Granted (1)

Criminal Law: Jury Challenges 

R. v. Chouhan2020 ONCA 40 (39062)
On September 19, 2019, Bill C‑75 came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause. The Respondent, Mr. Pardeep Chouhan, was charged with first degree murder. Prior to the jury selection procedure for his trial, and prior to Bill C‑75 coming into force, Mr. Chouhan brought a constitutional challenge to the amendments, arguing they infringed his rights under the Charter. In the alternative, Mr. Chouhan submitted, even if constitutionally valid, the amendments should not apply retroactively. The Ontario Superior Court of Justice dismissed the constitutional challenge, finding the amendments did not infringe any Charter rights, affected only procedural matters, and could be given retrospective effect. Mr. Chouhan’s jury was therefore constituted according to the amendments in the new process, and he was found guilty of first degree murder by the jury. The C.A. unanimously affirmed the constitutional validity of the amendments, and agreed the change to challenges for cause could apply retrospectively. However, it ruled the elimination of peremptory challenges should not apply retrospectively to all pending cases, as it affected an accused’s substantive right to trial by jury. As such, this amendment should not have applied to the selection process in Mr. Chouhan’s case, and the jury was improperly selected. The C.A. overturned Mr. Chouhan’s conviction, and ordered a new trial. “The motion for leave to intervene in the leave application, filed by Gavin MacMillan, is dismissed, without prejudice to his right to bring a motion for leave to intervene in the appeal. The application for leave to appeal and the application for leave to cross-appeal…are granted.”

Dismissed (12)

Administrative Law: Principle of Deliberative Secrecy 

Timm v. Canada2019 CAF 279 (39010)
The Applicant, Mr. Timm, was in a federal jail. He brought an action in damages against Her Majesty the Queen because of actions taken toward him by Correctional Service of Canada officers. He also filed a grievance concerning the same acts, which was allowed. For the purposes of the trial of his action, Mr. Timm served a subpoena on three employees who had been involved in processing his grievance. Her Majesty the Queen made a motion to quash the three subpoenas. In a first judgment, the Fed. Court allowed the motion, since it was of the view the proposed witnesses would be unable to provide evidence was relevant to the case and their testimony would infringe the principle of deliberate secrecy of administrative tribunals. In a second judgment, the Fed. Court dismissed Mr. Timm’s action. It found certain members of the institution’s staff had committed a fault within the meaning of art. 1457 of the Civil Code of Québec but, in the circumstances, the fault had not had any consequences. The Fed. C.A. did not find any error requiring its intervention. It expressed no view on the validity of the trial judge’s comments on the principle of deliberative secrecy because they were obiter and had not affected the substantive result. “The application for leave to appeal…is dismissed with costs.”

Constitutional/Labour Laws: Division of Powers; Certification 

Ramkey Communications Inc. v. Labourers’ International Union of North America2019 ONCA 859 (38979)
The Applicant operated as a third-party contractor proving services to install, maintain and repair telecommunications networks mainly for Rogers and some other federally regulated telecommunications networks. Labourers’ International Union of North America, Ontario Provincial District Council applied to the Ontario Labour Relations Board (“OLRB”) for certification under the construction industry provisions of the Labour Relations Act as amended, of all the Applicant’s construction labourers (“construction technicians”) employed in six Ontario counties. The Applicant opposed certification on the basis its construction technicians performed essential work for federally regulated telecommunications companies and should be federally regulated. The OLRB granted the Union certification as a provincially regulated bargaining unit for the construction technicians. On an application for judicial review, Divisional Court quashed the OLRB decision, determining the Applicant’s construction technicians were engaged derivatively in work that is vital, essential or integral to a federal undertaking and should be federally regulated. The C.A. allowed the appeal, set aside the Divisional Court Order and restored the OLRB order granting certification to the Union. “The application for leave to appeal…is dismissed with costs to the respondent Labourers’ International Union of North America, Ontario Provincial District Council.”

Constitutional/Labour Laws: Division of Powers; Certification 

Telecon Inc. v. International Brotherhood of Electrical Workers (Local Union No. 213)2019 FCA 244 (38934)
The Applicant, Telecon Inc. (“Telecon”), was a telecommunications network infrastructure service provider engaged in the construction, installation and inspection of telecommunications infrastructure. Telecon also provides materials and installs wireline services in addition to building, testing and maintaining wireless towers, small cells and Wi‑Fi networks for third parties. The Respondent, the International Brotherhood of Electrical Workers, Local Union No. 213, filed an application with the Canada Industrial Relations Board (“the Board”) to represent a unit of Telecon’s employees in B.C. Telecon unsuccessfully opposed the certification application before the Board on jurisdictional grounds, arguing the labour relations questions at issue were subject to provincial regulation. The Board found Telecon was in fact a federal undertaking subject to federal regulation. The Fed. C.A. dismissed Telecon’s application for judicial review, having concluded the employees of the proposed bargaining unit perform work that is vital and integral to a federal undertaking. “The application for leave to appeal…is dismissed with costs.”

