Dismissed (8)

Bankruptcy & Insolvency: Role of Monitors 

Teliphone Corp. v. Ernst & Young Inc., 2019 BCCA 473 (39082)
Ernst & Young Inc. was the court appointed Monitor in proceedings brought pursuant to the Companies’ Creditors Arrangement Act. It asserted in furtherance of its obligations as Monitor it had jurisdiction to sell certain assets of companies within what is known as the TNW Group. Some of the companies within the TNW Group disputed their assets are available for sale by the Monitor. Following an order from the B.C.S.C. several of the companies within the TNW Group delivered what they described as proofs of claim to the Monitor. They were rejected. The rejection was appealed back to the B.C.S.C. which upheld the Monitor’s decision. The B.C.C.A. granted leave to appeal on the question of the appropriate standard of review that ought to have been applied. The appeal was allowed and the matter remitted to the B.C.S.C.  with directions from the B.C.C.A. on the appropriate standard of review. The B.C.S.C. again upheld the Monitor’s decision using the new standard of review and the subsequent appeal to the B.C.C.A. was dismissed. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Default Judgments; Motions to Dismiss 

Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited2020 ONCA 93 (39263)
The Respondent Birchland brought a claim against the Applicants, Activa and MLS, and obtained default judgment. Activa and MLS alleged service of the original claim never occurred, and moved to set aside the default judgment. The motion was dismissed. Activa and MLS then attempted, unsuccessfully, to appeal the dismissal of the motion, and to bring a new motion.  Activa and MLS and their principals then brought a new claim against Birchland, as well as against Birchland’s law firm and lawyer, and against the process server from the original claim. Activa and MLS alleged fraud had occurred with respect to the service of the original claim, and claimed $15M in damages arising from the default judgment. Birchland and the other Respondents moved to strike the action under Rule 2.1.01 of the Ontario Rules of Civil Procedure.  The motion judge granted Birchland’s motion, and dismissed Activa’s and MLS’ new proposed claim pursuant to Rule 2.1.01, finding it to be frivolous, vexatious and an abuse of the process of the court. The C.A. dismissed an appeal by Activa and MLS and their principals, finding no error in the motion judge’s analysis and in his decision to dismiss the claim. “The application for leave to appeal…is dismissed without costs.”

Civil Procedure: Time Extensions 

Rooke v. Canada (Health), 2019 FCA (39253)
A Canada Pension Plan /Employment Insurance officer ruled amounts received by Mr. Rooke as a teaching assistant were insurable and pensionable employment earnings. The Minister of National Revenue upheld the ruling and the Tax Court of Canada dismissed an appeal.  In separate proceedings, a Prothonotary of the Fed. Court dismissed a motion for various relief including certification of an action as a class proceeding. A judge of the Fed. Court dismissed an application for an extension of time to appeal and an appeal from the Prothonotary’s decision. The Fed. C.A. dismissed an application for extensions of time to appeal in these proceedings. “The application for leave to appeal…is dismissed without costs.”

Class Actions: Pesticides; Workable Methodology 

Downton v. Organigram Holdings Inc., 2020 NSCA 38 (39234)
Organigram Inc. produced medical marihuana. Organigram Inc. and Health Canada recalled some of Organigram Inc.’s marihuana after Organigram Inc. discovered and reported some of its marihuana contained trace amounts of three pesticides. Ms. Downton commenced an action claiming she consumed Organigram Inc.’s marihuana containing pesticides and suffered nausea and headaches. She applied to certify the action as a class proceeding. Another proposed member of the class alleged Organigram Inc.’s marihuana caused her to suffer severe nausea, gastrointestinal issues, breathing difficulty and headaches. The proposed class claims include claims seeking damages for personal injury. Expert opinion divided on whether there is a workable methodology to determine issues class‑wide. The motions judge certified the action as a class proceeding. The C.A. allowed an appeal in part, setting aside and deleting parts of the certification order. “The application for leave to appeal…is dismissed with costs.”

