Dismissed (18)

Civil Procedure: Appeal Reinstatement 

Templanza v. Ford, et al., 2019 ABCA 345 (39034)
The Applicant was involved in a dispute over the ownership of a condominium. The Applicant’s court actions were dismissed, and she was declared a vexatious litigant by Neufeld J. The Applicant filed an appeal of that decision. The appeal was stayed by the Registrar until the Applicant removed new parties from the style of cause, which she eventually did. Then, the Applicant failed to file her Appeal Record by the deadline and her appeal was struck. The Registrar informed the Applicant she must file a reinstatement application within six months, which she failed to do, and the appeal was deemed abandoned. Veldhuis J.A. dismissed the Applicant’s application to restore the appeal. Her application for permission to appeal was also dismissed. “The application for leave to appeal…is dismissed without costs.”

Civil Procedure: Litigate v. Arbitrate 

Martin v. Eggiman2019 ONCA 974 (39056)
The Respondents, Ms. Christina Eggiman and Christina T.H. Corp. (“Ms. Eggiman”) owned two Tim Hortons franchises. The franchisor was TDL Group Corp. (“TDL”). Ms. Eggiman required an operator to run her franchises and pursuant to the terms of the franchise agreement with TDL, any operator had to be vetted and approved in advance by TDL. TDL recommended the Applicants, Mr. and Ms. Martin and their company, TS Martin Inc. for the role of operator. TDL did not disclose to her Mr. Martin had been accused of sexual assault at other franchises  he had previously operated. Ms. Eggiman then entered into Operating Agreements with the Applicants for the operation of the franchises. TDL was not a party to those agreements. The Operating Agreements contained an arbitration clause that allowed any disputes between the parties to be settled by an arbitrator chosen by TDL. Ms. Eggiman terminated the Operating Agreements after becoming aware Mr. Martin engaged in criminal sexual acts with an underage employee, for which he was convicted and imprisoned. She then commenced an action against the Applicants and TDL seeking damages for breach of contract, intentional interference with economic relations, and conversion. Mr. Martin’s victim commenced a civil action against Ms. Eggiman, TDL and the Applicants. Ms. Eggiman defended that action and cross‑claimed against TDL and the Applicants. The Applicants brought a motion to stay the subject litigation in favour of the arbitration process. Ontario Superior Court of Justice: motion for stay dismissed; C.A.: appeal dismissed. “The application for leave to appeal…is dismissed with costs.”

Class Actions in Québec: Distribution of Remaining Balance 

Option consommateurs v. Infineon Technologies AG2019 QCCA 2132 (39057)
The Applicant, Option consommateurs, acted as representative plaintiff for the members of the class of a class action brought in 2004 against the Respondents and other companies that were manufacturers of DRAM (a microchip allowing information to be stored electronically). In the Québec Superior Court, Option consommateurs applied for, among other things, the distribution of a remaining balance, including a payment of $175,286.24 to itself. The Superior Court declared that Option consommateurs was entitled to no portion of the balance. In its view, the Code of Civil Procedure did not authorize this, as such a payment can be made only to a third party. The C.A. dismissed the appeal. The majority agreed with the Superior Court a remaining balance cannot be remitted to either of the parties — the representative plaintiff or the defendant — to the class action. Schrager J.A., dissenting, would have allowed the appeal and declared the remaining balance could be distributed to Option consommateurs. “The motion for leave to intervene by the Fonds d’aide aux actions collectives is dismissed without costs. The application for leave to appeal…is dismissed.”

Constitutional/Labour Law in Québec: Religion 

Singh v. Montréal Gateway Terminals Partnership2019 QCCA 1494 (38916)
The Applicants are Sikh truck drivers wearing the turban. In order to comply with their legal obligations, the Respondents adopted a policy requiring anyone walking on the grounds of their port terminals to wear a protective helmet. The Applicants declined to wear a helmet for reasons related to their religious beliefs. Accommodation measures were attempted, but were unsuitable for the Applicants and were abandoned due to lack of economical and organizational viability. The Applicants stopped carrying out transportation at the Respondents’ port terminals and filed an application for a declaratory judgment exempting them from wearing a protective helmet. The Québec Superior Court dismissed the application. First, the court concluded the Charter did not apply given the Respondents’ policy was not a government act, and rather the Québec Charter applied. Second, the court concluded, while the Applicants demonstrated prima facie discrimination (s. 10 of the Québec Charter) as well as interference with their freedom of religion (s. 3 of the Québec Charter), the Respondents succeeded in demonstrating it was justified under s. 15(1) (2) of the Canadian Human Rights Act and s. 9.1 of the Québec Charter, considering the policy constitutes a minimal interference with the Applicants’ freedom of religion, taking into account the risks and obligations of the Respondents in matters of health and safety at work. The C.A. unanimously dismissed the Applicants’ appeal, finding the trial judge made no error. “The application for leave to appeal…is dismissed without costs.”

