Granted (2)
 

Civil Procedure: Limitation Periods; Discoverability 

Grant Thornton v. Province of New Brunswick2020 NBCA 18 (39182)
The Province of New Brunswick (NB) commenced an action in negligence against Grant Thornton LLP, one of its partners, and Grant Thornton International Ltd. (“Grant Thornton”) re an audit of the financial statements of some corporations (“Atcon”) for the fiscal year ending January 31, 2009 (“F2009”). By the action, NB sought to recover damages corresponding to $50M it was required to pay, in March 2010, by virtue of loan guarantees provided to Atcon’s bank after Atcon’s bank successfully applied for a receivership order under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3  and for relief under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36 . NB claims it relied on Grant Thornton’s unqualified auditor’s report in agreeing to execute the loan guarantees. After paying the $50M, NB retained a different auditing firm to review and comment on Atcon’s F2009 financial position. In February 2011, that auditing firm provided NB with a draft report expressing the opinion that Atcon’s financial statements for F2009 had not been prepared in accordance with generally accepted accounting principles and that they overstated Atcon’s assets and net earnings. NB commenced its action on June 23, 2014. Grant Thornton sought summary judgment on the basis that NB’s claim was time‑barred. The motions judge allowed Grant Thornton’s motion, finding NB discovered its claim more than two years before commencing the proceedings. The C.A. allowed NB’s appeal, holding that the applicable test was more exacting than the one applied by the motions judge, so that the two‑year limitation period did not begin to run until a claimant discovered they have a claim, rather than discovering they have a potential claim. “The applications for leave to appeal…are granted with costs in the cause.”

Insurance: Releases 

City of Corner Brook v. Bailey2020 NLCA 3 (39122)
The Respondent, Ms. Bailey, struck a city employee with her husband’s motor vehicle when the employee was performing road work. The employee commenced an action against her (“employee action”). She referred the matter to her insurer. Ms. Bailey and her husband then commenced a separate action against the Applicant, the City of Corner Brook (“City”) for alleged property damage and physical injury arising from the accident. The Baileys settled their claim with the City; they executed a release through their respective legal representatives and discontinued their action. Four years later, in the course of the employee action, counsel for Ms. Bailey’s automobile insurers filed a defence and issued a third party notice to the City claiming the City was liable to the employee. The City took the position the release precluded such a claim. The trial judge granted the City’s application for summary trial. The C.A. allowed Ms. Bailey’s appeal, interpreting the release as releasing only the claims in the action the Baileys had commenced against the City and not applying to a claim to recover damages of a third party. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed (6)

Civil Procedure: Disclosure; Defamation; Anti-SLAPP Legislation 

A.B. v. S.G., 2020 BCCA 106 (39203)
There is a publication ban in this case, as well as a sealing order. The Court file contains information not available for inspection by the public, in the context of disclosure re a defamation and anti-SLAPP case. “The application for leave to appeal…is dismissed without costs.”

Corporations: Appraisal Remedy; Share Value 

Carlock v. ExxonMobil Canada Holdings ULC2020 YKCA 4 (39125)
Exxon, the Respondent, made an offer to InterOil for a whole company transaction, which led to an arrangement agreement. Exxon agreed to purchase the shares of InterOil. The Applicants Mr. Carlock et al dissented, as shareholders of InterOil. They applied to the Supreme Court of Yukon to have the court set the fair value of their shares in InterOil. The Supreme Court of Yukon found the transaction price for the shares was established in a flawed corporate governance process. It concluded the dissenting shareholders were entitled to be paid $71.46 USD for each InterOil share. The C.A. allowed the appeal. In its view, the transaction price was the fair value for Mr. Carlock et al’s shares. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Homicide 

G. v. R., 2019 BCCA 193 (39159)
There is a publication ban in this case, in the context of first degree murder. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Search & Seizure 

Roy v. R., 2020 ONCA 18 (39127)
Police surveilled Mr. Roy’s rural residential property from a neighbouring farm field onto which they trespassed and from a ditch across the road from the front of the property. Twice, they heard gunshots. Once, they saw Mr. Roy holding a rifle. Once, they saw a woman firing a rifle. The police obtained a warrant to search the house for weapons. During the search, they observed marijuana plants and psilocybin mushrooms in the residence. They suspended the search to obtain an additional warrant. They seized firearms, psilocybin mushrooms and marijuana plants. The trial judge dismissed an application to exclude the evidence for breach of s. 8 and convicted Mr. Roy of firearms and narcotics offences. Mr. Roy appealed. The C.A. dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault; Capacity to Consent 

Capewell v. R., 2020 BCCA 82 (39161)
The Applicant and the complainant had not seen each other in over 20 years. Then, the Applicant started communicating with the complainant by telephone, email and text messaging. They arranged to meet. They went on some dates. On the last date, the trial judge found the Applicant deliberately administered Ativan to the complainant in her tea without her knowledge. The complainant testified at the time she felt drugged, there had been no discussion with the Applicant of having sexual contact, and she did not want to have sexual contact with him. As well, she testified the Applicant had not asked if she wanted to have sexual contact with him, and she could recall no sexual contact with him. The trial judge made the following findings: there were sexual relations between the complainant and the Applicant; and, the Applicant deliberately administered Ativan to the complainant without her knowledge. The trial judge held as a result of being intoxicated and drugged with Ativan, the complainant did not have the capacity to consent to sexual activity, was not able to understand the risks and consequences associated with that particular activity, and was not able to decline to participate in that activity. The Applicant was convicted of sexual assault, and of administering a stupefying or overpowering drug to enable him to sexually assault the complainant. The C.A. dismissed the conviction appeal. “The application for leave to appeal…is dismissed.”

Family Law in Québec: Parental Authority 

P.T. v. S.M., 2019 QCCA 2193 (39136)
There is a publication ban in this case, and a publication ban on the party. The Court file contains information not available for inspection by the public, in the context of litigation re school registration for a child, the child’s name, joint custody. “The application for leave to appeal…is dismissed with costs.”