This special year-end review is a complete legal snapshot of all the law from the Supreme Court of Canada in 2020, and includes:

Each section is arranged in alphabetical order by area of law so you can more easily find the decisions relevant to your practice. We have also included direct quotes from judgments or headnotes in some cases if they provide a useful summary for the reader.

For Leaves to Appeal granted, a hyperlink to the C.A. being appealed is also included.

Appeals

 

Bankruptcy and Insolvency: Discretionary Authority of Supervising Judge; Litigation Funding

9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10 (38594) (Oral judgment rendered Jan, 23, 2020, with reasons to follow. Reasons for judgment rendered May 8, 2020)

The supervising judge was focussed on the fairness at stake to all parties, the specific objectives of the CCAA, and the particular circumstances of this case, including approving third party litigation funding as interim financing, pursuant to s.11.2 of the CCAA

Bankruptcy and Insolvency: Priorities; Anti-Deprivation Rule

Chandos Construction Ltd. v. Deloitte Restructuring Inc.2020 SCC 25 (38571)

The anti-deprivation rule exists in Canadian common law and has not been eliminated by either the S.C.C. or Parliament. Parliament’s actions here are better understood as gradually codifying limited parts of the common law rather than seeking to oust all related common law; Parliament is presumed to intend not to change the existing common law unless it does so clearly and unambiguously. The anti-deprivation rule renders void contractual provisions that, upon insolvency, remove value that would otherwise have been available to an insolvent person’s creditors from their reach. This test has two parts: first, the relevant clause must be triggered by an event of insolvency or bankruptcy; and second, the effect of the clause must be to remove value from the insolvent’s estate. An “effects-based” test. There are nuances with the anti-deprivation rule as it stands: e.g., contractual provisions that eliminate property from the estate, but do not eliminate value, may not offend the anti-deprivation rule; nor do provisions whose effect is triggered by an event other than insolvency or bankruptcy; the anti-deprivation rule is not offended when commercial parties protect themselves against a contracting counterparty’s insolvency by taking security, acquiring insurance, or requiring a third-party guarantee. The BIA’s affirmation of set-off and the anti-deprivation rule are not incompatible. While set-off reduces the value of assets that are transferred to the Trustee for redistribution, it is applicable only to enforceable debts or claims. The anti-deprivation rule makes deprivations triggered by insolvency unenforceable. The combination means that set-off applies to debts owed by the bankrupt that were not triggered by the bankruptcy.

Charter/Corporate: s.12; “Cruel and Unusual”

Québec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 (38613)

Does s. 12 of the Charter protect corporations from cruel and unusual treatment or punishment? It does not, because corporations lie beyond s. 12 ’s protective scope. Simply put, the text “cruel and unusual” denotes protection that “only human beings can enjoy”: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004. The protective scope of s. 12 is thus limited to human beings.

Charter: s.15

Fraser v. Canada (Attorney General), 2020 SCC 28 (38505)

RCMP job‑sharing program violates right to equality under s. 15(1); program affects access to pension benefits because of a temporary reduction in working hours, which has a disproportionate impact on women and perpetuates historical disadvantage. To prove discrimination under s. 15(1), claimants must show a law or policy creates a distinction based on a protected ground, and that the law perpetuates, reinforces or exacerbates disadvantage, but does not require revision in adverse effects cases. A clear account is needed re how to identify adverse effects discrimination, because the impugned law will not, on its face, include any distinctions based on prohibited grounds. Any such distinctions must be discerned by examining the impact of the law. Two types of evidence are helpful to prove a law has a disproportionate impact on members of a protected group: evidence about the situation of the claimant group; evidence about the results of the law. The methodology for facilitating the buy‑back of pension credit is for government to develop, but any remedial measures it takes should be in accordance with this decision and have retroactive effect to give the claimants in this case (and others in their position) a meaningful remedy.

Civil Procedure: Anti-SLAPP Legislation

1704604 Ontario Ltd. v. Pointes Protection Association2020 SCC 22 (38374)

The legislation here presents a two-part analysis: burden on the moving party to show (i) the proceeding arises from an expression made by the moving party (ii) the expression relates to a matter of public interest. A threshold burden, necessary for the moving party to meet to even proceed to s. 137.1(4) for the ultimate determination whether the proceeding be dismissed. For an underlying proceeding to have “substantial merit”, it must have a real prospect of success —while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with “grounds to believe”, this means the motion judge needs to be satisfied there is a basis in the record and the law — taking into account the stage of the proceeding — for drawing such a conclusion. This requires the claim be legally tenable and supported by evidence reasonably capable of belief. Importantly, this standard is more demanding than the one applicable on a motion to strike, which requires that the claim have some chance of success under the “plain and obvious” test, and also more demanding than requiring that the claim have a reasonable prospect of success, a standard the S.C.C. also used to animate the “plain and obvious” test. And, finally, in determining the ambit of “substantial merit”, the statutory context of s. 137.1 must be borne in mind: even if a lawsuit clears the merits-based hurdle at s. 137.1(4)(a), it remains vulnerable to summary dismissal as a result of the public interest weighing exercise under s. 137.1(4)(b), which provides courts with a robust backstop to protect freedom of expression. Fundamentally, the open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. In conclusion, under s. 137.1(4)(b), the burden is on the plaintiff — i.e. the responding party — to show on a balance of probabilities it likely has suffered or will suffer harm, such harm is a result of the expression established under s. 137.1(3), and the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is the crux or core of the s. 137.1 analysis, as it captures the overarching concern of the legislation, as evidenced by the legislative history. It accordingly should be given due importance by the motion judge in assessing a s. 137.1 motion.

Civil Procedure: Anti-SLAPP Legislation; Fresh Evidence

Bent v. Platnick2020 SCC 23 (38376)

The appeals herein are dismissed, and accordingly, the s. 137.1 motion, and the respondent’s lawsuit in defamation may continue. While the appellant Ms. Bent successfully meets her threshold burden under s. 137.1(3), the respondent Dr. Platnick successfully clears both the merits-based hurdle and the public interest hurdle under s. 137.1(4)(a) and s. 137.1(4)(b), respectively. To avoid any misunderstanding a s. 137.1 motion is unequivocally not a determinative adjudication of the merits of a claim: Pointes Protection, at paras. 37, 50, 52 and 71. Instead, Dr. Platnick deserves to have his day in court to potentially vindicate his reputation.

For fresh evidence, the Palmer test requires consideration of four factors:

  • the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial (this general principle not to be applied as strictly criminal cases as in civil cases)
  • the evidence must be relevant in the sense it bears on a decisive or potentially decisive issue in the trial
  • the evidence must be credible in the sense it is reasonably capable of belief
  • it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to affect the result.

This does not, however, give parties carte blanche to file motions to adduce fresh evidence. Palmer must be adhered to.

Civil Procedure/International Law: Jurisdiction

International Air Transport Association v. Instrubel, N.V., 2019 SCC 61 (38562)

The debt is subject to the jurisdiction of the Québec courts. (Appeals dismissed from the Bench December 11, 2019; dissenting reasons released May 1, 2020).

Class Actions: Certification; Gaming

Atlantic Lottery Corp. Inc. v. Babstock2020 SCC 19 (38521)

“Waiver of tort” is confusing, and should be abandoned. Disgorgement for breach of contract is exceptional relief; it is not available at the plaintiff’s election to obviate matters of proof. There is nothing exceptional about the breach of contract the plaintiffs allege. The claim is simply that they paid to play a gambling game and did not get exactly what they paid for. The plaintiffs cannot be said to have a legitimate interest in the defendant’s profit‑making activity. It follows that the claim has no reasonable chance of achieving disgorgement damages for breach of contract. As the S.C.C. explained in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, not every contract imposes actionable good faith obligations on contracting parties. While good faith is an organizing principle of Canadian contract law, it manifests itself in specific circumstances. In particular, its application is generally confined to existing categories of contracts and obligations, and the alleged contract here does not fit within any of the established good faith categories. Nor did the plaintiffs advance any argument for expanding those recognized categories. And whether the plaintiffs’ claim should survive as a hollow cause of action that does not support any of the remedies they seek, it should not.

Class Actions in Québec: Financial Institutions

Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30 (37898)

The S.C.C. agreed with the Court of Appeal’s decision to authorize the class action proposed by the respondent, both against Desjardins Financial Services Firm Inc. and against Desjardins Global Asset Management Inc. The Superior Court judge erred in dismissing the amended and particularized motion for authorization and to obtain the status of representative, against the appellants. In performing her screening function, the motion judge trenched upon the work of the trial judge, and as the Court of Appeal correctly pointed out, this is an error that, under the established standards, provides a basis for appellate review of the judge’s decision. In fairness to the motion judge, the parties did not make life easy for her. The respondent’s motion ─ amended thoroughly along the way, including with respect to the initial position put forward ─ is not the most elegant of its kind. The judge’s task was also complicated by the procedural initiatives of all kinds undertaken by the appellants ─ examinations, production of documents, motions for particulars. The increasing complexity of the proceedings and the excessive volume of evidence may have prompted the authorization judge to take on, perhaps reluctantly, but no less inappropriately, the role of ultimate arbiter of the facts rather than limiting herself to analyzing the proposed legal syllogism.

