign Wiretaps
X (Re), 2014 FCA 249 (36107)
There is a sealing order in this case. In 2009, a warrant was issued permitting CSIS to intercept, within Canada, the telecommunications of two Canadian citizens travelling abroad. In 2013, it came to the attention of the issuing judge, where similar warrants were issued, it had become the practice for CSIS and for the Communications Security Establishment (“CSE”) to make requests to foreign partner agencies for assistance in the targeting of the communications of Canadians abroad. The court recalled counsel to address two issues: (1) whether the Attorney General had met his duty of candour when applying for such warrants, and in particular, whether the assistance provided by CSE in tasking foreign partners should have been disclosed; (2) whether s. 12 of the Canadian Security Intelligence Service Act authorizes CSIS to engage the assistance of foreign agencies in intercepting the communications of Canadians abroad. The court found the Attorney General had breached his duty of candour and s. 12 of the Act did not authorize CSIS to engage the assistance of foreign agencies. The C.A. dismissed the Attorney General’s appeal.
Criminal Law: Proving Child Pornography
R. v. Villaroman, 2015 ABCA 104 (36435)
The Respondent, Mr. Villaroman, was having mechanical problems with his laptop computer, so he took it to a repair shop. The computer was not password-protected. The repair technician found some child pornography on the laptop computer in a music-sharing folder. He called the police, who got a search warrant and used it to find the child pornography. On the voir dire, the judge concluded the Respondent’s s. 8 Charter rights were not infringed. The trial judge convicted the Respondent of possession of child pornography. The C.A. allowed the appeal against conviction. The conviction was quashed, and an acquittal entered.
Criminal Law: Sentencing; Rejection of Joint Sentencing Submissions
R. v. Anthony-Cook, 2015 BCCA 22 (36410)
The Applicant was charged with manslaughter. He was detained in both a jail and in a mental health facility prior to his mid-trial guilty plea and sentencing. The Crown and defence had made a joint submission the appropriate sentence was a period of 18 months’ additional incarceration, and no probation order should be imposed. The sentencing judge determined the period of imprisonment should be three years, apart from a credit for pre-sentence custody. The judge sentenced the Applicant to an additional 24 months less a day imprisonment (with credit for 366 days in pre-sentence custody). The judge also imposed a three-year probationary term, the terms of which included the Applicant refrains from using illegal substances. The C.A. dismissed the sentence appeal.
Criminal Law: Sexual Offences
R. v. W., 2014 ONCA 598 (36112)
Publication ban in the context of (alleged) delay re (alleged) historic sexual abuse.
Criminal Law: Sexual Offences; Prohibition Orders
R. v. K.R.J., 2014 BCCA 382 (36200)
There is a publication ban in this case in the context of retrospectivity (or not) of prohibition orders for specified sexual offences against those under 16.
Criminal Law: Third Party Records
World Bank Group v. Wallace, et al., 2014 ONSC 7449 (36315)
The individual Respondents (the “accused”) are jointly charged with one count of bribing foreign public officials under the Corruption of Foreign Public Officials Act in relation to SNC-Lavalin’s bid for a construction supervision contract for the Padma Bridge in Bangladesh. In the course of their criminal proceeding, the accused brought an application for an order requiring the Applicant third party to produce certain documents. The Applicant had received information from tipsters about possible corruption involving SNC-Lavalin, and had approached the RCMP, providing it with information concerning the allegations. Two of the Applicant’s employees subpoenaed by the defence did not appear before the court and the Applicant took the position it was not required to attend given its immunity from court process as an international organization. The defence’s application for an order requiring the production of documents by the Applicant was granted in part by the Superior Court of Justice on the basis the Applicant had waived its immunity. The Applicant was ordered to produce certain records for court review in accordance with R. v. O’Connor,  4 S.C.R. 411.
Igloo Vikski Inc. v. C.B.S.A., 2014 FCA 266 (36258)
The Respondent, Igloo Vikski Inc. imported hockey gloves. The Respondent later requested refunds of duties paid, claiming the goods should be reclassified. C.B.S.A. classified the five models of sports gloves, designed for ice hockey goaltenders under tariff item No. 62.16 rejecting the Respondent’s position they be classified under tariff item No. 39.26 of the Customs Tariff. The Respondent appealed to the Canadian International Trade Tribunal (the “CITT”). The CITT dismissed the appeal. The Federal C.A. allowed the appeal, set aside the decision of the CITT and referred the matter back for adjudication.
Elections: Third Party Spending; Freedom of Expression
B.C. Freedom of Information and Privacy Association v. B.C. (Attorney General), 2015 BCCA 172 (36495)
Is it appropriate for the B.C. Election Act to require third party sponsors of election advertising during a campaign period to register with the Chief Electoral Officer.
