Charter: Law Schools; s. 15 

Yashcheshen v. University of Saskatchewan2019 SKCA 67 (39259)
The Applicant sought admission to law school but requested her application be considered without an LSAT score in order to accommodate disabilities that, in her view, prevented her from having a fair opportunity to write the LSAT. The law school would not consider her application without an LSAT score. She argued the University’s admissions policy violated the equality rights guaranteed by s. 15 of the Charter.  The chambers judge dismissed the application. 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 with costs.”

Civil Procedure in Québec: Consent to Care 

G.L. v. Centre intégré universitaire de santé et de services sociaux de l’Estrie — Centre hospitalier universitaire de Sherbrooke2019 QCCA 2072 (39279)
There is a publication ban on the party, and the court file contains information not available for inspection by the public, in the context of a declaration re capacity to consent to care. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. The application for leave to appeal…is dismissed.”

Civil Procedure in Québec: Escrow; Sealing of Files 

Éric Chatelain, et al. c. Agence du revenu du Québec, et al., 2020 QCCA (39257)
Sealing order in this case, re escrow orders and confidentiality of files and computer media. “The application for leave to appeal…is dismissed.”

Civil Procedure: Motions to Dismiss 

Narwhal International Limited v. O.M.V. Investments Limited, et al., 2020 ONCA 268 (39311)
Narwhal International Limited was a commercial tenant in a property that had once been owned by O.M.V. Investments Limited. It commenced an action against O.M.V., its principals, and Autotrax Tire & Lube Inc. (another tenant in the property) and its principals for breach of contract and various torts in connection with the business.  O.M.V. and its principals brought a motion for partial summary judgment or, in the alternative, to strike the action for being an abuse of process. After O.M.V.’s motion record was served, Mr. Tcherny attempted to consolidate the three actions.  The motions judge dismissed the action as an abuse of process; the C.A. dismissed the appeal. “The motion of Gennady Tcherny to represent Narwhal International Limited is dismissed. In any event, had the motion to represent been granted, the application for leave to appeal…would have been dismissed.”

Civil Procedure: Motions to Dismiss 

Willmot v. Ontario2019 ONCA 63 (39284)
Ms. Willmot’s action against Her Majesty the Queen in Right of Ontario, the Law Society of Ontario and the City of Quinte West was dismissed under rule 2.1.01 of the Rules of Civil Procedure. Her subsequent appeal was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The miscellaneous motions are dismissed. The application for leave to appeal…is dismissed.”

Civil Procedure: Time Limits to Appeal 

Sumner v. Kochis, et al., 2019 ONCA (39276)
In 2017, the Law Society Tribunal disbarred Mr. Sumner for engaging in conduct unbecoming a licensee. Mr. Sumner did not file an application for judicial review. Rather, he issued a statement of claim, alleging extortion, corruption, illegality against the Law Society Tribunal, Ms. Murchie and Mr. Mercer and seeking $500M in damages and costs. That action was summarily dismissed in August 2017 pursuant to Rule 2.1.01 of the Rules of Civil Procedure on the grounds it was frivolous and vexatious. Approximately one year later, Mr. Sumner brought a motion before the C.A. for an extension of time to file his leave to appeal application and notice of motion to appeal. The motion was not set down for hearing until May, 2019. Mr. Sumner’s motion for an extension of time was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for directions is dismissed. The application for leave to appeal…is dismissed with costs to the respondents, Malcolm Mercer and Barbara Murchie.”