Contracts: Breach; Inducing Breach of Contract 

Racette v. Saskatchewan020 SKCA 2 (39060)
Dr. Racette was interested in a temporary position with the Government of Saskatchewan in the Office of the Chief Coroner, but failed the required certification exams and had to do some retraining before retaking them. The Saskatchewan College of Physicians and Surgeons agreed to allow him to practise under a special licence if he completed a Practice Ready Assessment developed by the College, the Chief Coroner and Dr. Ladham. The Practice Ready Assessment was formalized in a contract between the Government and Dr. Racette. Dr. Ladham concluded Dr. Racette had not met the requirements of the Practice Ready Assessment. As a result, the College did not grant the special licence. Dr. Racette was unable to obtain a position as a forensic pathologist. He sued the Government for breach of contract and Dr. Ladham for inducing breach of contract. The trial was held before a jury, which found the Government and Dr. Ladham liable. It awarded damages for past loss of income ($1,130,000), future loss of income ($1,570,000), past loss of pension and benefits ($125,000), future loss of pension and benefits ($175,000), aggravated damages ($500,000), punitive damages against Dr. Ladham ($1,000,000) and punitive damages against the Government ($500,000). The C.A. allowed the appeals and ordered a new trial on liability and damages. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Absolute Liability Offences 

Aisaican-Chase v. R., 2019 MBCA (39055)
The Applicant Anngylla Daune Aisaican-Chase was convicted as owner of the vehicle with failing to stop at a red light. The Manitoba Provincial Court concluded the offence at issue was an offence of absolute liability. Having found the Crown had proven beyond a reasonable doubt the actus reus of the offence, a conviction was entered and a fine of $203 imposed. The Court of Queen’s Bench of Manitoba dismissed the appeal. It agreed with the Provincial Court the offence in question is an absolute liability offence. The C.A. dismissed the 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 motion for an extension of time to serve and file a revised memorandum of argument is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Delay; Complex Case Exception 

Nugent, et al. v. Ontario (Labour)2019 ONCA 999 (39076)
In 2015, a millwright died of acute cyanide intoxication while working at a mine in Ontario. Detour Gold Corporation (Detour), the owner and operator of the mine, was charged with criminal negligence causing death contrary to the Criminal Code, along with various offences under the Occupational Health and Safety Act (OHSA). On May 26, 2016, the Applicants were each charged with two offences under the OHSA. In August 2017, following a number of pre-trials, Detour pleaded guilty to the criminal charge. The OHSA charges against it as well as criminal charges against three employees were withdrawn. As no resolution was reached concerning the OHSA charges against the Applicants, a trial was scheduled. The trial was expected to end about three months beyond the 18‑month presumptive ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The Applicants brought an application seeking to have the charges against them stayed under s. 11(b) of the Charter. The application judge found this was a particularly complex case but nonetheless concluded s. 11(b) was breached. The C.A. concluded the application judge misinterpreted the particularly complex case exception established in Jordan, allowed the appeal, and ordered the charges proceed to trial. “The application for leave to appeal…is dismissed.”

Insurance: MVA’s; Duty to Defend 

Pembridge Insurance Company of Canada v. Chu2019 ONCA 904 (39030)
In an action by M against F, F brought a third-party claim against Mr. Chu for alleged negligent driving and assault. Mr. Chu had allegedly exited his vehicle, yelled and hit F’s car, and caused such fear to F and his passenger it contributed to F driving through a red light and colliding with M’s vehicle. The Respondent, as the insurer for Mr. Chu’s vehicle, accepted a duty to defend to the extent the allegations related to the use, ownership or operation of a motor vehicle, but reserved its rights with respect to any other liability. Mr. Chu was also an insured under his father’s homeowner policy with the Applicant insurer. The policy provided coverage for “legal liability arising out of personal actions anywhere in the world”, but excluded coverage for claims that arise from the use or operation of a motor vehicle and for claims involving bodily injury or property damage caused by any intentional or criminal acts by the insured. The Applicant denied any duty to defend or indemnify, and applied for an Order declaring Mr. Chu is not entitled to a defence or indemnity under the home insurance policy and an Order the Respondents be bound by the determination of coverage as between the Applicant and John and Dennis Chu. The Ontario Superior Court of Justice granted the Orders requested by the Applicant, but the C.A. allowed the appeal and varied the Order to declare the insured are owed a defence by the Applicant under their homeowner’s policy. “The application for leave to appeal…is dismissed with costs.”

