This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2018, 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.


Aboriginal Law: Duty to Consult

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 (37441)

The duty to consult does not apply to the law-making process. Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament; it begins with the development of legislation; when ministers develop legislation, they act in a parliamentary capacity; courts should exercise restraint when dealing with this process; extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy, and would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature.

Aboriginal Law: Pre-Confederation Fiduciary Breaches

Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 (36983)

The Specific Claims Tribunal’s decision is restored. The Tribunal reasonably found that both the Imperial Crown and the Crown in right of Canada had owed, and breached, fiduciary obligations to the band in relation to the protection of its Village Lands from pre-emption and that the band’s pre-Confederation specific claim was valid under the Act. Treating the Crown as a continuous entity is consistent with an Indigenous perspective on the ongoing fiduciary relationship between Indigenous peoples and the Crown.

Administrative/Aboriginal Law: Discrimination; Standard of Review

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 (37208)

There is a well-established presumption that, where an administrative body interprets its home statute, the reasonableness standard applies. The presumption may be rebutted and the correctness standard applied where: (1) issues relating to the constitutional division of powers; (2) true questions of vires; (3) issues of competing jurisdiction between tribunals; and (4) questions that are of central importance to the legal system and outside the expertise of the decision maker. Exceptionally, the presumption may also be rebutted where a contextual inquiry shows a clear legislative intent that the correctness standard be applied. In applying the standard of review analysis, there is no principled difference between a human rights tribunal and any other decision maker interpreting its home statute; and human rights tribunals are equally entitled to deference where they apply their home statute. As the presumption of reasonableness is not rebutted, the Tribunal’s decisions here will be reviewed on a reasonableness standard. The reviewing court is concerned mostly with “the existence of justification, transparency and intelligibility within the decision-making process” and with determining “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. Here the Tribunal reviewed all of the complaints in carefully considered, thorough, and logical decisions that fell within the range of possible, acceptable outcomes; both decisions were reasonable and are upheld.

Administrative Law/Human Rights: Standing; Discriminatory Practices

Delta Air Lines Inc. v. Lukács, 2018 SCC 2 (37276)

The better approach here is to send this matter back to the Canadian Transportation Agency for reconsideration in its entirety. The Agency may reasonably adapt the standing tests of civil courts in light of its statutory scheme. Section 25 of the Act confers on the Agency “all the powers, rights and privileges that are vested in a superior court” with respect to all matters within its jurisdiction, and this language indicates the legislator’s intention to give deference to the Agency’s determination of its complaints process.

Charter: Equality; Delay in Access

Centrale des syndicats du Québec v. Québec (Attorney General), 2018 SCC 18 (37002)

At the time the Québec Pay Equity Act came into force in 1997, there was no methodology for assessing pay equity adjustments where there was no male comparator. Regulatory authority was given to the Pay Equity Commission to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators. A regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulation was not promulgated until May 5, 2005. The two year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007. Section 38 is constitutional.

Charter: Equality; Pay Equity

Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (37347)

Québec’s Act to amend the Pay Equity Act replaced the ongoing obligation to maintain pay equity with a system of mandatory audits every five years in which the employer was only required to rectify the wages going forward. Under s. 76.5, adjustments in compensation apply from the date of the posting of the results of the audit process. Section 76.3 provided no requirement that the audit posting include the date on which any pay inequity emerged. Under s. 103.1 para. 2, no compensation adjustments could be assessed by the Pay Equity Commission prior to the date of the audit posting. The Trial Judge held that ss. 76.3 and 76.5 breached s. 15. The declaration of invalidity was suspended for one year. The Court of Appeal upheld the Trial Judge’s finding that ss. 76.3 and 76.5 breached s. 15 of the Charter. In addition, it concluded that s. 103.1 para. 2 violated s. 15. The S.C.C. (6:3) dismissed the appeal and cross appeal; ss. 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act are unconstitutional.

Charter: Language Rights

Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50 (37642)

A purposive interpretation of the language rights herein leads to the conclusion judges are required to participate actively in protecting them. While true that lawyers have a role to play in accordance with their ethical duties, a lawyer’s failure to intervene does not release a judge from his or her duties. When language rights are violated, the appropriate remedy will generally be to order a new hearing. There is an important distinction between the right guaranteed in ss. 14 and 15(1) of the Official Languages Act — the right to speak in the official language of one’s choice — and the right guaranteed in s. 15(2) — the right to an interpreter. Whereas ss. 14 and 15(1) give any person the right to use, and any witness the right to speak in, the official language of his or her choice without being placed at a disadvantage, s. 15(2) protects the right of parties to understand what happens in hearings they participate in. These rights are distinct and need not be asserted in parallel: a person is fully entitled to choose to testify in a given language without worrying about whether an interpreter will be present. A new hearing will generally be an appropriate remedy for most language rights violations, and when a new hearing is not justified, the court can award costs if the violation resulted from, among other things, the conduct of one of the parties, or declare that the rights of a party or a witness were violated.

Charter/Professions: Freedom of Religion; Standard of Review

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (37318)

The B.C. Law Society’s decision not to recognize TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives governing the Law Society; the decision was therefore reasonable. The limitation on religious freedom in this case must be understood in light of the reality that conflict between statutory objectives and individual freedoms may be inevitable.

Charter/Professions: Freedom of Religion; Standard of Review

Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (37209)

The Ontario Law Society’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the Law Society sought to pursue; the decision was therefore reasonable.

Civil Liability: Prudence & Diligence Obligations; Exclusion Clauses

3091 5177 Québec inc. (Éconolodge Aéroport) v. Lombard General Insurance Co. of Canada, 2018 SCC 43 (37421) (37422)

The Court of Appeal erred in intervening and the judgment of the Court of Québec should be restored. The appeal of 3091 5177 Québec inc. against Axa in the first file (37421) is dismissed, and the appeal in the same file against its insurer, Lombard, as well as Promutuel’s appeal against the same insurer in the second file (37422) is allowed. The finding by the courts below that Éconolodge is liable for the theft of the car insured by Axa does not warrant intervention by the S.C.C., so the appeal of 3091 5177 Québec inc. against Axa in file 37421 is dismissed with costs. The trial judge did not make any palpable and overriding error reviewable on appeal in finding keys were handed over solely for the purpose of snow removal, and this was insufficient to transfer custody and control to Éconolodge. Since the exclusion clause in Éconolodge’s liability insurance policy is therefore inapplicable on the facts, the appeal of 3091 5177 Québec inc. against Lombard in file 37421 as well as Promutuel’s appeal against the same insurer in file 37422 is allowed with costs throughout. The trial judge’s decision ordering Lombard to pay damages, interest and the additional indemnity to 3091 5177 Québec inc. and Promutuel is restored.

Civil Procedure/Defamation: Jurisdiction v. Goldhar, 2018 SCC 28 (37202)

Israel is a clearly more appropriate forum for this claim to be heard, and the action in Ontario stayed.

Civil Procedure/Tobacco Litigation: Disclosure

British Columbia v. Philip Morris International, Inc., 2018 SCC 36 (37524)

Health databases constitute “health care records and documents of particular individual insured persons or . . . documents relating to the provision of health care benefits for particular individual insured persons” and are therefore not compellable. Neither their relevance to the pleadings in the Province’s action nor their anonymization insulate them from the text of the statute, read in its entire context and grammatical and ordinary sense, in harmony with the Act’s scheme and object. The concern of “trial fairness” is premature. Within the Act, the Legislature has provided a number of mechanisms through which trial fairness may be preserved.

Commercial Law: Shareholder Rights

Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55 (37566)

The decisions of the Superior Court and the Court of Appeal below dismissing the claim for lack of interest, are firmly grounded in Québec civil law principles. In certain cases, the civil law produces a conclusion similar to that which would arise under the common law. This is one such case. The principles of procedural and corporate law in Québec bar shareholders from exercising rights of action that belong to the corporations in which they hold shares. Shareholders may institute proceedings, however, if they can demonstrate: breach of a distinct obligation; and, a direct injury distinct from that suffered by the corporation in question. If shareholders want to ensure a corporation exercises its rights, they can do so by a derivative action in the corporation’s name: Canada Business Corporations Act, s. 239; Québec Business Corporations Act, s. 445. These rules change on bankruptcy, as all rights of action belonging to the corporation pass to the trustee: if the trustee declines to pursue an action on behalf of the corporation, the federal Bankruptcy and Insolvency Act provides that a creditor may obtain a court authorization to institute proceedings based on a right of action belonging to the corporation per s. 38(1). Other creditors are then afforded the opportunity to participate in the proceedings. But shareholders have no such right. Any surplus recovered by the creditors belongs to the estate of the corporation for the benefit of all creditors and, if anything remains, for the benefit of its shareholders. Allowing shareholders to gain an independent right of action prior to this distribution for injuries suffered by the bankrupt corporation would be to upend the usual priorities of the Bankruptcy and Insolvency Act.

Constitutional Law: Interprovincial Trade

R. v. Comeau, 2018 SCC 15 (37398)

Section 134(b) of the N.B. Liquor Control Act makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation. Mr. Comeau challenged an importing liquor charge on the basis s. 121 of the Constitution Act, 1867 — which provides that all articles of manufacture from any province shall be “admitted free” into each of the other provinces — renders s. 134(b) unconstitutional. The S.C.C. held the impediment to trade posed by s. 134(b) is an incidental effect of a regulatory scheme that does not, as its primary purpose, thwart interprovincial trade, and so does not infringe s. 121.