Constitutional/Municipal Law: Telecommunications 

Videotron Ltd. v. Quebec (Attorney General)2019 QCCA 840 (38758)
The Respondent cities passed by‑laws to manage the activities of telecommunications and broadcasting companies within their territory and to charge fees for those activities. The Applicants, Videotron et al, later brought actions to challenge the constitutionality of those by‑laws. During the proceedings in the Québec Superior Court, Videotron et al, agreed to pay, under protest, the fees required by the cities under the impugned by‑laws. However, they asked the fees be reimbursed to them if the provisions of the by‑laws were declared unconstitutional. The Superior Court found the impugned by‑laws, in their pith and substance, regulated the planning, construction, location, maintenance and retention of telecommunications networks, a matter falling under Parliament’s jurisdiction over telecommunications under s. 92(10)(a) of the Constitution Act, 1867. The by‑law of the city of Gatineau was therefore declared invalid, inapplicable and of no force or effect and was quashed. The Superior Court made no order concerning the impugned by‑law of the city of Terrebonne because it had already been repealed. Nor did the Superior Court order the reimbursement of the sums paid by Videotron et al. The C.A. found the appeal of the A.G. Qué. had become moot because of the repeal of the by‑laws in question. It also found the trial judge had not erred in denying restitution. “The application for leave to appeal…is dismissed with costs to the respondents, Ville de Gatineau, Ville de Terrebonne and Attorney General of Québec. The conditional application for leave to cross-appeal filed by the respondent, Attorney General of Québec, is dismissed. It is not necessary to consider the motion to strike filed by the respondents, Ville de Gatineau and Ville de Terrebonne.”

Criminal Law: Conditional Sentences; Probation 

R. v. Sauvé-Laliberté2019 QCCA 1356 (38908)
The Respondent was given a conditional sentence of 126 days with several conditions, followed by 12 months of probation. During that sentence, he was arrested on six warrants relating to various breaches of the conditional sentence order. The Court of Québec revoked the conditional sentence order. It ordered the Respondent serve the remainder of his sentence in custody intermittently on weekends, and it imposed probation for one year to cover the times when the Respondent was not in prison. The C.A. allowed the appeal for the sole purpose of varying the length of the probation order so it applied only until the Respondent had finished serving — in prison for two days a week, on weekends — the remainder of the sentence of imprisonment initially imposed on him. The C.A. did not vary the other conclusions of the decision. “The application for leave to appeal…is dismissed.”

Criminal Law: Migratory Birds; Strict Liability 

Gladu v. R., 2019 QCCA 1817 (38971)
Mr. Gladu carried out an outfitting operation on land for which he held exclusive hunting rights for migratory birds. He was charged with depositing bait, namely corn, during the prohibition period in contravention of s. 14(3) of the Migratory Birds Regulations. Mr. Gladu admitted to having placed corn feeders on the land, but maintained he had done so to lure deer in order to hunt them, and not to lure ducks. The Court of Québec found Mr. Gladu guilty of the offence, concluding it is a strict liability offence and the actual intention is not a valid defence. The Superior Court and the C.A. upheld the conviction. “The application for leave to appeal…is dismissed.”

Criminal Law: NCR 

J.M. v. R.2019 QCCA 1755 (39025)
The Applicant, J.M., was convicted of intimidation of a justice system participant. The Court of Québec held the guilty verdict be rescinded and a verdict of not criminally responsible on account of mental disorder be rendered. On review of that decision, the Administrative Tribunal of Québec stated it was satisfied J.M. was a significant threat to the safety of the public and supervision measures had to be determined. It ordered J.M. be detained in custody at a regional mental health centre. On appeal from the decisions of the Court of Québec and the Administrative Tribunal of Québec, the C.A. concluded the trial judge had not made any error warranting its intervention. However, it found the reasoning of the Administrative Tribunal of Québec was faulty in some respects and the matter should be referred back to it for re‑hearing. “The application for leave to appeal…is dismissed.”

