This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2019, 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.

Appeals

Aboriginal Law/Civil Procedure: Class Actions; Judicial Supervision

J.W. v. Canada (Attorney General), 2019 SCC 20 (37725)

In overseeing the administration and implementation of this Agreement, courts have a duty to ensure the claimants receive the benefits bargained for. The provisions of the Approval and Implementation Orders herein contemplate ongoing recourse to the courts, by supervising the Agreement to ensure that implementation and administration take place in the way the parties agreed.

Administrative Law/Citizenship: Standard of Review

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (37748)

When doing a reasonableness review, courts must consider the outcome of the administrative decision in light of its underlying rationale to ensure the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness from correctness is that a reasonableness review must focus on the decision the administrative decision maker actually made, including justification offered for it, not the conclusion the court itself would have reached.  The presumption of reasonableness review is rebutted in two situations.  First, where the legislature has indicated different standards to apply; this will be the case where the legislature explicitly prescribes the applicable standard; it will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision.  Second, where the rule of law requires correctness be applied; this will be the case for certain categories, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to jurisdictional boundaries between two or more administrative bodies. The starting point for any analysis is a presumption the legislature intended the standard to be reasonableness. When applying correctness, a reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view; while it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions. Questions regarding the division of powers between Parliament and the provinces, relationship between the legislature and the other branches of the state, scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts; therefore, correctness must continue to be applied in reviewing such questions. Courts should no longer engage in a contextual inquiry to determine the standard or to rebut the presumption of reasonableness. However, the S.C.C. would not definitively foreclose the possibility that another category be recognized as requiring a derogation from the presumption of reasonableness in a future case. In the instant case, s. 3 of the Citizenship Act considered as a whole, other legislation and international treaties that inform the purpose of s. 3 , the jurisprudence cited in the analyst’s report, and the potential consequences of the Registrar’s decision point overwhelmingly to the conclusion Parliament did not intend s. 3(2) (a) to apply to children of individuals who have not been granted diplomatic privileges and immunities; as a result the children here, born in Canada, are Canadian citizens.

Administrative Law/Telecommunications: Standard of Review; Jurisdiction

Bell Canada v. Canada (Attorney General), 2019 SCC 66 (37896)(37897)

The C.R.T.C. Final Order was issued on the basis of an incorrect interpretation of the scope of the authority conferred under s. 9(1) (h). Properly interpreted, s. 9(1) (h) only authorizes the issuance of mandatory carriage orders — orders that require television service providers to carry specific channels as part of their cable or satellite offerings — that include specified terms and conditions, and does not empower the C.R.T.C. to impose terms and conditions on the distribution of programming services generally. Accordingly, because the Final Order does not actually mandate television service providers distribute a channel that broadcasts the Super Bowl, but instead simply imposes a condition on those that already do, its issuance was not authorized by s. 9(1) (h) of the Broadcasting Act.

Bankruptcy & Insolvency/Oil & Gas: “Orphan” Wells; Division of Powers

Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5 (37627)

The Alberta Energy Regulator’s use of its statutory powers does not create a conflict with the BIA so as to trigger the doctrine of federal paramountcy: s .14.06(4) is concerned with the personal liability of trustees, and does not empower a trustee to walk away from the environmental liabilities of the estate it is administering; the Regulator is not asserting any claims provable in the bankruptcy, and the priority scheme in the BIA is not upended; no conflict is caused by GTL’s status as a licencee under Alberta legislation.  The regulatory regime can coexist with and apply alongside the BIA.  Bankruptcy is not a licence to ignore rules, and insolvency professionals are bound by and must comply with valid provincial laws during bankruptcy.

Civil Procedure/Private International Law: Foreign Judgments

Barer v. Knight Brothers LLC, 2019 SCC 13 (37594)

The jurisdiction of the Utah Court is recognized, presenting substantive arguments in a motion to dismiss, this is submitting to the Utah Court’s jurisdiction in accordance with art. 3168(6) of the Civil Code of Québec, and this is sufficient in this case to establish any substantial connection that may be required by art. 3164 C.C.Q.

Class Actions: Certification; Limitation Periods; Discoverability; “Plain and Obvious”

Pioneer Corp. v. Godfrey, 2019 SCC 42 (37809)(37810)

Is it plain and obvious that the claim under s. 36(1) (a) of the Competition Act of so-called “umbrella purchasers” who bought ODDs or ODD products manufactured and supplied by someone other than the defendants, but who allege that the defendants’ price-fixing conduct raised the market price of the product, cannot succeed? This depends on whether these umbrella purchasers have a cause of action under s. 36(1)(a). The S.C.C. agrees with the courts below that they do, and it therefore follows that it is not plain and obvious that their claim cannot succeed. In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. Discoverability continues to apply where the legislature has shown its intent that a limitation period shall run from “when the cause of action arose (or other wording to that effect)” or where the event triggering the limitation period requires the plaintiff’s knowledge of his or her injury. Conversely, discoverability does not apply where that triggering event does not depend on the plaintiff’s knowledge or is independent of the accrual of the cause of action. The S.C.C. agrees with the Court of Appeal that “it cannot be said that Parliament intended to accord such little weight to the interests of injured plaintiffs in the context of alleged conspiracies so as to exclude the availability of the discoverability rule in s. 36(4) ” (C.A. reasons, at para. 93). The appropriate standard for certifying loss as a common issue at the certification stage is a question of law, to be reviewed on appeal for correctness. If one concludes that the certification judge identified the correct standard, then the certification judge’s decision to certify the issues as common may not be disturbed absent a palpable and overriding error, and here there is no reason to interfere with the certification judge’s determination that Dr. Reutter’s methodology satisfies this standard.

Class Actions: Consumer & Business Customers

TELUS Communications Inc. v. Wellman, 2019 SCC 19 (37722)

Because of the Consumer Protection Act, the arbitration clause here is invalid to the extent it would otherwise prevent class members who qualify as “consumers” from commencing or joining this class action. The Consumer Protection Act expressly shields consumers from a stay of proceedings under the Arbitration Act, so they are free to pursue their claims in court. The business customers, however, do not benefit from these protections.

Class Actions in Québec: Authorization; Conditions

L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35 (37855)

The judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions set out in art. 575 of the Code of Civil Procedure and it was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge. There is nothing here that would justify the S.C.C. in reversing the Court of Appeal’s decision to authorize the institution of a class action against both the Congregation and the Oratory. “The connection between the Congregation and the Oratory is so close — [the] allegations and the exhibits filed in support of the application against both these entities are in fact largely identical — that, respectfully, the result proposed by the dissenting Court of Appeal judge is not really convincing”[emphasis in original]. The Superior Court judge made numerous errors, of fact and of law, with respect to all the conditions of art. 575 C.C.P., such as failing to identify at least one issue common to all class members — namely the issue of the Congregation’s “systemic” negligence regarding assaults on children allegedly committed by its members — or discounting the DVD of the Enquête program and the table of victims. These errors necessarily influenced his decision to deny the institution of the class action against the Oratory.

Constitutional Law/Charter: Right to Vote

Frank v. Canada (Attorney General), 2019 SCC 1 (36645)

A.G. Canada concedes the limit on the voting rights of non-residents breaches s. 3 of the Charter. It is not justified under s. 1. The vague and unsubstantiated electoral fairness objective that is purportedly served by denying voting rights to non-resident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny.

Constitutional/Maritime Law: Division of Powers; Sale of Marine Parts

Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58 (37873)

To decide whether federal maritime law or the provincial Civil Code applies here, one must decide whether the matter in dispute falls within the federal power over navigation and shipping, or the provincial power over property and civil rights, or both. Done through a division of powers analysis: (1) characterizing the relevant matter; and (2) classifying it according to the heads of legislative power enumerated in the Constitution Act, 1867. The federal maritime law at issue here is non-statutory; so a modified pith and substance test must be applied at the characterization stage: one that looks at the substantive law at issue and to the particular fact situation, rather than to purpose and effect. At the classification stage, the integral connection test is the proper method for determining whether the matter is subject to the federal power over navigation and shipping enumerated at s. 91(10) of the Constitution Act, 1867, and, thus, would not come exclusively within provincial jurisdiction. In sum, the sale of marine engine parts intended for use on a commercial vessel is integrally connected to navigation and shipping so as to come within federal legislative authority. It follows that federal maritime law extends to that matter, but this does not mean there is no provincial law that can also validly govern such a sale. The Québec C.A. below therefore should have considered whether the provincial law — in this case, art. 1733 of the Civil Code — was valid, applicable and operative: when one applies the relevant constitutional doctrines, one concludes the rule expressed in the Civil Code governs.

Contracts/Environmental Law: Indemnity Agreements

R. v. Resolute FP Canada Inc., 2019 SCC 60 (37985)

Properly construed, the 1985 Indemnity was intended to cover only pollution claims brought by third parties. First party regulatory claims do not fall within the scope of the 1985 Indemnity. The motion judge here made palpable and overriding errors of fact and failed to give sufficient regard to the factual matrix when interpreting the scope of the 1985 Indemnity justifying appellate intervention. Properly interpreted, the 1985 Indemnity was intended to cover only proceedings arising from the discharge or continued presence of mercury in the related ecosystems, not those related to the mere presence of mercury contained in the waste disposal site.  The motion judge erred by failing to read the 1985 Indemnity as a whole; properly interpreted, the 1985 Indemnity only applies to third party claims.

Copyright: Crown Copyright

Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 (37863)

Determining whether a work was published with sufficient governmental direction or control to comply with s. 12  of the Copyright Act necessitates an inquiry into the Crown’s interest in the works at the time of publication since this interest will demonstrate the degree of direction or control exercised by the Crown over the publication process; the Crown must wield direction or control over the publication process, regardless of whether the works are published “by” the Crown itself, or by a third party under the Crown’s “direction or control”.  In determining whether a work was published “by” the Crown for the purposes of s. 12, relevant indicia of governmental direction or control may include: the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt-in nature of the statutory scheme; and the necessity of the Crown making the works available to the public. It is only when it can be said that the Crown has sufficient governmental direction or control over the publication process that Crown copyright will subsist within the meaning of s. 12.  These same factors are relevant to the inquiry of whether a work is published “under the direction or control” of the Crown when a third party is involved in the publication process. When it is a third party who does the actual publishing, however, it will also be necessary to examine the direction or control exercised by the Crown over the third party publisher.   Regarding publication, one has to ask: are the registered and deposited plans of survey published by or under the direction or control of the Crown? Answering this question requires an examination into the degree of direction or control exercised by the Crown over the publication process culminating in the published work.  When either the Crown or a third party publishes the registered or deposited plans of survey, copyright vests in the Crown because the Crown exercises direction or control over the publication process, which includes both the publisher and the resulting publication. While the s. 12 test is a stringent one, it is readily met on the facts of this case.

Criminal Law: Appeals as of Right

R. v. D’Amico, 2019 SCC 23 (38512)

In response to a Motion to Quash, the S.C.C. ordered as follows: a dissent within the meaning of s. 691(1) (a) of the Criminal Code means a disagreement which affects the result; here, Vauclair J.A.’s disagreement did not go to the result and is better characterized as a concurring opinion or an opinion concurring in the result.