Constitutional Law: Parliamentary Privilege; Scope

Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39 (37543)

Staff dismissals here are not protected by parliamentary privilege. The Québec Assembly does not need exclusive, unreviewable authority over the management of its security guards to perform its constitutional role with dignity and efficiency. And while the exclusion of strangers is protected by parliamentary privilege, the Assembly’s ability to carry out its constitutional mandate does not require the scope of this privilege to extend so far as to protect the decision to terminate employees who assist in excluding those strangers.

Constitutional Law/Securities: National Capital Markets Regulatory System

Reference re Pan Canadian Securities Regulation, 2018 SCC 48 (37613)

The Constitution authorizes the implementation of pan-Canadian securities regulation under the authority of a single regulator, according to the model established by the most recent publication of “Memorandum of Agreement regarding the Cooperative Capital Markets Regulatory System”; and the most recent version of the draft federal “Capital Markets Stability Act” does not exceed the authority of Parliament over the general branch of the trade and commerce power.

Contracts: Principles of Good Faith & Equity; Doctrine of Unforeseeability

Churchill Falls (Labrador) Corp. v. Hydro-Québec, 2018 SCC 46 (37238)

There is no compelling factual or legal basis for the courts to reshape the contractual relationship herein for the last 50 years. The fact the electricity market has changed significantly since the contract does not on its own justify disregarding its terms and its nature. While it is true that the introduction of the duty of good faith into the Québec Civil Code shows that the legislature intended to temper the principles of the binding force of contracts and autonomy of the will, this does not justify making inordinate use of that duty in order to override the terms of an agreement that adequately reflects the initial equilibrium envisaged by the parties.

Contracts/Trusts: Labour & Material Bonds

Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8 (37272)

Wherever a beneficiary would be unreasonably disadvantaged not to be informed of a trust’s existence, the trustee’s fiduciary duty includes an obligation to disclose the existence of the trust. Here, where the evidence was labour and material payment bonds were uncommon, and where the trustee’s failure to disclose the trust prevented the beneficiary from making a claim within the prescribed notice period, that duty was breached. Compensation is what could have obtained under the terms of the trust had the beneficiary been aware of its right to claim thereunder.

Corrections: Indigenous Offenders

Ewert v. Canada, 2018 SCC 30 (37233)

Corrections Canada breached the obligation in s. 24(1) of the Corrections and Conditional Release Act. They were aware of long-standing concerns as to whether the impugned tools were valid when applied to Indigenous offenders, yet continued to rely on the results they produced in making decisions about offenders without inquiring into their validity.

Criminal Law: Confidential Informer Information

R. v. Brassington, 2018 SCC 37 (37476)

Jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake. There is no basis for departing from that rule when the accused is a police officer. Here no evidence of “innocence at stake” was presented, so the police officers herein are not entitled to disclose the information to their lawyers.

Criminal Law: DUI; Disclosure

R. v. Gubbins, 2018 SCC 44 (37395)(37403)

Re the scope of the Crown’s disclosure obligations with respect to maintenance records of breathalyzer instruments, such records are subject to third party (rather than first party) disclosure. On the evidence herein, in both cases, the defence failed to show the maintenance records meet the requisite threshold for third party disclosure.

Criminal Law: DUI; Disclosure; Certiorari

R. v. Awashish, 2018 SCC 45 (37207)

Certiorari is an extraordinary remedy that is available only in narrow circumstances, and allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system.

Criminal Law: Homicide; Unlawful Confinement

R. v. Magoon, 2018 SCC 14 (37416) (37479)

Sections 691(1) and 691(2) of the Criminal Code set out the routes of appeal to the Supreme Court of Canada available to an accused. Section 691(1) applies where a conviction has been affirmed by the court of appeal; s. 691(2) applies where an acquittal has been set aside by the court of appeal. Here both sections apply. Sections 691(1) and 691(2) of the Criminal Code must be read and interpreted harmoniously, as each provision confers different rights on an appellant, depending on the circumstances. These parallel routes of appeal must be kept separate and distinct, and an appellant cannot challenge a decision of a court by appealing a different decision. Although the legal standard for proving unlawful confinement is technically the same for children as for adults, the parent-child context is relevant to both parts of the unlawful confinement analysis: children are easier to confine and, in the case of young children, are regularly confined for health and safety reasons, or as a disciplinary measure; there are lawful justifications for confinement in the parent-child context that do not exist in other contexts. A finding of confinement does not require evidence of a child being physically bound or locked up; it can just as easily result from evidence of controlling conduct. Disciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.

Criminal Law: Impaired

R. v. Cyr-Langlois, 2018 SCC 54 (37760)

Oral Judgment, Oct. 15, 2018. Written reasons, Dec. 6, 2018.

To rebut the presumptions in s. 258(1) (c) an accused must adduce evidence tending to show malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results. The accused’s burden is discharged if: evidence is adduced relating directly to malfunctioning or improper operation; and, this defect tends to cast doubt on the reliability of the results.

Criminal Law: Influence Peddling

R. v. Carson, 2018 SCC 12 (37506)

The phrase “any matter of business relating to the government” in s. 121(1)(d) includes publicly funded commercial transactions for which the government could impose or amend terms and conditions that would favour one vendor over others, and must not be considered strictly with reference to existing government operational and funding structures.

The constituent elements of the offence are:

  • having or pretending to have influence with government, a minister, or official
  • directly or indirectly demanding, accepting, or offering or agreeing to accept a reward, advantage or benefit of any kind for oneself or another
  • as consideration for the cooperation, assistance, exercise of influence, or act/omission
  • in connection with a transaction of business with or any matter of business relating to government.

Criminal Law: Mandatory Victim Surcharges

R. v. Boudreault, 2018 SCC 58 (37427) (37774) (37782) (37783)

(Four appeals, one set of reasons)

The mandatory victim surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1. Given this, it is unnecessary to address s. 7.

Criminal Law: Publication Bans

R. v. Canadian Broadcasting Corp., 2018 SCC 5 (37360)

The decision to grant or refuse an interlocutory injunction is a discretionary exercise, with which an appellate court must not interfere solely because it would have exercised the discretion differently. The majority at the Court of Appeal below conceded that “either position is arguable”, which was an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.

Criminal Law: Search and Seizure

R. v. Reeves, 2018 SCC 56 (37676)

The police infringed Mr. Reeves’ Charter rights when they took the computer from his home, and the evidence is excluded. Although the computer was shared, Mr. Reeves maintained a reasonable expectation of privacy in it. The consent of his spouse did not nullify reasonable expectation of privacy, nor operate to waive his Charter rights in the computer. The warrantless seizure of the computer and the search of it without a valid warrant were unreasonable, and the admission of the child pornography evidence would bring the administration of justice into disrepute.

Criminal Law: Search Warrants & Production Orders

R. v. Vice Media Canada Inc., 2018 SCC 53 (37574)

The Lessard framework is a suitable model for search warrants and production orders regarding the media, with some refinements:

  • rather than treating prior partial publication as a factor that always militates in favour of granting an order, the effect of prior partial publication is assessed on a case-by-case basis.
  • with respect to the standard of review to be applied when reviewing an order made ex parte, a modified Garofoli standard is adopted if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review; otherwise, the traditional Garofoli standard will apply, meaning the order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order.
  • reorganize the Lessard factors to make them easier to apply in practice.

This case does not engage the new Journalistic Sources Protection Act brought into force in October 2017. While probative value may be a relevant consideration in applying the Lessard framework, the judge is not to go so far as to impose any “necessity” test. For the sake of clarity, where the media was given notice and appeared before the authorizing judge, there is generally good reason to apply the traditional Garofoli standard on review. In that context, permitting a de novo review may do little more than add unnecessary time and expense. And because this appeal can readily be disposed of without going so far as to rethink s. 2 (b), and also the matter was not fully argued by the parties or considered by the courts below, this appeal is not an appropriate venue to formally recognize a distinct and independent constitutional protection for freedom of the press under s. 2(b). That is left for another day.

Criminal Law: Sentencing; Post-Crime Vigilante Violence

R. v. Suter, 2018 SCC 34 (37247)

There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing. Here the violence suffered by the accused at the hands of non-state vigilante actors can be considered when determining an appropriate sentence. The violent attack on the accused, and both the permanent physical injury and psychological trauma resulting from this attack necessarily form part of the accused’s personal circumstances. In light of the sentencing principles of individualization and parity, the vigilante attack was a relevant collateral consequence to consider at sentencing. But this particular collateral consequence should only be considered to a limited extent; giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process, which should be avoided.

Criminal Law: Withdrawal of Guilty Pleas; Collateral/Immigration Consequences

R. v. Wong, 2018 SCC 25 (37367)

The proper approach for considering whether a guilty plea can be withdrawn where the accused is unaware of a collateral consequence: the accused is required to establish subjective prejudice (that they were unaware of legally relevant consequences at the time of the plea); to assess the veracity of that claim, courts can look to objective, contemporaneous evidence. The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim.