Municipal Law/Charter: Billboards; Freedom of Expressio

Astral Media Outdoor v. Ville de Montréal2019 QCCA 1609 (38911)
The Applicant companies applied to the Québec Superior Court for a declaration the by‑laws prohibiting billboards in Plateau‑Mont‑Royal were unconstitutional. All of the Applicants sought awards of punitive damages for intentional interference with their rights. The Superior Court rejected the Applicants’ argument the by‑laws were an ultra vires exercise of the powers conferred on the borough. However, it found the new by‑law provisions were unconstitutional because they infringed the freedom of expression in an unjustified manner. The C.A. was divided: majority agreed with the Superior Court the by‑laws were intra vires, but unlike the Superior Court, the majority of the C.A. found even if the by‑laws infringed freedom of expression, the infringement was justified; Schrager J.A., dissenting, was of the view the impugned by‑laws were ultra vires and unconstitutional. “The application for leave to appeal…is dismissed with costs. Kasirer J. took no part in the judgment.”

Patents: Pharmaceuticals 

Millennium Pharmaceuticals Inc. v. Teva Canada Limited2019 FCA 273 (39007)
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 patent litigation. “The application for leave to appeal…is dismissed with costs.”

Real Property in Québec: Riparian Owners 

S.T., et al. v. P.T., et al., 2019 QCCA 2100 (39043)
The Court file contains information not available for inspection by the public, in the context of rights of riparian owners in Québec. “The application for leave to appeal…is dismissed with costs.”

Tax: Charitable Gifts 

Markou, et al. v. R., 2019 FCA 299 (39050)
Four taxpayers made donations to a registered charity through a program operated by Trinity Capital Corporation. 30% or 32% of each donation was by cash contribution and the remainder came from a loan issued by a subsidiary of Trinity Capital Corporation. The loans were interest‑free and had 20‑year or 25‑year terms. The taxpayers additionally borrowed an amount to pay for a lender’s fee, a security deposit and an insurance policy on the loan’s deposit accretion. After the donation was made to the registered charity, each taxpayer exercised a put option from his or her lender discharging the loan by assigning to the lender the security deposit, fee and insurance. The lenders’ funds flowed in a circular fashion in one day. The lenders obtained financing from “daylight loans”. The charity received the donation, kept a small portion, and transferred most funds to two other charitable entities. Those entities used most of the funds to purchase goods in excess of fair market value from a British Virgin Islands corporation. The sales proceeds were returned to the lenders to repay the loans. The taxpayers claimed charitable donation tax credits under s. 118.1 of the Income Tax Act. Two claimed in respect of their 2001 taxation years. Two claimed in respect of their 2002 taxation years. The Minister of National Revenue issued taxation assessments disallowing the claimed credits on the basis the amounts claimed as donations were not gifts. Appeals by the taxpayers to the Tax Court of Canada and then to the Fed. C.A. were dismissed. “The motions for leave to intervene by Shirley Alexander et al. and by the French Group are dismissed. The application for leave to appeal…is dismissed with costs. Côté J. took no part in the judgment.”

Utilities: Regulator Charge or Tax 

Independent Electricity System Operator v. National Steel Car Limited2019 ONCA 929 (39058)
National Steel Car Ltd. manufactured steel rail cars and was a heavy electricity user. Changes to Ontario’s electricity pricing formula led to a dramatic price increase for electricity paid by heavy users like National Steel Car. The electricity pricing formula in Ontario was administered by the Independent Electricity System Operator (IESO). When the IESO sets electricity prices, it makes a “Global Adjustment” to the price of electricity. A component of the Global Adjustment funds electricity procurement contracts under the feed‑in tariff program (FIT). National Steel Car brought two applications re whether the FIT levy was a regulatory charge or tax. National Steel Car alleged the FIT program was an illegal tax which required a referendum. The Respondents named by National Steel Car brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike each application on the ground it disclosed no reasonable cause of action. The motion judge struck National Steel Car’s applications on the basis it was plain, obvious, and beyond doubt they could not succeed. The C.A. granted the subsequent appeal and remitted the matter to the Superior Court on the basis a full evidentiary record was required to determine the issues raised by National Steel Car. “The applications for leave to appeal…are dismissed with costs to the respondent, National Steel Car Limited.”

Remanded (1)

Criminal Law: Sexual Interference 

R. v. W., 2019 BCCA 295 (38767)
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 sexual interference. “The motion to expedite the application for leave to appeal is dismissed. Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal…is remanded to the Court of Appeal for British Columbia for disposition in accordance with R. v. Friesen, 2020 SCC 9.”