Granted (1)

Contracts in Québec: Limitation of Liability Clauses 

6362222 Canada Inc. v. Prelco Inc., 2019 QCCA 1457 (38904)
The Respondent, Prelco Inc., a company specializing in the processing of flat glass, sued the Applicant, 6362222 Canada Inc. (Créatech), for additional costs and loss of profits associated with a project to implement an integrated management system for its operations. Créatech contested the application and filed a cross‑application for unpaid invoices. The Superior Court found Créatech was at fault in its implementation approach, the service provider was responsible for determining the appropriate type of implementation and this was an essential obligation. In its view, this fundamental error giving rise to the damage made the limitation of liability clause in the agreement inapplicable. Créatech was ordered to pay Prelco $1,872,266 with interest and the additional indemnity. The C.A. found the trial judge had not erred in determining the applicable principles or in applying those principles to the facts. The appeal and the incidental appeal were dismissed. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed (19)

Administrative Law: J.R. 

Bouragba v. Ontario College of Teachers, 2019 ONCA (39001)
Mr. Bouragba was a teacher and a member of the Respondent, Ontario College of Teachers (“College”).  He made complaints against a high school principal and two administrators of the school board. The Investigation Committee of the College determined the complaints would not be sent to investigation. Another panel of the Investigation Committee refused to send Mr. Bouragba’s three remaining complaints to discipline. Mr. Bourabga sought judicial review of the decisions of the Investigation Committee on the basis the decisions were unreasonable.  He also claimed there was a conflict of interest, a reasonable apprehension of bias, procedural unfairness, a double standard and the Investigation Committee was improperly constituted. The Divisional Court dismissed Mr. Bouragba’s applications for judicial review. The C.A. dismissed his application for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Charter: Warrantless Search Protocols 

Langenfeld v. Toronto Police Services Board2019 ONCA 716 (38909)
The Chief of the Toronto Police Service instituted a new security protocol at Police Headquarters under which anyone entering the building would be examined with a metal detector wand, and any bag in their possession would be inspected visually. The special constables performing the security protocol were only authorized to screen individuals, not to seize items or conduct criminal investigations, but they could request the assistance of police officers. Mr. Langenfeld, a Toronto resident, regularly attended meetings of the Police Services Board, which must ordinarily be held in public, for several years. The meetings were held in the Police Headquarters. After the security protocol was instituted, Mr. Langenfeld refused to pass through security and was refused entry to the building. As a result, he was unable to attend the meeting. He applied for an injunction and for an order the Chief discontinue the warrantless search security protocols. Copeland J. granted declaratory relief under s. 24(1) of the Charter. The C.A. allowed the appeal. “The application for leave to appeal…is dismissed.”

Civil Procedure: Motions to Strike 

Taha v. Government of P.E.I., 2018 PECA 18 (38997)
The Applicant filed two statements of claim against the P.E.I. government. In the first one, he sought damages for the arbitrary seizure of his properties and to abolish the practice of taxing the poor in the province. In the second, his action was against the government for the failure to have an ombudsman. The government applied under Rule 2.1 of the Prince Edward Island Rules of Civil Procedure to have the statements of claim dismissed as being frivolous, vexatious and otherwise an abuse of the process of the court. The Supreme Court granted the motion dismissing the statements of claim. The C.A. quashed the appeals. “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.”

Civil Procedure/Torts: Right to a Jury 

Martin v. Chrysler Canada Inc., 2019 ABCA 347 (38913)
The Applicant, Gary Martin commenced two actions arising out of a 2007 MVA. One has since been resolved. In the other, the Applicant first applied in 2017 to have the trial heard by a civil jury, pursuant to s. 17 of the Jury Act. The case management judge gave the parties time to take steps under the Alberta Rules of Court to manage the expert evidence. Nothing was done. The Applicant filed a new application for a civil jury trial and applied for a procedural order with a view to simplifying the expert testimony for the jury. The Applicant asked the court to direct conflicting expert witnesses to confer with one another to narrow the issues and identify the points on which their views agreed and differed and provide a signed written statement for use at trial. The case management judge refused to order the action be tried by a civil jury, and ordered it be heard by a judge alone. He also refused to make a procedural order directing competing experts meet and provide a signed statement identifying facts on which they agree or disagree, for the purpose of streamlining the expert evidence. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions/Charter: Health Care; Long-Term Care 

