Granted (2)

Criminal Law: Automatism 

R. v. Sullivan2020 ONCA 333 (39270)
Mr. Chan became intoxicated after ingesting magic mushrooms. He fatally stabbed his father and grievously injured his father’s partner. Mr. Sullivan became intoxicated by a heavy dose of a prescription drug consumed in a suicide attempt. He repeatedly stabbed his mother. Both men sought to raise non-mental disorder automatism as a defence in their respective trials. Section 33.1  of the Criminal Code  precluded this defence in cases of assaults if automatism was self-induced by voluntary intoxication. The trial judge in Mr. Sullivan’s case rejected the argument s. 33.1  did not apply because intoxication resulted from a suicide attempt and was involuntary. The trial judge in Mr. Chan’s case dismissed a constitutional challenge to s. 33.1 . Mr. Sullivan was convicted of aggravated assault, assault with a weapon and breaches of a non-communication order. Mr. Chan was convicted of manslaughter and aggravated assault. The C.A. held s. 33.1  is unconstitutional and of no force or effect. It ordered a new trial for Mr. Chan and acquitted Mr. Sullivan of aggravated assault and assault with a weapon. “The motion to join two Court of Appeal for Ontario files in a single application for leave to appeal is granted. The application for leave to appeal…is granted. The application for leave to cross-appeal filed by the respondent, Thomas Chan, is deferred to the panel hearing the appeal.”

Criminal Law: s. 278.93(4) Seven-Day Notices 

R. v. J.J., 2020 BCSC 349 (39133)
There is a publication ban in this case, in the context of the constitutionality of the seven-day notice requirement in s. 278.93(4) of the Criminal Code. “The motion for an extension of time to serve and file the application for leave to cross-appeal is granted. The application for leave to cross-appeal…is granted. The schedule for serving and filing materials will be set by the Acting Registrar.”

Dismissed (10)

Administrative Law: Test for J.R. 

Air Passenger Rights v. Canadian Transportation Agency2020 FCA 92 (39266)
In response to border closures, travel bans and advisories, and flight cancellations, the Respondent issued two public statements on its website suggesting it could be reasonable for airlines to provide passengers with travel vouchers rather than refunds for flights cancelled for pandemic-related reasons. It was also stated any complaint brought to the Agency would be considered on its own merits. The Applicant advocacy group commenced an application for judicial review of the public statements and brought a motion for an interlocutory order requiring the statements be removed from the Respondent’s website and seeking to enjoin the Respondent’s members from dealing with passenger complaints on refunds, due to a reasonable apprehension of bias. The Applicant argued the statements purport to relieve airline carriers from the obligation to provide passenger refunds both for flight cancellations beyond their control and within their control, and submitted the statements are an unsolicited advance ruling on how passenger complaints about lack of refunds will be decided.  The Fed. C.A. dismissed the motion. It determined irreparable harm had not been established to support an interlocutory order enjoining members of the Respondent from dealing with passenger complaints. There was no evidence before the court the members had been involved in making the statements and, even if they had, actual passenger complaints could address the concern of bias in applications for judicial review brought before the court. The request for an order to remove the two statements from the Respondent’s website required the Applicant to establish a strong prima facie case for the underlying application for judicial review. This could not be done, given the administrative actions being challenged in the judicial review application (the statements) are not amenable to judicial review. “The application for leave to appeal…is dismissed without costs.”

Class Actions in Québec: Pollution 

Attorney General of Canada v. Spieser2020 QCCA 42 (39097)
This Leave arose from a class action filed by residents of the municipality of Shannon, Québec, following the discovery of trichloroethylene (“TCE”) in the water in certain drinking water wells in their community. TCE is a solvent used since at least the 1960s in ammunition production and research activities near the Valcartier military base close to the municipality. The Respondent and Applicant on cross‑appeal, Ms. Spieser, was a resident of Shannon and believed the Applicant and Respondent on cross‑appeal, the Attorney General of Canada (“AGC”), and the Respondent corporate parties were negligent in handling TCE. Through the class action, she sought compensatory damages for the injury suffered by those exposed to the contamination as well as punitive damages for interference with rights protected by the Charter of human rights and freedoms. The Superior Court allowed Ms. Spieser’s class action in part. It found the contamination of the drinking water wells by TCE constituted a neighbourhood disturbance under art. 976 of the Civil Code of Québec, and it ordered the AGC and the corporate parties to pay damages to compensate the affected residents. The C.A. intervened to decide the case de novo because the lower court had improperly put aside the issue of fault in its analysis. The C.A. found several faults had been committed by the AGC and the corporate parties, and it ordered them to pay compensatory damages for the moral injury suffered by certain residents as well as punitive damages. “The application for leave to appeal…is dismissed with costs to the respondent, Marie-Paule Spieser. The conditional application for leave to cross-appeal filed by the respondent, Marie-Paule Spieser, is dismissed. Kasirer J. took no part in the judgment.”