Constitutional Law/Aboriginal Law: Jurisdiction of Courts

Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 (37912)

There is no doubt that Aboriginal title is fundamentally concerned with land; it is tempting to conclude that Aboriginal title is a purely real right, as its name suggests, but to do so would ignore the fact that Aboriginal title is also firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown. Sovereignty assured the Crown underlying title to all land in the provinces, but the content of that title has always been burdened by the pre-existing rights of Aboriginal peoples which preceded those of the provinces. The nature of the fiduciary relationship arising from the interplay of these rights, steeped as it is in the history of settlement, is what gives rise to the other obligations flowing from the honour of the Crown that are part and parcel of Aboriginal title, and those obligations are clearly more akin to personal rights. Where a claim of Aboriginal rights or title straddles multiple provinces, requiring the claimant to litigate the same issues in separate courts multiple times erects gratuitous barriers to potentially valid claims. The legal source of Aboriginal rights and title is not state recognition, but rather the realities of prior occupation, sovereignty and control. The S.C.C. does not accept that the later establishment of provincial boundaries should be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre-existing rights. In the specific context of s. 35 claims that straddle multiple provinces, access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights, including their traditional rights to land. Moreover, the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters and courts should approach proceedings involving the Crown practically and pragmatically in order to effectively resolve these disputes. Requiring claimants to bifurcate would undermine the twin constitutional imperatives of access to justice and the honour of the Crown. Because the parties’ focus was whether or not Quebec courts had jurisdiction over all aspects of this matter, the motions judge and the Court of Appeal focused their analysis on answering that question. The S.C.C. concluded, as they did, that Quebec authorities do have jurisdiction over the entire claim.

Constitutional Law: Judicial Independence/Remuneration; Disclosure of Cabinet Documents

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 (38381)

Public interest immunity requires a careful balancing between the competing public interests in confidentiality and disclosure. Here, the Provincial Court Judges’ Association did not meet the threshold necessary to compel production of a confidential Cabinet document for judicial inspection. While this is not a high bar, it is not met simply by showing that the government considered the Cabinet document before making its response. To summarize, the object of Bodner review is the government’s response to the commission’s recommendations, which will generally consist of the government’s decision to depart from the commission’s recommendations and the reasons given for that decision. The submissions to the commission, the commission’s recommendations, and the government’s response accordingly form the core of the record on Bodner review. Certain forms of additional evidence are admissible if they are relevant to determining whether any part of the Bodner test has been met, including whether the government’s response is grounded in an improper or colourable purpose. A party must first establish some basis to believe the document may contain evidence which tends to show the government failed to meet a requirement described in Bodner. Only then will the reviewing court examine the document in private to determine whether it, in fact, provides some evidence tending to show the government failed to meet its constitutional obligations. If the document does, the court must then determine whether any other rule of evidence, such as public interest immunity, bars production.

Constitutional Law: Judicial Independence/Remuneration; Disclosure of Cabinet Documents

Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21 (38459)

Only components of the Attorney General’s report — the discussion of government-wide implications and the communications plan — should be produced as part of the evidence on Bodner review. That said, these excerpts are merely some evidence for the Nova Scotia court to consider in deciding the merits of the judicial review of the government’s response. The public interest in disclosure outweighs the public interest in remaining confidential.

Contracts: Arbitration Clauses; Unconscionability

Uber Technologies Inc. v. Heller, 2020 SCC 16 (38534)

Mr. Heller started a class proceeding against Uber in Ontario for violations of employment standards legislation. Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement. The Court of Appeal concluded that objections to the arbitration clause did not need to be referred to an arbitrator and could be dealt with by a court in Ontario; also finding the arbitration clause to be unconscionable, based on the inequality of bargaining power between the parties and the improvident cost of arbitration. The S.C.C. agreed with the Court of Appeal; an arbitration agreement that makes it impossible for one party to arbitrate “… a classic case of unconscionability.

Contracts/Condos: “Air Space Parcels”; Parking; Pre & Post‑Incorporation Contracts

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29 (38741)

An otherwise valid and effective post-incorporation contract is not unenforceable simply because its terms affect interests in land. An “outward manifestation of assent by each party such as to induce a reasonable expectation in the other” is required in order to find that a binding post-incorporation contract exists, quoting Waddams; and the test is objective. The pre-incorporation contract is merely one aspect of the objective circumstances that can be used to interpret the parties’ conduct and from which the terms of a post-incorporation contract may be inferred. The ultimate question, whether the S.C.C. should recognize the existence of a narrow principle of benefit and burden, is left for another day. The conclusion that Strata Co. is bound by a post-incorporation contract with CSPC on the terms set out in s. 7.5 of the ASP Agreement is sufficient to dismiss the appeal. It is therefore unnecessary to consider the merits of alternative means of binding a subsequent owner.

Contracts: Duty of Honest Performance

C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (38463) 

The duty to act honestly in the performance of contracts precludes active deception. Here Baycrest breached its duty by knowingly misleading Callow into believing the winter maintenance agreement would not be terminated; and by exercising the termination clause dishonestly, it breached the duty of honesty on a matter directly linked to the performance of the contract, even if the 10-day notice period was satisfied and irrespective of their motive for termination. Damages flow for the consequential loss of opportunity. The C.A. is overturned, and trial judge restored.

Contracts in Québec: Assignment 

Resolute FP Canada Inc. v. Hydro‑Québec, 2020 SCC 43 (38544)

Conventional assignment of contract, which is viewed sometimes as the addition of an assignment of claims to a transfer of debts and sometimes as the transfer of a contract as a whole, has long been a source of uncertainty among jurists. In the unitary approach, the focus is in fact on the transfer of the contractual relationship as a whole — claims, debts, potestative rights and other undertakings. From this perspective, the operation is understood to involve a transfer of status as a contracting party to the assignee, while leaving the original contract intact. This approach is especially apposite in circumstances in which the parties are disputing the transfer not only of claims and debts, but also of other undertakings made in the original contract. The unitary approach is particularly helpful in making it clear that, if Hydro‑Québec acquired the status of party to the 1926 contract, that enabled it to demand, in its own name and by reason of its status, the increased price resulting from two levies. In conclusion, the words “tax or charge” in art. 20 of the 1926 contract encompass the two levies at issue that were imposed under s. 32 of the HQA and s. 68 of the WA, so that those levies are payable by Resolute to Hydro‑Québec under that agreement. And the Court of Appeal did not err in reaching this conclusion. Finally, it is noted that the Quebec government required Hydro‑Québec to pay the charges at issue and that the latter was entitled to apply them to the amount billed to Resolute.

Criminal Law: Bail; Breaking Curfew/Conditions

R. v. Zora, 2020 SCC 14 (38540)

To establish breaking curfew or other bail conditions, the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s. 145(3), the Crown must establish that the accused committed the breach knowingly or recklessly, and nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. A subjective mens rea standard for breach under s. 145(3), like Parliament’s recent amendments to the bail scheme, keeps the focus on the individual accused, where it belongs.

Criminal Law/Charter: s.15; Sex Offender Registries

Ontario (Attorney General) v. G., 2020 SCC 38 (38585)

“Christopher’s Law” draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter, and cannot be justified in a free and democratic society. An absolute discharge is granted, and suspending the declaration of invalidity for 12 months.

Criminal Law: Delay

R. v. Thanabalasingham, 2020 SCC 18 (37984)

The delay here far exceeds the 30-month presumptive ceiling established in Jordan. With respect to the transitional exceptional circumstance, we cannot say that the trial judge erred in concluding that the Crown failed to establish that the exception applied. As said in Cody, the Crown will “rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework” if the case would have warranted a stay under R. v. Morin, [1992] 1 S.C.R. 771 (para. 74). This case would certainly have qualified for a stay under the previous framework. The trial judge read Williamson in the manner cautioned against in Cody. However, given the circumstances here, this error was inconsequential. Even if the trial judge had not made this error, he would have arrived at the same result. The S.C.C. hence does not interfere with his determination that a stay of proceedings was warranted.

Criminal Law: Delay; Verdict Deliberation Times

R. v. K.G.K., 2020 SCC 7 (38532)

The protection of s. 11 (b) extends beyond the end of the evidence and argument at trial, up to and including the date upon which sentence is imposed (see R. v. Rahey, [1987] 1 S.C.R. 588; R. v. MacDougall, [1998] 3 S.C.R. 45), so it follows that verdict deliberation time, which necessarily precedes the imposition of sentence, is also subject to s. 11 (b) scrutiny. However, the ceilings in Jordan, beyond which delay is presumed to be unreasonable under s. 11 (b), apply to the end of the evidence and argument at trial, and no further, and do not include verdict deliberation time.

Criminal Law: Division of Powers; Genetic Non-Discrimination Act

Reference re Genetic Non-Discrimination Act, 2020 SCC 17 (38478)

Parliament criminalized compulsory genetic testing and the non-voluntary use or disclosure of genetic test results in the context of a wide range of activities. Parliament can validly use its broad criminal law power to do so.