Criminal Law: Arbitrary Detention

R. v. Le, 2019 SCC 34 (37971)

The circumstances of the police entry here into the backyard was a detention that was both immediate and arbitrary. Serious Charter infringing police misconduct, with a correspondingly high impact on protected interests. The admission of the evidence would bring the administration of justice into disrepute. Considered individually and in combination, their conduct supports the conclusion that a detention arose as soon as the police officers entered the backyard and started asking questions. Evidence excluded; convictions set aside; acquittals entered.

Criminal Law: Arrest

Fleming v. Ontario, 2019 SCC 45 (38087)

Where the exercise of a police power would restrict lawful activities of individuals, courts must apply the test for common law police powers with particular stringency so as to ensure that any powers that might result in intrusions on liberty are in fact necessary.  The ancillary powers doctrine does not give police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. Less intrusive powers are already available to the police to prevent breaches of the peace from occurring.  An act can be considered a breach of the peace only if it involves some level of violence and a risk of harm; it is only in the face of such a serious danger that the state’s ability to lawfully interfere with individual liberty comes into play; behaviour that is merely disruptive, annoying or unruly is not a breach of the peace.  It is neither necessary nor advisable for the S.C.C. to comment on whether, when fulfilling duties of preserving the peace, preventing crime, and protecting life and property, police may have some other common law powers short of arrest to prevent an apprehended breach of the peace. 

Criminal Law: Bail

R. v. Myers, 2019 SCC 18 (37869)

The correct approach: hearing to be immediately on expiration of 90 days following the day the accused was initially taken before a justice under s. 503; where an intervening detention order under ss. 520, 521 or 524 following the initial appearance and before the end of the 90-day period, the 90-day period begins again; accuseds without a full bail hearing are nonetheless entitled to one under s. 525; on an application for the hearing, the judge must fix a date and give notice for the hearing, which must be held at the earliest opportunity.  The judge may refer to the transcript, exhibits and reasons from any initial bail hearing and from any subsequent review hearings. Both parties are entitled to make submissions on the basis of any additional “credible or trustworthy” information relevant or material to the judge’s analysis, and pre-existing material is subject to the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35.

Criminal Law: Child Luring

R. v. Mills, 2019 SCC 22 (37518)

The accused here had no reasonable expectation of privacy in communicating with a police officer posing (online) as a 14-year old girl.  Specifically, he could not claim an expectation of privacy that was objectively reasonable in these circumstances. He was communicating with someone he believed to be a child, who was a stranger to him, and the undercover officer knew this when he created her. Therefore, since s. 8 of the Charter is not engaged, it follows that the sting did not require prior judicial authorization.

Criminal Law: Child Luring

R. v. Morrison, 2019 SCC 15 (37687)

The presumption regarding age under ss. (3) of s. 172.1 infringes s. 11(d) of the Charter and not saved under s. 1. Subsection (4) does not violate s. 7 of the Charter. One is not to read the reasonable steps requirement under ss. (4), in the absence of the presumption under ss. (3), as providing an independent pathway to conviction. Instead, it simply bars accused persons from raising, as a defence, that they believed the other person was of legal age when they did not take reasonable steps to ascertain the other person’s age.  Consequently, in order to convict, the Crown would have had to satisfy the trial judge beyond a reasonable doubt that an accused believed the person he was communicating with was under the age of 16.

Criminal Law: Complainant’s Sexual Activity

R. v. Goldfinch, 2019 SCC 38 (38270)

To be admissible, relationship evidence that implies sexual activity must satisfy the requirements of s. 276 of the Criminal Code, and the evidence here did not meet those requirements: evidence of the sexual nature of the relationship served no purpose other than to support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question. The evidence was therefore barred by s. 276(1); nor could it satisfy the conditions of admissibility under s. 276(2). While the sexual aspect of the relationship was evidence of “specific instances of sexual activity”, it was not “relevant to an issue at trial”.

Criminal Law: Delay; Youth

R. v. K.J.M., 2019 SCC 55 (38292)

Two main issues: do the presumptive Jordan ceilings apply to youth justice court proceedings; was the delay here unreasonable? The first issue, affirmative. While the enhanced need for timeliness in youth matters is well established in the jurisprudence and codified in s. 3(1) (b)(iv) and (v) of the YCJA, this factor is accounted for within the existing Jordan framework. Re the second issue, a stay is not warranted. After deducting two to three months of defence delay and about one month of delay resulting from an administrative error leading to the unavailability of a hearing transcript — a “discrete exceptional circumstance” (Jordan, at para. 75) — the delay here falls below the 18-month presumptive ceiling. And any delay resulting from failed attempts at extrajudicial sanctions should be treated on a case-by-case basis. Removing this type of delay from the Jordan calculation minimizes the risk authorities will refrain from using extrajudicial sanctions in the first place out of a fear they may be increasing the likelihood of a stay if such measures fail; removing disincentives against extrajudicial sanctions is an important policy objective given the central role played by such measures in the youth criminal justice system.

Criminal Law: Forfeiture; Legal Fees

R. v. Rafilovich, 2019 SCC 51 (37791)

Statutory interpretation leads to the conclusion that, generally speaking, sentencing judges should not impose a fine instead of forfeiture in relation to funds that have been judicially returned for the payment of reasonable legal fees associated with an accused’s criminal defence. This approach is most faithful to Parliament’s intent. While true the proceeds of crime regime in the Criminal Code as a whole seeks to ensure that crime does not pay or benefit the offender, the legal expenses return provision pursues secondary purposes, namely: (1) providing access to counsel and (2) giving meaningful weight to the presumption of innocence. Underlying both objectives is a desire to ensure fairness to the accused in criminal prosecutions. Clawing back reasonable legal fees as a fine instead of forfeiture would, in most cases, undermine these equally valid purposes.

Criminal Law: Long-Term Supervision Orders; Collateral Attacks

R. v. Bird, 2019 SCC 7 (37596)

The accused here is not permitted to collaterally attack the residency condition of his Long Term Supervision Order. Two principles underlie the approach to collateral attacks on court orders: (1) importance of maintaining the rule of law and preserving the repute of the administration of justice; and (2) ensuring that individuals have an effective means to challenge court orders, particularly when these orders are challenged on the basis they are not Charter compliant. Where an effective forum or mechanism is available for challenging an order, and a person takes issue with the order only after breaching it, they had not been denied the ability to fully defend against the charge if a collateral attack is refused, and this is because they had the opportunity to challenge the validity of the order through other means but failed to do so.

Criminal Law: Manslaughter/Criminal Negligence Causing Death

R. v. Javanmardi, 2019 SCC 54 (38188)

The actus reus of criminal negligence causing death requires the accused undertake an act, or omitted to do anything it was his or her legal duty to do, and the act or omission causes death. The fault element being the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons”, though neither “wanton” nor “reckless” is defined in the Criminal Code. As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances; for some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element; for criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one, marked and substantial. The actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused death; there is no independent requirement of objective dangerousness. The fault element of unlawful act manslaughter is objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, coupled with the fault element for the predicate offence; and where the predicate offence is one of strict liability, as in this case, the fault element for that offence must be read as a marked departure from the standard expected of a reasonable person in the circumstances.

Criminal Law: Peace Bonds; Bail Bonds

R. v. Penunsi, 2019 SCC 39 (38004)

The Criminal Code arrest and bail provisions apply, with necessary modifications, to peace bond proceedings.

Criminal Law: Post-Offence Conduct

R. v. Calnen, 2019 SCC 6 (37707)

When the trial judge’s charge here is considered fairly, contextually, and as a whole, the jury was properly equipped to decide the case in the absence of a limiting instruction against general propensity reasoning. The role of appellate courts is to take a functional approach in reviewing jury charges, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence. The test is whether the jury was properly, not perfectly, instructed.

Criminal Law: Prior Sexual Activity

R. v. R.V., 2019 SCC 41 (38286)

The application judge here ruled the accused was not permitted to ask whether the complainant had engaged in any other sexual activity because the accused had no evidence of “specific instances of sexual activity”— one of the requirements of s. 276(2). The accused was, however, permitted to cross-examine the complainant about her claim that she was a virgin at the time of the assault.  The S.C.C. held that the application judge erred. The cross-examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular timeframe. The accused’s request here satisfied the “specific instances” requirement of s. 276(2) because it was sufficiently detailed to permit the judge to apply the regime. Given the accused’s denial of any sexual contact with the complainant, and the lack of other evidence of paternity, the ability to cross-examine the complainant was fundamental to his right to make full answer and defence. Nonetheless, permitting an accused to question a complainant about such matters treads on dangerous ground, raising both dignity and privacy concerns: judges must tightly control such cross-examination to minimize those risks; the accused’s right to make full answer and defence must be balanced with other interests protected in s. 276(3). Here, balancing those interests would have required any cross-examination to be narrow in scope.

Criminal Law: Prior Sexual Activity; After-the-Fact Conduct; Defences

R. v. Barton, 2019 SCC 33 (37769)

The trial judge’s central error was failure to comply with the mandatory requirements set out under the s. 276 regime. That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, on which the accused here relied. In particular, non-compliance with the s. 276 regime, which serves a crucial screening function where an accused relies on the complainant’s prior sexual activities in support of his defence, translated into a failure to expose and properly address misleading evidence and mistakes of law arising from the accused’s defence. This in turn resulted in reversible error warranting a new trial. However, the new trial should be restricted to the offence of unlawful act manslaughter, not murder.

Criminal Law: Sentencing; Mootness

R. v. Poulin, 2019 SCC 47(37994)

Section 11(i) entitles an offender to the lesser of: the punishment under the laws in force when the offender committed the offence; the punishment under the laws in force when sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk taken by offending; that punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment society considers just at the precise moment the court is called upon to pass a sentence; it provides the contours for a sentence that reflects society’s most up-to-date view of the gravity of the offence and the degree of responsibility of the offender. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to receive the lesser of the punishments at these two points in time.

Criminal Law: Trials in French

Bessette v. British Columbia (Attorney General), 2019 SCC 31 (37790)

The accused here was charged with a provincial driving offence in B.C. Before the start of his trial in Provincial Court, he asked to be tried in French.  The S.C.C. said that were he being prosecuted for a criminal offence in the very same court, the Criminal Code would “unquestionably” have given him the option of being tried in English or French.  Based on a principled interpretation of the relevant statutory provisions, people in this accused’s position are entitled to be tried in either official language.

Criminal Law: Voyeurism; Reasonable Expectation of Privacy

R. v. Jarvis, 2019 SCC 10 (37833)

The high school students recorded by the accused teacher were in circumstances in which they would reasonably have expected not to be the subject of videos predominantly focused on their bodies, particularly their upper torso — and a fortiori not to be the subject of videos recorded for a sexual purpose by a teacher. There was here a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.

Criminal/Military Law: Trial by Jury

R. v. Stillman, 2019 SCC 40 (37701) (38308)

Section 130(1) (a) of the NDA is not inconsistent with s. 11 (f) of the Charter. The words “an offence under military law” in s. 11 (f) refer to a service offence that is validly enacted pursuant to Parliament’s power over “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867. As this Court’s jurisprudence confirms, s. 130(1) (a) is rooted in this head of power. Where, therefore, a serious civil offence is tried as a service offence under s. 130(1) (a), it qualifies as “an offence under military law”, thereby engaging the military exception in s. 11 (f), whereby juries are not constitutionally required.

