Dismissed (9)

Charter: s. 15; Income Assistance 

Directer, St. Boniface/St. Vital v. Stadler2020 MBCA 46 (39269)
The Assistance Regulation, s. 12.1(2), made under The Manitoba Assistance Act required Applicants for income assistance “obtain the maximum amount of compensation, benefits or contribution to support and maintenance that may be available under another Act or program, including an Act of Canada or a program provided by the Government of Canada”. In practice, this meant Mr. Stadler, who had been unable to work due to health issues, was required to apply for benefits under the Canada Pension Plan once he turned 60. CPP benefits were reduced by a certain percentage for each month they are taken before the age of 65, so applying at age 60 would mean his pension would be permanently reduced by 36 percent. When he indicated the permanent reduction in those benefits meant he did not want to apply until he turned 65, he was informed his benefits would be discontinued unless he made the application. He did not make the application, and his benefits discontinued. Mr. Stadler appealed the discontinuance of his benefits to the Social Services Appeal Board, arguing the decision violated his rights as a person with a disability under s. 15 of the Charter. The Board initially found, based on Fernandes v. Manitoba (Director of Social Services (Winnipeg Central) (1992), 93 D.L.R. (4th) 402 (Man. C.A.), it did not have jurisdiction to consider his Charter arguments. That decision was appealed to the C.A., which overturned Fernandes and referred the matter back to the Board for reconsideration. Upon considering the Charter issue, the Board found no violation of s. 15 of the Charter and confirmed the discontinuation of Mr. Stadler’s benefits. The C.A. allowed Mr. Stadler’s appeal. “The application for leave to appeal…is dismissed with costs.”

Constitutional Law: Division of Powers 

Québec (Attorney General) v. Picard2020 CAF 74 (39210)
The Office of the Superintendent of Financial Institutions ruled the First Nations Public Security Pension Plan, which was originally registered under the federal pension benefits standards legislation, had to instead be subject to Québec legislation and therefore had to be transferred to the competent authority, Retraite Québec. The OSFI’s decision was based on Nishnawbe‑Aski Police Services Board v. Public Service Alliance of Canada, 2015 FCA 211, in which the Fed. C.A. held, applying the functional test to determine whether the regulation of labour relations was a matter for the federal government, that the Nishnawbe‑Aski police force’s labour relations fell under provincial jurisdiction. The court had reached that conclusion in Nishnawbe‑Aski because the essential nature and functions of the community’s police force involved the provision of services in the same way as other provincial and municipal police forces. The Respondent Sylvain Picard was the Plan’s administrator under the federal legislation, and the Respondent RBA Financial Group was its manager. They applied for judicial review of the OSFI’s decision in order to have the Plan remain under that body’s supervision. The Federal Court allowed the Respondents’ application for judicial review, concluding police officers and special constables hired and remunerated by band councils that are members of the Plan are employed in a work, undertaking or business that is within federal legislative authority, and the federal legislation therefore applied to the Plan. The Fed. C.A. dismissed the appeal of the Applicant, the Attorney General of Québec, who had joined the proceedings as an intervener in the Federal Court. The C.A. held the fact the employer of the police officers and special constables was a band council and not an independent entity sufficed to distinguish this case from Nishnawbe‑Aski and thus for it to conclude the federal government had legislative authority. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Dangerous Offenders 

Awasis v. R., 2020 BCCA 23 (39262)
Mr. Awasis, an Indigenous man, was convicted of sexual assault and sexual assault with a weapon. The Crown applied for a dangerous offender designation. The sentencing judge granted the application and ordered an indeterminate sentence. The C.A. dismissed a motion to adduce fresh evidence and an 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: Fraud; Circumstantial Evidence 

Bélanger v. R., 2020 QCCA 431 (39255)
The Applicant Ms. Bélanger was tried on charges of fraud and theft over $5K. The Court of Québec found the circumstantial evidence presented by the prosecution excluded any logical possibility other than Ms. Bélanger’s guilt. It convicted her of the fraud charges. The C.A. unanimously dismissed the appeal. In its view, the trial judge had not failed to consider relevant evidence favourable to Ms. Bélanger, and there was no reviewable error in the judge’s analysis of the circumstantial evidence. “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: Mr. Big 