Family Law: International Child Abduction

Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (37250)

A finding that the children here were habitually resident in Germany at the time of the alleged wrongful retention is a requirement for a return order under the Hague Convention. The S.C.C. adopted the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and a non-technical approach to considering a child’s objection to removal under Article 13(2).

Family Law/Trusts: Unjust Enrichment; Constructive Trusts

Moore v. Sweet, 2018 SCC 52 (37546)

On the facts herein, Risa was enriched, Michelle correspondingly deprived, and both the enrichment and the deprivation occurred in the absence of a juristic reason, so a remedial constructive trust is imposed for Michelle’s benefit. While the constructive trust is a powerful remedial tool, it is not available in all circumstances where a plaintiff establishes his or her claim in unjust enrichment. Rather, courts will impress the disputed property with a constructive trust only where: a personal remedy would be inadequate; the plaintiff’s contribution that founds the action is linked or causally connected to the property over which a constructive trust is claimed. And even where the court finds that a constructive trust would be an appropriate remedy, it will be imposed only to the extent of the plaintiff’s proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property.

Intellectual Property/Copyright/Internet: Norwich Orders; Costs

Rogers Communications Inc. v. Voltage Pictures, LLC, et al., 2018 SCC 38 (37679)

ISP’s are entitled to be compensated for reasonable costs incurred to comply with Norwich orders (Voltage Pictures (2015)), but not every cost. Where costs should have been borne by an ISP in performing its statutory obligations under s. 41.26(1), these costs cannot be characterized as either reasonable or as arising from compliance with a Norwich order.

Municipal Law in Québec: Expropriation

Lorraine (Ville) v. 2646 8926 Québec inc., 2018 SCC 35 (37381)

The judge below had appropriately exercised his discretion in dismissing the action in nullity for being out of time. But this has no bearing on the claim for an indemnity for disguised expropriation, which can continue in the Québec Superior Court for claims remaining unresolved.

Professions: Civility

Groia v. Law Society of Upper Canada, 2018 SCC 27 (37112)

A lawyer’s duty to act exists in concert with a series of professional obligations that both constrain and compel lawyers’ behaviour; care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are “not sacrificed at the altar of civility.” The Law Society Appeal Panel’s finding of professional misconduct against Mr. Groia was not reasonable in the circumstances; standards of civility must be articulated with a reasonable degree of precision; an overly vague or open-ended test for incivility risks eroding resolute advocacy; prudent lawyers will steer clear of a blurry boundary to avoid a potential misconduct finding for advancing arguments that may rightly be critical of other justice system participants; a standard that is reasonably ascertainable gives lawyers a workable definition they can use to guide behaviour; it also guides law society disciplinary tribunals in determining whether behaviour amounts to professional misconduct.

Québec Civil Law: Apportionment of Liability

Montréal (Ville) v. Lonardi, 2018 SCC 29 (37184)

The S.C.C. agreed with the Court of Appeal and the Court of Québec that the facts here do not support the application of the articles of the Civil Code that provide for “solidarity” in cases of extracontractual fault; the evidence is such that it is possible to determine what specific damage to the victim’s property was caused by each of the identified rioters, so this legislative scheme cannot be circumvented by imposing liability in solidum in this context.

Religious Rights: Judicial Review; Justiciability; Jurisdiction

Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (37273)

Courts are not to decide matters of religious dogma; they have neither legitimacy nor institutional capacity to deal with such issues. The Charter does not apply to private litigation; s. 32 specifies it applies to the legislative, executive, and administrative branches of government. The Charter does not directly apply here as no state action is being challenged, although the Charter may inform the development of the common law. Religious groups are free to determine their own membership and rules.

Torts 101: Negligence; Duty of Care; Foreseeability

Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (37323)

Here the plaintiff did not provide sufficient evidence to support the establishment of a duty of care, so while the risk of theft was reasonably foreseeable, the evidence did not establish it was foreseeable someone could be injured by the stolen vehicle. There was no evidence to support the inference the stolen vehicle might be operated in an unsafe manner, causing injury, and when considering the security of the automobiles stored at the garage, there was no reason for someone in the position of the defendant garage owner to foresee the risk of injury. Businesses only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.

Workers’ Comp: Independent Contractors

West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (37423)

Workers’ Comp has jurisdiction re a work incident (here, fatal) involving an employee of an independent contractor.

Workers’ Comp in Québec: Duty to Accommodate

Québec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 (36605)

The duty to accommodate requires accommodation to the point that an employer is able to demonstrate “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Moore v. British Columbia (Education)), [2012] 3 S.C.R. 360, at para. 49. Since a core principle of the Québec Charter is the duty to accommodate, it follows that this duty applies when interpreting and applying the provisions of Québec’s injured worker legislation. The objectives of Québec’s injured worker scheme overlap with those of the Québec Charter. The injured worker scheme seeks “to facilitate the worker’s reinstatement in his employment or an equivalent employment or, where that object is not attainable, to facilitate his access to suitable employment”. Similarly, Québec’s Charter seeks “to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship” (Hydro-Québec, at para. 14).

Oral Judgments

Criminal Law: Assault & Sexual Assault

R. v. Gulliver, 2017 ABCA 223; 2018 SCC 24 (37917)

Justice Rowe: “We all agree that, read fairly, the trial judge’s reasons make clear that the alibi evidence was neither credible nor reliable. We are also of the view that the trial judge’s reasons were sufficient. Accordingly, we are all of the view that the appeal should be dismissed.”

Criminal Law: Attempted Murder

R. v. Normore, 2018 NLCA 10; 2018 SCC 42 (37993)

The Chief Justice: “Mr. Normore was convicted at trial of attempting to commit murder, uttering a threat to cause death, and breaking and entering a place and committing attempted murder. His appeal against these convictions was allowed by a majority of the Court of Appeal, Hoegg J.A. dissenting. The Crown appeals to this Court as of right. We would allow the appeal. We are of the view that the trial judge did not err in the way in which he addressed a witness’s refusal to answer a question put to him by defence counsel. It was open to the trial judge to take further steps to attempt to elicit an answer from the witness. However, in all the circumstances of this case, including the marginal bearing of defence counsel’s line of questioning on the matters in issue, it was a proper exercise of the trial judge’s discretion to instead, continue with the main proceedings and to leave the issue of potential contempt proceedings against the witness until a later point in time. Even if it is assumed that the trial judge committed an error in the way he addressed the refusal of a witness to answer a question put to him by defence counsel, any such error did not result in a substantial wrong or miscarriage of justice, and the convictions should therefore be upheld pursuant to s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 . The question the witness refused to answer was put to him by defence counsel in an attempt to raise doubts about who wrote two notes found in Mr. Normore’s residence. The trial judge relied on these notes, along with other evidence, to find that Mr. Normore had committed the offences in question. However, in all of the circumstances of this case, including that Mr. Normore subsequently admitted to writing the most incriminating statement in these notes, we are of the view that the trial judge’s failure to take further steps to compel the witness to answer the question put to him could not have had an effect on the verdict. Therefore, the appeal is allowed and the convictions are restored.”

Criminal Law: DUI (Boats); Hospital Records

R. v. Culotta, 2018 ONCA 665; 2018 SCC 57 (38213)

Moldaver J.: “A majority of the Court would dismiss the appeal, substantially for the reasons of Justice Nordheimer. Justices Abella and Martin, in dissent, would allow the appeal, substantially for the reasons of Justice Pardu.”

Criminal Law: Failure to Provide Necessities of Life

R. v. Stephan, 2017 ABCA 380; 2018 SCC 21 (37845)(37846)

Justice Moldaver: “We are in essential agreement with the reasons of Justice O’Ferrall. In particular, we agree that the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it. Accordingly, we would allow the appeal, quash the conviction and order a new trial.”

Criminal Law: Failure to Stop

R. v. Seipp, 2017 BCCA 54; 2018 SCC 1 (37513)

“ …[the] conviction was not a miscarriage of justice. Mr. Seipp had control of a vehicle involved in an accident. He fled the scene without providing his name or address. In the absence of evidence to the contrary, this was proof of the requisite intent for the offence”.

Criminal Law: Fraud; Curative Proviso

R. v. Ajise, 2018 ONCA 494; 2018 SCC 51 (38149)

Rowe J: “We are all of the view that the appeal should be dismissed. We would adopt what Justice Sharpe set out in para. 32 of the Court of Appeal decision: . . . assuming that resort to the [curative] proviso is required in this case, it is my view that the substance of the proviso point was raised. In her submissions before this court, Crown counsel placed considerable reliance upon the argument that the defence effectively conceded at trial that the donation claims were fraudulent and instead relied entirely on the appellant’s claim that he lacked knowledge of the fraud. On this basis, the Crown argued that even if the impugned evidence amounted to opinion evidence, it did not go to the only live issue at trial. The Crown also noted that Maraj’s impugned statements comprised a small portion of the evidence advanced during a multi-day trial, and were admitted without objection by defence counsel. In my view, these lines of argument amounted in substance to a submission that even if there was an error in admitting the evidence or in failing to conduct a voir dire, no substantial wrong or miscarriage of justice had occurred and the appeal should be dismissed on that account. Given that there was no miscarriage of justice, the curative proviso was properly relied on in this case.”

