Granted (1)

Criminal Law: Sexual Assault; Capacity to Consent 

C.P. v. R., 2019 ONCA 85 (38546)
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 alleged sexual assault by a young person on another young person. “The motion for an extension of time to serve and file the motion for leave to intervene in the leave application filed by Justice for Children and Youth is granted. The motion for leave to intervene in the leave application filed by Justice for Children and Youth is dismissed, without prejudice to its right to bring a motion for leave to intervene in the appeal. The application for leave to appeal…is granted.”

Dismissed (12)

Civil Procedure: Amending Pleadings 

Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONCA (38845)
The Applicant, OZ Merchandising Inc. (OZ) operated a semi‑professional soccer team known as the Ottawa Wizards, for three seasons in 2001 to 2003 in the now defunct Canadian Professional Soccer League (CPSL). The Respondents involved governed the sport of soccer in Eastern Ontario.  The CPSL would have been subject to the Respondent, Canadian Soccer Association’s (CSA) governance when the league was in existence. The statement of claim (originally issued in 2004 and amended in 2008, 2012 and 2016) alleged CSA breached a contract with OZ when it permitted two of the team’s leading players to leave the team and transfer back to their native Malawi. Damages were claimed. OZ sought two further amendments to the amended statement of claim. The motion judge dismissed the motion to amend the amended statement of claim (but allowed minor grammatical edits). The Divisional Court quashed the appeal to its court for want of jurisdiction. The C.A. denied leave to appeal the Divisional Court order. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure/Constitutional Law: Constitutionality re Interprovincial Maple Syrup (a sticky issue?) 

Gaudreau et al. v. Québec Maple Syrup Producers, 2019 QCCA 1204 (38831)
In 2014, the Respondent Québec Maple Syrup Producers applied for an injunction and for seizures before judgment against the Applicants Mr. Gaudreau et al. In defence, Mr. Gaudreau et al alleged the constitutional invalidity of the Québec legal scheme governing the interprovincial sale of maple sap and maple syrup ― is there anything more prototypical for Canada than the constitutionality of maple syrup? They gave a notice of constitutional question to the Attorney General of Québec. In 2019, an updated notice was served on the Attorney General of Québec, who applied for the dismissal of the notices.  The Superior Court dismissed both notices. It found the circumstances did not warrant authorizing the late filing of the 2019 notice and the 2014 notice had become moot. It also dismissed an application for a stay of proceedings pending a decision by the C.A. The C.A. refused leave to appeal, finding the trial judge’s exercise of discretion had not been unreasonable. “The application for leave to appeal…is dismissed with costs to the respondent, Québec Maple Syrup Producers.”

Civil Procedure: Non-Appearance 

Fazl v. 2256157 Ontario Ltd., 2019 ONCA 666 (38947)
This matter involved a mortgage registered by the Respondent 2256157 Ontario Ltd (“225 Ltd”) against two properties owned by the Applicant, Mr. Fazl. When the mortgage matured, Mr. Fazl failed to pay 225 Ltd. 225 Ltd commenced power of sale proceedings and successfully brought a motion for summary judgment before the Superior Court of Justice. Mr. Fazl appealed this decision, but failed to appear at the hearing. The appeal was dismissed by the C.A. Mr. Fazl brought a motion to set aside the C.A.’s judgment on the grounds he did not attend the hearing because he was never served a notice of the hearing date. The C.A. dismissed the motion on the grounds Mr. Fazl had failed to prove non‑attendance was the result of accident or mistake. “The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed with costs.”

Corporations: Oppression Remedy 

Russell, et al. v. Northumberland Co-Operative Limited, 2019 NBCA 70 (38937)
The defendant co‑operative was founded by a group which included the Applicants’ father. The Applicants inherited their father’s membership and continued to be members of the co‑operative for many years, selling all their milk production to it. When the co‑operative sold its assets in 2014, the Applicants unsuccessfully requested a distribution allocation of the sales proceeds of $1M, in recognition of their status as longstanding founding members. Instead, the distribution formula proposed by the board of directors and approved by a majority of members of the co‑operative resulted in an allocation to the Applicants of $353,601.13, plus interest, paid over three years.  The Applicants commenced an action in damages for an oppression remedy, claiming the defendant had breached their reasonable expectations and treated them unfairly, unjustly, and in an oppressive manner. The defendant brought a motion for summary judgment. A Judge of the New Brunswick Court of Queen’s Bench granted the motion for summary judgment and dismissed the Applicants’ action. The New Brunswick C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Conspiracy to Import 

Boyce v. R., 2019 ONCA 828 (38975)
The Applicant was convicted of conspiracy to import a narcotic and importation of a narcotic arising from his part in a failed conspiracy to import cocaine from Costa Rica to Toronto. A key part of the Crown’s case was based on documents obtained from Panama (collectively the Panamanian Documents) pursuant to the Mutual Legal Assistance in Criminal Matters Act. The trial judge found the Panamanian Documents to be reliable, based on the cumulative effect of the documents, as well as corroboration from information obtained through intercepted communications. Based on the Panamanian drug testing, expert evidence testifying about the nature of the three tests used by the Panamanian laboratory, and other evidence reinforced the reliability of the documents, the trial judge concluded the substance found in the intercepted packages was cocaine. The Applicant’s conviction appeal was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault

P. v. R., 2018 ABCA 433 (38817)

There is a publication ban in this case, in the context of an alleged sexual assault by a taxi driver. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve and file the response to the motion for an extension of time is granted. The application for leave to appeal…is dismissed.”