Criminal Law: Entrapment

R. v. Ahmad2020 SCC 11 (38165) (38304) (joint reasons for 2 appeals)

Police cannot offer a person who answers a cell phone the opportunity to commit an offence without having formed reasonable suspicion the person using that phone, or that phone number, is engaged in criminal activity. Whether the police are targeting a person, place or phone number, the legal standard for entrapment is a uniform one, requiring reasonable suspicion in all [emphasis in original] cases where police provide an opportunity to commit a criminal offence. So, a bare tip from an unverified source that someone is dealing drugs from a phone number cannot ground reasonable suspicion. Whether a police action constitutes an opportunity to commit an offence is informed both by the definition of the offence and the context in which the action occurred. Like other aspects of the entrapment doctrine, it reflects the balance struck between the state’s interest in investigating crime and the law’s constraint against unwarranted intrusion into individuals’ personal lives. In a phone conversation, an opportunity is established when an affirmative response to the question posed by the officer could satisfy the material elements of an offence. In a “dial-a-dope” context, in which the initial interaction between the police and target occurs entirely over the phone, the exercise centres on determining whether words spoken by police constitute an opportunity to commit trafficking. Police can make exploratory requests of the target, including asking whether they sell drugs, without providing an opportunity to traffic. An opportunity is provided only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested. In some cases, a request to purchase a specific quantity of drugs will suffice. In the S.C.C., the Crown argued the opportunity to commit the offence — within the meaning of the doctrine of entrapment — arises not when the agreement to sell drugs is secured during the call, but only afterwards [both italics in original] when the police officer meets the suspect in person, and the in-person transaction is made. The S.C.C. said this argument lacks merit: drug-related entrapment cases have implicitly rejected such an approach by considering whether the accused was entrapped during the initial conversation, even though the in-person transaction occurred later; it follows that, to ensure the fairness of state conduct, proceedings must be stayed in respect of charges that are related to the conduct targeted by abusive police conduct — that is, to the offence of trafficking by offer and [emphasis is original] to the in‑person trafficking or possession for the purposes to which the offer directly relates. Concluding otherwise would ignore the entrapment that occurs during the phone call and its direct relationship to the offences that were eventually charged. The police conduct in dial‑a‑dope investigations is directed at trafficking. The very reason that police interact with their targets in person is to carry out the opportunities offered over the phone. To follow the Crown’s reasoning and stay charges arising from the offer while entering convictions for trafficking to which the offer related would be highly technical and, indeed, artificial, thereby defeating the purposes of the entrapment doctrine and ignoring its underlying rationale of preventing intrusion into people’s lives to test their virtue. In conclusion, given the principles governing our entrapment doctrine, police investigating a dial-a-dope operation by calling a phone number they suspect is being used to traffic illegal drugs must form reasonable suspicion before offering an opportunity to traffic drugs. If they cannot form reasonable suspicion before making the call, they must in the course of their conversation form reasonable suspicion before making the offer. A determination of whether this requirement is satisfied must be the product of strict judicial scrutiny, taking into account the constellation of factors that indicate involvement in trafficking. And, if it is determined that the offer was presented before reasonable suspicion was formed, entrapment is established and the proceedings stayed.

Criminal Law: Motor Vehicle Offences

R. v. Chung,2020 SCC 8 (38739)

The Crown can only appeal an acquittal on a “question of law alone”, and an appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof, so the Crown cannot appeal merely because an acquittal is unreasonable. Errors of law do arise where “the legal effect of findings of fact or of undisputed facts raises a question of law” and where there is “an assessment of the evidence based on a wrong legal principle”. These two types of errors are somewhat similar, both address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law. When interpreting a trial judge’s reasons, appellate courts should not parse the reasons of the trial judge in a line by line search for errors; but instead, the reasons are to be (quoting) “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”. Appellate courts must attempt to understand the reasoning of the trial judge, but even if the trial judge articulates the right test, appellate courts can find an error of law if the judge’s reasoning and application demonstrate a failure to properly apprehend the law. Here, the S.C.C. agreed with the C.A. that the trial judge erred by applying a wrong legal principle. And most importantly, failed to apply the correct legal test in the Roy case by not assessing what a reasonable person would have foreseen and done in the accused’s circumstances. There was a failure here to properly consider the conduct of the reasonable person in all of the circumstances in determining whether there was a marked departure.

Criminal Law: Sexual Offences Against Children

R. v. Friesen2020 SCC 9 (38300)

The accused here pled guilty to sexual interference with a young child and attempted extortion of the child’s mother. The sentencing judge determined that a six-year global sentence for both was appropriate. The Court of Appeal reduced the sentence to four and one-half years. The original six-year sentence is restored. There are three overarching points. First, the standard of review for sentencing set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and especially the guidance about how an appellate court should proceed when it identifies an error in principle. Second, the limits that appellate deference imposes on both sentencing ranges and starting points, and particular concerns associated with starting point sentencing. Third, a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Employment Law: Constructive Dismissal

Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26 (38252)

The majority of the Court of Appeal erred in not awarding Mr. Matthews the amount of the LTIP as part of his common law damages for breach of the implied term to provide reasonable notice. So long as damages are appropriately made out and causation established, a breach of a duty of good faith could certainly give rise to distinct damages based on the principles in Hadley, approved in this setting in Keays (at paras. 55-56), including damages for mental distress. Punitive damages also in certain circumstances. To this end, ensuring litigants take care that their pleadings are properly made out, and ensuring courts are following a methodologically coherent approach to constructive dismissal cases is certainly of value as it can affect the ultimate damage amount to be awarded to an employee plaintiff. When breached, the obligation to provide reasonable notice does not, in theory, turn on the presence or absence of good faith: it is, in a manner of speaking, a “good faith” wrongful dismissal (see Machtinger, at p. 990). The contractual breach that arises from the employer’s choice in this regard is simply the failure to provide reasonable notice, which leads to an award of damages in lieu thereof (Wallace, at para. 115, per McLachlin J., as she then was, dissenting, but not on this point). A breach of the duty to exercise good faith in the manner of dismissal is also independent of any failure to provide reasonable notice. It can serve as a basis to answer for foreseeable injury that results from callous or insensitive conduct in the manner of dismissal. Importantly, damages arising out of the same dismissal are calculated differently depending on the breach invoked. The majority of the Court of Appeal erred by focusing on whether the terms of the LTIP were “plain and unambiguous” instead of asking what damages were appropriately due for failure to provide reasonable notice. The issue is not whether Mr. Matthews is entitled to the LTIP in itself, but rather what damages he is entitled to and whether he was entitled to compensation for bonuses he would have earned had Ocean not breached the employment contract. Courts should accordingly ask two questions when determining whether the appropriate quantum of damages for breach of the implied term to provide reasonable notice includes bonus payments and certain other benefits. Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? For the purpose of calculating wrongful dismissal damages, the employment contract is not treated as “terminated” until after the reasonable notice period expires. So, even if the clause had expressly referred to an unlawful termination, this too would not unambiguously alter the employee’s common law entitlement. In sum Mr. Matthews is entitled to receive damages equal to what he would have received pursuant to the LTIP, subject to mitigation. Not all mistreatment by an employer will result in a constructive dismissal — some employees, for financial or other reasons, might choose not to leave their job.

Family Law: Retroactive Child Support

Michel v. Graydon2020 SCC 24 (38498)

Courts should not be deprived of jurisdiction re recipient parents who struggle to support children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage. Giving payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive: if the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation. Unless compelled by the applicable legislative scheme, courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations permitting retroactive child support awards, as recognized in D.B.S., is perfectly consistent with the child support system.

International Law/Class Actions: Act of State Doctrine; Customary International Law

Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (37919)

While the English common law, including some cases now recognized as forming the basis of the act of state doctrine, was generally received into Canadian law at various times in our legal history, Canadian jurisprudence has addressed the principles underlying the doctrine within our conflict of laws and judicial restraint jurisprudence, with no attempt to have them united as a single doctrine. The act of state doctrine in Canada has been completely absorbed by this jurisprudence. To now import the English act of state doctrine and jurisprudence into Canadian law would be to overlook the development that its underlying principles have received through considered analysis by Canadian courts. The doctrine is not part of Canadian common law, and neither it nor its underlying principles as developed in Canadian jurisprudence are a bar to the Eritrean workers’ claims here. Ultimately, for the purposes of this appeal, it is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. 