Criminal Law: Impaired

R. v. Cyr-Langlois, 2017 QCCA 1033; 2018 SCC 54 (37760)

The Chief Justice: “A majority of the judges of the Court would allow the appeal, although Côté J. would dismiss it. As a result, the appeal is allowed, the verdict of acquittal is set aside and a new trial is ordered. Reasons will follow.”

Criminal Law: Judges’ Reasons

R. v. Black, 2017 ONCA 599; 2018 SCC 10 (37665)

The Chief Justice: “Mr. Black was convicted at trial of importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 . His appeal against conviction was dismissed by a majority of the Court of Appeal for Ontario, Justice Pardu dissenting. Mr. Black appeals to this Court as of right. We agree with Justice Pardu that the trial judge’s reasons, even when read as a whole and in the context of the trial record, fail to reveal the basis on which the trial judge concluded that the Crown had proven the mental element of the offence beyond a reasonable doubt. The reasons fail to fulfil the function of permitting effective appellate review. The appeal is therefore allowed, and a new trial is ordered.”

Criminal Law: Robbery

R. v. Youssef, 2018 ONCA 16; 2018 SCC 49 (38036)

Côté J.: “In our view, having regard to the principles set out by this Court in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, it was not unreasonable for the trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt, especially given the presence of Mr. Youssef’s DNA on two different pieces of evidence, one of which was connected to the scene of the bank robbery, and the other to the getaway car. When the trial judge’s reasons are read as a whole, and in the context of the evidence and the arguments at trial, we are not persuaded that the trial judge ignored other potential explanations. We would therefore dismiss the appeal.”

Criminal Law: Sexual Assault

R. v. A.R.J.D., 2017 ABCA 237; 2018 SCC 6 (37715)

The Chief Justice: “The appellant was acquitted at trial of three sexual offences alleged to have been committed against his stepdaughter when she was between the ages of 11 and 16. A majority of the Court of Appeal of Alberta allowed the Crown’s appeal. The appellant now appeals to this Court as of right. We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. We do not read the majority reasons, including paras. 39 and 41 highlighted by the defence, as suggesting otherwise. The appeal is dismissed.”

Criminal Law: Sexual Assault

R. v. Colling, 2017 ABCA 286; 2018 SCC 23 (37905)

Justice Abella: “The trial judge’s conduct in intervening in the manner in which he did, by stepping into the shoes of counsel, raises serious concerns and ought not to be repeated. Overall, however, we are not persuaded that a miscarriage of justice has been shown. We are therefore of the view that a new trial is not warranted. The appeal is dismissed.”

Criminal Law: Sexual Assault

R. v. G.T.D., 2017 ABCA 274; 2018 SCC 7 (37756)

There is publication ban in this case and on the name of the party, with oral reasons by Justice Brown, in which Chief Justice Wagner dissented, in the context of the “hold off” period for police questioning.

Criminal Law: Sexual Assault

R. v. Quartey, 2018 ABCA 12; 2018 SCC 59 (38026)

Brown J.: “… The trial judge’s analysis of the evidence reveals his path of reasoning that led to conviction, and permits effective appellate review. Moreover, the trial judge did not err in his credibility analysis. He did not shift the burden of proof or hold the appellant’s evidence to a higher standard of scrutiny than that applied to the complainant’s evidence. As the majority at the Court of Appeal observed, the trial judge instructed himself on the principles of R. v. W. (D.), [1991] 1 S.C.R. 742, and, based on internal contradictions in the appellant’s testimony and on the strength of the complainant’s testimony, he was entitled to conclude that the Crown had met its burden of proving the appellant’s guilt beyond a reasonable doubt. Nor did the trial judge err by applying generalizations and stereotypes in rejecting the appellant’s evidence. We agree with the majority at the Court of Appeal that the trial judge’s statements in this regard were directed to the appellant’s own evidence and to the believability of the appellant’s claims about how he responded to the specific circumstances of this case, and not to some stereotypical understanding of how men in those circumstances would conduct themselves.” (Emphasis in original).

Criminal Law: Sexual Assault in the Military

R. v. Gagnon, 2018 CMAC 1; 2018 SCC 41 (37972)

The Chief Justice (translation): “We are all of the opinion that the appeal should be dismissed, substantially for the reasons of the majority of the Court Martial Appeal Court of Canada. However, with respect, on the record before us, we are of the opinion that there was no evidence from which a trier of fact could find that the appellant had taken reasonable steps to ascertain that the complainant was consenting. In so concluding, we are also of the view that the principles enunciated in R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, are of no assistance in applying s. 273.2 of the Criminal Code, R.S.C. 1985, c. C-46. It follows that the defence of honest but mistaken belief should not have been put to the panel.”

Criminal Law: Sexual Assault; Prior Consistent Statements

R. v. Cain, 2017 NSCA 96; 2018 SCC 20 (37926)

There is a publication ban in this case (oral judgment released from the bench on May 14, 2018), where the S.C.C. (4:1) dismissed the appeal from a sexual assault conviction.

Criminal Law: Sexual Assault with a Weapon

R. v. A.G.W., 2017 ABCA 247; 2018 SCC 9 (37795)

There is a publication ban in this case and on the name of the party, with unanimous oral reasons by Justice Abella, dismissing the appeal, for the reasons of the majority in the C.A. upholding the conviction.

Criminal Law: Sexual Interference

R.A. v. R., 2017 ONCA 714; 2018 SCC 13 (37757)

Justice Moldaver: “A majority of the Court would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal. Justice Gascon, dissenting, would have allowed the appeal for the reasons of Justice Trotter.”

Labour Law: Representation Orders

International Brotherhood of Electrical Workers (IBEW) Local 773 v. Lawrence, 2017 ONCA 321; 2018 SCC 11 (37617)

Brown J.: “A majority of the Court dismisses the appeal, substantially for the reasons set out in paras. 16, 27 and 28 of Justice Sharpe at the Court of Appeal. Justice Abella, dissenting, would have allowed the appeal for the reasons of Justice Hourigan. The appeal is dismissed with costs.”

Tax: Deemed Trusts

Callidus Capital Corp. v. Canada, 2017 FCA 16223; 2018 SCC 47 (37768)

Gascon J: “We would allow the appeal for the reasons of the dissenting judge in the Federal Court of Appeal, and reinstate the order of Justice McVeigh of the Federal Court that answered in the affirmative the question of law submitted by the parties, with costs throughout in favour of Callidus Capital Corporation. The question of law at issue was formulated as follows and assumed the existence of a pre-bankruptcy liability under s. 222 of the Excise Tax Act, R.S.C. 1985, c. E-15 (“ETA ”): ‘Does the bankruptcy of a tax debtor and subsection 222(1.1) of the [ETA ] render the deemed trust under section 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust for the Plaintiff?’ As a result, as it is not necessary to do so to resolve this appeal, this Court is not commenting, one way or the other, on the scope of the deemed trust or any liability under s. 222 of the ETA prior to bankruptcy.”

Leaves to Appeal Granted

Aboriginal Law: Interjurisdictional Issues

Attorney General of Newfoundland and Labrador v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2017 QCCA 1791 (37912)

This Leave arose in the context of motions to strike allegations of an originating application filed in Québec concerning rights exercised and property situated outside the province, brought by the Applicant the Attorney General of Newfoundland and Labrador (the “AGNL”), who argued Québec courts are without jurisdiction to make determinations about activities and land located beyond their territorial limits. The dispute concerned the alleged breach of Aboriginal rights by private third parties who engaged in mining activities over ancestral lands bordering two separate Canadian provinces. The Superior Court of Québec dismissed the motions to strike allegations. It determined the action is of a mixed nature, and Québec courts have jurisdiction over the matter pursuant to articles 3134 and 3148(1) of the Civil Code of Québec. It further held there is a real and substantial connection between the action and the Québec forum, and refused to decline jurisdiction under article 3135 of the Civil Code of Québec. The court noted the doctrine of Crown immunity did not preclude it from assuming jurisdiction in the circumstances, given the action was not brought against the AGNL directly. The C.A. dismissed AGNL’s appeal and adopted much of the Superior Court of Québec’s reasoning, expressing access to justice and proportionality concerns over the severing of the proceeding.

Broadcasting: CRTC Jurisdiction

Bell Canada v. Canada (Attorney General), 2017 FCA 249 (37896)

The CRTC issued an Order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations. Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels. The CRTC’s determination simultaneous substitution for the Super Bowl is not in the public interest means that, as of January 1, 2017, Canadians watching the Super Bowl on Canadian stations see Canadian commercials, while those watching it on American stations see American commercials. The Applicant had entered into an agreement with the National Football League (“NFL”), granting the Applicant an exclusive license to broadcast the Super Bowl in Canada through to February 2020. The Applicant recovers the costs of the licence by selling to Canadian businesses advertisements that can be inserted into the Super Bowl broadcast on both Canadian and American stations. The Applicant and the NFL challenged the jurisdiction of the CRTC to issue the Order on the basis it conflicts with Canadian broadcasting policy and regulations, targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights, and is contrary to the Copyright Act and Canada’s international trade obligations. The Federal C.A. dismissed those appeals.