Class Actions: Injurious Affection 

Gautam v. South Coast British Columbia Transportation Authority2020 BCCA 135 (39282)
South Coast British Columbia Transportation Authority (TransLink) began construction on the Canada Line rapid transit in Vancouver, BC in the fall of 2005. A portion of the construction passed through Cambie street, disrupting businesses there. On November 10, 2008 Gary Gautam (Cambie General Store) started an action under the Class Proceedings Act seeking damages for nuisance caused by the construction. The action was certified as a class proceeding and common issues were established in 2015. The action proceeded to a summary trial against TransLink, the only named defendant with expropriating powers. The trial judge awarded compensation to the Applicants for injurious affection. However, a majority of the B.C.C.A. ordered a new trial for two of the Applicants, due to the trial judge’s incorrect interpretation of the limitation period, analysis of unreasonable interference, and improper assessment of damages. A dissenting judge at the B.C.C.A. would have ordered a new trial on the limitation period and not altered the trial judge’s assessment of damages. “The application for leave to appeal…is dismissed without costs.”

Class Actions: Securities 

Horizons ETFS Management (Canada) Inc. v. Wright2020 ONCA 337 (39293)
The Applicant Horizons (Respondent on the application for leave to cross‑appeal) created and managed an exchange traded fund known as the Horizons BetaPro S&P VIX Short‑Term Futures Daily Inverse ETF. The Respondent Mr. Wright (Applicant on the application for leave to cross‑appeal) was one of the investors who purchased units of this ETF. On February 5, 2018, the ETF suffered dramatic losses in the aftermarket due to a rise in market volatility. In May 2018, Mr. Wright commenced a proposed class action against Horizons pursuant to the Ontario Class Proceedings Act seeking general damages, calculated based on the capital losses experienced by the ETF, on behalf of himself and other unitholders.  The Ontario Superior Court dismissed the motion for certification of the action as a class proceeding, as well as the action itself. It considered the action did not disclose a reasonable cause of action. In its view, it was plain and obvious Mr. Wright and the putative class members did not have a common law negligence claim against Horizons, and they did not have a cause of action under s. 130 of the Ontario Securities Act. The C.A. allowed the appeal in part. If found there was a reasonable prospect of demonstrating the claim fell within a recognized duty of care under the category of negligent performance of a service, and allowed Mr. Wright to amend the statement of claim such it would contain the material facts necessary to establish there was a cause of action under s. 130. The matter was remitted to the certification judge to determine whether the remaining criteria for certification were met. “The application for leave to appeal and the application for leave to cross-appeal…are dismissed with costs.”

Class Actions: Settlement Agreements 

Ammazzini v. Anglo American PLC, et al.2019 SKCA 142 (39117)
The Applicants brought a proposed multi‑jurisdictional class action in Saskatchewan under The Class Actions Act alleging the Respondents wrongfully restricted the global supply of diamonds to artificially inflate pricing. Previously, an action raising similar common issues was commenced and certified as a class action in B.C., and was certified for the purposes of settlement by courts in Ontario and Québec. On application by the representative plaintiffs in the BC and Ontario actions, a conditional stay of the Saskatchewan action was granted 2016 SKQB 53, aff’d 2016 SKCA 164, pending the decision on the certification action in Ontario.  A settlement agreement has since been reached by the plaintiffs in the Ontario, B.C. and Quebec actions, providing for payment by the Respondents of the amount of $9.4M for the benefit of the class, being all persons in Canada who purchased gem grade diamonds from January 1, 1994 to October 14, 2016. The settlement agreement required the dismissal of those three class actions and either the dismissal or a permanent stay of the Saskatchewan action. Court approval of the settlement agreement has been obtained in Ontario, B.C. and Québec. The Court of Queen’s Bench of Saskatchewan granted the Respondents’ application for a permanent stay of the Saskatchewan action and a Judge of the Sask. C.A. denied leave to appeal that decision. The Applicants sought leave to appeal those decisions, arguing the settlement agreement was unfair and the decisions jeopardize the litigation rights of those who opt‑out. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to serve and file an amended memorandum of argument for the application for leave to appeal is dismissed with costs. The application for leave to appeal…is dismissed with costs.”

Criminal Law: Grow Ops 

Coffey v. R., 2020 BCCA 195 (39299)
The RCMP executed a search warrant on a seven‑acre rural property in British Columbia occupied by the Applicant and others. A large, well‑established and sophisticated commercial marihuana grow operation was discovered on the property of approximately 4,200 marihuana plants in various stages of growth. Three individuals associated with the property held licences to grow marihuana for personal medical use. Together, those licences only covered about 530‑550 plants. The Applicant had been part of a group seeking to obtain a lawful production licence, but that application was rejected in 2014. A document authored by the Applicant and seized during the search reflected a harvest of 44.5 pounds of marihuana sold for $93,600. The Applicant was convicted of producing, and possessing marihuana for the purposes. The Applicant was sentenced to 12 months’ imprisonment. His sentence appeal was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Vetrovec Warnings; Fresh Evidence 

