Granted (2)

Bankruptcy and Insolvency: Priorities 

R. v. Canada North Group Inc., et al., 2019 ABCA 314 (38871)
Alta. Q.B. issued an order granting several insolvent corporations protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 . The Court provided charges in favour of the court-appointed Monitor, the interim financier and the corporate directors were to take priority over the claims of secured creditors and provided that they were not to be limited or impaired by the federal or provincial statutes. The Crown applied to vary the order, arguing that, notwithstanding any other federal statute, the Income Tax Act, among other statutes, provide the Crown’s claims for unremitted source deductions with priority over all other creditors’ claims.  The chambers judge found that the Companies’ Creditors Arrangement Act gives the court the ability to rank court-ordered priority charges ahead of the Crown’s interest in deemed trusts created by the Income Tax Act. The C.A. dismissed the appeal. “The application for leave to appeal…is granted with costs in the cause to the respondents Ernst & Young and Business Development Bank of Canada.”

Municipal Law: Elections

Toronto (City) v. Ontario (Attorney General)2018 ONCA 761 (38921)
In 2018, an election began for Toronto City Council based on 47 wards. Closing date for nominations was July 27, 2018. The election date was October 22, 2018. As well, the Toronto School Board ran elections based on the same ward structure. After candidates were certified, the Legislative Assembly of Ontario enacted the Better Local Government Act. The Act reduced the number of wards to 25 and changed ward boundaries. This disrupted election campaigns. Applications were commenced challenging the constitutionality of the Act. The application judge granted the applications. He found the Act in breach of ( s. 2 b) of the Charter. He ordered the provisions reducing the number of wards of no force and effect and he ordered the election to proceed on the previous 47 ward structure. Before the election, the C.A. stayed the application judge’s decision and the election proceeded based on 25 wards. After the election, a majority of the C.A. allowed an appeal and set aside the application judge’s decision. “The conditional application for leave to cross-appeal is dismissed with costs, without prejudice to the right of the Attorney General of Ontario to file a motion to adduce new evidence. The application for leave to appeal…is granted with costs in the cause.”

Dismissed (17)

Aboriginal Law: Duty to Consult 

Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation2019 NSCA 75 (38917)
For over fifty years, the pulp mill at Abercrombie Point in Nova Scotia discharged fluid effluent and airborne emissions. Since 1967, the effluent settled in the Boat Harbour Effluent Treatment Facility (the Mill), owned by the Province and leased to the Mill’s operator (currently the Northern Pulp Nova Scotia Corporation). Pictou Landing First Nation, situated nearby, long complained to the Provincial government the Mill’s discharges were toxic. In response, and as partial accommodation to Pictou Landing, the Province of Nova Scotia enacted the Boat Harbour Act which stated amongst other things that after January 30, 2020, the use of the Boat Harbour Treatment Facility must cease. In order to continue operating, the Mill required a new effluent treatment facility and approval from the government. The Province conducted confidential discussions with the Mill about providing funding for the new treatment facility. When Pictou Landing learned of the proposed funding, it applied to the Supreme Court of Nova Scotia for a ruling that accommodation extends not only to the treatment facility but to any potential government funding as well. The Supreme Court of Nova Scotia agreed with Pictou Landing and ordered the Province to consult on the proposed funding. The C.A. unanimously agreed a duty to consult exists given the potential for Provincial funding to extend the life of the Mill beyond the timeline contemplated in the Boat Harbour Act. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Advance Costs 

Lafond v. Ville de Sainte-Adèle2019 QCCA 1629 (38972)
After complaints were filed against him as an elected municipal official, Pierre Lafond applied to have the Respondent, Ville de Sainte‑Adèle (“City”), pay his legal fees under s. 604.6 of the Québec Cities and Towns Act. He also asked the City pay the fees in advance. The City refused, and Mr. Lafond brought an application for judicial review in order to clarify the City’s obligations under the Act and force it to pay the legal fees he would incur during the process stemming from the complaints. Because of the City’s previous conduct toward him (i.e., its past refusal to pay his legal fees and a conciliation process before the Barreau du Québec concerning the amount of a first invoice from his new counsel in connection with this case), Mr. Lafond also applied for a safeguard order to force the City to pay him a $40K advance. Kalichman J. of the Québec Superior Court dismissed Mr. Lafond’s application for a safeguard order. Bich J.A. of the C.A. refused to grant Mr. Lafond leave to appeal the Superior Court’s judgment. “The application for leave to appeal…is dismissed with costs to the respondent, Ville de Sainte-Adèle.”