Broadcasting: CRTC Jurisdiction

National Football League, et al. v. Canada (Attorney General), 2017 FCA 249 (37897)

Similar summary to that immediately above.

Charter: Journalist Sources

Denis v. Côté, 2018 QCCA 611 (38114)

Mr. Côté alleged certain documents and information arising from a criminal investigation relating to charges of fraud, bribery, corruption and breach of trust had ended up in the hands of a journalist, Ms. Denis, who had published them. Mr. Côté filed a motion for a stay of proceedings before the trial judge, alleging the information disclosed had been deliberately leaked by agents of the state and the leaks were an abuse of process that would compromise the fairness of his criminal trial. He also tried to compel Ms. Denis to testify in order to force her to divulge the identity of her sources so he could find the persons responsible for the leaks and support his position. Ms. Denis applied to have her summons as a witness quashed, relying on the confidential protection of her sources. The Court of Québec dismissed the motion to divulge the identity of the sources used by Ms. Denis. The Québec Superior Court allowed Mr. Côté’s appeal and authorized the disclosure by Ms. Denis of the identity of her sources. The C.A. dismissed a subsequent appeal by Ms. Denis, finding it had no jurisdiction over the appeal.

Citizenship: Children of Diplomats Born in Canada

Canada (Citizenship and Immigration) v. Vavilov, 2017 FCA 132 (37748)

The Applicant, Mr. Vavilov, was born in Canada in 1994. His parents, who were then Canadian citizens, were undercover spies from Russia. In 2010, they were arrested in the U.S. and returned to Russia in a spy swap. On August 15, 2014, the Registrar of citizenship informed Mr. Vavilov a certificate of Canadian citizenship issued to him in 2013 was cancelled and the Canadian government no longer recognized him as a Canadian citizen. The decision was based on a report of a citizenship analyst, which concluded his parents were not lawfully Canadian citizens or permanent residents at the time of his birth, and they were, at that time, “employees or representatives of a foreign government” for the purposes of s. 3(2)(a) of the Citizenship Act. The Federal Court dismissed Mr. Vavilov’s application for judicial review. It ruled s. 3(2)(a) targeted representatives and employees in Canada of foreign governments, regardless of diplomatic or consular status. A majority of the Fed. C.A. allowed the appeal and quashed the decision of the Registrar as unreasonable; did not opine on whether Mr. Vavilov may have been the equivalent of Ms. Paige Jennings on The Americans; and concluded that given the text, context and purpose of the provision, s. 3(2)(a) targets only foreign government employees who benefit from diplomatic immunities or privileges.

Civil Procedure/Class Actions: Jurisdiction

J.W. and REO Law Corporation, et al. v. Attorney General of Canada, 2017 MBCA 54 (37725)

The Applicant J.W. attended an Indian Residential School in Manitoba. While a student, a nun grabbed J.W.’s penis while he was in line for the shower. Following the establishment of the Independent Assessment Process (“IAP”) created under the Indian Residential Schools Settlement Agreement (“IRSAA”), J.W. filed a claim in the context of the IAP, arguing the actions of the nun constituted compensable sexual abuse. J.W.’s claim was denied by a Hearing Adjudicator on the basis he had failed to establish the nun’s act had a “sexual purpose”, which the Adjudicator interpreted as a “technical requirement” for establishing sexual abuse under the IRSSA and the IAP. Subsequent attempts to have the decision reviewed by a second adjudicator and by two review adjudicators were unsuccessful, and the decision was upheld. Pursuant to the terms of the IRSSA, J.W. filed a Request for Direction before a Supervising Judge for the IRSSA in Manitoba. The Supervising Judge (from the Manitoba Court of Queen’s Bench) partially granted the declaration sought and found the review adjudicators had failed to correct the error of the original Hearing Adjudicator — i.e., that J.W. needed to prove a “sexual purpose”. The Supervising Judge ordered the claim be sent back to a first-level adjudicator. The C.A. allowed Canada’s appeal, finding the Supervising Judge had exceeded his jurisdiction and had misinterpreted the terms of the IRSSA, and concluding there is no judicial review possible of the decisions of adjudicators pursuant to the IAP and the IRSSA; the original decision dismissing J.W.’s claim was therefore reinstated.

Civil Procedure in Québec: Actions Against Police

Kosoian v. Société de Transport de Montréal, 2017 QCCA 1919 (38012)

Ms. Kosoian was arrested for refusing to hold the handrail while descending an escalator in the Montmorency subway station in Laval. Ms. Kosoian brought an action in damages against the Respondents in relation to the arrest. The Court of Québec dismissed the action. It found the Respondents had committed no fault. The majority of the Québec C.A. reached the same conclusion. Schrager J.A., dissenting, found the Respondents to be solidarily liable. But he also concluded Ms. Kosoian had partially contributed to her injury.

Civil Procedure/Military Law: Juries

Stillman, et al. v. R., 2017 CMAC 2 (37701)

In R. v. Moriarity a constitutional challenge based on s. 7 to s.130(1)(a) of the National Defence Act was dismissed. The Supreme Court left open the question whether s. 130(1)(a) violates s. 11(f) right to a jury trial for anyone charged with an offence where the punishment would be five years or more imprisonment “except in the case of an offence under military law tried before a military tribunal.”) Following the decision in Moriarity, a constitutional challenge against s. 130(1)(a) was brought by in the Court Martial Appeal Court specifically on the basis it violated s. 11(f). The Court Martial Appeal Court rejected the challenge: R. v. Royes, 2016 CMAC 1. Leave to appeal was denied. The cases have given rise to the current application for leave were all in the system at the time Moriarity and Royes were being decided. The Court Martial Appeal Court concluded it was bound by its decision in Royes and dismissed the Applicants’ constitutional challenges to s. 130(1)(a).

Civil Procedure/Torts: Jurisdiction

Nevsun Resources LTD v. Araya, 2017 BCCA 401 (37919)

The Respondents were Eritrean refugees who sought to bring a representative claim against the Applicant, a publicly-held B.C. corporation. They alleged through a chain of subsidiaries, the Applicant entered into a commercial venture with Eritrea for the development of a gold, copper and zinc mine in Eritrea. The Applicant allegedly engaged the Eritrean military and military controlled corporations and was complicit in the use of forced labour at the mine, conscripted under Eritrea’s National Service Program. The Respondents claim to have fallen victim to forced labour, slavery, torture, cruel, inhumane or degrading treatment and crimes against humanity. They brought claims of private law torts as well as breaches of peremptory principles of international law for damages at customary international law. The Applicant denied the Respondents were subjected to forced labour or mistreatment and argued the military and its personnel were not subject to the control, direction or supervision of the Applicant or of the mining company in which the Applicant has a 60% indirect interest. The B.C.S.C. granted the Applicant’s motion to deny the proceeding status as a common law representative action but dismissed the Applicant’s motions to stay, dismiss or strike aspects of the Respondents’ claims on the basis either Eritrea is the forum conveniens, or that the claims are precluded by or have no reasonable chance of success due to the act of state doctrine or the inapplicability of customary international law. The court also held certain secondary evidence filed by the Respondents was admissible for the limited purpose of providing social and historical facts for context. The B.C.C.A. dismissed the appeal.

Class Actions: Certification

Pioneer Corporation, et al. v. Godfrey, 2017 BCCA 302 (37809)

Neil Godfrey, a representative plaintiff, commenced a proposed class action alleging the Sony and Pioneer defendants participated in a global, criminal price-fixing cartel that overcharged British Columbians for optical disc drives and products containing such devices. He alleged a breach of s. 45 of the federal Competition Act, the tort of civil conspiracy, the unlawful means tort, unjust enrichment and waiver of tort. The proposed class was a hybrid class that consisted of “direct purchasers”, who purchased a product manufactured or supplied by a defendant from that defendant, “indirect purchasers”, who purchased a product manufactured or supplied by a defendant from a non-defendant, and “umbrella purchasers”, who purchased from a non-defendant a product that was not manufactured or supplied by a defendant. B.C.S.C.: certified as class proceeding pursuant to B.C. Class Proceedings Act. B.C.C.A.: appeal dismissed.

Class Actions: Certification

Sony Corporation, et al. v. Godfrey, 2017 BCCA 302 (37810)

Similar summary to that immediately above. The application for leave to appeal… is granted with costs in the cause. The appeal will be heard with Pioneer Corporation, et al. v. Neil Godfrey.

Class Actions in Québec: Certification

L’Oratoire Saint-Joseph du Mont-Royal v. J. J., 2017 QCCA 1460 (37855)

The Respondent J.J. attended the Notre-Dame-des-Neiges elementary school for four years, from 1951 to 1955, when he and his family were living in a dwelling owned by the Applicant and intervener La Province canadienne de la Congrégation de Sainte-Croix that was near the Applicant and intervener L’Oratoire Saint-Joseph du Mont-Royal. He alleged he was sexually assaulted by members of the Congrégation de Sainte-Croix during that time, both at the elementary school and at the Oratoire. The Respondent allegedly kept silent about the sexual assault until he saw a report in 2011 on the sexual assaults committed by members of the Congrégation de Sainte-Croix that had been prepared by the public affairs show Enquête and broadcast on Radio Canada. Convinced hundreds of people had also been sexually assaulted by members of the Congrégation de Sainte-Croix, the Respondent asked a court to authorize a class action against the Applicants and interveners and to appoint him as representative plaintiff. Québec Superior Court: Re-amended motion for authorization to institute class action and to be appointed representative plaintiff dismissed. C.A.: appeal allowed; class action authorized and representative plaintiff appointed.

