Granted (1)

Criminal Law: Bail 

T.J.M. v. R., 2019 ABCA (38944)
There is a publication ban in this case, and the court file contains information that is not available for inspection by the public, in the context of bail re a minor. “The application for leave to appeal…is granted.”

Dismissed (16)

Civil Procedure in Québec: Protection Mandates 

M.B. v. D.B., et al., 2019 QCCA 850 (38905)
There is a publication ban on the party, in the context of a homologation of a protection mandate. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave…is dismissed with costs to the respondents D.B., P.B. and A.B. Kasirer J. took no part in the judgment.”

Civil Procedure: Non-Suits 

Bruen v. University of Calgary, 2019 ABCA 211 (38994)
Dr. Bruen was a part‑time professor employed by the University of Calgary. In 2002 he asked the University to endorse a research proposal he wanted to make to the Alberta Informatics Circle of Research Excellence, which provided funding for research in the province at the time. Such an endorsement was a prerequisite for the funding proposal. The University refused this request, believing it would be required to provide some funding for the proposal if it was to endorse it. Dr. Bruen unsuccessfully appealed the May 2002 refusal internally first to the department, then to the faculty and finally to the University executive. He asked for a re‑consideration but was advised in August 2002 the University’s position remained unchanged. Dr. Bruen filed a statement of claim in May 2005. He alleged the failure of the University to support his proposal was based on erroneous information and spurious reasons, constituting negligence and entitling him to damages for the loss of opportunity and income he would have earned from research performed under a funded proposal. At trial, at the close of Dr. Bruen’s case, the University applied for a non‑suit. The trial judge granted the non-suit and dismissed Dr. Bruen’s action. This decision was upheld on appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Motions to Strike 

Oliver v. Government of Manitoba, 2019 MBCA 62 (38941)
In 2007, the Applicant issued a statement of claim against the Government of Manitoba and the Manitoba Agricultural Services Corporation (“MASC”), alleging the Applicant suffered damages from flooding on his land Manitoba refused or negligently failed to remedy appropriately. MASC successfully had the statement of claim against it struck a disclosing no reasonable cause of action. In 2017, Manitoba moved to have the statement of claim struck for delay. The Master granted the motion and struck the statement of claim. This decision was upheld on appeal. The C.A. subsequently dismissed the Applicant’s further appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Class Actions: Jurisdiction, Inc. v. Gagnon, 2019 QCCA 1166 (38842)
On March 21, 2017, the Respondent, Geneviève Gagnon served the Applicants (collectively “Amazon”) with an application to authorize a class action before the Superior Court of Québec. In the application, Ms. Gagnon alleged Amazon erroneously charged GST and QST to residents of Québec on certain non‑taxable items. In response, Amazon brought an application for summary judgment dismissing the class action. Amazon argued the Superior Court of Québec lacked jurisdiction to decide federal and provincial tax issues since these were exclusively reserved for the Tax Court of Canada and Court of Québec respectively. On November 24, 2017, before the matter was heard, Ms. Gagnon amended her class action application, re‑characterizing the damages sought. The Superior Court of Québec determined it lacked jurisdiction to address issues of tax. It partially granted Amazon’s application for summary judgment and dismissed the class action except for claims of punitive damages. The C.A. allowed the appeal and quashed the Superior Court decision. It determined the class action was claiming compensatory damages for Amazon’s faulty billing which is addressed in consumer protection legislation and is therefore properly before the Superior Court. “The application for leave to appeal…is dismissed without costs.”

