Granted (2)

Criminal Law: Prison “Administrative Segregation”

Canada (Attorney General) v. Corporation of the Canadian Civil Liberties Association, 2019 ONCA 342 (38574)
Federal legislation permitted the use of “administrative segregation” in penitentiaries across Canada to maintain safety and security or to conduct investigations. The Applicant, Canadian Civil Liberties Association (“CCLA”) brought an application before the Ontario Superior Court of Justice arguing that ss. 31 – 37 of the Corrections and Conditional Release Act the legislative provisions authorizing administrative segregation, are unconstitutional. The application judge found the legislation authorizing administrative segregation violated s. 7 because it did not provide for an independent review of the decision to place an inmate in administrative segregation. Sections 31-37 of the CCRA were declared to be of no force and effect to the extent of the breach. The declaration of invalidity was suspended for one year, until December 18, 2018, to provide Parliament time to enact an appropriate legislative response.  On appeal, the CCLA argued ss. 31-37 also violated s. 12 and s. 11(h) of the Charter The CCLA also raised a new s. 7 argument seeking a broader declaration banning the practice entirely for certain inmates (those aged 18-21, those with mental illness, and those placed in segregation for their own protection) and otherwise placing a cap of 15 consecutive days on administrative segregation for all inmates. The Respondent AG Can. did not challenge the application judge’s s. 7 decision. On November 21, 2018, the court reserved judgment. On December 17, 2018, the Ontario C.A. ordered the suspension of the application judge’s declaration of invalidity be extended to April 30, 2019. On March 28, 2019, the C.A. rendered its decision and held prolonged administrative segregation of any inmate, which is segregation for more than 15 consecutive days, does not survive constitutional scrutiny under s. 12 of the Charter. Therefore, ss. 31-37 of the CCRA was also found to infringe s. 12 and the infringement was not justified under s. 1. The provisions were of no force and effect to the extent of the violation and the declaration was to take effect 15 days from the date of the judgment. On October 16, 2018, the House of Commons introduced Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, which amends ss. 31-37 of the CCRA. The Bill received Royal Assent on June 21, 2019 and the new provisions are replacing ss. 31-37 of the CCRA came into force on November 30, 2019. “The application for leave to appeal and the application for leave to cross-appeal…are granted with costs in the cause. The application for leave to appeal…is granted. The appeals will be heard with Attorney General of Canada v. British Columbia Civil Liberties Association, et al. (38814).”

Criminal Law: Prison “Administrative Segregation”

Canada (Attorney General) v. British Columbia Civil Liberties Association, 2019 BCCA 228 (38814)
Similar summary to that immediately above. “The application for leave to appeal and the application for leave to cross-appeal…are granted with costs in the cause. The appeals will be heard with Attorney General of Canada v. Corporation of the Canadian Civil Liberties Association (38574).”

Dismissed (8)

Civil Procedure: Vexatious Litigants

Mehedi v. R., 2019 ONCA (38901)
The Applicant brought three applications for certiorari to allow him to proceed with criminal charges he had attempted to file against three different individuals. In each case, the Justice of the Peace declined to issue the summons requested or the Crown withdraw the charges. The Crown applied to have Mr. Mehedi declared a vexatious litigant. Ontario Superior Court of Justice: Applicant’s applications for certiorari and mandamus dismissed; Applicant declared vexatious litigant and enjoined from bringing further proceedings either in Superior Court or C.A. without leave. C.A.: Applicant’s appeal dismissed; part of order enjoining Applicant against initiating proceedings in C.A. without leave struck. “The application for leave to appeal…is dismissed.”

Criminal Law: Infanticide

R.R. v. R., 2019 ABCA 77 (38879)
There is a publication ban in this case, a sealing order, and the court file contains information not available for inspection by the public, in the context of an alleged infanticide. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to join two Court of Appeal of Alberta decisions in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Offences; Dangerous Offenders

R. v. R., 2019 BCCA 285 (38858)

There is a publication ban in this case, in the context of sexual offences against minors, and dangerous offender designation. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Insurance: “Use or Operation”; Duty to Defend

Hunt v. Peel Mutual Insurance Company, 2019 ONCA 656 (38856)
Mr. Hunt and his daughter Amealia Hunt were passengers in a vehicle owned and operated by Tammy-Lynn Dingman when Ms. Dingman crossed the centre line and collided with another vehicle. Ms. Hunt, Mr. Hunt and Ms. Dingman all sustained personal injuries as a result of the collision. Ms. Dingman was alleged to have been driving under the influence of alcohol. Ms. Dingman was insured under a policy issued by Peel Mutual Insurance Company. Ms. Hunt launched a suit against Ms. Dingman and Mr. Hunt in relation to the injuries she sustained. As against Mr. Hunt, she alleged he had engaged in negligent parenting when he permitted her to be transported in the motor vehicle of an impaired driver. Mr. Hunt moved for a declaration Peel Mutual has a duty to defend him against Ms. Hunt’s lawsuit because he is an “insured person” within the meaning of the Insurance Act or because there was a real possibility he was met that criterion. Peel Mutual argued it had no such obligation because the allegations of negligence in the suit brought by Ms. Hunt do not involve the “use or operation” of Ms. Dingman’s motor vehicle by him. The motion was denied, as was Mr. Hunt’s appeal. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Labour Law: Freedom of Association

