Granted (1)

Human Rights in Québec: Discrimination 

Ward v. Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres)2019 QCCA 2042 (39041)
As part of a stand-up routine, comedian Mike Ward used dark humour to “deflate” what he called the “sacred cows” of Québec’s artistic milieu in reference to a number of prominent public figures. One of his subjects was Jérémy Gabriel, a young man with Treacher Collins Syndrome who had become famous by singing for well‑known public figures. In his routine, Mr. Ward made a number of comments relating to physical characteristics of Mr. Gabriel caused by his handicap. Mr Gabriel and his parents filed a complaint of discrimination with the Commission des droits de la personne et des droits de la jeunesse. The Commission submitted an application to the Human Rights Tribunal. The Tribunal concluded that Mr. Ward’s comments were discriminatory under Québec’s Charter of human rights and freedoms. It held the comments violated Mr. Gabriel’s right to dignity and the violation was not justified by Mr. Ward’s right to freedom of expression. The Tribunal awarded damages for moral injury and punitive damages to Mr. Gabriel and to his mother. The majority of the C.A. allowed Mr. Ward’s appeal in part; while it held the finding of discrimination against Mr. Gabriel was reasonable, it quashed the order awarding damages to Mr. Gabriel’s mother. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed (6)


Administrative Law: Discontinuances 

Gagné v. CIUSSS de Centre-Ouest-de-l’Île-de-Montréal / Hôpital général juif — Sir Mortimer B. Davis2020 QCCA 278 (39128)
This case concerns the discontinuance by the Applicant, Ms. Gagné, of six proceedings she had brought before the Québec Commission des lésions professionnelles (“CLP”), which subsequently became the Administrative Labour Tribunal (“ALT”). Ms. Gagné signed a transaction and discontinued a number of proceedings, including those before the CLP. The next month, through her new counsel, she filed a motion to withdraw her discontinuances. The ALT found Ms. Gagné had not given free, intentional and enlightened consent in signing the discontinuances, and annulled them on that basis. The Superior Court intervened to quash the ALT’s decision, holding on the basis of the principle of indivisibility of a transaction that a transaction cannot be annulled in part. The discontinuances in question could not be dissociated from the agreement and could not be annulled without also annulling the other parts of the transaction. The C.A. dismissed Ms. Gagné’s appeal, as it found no errors in the Superior Court’s analysis. “The application for leave to appeal…is dismissed with costs.”

Administrative Law: Governor-in-Council Appointments 

Democracy Watch v. Canada (Attorney General)2020 FCA 28 (39096)
The Applicant, Democracy Watch, brought an application for judicial review of the appointment by the Governor in Council (hereinafter “GIC”) of Mario Dion as the Federal Conflict of Interest and Ethics Commissioner (hereinafter “Ethics Commissioner”). Democracy Watch challenged the appointment on the basis it was made in contravention of the consultation requirement contained in s. 81(1) of the Parliament of Canada Act,  R.S.C., 1985, c. P‑1  and in contravention of s. 4  and s. 6(1)  of the Conflict of Interest Act, S.C. 2006, c. 9, s. 2 , as well as on the basis the appointment process was procedurally unfair. Democracy Watch also brought an application for judicial review of the appointment of Nancy Belanger as the Commissioner of Lobbying, challenging the appointment on the basis it was made in contravention of the consultation requirement contained in s. 4.1(1) of the Lobbying Act, and in contravention of s. 4 and s. 6(1) of the Conflict of Interest Act, as well as on the basis the appointment process was procedurally unfair. The Federal Court granted Democracy Watch public interest standing to bring the applications, but dismissed both applications for judicial review. The judge found the GIC met the consultation requirements of both Acts, that the issue of potential contraventions of the Conflict of Interest Act were not justiciable, as the Ethics Commissioner has exclusive jurisdiction to decide this matter, and the common law concerning reasonable apprehension of bias did not apply to the GIC’s exercise of its discretionary appointment power under both Acts.  The Fed. C.A. dismissed Democracy Watch’s appeal, as it was not persuaded the Governor in Council’s view was unreasonable. The Fed. C.A. also rejected Democracy Watch’s contention the Governor in Council was biased in making the appointment; court found that the nature of the scheme made such a situation inevitable, and it had no grounds upon which to interfere with the legislative scheme. “The application for leave to appeal…is dismissed without costs.”