Allen v. R.2018 ONCA 498 (39332)
The Applicants Allen, Deleon and Restrepo were convicted of first-degree murder in July 2008 for the execution‑style shooting of Mauricio Castro that took place in July 2005. Mr. Restrepo was the leader of a Toronto drug distribution network that owed approximately $1M to Castro. The Crown argued Mr. Restrepo arranged the murder to extinguish the debt and to steal cocaine belonging to Mr. Castro, that Mr. Allen was the actual killer and Mr. Deleon was deeply involved in the enterprise both before and after the killing took place. In his address to the jury, the trial judge issued a strong Vetrovec warning for one of the witnesses, a milder warning for another and declined to warn the jury about a third witness, K. The Applicants’ appeals were dismissed on November 30, 2011. Subsequently, K swore an affidavit asserting his evidence at trial was false. On August 12, 2015, the Applicants sought leave to appeal the decision of the C.A., a motion to extend time and they also sought to have K’s affidavit admitted as fresh evidence. On February 16, 2016, the case was remanded to the C.A. to determine the admissibility of the fresh evidence. The remainder of the application for leave to appeal was held in abeyance pending a determination of the fresh evidence application. On May 31, 2018, the C.A. dismissed the Applicants’ motion to adduce fresh evidence and on September 4, 2018, the Applicants’ motion to extend time to serve and file the application for leave to appeal from the November 30, 2011, decision of the C.A. was dismissed without prejudice to the Applicants’ right to serve and file an application for leave to appeal from the decision of the C.A. dated May 31, 2018. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Pharmaceuticals: Patents 

Kennedy Trust for Rheumatology Research, et al. v. Hospira Healthcare Corporation, et al.2020 FCA 30 (39099)
Hospira Healthcare Corporation and the other plaintiffs (collectively “Hospira”) brought an action to impeach the 630 Patent. That patent is owned by the Kennedy Trust for Rheumatology Research (with the other Respondents, collectively, “Kennedy”) and it counterclaimed for patent infringement. The 630 Patent details the adjunctive use of methotrexate (“MTX”) and the anti‑tumour necrosis factor‑a antibody “infliximab” for the treatment of rheumatoid arthritis (“RA”) and other autoimmune diseases. It is sold in Canada under the name “Remicade.” The 630 Patent expired on August 1, 2017. Hospira marketed, used and sold the biosimilar infliximab in Canada under the commercial name “Inflectra” as a treatment for RA. Prior to the 630 Patent, MTX was well known as a treatment for serious cases of RA but many patients with the disease did not completely respond to it. In the early and mid‑1990s, existing treatments for RA were sub‑optimal with respect to efficacy and side‑effects. The inventors of the 630 Patent tried combining MTX and infliximab and obtained positive results, in terms of enhanced efficacy and sustained duration of effect. Hospira brought an action to attack the validity of the 630 Patent. Kennedy counterclaimed the 630 Patent had been and would continue to be infringed. The trial judge dismissed Hospira’s action, and granted Kennedy’s counterclaim, finding the patent was valid and infringed. This decision was overturned in part on appeal, on the basis the trial judge had erred in his consideration of some of the prior art when determining the issues of anticipation and obviousness. The Fed. C.A. remitted the matter back to the trial judge to reconsider those two issues. “The applications for leave to appeal…are dismissed with costs.”

Professions: Discipline 

Al-Ghamdi v. College of Physicians and Surgeons of Alberta2020 ABCA 71 (39308)
Dr. Al‑Ghamdi was an orthopedic surgeon charged with engaging in disruptive conduct amounting to unprofessional misconduct. His skill as a surgeon was never in question. His working relationship with other healthcare staff deteriorated to the point some other members of the staff refused to work with him. The allegation included 13 particular incidents, but the thrust of the allegation was a pattern of disruptive conduct over an 11 year period between 2003 and 2014. After a 47-day hearing, involving approximately 67 witnesses, the Hearing Tribunal of the College of Physicians and Surgeons of Alberta found 8 of the 13 particulars had been proven, and the overall allegation of disruptive conduct made out. Dr. Al‑Ghamdi’s licence and practice were suspended for three years, after which time he could apply to have his licence and permit reinstated if he had met certain conditions. His appeal to the Council Review Panel of the College of Physicians and Surgeons of Alberta was dismissed as was his subsequent appeal to the C.A. “The application for leave to appeal…is dismissed with costs.”

Trusts: Resulting Trusts 

Chahal v. Chahal2020 BCCA 147 (39312)
The Applicant claimed the Respondent was holding business shares in on a resulting trust for him, on the basis he transferred them to her pursuant to a void agreement. The Applicant sought an order the shares and the dividends be returned to him. The Respondent’s position is the shares were a gift and she was entitled to retain the dividends. The trial judge held the Respondent was entitled to a declaration she is the beneficial owner of these shares. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”