Civil Procedure in Québec: Homologation of Transactions 

Paquette v. Nutrition Fitness Cardio Inc., 2019 QCCA 779 (38993)
The Applicant Paquette had an accident and suffered injuries while working on the premises of the Respondent, Nutrition Fitness Cardio Inc. In 2006, Mr. Paquette sued Nutrition in liability and for damages. At trial in 2009, counsel for the two parties declared the matter had been settled out of court for $5,000; Nutrition sent Mr. Paquette a cheque on March 23, 2009, but the cheque was returned to it on May 22, 2009. Mr. Paquette declared he had never accepted Nutrition’s offer and had never authorized his counsel to accept it. Nutrition then presented a motion in homologation for performance of the transaction, and Mr. Paquette presented a motion in disavowal of the acts of his first counsel.  On March 8, 2011, the Québec Superior Court granted Nutrition’s motion in homologation and dismissed Mr. Paquette’s motion in disavowal. An application for leave to appeal by Mr. Paquette was dismissed by the C.A. on April 14, 2011. On October 20, 2011, the S.C.C. dismissed an application for leave to appeal filed by Mr. Paquette. Mr. Paquette filed a motion to adduce new evidence in the C.A., but it was dismissed on July 10, 2013. A second application for leave to appeal to the S.C.C. was dismissed on February 13, 2014. Mr. Paquette and his wife, the Applicant Tardif, then presented a motion for judicial review to the C.A., but it was dismissed on April 30, 2019. The Applicants then filed a third application for leave to appeal to the S.C.C. “The application for leave to appeal…is dismissed.”

Civil Procedure in Québec: Res judicata; Prescription 

Bélanger v. Dubé2019 QCCA 1675 (38955)
In April 2017, Rancourt J. of the Québec Superior Court dismissed a claim filed by the Applicant, Marcellin Bélanger, for repayment of a $325K loan made in 1989 to the Respondent, William Dubé, on the ground of prescription, among others. The C.A. allowed a motion to dismiss the appeal. Following those decisions, Mr. Bélanger filed a new claim against Mr. Dubé for $150K in moral damages. Mr. Dubé argued the claim had to be dismissed on the grounds of res judicata and prescription. The Superior Court dismissed Mr. Bélanger’s claim for moral damages against Mr. Dubé, finding the remedy had clearly been extinguished through extinctive prescription. The C.A. allowed the application to dismiss Mr. Bélanger’s appeal and dismissed the 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.”

Class Actions: Right of Appeal 

Wal-Mart Canada Corp v. Coburn and Watson’s Metropolitan Home2019 BCCA 308 (38872)
Representative Plaintiffs in each of British Columbia, Alberta, Saskatchewan, Ontario, and Québec initiated proposed class proceedings alleging Visa and MasterCard, together with financial institutions participating in the Visa and MasterCard credit card networks since 2001, conspired to set anti‑competitive rules permitting them to fix and inflate the price of interchange fees imposed on merchants accepting payment by those credit cards. The claims were framed as breaches of the Competition Act, civil conspiracy to injure, unjust enrichment and waiver of tort. When representative plaintiffs sought court approval of settlement agreements with National Bank, Visa and MasterCard, class members Wal‑Mart and Home Depot opposed the settlement agreements on the basis they contained broad releases for future anticompetitive conduct. As such, they were illegal contracts in restraint of trade, contrary to public policy, and a confiscation of future access to justice. When superior courts granted orders approving the settlements, Wal‑Mart and Home Depot sought to appeal. The appellate courts in B.C. and Ontario held members of the class do not have standing to appeal court settlement approvals. In Quebec, Wal‑Mart and Home Depot were not class members and therefore lacked the requisite interest to appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated and Coburn and Watson’s Metropolitan Home.”

Class Actions: Right of Appeal 

Home Depot of Canada Inc. v. Coburn and Watson’s Metropolitan Home2019 BCCA 308 (38873)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated and Coburn and Watson’s Metropolitan Home.”

