Granted (2)
Criminal Law: Murder One; Fresh Evidence
C.B.C. v. S.F.O., 2019 MBCA 122 (38992)
There is a publication ban in this case, as well as a sealing order, in the context of fresh evidence applications re a “murder one” conviction. “The motions for an extension of time to serve and file the applications for leave to appeal and the applicant’s reply are granted. The applications for leave to appeal…are granted.”
Torts: Medmal
Armstrong v. Ward, 2019 ONCA 963 (39049)
In February 2010, Dr. Ward removed Ms. Armstrong’s colon using laparoscopic surgery. The surgery appeared to have been uneventful and there was no sign Ms. Armstrong had been injured. Over the next several weeks, however, she developed increasingly more concerning post‑operative abdominal pain. A CT scan revealed her ureter was blocked with scar tissue, causing severe damage to her left kidney. She was required to undergo a second surgery to remove her kidney in October 2010. She sued Dr. Ward, alleging he caused the scar tissue that formed the blockage in her ureter by improperly using a cauterizing device during the colectomy, known as a LigaSure. Ms. Armstrong contended Dr. Ward negligently touched or came within two millimetres of her ureter with the LigaSure during the colectomy procedure, causing a thermal injury. The trial judge held Dr. Ward was liable in negligence for the damage caused to Ms. Armstrong’s ureter. This decision was overturned on appeal. “The application for leave to appeal…is granted with costs in the cause.”
Dismissed (6)
Class Actions in Québec: Limitation Periods
Segalovich v. CST Consultants inc., 2019 QCCA 2144 (39054)
The Applicant, Mr. Segalovich, sought authorization in Québec to institute a class action against the Respondents, who all offer group Registered Education Savings Plans (“RESPs”) for the purposes of saving for post‑secondary education. Persons adhering and/or contributing to such plans pay enrolment and other fees over the course of their membership. In the event of cancellation of the plans, these fees are forfeited. Mr. Segalovich opened four RESPs for his children with two of the Respondents beginning in June 2006. He cancelled his plan in 2015, which resulted in a forfeiture of a proportion of his total contributions. He alleged these fees are illegal, in they contravene the requirements of a provincial regulation limiting these kinds of fees to $200 per plan. Mr. Segalovich also alleged the fees are abusive in light of art. 1437 of the Civil Code of Québec. The Superior Court of Québec dismissed Mr. Segalovich’s application. Applying the criteria laid out in art. 575 of the Civil Code of Procedure for authorization of a class action, the court found Mr. Segalovich was not in a position to properly represent the class members (art. 575(4) C.c.p.) because his personal claim against some of the Respondents was prescribed. He accordingly lacked a personal interest in the proposed action. The C.A. dismissed Mr. Segalovich’s appeal. It found Mr. Segalovich had advanced no errors on the grounds of prescription that would justify its intervention. “The application for leave to appeal…is dismissed with costs.”
Criminal Law: Luring; Mandatory Minimums; Constitutionality
Cowell v. R., 2019 ONCA 972 (39078)
The Applicant responded to an advertisement on a website used to buy and sell sex. Over the next two days, the Applicant and “Kathy” exchanged messages. The Applicant’s messages were sexually explicit. “Kathy” presented as an inexperienced 16‑year‑old sex trade worker. The Applicant arranged to meet “Kathy” at a hotel in Markham. The Applicant was arrested upon his arrival at the hotel. The Applicant was convicted of child luring, and communicating with a person he believed to be under the age of eighteen years for the purpose of obtaining sexual services for consideration. The sentencing judge dismissed the Applicant’s constitutional challenge to the mandatory minimum sentences. The Applicant was sentenced to the mandatory minimum sentences of 12 months’ imprisonment and 6 months to be served concurrently, and two years’ probation. The C.A. was unanimous in its dismissal of the Applicant’s appeal against conviction; however, it was divided as to the appeal against sentence. The majority of the C.A. dismissed the sentence appeal, and upheld the constitutionality of the one-year mandatory minimum sentence for child luring, when prosecuted by indictment, under s. 172.1(2) (a) of the Criminal Code. The majority of the C.A. declined to decide the constitutionality of the mandatory minimum punishment under s. 212(4) of the Code. In dissenting reasons, Trotter J.A. would have allowed the appeal against sentence in part, and would have struck down s. 172.1(2)(a). “The application for leave to appeal…is dismissed.”