Class Actions: Economic Loss 

Syngenta Canada Inc. v. Darmar Farms Inc2019 ONCA 789 (38915)
The Applicants sold types of corn seed (“Agrisure”) to North American corn growers which contain a genetically modified trait known as MIR 162. Although Agrisure has been approved by Canadian and American regulators, it was not approved in China until late 2014. The Respondent was an Ontario corn grower who has neither purchased nor planted Agrisure. It alleged since the North American corn industry is interconnected and interdependent, the traits of genetically modified seeds inevitably co‑mingle with other corn, rendering corn growers like itself vulnerable. When China rejected shipments of North American corn containing Agrisure, it caused a glut in the domestic corn supply and a drop in prices. The Respondent commenced a proposed class action against the Applicants, claiming negligence and breaches of the Competition Act and seeking damages for economic loss.  The Respondent claimed the Applicants were negligent in breaching their duties: a) undertaking not to commercialize Agrisure in North American prior to obtaining import approval from China; b) to prevent co‑mingling of the corn of Agrisure farmers and others; and c) not to mislead about the timing and substance of its application for import approval in China and its ability to prevent co‑mingling. The Ontario Superior Court of Justice granted the Applicants’ motion for an order to strike the claims without leave to amend, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure and dismissed the Respondent’s action. The C.A. allowed the appeal in part. It reaffirmed the motion judge’s dismissal of the claims of negligent misrepresentation and breach of the Competition Act, but held the Respondent’s claim for negligence in prematurely commercializing Agrisure should be allowed to proceed. “The application for leave to appeal…is dismissed with costs.”

Class Actions in Québec: Pensions; Oppression Remedy 

MC Commercial Inc. v. Collerette2020 QCCA 305 (39148)
In 2011, following a reorganization, the Applicant MC Commercial inc., which had just been established, acquired certain assets related to the commercial activities of Mabe Canada Inc., a manufacturer and distributor of household appliances. The two companies’ employees were divided up based on their membership in the various pension plans in place. In 2014, Mabe Canada made an assignment of its property, thereby depriving the employees of amounts owed under the pension plan and other benefits provided for in the collective agreements. In 2017, the Respondent, Lise Collerette, filed an application for authorization to institute a class action and to be designated representative plaintiff for the members of a class made up of former employees of Mabe Canada and MC Commercial inc. who were members of a pension plan. She sought to hold MC Commercial, the Applicants Luis Berrondo and Andrea Lombardo Behrens, in her capacity as liquidator of the succession of Francisco Berrondo, and the intervener James R. Fleck civilly liable for oppression as a result of the commercial reorganization in 2011. She also sought recognition the members of the proposed class were creditors entitled to an oppression remedy under ss. 238 and 241 of the Canada Business Corporations Act.  Francisco Berrondo (now deceased) and Mr. Fleck were directors and officers of MC Commercial. The Superior Court dismissed the Applicants’ declinatory exception based on lack of subject matter jurisdiction, and the C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs to the respondent.”

Constitutional Law: Frogs – Federal or Provincial Jurisdiction 

Le Groupe Maison Candiac Inc. v. Canada (Attorney General)2020 CAF 88 (39272)
The Applicant was a real estate promoter and builder. With a view to the residential development of its lands, it obtained an authorization certificate from Québec’s Ministère de l’Environnement that required it to create conservation zones on its property and to establish a monitoring program. On the recommendation of the federal Department of the Environment, and under the enabling provision of the Species at Risk Act the Governor in Council made an emergency order for the protection of the Western Chorus Frog, a species at risk that was present on the Applicant’s lands, in order to prohibit activities that might destroy its habitat. The Federal Court dismissed the Applicant’s application for judicial review, finding the legislative provision was not ultra vires Parliament and the emergency order was not a form of expropriation without compensation. The Fed. C.A. dismissed the Applicant’s appeal, holding the trial judge had not erred in finding the provision was within Parliament’s criminal law power and the absence of compensation did not make the emergency order invalid. “The application for leave to appeal…is dismissed with costs to the respondent, Attorney General of Canada.”