Language Rights

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia2020 SCC 13 (38332)

The alleged minority language infringements are two categories: systemic claims (among other things, the fact that the French school board in B.C. had not received an annual grant for building maintenance, the formula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities); claims for the purpose of obtaining new schools or improvements to existing schools in 17 communities. In sum, a court that is asked to situate a given number of students by considering on the sliding scale must proceed as follows. Firstly, identify the relevant number of students, by considering the number of students who will eventually avail themselves of the service. Secondly, the court must compare that number with the numbers of students in majority language schools across the province in order to determine what is appropriate from the standpoint of pedagogy and cost. The existence of comparably sized majority language schools, regardless of where they are located in the province, supports a presumption that the province considers maintaining those smaller schools to be appropriate from the standpoint of pedagogy and cost. The province can rebut this presumption by showing that the majority language comparator schools identified by the claimants are not appropriate comparators or that the school proposed by the minority is inappropriate from the standpoint of pedagogy or cost. At the first stage, the application of the sliding scale concept makes it possible to establish the required level of services, that is, the range of services which varies from a program of instruction alone to a homogeneous school. At the second stage, the analysis based on the substantive equivalence test is applied in order to make a holistic assessment of the quality of the educational experience provided to the official language minority. In short, the general rule continues to be that damages can be awarded against a government where they are an appropriate and just remedy in the circumstances. However, the government may avoid such an award by raising concerns for effective governance. Government has no immunity in relation to government policies that infringe fundamental rights.

Mortgages in Québec: Foreclosure

Toronto-Dominion Bank v. Young, 2020 SCC 15 (38242)

Chief Justice Wagner (and 7 colleagues) wrote as follows (paras. 1-2): “We have carefully read the reasons of our colleague Côté J. In our view, the Court of Appeal’s reasons are complete having regard to the issues, and we are entirely in agreement with them. We would dismiss the appeal with costs.”

Real Property in Québec: Easements/Servitudes; Electrical Transmission Lines

Hydro-Québec v. Matta, 2020 SCC 37 (38254)

The disagreement between the courts below with regard to the characterization of the servitudes at issue essentially rests on the characterization of the post‑expropriation agreements. The characterization of the agreements at issue is so intimately linked to the assessment of the facts that this is more as a question of mixed fact and law than a pure question of law. The Court of Appeal erred in interfering with the trial judge’s conclusions in the absence of a palpable and overriding error; there is no such error in the conclusion, which is perfectly justifiable in light of the evidence. The trial judge was correct in concluding the agreements are servitude agreements. Servitude agreements are subject to the rules applicable to the interpretation of contracts. If their words are clear, effect must be given to the clearly expressed intention of the parties; but if the agreements, read as a whole, are vague, ambiguous or incomplete, the common intention of the parties must be sought. In substance, the agreements grant the appellant:

  • servitudes allowing it to place, replace, operate and maintain up to three electrical transmission lines;
  • servitudes for tree cutting and pruning;
  • servitudes of right of way; and
  • servitudes of non‑construction.

They do not mention any restrictions regarding the origin or destination of the electricity. The servitudes concern the lines crossing the servient land, not the substations located at either end of those lines. There is nothing in the words of the agreements that would explicitly or implicitly prevent the appellant from redirecting one of its lines toward another substation. The right to operate electrical transmission lines clearly includes the right to make modifications such as the one that was made here.

Tax: Derivative Contracts

MacDonald v. Canada, 2020 SCC 6 (38320)

The characterization of a derivative contract as a hedge turns on its purpose: the primary source for ascertaining a derivative contract’s purpose is the extent of the linkage between the derivative contract and an underlying asset, liability, or transaction; the linkage analysis begins with the identification of an underlying asset, liability or transaction which exposes the taxpayer to a particular financial risk, and then requires consideration of the extent to which the derivative contract mitigates or neutralizes the identified risk; the more effective the derivative contract is at mitigating or neutralizing the identified risk and the more closely connected the derivative contract is to the item purportedly hedged, the stronger the inference that the purpose of the derivative contract was to hedge. But, perfect linkage is not required to conclude the purpose of a derivative contract is to hedge. Here, the substantial linkage between the forward contract and the Appellant’s bank shares fully supports the conclusion that the forward contract was a hedge.

Torts/Class Actions/Franchises: Duty of Care; Pure Economic Loss

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 (38187)

The current categories of pure economic loss incurred between private parties are:

(1)  negligent misrepresentation or performance of a service;

(2)  negligent supply of shoddy goods or structures; and

(3)  relational economic loss.

A duty of care cannot be established by merely showing that a claim fits within a category of pure economic loss. It is necessary to determine whether the alleged loss represents an injury to a right that can be the subject of recovery in tort law and possesses the requisite factors to support a finding of proximity under that category. The manner in which pure economic loss is said to have occurred or how that loss has been catalogued within the categories of pure economic loss does not signify that the defendant whose negligence caused that loss owes the plaintiff a duty of care. The relevant “category” for the purpose of supporting a duty of care is that of proximity of relationship. Meaning, what is necessary to support a duty of care is that the relationship between a plaintiff and a defendant bear the requisite closeness and directness, such that it falls within a previously established category of proximity or is analogous to one. The proper inquiry is therefore not into whether the loss suffered by a particular plaintiff could have been foreseen, but whether the type of injury to a class of persons, within which the plaintiff falls, could have been foreseen. In other words, it is the intended effect of the defendant’s undertaking upon the plaintiff’s autonomy that brings the defendant into a relationship of proximity, and therefore of duty, with the plaintiff. Where that effect works to the plaintiff’s detriment, it is a wrong to the plaintiff. Having deliberately solicited the plaintiff’s reliance as a reasonable response, the defendant cannot in justice disclaim responsibility for any economic loss that the plaintiff can show was caused by such reliance. It is not enough to show that a defendant made an undertaking. An undertaking of responsibility, where it induces foreseeable and reasonable reliance, is formative of a relationship of proximity between two parties. We must therefore consider whether this undertaking, if made, was made to Mr. Sub franchisees, and for what purpose. Reliance on the part of the franchisees which falls outside the scope and purpose of that representation is neither foreseeable nor reasonable and therefore does not connote a proximate relationship. The undertaking, properly construed, was made to consumers, with the purpose of assuring them that their interests were being kept in mind, and not to commercial intermediaries such as Mr. Sub or Mr. Sub franchisees. Their business interests lie outside the scope and purpose of the undertaking. In the case of defective goods and structures, commercial parties between or among whom the product is transferred before it reaches the consumer will have had a chance to allocate risk and order their relationship via contract. And in assessing the proximity of relations among those parties ─ that is, in evaluating “expectations, representations, reliance, and the property or other interests involved” ─ courts must be careful not to disrupt the allocations of risk reflected, even if only implicitly, in relevant contractual arrangements.

Oral Judgments

 

Banking: Fraud; Insurance

Co-operators General Insurance Co. v. Sollio Groupe Coopératif, 2019 QCCA 1678; 2020 SCC 41 (38938)

Kasirer J.: “We are all of the opinion that the appeal should be dismissed, essentially for the reasons given by the Court of Appeal, with costs to the respondents. It should be made clear, however, having regard to para. 110 of the Court of Appeal’s reasons, that the result would not have been different had the account of the respondent La Coop Fédérée been in positive balance.”

Civil Procedure/CCAA in Québec: Litigation Funding; Priorities

9354-9186 Québec inc. v. Callidus Capital Corp., 2019 QCCA 171; 2020 SCC 10 (38594) (Oral judgment [below] rendered Jan, 23, 2020, with reasons to follow. Reasons for judgment rendered May 8, 2020)

The Chief Justice: “We are all of the view to allow the appeals and reinstate the decision of the Superior Court rendered by Justice Jean-François Michaud on March 16, 2018, with costs in this Court and in the Court of Appeal. Reasons to follow.”

Constitutional Law: Division of Powers; Pipelines

Reference re Environmental Management Act, 2019 BCCA 181; 2020 SCC 1 (38682)

The Chief Justice: “We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia.”

Criminal Law: Admissibility

R. v. S.H., 2019 ONCA 669; 2020 SCC 3 (38827)

Moldaver J. (Abella and Côté JJ. concurring): “A majority of the Court is of the view that the evidence adduced by the Crown after the re-opening was essentially confirmatory of the evidence that had already been adduced by the Crown showing that the appellant had constructive possession of the drugs in question. We agree with the majority of the Court of Appeal that the evidence led prior to the re-opening was overwhelming. In these circumstances, we are satisfied that the Court of Appeal did not err in applying the curative proviso to sustain the convictions. Accordingly, we would dismiss the appeal.” Brown J. (Martin J. concurring): “We would allow the appeal and order a new trial. In our view, the trial judge’s error in allowing the Crown to split its case led to an unfair trial, which miscarriage of justice cannot be cured: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 27.”

Criminal Law: Bail

R. v. Reilly, 2019 ABCA 212; 2020 SCC 27 (38785)

Brown J.:  “In these circumstances, which include the trial judge’s finding at para. 63 of her reasons (2018 ABPC 85, 411 C.R.R. (2d) 10) that the breach of s. 503 of the Criminal Code was an instance of a systemic and ongoing problem that was not being satisfactorily addressed, we are all of the view that there was no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41. The appeal is allowed and the stay restored.”