Family Law in Québec: Trusts; Family Patrimony

Yared v. Karam, 2019 SCC 62 (38089)

The right to a share of Québec family patrimony cannot be denied by the use of a trust, essentially for the same reasons that it could not be denied by the interposition of a corporation. Neither of these devices should be allowed to circumvent a rule of “public order”, in this case the division of the family patrimony between husband and wife.

Family Law: Jurisdiction of Québec Courts

R.S. v. P.R., 2019 SCC 49 (37861)

Article 3137 C.C.Q. establishes the lis pendens exception in Québec private international law, under which a court may stay its ruling on an action brought in Québec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. Although applied regularly, it is an exception in that the Québec court is departing from the general principle re cases filed by staying proceedings validly brought before it. Under this article, three conditions must be met before a Québec court may stay its ruling: the action must have been filed with the foreign forum first; there must be an identity of parties, of facts and of subject — the condition of three identities — between the two actions that have been brought; it must be possible for the foreign action to result in a decision susceptible of recognition in Québec. If any one of these conditions is not met, the application for a stay cannot be granted, because there is then not a situation of lis pendens under art. 3137. Also, a foreign decision that would be manifestly inconsistent with public order as understood in international relations would not be susceptible of recognition, as the very words of art. 3155(5) would apply to it. If recognition is not possible, there could not be conflicting judgments, and therefore the question of lis pendens quite simply would not arise. If, however, the conditions of art. 3137 are all met, then there is an international lis pendens situation. However, the court must continue with the analysis in order to decide whether the Québec proceedings should be stayed: it is only where the court has found that it is appropriate to exercise the discretion conferred on it by the legislature in art. 3137 that the application for a stay on the basis of international lis pendens can be granted.

Financial Institutions/Banks: Fiscal Law Enforcement

1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37 (37999)

The fundamental issue in this appeal is whether the federal Bank Act limits the authority of the Québec Tax Agency under the Québec Tax Administration Act to issue a formal demand pursuant to s. 39. It does not. Because s. 462(2) of the Bank Act does not treat a bank’s branches as distinct from the bank itself, what matters is that Québec has the jurisdiction to make a Demand of National Bank, a corporate entity operating within its borders. In another case, if a corporate entity had no operations in Québec, it is not clear whether there would be such authority. On the facts here however Québec had the authority to issue the Demand to National Bank and send the Demand letter via the Calgary Branch.  Because Québec properly sent the Demand to National Bank, and because of effect of s. 462(2) is to require that a document be sent to the branch of account, doing so fixes the bank with notice of the Demand. Thus, in this case, National Bank had notice of the Demand, and the Demand is binding on the bank as a whole.

Journalists: Disclosure

Denis v. Côté, 2019 SCC 44 (38114)

There is a new statutory scheme for the protection of journalistic sources set out in s. 39.1 of the Canada Evidence Act, which scheme comprises both existing common law rules and new features.  Although the new statutory scheme under s. 39.1 is based on the former common law scheme, it differs from that scheme in significant ways, including a shifting of the burden of proof (s. 39.1(9)), adoption of new threshold requirements (the statutory definitions of “journalist” and “journalistic source” (s. 39.1(1)), and the criterion of reasonable necessity (s. 39.1(7)(a)). The list of criteria relevant to the balancing exercise under s. 39.1(7)(b) is not exhaustive, as is expressly indicated by the words “among other things”, so courts are not barred from taking other factors into account, such as certain considerations formerly applied re the fourth criterion of the Wigmore test.  When courts weigh the public interest in the administration of justice against the public interest in preserving the confidentiality of a journalistic source, courts must bear in mind that disclosing information that identifies or is likely to identify such a source is an appropriate remedy only where the advantages of doing so outweigh the disadvantages. If courts decide in favour of disclosure, they should, so far as possible, keep the disadvantages of its decision to a strict minimum by accompanying the authorized disclosure with any conditions appropriate in the circumstances (s. 39.1(8)), and in particular by limiting the scope of disclosure.

Labour/Employment Law: Employee v. Independent Contractor

Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2019 SCC 28 (37813)

Here Modern Cleaning placed extensive controls on Mr. Bourque to limit its own business risk; Mr. Bourque did not assume the business risk and therefore it cannot be said that he was an independent contractor.  The trial judge’s failure to consider the nature of the imperfect assignments at the heart of the business model here, and the resulting tripartite nature of the relationship between Modern, its clients and Mr. Bourque, was a palpable and overriding error which led to the improper application of the Desjardins and Coger tests.  When Modern’s tripartite business model is properly brought into the analysis, it becomes clear, as the Court of Appeal held, that it was Modern who assumed the business risk and ability to make a profit. Mr. Bourque therefore was an artisan, making him an employee under the Act. Given that Mr. Bourque and Ms. Fortin are employees within the meaning in the Act, Modern is correspondingly a “professional employer”.

Labour Law: Reasonableness Standard

Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (37787)

The dissenting judge below (Near J.A.), with whom we agree  properly concluded the Appeals Officer’s decision was reasonable, bore the hallmarks of “justification, transparency and intelligibility”, and fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.  Far from being internally incoherent, the Appeals Officer’s reasoning demonstrates his in-depth understanding of the ways Canada Post fulfils the purposes of the Code, bearing in mind the practical limitations of a work place spanning 72 million kilometres of postal routes. With respect to the Union’s position, Canada Post’s ability to carry out some route audits does not imply that it has the capacity to inspect all routes in a year.  Before the Appeals Officer, it was undisputed that Canada Post does not have physical control over individual points of call or lines of route, and that many of the points of call are private property; and the Appeals Officer further found that Canada Post cannot alter nor fix the locations in the event of a hazard.

Municipal Law in Québec: Contracts

Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57 (38066)(38073)

The S.C.C. agreed with the Québec C.A.’s conclusions re the application of the rules on restitution of prestations in the municipal context, but said the C.A. erred in according deference to the trial judge’s findings concerning the existence of a contract between the City and Octane (a public relations and communications firm, with regard to an event concept for the municipality’s transportation plan). The mandate given to Octane was not authorized by a resolution of the municipal council or by an officer acting under a delegation of powers; so the City simply never expressed its will to be bound by contract to Octane. Which leads to another conclusion: no contract for the production of the launch event came into existence between the City and Octane. Because it is not possible to annul a juridical act that never came into existence, the trial judge here erred in ordering that the parties be restored to their previous positions on this basis. The rules on receipt of a payment not due apply in this case, which means that the restitution of prestations is nonetheless necessary: Octane provided services to the City through its subcontractor even though it had no contract with the City; the City therefore received and benefited from services not due to it. Unless Octane had a liberal intention, which cannot be presumed, that payment must be restored to it.  Because the City has not shown the trial judge erred in assessing the fair value of the services provided, or in declining to exercise discretion to refuse restitution or modify scope or modalities under para. 2 of art. 1699 of the Civil Code of Québec, there is no basis for reviewing his conclusion in this regard; the City must therefore restore the sum of $82,898.63 to Octane.

Pensions in Québec: Presumption of Life/Death

Threlfall v. Carleton University, 2019 SCC 50 (37893)

The current C.C.Q. regime was introduced nearly 30 years ago represented a fundamental shift with respect to the legal effects of an individual’s absence: an absentee is presumed to be alive for seven years following his or her disappearance, if this presumption of life is not rebutted by proof of death within the seven-year period, a declaratory judgment of death may be pronounced; such a judgment establishes the absentee’s date of death as “the date upon expiry of seven years from the disappearance”. This regime reflects the balancing of two competing principles: accuracy (by seeking to ensure that relationships best reflect the absentee’s true status) and certainty (by giving an absentee’s heirs and counterparties a stable and predictable state of affairs). The structure of the absence regime clearly demonstrates that during the first seven years of absence, accuracy is intended to prevail over certainty. It is only after seven years of absence, and the pronouncement of a declaratory judgment of death, that certainty is intended to govern — with some narrow exceptions — even if this is at odds with the absentee’s true date of death. Re the interplay between this absence regime and the rules for restitution following the “receipt of a payment not due” under art. 1491: the remedy for receipt of a payment not due is available even when, in unique circumstances such as those of the instant case, some of the requisite elements of that claim — specifically, absence of debt and error — are not present at the time of payment but instead surface at a later date. Carleton University paid a debt that was not due, in error. Under art. 1492, when the requirements for receipt of a payment not due are made out, restitution is governed by arts. 1699 to 1707.  Mr. Roseme was not entitled to the pension benefits paid out following his death either under the Plan or under art. 85: the Plan unambiguously contemplated the termination of benefits upon Mr. Roseme’s actual death, and the rebuttal of the presumption in art. 85 retroactively extinguished the rights rooted in that presumption. Because the legal basis for the payments evaporated, Carleton University’s claim for receipt of a payment not due under art. 1491 must succeed.

Police: Civil Liability in Québec

Kosoian v. Société de transport de Montréal, 2019 SCC 59 (38012)

A reasonable police officer in the same circumstances as here would not have considered failure to hold a handrail to be an offence. Police therefore committed a fault by taking hold of Ms. Kosoian in order to prevent her from leaving and detained her in the holding room. And the municipal subway committed a fault by teaching police officers that the pictogram in question imposed an obligation to hold the handrail, a fault that explains — at least in part — police conduct.  As the police officer’s principal, the City must be held liable for his fault. Ms. Kosoian was entitled to refuse to obey an unlawful order, and therefore committed no fault that would justify an apportionment of liability. In a free and democratic society, police may interfere with the exercise of individual freedoms only to the extent provided for by law; every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force, which necessarily requires them to know the statutes, regulations and by‑laws they are called upon to enforce.

Professions in Québec: Liability

Salomon v. Matte-Thompson, 2019 SCC 14 (37537)

In the Court of Appeal’s opinion, the trial judge had viewed a financial advisor’s acts and their consequences through a “distorting lens” which had led her to erroneously assess the evidence in isolated silos, without the insight provided by a global analysis; and the trial judge had taken an unduly restrictive approach in analyzing the conflict of interest here. The S.C.C. agreed.

Refugees/Charter: Delay; Habeas Corpus

Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (37770)

The Immigration and Refugee Protection Act fails to provide relief as broad and advantageous as habeas corpus, re legality of length and uncertain duration of detention. Canadian superior courts have jurisdiction.

Tax/Constitutional Law: Crown Agents

Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63 (38059)

The language of the federal-provincial agreements demonstrates that the Province intended to bind itself to fulfill the obligations found therein.  Section 16(6) of the provincial Public Sector Pension Plans Act establishes that B.C. Investment Management Corp.’s. (“BCI”) tax immunities and obligations follow those of the Province; because the language of this provision is broad enough to include obligations voluntarily assumed by the Province, BCI is generally subject to the obligations set out in the agreements to the same extent that the Province would be. However the nature of any specific obligations under those agreements is beyond the scope of the cross-appeal.

Trusts: “Henson trusts”

S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4 (37551)

The Henson trust, as set up here, is no disqualification for rental assistance.

Oral Judgments

Class Actions in Québec: Authorization

Volkswagen Group Canada Inc. v. Association québécoise de lutte contre la pollution atmosphérique, 2018 QCCA 1034; 2019 SCC 53 (38297)

The Chief Justice: “A majority of the Court finds that the Court of Appeal judge did not err in exercising her discretion, and the appeal is therefore dismissed with costs. Justices Moldaver, Brown and Rowe would have allowed the appeal on the basis that the Court of Appeal judge should have granted leave to appeal on the question of law raised by the appellants. They would have remanded the case to the Court of Appeal for a decision on the merits. Justice Côté would have allowed the appeal with costs.” 