Creditors’ Remedies: Garnishment 

Guo v. DJ Titanic Services Ltd., et al., 2019 BCCA (39298)
In separate actions, DJ Titanic Services Ltd. (“Titanic”) and Mr. Guo advanced claims against Mr. Bahia for fraud. Titanic was in the business of purchasing and reselling motor vehicles. In January 2019, it entered into an agency agreement with Mr. Bahia whereby Mr. Bahia would purchase an automobile on behalf of Titanic from OpenRoad Auto. Titanic provided a bank draft from Toronto‑Dominion Bank in the stipulated amount of $118K. Mr. Bahia provided OpenRoad Auto with the bank draft then shortly thereafter advised OpenRoad Auto he had inadvertently used the wrong account. He convinced OpenRoad Auto to refund the money to him on the understanding he would replace the funds. When Titanic did not receive the vehicle Mr. Bahia was supposed to purchase, it contacted OpenRoad Auto.  OpenRoad Auto managed to put a stop payment on the refund cheque it had issued to Mr. Bahia. Toronto‑Dominion Bank returned the funds to OpenRoad Auto. In March 2019, Mr. Guo commenced a different action against Mr. Bahia, claiming Mr. Bahia had also defrauded him in the amount of $189K. Mr. Guo obtained garnishing orders against Mr. Bahia and against OpenRoad Auto in that action. OpenRoad Auto had in its possession, the money it had received from Titanic. As it was aware both Titanic and Mr. Guo were asserting an interest in that money, it obtained an order to pay that money into court. Titanic subsequently sought an order for payment out that Mr. Guo opposed. He argued his garnishing orders should take precedence. The motion judge held the funds should be paid out to Titanic. This decision was upheld on 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 with costs to the respondent, DJ Titanic Services Ltd.”

Criminal Law: Child Porn; Luring 

R.M. v. R., 2020 ONCA 343 (39314)
There is a publication ban in this case, in the context of child porn and luring. “The application for leave to appeal…is dismissed.”

Defamation: Limitation Periods 

Ayangma v. The Saltwire Network Inc., 2020 PECA 1 (39296)
On May 16 and 17, 2016, the Guardian newspaper, now the property of Saltwire Network Inc., published an article and an opinion piece written by its employee Ms. McKenna. It also posted the article and opinion piece on its website with hyperlinks linking them to one another. On October 30, 2017, Mr. Ayangma commenced an action claiming defamation, pursuant to the Defamation Act. He later amended the claim to include negligence. Saltwire Network Inc., Ms. McKenna and Mr. Ross filed a statement of defence that in part pleads the 6‑month limitation period in s. 15 of the Defamation Act bars the action. Saltwire Network Inc., Ms. McKenna and Mr. Ross brought a motion for summary judgment. The motion judge held the statement of claim is statute barred because it was outside the limitation period and dismissed the action. Mr. Ayangma appealed. Before the C.A., Mr. Ayangma provided a document which he described as an aid to his oral argument. Counsel for Saltwire Network Inc., Ms. McKenna and Mr. Ross argued it included a new alleged defamatory statement. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Elections: Crown Vicarious Liability 

Anglin v. Resler2020 ABCA 184 (39271)
The Applicant, Mr. Anglin, unsuccessfully ran for re-election in a Alberta provincial election. He sued the Chief Electoral Officer, alleging he exercised his powers for an improper or ulterior motive knowing it was likely to harm Mr. Anglin’s chances for re‑election. In the same action, Mr. Anglin sought to recover from Alberta, pursuant to the Proceedings Against the Crown Act which makes Alberta liable for the tortious actions of its officers, employees or agents. A Master struck Mr. Anglin’s action. A chambers judge and the C.A. dismissed Mr. Anglin’s appeals from that decision. The C.A. held the Crown is not vicariously liable for torts alleged to have been committed by the Chief Electoral Officer, who is an officer of the Legislature, and not an officer, employee or agent of the Crown. A dissenting judge would have allowed the appeal, on the basis the Proceedings Against the Crown Act is intended to apply to the entire apparatus of government, not just to the executive branch. “The application for leave to appeal…is dismissed with costs to the respondent, Her Majesty the Queen in Right of Alberta.”