Criminal Law: “Battered Woman Syndrome”

R. v. Doonanco, 2019 ABCA 118; 2020 SCC 2 (38577)

Moldaver J.: “We are all of the view that the appeal must be allowed and a new trial ordered on all counts. The Crown’s failure to disclose Dr. Glancy’s report before Dr. Walker completed her testimony, when considered together with the Crown’s failure to cross-examine Dr. Walker on the contents of that report, interfered with Ms. Doonanco’s ability to know the case she had to meet and make full answer and defence. To that extent, we agree with the reasons of Justice Bielby, dissenting in the Court of Appeal. With respect, however, unlike Justice Bielby, we are not persuaded that the trial judge’s remedial ruling was capable of undoing the prejudice caused to Ms. Doonanco by the manner in which the Crown proceeded. In the circumstances, precluding Dr. Glancy from testifying was, in our view, the only way of preserving Ms. Doonanco’s right to a fair trial. The net effect of Dr. Glancy’s evidence was to call into question Dr. Walker’s competence and the reliability of her expert testimony by showing that she failed to consider, much less explain, a number of factors that Dr. Glancy found to be atypical of the battered woman’s syndrome — factors which undermined Dr. Walker’s conclusion that Ms. Doonanco was suffering from this syndrome when she killed her domestic partner. Because Dr. Glancy’s report was not disclosed to the defence before Dr. Walker completed her testimony, and because the factors that Dr. Glancy relied upon to characterize Ms. Doonanco’s case as atypical were never put to Dr. Walker by the Crown in cross-examination, the defence was not able to respond to Dr. Glancy’s critiques. This rendered Ms. Doonanco’s trial unfair, resulting in a miscarriage of justice (see Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (a)(iii)). Accordingly, the appeal is allowed, the convictions are set aside, and a new trial is ordered on all counts.”

Criminal Law: Entrapment

R. v. Li2019 BCCA 344; 2020 SCC 12 (38903)

Appeal heard by video-conference 06/11/20, and the Court on that day delivered the following judgment orally: Martin J.:  “Mr. Li pled guilty at trial, the trial judge entered a stay of proceedings based on entrapment, and the Court of Appeal lifted the stay and remitted the matter for sentencing. In this case, Mr. Li has a right of appeal to this Court under s. 691(2) (b) of the Criminal Code, R.S.C. 1985, c. C-46. The phrase “enters a verdict of guilty” includes making an order that sets aside a permanent stay where that order is tantamount to entering a verdict of guilty, thus securing the purpose of this provision, which is to ensure that an accused person has one level of appeal to raise a question of law arising from their conviction (see R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 38).  We recognize that neither level of court in this appeal had the benefit of this Court’s reasons in R. v. Ahmad, 2020 SCC 11. As explained in Ahmad, when investigating a suspected dial-a-dope operation, the police must have reasonable suspicion over the individual or over the phone number or over a combination of both, before they can ask to purchase drugs from the person answering the phone. Applying this framework and considering the totality of the circumstances, the police had reasonable suspicion, before making the call, that the phone number was being used for drug dealing. The police used a Swan sheet to record what actions they took to verify this tip. The tip was that a specific phone number was being used in a dial-a-dope operation to sell cocaine, the sales took place near a particular mall, and involved a tan Honda Odyssey with a specific licence plate. In addition to the phone number, the tip provided details such as which drug was for sale, the area of operation, a vehicle description, and licence plate number. The police confirmed the assertion of illegality by connecting this car and licence plate, and five other vehicles, to a person with an extensive and recent history of suspected dial-a-dope drug dealings. Therefore, there was no entrapment. As a result, we dismiss the appeal, enter a verdict of guilty, and remit the matter for sentencing.”

Criminal Law: Jury Challenges

R. v. Chouhan, 2020 ONCA 40 (39062) 

The Chief Justice: “A majority of the Court is of the view that the statutory change is constitutional and purely procedural and therefore has retrospective application. Accordingly, the appeal is allowed, the cross-appeal is dismissed and the conviction is restored. Reasons to follow.”

Criminal Law: Jury Selection

R. v. Esseghaier, et al., 2019 ONCA 672 (38861)

The Chief Justice: “The Court is of the view that the curative proviso at s. 686(1) (b)(iv) of the Criminal Code applies. The appeal is allowed. The matter is remitted to the Court of Appeal to address the remaining grounds of appeal. Reasons to follow.”

Criminal Law: Sexual Assault

R. v. J.C.R., 2020 ABCA 76; 2020 SCC 44 (39082)

The Court: “We would dismiss the appeal. The parties did not dispute that the trial judge erred in dismissing the accused’s application under s. 276.1 of the Criminal Code, R.S.C. 1985, c. C-46, to cross-examine the complainant. In our view, this error did not lead to a miscarriage of justice and falls within the curative proviso under s. 686(1)(b) because the evidence was otherwise overwhelming and a conviction was inevitable.  We do not endorse Slatter J.A.’s application of s. 683(1). Neither party sought this remedy before the Court of Appeal, and in this Court, both parties as well as the intervener urged us to reject his approach.”

Criminal Law: Sexual Assault

R. v. Mehari, 2020 SKCA 37; 2020 SCC 40 (39109)

The Court: “This Court has not decided whether uneven scrutiny, if it exists, can amount to an independent ground of appeal or a separate and distinct error of law. In any event, we see no error in respect of this argument that would have warranted intervention on appeal. Accordingly, the appeal is allowed and the matter remitted to the Court of Appeal to decide the grounds of appeal the majority did not address.”

Criminal Law: Sexual Assault

R. v. Delmas, 2020 ABCA 152; 2020 SCC 39 (39163)

Moldaver J.: ” A majority of the Court would dismiss the appeal. The trial judge did not engage in stereotypical reasoning in his assessment of the appellant’s evidence. To the extent he may have erred in drawing an illogical inference about the unlikelihood of the appellant having sex with the complainant while he was involved in a relationship with another woman, the error in the view of the majority was harmless having regard to the reasons as a whole, and it occasioned no wrong or miscarriage of justice. Likewise, while the failure to conduct a s. 276 voir dire (Criminal Code, R.S.C. 1985, c. C-46) regarding the complainant’s evidence of a past sexual relationship with the appellant was an error, it gave rise to no substantial wrong or miscarriage of justice. Justice Côté, dissenting, would allow the appeal for substantially the reasons of O’Ferrall J.A. She would not apply the curative proviso since she is not persuaded that there was no substantial wrong or miscarriage of justice in this case.”

Criminal Law: Sexual Assault

R. v. Kishayinew, 2019 SKCA 127; 2020 SCC 34 (38962)

Moldaver J.: “A majority of the Court is of the view that, when read in context, the trial judge’s reasons make it clear that he was satisfied, beyond a reasonable doubt, that the complainant did not subjectively consent to any sexual activity with Mr. Kishayinew. On this point, we are in agreement with the reasons of Justice Tholl in dissent, at paras. 52-78 of his judgment. The trial judge correctly recognized that, as a result of the complainant’s memory blackouts, the only evidence available on the issue of subjective consent was the circumstantial evidence ─ that the complainant was crying and disoriented, that she did not want to go with Mr. Kishayinew, that she did not consent to his attempts to kiss or touch her, that she attempted to leave the house several times, and that, upon recovering from her blackout, she felt frightened, “weird down below”, and wanted to escape. In our view, as the trial judge’s reasons at paras. 94, 96 and 97 (2017 SKQB 177 (CanLII)) make apparent, this evidence reasonably permits only one inference: that the complainant did not consent to any touching from Mr. Kishayinew. This finding is sufficient to support the conviction for sexual assault. Justice Côté, dissenting, would have dismissed the appeal, substantially for the reasons of the majority of the Saskatchewan Court of Appeal. Accordingly, in the result, we would allow the appeal, restore the conviction for sexual assault, and remand the sentence appeal back to the Court of Appeal.”

Criminal Law: Sexual Assault

R. v. Langan, 2019 BCCA 467; 2020 SCC 33 (39019)

Abella J.: “A majority is of the view to allow the appeal for the reasons of Chief Justice Bauman. Justices Côté and Brown would dismiss substantially for the reasons of Justice Stromberg-Stein.” Appeal allowed (3:2) re text messages, prior consistent statements, R. v. W.(D.). Pub. ban.

Criminal Law: Sexual Exploitation

R. v. Slatter, 2019 ONCA 807; 2020 SCC 36 (38870)

Moldaver J.: “We are all of the view that the appeal must be allowed, for the reasons of Justice Pepall, with which we agree. We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence. Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. Accordingly, we would allow the appeal and restore the conviction.”

Criminal Law: Sexual Interference & Assault

R. v. W.M., 2020 ONCA 236; 2020 SCC 42 (39114)

The Chief Justice: “We are all of the view that the appeal must be allowed for the reasons of Justice Miller. The trial judge’s mistake regarding the specific year of the sex offender treatment did not have any material impact on his overall assessment of the similar fact evidence or the accused’s credibility when one considers the trial judge’s reasons as a whole. In the result, no miscarriage of justice occurred. The appeal is allowed and the conviction is restored.”

Criminal Law: Vetrovec Warnings

R. v. Riley, 2019 NSCA 94; 2020 SCC 31 (39006)

Convictions quashed; new trial, re Vetrovec warning.

