Civil Procedure in Québec: Setting Down for Trial

Jean v. Agence du revenu du Québec, 2019 QCCA 458 (38766)

A summary tax appeal by the Applicant, Ms. Jean, with regard to three taxation years was received by the Civil Division of the Court of Québec. No case protocol was signed by the parties (Ms. Jean and the Respondent, the ARQ), and no case management conference held. Following the expiry of the time limit for setting down for trial and judgment, Ms. Jean requested the case be set down for default judgment against the ARQ. The Court of Québec declared the request inadmissible, noting that under art. 177 of the Code of Civil Procedure, Ms. Jean was presumed to have discontinued her application because she had failed to request the case be set down for trial and judgment within the applicable strict time limit. The C.A. dismissed the appeal, finding Ms. Jean had failed to have the case set down within the time limit specified in art. 173 para. 3 and, under art. 177 para. 1, she was therefore presumed to have discontinued her application. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: The Elephant in the (court) Room

Zoocheck Canada Inc. v. Canada (Minister of Agriculture and Forestry), 2019 ABCA 208 (38774)

The Applicants were concerned about an elephant named Lucy, who they would like to have moved from the Edmonton Valley Zoo to what, in their view, was a more appropriate facility. In April 2017, the Applicants brought an application for judicial review of the Minister’s decision to renew the Zoo’s permit for 2017/2018. At a preliminary application, the Applicants sought a declaration they had standing to seek judicial review. The chambers judge concluded the Applicants failed to meet the test for public interest standing and denied their application. The chambers judge also concluded the application constituted an abuse of process, as a collateral attack on a decision arising out of a previous attempt by some of the Applicants to have the court determine whether the Zoo was violating the Animal Protection Act in relation to Lucy. The majority of the C.A. dismissed the appeal. The dissenting judge of the C.A. would have allowed the appeal and found the Applicants qualify for public interest standing. Both the majority and the dissent agreed the chambers judge erred in law by applying an overly broad approach to the doctrine of collateral attack and this aspect of the decision should be set aside. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Certification

Nippon Yusen Kabushiki Kaisha v. Ewert, 2019 BCCA 187 (38784)

The Applicants (collectively referred to as “Nippon et al.”) were vehicle carriers who transported cars, trucks and other equipment across oceans to Canada using specialized cargo ships called “roll‑on/roll‑off” vessels. Mr. Ewert alleged, between February 1, 1997, and December 31, 2012, Nippon et al. made illegal price‑fixing agreements to artificially increase the price of transport for these vehicles. Nippon et al. have all pleaded guilty and either sought amnesty or reached compromise agreements in the U.S. or Japan in respect of competition infractions arising from agreements as to international shipping services to North America. The extra cost was passed on to purchasers of the vehicles, resulting in overcharges. As one of the affected purchasers, Mr. Ewert wished to recover the overpayment or a proportionate share of the benefits realized by Nippon et al. for himself and others similarly situated. The proposed class included direct and indirect purchasers of the services offered by Nippon et al., and certain other persons.  At the certification hearing, Mr. Ewert presented expert evidence estimating the damage would require an estimate of the overcharge attributable to the collusive behaviour, and an estimate of the overcharge paid by the direct buyers that was passed to the class members. The expert proposed three possible analytical methods, usually available from statistical agencies or reports by the industry or analysts. Nippon et al. filed a responding affidavit, arguing the class‑wide methodology would not reliably identify or estimate overcharges, nor determine whether the overcharges were passed to a particular buyer.  The certification judge dismissed the application to certify the action. The B.C.C.A. allowed the appeal in part, certifying the action in relation to direct and indirect purchasers of the services offered by Nippon et al., but refusing it in relation to those who purchased or leased vehicles transported by carriers other than Nippon et al. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search & Seizure

R. v. R., 2018 NBCA 70 (38800)

There is a publication ban in this case, in the context of search and seizure re an alleged drug trafficking enterprise. “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.”

Patents: Disclosure/Anticipation; Obviousness; Utility; Specification

Packers Plus Energy Services Inc. v. Essential Energy Services Ltd., 2019 FCA 96 (38694)

The Applicant, Packers Plus Energy Services Inc. (“Packers Plus”) was a Canadian company that designed, manufactured, sold and used solid‑body packers in the oil and gas industry. It owned the 072 patent entitled “Method and Apparatus for Wellbore Fluid Treatment”. The Respondents were oilfield service companies that sold and used equipment to complete oil wells, using a method alleged to have infringed the 072 patent. The 072 patent disclosed a method and apparatus, used in hydraulic fracturing, for selectively sending fluids to specific parts of a wellbore by means of a tubing string, at a pressure high enough to break the adjacent rock formation, enabling hydrocarbons to be released from the fractured formation. According to the 072 patent, the claimed method and apparatus can be used in different types of wellbores. The apparatus used was previously known and had only been used in cased holes. It had not been used in an open hole before it was successfully tried by the inventors of the 072 patent. Packers Plus brought several actions against the Respondents for patent infringement — either direct or in concert with others. The trial proceeded against two of the Respondents. The Respondents counterclaimed the 072 patent was invalid for previous disclosure or anticipation, obviousness, lack of utility and deficient patent specification. The trial judge dismissed the infringement actions and held the patent was invalid for obviousness and anticipation. His decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Municipal Law/Privacy: Disclosure

Barker v. Information and Privacy Commissioner of Ontario and Algoma Public Health, 2019 ONCA 275 (38705)

There is a sealing order in this case, in the context of a request for disclosure under the Ontario Municipal Freedom of Information and Protection of Privacy Act. “The application for leave to appeal…is dismissed.”