Elder Advocates of Alberta Society v. Alberta2019 ABCA 342 (38922)
In Alberta, individuals, often elderly, who were assessed as having chronic health care needs requiring long-term care may reside in publicly funded long-term care facilities, either nursing homes or auxiliary hospitals. These facilities are largely funded by government, but operators are permitted by statute to charge residents a daily “accommodation charge”. The maximum permitted accommodation charge was substantially increased in 2003 and a class action lawsuit, brought on behalf of affected residents, was commenced by the Applicants in 2005. The Applicants say, since the accommodation charge was increased in 2003, it had been an invalid charge not authorized by the legislation, as it exceeds the cost of providing “accommodation and meals”. They argued the effect is a scheme that subsidizes the cost of health care services ought to be provided free of charge, in accordance with health care legislation. Following a lengthy trial, the trial judge dismissed the certified class action. The appeal from that decision was also dismissed. The C.A. found in face of findings the residents of long-term care centres do not have to pay for any health care services any other resident of Alberta receives free of charge, and a government subsidy is provided to any residents of long‑term care who cannot afford the accommodation charge so they are not unduly disadvantaged, any breach of s. 15 of the Charter is justified in this case. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Netflix & Chill/Bill 

Seigneur v. Netflix International2019 QCCA 1671 (38931)
The Applicant, Frédéric Seigneur, had subscribed to the services offered by the Respondents, Netflix International B.V. and Netflix, Inc. (Netflix), since September 2014. Between September 2016 and November 2017, the monthly cost of his Netflix subscription increased twice, from $8.99 to $9.99 and from $9.99 to $10.99. On September 15, 2016, Mr. Seigneur was informed by email the subscription price would increase as of October 14, 2016. On September 24, 2016, when a pop‑up window on his screen prevented him from accessing the service, he selected “Continue” to the choice offered to him concerning the price increase. He then received confirmation from Netflix by email of his acceptance of the new monthly rate. In response, Mr. Seigneur filed an application for authorization to institute a class action and to be designated as representative plaintiff in August 2017. His main argument was the terms of the service contract were contrary to certain provisions of the Consumer Protection Act concerning unilateral contract amendments by merchants. On October 14, 2017, Mr. Seigneur was once again informed by email that his Netflix subscription price would increase as of November 14, 2017. On October 15, 2017, when a pop‑up window on his screen again prevented him from accessing the service, he selected “Continue” to the choice offered to him concerning the price increase. Confirmation of the increase was emailed to him. On December 1, 2017, he amended his application for authorization to institute a class action and to be designated as representative plaintiff as a result of these new events. The Superior Court dismissed the amended application on the ground it did not raise an arguable case and the condition set out in art. 575(2) of the Code of Civil Procedure was therefore not met. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Contracts: Frustration 

Stilton Corp. Ltd. v. Paterson Veterinary Professional Corporation2019 ONCA 746 (38927)
Dr. McCleary, President and Director of Stilton Corp. Ltd., and Dr. Paterson, sole Director of Paterson Veterinary Professional Corp., are both veterinarians. Dr. McCleary began his practice in the 1970s and Dr. Paterson joined the practice in the 1980s. The practice operated in Mississauga, Ontario. Dr. Paterson eventually purchased the practice and continued to lease the property from Dr. McCleary, with an option to purchase the property at a later date. When she attempted to purchase the property, a dispute arose and the parties entered into a settlement agreement that would allow for a further lease period, after which Dr. Paterson could buy the property for a set price. When Dr. Paterson sought to buy the property in accordance with the terms of the settlement agreement, Dr. McCleary refused to close the sale. Dr. Paterson made an application to enforce the settlement agreement. The Superior Court granted Dr. Paterson’s application and ordered Dr. McCleary to transfer the property title to Dr. Paterson. The C.A. dismissed Dr. McCleary’s appeal, concluding the application was an appropriate procedural avenue and specific performance was the appropriate remedy. It also concluded the settlement agreement was not invalidated by way of frustration. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Criminal Negligence Causing Death; Sentencing 