Leaves to Appeal Granted

 

Aboriginal Law: Flooding; Fiduciary Duties

Southwind v. Canada, 2019 FCA 171 (38795)

In the 1920s, members of the Lac Seul First Nation (“LSFN”) became aware of plans to build a dam outside their reserve to support downstream hydroelectric development. It was contemplated the dam would raise the level of Lac Seul and flood the reserve lands surrounding the lake. Canada did not seek LSFN’s consent to surrender its reserve land, nor expropriate the land. The dam was built in 1929 and the water level rose to cover over 11,000 acres of LSFN’s reserve land; nearly one-fifth of the reserve was rendered unusable. Canada, Manitoba and Ontario entered into agreements concerning compensation for losses. Canada reached a settlement with Ontario in 1943 and put settlement funds into the LSNF’s trust account. In 1985, LSFN filed a specific claim for the losses associated with the flooding. In 1991, LSFN initiated an action in Federal Court. The Federal Court awarded the Applicants $30M in equitable compensation for breach of fiduciary duty committed by Canada. On appeal, the majority dismissed the Applicants’ appeal.

Bankruptcy & Insolvency: Monitors

Ville de Montréal v. Le Groupe SMI inc., et al., 2020 QCCA 438 (39186)

The Court file contains information not available for inspection by the public, in the context of a monitored CCAA proceeding

Bankruptcy & Insolvency: Priorities

R. v. Canada North Group Inc., et al., 2019 ABCA 314 (38871)

Alta. Q.B. issued an order granting several insolvent corporations protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36. The Court provided charges in favour of the court-appointed Monitor, the interim financier and the corporate directors were to take priority over the claims of secured creditors and provided that they were not to be limited or impaired by the federal or provincial statutes. The Crown applied to vary the order, arguing that, notwithstanding any other federal statute, the Income Tax Act, among other statutes, provide the Crown’s claims for unremitted source deductions with priority over all other creditors’ claims.  The chambers judge found that the Companies’ Creditors Arrangement Act gives the court the ability to rank court-ordered priority charges ahead of the Crown’s interest in deemed trusts created by the Income Tax Act. The C.A. dismissed the appeal.

Civil Procedure: Foreign Judgments

H.M.B. Holdings Limited v. Attorney General of Antigua and Barbuda, 2020 ONCA 12 (39130)

In 2007, Antigua and Barbuda (Antigua), a country comprised of several islands in the Caribbean, expropriated property owned by H.M.B. Holdings Limited (HMB). The Judicial Committee of the Privy Council ordered Antigua to compensate HMB for the expropriation in 2014. In 2016, HMB brought an action in British Columbia to enforce the Privy Council judgment. Antigua did not defend this action and the B.C.S.C. granted default judgment. HMB then brought an application in Ontario under the Reciprocal Enforcement of Judgments Act to recognize the B.C. judgment, which Antigua opposed. The Ontario Superior Court of Justice: application to recognize and enforce foreign judgment in Ontario dismissed; C.A. appeal dismissed.

Civil Procedure: Limitation Periods; Discoverability

Grant Thornton v. Province of New Brunswick2020 NBCA 18 (39182)

The Province of New Brunswick (NB) commenced an action in negligence against Grant Thornton LLP, one of its partners, and Grant Thornton International Ltd. (“Grant Thornton”) re an audit of the financial statements of some corporations (“Atcon”) for the fiscal year ending January 31, 2009 (“F2009”). By the action, NB sought to recover damages corresponding to $50M it was required to pay, in March 2010, by virtue of loan guarantees provided to Atcon’s bank after Atcon’s bank successfully applied for a receivership order under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3  and for relief under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36 . NB claims it relied on Grant Thornton’s unqualified auditor’s report in agreeing to execute the loan guarantees. After paying the $50M, NB retained a different auditing firm to review and comment on Atcon’s F2009 financial position. In February 2011, that auditing firm provided NB with a draft report expressing the opinion that Atcon’s financial statements for F2009 had not been prepared in accordance with generally accepted accounting principles and that they overstated Atcon’s assets and net earnings. NB commenced its action on June 23, 2014. Grant Thornton sought summary judgment on the basis that NB’s claim was time‑barred. The motions judge allowed Grant Thornton’s motion, finding NB discovered its claim more than two years before commencing the proceedings. The C.A. allowed NB’s appeal, holding that the applicable test was more exacting than the one applied by the motions judge, so that the two‑year limitation period did not begin to run until a claimant discovered they have a claim, rather than discovering they have a potential claim.

Contracts in Québec: Limitation of Liability Clauses

6362222 Canada Inc. v. Prelco Inc., 2019 QCCA 1457 (38904)

The Respondent, Prelco Inc., a company specializing in the processing of flat glass, sued the Applicant, 6362222 Canada Inc. (Créatech), for additional costs and loss of profits associated with a project to implement an integrated management system for its operations. Créatech contested the application and filed a cross‑application for unpaid invoices. The Superior Court found Créatech was at fault in its implementation approach, the service provider was responsible for determining the appropriate type of implementation and this was an essential obligation. In its view, this fundamental error giving rise to the damage made the limitation of liability clause in the agreement inapplicable. Créatech was ordered to pay Prelco $1,872,266 with interest and the additional indemnity. The C.A. found the trial judge had not erred in determining the applicable principles or in applying those principles to the facts. The appeal and the incidental appeal were dismissed.

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.

Criminal Law: Automatism

R. v. Sullivan, 2020 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.

Criminal Law: Bail

Reilly v. R., 2019 ABCA 212 (38785)

The allegations against the Applicant were that he had an argument with his intimate partner; alleged he grabbed her by the neck, pushed her, pinned her down, and pushed her back against the stairs. She believed she briefly lost consciousness. As a result of the argument, the complainant had a swollen finger, and red marks on her neck and buttocks. At the time the Applicant was under conditions of probation requiring him to keep the peace (arising from a conviction for uttering threats against another person). The Applicant was arrested on April 4, 2017 at 11:50 a.m. He was not brought before a justice for his bail hearing until April 5, 2017 at 10:59 p.m. The Crown conceded the Applicant had been held for longer than 24 hours before he was taken before a justice contrary to s. 503(1)(a) of the Criminal Code, and this was a breach of his ss. 7, 9 and 11(e) Charter rights. The provincial court judge issued a stay of proceedings. The C.A. set aside the stay of proceedings and ordered the Applicant to stand trial.

Criminal Law: Bail

T.J.M. v. R., 2019 ABCA (38944)

There is a publication ban in this case, and the court file contains information that is not available for inspection by the public, in the context of bail re a minor.

Criminal Law: Compensatory Fines

R. v. Vallières, 2020 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).

Criminal Law: Jury Challenges

R. v. Chouhan, 2020 ONCA 40 (39062)

On September 19, 2019, Bill C‑75 came into force and modified the jury selection process under the Criminal Code by eliminating peremptory challenges and empowering trial judges to decide challenges for cause. The Respondent, Mr. Pardeep Chouhan, was charged with first degree murder. Prior to the jury selection procedure for his trial, and prior to Bill C‑75 coming into force, Mr. Chouhan brought a constitutional challenge to the amendments, arguing they infringed his rights under the Charter. In the alternative, Mr. Chouhan submitted, even if constitutionally valid, the amendments should not apply retroactively. The Ontario Superior Court of Justice dismissed the constitutional challenge, finding the amendments did not infringe any Charter rights, affected only procedural matters, and could be given retrospective effect. Mr. Chouhan’s jury was therefore constituted according to the amendments in the new process, and he was found guilty of first-degree murder by the jury. The C.A. unanimously affirmed the constitutional validity of the amendments, and agreed the change to challenges for cause could apply retrospectively. However, it ruled the elimination of peremptory challenges should not apply retrospectively to all pending cases, as it affected an accused’s substantive right to trial by jury. As such, this amendment should not have applied to the selection process in Mr. Chouhan’s case, and the jury was improperly selected. The C.A. overturned Mr. Chouhan’s conviction, and ordered a new trial. (Oral Judgment rendered Oct. 7, 2020, with reasons to follow)

Criminal Law: Jury Selection

R. v. Esseghaier, et al, 2019 ONCA 672 (38861)

Mr. Jaser and Mr. Esseghaier were charged with offences alleged to be terrorism. Before trial, Mr. Jaser’s counsel requested a challenge for cause to determine whether each prospective juror’s ability to decide the case would be affected by pre-trial publicity and the fact each accused was a member of a visible minority and Muslim. At the time, the Criminal Code contemplated using members of the jury pool, referred to as rotating triers or static triers, to decide challenges for cause of prospective jurors (rotating triers are two jurors who change by rotation as each additional jury member is sworn; static triers are two who hear and determine all challenges until the entire jury has been selected and sworn but who do not themselves become members of the jury). At the time, there was uncertainty in the case law regarding whether counsel could ask to have some or all sworn and potential jurors excluded from the courtroom during the hearing of each challenge. Mr. Jaser’s counsel requested rotating triers with unsworn jurors excluded, seeking to avoid exposing unsworn jurors to other jurors’ answers. He stated if the court determined this was not within its jurisdiction, then he chose static triers with unsworn jurors excluded. Mr. Esseghaier made no application in respect of the process. The trial judge ordered static triers with unsworn and sworn jurors excluded. The jury convicted Mr. Esseghaier and Mr. Jaser of terrorism offences. The C.A. held the request to use using rotating triers with unsworn jurors excluded should have been granted and the jury not properly constituted. It held that the error was not cured and the curative proviso in s. 686(1)(b)(iv) of the Criminal Code did not apply; it ordered a new trial. (Oral Judgment rendered Oct. 7, 2020, with reasons to follow)

Criminal Law: Murder One; Fresh Evidence

C.B.C. v. S.F.O., 2019 MBCA 122 (38992)

There is a publication ban in this case, as well as a sealing order, in the context of fresh evidence applications re a “murder one” conviction.