Class Actions: Litigate or Arbitrate

TELUS Communications Inc. v. Avraham Wellman, 2017 ONCA 433 (37722)

The action involves claims by consumer and business customers against TELUS Communications Inc. Mr. Wellman, the representative plaintiff claims that during the class period, TELUS overcharged customers by rounding up calls to the next minute without disclosing this practice. TELUS’ contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS conceded that the effect of s. 7(2) of the Ontario Consumer Protection Act 2002, is that claims in respect of consumer contracts can proceed in court. It submits, however, that non-consumer claims, that is the claims of the business customer, are governed by the mandatory arbitration clause and ought to have been stayed. The motions judge certified the class to include both consumers and non-consumers. It was determined that it would be unreasonable to separate the consumer and non-consumer claims and the motions judge declined to grant a partial stay. The issue on appeal was whether the motions judge erred in refusing to stay the non-consumer claims pursuant to s. 7(5) of the Arbitration Act 1991, which provides for a partial stay of court proceedings to be granted where an arbitration agreement deals with only some of the matters in respect of which the proceeding was commenced and it is reasonable to separate the matters dealt with in the agreement from the other matters. On appeal, it was concluded that the motions judge was correct in applying Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481 to determine whether a partial stay of proceedings should be granted under s. 7(5) of the Arbitration Act in a proposed class proceeding involving both consumer and business customer claims. The appeal of TELUS was therefore dismissed.

Constitutional Law: Division of Powers

Transport Desgagnés Inc. v. Wärtsilä Canada Inc., 2017 QCCA 1471 (37873)

In 2006, Desgagnés purchased marine engine parts for one of its vessels from Wärtsilä Canada Inc. The parts were delivered and installed in 2007. The engine failed in 2009, engendering damages of $5,661,830.33 for Desgagnés. The contract limited Wärtsilä’s liability in both scope and time. Desgagnés instituted proceedings against Wärtsilä for the recovery of its damages. The Superior Court of Québec ordered Wärtsilä to fully indemnify Desgagnés, ruling provincial law governed the dispute, and the contractual limitations of liability were rendered inapplicable by the Québec Civil Code’s provisions on warranties. The majority of the Québec C.A. set aside the trial judgment, ruling Canadian maritime law exclusively governed the dispute, and the contractual limitations of liability were thus applicable.

Copyright: Federal or Provincial

Keatley Surveying LTD. v. Teranet Inc., 2017 ONCA 748 (37863)

The Respondent managed the Province of Ontario’s electronic land registry system (the “ELRS”). Documents that were prepared by land surveyors such as drawings, maps, charts and plans (collectively “plans of survey”) are registered in the ELRS. The public can obtain on-line copies of registered plans of survey through the Respondent for a fee prescribed by statute, no part of which constitutes fees or royalties paid to the land surveyors who prepared them. The Applicant is the representative plaintiff in a certified class action brought on behalf of approximately 350 land surveyors whose plans of survey were scanned and copied into the Respondent’s digital database and made available on-line. The Applicant claimed the Respondent is in breach of copyright by reaping substantial profits at the expense of surveyors. The Ontario Superior Court of Justice dismissed the Applicant’s motion for summary judgment, granted the Respondent’s motion for summary judgment and dismissed the class action. The court found as a result of the legislative regime requiring registration or deposit of the plans of survey in the land registry office, ownership in the property of the plans of survey, including copyright, is transferred to the province. They are then “published by or under the direction or control of Her Majesty” pursuant to s. 12 of the Copyright Act. The C.A. dismissed the appeal, holding provincial Crown copyright is by virtue of s. 12 of the Copyright Act, not the provincial legislation.

Criminal Law: 90-Day Bail Reviews

C.L.J.M. v. R., 2017 BCSC 1717 (37869)

There is a publication ban in this case in the context of a 90-day bail review.

Criminal Law: Conditional Sentences

R. v. R.P., 2018 QCCA 21 (37994)

R.P. was convicted in 2016 of three counts of gross indecency and sexual assault committed against his nephew between 1979 and 1987, when his nephew was between the ages of 7 and 15. R.P. was 44 to 51 years old during that time. The issue is specifically whether a conditional sentence is available as a punishment even though it was not available either at the time of the offence or at the time of sentencing (but only transitionally between those two times). The Court of Québec found, under s. 11(i) of the Charter, an accused has the right to the benefit of the lesser punishment in force during the period between the commission of the offence and sentencing. Based on that finding, R.P. was given a conditional sentence of two years less a day on the counts of gross indecency. The court suspended the passing of sentence on the count of sexual assault. The Québec C.A. dismissed the appeal from the sentencing judgment: it had already been held in Belzil v. R. that an accused has the right to the benefit of the lesser punishment that existed between the time of the offence and the time of sentencing.

Criminal Law: Conspiracy; Co-conspirator Hearsay

R. v. Kelsie, 2017 NSCA 89 (38129)

Sean Simmons was fatally shot. A group of drug dealers planned and deliberated the murder. Mr. Kelsie was a member of the drug dealing group but was not involved in any advance planning. He joined the conspiracy at the last minute. Moments before the shooting, he was told he had to do it and handed a gun. He agreed and was shown how to use the gun. In a statement to police, he said when he took the gun, he thought they were only going to teach someone a lesson. Mr. Kelsie and another man went to confront the victim. In his statement to the police, Mr. Kelsie said he backed out on the way, the other man took the gun and shot Mr. Simmons, and then the other man gave the gun back. The Crown argued at trial Mr. Kelsie was the shooter or Mr. Kelsie aided the other man in his murder of Mr. Simmons. A jury convicted Mr. Kelsie of first degree murder and conspiracy to commit murder. The C.A. found errors in the jury charge, overturned the conviction and ordered a new trial.

Criminal Law: DUI

R. v. Cyr-Langlois, 2017 QCCA 1033 (37760)

Mr. Cyr-Langlois was charged with two counts of impaired driving. He was stopped while driving his vehicle and taken to the police station for a breathalyzer test. He was put in an interrogation room around 12:58 a.m. The two police officers were busy taking the steps required for Mr. Cyr-Langlois to exercise his right to counsel and preparing the breathalyzer device. As a result, they failed to observe Mr. Cyr-Langlois during the 20 minutes preceding the breathalyzer test. The first blood alcohol test was administered at 1:08 a.m. and the second at 1:30 a.m. The results showed a blood alcohol level exceeding 80 mg of alcohol in 100 mL of blood. At trial, the issue was whether the officer who had operated the breathalyzer instrument had completed the necessary observation period before administering the test and whether evidence the observation period had not been complied with could deprive the Crown of the presumptions established by s. 258(1). Court of Québec: acquitted of two counts of impaired driving. Québec Superior Court: appeal allowed; new trial ordered. C.A.: appeal allowed; acquittal restored.

Criminal Law: Fines In Lieu of Forfeiture

Rafilovich v. R., 2017 ONCA 634 (37791)

Mr. Rafilovich was charged with multiple offences, and when executing search warrants in relation to the offences, the police seized $41,130.51 (Cdn) and $651 (US). In October 2009, the court ordered all seized funds released to defence counsel to meet Mr. Rafilovich’s legal expenses. Mr. Rafilovich pleaded guilty to all five charges. At the sentencing hearing, Crown counsel in part requested a fine in lieu of forfeiture of $41,976.39 (Cdn). The sentencing judge declined to order a fine in lieu of forfeiture. The C.A. allowed an appeal and imposed a fine in lieu of forfeiture.

Criminal Law: Homicide

Barton v. R., 2017 ABCA 216 (37769)

Mr. Barton was charged with first degree murder. The Crown argued Mr. Barton intentionally caused a fatal injury, alternatively, he was guilty of manslaughter for causing death in the course of a sexual assault. Mr. Barton testified to consensual sexual activity and accidental injury. A jury acquitted Mr. Barton of first degree murder and of manslaughter. The C.A. allowed an appeal and ordered a new trial.

Criminal Law: Judicial Interim Release

R. v. Penunsi, 2018 NLCA 4 (38004)

An RCMP officer laid an information pursuant to s. 810.2 of the Criminal Code, stating he had reason to believe the Respondent “will commit a serious personal injury offence.” At the time this information was laid the Respondent was serving a sentence and was expected to be released on December 5, 2014. An arrest warrant was issued, but never executed. The Provincial Court judge held s. 515 of the Criminal Code (JIR provisions) do not apply to s. 810.2 Criminal Code applications and he did not have the jurisdiction to have the Respondent arrested or impose conditions on his release. Prior to the conclusion of the hearing in the Supreme Court Trial Division, the Respondent entered into an s. 810.2 recognizance by consent. Goodridge J. held s. 515 of the Code applied to s. 810.2 of the Code applications and the judge erred by refusing to conduct a show cause hearing on the Crown’s request. The C.A. allowed the Respondent’s appeal and held s. 515 of the Code does not apply to s. 810.2 peace bond proceedings.

