Dismissed (11)

Civil Procedure: Motions to Strike 

Lee v. Richcraft Homes Ltd., 2019 ONCA (38730)
Mr. Lee commenced a lawsuit against Richcraft Homes Ltd. Mr. Lee was the owner of Jay‑Pee dry cleaners and Richcraft was the owner of a commercial plaza. Mr. Lee alleged he had suffered business losses of $2K and special damages of loss of income and loss of equipment in the amount of $150K.  Mr. Lee alleged his use and access to the dry cleaning premises was interfered with by another tenant. Mr. Lee alleged Richcraft ignored his complaints, and terminated his tenancy. Richcraft did not defend the action and was noted in default. Richcraft successfully applied to set aside the noting in default, and successfully moved to have Mr. Lee’s action struck out. The Master concluded Mr. Lee had no standing under the lease or personal cause of action and refused to grant leave to amend the action. Mr. Lee’s appeal was dismissed by Mitrow J. There were a number of motions brought by Mr. Lee seeking extensions of time to appeal. The C.A. granted Mr. Lee’s motion and imposed terms to appeal the decision of Mitrow J. The C.A. dismissed Mr. Lee’s application for leave to appeal. “The motion to adduce evidence is dismissed. The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Procedural Motions 

Sir v. R., 2019 FCA 101 (38724)
The Applicant commenced an action against the Respondents. The Applicant made a number of allegations regarding the conduct of RCMP officers and Canada Border Services Agency officers who interacted with her in a number of Canadian jurisdictions. The Applicant also made allegations regarding the handling of complaints she made against these officers and the internal investigation of these complaints by the RCMP and CBSA. The Respondents filed their statement of defence and the Applicant filed a reply. The parties’ respective affidavits of documents were to be served by October 22, 2016. On November 3, 2016, the Respondents filed a motion for an order extending the time to serve their affidavit of documents. The Applicant also filed a motion for the following relief: prohibiting the Respondents from obtaining an extension of time; penalizing the Respondents for failing to complete its disclosure on time; extending deadlines for the next steps in the litigation; and permitting her to submit additional evidence at trial. Prothonotary Lafrenière granted the Respondents’ motion for an extension of time and ordered the Applicant to pay into court the amount of $8,900 as security for the Respondents’ costs. Prothonotary Lafrenière also dismissed the Applicant’s motion. The Applicant appealed the two orders granted by Prothonotary Lafrenière. LeBlanc J. dismissed the Applicant’s appeal. The Applicant’s appeal was dismissed by the Fed. C.A. “The application for leave to appeal…is dismissed.”

Class Actions: Certification 

Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111 (38678)
A tanker truck was loaded with helicopter fuel. There was a spill of the helicopter fuel into the Lemon Creek and the connected waterways. The surrounding area was evacuated and residents ordered not to drink the water. The Applicant applied to certify a class action on behalf of the residents who were evacuated from the region. The Applicant alleged the spill caused property damage, loss of use and enjoyment of the property, and a diminution in property values across the evacuation zone. The chambers judge certified the class action in negligence and in nuisance. The appeal was allowed by the C.A. “The application for leave to appeal…is dismissed with no order as to costs.”

Class Actions: Certification 

Panasonic Corporation v. Shah, 2018 ONCA 819 (38440)
Khurram Shah was a representative plaintiff in a proposed class action claim on behalf of all Canadian residents who purchased Lithium Ion Batteries [“LIBs”] and products containing LIBs, such as laptop computers or cellular phones, between January 1, 2000 and December 31, 2011. Proposed class members include purchasers of the defendants’ products as well as “umbrella purchasers” who purchased an LIB or an LIB product not manufactured or supplied by a defendant. Mr. Shah, as representative, alleged the Applicants participated in a global criminal price-fixing cartel, leading to increased prices throughout the LIB market at each level of the distribution chain, including the consumer level. The Motion’s Judge at the Ontario Superior Court of Justice certified in part at first instance. However, the motion’s judge did not certify the unlawful means conspiracy claim or the “umbrella purchaser” claims, concluding umbrella purchaser claims would lead to indeterminate liability. On appeal, the Ontario Superior Court of Justice certified the unlawful means conspiracy claim but refused to certify the umbrella purchaser claims. On further appeal, the C.A. determined the Divisional Court had correctly certified the unlawful means conspiracy claim but incorrectly refused the umbrella purchaser claims. It held umbrella purchasers had a cause of action under s. 36 of the Competition Act. “The application for leave to appeal…is dismissed with costs.”

Constitutional Law: On-line Commerce; Provincial Extraterritoriality 

College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265 (38669)
Essilor Group Canada Inc. sold contact lenses and eyeglasses online. Its online business was based in B.C.  Ontario residents placed orders online. Essilor filled those orders in B.C. and shipped eyeglasses and contact lenses into Ontario to those customers. The College of Optometrists of Ontario and the College of Opticians of Ontario applied for a declaration Essilor’s delivery of eyeglasses and contact lenses to customers in Ontario is “dispensing” and therefore a controlled act under s. 27 of the Regulated Health Professions Act. Section 27 regulated performance of controlled acts in Ontario and makes dispensing contact lenses or eye glasses a controlled act. The Colleges sought an injunction against Essilor. The application judge granted the declaration and an injunction. The C.A. allowed an appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Narcotic Offences; Peremptory Jury Challenges 