Moir v. R., 2020 BCCA 116 (39230)
The body of a murdered 14‑year old girl was found in a shallow grave. The police mounted a Mr. Big undercover operation against Mr. Moir. They elicited confessions from Mr. Moir that revealed Mr. Moir’s knowledge of the murder and the crime scene. Mr. Moir testified he exaggerated his involvement to Mr. Big in order to stay in the fictitious criminal organization. He testified he was present when his father committed the murder and he only assisted in carrying the deceased to the grave, burying the body and disposing of her personal belongings. The trial judge applied R. v. Hart, 2014 SCC 52, and admitted the Mr. Big evidence. A jury convicted Mr. Moir of first degree murder. The C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Environmental Law: Assessments 

Wayfinder Corp. v. Alexis Armin2020 ABCA 188 (39265)
Wayfinder Corp. applied under section 44 of the Environmental Protection and Enhancement Act for a decision on whether its proposed “Big Molly” silica sand extraction project required an environmental impact assessment (EIA). The Director of Environmental Assessments, Alberta Environment and Parks, upon receiving advice from her staff, decided an EIA was not required, but provided no reasons for her decision. Alexis Armin is a member of the Alexis Nakota Sioux Nation, whose lands are near the proposed Big Molly project, and whose traditional activities may be adversely impacted. Mr. Armin sought judicial review of the Director’s decision. The Court of Queen’s Bench for Alberta dismissed the judicial review application on the basis the Director’s decision was reasonable. Mr. Armin appealed the decision to the C.A. for Alberta, a majority of whom found the Director’s decision was unreasonable, quashed her decision, and ordered an EIA be conducted. “The application for leave to appeal…is dismissed with costs to the respondent, Armin Alexis.”

Franchises: Notices of Rescission 

WORKS Gourmet Burger Bistro Inc. et al. v. 2352392 Ontario Inc., et al., 2020 ONCA 237 (39183) 
In the context of proceedings against their former counsel, the Respondents Mr. Shearer and 2352392 Ontario Inc. took the position their third party claim against the Applicant WORKS did not constitute a valid notice of rescission of a franchise agreement they had with WORKS. The issue was brought as a motion before the Ontario Superior Court of Justice, who concluded the third party claim did not count as a notice pursuant to the Arthur Wishart Act, as a notice under s. 6(3) of the Arthur Wishart Act served a different purpose from a pleading. The C.A. unanimously allowed the appeal. In its view, the purpose of the notice of rescission is not to serve a precondition to litigation, and in this case the pleading served as notice. “The application for leave to appeal…is dismissed with costs to the respondents, Vusumzi Msi and Vusumzi Msi Professional Corporation.”

Professions: Discipline 

Zuk v. Alberta Dental Association and College2020 ABCA 162 (39237)
Dr. Michael Yar Zuk was a dentist involved in disciplinary proceedings with the Alberta Dental Association & College. An appeal panel of the Dental Association upheld a hearing tribunal’s findings against Dr. Zuk with respect to 21 counts of unprofessional conduct under the Health Professions Act imposing both sanctions and costs. On further appeal to the C.A., 2 of the 21 counts were overturned. The C.A. directed the Dental Association reconsider both sanction and costs. The same appeal panel reduced Dr. Zuk’s period of suspension and also reduced the costs awarded against him. Dr. Zuk’s second appeal to the C.A. was dismissed. “The application for leave to appeal…is dismissed with costs to the respondent, Alberta Dental Association and College.”

Torts: Medmal 

Stirrett v. Strauss2020 ONCA 288  (39268)
David Stirrett died as a result of complications that arose during an angiogram he underwent as part of his participation in a clinical research trial.  His wife, the Applicant Karen Stirrett, sued the two doctors who performed the follow-up angiogram on her husband. She also sued the Respondent, Dr. Bradley Strauss, the medical researcher who headed up the clinical research trial at the hospital where the angiogram was performed. She brought claims both in negligence and for breach of fiduciary duty. The negligence claims proceeded to trial before a jury and were dismissed. The findings of the jury were not appealed. The trial judge dismissed the fiduciary claims against the other doctors but found Dr. Strauss had breached his fiduciary duty and granted judgment against him in the agreed amount of damages. At the C.A., the appeal was granted and the case against Dr. Strauss dismissed. “The application for leave to appeal…is dismissed.”