Civil Procedure: Dismissal for Delay 

Singh v. Braithwaite2019 ONCA 174 (39193)
The Applicant Mr. Singh sued the Respondent Mr. Braithwaite, alleging solicitor negligence. The Superior Court dismissed Mr. Singh’s action, for delay. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Constitutional Law: Division of Powers 

Phillips Legal Professional Corporation v. Cowessess First Nation No. 732020 SKCA 16 (39135)
In September 2013, the Respondent Cowessess First Nation No. 73 (“CFN”), a Saskatchewan First Nation, retained the Applicants, Phillips Legal Professional Corporation, Mervin Phillips and Nathan Phillips (collectively, “Phillips”), to act as their legal counsel. On April 5, 2016, the Chief and Band Council of CFN at the time endorsed a Band Council Resolution (“BCR”) that approved a new retainer agreement with Phillips; CFN also reviewed and approved 67 invoices for legal services provided between September 30, 2013 and March 25, 2016, totalling $867,912.03. Following an election on April 27, 2016, resulting in a change of Chief and Council, CFN terminated its relationship with Phillips. An additional 16 bills were then issued by Phillips, for a total of 83 bills for legal services provided by Phillips to CFN between September 30, 2013 and May 13, 2016, totalling $982,563.08. CFN then commenced proceedings in the Court of Queen’s Bench, seeking assessment of all 83 invoices, pursuant to the Legal Profession Act. The most recent 16 bills were automatically referred for assessment, given those 16 bills were issued in the thirty days after the application for assessment. The chambers judge of the Court of Queen’s Bench granted CFN’s application for assessment of the remaining 67 disputed legal invoices issued by Phillips. The chambers judge rejected Phillips’ arguments assessment under the LPA was not possible or was precluded by the BCR, by reason of interjurisdictional immunity, federal paramountcy, or other doctrines, and found assessment was “in the interests of justice”. The C.A. dismissed Phillips’ appeal, agreeing with the chambers judge’s analysis and conclusions, including the factors identified and applied in order to support an order for assessment of invoices. “The application for leave to appeal…is dismissed with costs in favour of both respondents, Cowessess First Nation No. 73 and Attorney General of Saskatchewan, in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Insurance/Civil Procedure: Limitation Periods; Nunc Pro Tunc Orders 

Thistle v. Schumilas2020 ONCA 88 (39106)
In June 2009, Equitable Life of Canada issued a life insurance policy to Mr. Thistle’s wife in the amount of $600K, after her previous life insurance policy had lapsed. Mr. Thistle was the sole beneficiary. Mr. Thistle made a voluntary assignment in bankruptcy, effective June 25, 2009. He was not discharged from bankruptcy until June 13, 2011. Mr. Thistle’s wife died in the fall of 2010 and he made a claim under the policy. Equitable Life denied the claim on the basis his spouse had misrepresented or failed to disclose material facts on her application for insurance. Mr. Thistle commenced an action against Equitable Life, seeking a declaration Equitable Life was required to pay him as beneficiary under the policy. In December 2012, Mr. Thistle became aware of a potential claim in professional negligence against the Respondent, Mr. Schumilas, who had acted as his wife’s insurance agent when she purchased the policy. On February 11, 2013, Mr. Thistle commenced a claim against Mr. Schumilas, seeking damages equivalent to the policy’s value. He did not disclose his interest in this cause of action to the trustee in bankruptcy because he did not become aware of it until after his discharge from bankruptcy.  Mr. Schumilas brought a motion for summary judgment to dismiss the action on the basis any right to assert a claim against him arose when Mr. Thistle was an undischarged bankrupt and, therefore, the cause of action vested with his trustee in bankruptcy. In the meantime, the applicable limitation period had expired. Mr. Thistle brought a cross-motion seeking a retroactive order granting him standing to bring the action. The motion judge granted Mr. Thistle’s motion and made a C order, allowing his action to continue.  This decision was overturned on appeal and the action was dismissed. “The application for leave to appeal…is dismissed with costs.”

Insurance: Territorial Limitation Provisions 

Wage v. Canadian Direct Insurance Incorporated2020 ABCA 49 (39124)
Leizle Wage was killed by a motorcycle while on vacation in the Philippines. She was a pedestrian. She and her husband had an S.P.F. No.1 standard automobile insurance policy with an SEF 44 Family Protection Endorsement. Canadian Direct Insurance Incorporated was the insurer. Section B of the policy governs accident benefits. At the time of death, their insured motor vehicle was parked in Edmonton. The General Provisions, Definitions and Exclusions section of the policy contains a territorial limitation provision. Mr. Wage and Ms. Wage’s Estate claimed under the automobile policy and Canadian Direct Insurance Corporation denied benefits. Mr. Wage and Ms. Wage’s Estate sued Canadian Direct Insurance. Canadian Direct Insurance applied for summary dismissal of the action. A Master dismissed the summary dismissal application. The Court of Queen’s Bench dismissed an appeal. The C.A. allowed an appeal and dismissed the action. “The application for leave to appeal…is dismissed with costs.”