Class Actions: Right of Appeal 

Home Depot of Canada Inc. v. National Bank of Canada Inc.2019 QCCA 1465 (38874)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated and 9085-4886 Quebec Inc.”

Class Actions: Right of Appeal 

Wal-Mart Canada Corp. v. Visa Canada Corporation, et al.2019 QCCA 1465 (38875)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated and 9085-4886 Quebec Inc.”

Class Actions: Right of Appeal 

Visa Canada Corporation v. Jonathon Bancroft-Snell, et al., 2019 ONCA 822 (38963)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated, Jonathon Bancroft-Snell and 1739793 Ontario Inc.”

Class Actions: Right of Appeal 

Home Depot of Canada Inc. v. Jonathon Bancroft-Snell2019 ONCA 822 (38965)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Visa Canada Corporation, MasterCard International Incorporated, Jonathon Bancroft-Snell and 1739793 Ontario Inc.”

Criminal Law: Homicide; Unlawful Confinement 

McLellan v. R., 2018 ONCA 510 (38833)
Mr. McLellan and two co-accused executed a planned robbery. They invaded a drug dealers’ home to steal drugs and money. Mr. McLellan and one other robber were armed. Immediately after entering the home, they ordered three occupants of a bedroom including the drug dealer to lie down and toss their cell phones away. The three occupants immediately complied. Seconds after entering the room, Mr. McLellan shot the drug dealer. The shot was fatal. The issues for the jury at trial in respect of Mr. McLellan were whether he shot the drug dealer accidentally and, if not, whether he was unlawfully confining the drug dealer when he shot, such that the killing elevated to constructive first degree murder pursuant to s. 231(5)(e) of the Criminal Code. A jury convicted Mr. McLellan of first-degree murder. The C.A. dismissed the 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.”

Criminal Law: Self-Defence 

Gabriel v. R2018 NSCA 60 (38967)
The Applicant, Mr. Gabriel, and Mr. White got into a fight. They had known each other for a number of years, and their relationship was acrimonious. Mr. Gabriel had a revolver that discharged, killing Mr. White. The witnesses differed as to how the gun came to fire. According to a Crown witness, Mr. Gabriel pulled it out, and aimed. Mr. Gabriel denied this, said the gun accidentally went off in the scuffle, and his conduct was in self‑defence. After a trial by judge and jury, Mr. Gabriel was convicted of second-degree murder, and 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: Sexual Assault 

J.A.L. v. R.2019 ABCA 415 (38983)
There is a publication ban in this case, in the context of delay re a sexual assault charge. “The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Offences 

M.L.S. v. R.2016 ONCA 681 (38973)
There is a publication ban in this case in the context of sexual offences. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Family Law: Children in Need of Protection 

J.L. v. Huron-Perth Children’s Aid Society, D.L., O.C.L.2019 ONCA 809 (38950)
There is a publication ban in this case, as well as a publication ban on party, in the context of a Crown wardship application. “The application for leave to appeal…is dismissed.”

Family Law: Unjust Enrichment; Constructive Trust 

Derakhshan v. Narula2019 ONCA 742 (39005)
Mr. Derakhshan and Ms. Narula lived together in a home owned by Ms. Narula for a period of approximately one year. During their relationship, Ms. Narula used some of her business income to invest in real estate properties, which she had renovated and then either rented or sold. Ms. Narula or her companies hired Mr. Derakhshan and his companies to do the renovation work.  Mr. Derakhshan asserted the parties were in a spousal relationship and he sought an interest in properties owned by Ms. Narula on the basis of constructive trust, unjust enrichment and joint family venture. He also sought retroactive spousal support and the return of shares in an inactive company he previously owned. Ms. Narula denied the parties had a common law relationship. She acknowledged she hired Mr. Derakhshan to renovate properties owned by her but stated he was fully compensated for his time and efforts. She denied having forged his signature on the share transfer documents. The trial judge dismissed Mr. Derakhshan’s action. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Transportation Law: Marine Rates

Oceanex Inc. v. Canada (Transport)2019 FCA 250 (38942)
The Court file contains information not available for inspection by the public, in the context of marine rate charges. “The application for leave to appeal…is dismissed with costs.”