Family Law in Québec: Joint Family Venture 

M.D. v. O.B., 2019 QCCA 928 (38779)
There is a publication ban on the party, in the context of joint family venture re a family law dispute. “The application for leave to appeal…is dismissed with costs. The application for leave to cross-appeal is dismissed without costs. Côté J. took no part in the judgment.”

Family Law in Québec: Partnership of Acquests 

A.D. v. G.M., 2019 QCCA 1484 (38912)
There is a publication ban in case, and a publication ban on the party. The court file contains information not available for inspection by the public, in the context of the regime of partnership of acquests in a family law matter. “The application for leave to appeal…is dismissed without costs. Kasirer J. took no part in the judgment.”

Labour Law in Québec: Trade Union Organizing 

Union des artistes v. Compagnie Marie Chouinard2019 QCCA 1713 (38935)
Applicant, Union des artistes (UDA), and declared the permanent dancers of the Respondent, Compagnie Marie Chouinard (CMC), were artists within the meaning of the Act respecting the professional status and conditions of engagement of performing, recording and film artists (ASA). In the ALT’s view, the conditions set out in s. 6 of the ASA for the application of that statute were met, since each artist had signed an engagement contract with CMC for a one‑year fixed term that was not automatically renewable. The ALT ordered CMC to comply with the scheme for negotiating a group agreement set out in the ASA, to begin negotiating with UDA and to conduct the negotiations in good faith. That decision is currently the subject of an application for judicial review. On October 27, 2016, before the negotiations began, CMC sent out a memorandum to inform its employees who qualified as artists that when their individual contracts of employment expired, a new contract of employment for an indeterminate term would have to be signed. The effect of that decision by CMC was to avoid the application of the ASA, although the Labour Code remained applicable to the employees’ situation. In response, UDA filed a complaint with the ALT alleging CMC was hindering its activities and negotiating in bad faith. It also filed a motion for a safeguard order. On November 29, 2016, the ALT rendered a decision granting a preliminary exception filed by CMC to dismiss the complaint for lack of jurisdiction. The Superior Court dismissed UDA’s application for judicial review, and the C.A. dismissed the motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Grievances; Delay 

Popov v. Canada (Attorney General)2019 FCA 177 (38999)
The Applicant was terminated from his position as an engineer at the Canadian Space Agency (CSA) and his subsequent grievance heard by the Vice‑President of the CSA was also dismissed.  At that time, the Applicant was advised that should he disagree with the dismissal, he could refer the grievance to adjudication before the Federal Public Service Labour Relations and Employment Board no later than 40 days after receipt. The Applicant filed his referral to adjudication nearly 13 months after the 40‑day regulatory deadline had expired. In the intervening period, the Applicant made several attempts to convince the CSA its termination decision was misplaced. The Board dismissed his application for an extension of time to refer his grievance. The Fed. C.A. dismissed the subsequent application for judicial review. “The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed with costs.”

Privacy: Access to Personal Information 

Martinez v. Canada (Communications Security Establishment)2019 FCA 282 (39061)
Mr. Martinez made a request under the Privacy Act for access to personal information in three information banks. The Communications Security Establishment refused his request for disclosure, responding it found no personal information relating to him in the relevant information banks. Mr. Martinez sought judicial review of this decision, which was dismissed, and his subsequent appeal quashed. “The application for leave to appeal…is dismissed with costs.”

Professions: Alleged Discrimination 

L.H. v. Nova Scotia Barristers’ Society2019 NSCA 81 (39004)
There is a publication ban in this case, in the context of alleged discrimination re a discipline investigation. “The application for leave to appeal…is dismissed with costs to the respondent, Nova Scotia Barristers’ Society.”