Corporate Law: Fraud; Knowing Participation/Assistance

Christine DeJong Medicine Professional Corp. v. DBDC Spadina Ltd., 2018 ONCA 60; 2019 SCC 30 (38051)

Brown J.: “We agree with Justice van Rensburg, dissenting, at the Court of Appeal that the respondents’ claim for knowing assistance must fail, and we adopt her reasons as our own. In view of the statement of the majority at the Court of Appeal that this Court’s decision in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, invited a “flexible” application of the criteria stated in Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662 for attributing individual wrongdoing to a corporation, we respectfully add this. What the Court directed in Livent, at para. 104, was that even where those criteria are satisfied, “courts retain the discretion to refrain from applying [corporate attribution] where, in the circumstances of the case, it would not be in the public interest to do so” (emphasis added). In other words, while the presence of public interest concerns may heighten the burden on the party seeking to have the actions of a directing mind attributed to a corporation, Canadian Dredge states minimal criteria that must always be met. The appeal is allowed, with costs throughout.”

Criminal Law: Circumstantial Evidence

R. v. George-Nurse, 2018 ONCA 515; 2019 SCC 12 (38217)

Moldaver J.: “We agree with the majority of the Court of Appeal that the circumstantial evidence presented against the appellant established a strong case to answer. In the words of the majority, which we accept, this was the “paradigm of a case to meet, far removed from ‘no case to answer’”: para. 34. That being so, it was open to the court on appeal to consider the appellant’s silence in assessing and ultimately rejecting his unreasonable verdict argument: see R. v. Noble, [1997] 1 S.C.R. 874, at para. 103. In so concluding, we note that the trial judge made it clear to the jury, on numerous occasions, that it could not consider the appellant’s failure to testify as a makeweight for the Crown’s case. In this regard, we do not endorse paras. 32 and 36 of the majority’s reasons, to the extent they may be taken as suggesting otherwise. In the result, we would dismiss the appeal.”

Criminal Law: Dangerous Driving Causing Bodily Harm

R. v. Collin, 2019 QCCA 887; 2019 SCC 64 (38681)

Karakatsanis J.: “We are of the view that the trial judge made an error of law as regards the applicable test in his analysis of causation. We are also satisfied that the findings of fact made by the judge show that the accused’s dangerous driving significantly contributed to the bodily harm suffered by the victim. We agree with the Court of Appeal that a conviction must be entered on the count of dangerous driving causing bodily harm. The appeal is therefore dismissed and the judgment of the Quebec Court of Appeal is affirmed.”

Criminal Law: Delay; Mootness

R. v. Thanabalasingham, 2018 QCCA 197; 2019 SCC 21 (37984)

The Chief Justice: “The test to be applied in this case is a two-part test as stated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, and R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385 … In this case, the majority of the Court of Appeal erred at the first stage of the test because the case is clearly not moot. The mere fact that an individual has been deported, even if he has been deported to a country with which Canada does not have an extradition treaty, does not render a case moot. The underlying basis for the criminal proceedings has not disappeared and there remains a live controversy even if the accused’s return to Canada is unlikely. Justice Abella, concurring on the result, is of the view that the appeal is moot, but based on the factors set out in para. 50 of Smith, thinks that the Court of Appeal should have exercised its discretion to decide the merits having heard the full argument over two days. We would all therefore allow the appeal and remit the matter to the Québec Court of Appeal for decision on the merits.”

Criminal Law: Firearms; Possession for the Purposes; Evidence Exclusion

R. Omar, 2018 ONCA 975; 2019 SCC 32 (38461)

Brown J.: “A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2) , but the majority would leave this question for another day. Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal.  The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day. The appeal is allowed and the convictions are restored.”

Criminal Law: Homicide; Conspiracy

R. v. Kelsie, 2017 NSCA 89; 2019 SCC 17 (38129)

Karakatsanis J.: “We agree with the conclusion of the Court of Appeal that the trial judge’s instructions on party liability for first degree murder were in error. As a result, the conviction for first degree murder cannot stand. We do not, however, agree with the Court of Appeal that the trial judge was required to charge the jury on manslaughter. While not determinative, we agree with defence counsel’s position at trial that there was no basis to leave it with the jury as an available verdict. In our view, the evidence was, at best, tenuous and speculative, and did not meet the air of reality test. With respect to the conspiracy charge, we do not agree with the Court of Appeal. In the particular circumstances of this case, we are not persuaded that the trial judge erred in the evidence he left for the jury to consider as part of the third prong of the Carter test for the admissibility of co-conspirator hearsay (R. v. Carter, [1982] 1 S.C.R. 938). We note, in this regard, that the defence of the accused to the charge of conspiracy is that he did not know the nature and scope of the alleged conspiracy. Accordingly, we would not have interfered with the conviction for conspiracy to commit murder. Given our conclusions, the parties agree that it would be appropriate to substitute a verdict of second degree murder in place of the verdict for first degree murder. We are satisfied that such a verdict is appropriate in the circumstances. As a result, pursuant to s. 686(1)(b)(i) and s. 686(3) of the Criminal Code, R.S.C. 1985, c. C-46, we would have dismissed the appeal and substituted a conviction for second degree murder. Therefore, the appeal is allowed in part. The conspiracy conviction is restored and a second degree murder conviction is entered.  Counsel are encouraged to agree on the appropriate sentence regarding eligibility for parole. The matter is remitted to the trial court for sentencing.”

Criminal Law: Homicide; Hearsay

R. v. Larue, 2018 YKCA 9; 2019 SCC 25 (38224)

Publication ban, sealing order and certain information not available to the public.  Abella J.: “Applying R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, a majority of this panel would dismiss the appeal largely for the reasons of Dickson J.A., and Justices Karakatsanis and Brown would allow substantially for the reasons of Bennett J.A. The appeal is therefore dismissed.”

Criminal Law: Jury Verdict

R. v. Shlah, 2019 ABCA 184; 2019 SCC 56 (38661)(38677)

Moldaver J.: “The appeal is dismissed substantially for the reasons of Chief Justice Fraser. We agree with the majority of the Court of Appeal that the charge to the jury does not disclose reviewable error, and the jury’s verdict was not unreasonable. However, we do not endorse para. 27 of the majority’s reasons to the extent it may be taken as suggesting that the reviewing court must identify an extricable error as a precondition to concluding that the jury’s verdict was unreasonable. A determination that the jury’s verdict was unreasonable is itself an error of law warranting appellate intervention.”

Criminal Law: Manslaughter

R. v. Wakefield, 2018 ABCA 360; 2019 SCC 26 (38425)

The Court: “In order to uphold the conviction for second degree murder, the majority in the Court of Appeal had to be satisfied that the trial judge found that the appellant himself had stabbed the victim. The trial judge expressly refrained from making that finding. The majority considered the evidence and found that “the conclusion that it was the appellant who inflicted the stab wounds is well founded in the evidence” (para. 29). In doing so, the majority erred by making a finding of fact that the trial judge declined to make. In addition, if the trial judge had concluded that it was the appellant who stabbed the victim, it is unclear whether he correctly analyzed the subjective mens rea requirement for second degree murder under s. 229 (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 . The trial judge failed to consider the crucial question of what the appellant subjectively knew and intended at the time of the stabbing (in accordance with R. v. Cooper, [1993] 1 S.C.R. 146, at p. 159). By accepting the trial judge’s statement of intent as sufficient to support the conviction for murder (para. 34), the majority further erred. Both the appellant and the respondent advised the Court that they were content with our substituting a verdict of manslaughter instead of ordering a new trial. Accordingly, pursuant to s. 686(1) (b)(i) of the Criminal Code, the appeal is dismissed and a verdict of manslaughter is substituted, and the matter is remitted to the trial judge for sentencing.”

Criminal Law: Possession for the Purposes

R. v. Kernaz, 2019 SKCA 37; 2019 SCC 48 (38642)

Abella J.: “The appeal is dismissed substantially for the reasons of the Court of Appeal.”

Criminal Law: Refusal to Blow; Automatism

R. v. Blanchard, 2018 QCCA 1069; 2019 SCC 9 (38258)

Brown J.: “We would allow the appeal. At trial and during oral argument at the Court of Appeal, the Crown conceded the availability of the defence of extreme intoxication akin to automatism, to a charge of failing to provide a breath sample. In light of this, and in our respectful view, the majority at the Court of Appeal erred in raising and deciding the availability of that defence. Having regard to the Crown’s concession, we are not persuaded that the trial judge erred in law in his understanding or application of the defence of automatism. In these unusual circumstances, it would not be in the interests of justice to overturn this acquittal, and we therefore restore it. In doing so, however, we expressly refrain from deciding the availability of this defence in the absence of an adequate record on the constitutional issues, full submissions and notice to the proper parties.”

Criminal Law: Search & Seizure

R. v. James, 2019 ONCA 288; 2019 SCC 52 (38616)

The Chief Justice: “A majority of the Court would allow the appeal and order a new trial, substantially for the reasons of Justice Nordheimer, to the extent that he concluded that there was no breach of s. 8 of the Canadian Charter of Rights and Freedoms. Justices Abella, Karakatsanis, Brown and Martin would have dismissed the appeal, substantially for the reasons of Justice Pardu.”

Criminal Law: Sexual Assault

R. v. J.M., 2018 ONCA 1054; 2019 SCC 24 (38483)

Abella J.: “We are all of the view that the failure to attend a trial is not presumptively after-the-fact conduct. Its admissibility must be assessed on a case-by-case basis. A majority, however, is of the view that the appeal should be allowed substantially for the reasons of Justice Huscroft. Justice Karakatsanis and I would dismiss the appeal for the reasons of Justice Nordheimer. The appeal is therefore allowed and the convictions are restored.”

Criminal Law: Sexual Assault

R. v. M.R.H., 2019 BCCA 39; 2019 SCC 46 (38547)

There is a publication ban in this case, in the context of sexual interference and sexual assault charges: Karakatsanis J.: “The appeal is allowed, substantially for the reasons of Mr. Justice Savage (2019 BCCA 39, 373 C.C.C. (3d) 464). As for the three additional issues raised by the respondent for the first time in this Court, we are not satisfied that they require a new trial. First, we are satisfied that no limiting instruction was required on the issue of character evidence, as there was no real risk of propensity reasoning in this case. Second, we are of the view that no limiting instruction was necessary regarding prior consistent statements, because the statements were elicited early in the trial, were relied upon by the defence and not by the Crown, and there was no real risk in the circumstances of this case that they would be used as self-corroboration. Finally, with respect to the interpretation of the phrase “single transaction” in s. 581(1) of the Criminal Code, R.S.C. 1985, c. C-46, we agree that the Crown practice of drafting a single count of an indictment to capture multiple distinct incidents creates the risk that the accused may be convicted without the jurors’ unanimous agreement on any one underlying incident. We leave for another day whether the law supports such a practice and whether jury unanimity is required in such circumstances. In essence, the jury in this case asked whether unanimity on the first incident was sufficient to convict. It is not necessary to deal with the issue in this case, because it is clear from the jury’s question and the response it received, that the jurors unanimously agreed that the first incident had been proven. Here, there is no risk of an injustice and the issue need not be considered (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22). Therefore, the appeal is allowed. The order of the Court of Appeal is set aside. We restore the respondent’s conviction for sexual assault and the judicial stay on the count of sexual interference.”

