Granted (1)

Criminal Law: Compensatory Fines 

R. v. Vallières2020 QCCA 372 (39162)
The Respondent, Mr. Vallières, was convicted by a jury of offences relating to fraud, trafficking and theft of maple syrup. In sentencing, the Superior Court found it had no choice but to impose a compensatory fine because the stolen property could not be recovered. It also found the amount of the fine had to be equal to the value of the property the accused had had in his possession or under his control, which in this case led it to order the payment of a fine of $9,393,498. The C.A. unanimously allowed the appeal on this point. In its view, the amount of the compensatory fine set by the Superior Court seemed exorbitant and should be $1,000,000 instead (minus the amount of the restitution order, for a total of $171,397). “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 granted.”

Dismissed (12)

Civil Procedure: Seismic Data 

Geophysical Service Incorporated v. Falkland Oil and Gas Limited2020 ABCA 21 (39093)
Geophysical Service Incorporated (GSI) is a seismic data service company. On January 18, 2016, GSI sued Falkland Oil and Gas Limited (FOGL) and Rockhopper Exploration for improper use and disclosure of seismic data created by GSI near the Falkland Islands, in violation of the terms of licence agreements entered into between the parties in 2004 and 2005. GSI also claimed Rockhopper was liable to pay a licence fee to GSI when Rockhopper acquired 100% of FOGL’s shares in 2016. FOGL and Rockhopper applied for summary dismissal of GSI’s claim in its entirety, which was granted by a chambers judge. GSI’s appeal of that summary dismissal was dismissed. “The application for leave to appeal…is dismissed with costs.”

Class Actions in Québec: Pharmacy Fees 

Pharmacie Tania Kanou (Jean Coutu), et al. v. Turgeon (Côté’s succession)2020 QCCA 303 (39141)
Since June 2014, Bernard Côté purchased his prescription drugs from Pharmacie Carole Bessette et Francis Gince, Pharmaciens inc., one of the Applicants. He had been insured under a private medical insurance plan since 1996. In October 2016, he decided to file an application for authorization to institute a class action against a series of pharmacy businesses. In support of his application, he alleged he was unable to obtain disclosure of the amount of professional fees and costs charged by his pharmacist for filling medical prescriptions, which, he argued, was in violation of the Consumer Protection Act, the Civil Code of Québec and professional obligations. He argued this was a widespread practice among pharmacists despite the coming into force in September 2017 of an amendment to the Act respecting prescription drug insurance, CQLR, c. A‑29.01, which imposed an obligation to be transparent in invoicing. Mr. Côté also alleged the costs or fees for filling or renewing prescriptions charged by the pharmacists to consumers with private insurance were unreasonable, unfair and disproportionate in comparison with those charged to beneficiaries under the public prescription drug insurance plan for the same prescription or professional act. In addition, he alleged the professional fees charged by the pharmacists to those with private insurance were double or triple those charged to beneficiaries under the public prescription drug insurance plan when a prescription was renewed for two or three months. In support of his allegations, he filed a number of documents. The Respondent, Yvette Turgeon, is acting in continuance of suit for Bernard Côté in her capacity as liquidator of his succession. The Superior Court authorized the class action. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Contracts in Québec: Gifts or Synallagmatic Contracts 

St-Pierre v. Thibault2020 QCCA 425 (39173)
This Leave concerns a notarial act by which the Applicant bestowed $500K on the Respondent. The Superior Court dismissed the originating application to annul the juridical act that had been entered into or, in the alternative, to declare it was resiliated. The court found the parties in this case had agreed on a gift, not on a synallagmatic contract, and no condition was attached to the payment of the amount to the Respondent. It also found the application to annul the contract for fraud had to be dismissed because the Respondent had not misled the Applicant and the Applicant had made a free and informed decision. It further found if the Respondent had any obligations, they had been performed. The C.A. dismissed the Applicant’s appeal because he had failed to show the trial judge had erred in determining the contract should be characterized as a gift. It refused to interfere with the trial judge’s assessment of the fraudulent nature of the Respondent’s actions on the basis it was not its role to reassess the evidence. “The application for leave to appeal…is dismissed.”

Corporations: Market Value Share Assessment 

Bamrah v. Waterton Precious Metals Bid Corp., 2020 BCCA 122 (39188)
In a hostile takeover bid, Waterton Precious Metals Bid Corp. sought to takeover Chaparral Gold Corp. The hostile takeover bid failed. The Board of Directors of Chaparral Gold Corp. recommended the two companies negotiate a takeover. The two companies negotiated an Arrangement to propose to Chaparral Gold Corp.’s shareholders, pursuant to which Waterton Precious Metals Bid Corp. would acquire all outstanding Chaparral shares for $0.61 per share. A majority of Chaparral shares were voted and a majority of the voted shares favoured the Arrangement. The Arrangement received court approval. Mr. Bamrah, a minority shareholder who opposed the Arrangement, exercised his dissent rights under the British Columbia Business Corporations Act. He petitioned the B.C.S.C. and asked the court to determine the fair value of his shares was between $1.60 and $1.85 (USD). The court declared the fair market value of the shares was $0.61 per share. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs to the respondent.”

