Remanded (1)

Criminal Law: Sexual Offences; Sentencing 

R. v. Brodeur, 2018 QCCA 1997 (38499)
The Respondent, Jean Brodeur, pleaded guilty to charges of indecent assault and sexual assault. The acts were committed between 1979 and 1983, when the victim, the younger sister of his then spouse, was between the ages of 10 and 14 and he was between the ages of 26 and 30. The Court of Québec imposed a sentence of 18 months’ jail, along with several orders.  Mr. Brodeur appealed, arguing the judge had not seriously considered a conditional sentence, had given undue weight to the objectives of denunciation and deterrence and had undervalued all the mitigating factors. The C.A. allowed the appeal and replaced the sentence with a 22‑month conditional sentence to be served in the community. It found its intervention was warranted because the Court of Québec judge had made an error in principle by de facto ruling out a conditional sentence, an error that had an actual impact on the sentence. In its view, the judge would have made a conditional sentence order if not for that error. “Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal…is remanded to the Court of Appeal of Quebec for disposition in accordance with R. v. Poulin, 2019 SCC 47.”

Granted (1)

Wills & Estates: Protective Orders 

Sherman Estate v. Donovan, 2019 ONCA 465 (38695)
Mr. Barry Sherman and Ms. Honey Sherman were found murdered in their Toronto home. Applications for the issuance of a Certificate of Appointment of Estate Trustee were made to the court. The Applicants also sought and obtained a Protective Order that restricted public access to the estate files. In July 2018, the Respondent, Mr. Donovan, sought access to both estate files. He was advised that by judge’s order, access to the files was not possible. In response, Mr. Donovan and the Toronto Star sought a variation or termination of the Protective Order and the full unsealing of the court files. Their motion was dismissed and the files ordered sealed for a period of two years. This decision was overturned on appeal. The Applicants subsequently obtained a stay of the C.A. decision. “The motion for a stay of execution is granted. The motion to expedite the hearing of the appeal is granted. The application for leave to appeal…is granted. Abella J. took no part in the judgment. The schedule for serving and filing materials will be set by the Registrar.”

Dismissed (17)

Civil Procedure in Québec: Leaves to Appeal 

Cuggia v. Autorité des marchés financiers, 2019 QCCA 770 (38735)
In 2007 and 2009, four clients of the Applicants, Groupe Ultra‑Vie and Mr. Cuggia, filed an application for compensation with the Respondent, the AMF, alleging they had been victims of fraudulent overbilling between 2002 and 2007. The AMF determined fraudulent tactics had in fact been used and compensated each of the claimants. On the basis it was subrogated in the rights of the claimants so compensated, the AMF brought two judicial applications against the Applicants. The Superior Court found fraudulent tactics had been used and Groupe Ultra‑Vie and Mr. Cuggia were liable in solidum. The C.A. unanimously held leave to appeal was required and the appeal had been improperly initiated because leave had not been sought. It also found the appeal had no reasonable chance of success. “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. Kasirer J. took no part in the judgment.”

Civil Procedure: Motions to Strike 

Lee v. McGhee, 2019 ONCA 99 (38636)
The Applicant, Mr. Lee, commenced an action against the Respondents, and others, as a result of his removal from a concert in Ottawa. Upon application by the Respondents, a motion judge at the Ontario Superior Court of Justice dismissed the action against the Respondents pursuant to RR. 57.03 and 60.12 of the Rules of Civil Procedure  on the basis the Applicant had not abided by the Rules of Civil Procedure and had failed to pay outstanding costs awards during the course of the legal proceedings. The C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Vexatious Litigants 

Strang v. Ontario, 2018 ONCA 844 (38568)
Following her dismissal, the Applicant Margaret Strang instituted many civil and criminal proceedings relating to events that allegedly occurred while she was a provincial government employee. The proceedings concerned former coworkers, members or leaders of her union, lawyers and others. She alleged incidents involving assault, sexual assault, harassment, defamation and discrimination that had been committed by government employees on racial or ethnic grounds. Each of the civil proceedings was struck out for disclosing no reasonable cause of action or dismissed for being frivolous, vexatious or an abuse of process. In the case of the criminal proceedings, the 47 pre‑inquiry applications filed were withdrawn, stayed or dismissed. The Respondent brought an application to limit Ms. Strang’s ability to commence legal proceedings. The Superior Court made an order prohibiting her from new civil or criminal proceedings without first obtaining leave from a judge of the Superior Court. The C.A. varied the order so it applied only to civil proceedings. “The motion to appoint counsel is dismissed. The motion for an extension of time to serve the response to the application for leave to appeal and to serve the application for leave to cross-appeal is granted. The application for leave to appeal and the application for leave to cross-appeal…are dismissed.”