Gardner v. R., 2019 QCCA 726 (38683)
A jury found the Applicant, Ms. Gardner, guilty of importing cocaine and of possession of cocaine for the purposes. Ms. Gardner appealed these verdicts, arguing the Crown used four of its peremptory challenges to systematically exclude black people from serving on the jury.  The C.A. unanimously dismissed the appeal. It excluded evidence Ms. Gardner sought to adduce as it found it failed to meet the criteria for the admission of fresh evidence. It also dismissed the ground of appeal concerning the propriety of the use of peremptory challenges, notably as in its view it should have been raised before the start of the trial. “The motion to adduce new evidence is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Offences; DNA Evidence 

G.D. v. R., 2019 QCCA 77 (38512)
There is a publication ban in this case, in the context of police extraction of an accused’s DNA from a discarded coffee cup. “The application for leave to appeal…is dismissed.”

Employment Law: Motions to Quash 

Michail v. Ontario English Catholic Teachers’ Association, 2018 ONCA 857 (38727)
Ms. Michail was employed for many years with the London District Catholic School Board and in 2010, filed a grievance with the Ontario Labour Relations Board. In 2015, a grievance decision was rendered that disatisfied Ms. Michail. She commenced a judicial review proceeding in the Superior Court of Justice, seeking, judicial review of the 2015 award. She also sought leave to have her application heard by a single judge of the Superior Court of Justice on an urgent basis pursuant to the Judicial Review Procedure Act. The Superior Court dismissed her application as it should have been brought before the Divisional Court. Ms. Michail filed a notice of appeal with the C.A. The C.A. subsequently granted the Respondents’ motion to quash her appeal. Ms. Michail brought a motion seeking various relief including orders pertaining to audio recordings of court proceedings. Her motion was dismissed.  Ms. Michail’s subsequent motion to review the previous order was dismissed. “The application for leave to appeal…is dismissed.”

Employment Law: Settlements 

Osman v. Canada (Attorney General), 2019 FCA 72 (38674)
Mr. Osman filed a grievance against his employer, alleging disguised discipline and discrimination based on race and religion; he applied to refer the grievance for adjudication before the Federal Sector Labour Relations and Employment Board. Following mediation, the parties reached an agreement to settle, which included the employer’s commitment to provide a positive letter of reference. Upon discovering the letter was unsatisfactory, Mr. Osman asked for it to be modified; the employer refused, save for one minor change. Mr. Osman asked the Board to determine whether a valid and binding settlement had in fact been reached, and whether its terms had been executed. Mr. Osman argued he had been misled in signing the agreement, based on the employer’s alleged misrepresentation with respect to the letter. The Board determined the agreement was valid and binding, and its terms had been largely fulfilled; the Board also found it lacked jurisdiction to reopen the grievance. Throughout the Board hearing process, Mr. Osman had been represented by a member of his union. Mr. Osman then filed (as a self‑represented litigant) an application in the Fed.  C.A. for judicial review of the Board’s decision. After the parties’ materials application were filed, but before the matter was set down for a hearing, Mr. Osman subsequently retained counsel. He then brought a motion to file: a further affidavit; supplementary legal submissions from his counsel; and copies of the agreement and of the letter of reference (neither document had been before the Board at first instance). A motion judge of the C.A. refused to grant leave to Mr. Osman to file these additional materials. The C.A. then dismissed Mr. Osman’s application for judicial review on the merits, finding the Board’s decision was reasonable. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”


M.M. v. Minister of Justice Canada, 2019 QCCA 683 (38593)
The Applicant requested the Minister of Justice reconsider a previous decision to surrender her to the U.S. on criminal charges relating to the abduction of her children in violation of a custody order made against her in the State of Georgia. In her decision on reconsideration, the Minister of Justice did not consider the unavailability of a Canadian defence in the requesting state as part of her decision on surrender under s. 44(1) of the Extradition Act because the Applicant did not meet the threshold test set out in an earlier decision involving the Applicant: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973. The Minister of Justice ultimately denied the Applicant’s request for reconsideration and ordered the Applicant’s surrender. A majority of the C.A. dismissed the application for judicial review holding the Minister’s decision on reconsideration was not unreasonable. “The application for leave to appeal…is dismissed.”

Real Property in Québec: Mortgages 

Bédard v. Caisse Desjardins de Limoilou, 2019 QCCA 388 (38664)
The Applicant, Mr. Bédard, signed with the Respondent, the Caisse, a revolving credit contract secured by a mortgage on his condominium.  The Caisse served on him a notice of the exercise of a hypothecary right in which it indicated it was entitled to ask him to surrender the condominium within 60 days. Mr. Bédard then filed an application for an interlocutory injunction for cancellation of the registration of a notice of the exercise of a hypothecary right on his building. That application was dismissed. Mr. Bédard also brought an application in which he sought a declaration of nullity of a clause of the contract with the Caisse, cancellation of the registration of a notice of exercise for taking in payment that had been published in respect of his property, a declaration the Caisse’s proceeding was abusive, and damages.  The Superior Court dismissed Mr. Bédard’s application. It found the revolving credit contract he had signed was payable on demand and accordingly granted the Caisse’s cross-application for forced surrender for the purpose of taking in payment. The C.A. unanimously dismissed the appeal. “The application for leave to appeal…is dismissed.”