Criminal Law: Browne v. Dunn 

Ménard v. R., 2020 QCCA 281 (39151)
In the Québec Superior Court, a jury found the Applicant, Mr. Ménard, guilty of the first-degree murder of Tidiani Keita. The C.A. unanimously dismissed Mr. Ménard’s appeal. In its view, the trial judge had been right to conclude counsel for Mr. Ménard had chosen for tactical reasons not to confront Mr. Samson with Mr. Ménard’s statement it was instead Mr. Samson who had caused Mr. Keita’s death. The C.A., after considering Browne v. Dunn, held it would therefore be inappropriate to order a new trial for this reason. “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: Sentencing 

R. v. Conti2019 QCCA 2108 (39074)
The Respondent, Mr. Conti, committed a series of offences in 2014, and again in 2017. He pleaded guilty on 13 counts, as follows: seven for robbery, three for using an imitation firearm in committing robbery, two for theft under $5,000 and one for assault. The Court of Québec sentenced the Respondent to eight years’ imprisonment, having imposed several consecutive sentences on him. For the counts involving the use of an imitation firearm, the court imposed three consecutive mandatory minimum sentences of one year. The C.A. intervened to reduce the sentence of imprisonment to four years, holding the sentence was clearly excessive in the circumstances. The offences committed in 2014 and in 2017, respectively, should have been dealt with as forming part of a single criminal transaction requiring the imposition of concurrent sentences. As well, the three mandatory minimum sentences of one year for using an imitation firearm should instead have been concurrent. Even though using an imitation firearm in committing robbery requires mandatory minimum sentences, the general sentencing principles still apply. “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 without costs.”

Elections: Forfeiture of Office 

Karygiannis v. Toronto (City)2020 ONCA 411 (39261) 
Two complaints were made about the Applicant’s allocation of expenses in his financial statement of campaign income and expenses following his re‑election as a Councillor for the City of Toronto. A compliance audit was ordered, and the supplementary financial statement the Applicant filed revealed he had exceeded the allowable spending limit for expressions of appreciation during the 2018 election. Under s. 88.23(2) of the Act, automatic forfeiture of office is among the penalties for exceeding the spending limit. The City Clerk advised the Applicant;  he was removed from the office.  The Applicant applied for relief from forfeiture, claiming he had made a good faith error in categorizing his expenses. The Respondent, Adam Chaleff, was a Toronto voter who intervened in the proceedings. The Ontario Superior Court of Justice granted the Applicant relief from forfeiture. The C.A. allowed Mr. Chaleff’s appeal and set aside the lower court decision on the basis there is no jurisdiction to provide relief from forfeiture in these circumstances. The court declared the Applicant was subject to the penalties under s. 88.23(2) of the Act, including forfeiture of his office, but stayed its decision pending the determination of the application for leave to appeal to the S.C.C. “The respondent’s motion to expedite the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Employment Law: Dismissal; Releases 

Bank of Montréal v. Li2020 CAF 22 (39095)
Yanping (Kate) Li began working at the Bank of Montreal (BMO) in May 2011. On March 29, 2017, BMO terminated Ms. Li’s employment. On that same day, BMO provided Ms. Li with a package of documents which outlined information about two different severance options, one providing salary and benefits continuation, and the other providing a lump sum payment as well as other transition support services. On April 18, 2017, BMO confirmed by email Ms. Li opted for the lump sum payment and forwarded her an agreement and release for her signature which she signed. BMO then paid Ms. Li as per the agreement. On May 22, 2017, Ms. Li filed a complaint of unjust dismissal with the Minister of Labour under the Canada Labour Code, RSC 1985, c. L‑2, contrary to her release. An adjudicator was appointed to hear the complaint. As a preliminary matter, BMO raised the issue of the adjudicator’s jurisdiction given Ms. Li had already signed a release. On April 20, 2018, the adjudicator determined she had jurisdiction to hear the complaint. BMO sought judicial review of this decision at the Federal Court. The Federal Court, relying on National Bank of Canada v Canada (Minister of Labour), [1997] 3 FC 727, found the adjudicator’s preliminary decision to be reasonable and dismissed the judicial review. A subsequent appeal to the Fed. C.A. was also dismissed. “The application for leave to appeal…is dismissed with costs.”