Siwicki v. R., 2019 MBCA 104 (38960)
The Applicant, Mr. Siwicki, called 911 to say his mother had died in their home. First responders attended and discovered Mrs. Siwicki’s body on the floor in the hallway of the house.  The Applicant told police he was his mother’s sole caregiver, and they lived in the house alone together. She had fallen out of bed several weeks earlier, and he was unable to lift her to get her back into bed. He said he did not call an ambulance because she had told him many times she did not want to go to the hospital. He said he left her there. An autopsy revealed Mrs. Siwicki died from sepsis, a complication from bedsores, which resulted from prolonged immobility while lying on her side. The Applicant pled guilty to criminal negligence causing death for failing to provide his mother with the care she required. The sentencing judge sentenced the Applicant to three months’ incarceration. The majority of the C.A. granted leave to appeal the sentence, and substituted a sentence of two years’ incarceration. “The application for leave to appeal…is dismissed.”

Criminal Law: Directed Verdicts; Circumstantial Evidence 

Ponace v. R., 2019 MBCA 99 (38948)
Mr. Arthur Haussermann was found dead inside his apartment after firefighters responded to an alarm triggered by a fire. It was determined the victim had died from strangulation before the fire had started. The Applicant, Ms. Clarissa Dawn Ponace, and a co‑accused, were charged with second degree murder and arson. The case against Ms. Ponace was entirely circumstantial. During closing submissions at the trial by jury, Crown counsel allegedly made erroneous statements. Ms. Ponace filed a motion seeking a directed verdict. The trial judge dismissed the motion with reasons to follow after the trial. The trial judge noted the motion must fail if she concluded the evidence as a whole, if believed, could reasonably support an inference of guilt. In her view, although the evidence was entirely circumstantial and “not strong”, the evidence in its entirely was reasonably capable of supporting Ms. Ponace’s participation in the murder. Both Ms. Ponace and her co‑accused were convicted by the jury of second-degree murder and arson. Ms. Ponace’s appeal to the C.A., alleging errors in the trial judge’s dismissal of the motion for a directed verdict and in the instructions to the jury, was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Number of Experts 

R. v. Turpin2019 NBCA 78 (38995)
A two‑year old child in Mr. Turpin’s care suffered a blow to the head that eventually led to her death. Mr. Turpin claimed she fell in a bathtub. Mr. Turpin was charged with second degree murder. An issue arose before trial regarding s. 7 of the Canada Evidence Act which limits the number of expert witnesses at trial to five per party unless leave is obtained to exceed that number. Case law was unsettled whether that meant five expert witnesses per trial or five expert witnesses per issue. The trial judge accepted the limit applies per issue and Crown counsel called 12 expert witnesses to testify at trial regarding the significance of the severity of the child’s injury and potential mechanisms of the injury. A jury convicted Mr. Turpin of second degree murder. The C.A. overturned the conviction and ordered a new trial for manslaughter. It concluded leave was required to call more than five experts in total and a new trial was required. It reviewed the evidence and held the new trial should be only for manslaughter. “The application for leave to appeal…is dismissed.”

Criminal Law: Roadside Driving Prohibition Constitutionality 

Lemieux v. British Columbia (Superintendent of Motor Vehicles)2019 BCCA 230 (38807)
The Applicants were served with 90‑day immediate roadside driving prohibitions pursuant to s. 215.41 of the B.C. Motor Vehicle Act. Mr. Lemieux, Mr. Wyborn and Mr. Bock were each served under s. 215.41(3.1) for providing a sample of breath for analysis that registered a “fail” result. Ms. Swick was served under s. 215.41(4) for failing or refusing, without reasonable excuse, to provide a breath sample. Adjudicators dismissed the Applicants’ respective applications for review and their decisions were in turn the subject of judicial review. At issue is the constitutional validity of the latest version of the Immediate Roadside Prohibition (“IRP”) (Version 3) created by the Motor Vehicle Act, ss. 215(1) and (4). The Applicants brought a petition challenging the constitutional validity of the IRP as violating ss. 8 and 10 (b) of the Charter, which was dismissed by the chambers judge. The C.A. dismissed the appeals, dismissed the constitutional challenge, and held that s. 8 of the Charter was not violated. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search & Seizure 