Criminal Law: Sexual Assault

R. v. S., 2019 SCC 16; 2018 NLCA 59 (38372)

Publication ban.  Moldaver J.: “… Section 273.1(2) (c) has as its aim “[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity” (R. v. Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17). Inducing consent by abusing the relationships set out in s. 273.1(2) (c) does not imply the same kind of coercion contemplated by s. 265(3) (d) of the Criminal Code, which speaks to consent obtained where the complainant submits or does not resist by reason of the “exercise of authority”. Rather, as Justice Doherty observed in R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1: “An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity” (para. 12). On the facts of this case, we are of the view that it would have been open to the jury to conclude that by virtue of abusing his position of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using the personal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity. An instruction under s. 273.1(2)(c) was therefore warranted.”

Criminal Law: Sexual Assault

R. v. W.L.S., 2018 ABCA 363; 2019 SCC 27 (38427)

Publication ban. Six-paragraph 5:0 oral judgment by Martin J., upholding the C.A. decision to enter a guilty verdict for sexual assault; remitted to trial court for sentencing.

Criminal Law: Sexual Assault Causing Bodily Harm

R. v. Beaudry, 2018 CMAC 4; 2019 SCC 2 (38308)

Justice Gascon: “We are all of the view that the Crown’s motion to stay the declaration of invalidity in the Court Martial Appeal Court judgment of September 19, 2018, should be dismissed. The applicable criteria set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and RJRMacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, are not in dispute. The Crown has failed in our view to establish that the balance of convenience favours granting the stay sought. The motion is therefore dismissed.”

Criminal Law: Sexual Assault; Confinement

R. v. Demedeiros, 2018 ABCA 241; 2019 SCC 11 (38269)

Moldaver J.: “We would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal.”

Criminal Law: Sexual Offences

R. v. C.J., 2018 MBCA 65; 2019 SCC 8 (38220)

The Chief Justice: “For the reasons of Justice Pfuetzner, we would allow the appeal.

More particularly, we agree with the dissenting judge that the trial judge did not misapprehend the evidence or draw inferences unavailable on the evidence, nor did he err in his credibility findings. The appeal is therefore allowed and the convictions are restored.”

Criminal Law: Theft

R. v. Fedyck, 2018 MBCA 74; 2019 SCC 3 (38214)

The Court: “We agree with the reasons of the majority in the Court of Appeal. Accordingly the appeal is dismissed.”

Private International Law: Jurisdiction; Extraterritoriality

International Air Transport Association v. Instrubel, N.V., 2019 QCCA 78; 2019 SCC 61 (38562)

The Chief Justice: “A majority of this Court is of the opinion to dismiss the appeals with costs throughout, substantially for the reasons of the Court of Appeal save for the matters addressed in obiter. Justice Côté is dissenting. Her reasons will follow.”

Oral Judgments (“Reasons to Follow”)

R. v. Friesen, 2018 MBCA 69 (38300)

The Chief Justice: “The appeal is allowed. The sentence of the sentencing judge is restored. Reasons to follow.”

Toronto-Dominion Bank v. Young, 2018 QCCA 810 (38242)

The Chief Justice: “A majority of the Court would dismiss the appeal with costs. Reasons to follow.”

Michel v. Graydon, 2018 BCCA 449 (38498)

The Chief Justice: “We are unanimous to reinstate the order of Judge G. Smith of the Provincial Court of British Columbia dated September 26, 2016. Therefore, the appeal is allowed with costs throughout. Reasons to follow.”

Leaves to Appeal Granted

Aboriginal Law: Hunting

R. v. Desautel, 2019 BCCA 151 (38734)

Mr. Desautel shot and killed an elk in the Arrow Lakes region near Castlegar, B.C. He did not have a hunting licence and was not a resident of Canada. He was a member of the American Lakes Tribe of the Confederated Tribes of the Colville Reservation, a citizen of the U.S. and he lived on the Colville Indian Reserve in Washington State. He was charged with hunting without a licence and hunting big game while not being a resident of B.C., contrary to ss. 11(1) and 47(a) of the Wildlife Act. At trial, he maintained he was exercising an Aboriginal right to hunt for ceremonial purposes in the traditional territory of his ancestors. The Provincial Court acquitted Mr. Desautel. A summary conviction appeal was dismissed. An appeal to the C.A. was dismissed.

Bankruptcy & Insolvency: Anti-Deprivation Rule

Chandos Construction Ltd. v. Capital Steel Inc., 2019 ABCA 32 (38571)

A construction contract between Capital Steel Inc. and Chandos Construction Ltd. contained a provision under which Capital Steel was to forfeit 10 percent of the total contract price in the event Capital Steel became insolvent (s. VII Q(d)). Capital Steel filed an assignment in bankruptcy prior to completing its contract, and Deloitte Restructuring Inc. was appointed as its trustee in bankruptcy. Chandos argued it was entitled to set off the costs it had incurred to complete Capital Steel’s work on the project and the amount triggered by the bankruptcy. Deloitte applied for advice and directions re the bankruptcy.  Neilsen J. found s. VII Q(d) was enforceable because, as a genuine pre-estimate of damages, it imposed liquidated damages and not a penalty. As a result, it represented a bona fide commercial transaction, the predominant purpose of which was not the deprivation of Capital Steel’s property. The majority at the C.A. allowed the trustee’s appeal on the grounds s. VII Q(d) contravened the anti-deprivation rule.

Charter: s. 15

Fraser v. Canada (Attorney General), 2018 FCA 223 (38505)

The Applicants were women and mothers who were former regular members of the Royal Canadian Mounted Police. In order to care for their young children, they temporarily reduced their hours of work through a job‑sharing program offered by the RCMP. The women’s pension benefits were adjusted accordingly and were calculated in the same fashion as those calculated for members who worked part‑time hours. The women were not given the option of treating the period for which they did not work as pensionable time, even though individuals who opted not to work at all and who took unpaid care and nurturing leave were given the option of buying back their pension. The women alleged this pro‑rated calculation infringed their equality rights guaranteed by s. 15(1). Specifically, they argued the Royal Canadian Mounted Police Superannuation Act and the Royal Canadian Mounted Police Superannuation Regulations were discriminatory on the enumerated ground of sex and the analogous ground of parental status. The Fed. Court dismissed the application and the Fed. C.A. dismissed the appeal.

Charter: s. 15; NCR

Ontario (Attorney General) v. G., 2019 ONCA 264 (38585)

In 2002, G was found not criminally responsible by reason of mental disorder on charges of sexual assault and other charges. In 2003, G was given an absolute discharge by the Ontario Review Board. However, pursuant to Christopher’s Law (Sex Offender Registry) G was obliged to register under the provincial sex offender registry and report to provincial authorities for life. G was also required to register and report under the federal registry, pursuant to the Sex Offender Information Registration Act. In 2014, G commenced legal proceedings seeking a declaration the application of the federal and provincial sex offender registries to persons found not criminally responsible who are then granted a subsequent absolute discharge infringes their rights under ss. 7 and 15 of the Charter. The Ontario Superior Court of Justice dismissed G’s application. The application judge found, despite some negative impact resulting from the sex offender registry requirements, there was no Charter breach. The C.A. unanimously allowed G’s appeal and concluded the provincial and federal sex offender registries infringe G’s s. 15 Charter rights (and those of individuals in his situation), and such infringements cannot be saved under s. 1. In terms of remedy, the C.A. declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. It suspended the effect of the declaration for 12 months; however, it exempted G from this suspension.

Charter: s. 12; Cruel & Unusual

Director of Criminal and Penal Prosecutions v. 9147-0732 Québec inc., 2019 QCCA 373 (38613)

The Respondent, a private company, was issued a statement of offence under the Québec Building Act for carrying out certain construction work as a contractor without holding a current licence for that purpose. Under s. 197.1 of the Act, the penalty for such an offence is a mandatory fine for a minimum amount that varies depending on who the offender is, and whether the offender is a natural person or a legal person. The Respondent filed a notice of intention to question the constitutionality of the fine provided for in s. 197.1, arguing the fine violated its right to be protected against “any cruel and unusual treatment or punishment” under s. 12 of the Charter.  At trial, the Court of Québec held it was not necessary to rule on the issue of the application of s. 12 to legal persons, because the minimum fine at issue was at any rate not cruel and unusual. The Respondent was found guilty, and a fine of $30,843 imposed. On appeal, the Québec Superior Court affirmed that decision and added legal persons such as the Respondent could not benefit from the protection of s. 12.  A majority of the C.A. set aside the decisions of the lower courts and held s. 12 can apply to legal persons. The matter was returned to the trial court to rule on the issue of the fine provided for in s. 197.1.

Civil Procedure in Québec: Enforcement of International Arbitration Awards

Republic of Iraq v. Instrubel, 2019 QCCA 78 (38562)

Instrubel, a Dutch company, was seeking to enforce two international arbitration awards against the Republic of Iraq. After discovering Iraq may have significant assets in Québec, Instrubel began judicial proceedings in the Québec courts for recognition and enforcement of the awards. Specifically, the International Air Transport Authority (“IATA”), whose headquarters are in Montreal, collect and remits fees from international airlines for use of airspace on behalf of airports and aviation authorities like the Iraqi Civil Aviation Authority (“ICAA”). Instrubel sought and obtained from the Superior Court of Québec a writ of seizure before judgment by way of garnishment against IATA with respect to funds it collected and holds for the ICAA. After learning the funds in question are in fact located in IATA’s bank account in Switzerland, the Republic of Iraq brought a motion to quash the writ on various grounds, including a challenge to the territorial jurisdiction of the Québec courts to issue and enforce the writ.  A judge of the Superior Court of Québec granted the motion to quash in part, finding the writ of seizure was invalid insofar as it related to property located outside the province. The C.A. set aside that decision, reinstated the writ of seizure in full, and dismissed the motion to quash, finding the Québec courts had jurisdiction to issue and enforce the writ. 

Class Actions: Arbitration Clauses

Uber Technologies Inc. v. Heller, 2019 ONCA 1 (38534)

The Applicants, Uber Technologies Inc., Uber Canada Inc., Uber B.V., and Rasier Operations B.V. were part of a group of companies that have come to be known collectively and individually as Uber.  Uber developed computer software applications for GPS‑enabled smartphones for transportation and restaurant delivery. Mr. Heller, a resident of Ontario, has been licenced to use the Uber driver app (UberEATS) to deliver food in Toronto since February 2016. He has never used the app to provide personal transportation services. In order to use the driver app, Mr. Heller had to meet certain criteria and accept Uber’s licencing agreement. That agreement states it is governed by the law of the Netherlands. It includes an arbitration clause stating disputes connected to the agreement shall be resolved by arbitration in Amsterdam. Mr. Heller brought a proposed class action on behalf of Uber drivers alleging they were employees of Uber and entitled to benefits under Ontario’s Employment Standards Act. The Ontario Superior Court of Justice granted a motion brought by Uber to stay Mr. Heller’s action in favour of arbitration. The motion judge determined Mr. Heller was unable to demonstrate any exceptions under the Arbitration Act — including unconscionability — warranting a denial of Uber’s stay motion. The C.A. allowed the appeal on the basis the arbitration clause amounted to an illegal contracting out of the ESA and was thus invalid. It determined it was for the court, not an arbitrator, to determine whether a stay was warranted. The C.A. concluded the arbitration clause was unconscionable at common law and grossly unfair.

