Dismissed (4)

Class Actions in Québec: Disabilities 

D’Amico, et al. v. Québec (Attorney General)2019 QCCA 1922 (39013)
The Applicants were persons born with disabilities who have never had any source of income other than the financial assistance granted under the province of Québec’s Social Solidarity Program. They wish to institute a class action in which they would represent some 200,000 recipients under that program, which grants last resort allowances to persons whose capacity for employment is severely limited and who are unable to meet their basic needs due to their financial situation. Recipients under the program are subject to certain constraints and restrictions. The Applicants submit these prohibitions infringe certain fundamental rights protected by the Canadian and Québec Charters. Through their proposed class action, they are seeking a declaration certain provisions of the enabling statute and the regulation made thereunder are unconstitutional, as well as an award of damages. The Québec Superior Court determined the recourse proposed by the Applicants could not take the form of a class action. The C.A. agreed with most of the Superior Court’s conclusions and dismissed the Applicants’ appeal. In its view, a class action cannot be useful for the purposes of art. 575(3) of the Code of Civil Procedure if another application leads to the same result. There must be some advantage to proceeding collectively. “The application for leave to appeal…is dismissed without costs.”

Criminal Law: Child Porn 

L.E. v. R., 2019 ONCA 961 (39052)
There is a publication ban in this case, in the context of child porn images allegedly found on cell phones. “The application for leave to appeal…is dismissed.”

Environmental Law: Environmental Assessments 

Taseko Mines Limited v. Canada (Environment)2019 FCA 320 (39066)
Taseko Mines Ltd. wished to develop an open pit gold and copper mine, known as the New Prosperity Mine, southwest of Williams Lake, B.C. The mine site is within the traditional territory of the Tsilhqot’in peoples. The proposed mine undertook both provincial and federal environmental assessments to advance the New Prosperity mine. At the end of the federal environmental assessment, a review panel issued a report. The review panel was not satisfied with Taseko’s submissions on the potential seepage of toxic water and Taseko’s proposal to deal with remediation. The Minister of the Environment and Governor in Council subsequently decided, pursuant to section 52 of the Canadian Environmental Assessment Act that Taseko’s proposed New Prosperity mine was likely to cause significant adverse environmental effects, and that those effects were not justified. Taseko challenged the review panel’s report along with the Minister of the Environment and Governor in Council’s decisions. Both applications for judicial review were dismissed by the Fed. Court as no breach of procedural fairness was found. Appeals of both judicial review applications were subsequently dismissed. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Step-children 

Goldstick v. Eist et al., 2019 ABCA 508 (39063)
The Applicant’s father (“testator”) had two children (the Applicant and his sister), and two stepchildren (the Respondents) When the testator died in 1979, his will created a life estate for his wife (the mother of the testator’s children and stepchildren) and, on her death, the remainder was to be divided into equal shares for his children. The testator’s will did not make specific mention of his stepchildren. The year after the Applicant’s mother’s death in 2014, the Applicant took the position his step-siblings were not beneficiaries of the testator’s estate, because stepchildren did not fall within the term children in the testator’s will. On that basis, he applied for the transfer of a property the testator had owned, to himself and his sister’s children only (to the exclusion of his step-siblings). He also brought a parallel application relating to the administration of his parents’ estates. The Applicant’s first application was struck. The Court of Queen’s Bench of Alberta held barred by the operation of the Limitations Act. It also found that, following the testator’s death, the family agreed to interpret his will as treating his children and stepchildren equally, and held the Applicant was estopped by representation from challenging the interpretation of children as including stepchildren. The Applicant’s second application was adjourned and conditions were imposed before it could proceed.  The C.A. allowed the appeals in part, varying the costs award on the first application and the conditions for the Applicant to pursue his application relating to the administration of the estates, concluding “Now that it has been conclusively and finally established that all four children and stepchildren are residuary beneficiaries of the estate, the prospects of resolving all the remaining disputes have been enhanced. It will be apparent to all that the estate is rapidly being consumed by legal fees. This Court strongly urges the parties to use mediation or other alternative dispute resolution methods to bring this litigation to an end.” “The motion for a stay of execution of the orders for costs and the application for leave to appeal…are dismissed, the application for leave to appeal is dismissed with costs. Brown J. took no part in the judgment.”

Oral Hearing Ordered (1)

Criminal Law: “Unsavoury” Crown Witness 

Riley v. R., 2019 NSCA 94 (39006)
A man was fatally shot and Mr. Riley was charged with first degree murder. He was tried before a jury. At trial, Crown counsel called two of Mr. Riley’s friends as witnesses for the Crown. One witness gave evidence that supported the Crown’s case, the other witness gave evidence that exonerated Mr. Riley. Mr. Riley was convicted by the jury of second degree murder. He appealed and a majority of the C.A. dismissed the appeal. He filed a Notice of Appeal as of Right to the S.C.C. raising in issue whether the jury should have been given a Vetrovec caution, which warns the jury about relying on the evidence of unsavoury witnesses. Mr. Riley’s counsel stated, after the Notice of Appeal as of Right was filed, he was presented with fresh evidence consisting of a video‑tape recording of the witness who supported the Crown’s case giving a sworn statement to a private investigator. Mr. Riley’s counsel stated the witness recants material parts of his trial testimony. Mr. Riley’s counsel also stated the witness told the private investigator he was given a payment of $18K from the police and this payment was never disclosed to the defence. No court has rendered a judgment addressing the alleged fresh evidence. “The motion for an extension of time to serve and file the application for leave to appeal is granted. An oral hearing of the application for leave to appeal is ordered in accordance with s. 43(1.2)  of the Supreme Court Act, R.S.C., 1985, c. S-26 . The oral hearing of the application for leave to appeal will be heard with the appeal as of right. The hearing date will be fixed by the Registrar.”