R. v. Pavlik2019 SKCA 107 (38961)
A police patrol supervisor received a tip from a street unit officer a confidential informer had said Mr. Pavlik and his girlfriend would be arriving in his girlfriend’s red car at a bar in Prince Albert in about 20 minutes and they would possess and sell multiple ounces of methamphetamine. The supervisor passed the tip and the results of a vehicle search to a patrol officer. Responding officers arrived at the bar. They saw Mr. Pavlik’s girlfriend in a vehicle matching the search details and Mr. Pavlik walking in the parking lot. They arrested both of them for drug offences. A search of Mr. Pavlik incident to arrest found no evidence. The vehicle was searched at a police station and officers found a loaded, sawed‑off shotgun. Mr. Pavlik was cautioned. He said the shotgun was his and his girlfriend had no knowledge of it. He was charged with multiple weapons offences. No drug charges were laid. The trial judge dismissed challenges to the admissibility of the evidence of the shotgun and the statement to police, including argument the arrest was arbitrary and a breach of s. 9 of the Charter therefore the evidence ought to be excluded. Mr. Pavlik was convicted of firearms offences. The C.A. held the arrest under s. 495(1)(a) of the Criminal Code breached s. 9 of the Charter and the evidence of the shotgun and the statement to police ought to have been excluded. It entered acquittals on all charges. “The application for leave to appeal…is dismissed.”

Criminal Law: Serious Criminality Deportation 

Revell v. Canada (Citizenship and Immigration)2019 FCA 262 (38891)
The Applicant was a U.K. citizen who immigrated to Canada in 1974 at the age of ten. He had lived in Canada as a permanent resident since then. In 2008, he was found guilty of drug possession and drug trafficking. In 2013, he pled guilty to assault with a weapon and assault causing bodily harm. He was referred to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing. He conceded he was inadmissible but challenged the constitutionality of provisions of the Immigration and Refugee Protection Act as unjustifiably infringing his rights under ss. 7 and 12 of the Charter. Federal Court: judicial review dismissed; two questions certified for appeal. Fed. C.A.: appeal dismissed. “The motion to expedite the application for leave to appeal is dismissed. The application for leave to appeal…is dismissed without costs.”

Criminal Law: Serious Criminality Deportation 

Moretto v. Canada (Citizenship and Immigration)2019 FCA 261 (38964)
The Applicant was born in Italy and immigrated to Canada as a baby. He became a permanent resident and had spent some fifty years in Canada. Following a conviction on several counts of theft and breaking and entering, he was found inadmissible for serious criminality and the Immigration Division of the Immigration and Refugee Board (“IRB”) issued a deportation order against him. The Immigration Appeal Division of the IRB issued a conditional stay of the removal order. While the stay was in place, Mr. Moretto was convicted of another serious criminality offence and the stay was cancelled by operation of s. 68(4) of the Immigration and Refugee Protection Act. The Applicant challenged the constitutionality of the provision as unjustifiably infringing his rights under ss. 7, 12 and 2(d) of the Charter. Federal Court: judicial review dismissed; three questions certified for appeal. Fed. C.A.: appeal dismissed. “The application for leave to appeal…is dismissed without costs.”

Employment Law: Termination; Damages 

Equitable Life Insurance Company of Canada v. Dawe2019 ONCA 512 (38926)
Mr. Dawe, a long‑term employee with Equitable Life, was terminated without cause. His compensation included a base salary, cash bonuses which he received regularly, and benefits. He had reached a senior position. Changes to the compensation plan were occasionally imposed by Equitable. Employees could continue under the new terms or leave, but were not required to sign off on the changes. In 1998, Mr. Dawe was warned the compensation plan now said the employee would only receive a bonus if they were “in the employ of the company” when the payment was processed. In 2006, two new bonus plans substantially limited the entitlement to bonus payments in some situations, including termination without cause. A “Terminal Award” would be pro‑rated to the last day of active employment, and would only be paid if the employee signed a “Full and Final Release”. There was no evidence the new limits were brought to Mr. Dawe’s attention. After his termination, he refused to sign the release as requested by Equitable. He was paid eight weeks of pay in lieu of notice and 26 weeks’ severance pay in accordance with the Employment Standards Act but other payments were withheld. He sued for wrongful dismissal, and both parties moved for partial summary judgment. The motions judge found Mr. Dawe was entitled to 30 months’ notice and to long and short‑term incentive plan payments during the notice period. The C.A. allowed Equitable’s appeal in part, reducing the notice period to 24 months. It ordered the incentive plan payments be adjusted accordingly. When the parties requested clarification, it confirmed Mr. Dawe was entitled to the full bonus payments, pro‑rated to the end of the notice period, but noted Equitable had not argued on appeal Mr. Dawe was not entitled to a bonus in 2017. “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: Assisted Procreation 