Criminal Law: Manslaughter; Criminal Negligence

Javanmardi v. R., 2018 QCCA 856 (38188)

Roger Matern consulted the Applicant, Mitra Javanmardi, a naturopath. Ms. Javanmardi administered an intravenous injection treatment. Mr. Matern died not long after the treatment. Ms. Javanmardi was charged, in connection with his death, with criminal negligence causing death and manslaughter. The Court of Québec found on the basis of the evidence the cause of Mr. Matern’s death was the injection administered by Ms. Javanmardi. But it acquitted her on both counts on the basis, among other things, Ms. Javanmardi’s conduct had not involved a marked departure and her actions had not been objectively dangerous. The C.A. was of the opinion errors of law had been made at trial. It found all the essential elements of the offence of manslaughter had been established beyond a reasonable doubt and found Ms. Javanmardi guilty on that count. As for the count of criminal negligence, it found a reassessment of the whole of the evidence was necessary and ordered a new trial for that purpose.

Criminal Law: Official Languages

Bessette v. British Columbia (Attorney General), 2017 BCCA 264 (37790)

The Applicant was charged with a provincial offence under the B.C. Motor Vehicle Act. Relying on the right of an accused to be tried in the official language of his or her choice, as provided for in s. 530 of the Criminal Code he sought an order from the Provincial Court that his trial be conducted in French. He argued s. 133 of the Offence Act, which incorporates the provisions of the Criminal Code relating to offences punishable on summary conviction, makes ss. 530 to 533 of the Criminal Code applicable to the prosecution of provincial offences. B.C.S.C.: application for order that the trial be conducted in French dismissed. B.C.S.C.: judicial review seeking prerogative writ of certiorari to set aside Provincial Court’s decision and of mandamus to require trial to be conducted in French dismissed. B.C.C.A.: appeal dismissed.

Criminal Law: Sexual Interference

R. v. R.V., 2018 ONCA 547 (38286)

There is a publication ban in this case, in the context of an s. 276 application.

Environmental Law: Downstream Pollution; Corporate Transfers

Resolute FP Canada Inc. v. R., 2017 ONCA 1007 (37985)

In the 1960s, a pulp and paper operation owned and operated by the Dryden Paper Company Limited discharged mercury into the nearby river system, causing harm to the First Nations downstream. In 1971, a waste disposal site was constructed. In 1976, Dryden Paper and Dryden Chemicals were amalgamated to form Reed Ltd., and, in 1977, the First Nations bands sued Reed, Dryden Paper and Dryden Chemicals for various damages resulting from the mercury waste contamination of the river (the “Grassy Narrows litigation”). In 1979, Reed was sold to Great Lakes Forest Products Limited. The Grassy Narrows litigation was settled with court approval in 1985. Great Lakes and Reed paid $11.75 million to the First Nations and released Ontario in respect of two previous indemnities. Ontario gave a new indemnity (the “1985 Indemnity”, sometimes referred to as the “Ontario Indemnity”). It promised to indemnify Great Lakes, Reed and others against claims and proceedings arising from “any damage, loss, event or circumstances, caused or alleged to be caused by or with respect to…the discharge or escape or presence of any pollutant by Reed or its predecessors, including mercury or any other substance, from or in the plant or plants or lands or premises forming part of the Dryden assets sold by Reed Ltd. to Great Lakes under the Dryden Agreement”. It was to “be binding upon and enure to the benefit of the respective successors and assigns of Ontario, Reed and Great Lakes”. Thereafter, Reed’s successor was dissolved, and Great Lakes, essentially, became Bowater, which became Abitibi Bowater, which became Resolute. In the interim, Weyerhaeuser purchased certain Dryden assets (including the waste disposal site, which could not be severed from the other assets in time to complete the sale) from Bowater in 1998. Bowater leased the waste disposal site back until the severance was completed, when it was reconveyed to Bowater. Eventually, the owner of the waste disposal site abandoned it with court approval and was discharged from any associated liability in 2011, under the Companies’ Creditors Arrangements Act. On August 25, 2011, the Ontario Ministry of the Environment issued a Director’s Order requiring, inter alia, Weyerhaeuser and Resolute, as prior owners of the site, to perform remedial work on the waste disposal site. Weyerhaeuser unsuccessfully sought to revoke or amend the Director’s Order before the Environmental Review Tribunal. Weyerhaeuser and Resolute both appealed the result, and that appeal was ongoing when Weyerhaeuser commenced this action against Ontario, with Resolute as an intervener. All of the parties moved for summary judgment, asking whether the 1985 Indemnity covers the costs of complying with the Director’s Order, and, if so, whether Weyerhaeuser and Resolute are entitled to its benefit. The motions judge granted Resolute leave to intervene, dismissed Ontario’s motion for summary judgment, and granted Weyerhaeuser and Resolute’s cross-motions for summary judgment. The C.A. set aside the motions judge’s decision. It granted Ontario summary judgment against Resolute. As to Weyerhaeuser, it substituted a declaration that Bowater assigned the full benefit of the 1985 Indemnity to Weyerhaeuser under the 1998 Asset Purchase Agreement and directed a final adjudication by the court below on the issue of what rights, if any, Weyerhaeuser possessed as assignee of the 1985 Indemnity when the Director’s Order was made in 2011.

Family Law in Québec: Recognition of Foreign Judgments

R.S. v. P.R., 2017 QCCA 1470 (37861)

There is a publication ban in this case, a publication ban on the party, and the Court file contains information not available for inspection by the public, in the context of recognition of a Belgian court decision.

Franchises in Québec: Employee v. Independent Contractor

Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2017 QCCA 1237 (37813)

There is a Sealing Order in this case. The Court file contains information that is not available for inspection by the public, in the context of a franchise dispute and employee v. independent contractor.

Immigration & Refugees: Habeas Corpus

Canada (Public Safety & Emergency Preparedness) v. Chhina, 2017 ABCA 248 (37770)

A lost his refugee status and was removed from Canada in September 2017. While in immigration detention from November 17, 2015 until he was deported, he had detention reviews. After 12 reviews ended with decisions to continue detention, he applied to the Alberta Court of Queen’s Bench for habeas corpus asserting breaches of the Charter. Mahoney J. held he did not have jurisdiction to hear the habeas corpus application because an immigration detainee can seek J.R. of immigration detention decisions pursuant to a comprehensive and an expert procedure under the Immigration and Refugee Protection Act. The C.A. allowed an appeal.

Labour Law: Definition of “Work Place”

Canada Post Corporation v. Canadian Union of Postal Workers, 2017 FCA 153 (37787)

An employee member of the local joint health and safety committee, represented by the Canadian Union of Postal Workers, filed a complaint re the Canada Post building in Burlington being inspected. The employee alleged the letter carrier routes should also be inspected. Following an investigation of the complaint, a Health and Safety Officer issued a direction citing four contraventions of the Canada Labour Code. One of them remains relevant: the Officer was of the opinion, by restricting its inspections to the physical building in Burlington, Canada Post had failed to ensure the workplace health and safety committee had inspected the entirety of the work place annually, thereby contravening s. 125(1)(z.12) of the Code. Canada Post appealed that decision to the Occupational Health and Safety Tribunal. The Appeals Officer varied the Health and Safety Officer’s decision and rescinded the contravention of s. 125(1)(z.12), finding the inspection obligation did not “apply to any place where a letter carrier is engaged in work outside of the physical building”. The “work place” included all points of call and lines of route, but control over the work place is required in order to fulfil the obligations imposed by s. 125(1)(z.12). Since the employer had no control over the points of call or the lines of route, it cannot comply with those obligations. The Union sought judicial review of the Appeals Officer’s decision. The Federal Court found the Appeals Officer’s decision was reasonable. The Union’s appeal was allowed.

Municipal Law in Québec: Contracts

Ville de Montréal v. Octane Stratégie inc., 2018 QCCA 223 (38066)

To prepare for the launch of its transportation plan, the City of Montréal retained Octane Stratégie inc. (Octane), a public relations and communications firm, not long before the planned launch date of May 17, 2007. Representatives of Octane attended a meeting at city hall on April 27, 2007 with officials and political representatives from the City. At that meeting, Richard Thériault, the director of communications and administration in the office of the mayor and the executive committee, is alleged to have awarded four mandates to Octane, two of which involved preparing the concept for the launch and organizing the event. To fulfill its mandate to organize the event, Octane hired Productions Gilles Blais. Between April 30 and May 17, Octane sent the City various scenarios and budget estimates relating to the organization of the event. The final estimate dated May 15, 2007 forecast fees, costs and disbursements totalling $123,470. Following the event, Octane sent three invoices on June 4, 2007 that were paid in March and April 2008. A final invoice for $82,898.63 ($72,500 plus taxes), which corresponded to the services of Productions Gilles Blais, was sent to the City on October 27, 2009. On May 13, 2010, Octane, having not yet been paid, renewed its request for payment by the City. On May 14, it filed a motion to institute proceedings in order to preserve its rights against the City. On July 9, 2010, Octane, still not having been paid, finally served its motion to institute proceedings on the City. On October 6, 2011, Octane sent Mr. Thériault a formal notice to pay it the amount of $82,898.63. Octane amended its motion to institute proceedings on November 22, 2011 to add Mr. Thériault as a defendant. The Superior Court granted Octane’s motion to institute proceedings and ordered the City to pay $82,898.63 plus interest and the additional indemnity. The alternative motion to institute proceedings against Mr. Thériault was dismissed. The C.A. dismissed the appeal. Octane’s appeal against Mr. Thériault was declared to be moot.