Insurance: Construction Cleaning
Ledcor Construction Limited v. Northbridge Indemnity Insurance Company, 2015 ABCA 121 (36452)
The two Applicants were the construction manager and owners, respectively, of a building in Edmonton. Near the end of construction, the Applicants contracted to have debris cleaned from the exterior of the building, including the windows. While cleaning, the contractor scratched and damaged the windows, requiring their replacement at considerable cost. When the Applicants claimed on their insurance policies, their claims were denied on the basis of a clause excluding coverage for “the cost of making good faulty workmanship, construction materials or design unless physical damage not otherwise excluded by this policy results, in which event this policy shall insure such resulting damage”. The Court of Queen’s Bench of Alberta held the damage to the windows not covered by the exclusion clause and was covered by the insurance policy. It did so on the basis factors determining the reasonable expectations of the parties weighed in favour of the Applicants’ interpretation. It also found the clause ambiguous and applied the contra proferentem rule. The C.A. allowed the insurers’ appeal and granted a declaration the damage to the windows was not covered.
Insurance: Deductibility of CPP
Sabean v. Portage La Prairie Mutual Insurance Company, 2015 NSCA 53 (36575)
Can future CPP disability benefits be deducted from damages.
Insurance in Québec: No Fault; Motions to Strike
Gargantiel v. Québec (Attorney General), 2015 QCCA 224 (36388)
Just after 6:00 P.M., the Applicant lost control of his automobile and went off the highway into a patch of bushes next to a railway track. A few minutes later, the Sûreté du Québec was notified of the accident by the automobile’s OnStar system with precise GPS coordinates of the location of the accident and the Applicant’s vehicle. In the two hours following the accident, the SQ failed to locate the Applicant and his automobile, never having stopped to search at the precise location indicated to them by the GPS coordinates and ostensibly annoyed by the OnStar system’s repeated calls. The search was called off, and the Applicant was found approximately two days after, in a semi-conscious state, by a railway worker doing a routine inspection of the tracks. The Applicant was subsequently treated for severe injuries resulting, inter alia, in partial amputation of his right leg due to frostbite. The Applicant sued the Respondent alleging negligence on the part of the SQ. The Respondent filed a motion to have the Applicant’s action dismissed on grounds the Applicant had already been entirely indemnified in accordance with the no‑fault public automobile insurance scheme under the Automobile Insurance Act. Superior Court of Québec: motion to dismiss action granted. C.A.: appeal dismissed.
Insurance in Québec: No Fault; Separate Civil Actions
Pagé v. Godbout, 2015 QCCA 225 (36385)
The Applicant Thérèse Godbout was involved in an automobile accident, following which she was transferred to the Respondent Hôpital du Sacré‑Cœur de Montréal under the care of the Respondent physicians. While in hospital, she underwent a double amputation below the knee and suffered permanent neurological impairment to her right hand. The Applicant and her brother and daughter brought an action in damages against the Respondents, alleging they had failed to assess, monitor and treat her condition properly, resulting in an aggravation of her injury and causing separate injuries that were not a logical and foreseeable consequence of the accident. In addition to that action, the Applicant collected and continues to collect compensation from the Société de l’assurance automobile du Québec under s. 83.57 of the Automobile Insurance Act. Before trial, the parties jointly asked the Superior Court to determine whether s. 83.57 of the Act barred the Applicants’ action in damages. Quebec Superior Court: declaratory judgment finding that s. 83.57 of Act did not prevent civil liability action against Respondents if Applicants able to prove separate fault and injury. C.A.: appeal allowed.