J.M. v. C.L., et al.2019 QCCA 1386 (38860) 
There is a publication ban in this case, and a ban on the party. The court file contains information not available for inspection by the public, in the context of an assisted procreation-paternity case. “The application for leave to appeal…is dismissed with costs to the respondent, C.L., in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada. Kasirer J. took no part in the judgment.”

Insurance in Québec: Failure to Cooperate 

Rizqy v. Échelon compagnie d’assurance générale2019 QCCA 966 (38945)
Mr. Rizqy’s car was set on fire. In the Court of Québec, Mr. Rizqy claimed $57,500 from the insurer, the Respondent Échelon Compagnie d’assurance générale. In contesting the claim, the Respondent alleged the Applicant was in bad faith and had not cooperated with the investigation. It also argued he had made deceitful and implausible representations concerning the use of his vehicle and the circumstances of the loss. The Court of Québec dismissed the Applicant’s originating application, finding he had not established the occurrence of a loss within the meaning art. 2464 of the Civil Code of Québec that gave him the right to an indemnity under his insurance contract. The court found the Applicant had lost the right to an indemnity because he had done everything in his power to avoid cooperating with the criminal investigation and the Respondent’s investigation. The C.A. dismissed the Applicant’s motion for leave to 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.”

Labour Law in Québec: Grievances 

Syndicat de l’enseignement des Deux-Rives v. Commission scolaire des Navigateurs2019 QCCA 1800 (38968)
To mark the departure of certain staff members, the school administration at École du Ruisseau organized a lunchtime activity on June 26, 2014. Most members of the teaching staff did not think the activity was mandatory, and six teachers therefore decided not to attend. The school principal was taken aback by that decision. At the beginning of the following school year, the principal met with the six teachers individually to look back at the events of June 26 and set the record straight. Further to those meetings, the teachers each received a letter stating they had been insubordinate in connection with the events of June 26 and requesting their cooperation for the new school year. The six teachers, represented by the Applicant union, Syndicat de l’enseignement des Deux‑Rives, filed six grievances disputing the lawfulness of each of the letters received. The union argued the letters were disciplinary in nature and therefore had to be subject to the collective agreement signed by it and the Respondent school board, Commission scolaire des Navigateurs. The intervener, Jean‑M. Morency, acting as grievance arbitrator, made an arbitration award in which he dismissed each of the grievances. The Superior Court dismissed the union’s application for judicial review, and the C.A. dismissed the appeal. “The application for leave to appeal…is dismissed without costs.”

Real Property: Co-Tenancy Agreements 

Martel v. Furr, et al.2019 ONCA 824 (38958)
Paulette Martel was an original owner of a residential unit in the Kings Landing Community, a freehold townhouse development of 60 units constructed by Claridge Homes (Riverside) Inc. in Ottawa. Kings Landing was established as a tenancy in common rather than a condominium, whereby each owner also has a 1/61 co‑tenancy interest in the land. Owners at Kings Landing own their townhouse in fee simple but are subject to a co‑tenancy agreement signed in 1998 and registered against the title of each unit. A dispute arose as to whether a fence and retaining wall, which forms the easterly boundary of Kings Landing, constitute shared property under the co‑tenancy agreement. An application was brought by two owners to the Superior Court of Justice which was joined by Ms. Martel as an intervener to determine whether the fence was shared property. The application judge determined the easterly fence and retaining wall were shared property and a subsequent appeal to the C.A. 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 with costs to the respondents, Michel Duhamel, Emmy Verdun, Jack Hughes and Kings Landing Co-Tenancy Committee.”