Class Actions in Québec: Certification; Punitives 

Volkswagen Group Canada Inc. v. Association québécoise de lutte contre la pollution atmosphérique, 2018 QCCA 1034 (38297)

In 2015, re automobile manufacturers Volkswagen Group Canada Inc. et al. and Audi Canada Inc. et al., it was alleged certain diesel models of their cars had been equipped with software allowing them to falsify the results of emissions tests. This scheme concerned models manufactured between 2009 and 2015. In addition to the class actions brought on behalf of owners and lessees of cars equipped with the software in the province of Québec, the Respondents, Association québécoise de lutte contre la pollution atmosphérique and André Bélisle, filed an application for authorization to institute a class action in which they sought compensation for all residents of the province of Québec for environmental consequences of the use of the software. The Superior Court granted the application for authorization to institute a class action in part, authorizing one for a claim for punitive damages. The C.A. dismissed a motion for leave to appeal that decision.

Class Actions in Québec: Contractual and Extra-Contractual Liability

Desjardins Financial Services Firm Inc. v. Asselin, 2017 QCCA 1673 (37898)

Mr. Asselin made investments with Caisse Desjardins de Sherbrooke Est. Called “Perspectives Plus Term Savings” and “Alternative Term Savings”, they were principal protected term deposits not cashable before maturity. Following the economic crisis of 2008, Mr. Asselin was informed in March 2009 although the principal was still protected, the investments would not yield any return and would continue not to be cashable until the end of the term. Mr. Asselin filed a motion for authorization to institute a class action in contractual civil liability against the Applicant Desjardins Financial Services Firm Inc. on the ground it had encouraged him to make investments that were represented to be safe even though they involved a specific risk that could affect their yield potential. He also sought authorization to institute a class action in extra-contractual civil liability against the Applicant Desjardins Global Asset Management Inc. on the ground it had designed and managed the investments in question in a reckless and incompetent manner not in keeping with the risk associated with a financial product represented to be safe, and it had used inappropriate financial strategies. Québec Superior Court: motion dismissed; C.A.: appeal allowed; trial judgment set aside; re amended motion with particulars for authorization to institute class action and to be ascribed status of representative allowed; bringing of class action authorized.

Class Actions/Torts: Duty of Care

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2018 ONCA 407 (38187)

The case concerned a listeria outbreak in certain meat products supplied by Mr. Submarine Limited (“Mr. Sub”) and produced by the Maple Leaf Respondents (collectively, “Maple Leaf”) which led to a national recall in 2008. The Applicant, 1688782 Ontario Inc. (“782 Inc.”), is the class representative of Mr. Sub franchisees who were affected by a product shortage for 6-8 weeks as a result of the recall. The franchisees were publicly associated with the contaminated products and claim reputational injury and economic losses as a result of Maple Leaf’s negligence. There was no direct relationship between the franchisees and Maple Leaf, as the franchisees were supplied through a distributor. However, the franchisees were bound by an exclusive supply arrangement to purchase meat products through Maple Leaf, and Maple Leaf took steps during the recall to assist franchisees with product shortages and the recovery of contaminated meats. After certification of the class, Maple Leaf moved for summary judgment seeking dismissal of 782 Inc.’s claims to the effect Maple Leaf owed the franchisees a duty of care. For its part, 782 Inc. brought a cross-motion to have the duty of care questions decided summarily. The motions judge ruled largely in 782 Inc.’s favour; concluding Maple Leaf owed a duty of care to the franchisees on the basis of a previously recognized duty of care category, being that of supplying a product fit for human consumption; also making findings regarding proximity between the parties and reasonable foreseeability of the harm suffered. The C.A. allowed Maple Leaf’s appeal, having found the circumstances of the cases relied upon by the motions judge for recognizing the existence of a duty of care were distinguishable from the facts before it. In conducting its own duty of care analysis, the C.A. found the scope of the duties arising under the relationship between the parties did not require Maple Leaf to take special care regarding 782 Inc.’s reputational interests. In so deciding, the C.A. held the duty to supply a product fit for human consumption — a duty ultimately aimed at protecting human health — is owed to the franchisees’ customers, and not to the franchisees’ themselves. From a policy perspective, the C.A. determined extending liability for reputational harm in the circumstances would deter manufacturers of products from recalling potentially defective products in a timely fashion.

Class Actions: Video Lottery; Disgorgement of Profits

Atlantic Lottery Corporation Inc.-Société des loteries de l’Atlantique v. Babstock, 2018 NLCA 71 (38521)

The Atlantic Lottery Corporation (“ALC”) was a corporation constituted by the governments of the four Atlantic Provinces to conduct lotteries and other gambling activities on behalf of the Crown. Mr. Babstock and Mr. Small brought an application for certification as representatives of a class action against ALC and several other third party suppliers to ALC. The proposed class action alleged harm by video lottery terminals which offered line games similar to slot machines. The seven causes of action included (amongst others) breach of contract, negligence, unjust enrichment, and waiver of tort. In two separate decisions, the Supreme Court of Newfoundland and Labrador determined it was not plain and obvious any of the seven causes of action would fail. The judge determined line games played on video lottery terminals (“VLTs”) could be similar to “three‑card monte” (which is prohibited under the Criminal Code without exception). Accordingly, the judge certified the class action. A majority of the C.A. of Newfoundland and Labrador struck causes of action under the Competition Act and the Statute of Anne, 1710 (Gaming Act, 1710) 9 Anne cap. XIV. The majority concluded disgorgement is an uncertain area of law and it was not clear arguments on this basis were doomed to fail. The majority also determined line games on VLTs might be similar to “three‑card monte” and could have a chance of succeeding. In a dissenting opinion, Welsh J.A. would have allowed the appeal, set aside the certification order, and struck the claim in its entirety.

Commercial Law: Insolvency

9354-9186 Québec Inc. (formerly Bluberi Gaming Technologies Inc.) et al. v. Callidus Capital Corporation et al., 2019 QCCA 171 (38594)

The Applicants 9354 9186 Québec Inc. et al. were in the business of developing and selling casino games and gaming machines since 1994. In 2012, they signed a loan agreement with the Respondent Callidus Capital Corporation that lent them approximately $86M through credit facilities between 2012 and 2015. In 2015, the Applicants filed a petition for the issuance of an initial order under the CCAA, which was granted by the Superior Court. Later, they were authorized to divest all their assets, which were eventually bought by Callidus. The purchase extinguished Callidus’ secured claim against the Applicants; however, potential claims for damages owned by the Applicants themselves against Callidus were not extinguished. In 2017, the Applicants sought to obtain the necessary orders to finance their litigation against Callidus, which responded by filing a motion to obtain the necessary orders to hold a creditors’ meeting to propose a plan of arrangement. As a result, the Applicants filed their own plan of arrangement. Both parties were ordered to present their plans for a vote at a creditors’ meeting on the condition of providing a deposit in order to share the costs incurred by the monitor to organise the meeting. Only Callidus’ plan was submitted to a vote but it was rejected because the threshold of two thirds in value of the claims fixed by the CCAA was not reached. In 2018, the aforementioned Applicants sought the authorization for a litigation funding agreement with the Applicants IMF Bentham Limited et al. Callidus responded by filing a motion to convene a creditors’ meeting to hold a vote on its new plan of arrangement. Meanwhile, a group of creditors, the Respondents International Game Technology, Deloitte S.E.N.C.R.L., Luc Carignan, François Vigneault, Philippe Millette, Francis Proulx and François Pelletier, requested Callidus be entitled to exercise its voting rights at the meeting for the unsecured portion of its claim. The Superior Court authorized both the funding and the litigation financing charge, and dismissed the motion for an order for the convening, holding and conduct of a creditors’ meeting. The C.A. allowed the appeal. Both sets of Applicants, namely 9354 9186 Québec Inc. et al. and IMF Bentham Limited et al. filed two separate applications for leave to appeal before the S.C.C.

Contracts: Duty of Honest Performance

C.M. Callow Inc. v. Zollinger, 2018 ONCA 896 (38463)

C.M. Callow Inc. (owned and operated by Christopher Callow) provided maintenance services to ten condominium corporations managed by Condominium Management Group and a designated property manager. Those combined corporations formed a Joint Use Committee (JUC) to make decisions regarding joint and shared assets of the corporations and entered into two two year maintenance contracts with Mr. Callow. One contract covered summer maintenance work and the other covered winter maintenance. The winter contract, which ran from November 2012 to April 2014, contained a provision allowing for early termination by the JUC on 10 days’ notice. In March or April of 2013, the JUC decided to terminate the winter contract, but did not provide Mr. Callow with notice of termination. During the summer of 2013 Mr. Callow, of his own volition, performed extra “freebie” landscaping work in the hope this would act as an incentive for the JUC to renew the contracts. In September of 2013 the JUC gave notice it intended to terminate the contracts. Mr. Callow sued for breach of contract. The Superior Court determined the JUC breached their contractual duty of honest performance by acting in bad faith. The C.A. allowed the appeal and determined the trial judge improperly expanded the duty of honest performance. Relying on Bhasin v Hrynew, 2014 SCC 71, the C.A. found the JUC owed Mr. Callow nothing beyond the 10-day formal notice period and failure to provide notice on a more timely basis was not in itself evidence of bad faith, emphasizing there was no unilateral duty to disclose.

Contracts: Good Faith Exercise of Discretion

Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2019 BCCA 66 (38601)

Wastech Services Ltd. and Greater Vancouver Sewerage and Drainage District (“Metro”) were involved in a 20-year contract for the disposal of solid waste from the Vancouver regional district. A dispute arose in 2011 over Metro’s discretionary allocation of solid waste to various dumping sites which negatively impacted Wastech’s contractual profit margin. The dispute went to arbitration. The arbitrator refused to include an implied term restricting Metro’s discretion to reallocate waste. The arbitrator found Metro did not exercise its discretion capriciously or arbitrarily. He accepted the basis for Metro’s conduct was the furtherance of its own objectives and held Metro was both honest and reasonable from its own perspective. However, the arbitrator determined Metro breached its duty of good faith in the exercise of its discretion because it lacked the appropriate regard for Wastech’s legitimate expectations. The arbitrator awarded damages to Wastech. A chambers judge of the B.C.S.C. allowed an appeal of the arbitrator’s decision. The chambers judge determined there was no free-standing obligation on a party to exercise its contractual discretionary power in good faith. The chambers judge concluded the arbitrator had expanded good faith beyond what was allowed in Bhasin v. Hrynew, 2014 SCC 71. The B.C.C.A. dismissed the subsequent appeal for reasons that differed from the chambers judge. It determined good faith exercise of discretion exists in contract law but Wastech’s legitimate expectation had to be founded in the agreement. Because the arbitrator did not find an implied term in the agreement (including an expectation that Metro would deny Wastech the possibility of achieving its profit margin) the duty of good faith did not apply here.