Family Law: Non-Hague Convention 

Geliedan v. Rawdah2020 ONCA 339 (39221)
The father and mother married in London in the fall of 2012. The mother was a citizen of Lebanon and Canada. The father was a citizen of Saudi Arabia and the United Kingdom. Their daughter was born in London, England in 2013 and is a citizen of the United Kingdom and Canada. The parties separated shortly after their daughter’s birth and family court proceedings ensued in the U.K. The last custody and access order, issued on consent, on November 25, 2015 specified the child was to live with the mother, with parenting time with the father. The court further ordered the child was habitually resident in England and Wales and neither party could remove her from that jurisdiction without the written consent of the other party or further order of the court. The father moved to Dubai around the time of the consent custody order. On April 2, 2018, the mother travelled with the child to Dubai for a two‑week visit with the father. While there, the mother contended the father confiscated their passports so she and the child were unable to leave. The father maintained the parties mutually decided to raise their child in Dubai. The parties initially lived separate and apart under the same roof but eventually, the father moved into his own apartment. The mother stated she and the child were trapped in Dubai for almost 14 months. Eventually she was able to regain control of both passports and fled the country with the child on May 29, 2019. They flew to the Toronto area where the maternal grandmother and other family members live. The father denied the mother’s version of events. The father brought an ex parte motion in Toronto to have the matter of the child’s custody decided in Dubai. The application judge ordered the child be returned to Dubai and the matter of her custody be determined by the courts in that jurisdiction. The mother’s appeal was allowed.  The U.K. consent order clearly set out the child’s habitual residence was the U.K. and therefore, any determination of custody and access had to be made by the court issuing the original order. “The application for leave to appeal…is dismissed with costs.”

Patents: Pharmaceuticals; Profit Accounting 

Apotex Inc. v. ADIR2020 FCA 60 (39172)
The Respondent, ADIR, was the owner of the 196 Patent which claimed the drug perindopril, used primarily in the treatment of hypertension and cardiac insufficiency. The Respondent, Servier Canada Inc., was a corporate affiliate of ADIR (collectively, “Servier”) and exploited the 196 Patent in Canada. The Applicant, Apotex Pharmachem Inc. manufactured and supplied drugs in Canada. In or around 2006, it began manufacturing a generic version of perindopril in tablet form in Canada that were sold to Apotex Inc., which sold the tablets in Canada and abroad (collectively “Apotex”). In 2006, Servier successfully prosecuted an action against Apotex for infringement of its 196 Patent. This judgment allowed Servier to claim either an accounting of Apotex’s profits or damages. Servier elected an accounting of the profits. The trial took place where the court was required to determine what proportion of the profits earned by Apotex from its sales of perindopril-containing products to Apotex’s affiliates in Australia and the United Kingdom during the period of infringement were attributable to its infringing activities. Apotex raised as a defence the availability of non‑infringing perindopril from a number of sources outside of Canada, which would have had the effect of reducing the profits it would have been required to disgorge to the Respondents. After the first trial and appeal, the matter was remanded to the Federal Court to consider the non‑infringing alternative defence with respect to three alleged suppliers. The Federal Court determined Apotex had not established one component of the defence and it therefore could not reduce the quantum of profits it was required to disgorge. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Tax: Assessments 

Colitto v. Canada2020 FCA 70 (39190)
Ms. Colitto’s husband was a director and shareholder of Core Precision Technologies Ltd., which in 2008, failed to remit source deductions to the Minister of National Revenue. In 2008, Mr. Colitto transferred 50% of his interests in each of two properties to Ms. Colitto. She paid two dollars for each transfer and received interests with fair market values of $41,250 and $187,500. A notice of assessment to Core Precision Technologies Ltd. was issued. Its tax debt was registered in court, executed, and returned unsatisfied. In 2011, the Minister issued notices of assessment to Mr. Colitto for the amount of Core Precision Technologies Ltd.’s tax debt. In 2016, pursuant to s. 160 of the Income Tax Act, the Minister issued notices of assessment to Ms. Colitto for $187,498 and $41,248, assessed as the fair market values of the benefits received. She filed notices of objection and then appealed to the Tax Court of Canada. The Tax Court of Canada allowed the appeal and set aside the assessments. The Fed. C.A. allowed an appeal. “The application for leave to appeal…is dismissed with costs.

Torts: Defamation 

Senft v. Vigneau2020 YKCA 8 (39176)
The Respondents, Ms. Vigneau and Ms. Herrmann (“publishers”) published to third parties’ words the Applicants claimed were defamatory of them. The publications were on GoFundMe and Facebook and were delivered to the households of Dawson City. The publications reflected the publishers’ understanding of allegations made by an elderly resident about the Applicants’ property interest in her residence, but were subsequently found in part to be erroneous. The publications were made for the purpose of raising money to help the elderly resident in her legal battle to recover title to her home. The publishers pleaded the defence of fair comment and the Applicants replied the publishers had acted with malice. The civil jury hearing the action found the publishers had made the defamatory comments and they were actuated by malice when they published the comments. The C.A. allowed the publishers’ appeal, ordered a new trial, holding a determination of whether the evidence adduced at trial raised a probability of malice should have been made before the jury was instructed on the question of malice. “The application for leave to appeal…is dismissed with costs to the respondents.”