Attorney General of Canada v. Union of Canadian Correctional Officers — Syndicat des agents correctionnels du Canada — CSN (UCCO-SACC-CSN), 2019 QCCA 979 (38777)
The Applicants, the Union of Canadian Correctional Officers.  Syndicat des agents correctionnels du Canada.  CSN (UCCO‑SACC‑CSN) and Pierre Malette, a regional union representative (collectively “Union”), have been the bargaining agent for more than 6,500 correctional officers in 58 institutions across Canada since 2001. The correctional officers’ conditions of employment are negotiated with the Treasury Board of Canada, their employer. Starting in 2002, the members of the Union indicated they wished to negotiate staffing (including the filling of positions), hours of work, seniority, the pension plan, and occupational health and safety. Under the applicable legislative framework, neither staffing nor the pension plan could be dealt with in a collective agreement. The Treasury Board relied on that framework in refusing to hold any negotiations on staffing and the pension plan as part of the bargaining for the collective agreements of 2006, 2010 and 2013. The Union challenged the constitutional validity of the applicable legislative scheme in the Superior Court on the basis it infringed its members’ freedom of association. The Superior Court ruled in the Union’s favour and declared the prohibition against collective bargaining on pension and staffing matters to be unconstitutional. The C.A. accepted the finding the prohibition infringed the freedom of association of the Union’s members, but held the infringement was justified under s. 1 of the Canadian Charter of Rights and Freedoms. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Grievance J.R.’s

Michail v. Ontario English Catholic Teachers’ Association, 2019 ONCA 319 (38727)
Ms. Michail sought judicial review of decisions made by the Ontario Labour Relations Board with respect to grievances she had filed against her former employer, the London District Catholic School Board. She also filed an application against her Union, alleging it had failed to fairly represent her, that was dismissed. Ms. Michail commenced judicial review proceedings in the Superior Court of Justice seeking various orders, declarations and remedies. She also challenged the constitutionality of provisions of the Labour Relations Act, 1995. The Superior Court dismissed her application as her judicial review application was properly brought before Divisional Court. The C.A. subsequently granted the Respondents’ motion to quash her appeal. “The miscellaneous motion and the motion for an extension of time to serve and file the application for leave to appeal…are dismissed without costs. In any event, had the motion for an extension of time been granted, the application for leave to appeal would have been dismissed.”

Municipal Law: Water & Sewer Services

Medicine Hat (City) v. Condo Corporation No. 0410106, 2019 ABCA 294 (38835)
The Respondent Condo Corp. applied by way of Originating Application for a declaration the Applicant City has a statutory duty to operate and maintain public utility services. They also sought an order of mandamus directing the City to take responsibility for “all main and distribution lines for water, sanitary sewer and storm drains,” to proceed to construct a replacement lift station and to maintain the existing lift station until it is decommissioned, and to reimburse for all costs and expenses. The chambers judge refused to declare the City had a duty to operate and maintain those utility services, and dismissed the application for an order of mandamus against the City. C.A.: appeal allowed; declarations ordered that Applicant has a statutory duty to operate and maintain the water and sewer services. “The application for leave to appeal…is dismissed with costs.”

Tax: “Personal Endeavour” v. “Clearly Commercial”

Meerman v. Canada, 2019 FCA 119 (38886)
The Applicant was a heavy duty mechanic and since 1997, operated his own company, Meerman Contracting Inc. For the 2006 through 2011 taxation years, Mr. Meerman did not report compensation he received from Meerman Contracting for his labour in his tax returns. He maintained this compensation was non‑taxable, as it was earned through a “non‑commercial activity” in the course of a “personal endeavour” and he lacked an intent to earn a profit, or was it “clearly commercial” per Stewart v. R., 2002 SCC 46. On the subsequent reassessments, the Minister of National Revenue ruled Mr. Meerman had failed to report business income and the unreported amount was included in his income and gross negligence penalties were imposed. Mr. Meerman appealed from that ruling. The Tax Court of Canada dismissed his appeal. The C.A. dismissed his subsequent appeal. “The application for leave to appeal…is dismissed with costs.”