Contracts in Québec: Assignment; Interpretation

Resolute FP Canada Inc. v. Hydro-Québec, 2019 QCCA 30 (38544)

This litigation was between the Applicant, Resolute FP Canada Inc. (“Resolute”), and the Respondents, Hydro Québec and Gatineau Power Company/Compagnie d’électricité Gatineau (“Gatineau Power”). Hydro Québec sent Resolute an invoice for more than $3M for electricity provided to its Gatineau mill. The invoice included three years of hydraulic charges Hydro Québec had paid the State since 2008 pursuant to legislation. The initial power supply contract had been entered into in 1926 by Gatineau Power and Resolute’s predecessor, Canadian International Paper Company (“CIP”), for a term of 40 years, renewable for additional 10-year periods. Gatineau Power continued to exist, but Hydro Québec acquired all of its shares by contract. The parties disagreed about the impact of the 1965 contract on the rights and obligations of the parties to the 1926 contact and about whether the 1965 contract had assigned the 1926 contract. Resolute eventually paid, under protest, the amount claimed by Hydro Québec and filed an action in the Superior Court seeking a declaratory judgment and reimbursement. Québec Superior Court: Resolute FP Canada Inc.’s motion to institute proceedings for declaratory judgment allowed. C.A.: appeal of Hydro Québec and Gatineau Power Company/Compagnie d’électricité Gatineau allowed and Superior Court’s judgment reversed in part.

Criminal Law: Bail

Zora v. R., 2019 BCCA 9 (38540)

Mr. Zora was charged with several drug offences and was granted bail on the condition he obey a curfew and present himself at his front door within five minutes of a police officer or bail supervisor attending to confirm his compliance with those conditions. On two occasions, Mr. Zora failed to present himself and he was ultimately convicted of breach of recognizance. Mr. Zora appealed his conviction on the basis the trial judge erred by applying the wrong mens rea standard to the offence. The trial court and a majority of the C.A. dismissed his appeals. They found while s. 145(3) was ambiguous and there was conflict in the jurisprudence on the issue, the correct approach was to assess the mens rea of the offence objectively. Fenlon J.A. would have applied a subjective standard. In her view, neither the words nor the design of the offence supports a clear legislative intent to displace the presumptive subjective fault element that is the foundational principle of the criminal law.

Criminal Law: Delay; Young Offenders

K.J.M., v. R., 2018 ABCA 278 (38292)

There is a publication ban in this case, and the court file contains information not available for inspection by the public, in the context of Jordan delay re a young person charged with aggravated assault and possession of a dangerous weapon.

Criminal Law: Entrapment

Ahmad v. R., 2018 ONCA 534 (38165)

The police received a tip from a tipster unknown to them, that a person called “Romeo” would answer the cell phone at the number provided and sell drugs. Without further investigation, an undercover officer called the number and Mr. Ahmad answered. After a quick exchange, and after calling the undercover officer back, Mr. Ahmad and the officer agreed on a price and a time and place to meet. The drugs were sold and Mr. Ahmad was arrested. At trial, Mr. Ahmad conceded if he was found to be in possession, then he was in possession of the drugs for the purpose of trafficking, and he conceded the drug was cocaine. The only issue to be decided was whether he had knowledge and control of the drugs. On that issue, Mr. Ahmad implied in his testimony it was a friend of his, not he, who had sold the drugs to the undercover officer. The trial judge did not find Mr. Ahmad credible, and she found him guilty as charged. Mr. Ahmad then applied for a stay of proceedings on the basis of entrapment. The application judge refused to grant a stay on the basis the police officer had acquired the requisite reasonable suspicion at the time Mr. Ahmad said “What do you need?” In her view, the conversation up until that point constituted legitimate investigative steps and had not reached the point of an opportunity to commit an offence. The C.A. dismissed the appeal. It agreed the defence of entrapment had not been made out, and the trial judge had not erred in her credibility analysis by using Mr. Ahmad’s silence against him and by making inconsistent findings of fact.

Criminal Law: Entrapment

Williams v. R., 2018 ONCA 534 (38304)

Acting on a tip from a confidential source, the police contacted Mr. Williams and successfully purchased crack cocaine from him on two occasions. Mr. Williams was arrested about 3 weeks after the second transaction, and during a subsequent search, police found a handgun and a box of ammunition in his clothing, as well as a small amount of marijuana and two cell phones. Mr. Williams was charged with trafficking crack cocaine, possession of the proceeds of crime, and various firearms, ammunition and breach of recognizance offences. At trial, Mr. Williams acknowledged that the evidence established his guilt on each count, but he applied for and was granted a stay of proceedings with respect to the drug-related offences on the basis of entrapment. In the trial judge’s view, the police did not have a reasonable suspicion that Mr. Williams was involved in drug trafficking when they first provided him with the opportunity to commit an offence. A stay with respect to the other charges was refused. On appeal, the Crown challenged the entrapment finding. Mr. Williams cross-appealed, arguing that the other charges should be stayed. The C.A. allowed the Crown appeal and entered convictions on the drug charges. Mr. Williams’ cross-appeal was dismissed.

Criminal Law: Sexual Offences Sentencing

R. v. Friesen, 2018 MBCA 69 (38300)

Mr. Friesen met the mother through an online dating website. The mother brought Mr. Friesen to her home. On the date of the offence, the mother’s children were sleeping and were being cared for by the mother’s friend in the mother’s house. Mr. Friesen asked the mother to bring the child into the bedroom. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. Mr. Friesen demanded the mother retrieve the child and threatened her if she did not comply with his demand.  Mr. Friesen entered guilty pleas to sexual interference and attempted extortion. The sentencing judge imposed a sentence of six years’ incarceration concurrent on both charges. The C.A. granted leave to appeal sentence. The C.A. allowed the appeal and reduced the sentence from six to four and one-half years’ incarceration for the sexual interference conviction and from six years to 18 months incarceration concurrent for the attempted extortion conviction.

Defamation: Justification; Qualified Privilege 

Bent v. Platnick, 2018 ONCA 687 (38374)

Mr. Platnick was a medical doctor who spent much of his professional time preparing and reviewing medical assessments done in the context of disputes between insurers and persons insured in MVA’s. He worked mostly, but not exclusively, for insurers. Ms. Bent was a lawyer and partner with the Applicant law firm, Lerners LLP. She acted for individuals injured in MVA’s and seeking compensation from insurers. At the relevant time, Ms. Bent was also the president-elect of the Ontario Trial Lawyers Association. Ms. Bent was acting for a client who claimed to have suffered a catastrophic impairment as a result of a MVA. Dr. Platnick was retained by the insurer to do an impairment calculation based on applicable criteria. The matter was eventually settled. A few days after the settlement, Ms. Bent posted an email on the OTLA members’ automated email service. Only OTLA members could subscribe, and members who subscribed were obligated to undertake to maintain the confidentiality of the information provided. Ms. Bent’s email was however eventually leaked to the press.  Ms. Bent’s email was entitled “Sibley Alters Doctors’ Reports” and made reference to two expert reports provided by Dr. Platnick in terms he claimed were defamatory. Dr. Platnick requested an apology and a retraction and when his requests went unanswered, he commenced a lawsuit.  Dr. Platnick sued Ms. Bent and Lerners for libel, claiming damages of more than $15M. The Applicants defended the claim, advancing several defences, including justification and qualified privilege.  The Applicants successfully moved for a dismissal of the action under s. 137.1 of the Courts of Justice Act. On appeal it was held although the motion judge correctly determined the expression in issue related to a matter of public interest, he erred in concluding Dr. Platnick had failed to meet his onus under ss. 137.1(4)(a) and (b). The C.A. found on a proper application of those provisions, Dr. Platnick had met that onus. It was further held s. 137.1 did not infringe s. 7 or s. 15 of the Charter.

Employment Law: Constructive Dismissal

Matthews v. Ocean Nutrition Canada Limited, 2018 NSCA 44 (38252)

The Applicant, Mr. Matthews, worked for the Respondent, Ocean Nutrition Canada Limited, or its predecessors from January 1997 to June 2011. In June 2011, he resigned and sued Ocean Nutrition for wrongful dismissal, seeking damages for breach of his employment contract and the loss of a Long Term Incentive Plan (“LTIP”, or the “plan”). The LTIP provided for a portion of the proceeds of the sale of the company, if it occurs during Mr. Matthews’ period of employment, be paid to him based on a formula provided in the plan. The LTIP further indicated if Mr. Matthews was not employed by the company at the time of the sale, he would not be entitled to share in the proceeds, whether the end of employment was via resignation or wrongful dismissal. Ocean Nutrition was sold to Royal DSM N.V. on July 18, 2012, at which time Mr. Matthews portion of the proceeds of the sale would have been valued at approximately at $1.1M. The trial judge found Mr. Matthews had been constructively dismissed, found the appropriate notice period to be 15 months and awarded him damages of approximately $1.085M. Most of the damages were related to the LTIP, which plan the judge found would have crystalized if Mr. Matthews had remained employed throughout the notice period. A majority of the C.A. allowed Ocean Nutrition’s appeal, in part. According to the panel, the trial judge did not err in finding Mr. Matthews had been constructively dismissed, nor did he err in finding the reasonable notice period was 15 months. However, the majority found he erred in awarding damages pursuant to the LTIP where that plan, by its plain wording, precluded any such payment.

Family Law: Retroactive Lump Sum Child Support

Michel v. Graydon, 2018 BCCA 449 (38498) 

The S.C.C. court file contains information that is not available for inspection by the public in the context of a retroactive lump sum of child support application.

Judges: Remuneration; Cabinet Documents

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2018 BCCA 477 (38381)

A Judicial Compensation Commission is formed every three years in B.C. according to the Judicial Compensation Act. Its mandate is to make recommendations to the Chief Judge of the provincial court and the A.G. of B.C. on all matters respecting the remuneration, allowances, and benefits of provincial court judges. The JCC’s recommendations are not binding. The legislature may resolve to accept or reject one or more of the recommendations. The legislature must provide reasons for rejecting any of the recommendations. Prior to tabling the JCC report in the legislature, cabinet received a confidential submission from the A.G. concerning the JCC’s 2016 recommendations. After cabinet considered the submission, the A.G. tabled the JCC report and moved the legislature resolve to accept eight and reject two of the JCC’s recommendations. Accompanying reasons were also tabled setting out the government’s proposed response. The Provincial Court Judges’ Association filed for judicial review of the legislature’s decision to reject two JCC recommendations. As part of this process, a Master of the B.C.S.C. ordered the A.G.’s submission to cabinet disclosed. Appeals of the Master’s decision were dismissed at both the B.C.S.C. and the B.C.C.A.

Judges: Remuneration; Cabinet Documents

Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2018 NSCA 83 (38459)

The Provincial Judges’ Salary and Benefits Tribunal periodically reported to the Minister of Justice on the appropriate level of remuneration for judges of the Provincial and Family Courts of Nova Scotia pursuant to the Provincial Court Act. The Minister of Justice is required to deliver the Tribunal report to the Governor in Council which occurred in December 2016. Under the Act, the Governor in Council may confirm, vary or reject the tribunal’s recommendations along with reasons. Statutory matters delegated to the Governor in Council are submitted to the Executive Council in a Report and Recommendation. A confidential submission from the A.G. concerning the Tribunal report was set out in the Report and Recommendation. The Governor in Council varied one of the five recommendations of the Tribunal along with reasons for the variation. The Nova Scotia Provincial Court Judges’ Association applied for judicial review of the Governor in Council’s variation. A subsequent motion requested the production of the Report and Recommendation along with an additional affidavit. The N.S.S.C. ordered the report disclosed although portions were protected by solicitor-client privilege. A subsequent appeal to the C.A. upheld the order.