Professions: Discipline 

Chen v. Lapointe2019 QCCA 1400 (38863)
The Applicant, Dr. Chen, an ophthalmologist, was the subject of a disciplinary complaint in which the Respondent, the assistant syndic of the Collège des médecins du Québec, alleged: (i) failing to have regard to the rules of quality, safety, harmlessness and traceability in the handling and preparation of doses and in the preservation of bottles of a drug (Lucentis), thereby contravening sections 3, 6, 28, 29, 43 and 47 of the Code of ethics of physicians; and section 59.2 of the Professional Code; and (ii) reselling, at a discount and without a licence, large quantities of a drug (Lucentis) recovered by a splitting of doses that enabled him to obtain substantial sums, thereby contravening ss. 63, 73 and 103 of the Code of ethics of physicians, and s. 59.2 of the Professional Code. The disciplinary council (“Council”) found the Applicant guilty on only the second count by virtue of the offence under s. 59.2 of the Professional Code (“P.C.”), ordering he be temporarily struck off the roll for 3 months and he pay a $10K fine. A majority of the Professions Tribunal (“Tribunal”) dismissed the Applicant’s appeal of the guilty verdict and upheld the acquittal entered on the first count despite the Respondent’s appeal. The dissenting judge would have entered a guilty verdict on the second count under s. 73(1) of the Code of ethics of physicians rather than under s. 59.2 P.C. and would have substituted three $10K fines for the sanction imposed by the Council. The Superior Court granted the Applicant’s application for judicial review, quashed the decisions of the Council and the Tribunal on the guilty verdict and the sanction, acquitted the Applicant of the offences under sections 63 and 103 of the Code of ethics of physicians and the offence under section 59.2 of the P.C., found him guilty of the offence under s. 73, paras. 1 and 3 of the Code of ethics of physicians, and ordered him to pay a $30K fine, with costs against the syndic. The C.A. allowed the Respondent’s appeal, set aside the Superior Court’s judgment and dismissed the incidental appeal. “The application for leave to appeal…is dismissed with costs. Kasirer J. took no part in the judgment.”

Real Property in Québec: Waterfront No-Road Property 

Gaucher v. Rankin2019 QCCA 1718 (38966)
Mr. Gaucher owned a building property bordering Lac Tremblant accessible only from the lake. This is the case for most of the owners on the lake, and Mr. Gaucher knew this when he purchased his property. Mr. Gaucher’s property is in a lakeside municipality, which, since its creation in 1915, has sought to remain a low‑density vacation area and to preserve the unique nature of the location. Mr. Gaucher wanted to convert one of his secondary residences to a principal residence and to have year‑round access to the residence by road. He argued his land was enclosed by that of others. He wanted to create, at his own expense, a land crossing on his neighbours’ property to connect his property to the nearest road, a distance of about five kilometres. The Superior Court declared Mr. Gaucher’s property was enclosed by that of others within the meaning of art. 997 of the Civil Code of Québec. In its view, access to the property from the lake was inadequate, difficult and sometimes impassable. The C.A. reversed that finding. It stated an interpretation in context of art. 997 C.C.Q., which requires a court to arbitrate the respective obligations and rights of neighbours in relation to one another, showed the article did not apply to Mr. Gaucher’s particular case. In other words, his property was not enclosed by that of others. “The application for leave to appeal…is dismissed with costs to the respondents, Anne Rankin, Beverly Bernard, Anne Royer, James Rankin, Jocelyne Rankin, Kieran Rankin, Stewart Rankin, Andrew Rankin, Michael Shawn Royer-Brennan, David Charles Arthur Terroux, David Dutrisac Kilburn, Nick Drager, Renu Dayal, Neal Robert Sproule, John Kelvin Sproule, Donald Anthony Sproule, Helen Anne Sproule, Eileen Elizabeth Sproule and Stephen Andrew Sproule.”

Tax: Art Donation Program 

Roher v. Canada2019 FCA 313 (39059)
Between the taxation years of 1998 to 2004, Ian Roher participated in an art donation program. He paid $383,937 into the program and claimed $2.3M in donation tax credits. Between 2002 and 2007, the Minister of National Revenue reassessed Mr. Roher’s 1998 to 2004 taxation years, determining Mr. Roher was entitled to donation tax credits based on the amount he paid into the program ($383,937). According to the Minister, that amount represented the fair market value of the donated art. Mr. Roher appealed the Minister’s decision to the Tax Court along with several other participants in the art donation program (several hundred tax payer assessments were held in abeyance pending the outcome of the lead litigation). The Tax Court dismissed the appeals, concluding the appellants’ expert witnesses were not credible. The Fed. C.A. also dismissed the subsequent appeal. “The application for leave to appeal…is dismissed with costs.”

Torts: Sexual Abuse 

Marshall v. MacLeod2019 ONCA 842 (38990)
The Respondent, Mr. MacLeod, was sexually abused by the Applicant, Father Marshall while he was a student at St. Charles College, a school run by the Applicant Basilian Fathers of Toronto. Later, Mr. MacLeod successfully brought an action against Father Marshall and the Basilians, claiming the abuse he suffered had a profound effect on his academic and professional success. The jury awarded him $1,588,781 in past and future loss of income. C.A.: appeal dismissed in respect in the issues of loss of income and punitive damages; appeal granted in respect of the issue of prejudgment interest. “The application for leave to appeal…is dismissed with costs.”