Criminal Law: Prison “Administrative Segregation”

Canada (Attorney General) v. Corporation of the Canadian Civil Liberties Association, 2019 ONCA 342 (38574)

Federal legislation permitted the use of “administrative segregation” in penitentiaries across Canada to maintain safety and security or to conduct investigations. The Applicant, Canadian Civil Liberties Association (“CCLA”) brought an application before the Ontario Superior Court of Justice arguing that ss. 31–37 of the Corrections and Conditional Release Act the legislative provisions authorizing administrative segregation, are unconstitutional. The application judge found the legislation authorizing administrative segregation violated s. 7 because it did not provide for an independent review of the decision to place an inmate in administrative segregation. Sections 31-37 of the CCRA were declared to be of no force and effect to the extent of the breach. The declaration of invalidity was suspended for one year, until December 18, 2018, to provide Parliament time to enact an appropriate legislative response. On appeal, the CCLA argued ss. 31-37 also violated s. 12 and s. 11(h) of the Charter The CCLA also raised a new s. 7 argument seeking a broader declaration banning the practice entirely for certain inmates (those aged 18-21, those with mental illness, and those placed in segregation for their own protection) and otherwise placing a cap of 15 consecutive days on administrative segregation for all inmates. The Respondent AG Can. did not challenge the application judge’s s. 7 decision. On November 21, 2018, the court reserved judgment. On December 17, 2018, the Ontario C.A. ordered the suspension of the application judge’s declaration of invalidity be extended to April 30, 2019. On March 28, 2019, the C.A. rendered its decision and held prolonged administrative segregation of any inmate, which is segregation for more than 15 consecutive days, does not survive constitutional scrutiny under s. 12 of the Charter. Therefore, ss. 31-37 of the CCRA was also found to infringe s. 12 and the infringement was not justified under s. 1. The provisions were of no force and effect to the extent of the violation and the declaration was to take effect 15 days from the date of the judgment. On October 16, 2018, the House of Commons introduced Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, which amends ss. 31-37 of the CCRA. The Bill received Royal Assent on June 21, 2019 and the new provisions are replacing ss. 31-37 of the CCRA came into force on November 30, 2019.

Criminal Law: Prison “Administrative Segregation”

Canada (Attorney General) v. British Columbia Civil Liberties Association, 2019 BCCA 228 (38814)

Similar summary to that immediately above.

Criminal Law: Self-Defence

R. v. Khill, 2020 ONCA 151 (39112)

The Applicant, Mr. Khill, was asleep at about 3:00 a.m. on February 4, 2016, when Ms. Benko woke him up and told him she had heard a loud banging. From the window, he could see his pickup truck parked in the driveway. The dashboard lights were on, which suggested to Mr. Khill that some person or persons were either in the truck or had been in the truck. Mr. Khill had received training as an army reservist several years earlier. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko. Mr. Khill went outside with his loaded shotgun to investigate the noise. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the open passenger door. It was Mr. Styres. Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest, and he died. According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated he had a gun and was turning to shoot Mr. Khill. Mr. Khill said he believed he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun. After a trial by judge and jury, Mr. Khill was acquitted of second degree murder on the basis of self-defence. The C.A. allowed the appeal, and ordered a new trial.

Criminal Law: Sexual Assault

R. v. G.F., 2019 ONCA 493 (38801)

There is a publication ban in this case, as well as a sealing order in the context of alleged sexual assault.

Criminal Law: Sexual Assault; Capacity to Consent

C.P. v. R., 2019 ONCA 85 (38546)

There is a publication ban in this case, and the Court file contains information not available for inspection by the public, in the context of alleged sexual assault by a young person on another young person.

Criminal Law: Sexual Offences

R. v. J.J., 2020 BCSC 349 (39133)

There is a publication ban in this case, in the context of whether the seven day notice requirement in s. 278.93(4) of the Criminal Code violates s. 7 of the Charter and cannot be saved under s. 1.

Criminal Law: Sexual Offences

R. v. R.V., 2019 ONCA 664 (38854)

There is a publication ban in this case, and on the party, in the context of an alleged unreasonable/inconsistent jury verdict.

Criminal Law: Trafficking; Sentencing

Felix v. R., 2019 ABCA 458 (39227)

Mr. Parranto and Mr. Felix each pleaded guilty to two counts of wholesale trafficking in fentanyl and other offences. For the fentanyl trafficking offences, Mr. Parranto received 4-year and 5-year consecutive sentences and Mr. Felix received two 7-year concurrent sentences. The C.A. set a 9-year starting point for wholesale trafficking in fentanyl. It held 13 years concurrent was appropriate for Mr. Felix’s offences but accepted 10-year terms concurrent proposed by Crown counsel and it sentenced Mr. Parranto to two consecutive 7 year terms.

Family Law in Québec: Confidential Mediation Settlements

Bisaillon v. Bouvier, 2020 QCCA 115 (39155)

Following their separation, Isabelle Bisaillon and Michel Bouvier attended five mediation sessions and then signed the standard agreement proposed by the Association de médiation familiale du Québec at the start of the process, which provided in part the content of the process was to remain confidential. At the end of the process, the mediator prepared a summary of the matters agreed upon in mediation and sent it to the parties, who did not sign it or have a formal agreement drawn up. On application by Ms. Bisaillon for judicial partition into equal shares of a building held in undivided co-ownership through sale by judicial authority, Mr. Bouvier argued in defence a settlement existed: the summary of the matters agreed upon in mediation amounted to an agreement. In the Superior Court, Ms. Bisaillon argued the mediation process was subject to a fundamental principle of confidentiality, which meant evidence of the summary of the matters agreed upon and of anything arising from the mediation was inadmissible. The summary was not a contract and was not enforceable or binding if not signed or homologated, which was the case here. Moreover, the cashing of the cheques written by Mr. Bouvier did not amount to the acceptance or implementation of an agreement. The Superior Court, among other things, confirmed the existence of the parties’ agreement on the partition of the building and ordered its implementation. It found the summary of the matters agreed upon and any other related document or discussion to be admissible in evidence. Although the parties had agreed in their mediation contract the summary of the matters agreed upon was privileged, they had implicitly waived the privilege by implementing and relying on the agreement they had reached. The C.A. dismissed Ms. Bisaillon’s appeal.

Family Law: Recalculation of Arrears

Colucci v. Colucci, 2019 ONCA 561 (38808)

The Applicant and Respondent were married in 1983 and divorced in 1996. They had two children. The parties’ divorce judgment, dated May 1996, provided for custody of the children to the Respondent and required the Applicant to pay child support in the amount of $115 per week per child. The Applicant’s child support obligations ended in 2012. By 2012, the Applicant had fallen into substantial arrears and his taxable income was in decline from 1997 onwards. The child support arrears with interest totalled more than $170,000. In 2016, the Applicant brought a motion to retroactively vary the child support and to fix the arrears of child support, if any, and determine the payments on those arrears in accordance with his income. The motion judge recalculated and reduced the arrears owing to $41,642. The C.A. allowed the appeal in part and set aside the paragraph of the motion judge’s order which reduced the arrears owing. The Applicant’s cross-appeal from the costs award was dismissed.

Human Rights in Québec: Discrimination

Ward v. Commission des droits de la personne et des droits de la jeunesse (Gabriel et autres), 2019 QCCA 2042 (39041)

As part of a stand-up routine, comedian Mike Ward used dark humour to “deflate” what he called the “sacred cows” of Québec’s artistic milieu in reference to a number of prominent public figures. One of his subjects was Jérémy Gabriel, a young man with Treacher Collins Syndrome who had become famous by singing for well-known public figures. In his routine, Mr. Ward made a number of comments relating to physical characteristics of Mr. Gabriel caused by his handicap. Mr Gabriel and his parents filed a complaint of discrimination with the Commission des droits de la personne et des droits de la jeunesse. The Commission submitted an application to the Human Rights Tribunal. The Tribunal concluded that Mr. Ward’s comments were discriminatory under Québec’s Charter of human rights and freedoms. It held the comments violated Mr. Gabriel’s right to dignity and the violation was not justified by Mr. Ward’s right to freedom of expression. The Tribunal awarded damages for moral injury and punitive damages to Mr. Gabriel and to his mother. The majority of the C.A. allowed Mr. Ward’s appeal in part; while it held the finding of discrimination against Mr. Gabriel was reasonable, it quashed the order awarding damages to Mr. Gabriel’s mother.