Municipal Law in Québec: Contracts

Octane Stratégie inc. v. Richard Thériault and Ville de Montréal, 2018 QCCA 223 (38073)

Similar summary to that immediately above.

Pensions in Québec: Presumption of Life

Threlfall v. Carleton University, 2017 QCCA 1632 (37893)

This Leave concerned Carleton University’s legal entitlement to recover amounts paid to an absentee under a “life only” pension during a period in which he was presumed alive but in fact dead. In Québec, absentees are presumed alive for a period of seven years, following which any interested person can apply for a declaratory judgment of death. The presumption of life is however temporary and subject to rebuttal. In this case, death was determined some five years following the disappearance of the absentee, which served to set aside the presumption of life. The act of death recorded the absentee’s true date of death as the day following his disappearance, and not the date upon which proof of death was established. Claiming restitution under the “reception of a thing not due” provisions of the Civil Code of Québec Carleton sought to recover the amounts it considered to have been paid in error to the absentee. It moved to institute proceedings against the Applicant, Ms. Threlfall, who acted as tutor to the absentee and subsequently as liquidator of his estate. The Superior Court of Québec found restitution was possible under the “reception of a thing not due” provisions of the Code, because the pension payments, though initially not made by mistake, became an error once the presumption of life had been rebutted. The conditions for ordering restitution were thus met. The C.A. confirmed the Superior Court’s judgment in most respects.

Tax: Bank Document Disclosure

1068754 Alberta Ltd. v. Agence du revenu du Québec, 2018 QCCA 8 (37999)

The Agence du revenu du Québec sought bank documents relating to DGGMC, a trust of which 1068754 Alberta Ltd. was the sole trustee. The documents in question were held by a branch of the National Bank of Canada located in Calgary. DGGMC was being audited under Quebec’s Taxation Act because the Agence suspected it was required to pay tax in Québec. The Superior Court dismissed 1068754 Alberta Ltd.’s application to quash the demand for documents made by the Agence, finding it was not a seizure. Although the demand had to be communicated to the branch of account under the Bank Act, it was the bank as a whole, not the branch as a separate legal entity, that was notified. The C.A. dismissed 1068754 Alberta Ltd.’s appeal, holding the demand for documents was a seizure but did not have extraterritorial effect under the applicable provision of the Bank Act. Moreover, the Agence had not exceeded its jurisdiction.

Tax: Deemed Trusts

Callidus Capital Corporation v. R., 2016 FCA 162 (37768)

The Applicant, a lender, entered into agreements with a debtor. Funds received by the debtor from all sources were held in trust for the applicant, segregated, deposited into blocked bank accounts, transferred to the applicant, and applied to the debt. The debtor collected GST and HST and included those amounts in the funds transferred to the applicant. The federal Crown claimed a deemed trust under the Excise Tax Act. The debtor made an assignment in bankruptcy. The Crown commenced a proceeding against the Applicant. The Applicant brought a motion on consent asking to have the following question answered: “Does the bankruptcy of a tax debtor and subsection 222(1.1) of the ETA render the deemed trust under section 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust?” Federal Court: question answered in the affirmative. Fed. C.A.: appeal allowed; question answered in the negative.

Tax: GST

Canada (Attorney General) v. British Columbia Investment Management Corporation, 2018 BCCA 47 (38059)

bcIMC was incorporated under the Public Sector Pension Plans Act as a trust company authorized to provide investment management services as part of a restructuring of the provincial public-sector pension system. bcIMC managed certain assets in pooled investment portfolios pursuant to the Pooled Investment Portfolios Regulation. The majority of the funds held by bcIMC were investments of five major B.C. public-sector pension plans. bcIMC provided investment management for these funds. bcIMC was assessed for GST owing in relation to the provision of investment management services for the pooled portfolios at $40,498,754.94, exclusive of interest and penalties. bcIMC filed without prejudice notices of objection to the assessments, which it was required to do in order to preserve its rights to challenge them. B.C.S.C. granted a declaration the management services performed by bcIMC in relation to those assets were not subject to taxation by Canada under the Excise Tax Act. At the same time, a declaration was granted that bcIMC is bound by the provisions of two agreements between Canada and B.C., the RTA and the CITCA, may require bcIMC to collect and remit certain taxes. A.G. Canada appealed the former declaration and bcIMC cross-appealed the latter to the B.C.C.A. The C.A. dismissed the appeal and the cross-appeal.

Torts: Fraud

DeJong PC v. DBDC Spadina Ltd, et al., 2018 ONCA 60 (38051)

Over the course of several years, Norma and Ronauld Walton allegedly perpetrated a complex multi-million dollar commercial real estate fraud. They convinced various parties to invest equally with them in equal-shareholder, specific-project corporations to acquire, hold, renovate and maintain commercial real estate properties in Toronto. Rather than investing significant funds of their own, the Waltons moved their investors’ money in and out of numerous corporations through a clearing house. Dr. Stanley Bernstein, through DBDC Spadina Ltd. and the other Respondent corporations (the “DBDC parties”), and Christine DeJong, through the Christine DeJong Professional Corporation (“DeJong PC”), invested in several projects with the Waltons. In relation to each project, they entered into a specific-project corporation for the particular property. None of the agreements related to the investments contemplated third-party investors, and none permitted the use of the investors’ money for anything other than the specific project. The DBDC parties’ funds were to be invested in the “Schedule B Companies”, and the DeJongs invested in the “Schedule C Companies”. Ms. Walton was the directing mind of all of the relevant investor companies. Late in the course of oppression proceedings launched by the DBDC parties, the DBDC parties alleged the DeJong PC had engaged in knowing participation and knowing receipt in the Waltons’ fraud. Inter alia, Newbould J. dismissed the DBDC parties’ claim the DeJong PC had knowingly participated in a fraudulent and dishonest breach of fiduciary duty. Inter alia, the C.A. allowed the DBDC parties’ appeal with respect to knowing participation.

Torts: Wrongful Imprisonment

Fleming v. Ontario, 2018 ONCA 225 (38087)

Mr. Fleming was walking down Argyle Street in Caledonia, Ontario, adjacent to lands occupied by Indigenous protesters and known as Douglas Creek Estates. He was carrying a pole bearing Canadian flags. His intent was to join a march and watch a Canadian flag raising as a counter-protest to the occupation of Douglas Creek Estates. The OPP responded to the rally with an operational plan intended to permit peaceful protest but to maintain peace and order. When officers spotted Mr. Fleming walking alone, police vehicles were directed to approach. Two squad cars and a police transport vehicle rapidly approached and stopped on the shoulder of the road. Mr. Fleming retreated onto the disputed lands. Immediately, 8 to 10 occupiers reacted and began approaching. A police officer entered onto the disputed land, arrested Mr. Fleming to prevent a breach of the peace, and escorted him back towards Argyle Street. Officers ordered him to drop his flag but he refused. A struggle ensued. Mr. Fleming was overpowered. His flag was wrested away from him. He was handcuffed and transported from the scene. Mr. Fleming sued the police and claimed permanent injury. The trial judge awarded general damages, special damages, damages for wrongful imprisonment, false arrest and breach of right to pass, and damages for breach of s. 2(b). A majority of the C.A. set aside the trial judgment and ordered a new trial, restricted to determining whether excessive force was used during the arrest.

Wills & Estates in Québec: Discretionary Trusts

Yared Estate v. Karam, 2018 QCCA 320 (38089)

The Respondent, Mr. Roger Karam and the late Mrs. Taky Yared were married on July 25, 1998 in Beirut, Lebanon. Four children were born of their marriage. In August 2011 Mrs. Yared learned she had cancer, and the same year, the family moved to Montreal. In October 2011, a family trust was constituted and Mr. Karam named as both co-trustee along with his elder mother and sole “Electeur” of the trust which gave him discretionary power notably to name and replace the initial beneficiaries of the trust and to determine how the capital and revenue of the trust would be divided among the beneficiaries. On June 18, 2012, the family trust purchased a property that would serve as the family residence at the cost of $2,350,000.00. On June 12, 2014, Mrs. Yared left the residence and she served divorce proceedings upon Mr. Karam on July 2, 2014. She died on April 6, 2015 while still married to Mr. Karam. A few months before her death, in August 2014, Mrs. Yared executed a last Will and Testament before a Notary and appointed her brothers, the Applicants, M. Ramy Yared and M. Rody Yared as liquidators of her Estate. Further, she bequeathed her entire Estate in equal portion to four separate trusts, each of them to the benefit of one of her children. On March 30, 2016, Mr. Karam served proceedings before the Superior Court to demand the annulment of the Will and Testament of Mrs. Yared. On July 19, 2016, the Applicants, in their capacities as liquidators of the Estate served an application for a declaratory judgment to have the family residence declared as part of the family patrimony under the Civil Code of Quebec. Superior Court of Quebec: application for declaratory judgment granted in part; C.A.: appeal granted.