Criminal Law: Aggravated Assault; Sentencing 
Quash v. R., 2019 YKCA 8 (38708)
Mr. Smith was intoxicated and was walking down the street yelling. The Applicant, Mr. Quash, asked “Why are you being so loud”? Mr. Smith disputed being loud, and then moved quickly towards Mr. Quash. Mr. Quash swung the blade of a pocket knife at Mr. Smith’s face cutting it from below the ear to the chin. The trial judge rejected Mr. Quash’s self‑defence argument and convicted him of aggravated assault. The sentencing judge imposed a sentence of ten months’ imprisonment and 30 months’ probation. A majority of the C.A. allowed the sentence appeal and imposed a sentence of two years’ imprisonment with 30 months’ probation. Willcock J.A., dissenting, would have dismissed the appeal. “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.”

Criminal Law: Negligence Causing Death 

McPherson v. R., 2019 NSCA 20 (38725)
Mr. McPherson’s vehicle collided with a taxi. The taxi driver was injured and his passenger killed. Mr. McPherson was found unconscious in his vehicle. A witness testified she saw no one else in the vehicle and she saw no one else leave the vehicle. Mr. McPherson denied he was the driver and contended he was the victim of a plot to assassinate him and a plot to falsely convict him. A jury convicted Mr. McPherson of criminal negligence causing death, criminal negligence causing bodily harm, driving with blood/alcohol exceeding 80 mgs/100 mls causing death, and driving with blood/alcohol level exceeding 80 mgs/100 mls causing bodily harm. The C.A. dismissed an appeal from the convictions. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Parole Ineligibility 
Bain v. R., 2019 QCCA 460 (38668) 
Mr. Bain was convicted of murder and attempted murder in relation to his attack on a Montreal concert venue while the Parti Québécois celebrated its 2012 election victory. In reaching their verdict, the jury rejected Mr. Bain’s argument he should not be held criminally responsible because he was in a psychotic state at the time he committed the acts and would not have known what he was doing was wrong. The sentencing judge imposed the life sentence mandated by the Criminal Code as well as a 20-year period of parole ineligibility. Mr. Bain appealed his sentence. He argued the trial judge’s failure to ask the jury for their recommendation on the appropriate parole ineligibility period, as required by s. 745.2 of the Criminal Code, constituted a serious legal error which warranted the court’s intervention. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed. Kasirer J. took no part in the judgment.”

Criminal Law: Sexual Offences

M. v. R., 2017 ONCA 1013 (38715) 

There is a publication ban in this case, in the context of the appropriateness of a jury change re a series of sexual offences. “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.”