Corporations: Fiduciary Duty 

Winter, et al. v. Sherman Estate, 2018 ONCA 703 (38899)
The Applicants were the children and daughter‑in‑law of Mr. and Mrs. Winter, who died in 1965, when the children were young. The Respondent, Dr. Sherman, was the Applicants’ cousin. The Winters had owned a number of pharmaceutical companies (“the Empire Companies”). The Applicants were the beneficiaries of the estates. In 1967, Royal Trust sold the Empire Companies to Dr. Sherman and his partner, who assigned their interests in the Empire Companies to their holding company. The purchase agreement included an option for the Winter children to be employed by the purchased business and to acquire 5% of the shares of the company if employed for two years. The option had four pre‑conditions attached and it was stipulated if any one of the conditions was not fulfilled, Dr. Sherman’s obligations were to be null and void. In 1969, the holding company entered into a share swap and in 1971, the shares of the holding company were purchased by another company and the option agreement became null and void. In 1974, Dr. Sherman founded Apotex, a generic drug manufacturer. The Applicants started an action against Royal Trust alleging Royal Trust had been negligent in the drafting of the option agreement with Dr. Sherman as part of the sale of the Empire Companies. This action was summarily dismissed. In 2007, the Applicants started an action against Dr. Sherman, alleging he breached the fiduciary duty he owed to them by dishonouring the option agreement, and claimed an interest in Apotex. Dr. Sherman moved for summary judgment, arguing the action was an abuse of process and, alternatively, that there was no genuine issue requiring a trial. Ontario Superior Court of Justice: Respondents’ motion for summary judgment granted; Applicants’ action for breach of fiduciary duty dismissed. C.A.: appeal dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to add Jeffrey Barkin, Paul T. Barkin and Julia Winter, personal representative of Dana C. Winter, deceased, as parties to the application for leave to appeal is granted. 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. Abella J. took no part in the judgment.”

Criminal Law: Delay 

Forest, et al. v. Autorité des marchés financiers, 2019 QCCA 1292 (38851)
At their trial on charges laid by the Respondent, the Autorité des marchés financiers (“AMF”), the Applicants, Mr. Mailhot and Mr. Forest, brought a motion for a stay of proceedings under s. 11(b) of the Charter, alleging their right to be tried within a reasonable time had been violated. The motion was filed in September 2016, a few months after Jordan. The Court of Québec dismissed the Applicants’ motion. In its view, the delay was presumed to be unreasonable and the AMF had not established there were exceptional circumstances or that this was a particularly complex case. Nevertheless, in pursuing its transitional exceptional circumstance analysis, the court held the elapsed time was justified on the basis the parties had relied on the pre‑Jordan law and the Applicants had acknowledged having suffered no prejudice other than the presumed prejudice based on the length of the delay. The court also found this was a moderately complex case in a jurisdiction with significant institutional delay problems. The AMF had therefore discharged its burden of proof. The Québec Superior Court dismissed the Applicants’ appeal. The C.A. dismissed the Applicants’ motion for leave to appeal the Superior Court’s judgment. “The application for leave to appeal…is dismissed without costs.”

Criminal Law: Homicide 

Riley v. R., 2017 ONCA 650 (38918)
There was a shooting. Mr. Charlton died at the scene, and Mr. Bell survived. Mr. Riley, and his co‑accused stood trial for first degree murder, attempted murder, and committing those two offences for the benefit of a criminal organization. After a trial by judge and jury, Mr. Riley was convicted of those offences. His conviction appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Possession for the Purposes 

Glendinning v. R., 2019 BCCA 365 (38878)
The Applicant was stopped by two officers on in Kelowna, B.C. He was searched and was found to be in possession of 14 pieces of individually packaged crack cocaine weighing 10.59 grams in total and 22 pieces of individually packaged heroin/fentanyl weighing 7.51 grams in total. The drugs were analyzed, and according to an agreed statement of facts, were confirmed to be controlled substances within the meaning of the Controlled Drugs and Substances Act. The Applicant was charged with possession of the controlled substances for the purposes of trafficking. A two‑day voir dire was held in the course of the trial. The judge concluded the application to exclude the evidence was dismissed, and the evidence was admitted into the trial itself. The Applicant was convicted of two counts of possession for the purposes of trafficking in a controlled substance under s. 5(2) of the Controlled Drugs and Substances Act. The Applicant’s conviction appeal was dismissed by the C.A. “The request for an oral hearing is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Robbery; Eyewitness Identification 