Insurance: Underinsured Coverage; Subrogation 

Tuffnail v. State Farm Mutual Automobile Insurance Company, et al., 2020 ONCA 340 (39304)
In 2009, Gregory Tuffnail was seriously injured in a single‑vehicle crash. He and the driver of the vehicle had been served alcohol by Mr. Coulthard at a hosted event. Mr. Tuffnail and his family commenced an action against the driver and the host claiming the collision and resulting injuries were caused by the negligence of the driver and the host, and by the host’s breach of the relevant liquor licensing provisions. The Tuffnails did not sue Mr. Coulthard. The Tuffnails also sought a declaration they were entitled to coverage under standard form underinsured motorist coverage Mr. Tuffnail had purchased from State Farm (“OPCF 44R”). State Farm defended and brought a third party claim against Mr. Coulthard for contribution and indemnity in respect of the amounts it was required to pay under OPCF 44R. The host also brought a third party claim against Mr. Coulthard. They argued Mr. Coulthard’s negligence, his breach of the Liquor Licence Act, or both, caused or contributed to the accident.  A jury apportioned responsibility for the accident as follows: the driver, 65%; the host, 20.03%; Mr. Coulthard, 11.12%; Mr. Tuffnail 3.85%, and awarded the Tuffnails damages in the amount of $3.565 million. The net amount owing to the Tuffnails, after Mr. Tuffnail’s contribution was subtracted, was $3,435,034.71. The available insurance coverage fell short, but, inter alia, State Farm argued Mr. Coulthard’s insurance coverage was “available” to the Tuffnails. As a result, even though the Tuffnails did not sue Mr. Coulthard and did not recover under his insurance policy, the amount that would have been available from his insurance should be deducted from State Farm’s liability to the Tuffnails under OPCF 44R. After trial, the Tuffnails entered into a settlement with Mr. Bolton. He would pay certain amounts and assign his claim against Mr. Coulthard to the Tuffnails in exchange for a release. The Tuffnails sought a determination Mr. Coulthard was jointly and severally liable to the Tuffnails for their full damages, and that Mr. Bolton could recover a proportionate share of those damages as contribution and indemnity.  The trial judge found the State Farm coverage applied to the amounts in excess of the insurance proceeds from the driver’s and the host’s policies, but that Mr. Coulthard’s insurance was not “available” to the Tuffnails within the meaning of s. 7 of OPCF 44R. The C.A. held State Farm’s claim against Mr. Coulthard was actually a subrogated claim made on behalf of the Tuffnails, so OPCF 44R allowed State Farm to his insurance coverage. “The application for leave to appeal…is dismissed with costs to the respondent, State Farm Mutual Automobile Insurance Company.”

Municipal Law: Zoning 

Doyle v. Municipality of Northern Bruce Peninsula2018 ONCA 895 (39357)
Mr. Doyle was charged with committing the offence of constructing an accessory building without a principal building, structure or use having first been completed contrary to ss. 6.3.7 and 4.3.1 of the Comprehensive Zoning By‑law of the Municipality of the Northern Bruce Peninsula.  He was also charged with constructing a building without a building permit contrary to s. 8(1) of the Building Code Act. He was convicted on both counts at trial. On appeal, the conviction entered on the second count was set aside and an acquittal entered. On further appeal, the convictions and sentences imposed on both counts were reinstated. “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 with costs.”

Pharmaceuticals: Ex Turpi Causa Defence 

Pfizer Canada SRI v. Pharmascience Inc.2020 FCA 55 (39150)
Since 2004, Pfizer Canada ULC has held a patent for pregabalin, sold under the brand name “Lyrica.” Pharmascience Inc. received a Notice of Compliance in 2013 allowing it to market a generic version of pregabalin. Pharmascience had originally attempted to enter the pregabalin market in 2011 but was prevented from doing so when Pfizer unsuccessfully sought an order under the Patented Medicines (Notice of Compliance) Regulations, SOR/98‑166, prohibiting the Minister of Health from issuing a Notice of Compliance to Pharmascience. Pharmascience then commenced an action under s. 8 of the Regulations for damages against Pfizer for the sales it allegedly lost during the period of time when it was kept off the market. In response, Pfizer alleged Pharmascience was disentitled to damages because the hypothetical sales of PMS‑pregabalin would have infringed Pfizer’s patent. Pfizer alleged any damages Pharmascience incurred should therefore be reduced or eliminated under s. 8(5) of the Regulations. Pharmascience brought a motion for a summary trial on the question of whether Pfizer’s defence of ex turpi causa by reason of infringement was relevant to the assessment of damages. The motion judge granted Pharmascience’s motion for a summary trial, holding the ex turpi causa defence was not viable. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Real Property in Québec: Foreclosure 