Languages: Minority Rights

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2018 BCCA 305 (38332)

The Applicants alleged British Columbia infringed the minority language educational rights guaranteed by s. 23 of the Charter by underfunding the French language education system. They were partially successful at trial, and the judge awarded damages for a Charter breach based on the Province’s failure to adequately fund the transportation program for a period of 10 years. The appeal filed by the Conseil scolaire was dismissed, the Province’s cross appeal was allowed and the damages awarded for failure to fund the transportation program set aside.

Mortgages in Québec: Remedies

Toronto-Dominion Bank v. Young, 2018 QCCA 810 (38242)

The Applicant, the Toronto Dominion Bank, granted Linda Macht a loan secured by a first hypothec on her building. Ms. Macht took out a loan from the Respondents, Harold Young and Robert Young, to whom she granted a second hypothec on the same building. Ms. Macht defaulted on her payments, and the Youngs published a prior notice of the exercise of a remedy and instituted an action for taking in payment and forced surrender.  A judgment declared them the owners of the building in question. Given Ms. Macht was still defaulting on her payments, the Bank served only the Youngs with a new prior notice of the exercise of a remedy and published that notice. The Youngs served the Bank with an application to institute proceedings for a declaration the hypothec was extinguished. The Bank filed an application for forced surrender for taking in payment, but it did not sue or implead Ms. Macht.  The Superior Court allowed the Bank’s hypothecary action and declared it the owner of the building, which it ordered the Youngs to surrender. It found the Bank had instituted its action in a timely manner and its failure to serve Ms. Macht with the proceeding was not fatal. The C.A. allowed the appeal, dismissed the Bank’s hypothecary action and ordered the entries in the land register be cancelled. It found, by the time the Superior Court judge rendered judgment, the secured claim against Ms. Macht had been extinguished by prescription, which meant the hypothecary action had to be dismissed, since the hypothec was merely an accessory to the claim.

Municipal Law: Subdivision Development 

1704604 Ontario Limited v. Pointes Protection Association, 2018 ONCA 685 (38376)

The Applicant, 1704604 Ontario Ltd (“170 Ontario”) wanted to develop a subdivision in Sault Ste. Marie. The Respondents, Pointes Protection Association (“PPA”) is a not-for-profit corporation incorporated to provide a coordinated response on behalf of some area residents to 170 Ontario’s development proposal. 170 Ontario’s first application for approval to the Conservation Authority was denied, but a second application passed the necessary resolutions. PPA brought an application for judicial review of the decision and sought a declaration the Conservation Authorities’ resolutions were illegal and beyond the scope of its jurisdiction. While the judicial review application was pending, 170 Ontario sought the approval of the City Council as the proposed development required an amendment to the City’s official plan. City Council turned down 170 Ontario’s application. 170 Ontario appealed this decision to the Ontario Municipal Board and the PPA was granted standing in the proceedings. While both the application for judicial review and the appeal were both pending, the parties settled the judicial review proceeding. In accordance with the terms of the agreement, the judicial review application was dismissed on consent without costs and the PPA and the individual members of the executive agreed they would take no further court proceedings seeking the same or similar relief sought in their judicial review application. The PPA also promised in any proceeding before the OMB, or in any other subsequent legal proceeding, PPA would not advance the position the Conservation Authorities’ resolutions were illegal, invalid, or contrary to the relevant environmental legislation. 170 Ontario’s appeal to the OMB from the City Council’s refusal to amend the official plan proceeded. In the course of the OMB hearing, PPA called its president who testified, in his opinion, the proposed development would result in significant loss of coastal wetlands, thereby causing substantial environmental damage. The OMB dismissed 170 Ontario’s appeal. 170 Ontario sued PPA for breach of contract asserting PPA breached the terms of the agreement when the president gave evidence at the OMB concerning the proposed development’s negative impact on the wetlands. PPA did not file a defence, but responded with a motion under s. 137.1 of the Courts of Justice Act for an order dismissing 170 Ontario’s claim. The motion judge dismissed PPA’s motion and ordered the action proceed. The C.A. allowed PPA’s appeal. The order below was set aside and the action 170 Ontario’s action was dismissed.

Pensions in Québec: Police

Ville de Montréal v. Fraternité des policiers et policières de la Ville de Montréal, 2018 QCCA 858 (38275)

The Respondent, Fraternité des policiers et policières de Montréal was the union certified to represent all the police officers in Montréal. The other Respondent, Benoit Fortin, was a retired police officer. Following the enactment of the Act to foster the financial health and sustainability of municipal defined benefit pension plans (“Law 15”) the police officers of the city of Montréal reacted with a number of job actions, because the Act ordered a restructuring of pension plans established by municipal bodies as well as of the plan applicable to Québec municipal employees, which would have an impact on the two pension plans applicable to Montréal police officers. They applied for a declaration the Act does not apply to those pension plans. The Superior Court dismissed the originating application for a declaratory judgment. The C.A. allowed the appeal.

Real Property in Québec: Servitudes

Hydro Québec v. Matta, 2018 QCCA 1189 (38254)

The Québec government authorized Hydro Québec to build an electric power transmission and distribution line between the Jacques Cartier and Duvernay transformer stations. Hydro Québec acquired the perpetual real rights of servitude it needed by expropriation and signed, with the owners of the buildings concerned, an agreement setting out the purpose of the servitude and the indemnity being paid. In 1982, Hydro Québec made changes that resulted in the power in various lines being redirected. From that time on, the transmission line on the land expropriated in 1972 was used for electricity coming from James Bay. The owners were not informed of those changes. In 2015, the Québec government authorized Hydro Québec’s project to build the Chamouchouane Bout de l’Île transmission line. The route of that new line was to be partly on the site of the servitudes acquired in 1972, parallel to the line already built. The Respondents, the current owners, opposed Hydro Québec’s project and refused to provide access to their buildings. Hydro Québec applied for an injunction. The Respondents argued the servitudes on their buildings   did not permit the construction of new transmission lines between transformer stations apart from the ones contemplated in 1972. In their cross application, they claimed damages for unauthorized use of the servitudes since 1982, for the increase in the power going through the lines and for the inconvenience associated with neighbourhood disturbances. The Superior Court allowed Hydro Québec’s application for a permanent injunction and ordered the Respondents to cease any obstruction and to provide unrestricted access to the buildings so Hydro Québec could perform all the work required to carry out the project. The C.A. allowed the Respondents’ appeal against Hydro Québec, set aside the trial judge’s decision, declared Hydro Québec had no real right that allowed it to use the Respondents’ properties to set up the Chamouchouane Bout de l’Île line, declared the servitudes established by the parties had not been extinguished, and remitted the matter to the Superior Court to hear the cross application.

Real Property: Positive Covenants 

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145 (38741)

Crystal Square was a mixed‑use retail complex, office tower, residential tower and hotel complex in Burnaby, B.C. Its developer, the Crystal Square Development Corporation and the City of Burnaby entered into an agreement that contained easements for access to parking and covenants to pay for that access (the “ASP Agreement”) in March 1999. The ASP Agreement, which was registered as an easement in the Land Titles Office on March 17, 1999, contained covenants to pay money and covenants the Development Corporation and the City would have their successors assume the ASP Agreement. Strata Plan LMS 3905 was deposited on May 26, 1999, bringing the Applicant, a strata corporation comprised of 64 strata lots in Air Space Parcel 2 (the “Owners”) into existence. The Owners never signed an assumption agreement adopting the terms of the ASP Agreement, as required by clause 16.3, and there was no evidence they adopted custom bylaws. The Respondent, Crystal Square Parking Corporation (“CSPC”), owned Air Space Parcel 5, the parking facility within Crystal Square. CSPC purchased the parking facility, took an assignment of the ASP Agreement and became “the ASP 5 Owner” in the ASP Agreement on June 28, 2002. Although the Owners generally abided by the ASP Agreement, they took issue with certain matters under that agreement. Those disputes eventually led to the Owners’ decision to seek an order that the positive covenants, and, in particular, the promises to pay the annual base rate and a percentage of operating expenses related to the parking facility were unenforceable against the Owners. The trial judge found the payment provisions were not binding on or enforceable against the owners, allowed the claim, and dismissed CSPC’s counterclaim. The C.A. allowed CSPC’s appeal.

Torts: Misfeasance in Public Office; Police v. Prosecutors

Ontario (Attorney General) v. Clark, 2019 ONCA 311 (38687)

The Respondents, all police officers, arrested and charged two individuals in connection with an armed robbery and forcible confinement. Both accused provided videotaped statements. One of the accused provided a false exculpatory statement and the other provided a statement admitting to their involvement in the crime. They both later claimed the police officers had assaulted them during their arrests. The officers denied assaults had taken place and provided the Crown Attorney with exculpatory evidence that supported their position. Proceedings against one of the accused were stayed on the basis of the assault claim. The other accused was convicted of the charges but subsequently brought a Charter application seeking to stay the proceedings against him on the ground the Respondents had assaulted him. However, the exculpatory evidence provided by the police was never made known to the court. The trial judge decided a reduced sentence was the appropriate remedy to address the assault claim. The accused appealed and the C.A. upheld the assault finding and entered a stay of proceedings. Both sets of reasons from the courts contained language that was highly critical of the conduct of police officers during the arrests of the two accused. The police officers brought an action against the Attorney General for Ontario, alleging the Crown Attorneys involved failed to pursue and put forward available evidence that contradicted the assault claims of the accused. They alleged the Crown’s actions and omissions caused irreparable harm to their reputations. Their claims were based on allegations of negligence and misfeasance in public office. The Attorney General brought a motion to strike their claims. The motion judge struck the claim in negligence but allowed the claim for misfeasance in public office to proceed. Both parties appealed. The C.A. upheld the decision of the motion judge.

Tax: Hedging

MacDonald v. Canada, 2018 FCA 128 (38320)

Mr. MacDonald accepted a loan by TD Bank wherein he pledged 165,000 Bank of Nova Scotia shares and assigned as collateral for the loan any payment he could become entitled to receive pursuant to a forward contract. Based on its terms, TD Securities Inc. would pay Mr. MacDonald the amount by which the Reference Price (the closing price of the BNS shares on the Toronto Stock Exchange on the Forward Date) fell below the Forward Price multiplied by the 165,000 shares. In the event the Reference Price was to exceed the Forward Price, Mr. MacDonald would be required to make payments to TD. The value of the shares did not decrease and remained above their Reference Price. As a result, between 2004 and 2006, Mr. MacDonald was required to make cash settlement payments totaling $9,966,149. In computing his income for his 2004, 2005, and 2006 taxation years, Mr. MacDonald took the position the cash settlement payments gave rise to business losses that were deductible against income from other sources. The Minister took issue with this characterization and denied the losses on the basis the cash settlement payments gave rise to capital losses. An appeal to the Tax Court of Canada overturned the Minister’s decision and sent the matter back for redetermination. The Fed. C.A. reinstated the Minister’s decision on the basis Mr. MacDonald had created a hedge.

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.