McConville v. R., 2017 ONCA 829 (38936)
A lone masked man robbed a bank (nope not the Lone Ranger). The only issue at trial was identity (or was it?). A police officer saw the robber run from the bank and get into a vehicle. The robber was alone. While attempting to open the driver side door to arrest the robber, the officer saw the robber unmasked for approximately 10‑20 seconds, before the robber sped away. Later that day, the officer picked Mr. McConville from a photo lineup. The lineup did not include a picture of Mr. McConville’s brother who had been in the vicinity of the robbery at the relevant time. The officer testified at trial. He identified Mr. McConville and denied the robber was Mr. McConville’s brother. In part, the officer testified as he was attempting to arrest the robber, he was gathering as much detail as he could in case he was called upon to identify the robber later and he said “facial features you cannot change, like jaw, lips, nose, eyes”. He said, “as a trained investigator we’re taught to hone in on those features”. Crown counsel referred to that testimony in closing. The trial judge instructed the jury on eyewitness identification evidence. The jury convicted Mr. McConville of robbery, disguise with intent, failure to stop for police, and dangerous driving. The trial judge declared Mr. McConville a dangerous offender and imposed an indeterminate sentence. The C.A. dismissed an appeal from the convictions and sentence. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”

Family Law: Child in Need of Protection 

M.B.H. v. Dakota Ojibway Child and Family Services et al., 2019 MBCA 91 (38907)
There is a “restriction on publication” in this case, re “the name of any information likely to identify any person involved in the proceedings as a party or a witness”, in this child protection matter. “The application for leave to appeal…is dismissed.”

Labour Law: Freedom of Expression 

Attorney General of Quebec v. Association Professionnelle des Ingénieurs du Gouvernement du Québec, 2019 QCCA 1171 (38824)
The Respondent, the Association professionnelle des ingénieurs du gouvernement du Québec (APIGQ), entered into negotiations in the fall of 2014 for the purpose of renewing its members’ collective agreement, which was to expire on March 31, 2015. While the negotiations were under way, the APIGQ suggested its members insert a message at the end of emails they sent in order to put forward certain claims concerning their remuneration. On April 10, 2015, the director of professional relations of the Secrétariat du Conseil du trésor wrote the president of the APIGQ to require the use of members’ professional electronic addresses for purposes related to union claims cease. In her view, this practice contravened an internal directive as well as the duties of loyalty and restraint of public service employees. She added it might be seen to be defamatory, and told the president any engineers who continued to adhere to it would lay themselves open to disciplinary action. That same day, certain engineers received warnings that required them to withdraw the message. On April 14, 2015, the president of the APIGQ replied to the director of the Conseil du trésor, asking her to point to the comments that seemed to her to damage the employer’s reputation, as the members did not wish to cause such damage. He also defended the members’ right to employ this pressure tactic — which was, moreover a peaceful one — on the basis of their freedom of expression. On April 23, 2015, the APIGQ filed a complaint and applied for a provisional order under sections 12, 14, 114 and 118 of the Labour Code alleging interference by the government in union matters. The Commission des relations du travail upheld the complaint. The Superior Court granted the application for judicial review, and the C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs.”

Patents: Validity; Infringement 

MediaTube Corp. v. Bell Canada, 2019 FCA 176 (38797)
There is a sealing order in this case, and the court file contains information not available for inspection by the public, in the context of a patent infringement action. “The application for leave to appeal…is dismissed with costs.”

Professions: Hospital Privileges 

P.L. v. McGill University Health Centre, 2019 QCCA 1372 (38850)
There is a publication ban in this case, in the context of hospital privileges for a physician. “The application for leave to appeal…is dismissed with costs.”