Judges in Quebec: Remuneration & Benefits
Conférence des juges de paix magistrats du Québec v. Québec (Procureur général), 2014 QCCA 1654 (36165)
The Conférence des juges de paix magistrats du Québec and several presiding justices of the peace (“PJPs”) filed a motion to strike down provisions of the Act to amend the Courts of Justice Act and other legislative provisions as regards the status of justices of the peace (“the Act”) and the Courts of Justice Act on the ground the scheme established by the impugned provisions did not guarantee judicial independence. The Applicants’ motion also challenged the constitutionality of Order No. 932-2008. The litigation arose out of amendments made to the Courts of Justice Act in 2004 concerning justices of the peace. The amendments became necessary as a result of judgments of the S.C.C. and Quebec C.A. suggesting the system then in place in Quebec did not guarantee the independence of justices of the peace. The effect of the reform undertaken in 2004 was to replace the former categories of justices of the peace with two new categories, including PJPs, who formed part of the judicial system. The Act gave PJP status to certain justices of the peace who had formerly been justices of the peace with extended powers. They retained the salary they were receiving before the coming into force of the Act until it was equal to the salary to be determined by the government for subsequently appointed PJPs. An order was then made specifying the annual remuneration of PJPs appointed after the coming into force of the Act. Their annual remuneration was about $20,000 less than that of their colleagues. The Act also provided that a committee on the remuneration of judges would not determine the salary and benefits of all PJPs until three years later, in 2007. In addition to these changes, the Courts of Justice Act was amended to make the pension plan established by the Act respecting the Pension Plan of Management Personnel applicable to PJPs. Quebec Superior Court: Applicants’ amended motion to institute proceedings dismissed; declarations made upholding constitutionality of ss. 27, 30 and 32 of Act to amend the Courts of Justice Act and other legislative provisions as regards the status of justices of the peace, s. 178 of Courts of Justice Act and Order No. 932-2008. C.A.: appeal dismissed.
Labour Law: Termination
Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (36354)
Atomic Energy dismissed Mr. Wilson without cause and paid him severance pay. He complained under s. 240 of the Canada Labour Code, that he was “unjustly dismissed.” The labour adjudicator accepted Mr. Wilson’s submission and concluded the Applicant, dismissed without cause, had made out his complaint of unjust dismissal under the Code. The Federal Court allowed the J.R. and remitted the matter back to the adjudicator for decision. The C.A. dismissed the appeal.
Medmal in Québec: Failure to Disclose
St.G. v. B., 2014 QCCA 2207 (36291)
There is a publication ban in this case, in the context of alleged failure to detect/diagnose.
Municipal Law: Historical Rehabilitation Payments
Equitable Trust Company v. 604-1st Street S.W. Inc., 2014 ABCA 427 (36301)
In July 2004, the City of Calgary adopted a by-law designating the Lougheed Block, an older building of historical interest in downtown Calgary, as a municipal historical resource. The owner of the building entered into an agreement with the City setting out the parameters for rehabilitation work and providing for compensation from the City in the form of yearly payments over 15 years. The agreement was registered on title by caveat, which referred to the agreement and attached a copy. In 2010, the Lougheed Block was sold through judicial sale, the owner having defaulted on loan payments. In the course of the closing of the transaction, a dispute arose in respect of the payments from the City under the agreement. The owner applied to a Master in Chambers for a declaration to the effect that its right to the City’s payments was not included in the sale of the Lougheed Block to the purchaser. Master: Application by Lougheed Block Inc. for a declaration that its right to the payments from the City of Calgary arising from the Lougheed Building Rehabilitation Incentive Agreement was not included in the purchase of the Lougheed Block by 604-1 Street S.W. Inc. allowed and declaration granted. Alta. Q.B.: appeal dismissed. C.A.: appeal allowed: 604-1 Street S.W. Inc. entitled to any payments due under the Incentive Agreement from and after the date of the sale to it of the Lougheed Block.
Municipal Law: Property Assessment
Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City), 2015 ABCA 85 (36403)
The Respondent’s shopping centre was assessed for tax purposes at $31,328,500. It brought a complaint against the assessment to the Assessment Review Board for the City of Edmonton. A new city assessor took responsibility for the file and disagreed with the categorization of the mall and applied to the Review board proceeding to have the assessment increased. The Review Board accepted the assessor’s argument in part and increased the assessment to $40,795,500. The shopping centre sought leave to appeal this decision and it was granted. The Court of Queen’s Bench allowed the appeal and remitted it back to the Review Board. The C.A. dismissed the appeal.
Municipal Law/Telecommunications in Québec: Expropriation
White v. City of Châteauguay (Ville de), 2014 QCCA 1121 (36027)
After establishing a search area to build a telecommunications tower in Châteauguay, Rogers informed Châteauguay in March 2008 that it intended to build the tower at 411 Saint-Francis, which it had been renting since December 2007. Châteauguay initially opposed the project but eventually issued a construction permit. The population of Châteauguay mobilized, and the public consultation process required by federal standards then resumed. The City proposed an alternative site that suited Rogers, namely 50 Industriel, but the City first had to expropriate the owner. Faced with a prolonged contestation, Rogers decided to move forward with 411 Saint-Francis. The City then issued a notice of land reserve on the 411 Saint-Francis site. The lawfulness and constitutionality of the notices of expropriation and reserve were contested in the Superior Court. Perreault J. began by finding the City had not abused its expropriation authority in relation to 50 Industriel. She also held the expropriation of 50 Industriel did not amount to unconstitutional interference with federal jurisdiction over radiocommunication. However, she found, by issuing the notice of reserve on 411 Saint-Francis, the City had acted in bad faith and abused its authority, which made the notice null. The C.A. affirmed the decision except with respect to the lawfulness of the notice of reserve. In its opinion, when the two notices were considered together, it had to be concluded the City had acted for a legitimate municipal purpose, namely protecting the welfare of its citizens and ensuring the harmonious development of its land.