Defamation: Motions to Strike 

Day v. Levant, 2019 ONCA 244 (38658)
Mr. Levant was the principal of an online media outlet, Rebel News, a site that comments on political and social issues, expressing right‑leaning views. The Applicant, Mr. Day, had been a regular participant on social media and expressed his more left‑wing views almost exclusively on Twitter. Between May and June 2016, Mr. Day posted tweets highly critical of Mr. Levant and of Rebel News relating to their online campaign to raise money for the victims of the Fort McMurray forest fires. Mr. Day alleged Mr. Levant was engaged in a scam of “unadulterated sleaziness” so he could improperly take advantage of other donors’ charitable tax receipts and was enriching himself at the expense of forest fire victims. Mr. Levant commenced an action in defamation, claiming damages. Mr. Day brought a motion under s. 137.1 of the Courts of Justice Act to have the action dismissed. Mr. Day’s motion was dismissed.  This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Family Law/Charter: Common Law Spouses 
Johnston v. Meyer, 2019 NBCA 39 (38719)
Mr. Meyer and Ms. Johnston started cohabiting in March 2006, and continued to live together until October 2015. In September 2017, Ms. Johnston filed an application, advancing claims for spousal support and a division of property based on the common law principles of resulting trust, constructive trust and unjust enrichment almost two years after the alleged date of separation. In reply, Mr. Meyer raised s. 112(3) of the Family Services Act, as a complete defence to the claim for spousal support, on the basis the claim was filed beyond the one year time period applicable to common law spouses. Ms. Johnston brought a motion seeking interim spousal support and she raised the issue of the constitutional validity under s. 15(1) of the Charter of s. 112(3) that imposed the one‑year limitation periodShe claimed that s. 112(3) was discriminatory because it differentiated common law spouses on the basis of marital status and perpetuated the prejudice experienced by common law spouses based on the unfounded stereotype that common law relationships are less permanent and are less deserving than those in married relationships. Further, the violation of s. 15(1) did not meet the justification standard under s. 1 because the deleterious effect of the limitation period imposed on common‑law spouses was not proportional to the objectives of the Family Services Act. The motion judge held s. 112(3) of the Family Services Act violated s. 15(1) because it imposed a limitation period on common‑law spouses which it did not impose on married spouses. The limitation period was discriminatory because it differentiated common law spouses on the basis of marital status.  Further, the Charter violation did not meet the justification standard under s. 1.  C.A.: Respondent’s appeal dismissed. “The application for leave to appeal…is dismissed.”

Insurance: Limitation Periods 

Kakoutis v. TD Insurance, Meloche Mennox, 2019 ONCA 171 (38700)
On June 30, 2003, Mr. Kakoutis was injured in a MVA. The Respondent, TD Insurance, Meloche Mennox, paid some accident benefits to Mr. Kakoutis, but denied other benefits. Mr. and Ms. Kakoutis issued a claim for damages against TD Insurance on August 25, 2015, for denying benefits to Mr. Kakoutis. TD Insurance brought a motion for summary judgment on the basis all claims were statute‑barred. That motion was granted and the action was dismissed. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Grievances 

Abi-Mansour v. Canada (Attorney General), 2018 FCA (38728)
Mr. Paul Abi-Mansour worked with the Deputy Minister of the Department of Fisheries and Oceans. He was in the area of selection for two appointment processes, but was unable to apply because the Department chose non-advertised processes. Mr. Abi-Mansour filed a grievance/complaint before the Federal Public Sector Labour Relations and Employment Board, alleging the Department abused its authority. The Board dismissed his complaints. A single judge of the Fed. C.A., in a first order, dismissed Mr. Abi-Mansour’s motion for an order granting leave to commence a judicial review application of the Board’s decision. In a second order, the Fed. C.A. dismissed Mr. Abi-Mansour’s motion for an order permitting him to file a notice of appeal to a panel of three judges from the first order, as it found there was no statutory basis to allow his motion. “The motion for an oral hearing is dismissed. The motion for a stay is dismissed. The motion to anonymize the style of cause is dismissed. The motion for an extension of time to serve and file the application for leave to appeal and to dispense from compliance is dismissed with costs. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Military: Disability Benefits 

Fawcett v. Canada (Attorney General), 2019 FCA 87 (38692)
Captain Fawcett and her husband were members of the Canadian Armed Forces. On Captain Fawcett’s return from maternity leave, they prepared mandatory Family Care Plans to accommodate their daycare needs and the Forces’ readiness requirements. To accommodate Captain Fawcett’s required earlier start time for work, her husband normally drove their son to daycare. He was ordered to arrive at work early on February 21, 2006 for readiness training for imminent deployment and could not drive their son to daycare. Captain Fawcett contacted her supervisor, informed him she was activating her Family Care Plan and would be late for work. Her supervisor agreed. On the way to her son’s day care, she was involved in a catastrophic MVA. Her son was killed and she suffered serious injuries, ultimately requiring amputation of her right leg above the knee. Captain Fawcett applied to the Department of Veteran Affairs Canada for benefits for disability resulting from a service‑related injury. A Canadian Forces Summary Investigation found Captain Fawcett was on duty at the time of the accident but the injuries were not attributable to military service. Her application for disability benefits was denied. Captain Fawcett filed a grievance. The Chief of Defence Staff denied the grievance. The Fed. Court dismissed an application for judicial review. The Fed. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Military: Limitation Periods 