Securities in Québec: Non-Registered Securities Dealer 

Autorité des marchés financiers v. Desmarais, 2019 QCCA 898 (38803)
In June 2011, the Applicant, the Autorité des marchés financiers (AMF), issued a statement of offence against the Respondent, Jean‑Pierre Desmarais, a lawyer who was a partner in a Montreal firm, and other persons with respect to the activities of Fondation Fer de Lance (FFDL). According to the AMF, Mr. Desmarais had committed two types of offences under the Securities Act in respect of which a total of 68 counts were laid against him, namely (1) having assisted FFDL in making a distribution of a form of investment to which the SA applies without a prospectus, and (2) having engaged in business as a securities dealer — by making a distribution of a form of investment to which the SA applies — without being registered. When the offences were committed, between 2007 and 2008, Mr. Desmarais was legal counsel for FFDL, a non-profit private foundation whose mission was to improve the quality of life of the human race on Earth, and for the founder of FFDL, Paul Gélinas. To perform its mission, FFDL intended to use financial engineering in order to generate income from money capital made available to FFDL by investors. According to the agreement signed by the investor and by Mr. Desmarais and Mr. Gélinas, the money made available to FFDL continued to belong in its entirety to the investor in a totally secure environment that was under Mr. Desmarais’s control. In exchange for his or her voluntarism, the investor received, within a period fixed in the agreement, compensation in the form of a lump sum. Once the agreement was terminated, the investor could take the capital back together with his or her compensation, or make them available to FFDL once again. A total of 34 agreements were entered into between January 26, 2007 and July 7, 2008 with 23 sponsors for $1,371,416.66. The Court of Québec found Mr. Desmarais guilty on all the counts against him, ordered him to pay fines in respect of all the counts and sentenced him to 18 months’ imprisonment. On appeal, the Superior Court acquitted Mr. Desmarais on the counts of acting as a securities dealer without being registered as such with the AMF, and upheld the sentences with respect to the other counts (fine and imprisonment). The C.A. allowed the AMF’s appeal, set aside the Superior Court’s judgment in part and restored the finding of Mr. Desmarais’s guilt on the counts of acting as a securities dealer without being registered as such with the AMF. It dismissed Mr. Desmarais’s appeal from the finding of guilt and allowed his appeal from the sentences in part. “The application for leave to appeal…is dismissed without costs. Kasirer J. took no part in the judgment.”

Tax: Retirement Compensation Arrangements 

Teitelbaum v. Agence du revenu du Québec, 2019 QCCA 1408 (38865)
The Applicant, Ms. Teitelbaum, appealed an assessment made by the Respondent, Agence du revenu du Québec (“ARQ”), for the 2010 taxation year. In making the assessment, the Minister had disallowed a $1,395,264 deduction for amounts accrued under a retirement compensation arrangement by the person with whom Ms. Teitelbaum had lived in a de facto union. That person had died prior to his retirement, and the accrued amounts had been transferred to Ms. Teitelbaum a few years after his death. At issue in this case is the legal nature of the transfer made to Ms. Teitelbaum, as this characterization affects her tax liability. The Court of Québec vacated the notice of assessment issued to Ms. Teitelbaum. It found the transfer had been made under a legacy by particular title of a right or property of the deceased, but it determined the right or property had been transferred or distributed to Ms. Teitelbaum outside the time limit provided for by statute. The C.A. allowed the ARQ’s appeal and restored the notice of assessment issued to Ms. Teitelbaum. In its view, the trial judge had made a reviewable error by focusing on the date the claim had been paid rather than the date it had arisen. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Trusts 

Rubner v. Bistricer, 2019 ONCA 733 (38925)
The issues before the Court arise out of a financial dispute among adult siblings over the entitlement to part of an interest in a valuable investment made by their father in the 1960’s. The investment was always held by the mother, Ms. Rubner in trust for the three siblings, in equal shares. This reflected her clear and uncontested intention to benefit her three children equally. In recent years, the daughter, Ms. Bistricer who lives in the U.S., disclaimed her interest in the investment, for tax reasons. When distributions began to be made, they were paid to the mother and deposited into two bank accounts opened for her. The sister claimed the mother had made an oral gift to her of the distributions from the one‑third portion of the investment that reverted to the mother following the sister’s disclaimer. The Applicants applied to the court for advice and direction on the question of who held the remaining 1/3 beneficial interest in question and posed certain specific questions for the court, including whether remaining interest was held in trust for the sister. They also sought an order requiring Brenda and Alex Bistricer to account for all proceeds withdrawn from two bank accounts and a declaration all funds the Bistricers withdrew from the accounts were held in trust for Ms. Rubner. The application judge found Ms. Rubner was the legal, beneficial and sole owner of the remaining one‑third interest in the venture in question. All future distributions belonged to her and were to be paid out to her attorneys for property. Alex and Brenda Bistricer were held jointly and severally liable to account for funds withdrawn from Ms. Rubner’s account and repay them. Alex Bistricer was found liable as trustee de son tort or for conversion of these funds. The central issue at the C.A. was whether the other half of the funds in the bank accounts belonged beneficially to the mother or to the sister. The C.A. allowed the appeal and set aside the judgment in part and held the funds in issue were held by Ms. Rubner as bare trustee for the benefit of Ms. Bistricer. The Applicants were ordered to account for any monies withdrawn from the accounts. Findings of liability against Alex Bistricer were set aside. “The application for leave to appeal…is dismissed with costs.”