Family Law: Child Support 

Wiechern v. Wiechern, 2019 MBCA 96 (38910)
The parties were parents of three children. The eldest is no longer a child. The parties separated after eight years of marriage in 2008 and entered into a shared custody arrangement with respect to their children. Child support was settled by way of a consent final order in 2011, was varied on consent in 2013. The father’s income was higher than the mother’s and, therefore, he paid a set‑off amount to the mother. The father sought a variation in child support due to a change in the shared custody arrangement. The mother sought an increase in child support based upon the father’s increase in income. The application judge determined the amount of support for each year in issue for both the father and the mother then applied a set‑off. The father was ordered to pay increased ongoing child support for the youngest child and arrears of child support. The C.A. reduced the amount of retroactive child support, but otherwise dismissed the father’s appeal. “The application for leave to appeal…is dismissed with costs.”

Family Law: Custody & Access 

Mohamed v. Farah, 2019 ONCA 620 (38978)
The Applicant father, Mr. Dahir Mohamed, and the Respondent mother, Ms. Farhiyo Tahill Farah, have three children. Between 2010 and 2018, the Ontario Superior Court of Justice issued four family law orders relating to custody and access for the three children, ultimately resulting in the mother having sole custody of the children, with supervised access rights for the father. The Applicant father sought to challenge all four orders. His appeal from all four orders was dismissed by Justice De Sousa of the Ontario Superior Court of Justice on February 28, 2019, who found the appeal had no merit, based on the incomplete state of the record. A further appeal to the C.A. was dismissed unanimously on July 18, 2019 (with written reasons provided on July 22, 2019). “The various requests for miscellaneous relief are dismissed. The application for leave to appeal…is dismissed.”

Family Law: Guidelines; Contempt; Stay 

Vavrek v. Vavrek, 2019 ABCA 325 (38893)
The parties separated in 2006 and divorced the following year after reaching an agreement regarding support and a division of property. The mother informally requested corporate financial disclosure from the father but was unsuccessful. In 2018, the mother served the father with a Notice to Disclose. When the father failed to completely comply, the mother brought a motion to obtain proper financial disclosure dating back to 2010, to pursue a retroactive child support adjustment. The court ordered the Respondent to provide a number of financial documents pertaining to his Federal Child Support Guidelines income by November 30, 2018. Two weeks after the November 30, 2018 deadline passed and not having received all of the court‑ordered documents, the mother filed a contempt application and sought a further order compelling disclosure of the missing information.  The motion judge declined to deal with the contempt motion. Instead, the court ordered the father to produce an expert Guideline income report within 30 days, and the parties were then to complete questioning within 15 days thereafter with a view to determining what documentation would be required to complete disclosure, with a special chambers hearing to be scheduled if necessary. The mother obtained an order staying the order to attend for questioning. Her appeal from the order of the motion judge was dismissed. “The application for leave to appeal…is dismissed without costs.”

Family Law: Permanent Guardianship; Constitutionality 

L.A.N. v. Child and Family Services of Western Manitoba et. al., 2019 MBCA 92 (38906)
The Respondent, Child and Family Services of Western Manitoba (the “Agency”), sought a permanent order of guardianship for the child, who had been living with the same foster family for more than two years. This was opposed by the child’s mother who proposed continued temporary guardianship. At a pre‑trial conference in 2017, the Agency indicated it would proceed with a motion for summary judgment for an order for permanent guardianship. The plan was for the child to remain in the long‑term foster care with no plan for adoption, and visitation between the mother and child could continue as long as it was in the child’s best interests.  The motion judge at the summary judgment hearing ordered the child be made a permanent ward of the Agency. The mother filed a notice of constitutional question, challenging the application of the summary judgment rules to child protection proceedings where a permanent order of guardianship was sought, as a violation of her Charter rights. The C.A. dismissed the mother’s appeal. “The application for leave to appeal…is dismissed.”

Labour Law: Constitutionality; Arbitration 

Alberta Union of Provincial Employees v. Alberta, 2019 ABCA 320 (38902)
The Province of Alberta and the Alberta Union of Provincial Employees (AUPE) entered into a number of three-year collective agreements. Those agreements implemented a two-year wage freeze, with an option in the third year to reopen negotiations about wages. The agreements provided if the ‘wage‑reopener’ negotiations were not successful, the issue would be sent to binding arbitration, with any wage adjustment to be retroactive to April 1, 2019. Some of the agreements provided the arbitration would occur no later than June 30, 2019. The wage‑reopener negotiations were not successful and AUPE triggered the arbitration process. However, a provincial election was held on April 16, 2019, resulting in a change of government. Consultation and discussions with the new government about an adjournment of the arbitration were unsuccessful, and the arbitrator ruled she had no jurisdiction to delay the arbitration. The government therefore enacted Bill 9, the essential effect of which was to suspend the arbitration process until October 31, 2019. Several unions commenced actions for a declaration Bill 9 was unconstitutional. AUPE applied for an interim injunction preventing Bill 9’s implementation. The Court of Queen’s Bench of Alberta applied a three part test and granted the injunction. The judge found that there was a genuine issue to be tried, that there was irreparable harm to the collective bargaining relationship, and the balance of convenience favoured granting an injunction. A majority of the C.A. for Alberta allowed the appeal and set aside the injunction; a dissenting judge would have dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Municipal Law: Utilities; Wastewater 

MacDonald Communities Limited v. Alberta Utilities Commission, 2019 ABCA 353 (38914)
The Applicant, Macdonald Communities Limited applied to have the Respondent, Alberta Utilities Commission set rates charged by a privately‑owned wastewater service provider. The Commission declined to do so, holding a “public utility” as defined in the Public Utilities Act does not generally include wastewater or sewer services. The Commission’s Review Panel affirmed this decision. The C.A. also confirmed the decision of the Commission.”The application for leave to appeal…is dismissed.”