Miller v. Canada, 2019 FCA 61 (38666)
In 1974, Mr. Miller, who was then 15 years of age, was one of a number of teenage army cadets attending a six‑week summer camp at Canadian Forces Base Valcartier, Quebec. The camp’s instructors included regular and reserve members of the Canadian Armed Forces. When the cadets, including Mr. Miller, were in an indoor facility being instructed in the safe handling of explosive munitions, a live grenade was mistakenly included in the box of inert ordinance. The cadets were permitted to handle those ordinance and, in particular, to pull the pin on the grenade. The grenade exploded, killing six cadets and injuring sixty‑five others. Mr. Miller was present, but not visibly injured. In June 2015, Mr. Miller commenced an action seeking damages and other relief for long‑term harm stemming from the incident and the Canadian Forces’ responses to it. The Crown’s statement of defence pleaded the claim was statute‑barred under s. 39 of the Federal Courts Act,  which imports provincial limitation periods “[e]xcept as expressly provided by any other Act”, and the Civil Code of Québec. The Crown sought leave to amend to plead the six‑month limitation period in s. 269(1) of the National Defence Act as an exception contemplated by s. 39(1) of the Federal Courts Act. It also sought summary dismissal of the action as statute‑barred. The motions judge granted permission to amend the statement of defence and summary judgment, dismissing the action. The C.A. dismissed Mr. Miller’s appeal. “The application for leave to appeal…is dismissed.”

Pensions: Disability Pensions 

O’Rourke v. Canada (Attorney General), 2018 FC 498 (38749)
Ms. O’Rourke applied for a disability pension under the Canada Pension Plan on March 18, 2015.  The Minister of Employment and Social Development approved her application with a deemed date of disability onset of December 2013, which was the maximum retroactivity period permitted by the governing legislation. She applied for additional retroactive benefits on the ground she was incapable of applying earlier. Her request was denied. The General Division of the Social Security Tribunal dismissed her appeal on the basis she had not been incapable under s. 60(8) of the Canada Pension Plan of forming or expressing an intention to make an application earlier than March 18, 2015. The Social Security Tribunal Appeal Division dismissed her application for leave to appeal. Her application for judicial review was dismissed.  Her appeal from that decision was also dismissed.  “The application for leave to appeal…is dismissed.”

Tax: Appeal Delay 

Milova v. Minister of Canada Revenue, 2018 FCA (38686)
The Applicant applied for an extension of time in which to file her notice of appeal from her income tax assessment. The Tax Court dismissed her application on the ground it had no jurisdiction to grant such an order pursuant to s. 167(5) (a) of the Income Tax Act. The Applicant filed a Notice of Appeal from that decision on December 11, 2017 but did not file an appeal book. She was ordered to file her appeal book but did not do so. The C.A. issued a Notice of Status Review on August 27, 2018, requiring her to file representations within 30 days as to why the proceeding should not be dismissed for delay. The C.A. did not accept her explanation for the delay and dismissed her appeal. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”

Torts: MVA’s 

Blicharz v. Livingstone, et al., 2019 ABCA 42 (38720)
Ms. Blicharz came to Canada from Poland in 2000 with her husband and two children.  In 2002, she found employment as a housekeeper at the local hospital, where she suffered several injuries while on the job that resulted in Workers’ Compensation Board claims. Between 2005 and 2010, she was involved in the first of a series of five MVAs.  She has not worked since June of 2005, claiming to have been permanently disabled and in constant pain. Ms. Blicharz sued the owners and operators of all of the vehicles. These actions were consolidated into one trial.  The trial judge awarded her damages for injuries suffered in two of the accidents.  Her appeal from that decision was dismissed.  The C.A. also dismissed her subsequent motion for a review of that decision. “The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed with costs.”

Torts: Schools 
Peters v. Chasty, 2019 ONCA 294 (38721)
When she was a high school student and member of the track team, Ms. Peters was injured while she practised long-jump techniques at Secondary School. She sued the school board and several employees, alleging her injury was due to their negligence. The trial judge dismissed her action. Ms. Peters’ subsequent appeal was dismissed. “The application for leave to appeal…is dismissed with costs to John Chasty Principal, Peel District School Board and Lana Del Maestro Track Coach.”