Competition: Conspiracy 

Casmatec Canada Inc. v. Bradken Canada Manufactured Products Ltd., 2020 QCCA 174 (39143)
The Applicants brought an action against the Respondents in which they claimed more than $12M in damages. They alleged the Respondents had conspired to exclude them from the market for products for foundries, thereby engaging in wrongful marketing practices and unfair competition. The Superior Court dismissed their action, concluding there was no evidence of a connection between a fault committed by the Respondents and damage suffered by the Applicants. It held the action constituted abuse of procedure and ordered the Applicants to reimburse the reasonable extrajudicial fees incurred by the Respondents. The C.A. dismissed the Applicants’ appeal, upholding the trial judge’s conclusion there was no evidence of a causal connection between the alleged offences under the Competition Act and the alleged losses. It also concluded the appeal was abusive and ordered the Applicants to reimburse the Respondents’ extrajudicial fees. “The application for leave to appeal…is dismissed with costs in favour of the respondents Bradken Canada Manufactured Products Ltd, Dennis Slater and Johanne Pronovost.”

Contracts in Québec: Obligation to Cooperate 

Attorney General of Quebec v. Constructions Concreate ltée.2020 QCCA 570 (39206)
The Respondent, Constructions Concreate, failed to meet contractual deadlines for the performance of work for the Ministère des Transports du Québec, and the latter imposed penalties totalling $430K. Constructions Concreate maintained the Ministère des Transports du Québec was partly responsible for its failure to meet the deadlines, and it asked in the Superior Court the Ministère pay it $280K corresponding to a partial annulment of the penalties and $134,970 for damage resulting from wrongful conduct on the Ministère’s part for breach of an obligation to cooperate.  The Superior Court dismissed Constructions Concreate’s action. The court found Constructions Concreate had made mistakes in performing the work, and rejected Constructions Concreate’s claims the Ministère des Transports du Québec was responsible for delays related to the Ministère’s refusal to close lanes at the worksite to protect the workers. The C.A. unanimously allowed Constructions Concreate’s appeal in part and ordered A.G. Qué. to pay Constructions Concreate $220K. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Robbery; B & E; Forcible Confinement 

Haddad v. R., 2020 QCCA 793 (39248)
The Applicant, Mr. Haddad, was charged with being a party, as an accessory to a break and enter, robbery of two persons, and forcible confinement, imprisonment or seizure of two persons. The Court of Québec found a reasonable doubt had not been raised and certain amendments made to the counts were appropriate. Mr. Haddad was found guilty on all the counts. The C.A. unanimously dismissed the appeal. It concluded there were no errors in the trial judge’s assessment of the evidence, and his analysis had been meticulous, methodical and consistent with the applicable law. “The application for leave to appeal…is dismissed.”

Real Property: Joint Venture Agreements; Personal Liability 

Friesen v. 698828 Alberta Ltd., 2020 ABCA 154 (39216)
In 2004, 698828 Alberta Ltd. entered into a joint venture agreement with Elite Homes (1998), a subsidiary of Unity Builders Group, for development of residential homes in the Taralake district of Calgary, Alberta. The agreement entitled 698828 to profit sharing of the development. After an initial delay, 11 homes sold in 2006 and 698828 received a share of the proceeds from those sales. Although further sales occurred, 698828 received no payments from those transactions. Unbeknownst to 698828, Elite Homes (1998) Inc. was dissolved on April 2, 2007. On October 23, 2009, a letter was sent to 698828 from Unity Builders Group acknowledging a debt owing in the amount of $3,217,597. In 2012, the Unity Builders Group of companies went into creditor protection under the Companies’ Creditors Arrangement Act. 698828 filed an action on July 27, 2010, alleging amongst other things Robert Friesen, sole owner of Elite Homes (1998) and controlling shareholder of Unity Builders Group, was personally liable for inducing breach of contract, breach of fiduciary obligations, and oppressive conduct. The Court of Queen’s Bench found Mr. Friesen’s actions were oppressive but recovery was barred by a statute of limitations. The C.A., with one judge writing concurring reasons in the result, concluded the limitation period had not expired and Mr. Friesen was personally liable. “The application for leave to appeal…is dismissed with costs.”