Criminal Law: Sexual Assault
M.S-D. v. R., 2019 QCCA 1870 (39009)
There is a publication ban / confidentiality order in this case. The court file contains information not available for inspection by the public, in the context of sexual assault of a minor. “The application for leave to appeal…is dismissed.”
Employment Law in Québec: Wrongful Dismissal
Roblin v. Sir-Wilfrid-Laurier School Board, 2019 QCCA 2073 (39065)
The Applicant Mr. Christopher Roblin filed four complaints against his former employer the Respondent Sir‑Wilfrid‑Laurier School Board, for harassment and wrongful dismissal. The Québec Tribunal administratif du travail (“TAT”) issued three decisions: 1) refusing Mr. Roblin permission to file expert testimony in support of his complaints, 2) dismissing his complaints on the merits, and 3) dismissing a request to review the first two decisions. Mr. Roblin then brought an application for judicial review of all three TAT decisions. The Superior Court of Québec dismissed the application for judicial review, finding the first TAT decision did not violate any rules or principles of fairness or natural justice, and the second and third TAT decisions were not unreasonable. A single judge of the C.A. refused Mr. Roblin permission to appeal the Superior Court decision. “The application for leave to appeal…is dismissed with costs to the respondent, Sir-Wilfrid-Laurier School Board.”
Family Law: Shared Parenting Plans
M.H. v. A.B., 2019 SKCA 135 (39070)
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 shared parenting plans and the maximum contact principle. “The application for leave to appeal…is dismissed with costs.”
Torts: Negligent Misrepresentation
Stout & Company LLP v. Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., 2019 ABCA 455 (39042)
The Respondent, a Dutch cooperative bank, provided financing to an Alberta company (“Agra”) buying and selling agricultural commodities in Mexico. Since 2001, Agra obtained financing from the Respondent by selling its receivables to the bank at a discount, and then passing the bank the full amount as the receivables became due 90 to 120 days later. Under their agreement, Agra was to provide audited financial statements. The Applicants prepared Agra’s financial statements for 2007 to 2010, with each audit representing Agra’s financial statements presented fairly, in all material respects, the financial position, results of operations and cash flow of the company. By 2009, all of Agra’s operations had been moved to Mexico. It was later discovered Agra began creating fake purchase and sale agreements and hiding that fact by cycling funds back to the Respondent. The Respondent sued the Applicants and others for negligent misrepresentation, alleging its reliance on the misstatements in the 2009 and 2010 financial statements caused the bank to purchase the uncollectible receivables and lose $36,088,470. An issue became whether the Applicants were correct to assess Agra’s fraud risk as low, which meant they did not contact Agra’s customers to confirm their sales. This affected the standard of care to be applied. The Court of Queen’s Bench of Alberta found all the elements of negligent misrepresentation were made out except a breach of the standard of care. The C.A. allowed Rabobank’s appeal, dismissed a cross‑appeal and ordered a new trial. The Court concluded the trial judge had made a reviewable error in her reasons for preferring the evidence of the Applicants’ expert. Wakeling J.A., dissenting, would have allowed the cross‑appeal on the issues of damages and contributory negligence and dismissed the appeal. The Applicants submit the wrong principles were applied and the Respondent did not prove the misrepresentations were the cause of its damages. “The motion for leave to intervene by the Chartered Professional Accountants of Canada is dismissed. The application for leave to appeal…is dismissed with costs. Martin J. took no part in the judgment.”