Caruana v. Terrana2020 QCCA 677 (39302)
In 2004, the Applicant, Vincenzo Caruana, and the Respondent Calogera Terrana entered into a prête‑nom agreement for the purposes of a transaction relating to the sale of a building. In the transaction, Ms. Terrana was the official purchaser and Mr. Caruana was responsible for making all the payments related to the charges on the property and for repaying the loan taken out by Ms. Terrana to purchase the property. In 2006, Ms. Terrana terminated the prête‑nom agreement and sold the building to the Respondent Marc Papia, her son. Mr. Papia and Mr. Caruana then became equal undivided co‑owners of the building. Ms. Terrana accepted the balance of the selling price secured by a first hypothec. That balance was payable through monthly instalments in accordance with the terms set out in the loan instrument previously entered into by Ms. Terrana and her financial institution. In 2015, Ms. Terrana notified Mr. Caruana of a prior notice of the exercise of a hypothecary remedy. Mr. Caruana and Mr. Papia had apparently repaid almost nothing to Ms. Terrana, who had also paid much of the municipal and school taxes and the home insurance costs. Once the 60‑day period granted to Mr. Caruana to remedy the default had passed, Ms. Terrana brought a hypothecary action in order to take the building in payment. At the same time, she waived recovery of her debt against Mr. Papia. In response, Mr. Caruana brought a cross‑application seeking reimbursement for various disbursements as well as damages. The Superior Court dismissed both the principal application for taking in payment and the cross‑application. The C.A. allowed Ms. Terrana’s appeal. “The application for leave to appeal…is dismissed with costs to the respondent, Calogera Terrana.”

Securities: Insider Trading 

Donaldson, et al. v. Autorité des marchés financierset al., 2020 QCCA 401 (39158)
In 2010, the Québec Autorité des marchés financiers (“AMF”) began an investigation into the granting of stock options to the Applicants, members of the board of directors of Nstein Technologies inc. In 2014, the AMF brought a proceeding to impose administrative penalties on the Applicants. In 2016, the administrative tribunal found the Applicants guilty of insider trading and disclosure of privileged information and imposed various administrative penalties on them. Sitting in appeal, the Court of Québec judge dismissed the application for the dismissal of the AMF’s proceeding on the ground it was prescribed. She also dismissed the appeal on the merits and upheld the findings on insider trading and disclosure of privileged information by the Applicants. The C.A. dismissed the Applicants’ appeals from those two judgments, finding reasonable time was the test that applied in this case and the administrative tribunal’s findings were justified and contained no error. “The applications for leave to appeal…are dismissed with costs.”

Torts/Medmal: Causation 

Lukenchuk v. Stacey Estate2020 SKCA 55 (39232)
A patient brought a tort claim against the Applicant, his optometrist. The patient alleged the optometrist was negligent in failing to properly diagnose and treat a problem with his left eye, which turned out to be a cancerous tumour. The patient died of cancer before his claim could be resolved and the Respondent, his widow and the executor of his estate, continued the action under the The Fatal Accidents Act (“FAA”). The optometrist applied for a ruling on a legal question, namely whether the executor was entitled to bring a claim for recovery of damages for a less favourable life expectancy or decreased survival rate under the FAA. The chambers judge allowed the application, holding the FAA only permits claims to be brought against a person who has caused the death of the plaintiff and it is not enough to have contributed to or facilitated or hastened death. The C.A. allowed the executor’s appeal. It concluded where the claim against the defendant is framed in tort, the causation requirement in s. 3(1) of the FAA must be interpreted in a way that is consistent with normal tort law principles. Whether the necessary causal connection has been established is a question for the trier of fact, to be determined by applying the appropriate legal test for causation, to the evidence before it in light of the pleadings. “The application for leave to appeal…is dismissed with costs.”