Municipal Law/Transportation Law: Jurisdiction; Motions to Strike
Canadian Transit Company v. Windsor (Corporation of the City), 2015 FCA 88 (36465)
The Respondent Canadian Transit Company (“CTC”) owned and operated the bridge spanning between Windsor and Detroit. It planned to build another bridge and purchased land in Windsor. The Applicant City of Windsor alleged the properties had not been properly maintained and under its by-laws issued repair orders against CTC’s 114 properties. CTC applied to the Federal Court. In its notice of application, CTC sought a declaration the City’s by-law “does not apply to properties purchased, leased or otherwise acquired and held” by it, including the 114 properties. The City brought a motion to strike the application in the Federal Court. The Federal Court allowed the motion. The Federal C.A. allowed the appeal, set aside the judgment of the Federal Court and dismissed the motion to strike.
Mortgages: Interest Rate
Equitable Trust Company v. Lougheed Block Inc., 2014 ABCA 234 (36123)
The Lougheed Block Inc. (“LBI”) owned a heritage office building in downtown Calgary. The mortgage principal amount being $27M. When it matured in June 2008, the borrower and the lender entered into two successive renewal agreements. The First Renewal Agreement was effective August 1, 2008. It made the 25 percent interest rate effective one month before maturity and would apply equally to arrears and money owing not in arrears. When the First Renewal Agreement matured on March 1, 2009, LBI failed to repay. Equitable offered a Second Renewal Agreement and it was executed April 28, 2009. The essence of the Second Renewal Agreement was the imposition of a 25 percent interest rate. The principal amount owing would be reduced in the event of timely monthly payments and repayment of principal by the end of the term. Following the execution of the Second Renewal Agreement, Equitable gave LBI written notice of default and demanded payment of the total amount owing based on the interest rate of 25 percent. Some of the Applicants sought a declaration the 25 percent interest rate was contrary to s. 8 of the federal Interest Act. The Q.B. Master found the First and Second Renewal Agreements violated s. 8. The trial judge allowed the appeal, finding s. 8 had not been violated. A majority of the C.A. dismissed the appeal. A dissent allowed the appeal in part, finding the Second Renewal Agreement violated s. 8.
Professions: Validity of Mandatory C.L.E.
Green v. Law Society of Manitoba, 2015 MBCA 67 (36583)
Is MCLE valid, and do principles of natural justice apply.
Canada (A.G.) v. Groupe Jean Coutu (PJC) inc., 2015 QCCA 838 (36505)
After acquiring an American pharmacy chain in 2004, the Applicant, Le Groupe Jean Coutu (PJC) inc., was faced with a problem with the accounting presentation of its American investment because of fluctuations in the exchange rate between the U.S. and Canadian dollars. In February 2005, in an attempt to find a tax-neutral solution to its currency hedge problem, it carried out a series of transactions whose net effect was to transform its net U.S. investment into a net debt. The tax consequences anticipated and agreed to by Le Groupe Jean Coutu (PJC) inc. and The Jean Coutu Group (PJC) USA Inc. were set out in the documentation formalizing the transactions. In 2010, following an audit for the taxation years 2005 to 2007, the C.R.A. notified the Applicant the transactions as described in the accounting scenario generated $2.2M in additional taxes for the three years in question. The documentation solved the currency hedge problem but also had tax consequences that were neither foreseen nor agreed to by the parties. Given the common intention of the parties was incorrectly reflected in the documentation and its consent was therefore vitiated, the Applicant filed a motion in Québec Superior Court for an order to rectify the books and records and for declaratory judgment. The Jean Coutu Group (PJC) USA Inc. consented to the motion for rectification, whereas A.G. Canada objected to it, arguing the requested corrections did not meet the conditions for rectification. Quebec Superior Court: motion for order to rectify books and records and for declaratory judgment granted. C.A.: appeal allowed; motion for order to rectify books and records and for declaratory judgment dismissed.
Fairmont Hotels Inc. v. Canada (Attorney General), 2015 ONCA 441 (36606)
Can the doctrine of rectification be used to address a foreign exchange tax exposure.
Workers’ Comp: Causal Connection
Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 (36300)
Is there a causal connection between the breast cancer(s) and the workplace.
Posted: Wednesday, January 13, 2016