Trusts: Charitable Trusts 

Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee2020 ONCA 282 (39273)
Until 1825, the Town of York (now the City of Toronto) had only two burial grounds: an Anglican cemetery and a Catholic cemetery. With an increase in population, there was a need for a non‑denominational cemetery. This precipitated the raising in 1826 of $300 for the purchase of a six‑acre cemetery and a further purchase of a 205 acre cemetery in 1876. These purchases were made possible by several Acts from the Legislative Council of Upper Canada, which subsequently became the Legislature for the Province of Ontario, which in turn created the Mount Pleasant Group of Cemeteries (MPGC). Over many decades, MPGC expanded its operations. In the 21st century, it added a welcome centre and crematorium to its Mount Pleasant Cemetery. These additions were opposed by a group of Toronto residents who formed the Friends of Toronto Public Cemeteries Inc. This group alleged MPGC was and remained a charity, which was operating outside its legislated objects. A judge of the Ontario Superior Court of Justice agreed MPGC was a charitable trust that did not have duly elected trustees and its operations went beyond its statutory objectives. The C.A. overturned the decision, concluding MPGC was no longer a charitable trust. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Incapacity; Guardianship 

Childs v. Childs, 2019 ONCA 717 (39199)
This is a protracted dispute between four siblings over the care of their mother, Eileen Childs. Mrs. Childs is 90 years old and has Alzheimer’s disease. Three of the children were eventually named guardians of Mrs. Childs’ personal care, a property guardian was appointed, and counsel was appointed for their mother under s. 3 of the Ontario Substitute Decisions Act. Counsel was eventually allowed to remove themselves from the proceedings. One of the children was not allowed to participate in the passing of Mrs. Childs’ accounts by court Order. Motions to vary or quash decisions were dismissed as was leave to appeal. One of the children was declared a vexatious litigant by the C.A. with an order prohibiting the filing of further motions or appeals. “The miscellaneous motion is dismissed. The application for leave to appeal…is dismissed with costs to the respondents, Michael Childs and Wendy Griesdorf.”

Wills & Estates: Incapacity; Guardianship 

Childs v. BMO (as Property Guardian of Eileen Childs) et al., 2019 ONCA (39200)
Similar summary to that immediately above. “The miscellaneous motion is dismissed. The application for leave to appeal…is dismissed with costs to the respondent, Michael Childs (as Litigation Guardian for Passing Accounts).”

Wills & Estates: Incapacity; Guardianship 

Childs v. BMO (as Property Guardian of Eileen Childs) et al., 2020 ONCA 21 (39201)
Similar summary to that immediately above. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to file a lengthy reply is granted. The application for leave to appeal…is dismissed with costs to the respondent, Michael Childs, in his capacity as Litigation Guardian for Eileen Vera Childs.”

Workers Comp: Appeals 

Taylor v. Workplace Safety & Insurance Board2018 ONCA 771 (39185)
Mr. Taylor was injured in a workplace accident in February 1997, and in receipt of workplace safety and insurance benefits for many years. This application relates to: Mr. Taylor’s request for an order of mandamus requiring the Workers Safety and Insurance Board hear and decide the matter within a specified time and, if Mr. Taylor appeals, the appeal be heard within a further specified time; the WSIB’s denial of Mr. Taylor’s recent request for compensation for certain over‑the‑counter medication; Mr. Taylor’s objection to the WSIB’s decision to terminate his compensation for certain prescribed medication based on his failure to submit a medical report within the prescribed time; and Mr. Taylor’s request for benefits for four days in August 1998. The application was accompanied by a motion for leave to bring the application before the Superior Court of Justice rather than the Divisional Court. The application judge dismissed the application for leave to bring the matter before the Superior Court of Justice. However, she went on to find, had she granted leave, she would have denied the application as being premature, and therefore also denied the application. The C.A. dismissed Mr. Taylor’s request to live stream the appeal, then dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to file a lengthy memorandum of argument is granted. The motion for an extension of time to serve and file the reply is granted. The motion to file a lengthy reply is granted. The motion for a stay of execution of the orders of costs made in the courts below is dismissed. The application for leave to appeal…is dismissed without costs.”