Insurance: Coverage; Alcohol Prohibition; Estoppel

Bradfield v. Royal Sun Alliance Insurance Company of Canada2019 ONCA 800 (38949)

Mr. Devecseri was insured by the Respondent Royal Sun Alliance Insurance Company of Canada (RSA) under a standard motor vehicle policy. Under this policy, Mr. Devecseri was prohibited from operating a motorcycle with any alcohol in his bloodstream. To do so would constitute a policy violation. The Applicant, Jeffrey Bradfield, Mr. Devecseri and Paul Latanski were riding their motorcycles. Mr. Devecseri drove onto the wrong side of the road and collided with Jeremy Caton’s automobile. Mr. Devecseri was killed. Mr. Caton and Mr. Bradfield were injured. RSA engaged an adjuster to investigate the accident. The adjuster obtained the police report, which made no mention of alcohol. The adjuster noted the Coroner’s report would confirm whether alcohol had been a factor in the accident, but neither he, nor RSA took steps to obtain the report. Mr. Bradfield commenced and later settled an action against Mr. Devecseri’s estate and his own insurer, for uninsured and underinsured coverage, and Mr. Caton successfully brought a personal injury action against Mr. Devecseri and Mr. Bradfield. RSA retained counsel to defend Mr. Devecseri’s estate in both actions. Three years after the accident, RSA became aware Mr. Devecseri consumed beer before the accident, and took steps to obtain the Coroner’s report. The report confirmed Mr. Devecseri’s blood alcohol level was above zero at the time of death, confirming he had breached the insurance policy. This entitled RSA to take an off‑coverage position and cease defending Mr. Devesceri’s estate. RSA took an off‑coverage position shortly after. Mr. Bradfield commenced an action against RSA alleging it was too late for RSA to take an off‑coverage position. Mr. Bradfield argued RSA was or should have been aware of the policy breach, but nevertheless undertook to defend Mr. Devesceri’s estate to the point of examinations for discovery. In his view, RSA had waived Mr. Devecseri’s policy breach, or was estopped for denying the coverage. Sosna J. granted the application; however, the C.A. allowed RSA’s appeal and set aside that decision.

Insurance: Internet Fraud

Co-Operators General Insurance Company v. La Coop fédérée, et al., 2019 QCCA 1678 (38938)

La Coop fédérée (“La Coop”) was a customer of the National Bank of Canada (“NBC”) that was a victim of phishing, Internet fraud aimed at obtaining confidential information through messages that appear to come from an institutional body or a third party that is trustworthy. That fraud resulted in the electronic transfer of several million dollars out of La Coop’s account. La Coop holds two insurance policies that might apply to the loss incurred: (1) a policy for up to $15 million issued by the Co‑operators General Insurance Company (“Co‑operators”); and (2) a $1 million policy issued by Liberty International Underwriters (“Liberty“). Liberty paid the coverage limit provided for in the contract, but Co‑operators denied coverage. La Coop instituted proceedings for a declaratory judgment (File No. 500‑17‑092055‑154 (“154”)) in order to have its rights and obligations under the two policies determined, among other things. Liberty filed an originating motion (File No. 500‑17‑092579‑161 (“161”)) under art. 2496 C.C.Q., the provision governing the relationship among multiple insurers. Liberty sought in part to recover from Co‑operators a portion of the amounts it had paid La Coop, in proportion to the insurance limits of each policy. The Superior Court allowed La Coop’s originating motion in part and ordered Co‑operators to pay Liberty $726,124.47. Co‑operators appealed some of the conclusions in both of the cases decided by the Superior Court. The appeal in File No. 154 was allowed in part, and the appeal in File No. 161 was allowed in full.

Insurance: Releases

City of Corner Brook v. Bailey2020 NLCA 3 (39122)

The Respondent, Ms. Bailey, struck a city employee with her husband’s motor vehicle when the employee was performing road work. The employee commenced an action against her (“employee action”). She referred the matter to her insurer. Ms. Bailey and her husband then commenced a separate action against the Applicant, the City of Corner Brook (“City”) for alleged property damage and physical injury arising from the accident. The Baileys settled their claim with the City; they executed a release through their respective legal representatives and discontinued their action. Four years later, in the course of the employee action, counsel for Ms. Bailey’s automobile insurers filed a defence and issued a third-party notice to the City claiming the City was liable to the employee. The City took the position the release precluded such a claim. The trial judge granted the City’s application for summary trial. The C.A. allowed Ms. Bailey’s appeal, interpreting the release as releasing only the claims in the action the Baileys had commenced against the City and not applying to a claim to recover damages of a third party.

Intellectual Property/Universities: Copyright

York University v. Copyright Licensing Agency, 2020 FCA 77 (39222)

Access Copyright commenced an action against York University (“York”) to enforce an interim tariff set by the Copyright Board of Canada as it relates to copying activities by York’s employees between September 1, 2011 and December 31, 2013. The fees payable related to the paper copying of course packs for York students, digital copying through learning management systems, and other copying. York defended on the basis the interim tariff was not approved and therefore cannot be enforced but is only binding on consent. York counterclaimed, requesting a declaration that any reproductions made by its employees that fell within the Fair Dealing Guidelines it imposed come under the “fair dealing” exception in s. 29 of the Copyright Act. The Federal Court granted Access Copyright a declaration York, either directly or vicariously, from September 2011 to December 2013, reproduced and authorized the reproduction of copyright protected works and must pay royalties to Access Copyright under the interim tariff. The Court held York’s Guidelines were not fair in either their terms or their application and it dismissed York’s counterclaim and claim for declaratory relief. The Fed. C.A. allowed York’s appeal, set aside the Federal Court decision and dismissed Access Copyright’s action on the basis the interim tariff is not mandatory for users who do not opt for a licence. The Court dismissed York’s appeal of the dismissal of its counterclaim.

Labour Law: Jurisdiction Re Alleged Discrimination

Northern Regional Health Authority v. Linda Horrocks – and – Manitoba Human Rights Commission, 2017 MBCA 98 (37878)

Ms. Horrocks was a unionized healthcare aide with Northern Regional Health Authority’s (“NRHA”) personal care home in Flin Flon, Manitoba. She was subject to a collective agreement that forbade discrimination based on “physical or mental disability”, which was also a statutorily protected characteristic under the Manitoba Human Rights Code. Most of the residents of the personal care home were elderly with significant personal care needs. Ms. Horrocks suffered from alcohol dependence which the NRHA conceded was a disability protected by the collective agreement and the Code. In June 2011, after she was found to be intoxicated at work, the NRHA suspended her without pay pending an investigation. The NRHA offered to allow Ms. Horrocks to return to work if she entered into an agreement that included terms requiring her total abstinence from alcohol consumption. Ms. Horrocks refused to sign the agreement on the basis that it was discriminatory toward a person with a disability. The Union grieved Ms. Horrock’s termination and on April 5, 2012, a settlement was reached whereby the NRHA agreed to allow her to return to work on terms that included abstinence, counselling and random testing conditions. Afterward, the NRHA received two reports of Ms. Horrocks being intoxicated outside the workplace. On April 30, 2012, her employment was terminated. She did not file a grievance under the collective agreement but brought a complaint under the Code. The NRHA objected to the adjudicator’s jurisdiction, arguing that the essential character of the dispute underlying the discrimination complaint was within the exclusive jurisdiction of a labour arbitrator under the collective agreement. The Chief Adjudicator disagreed and went on to determine that the NRHA had violated the discrimination provisions of the Code on the basis of the complainant’s alcohol dependency disability during her employment. Her jurisdiction decision was set aside on judicial review. The reviewing judge concluded that the essential character of the dispute was whether there was just cause to terminate the complainant’s employment, which was a matter within the exclusive jurisdiction of a labour arbitrator. The Court of Appeal concluded that the reviewing judge erred in overturning the Chief Adjudicator’s determination as to the essential character of the dispute. However, the Chief Adjudicator also erred by taking too sweeping a view of her jurisdiction.

Media in Québec: Access to Court Documents

MédiaQMI inc. v. M.K., 2019 QCCA 814 (38755)

The Respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (CIUSSS) instituted an action against the Respondent Magdi Kamel, a former managerial employee. The CIUSSS claimed a sum of money equal to the amount reimbursed to Mr. Kamel for allegedly unlawful personal expenses, as well as damages and a Norwich order to obtain certain financial information from a bank about its customer, Mr. Kamel. A Norwich order was authorized, as was the sealing of the record for a period of 120 days, which was later renewed. The sealed record contained four exhibits at the time, including an investigation report produced by forensic accounts at the request of the CIUSSS. The Applicant media company, MediaQMI Inc., filed a motion to end the sealing and applied for access to the contents of the record and to the originating pleading. The CIUSSS filed a discontinuance of its action against Mr. Kamel. Mr. Kamel filed an application to have the originating pleading withdrawn from the record or, alternatively, sealed. During the hearing of Mr. Kamel’s application, the CIUSSS also applied for the withdrawal of Exhibits P‑1 to P‑4. MediaQMI contested both applications. The Superior Court rendered judgment. It held the originating pleading had to be kept in the record and made public but the CIUSSS could withdraw Exhibits P‑1 to P‑4 from the record. MediaQMI then appealed the judge’s conclusion concerning the withdrawal of the exhibits. A majority of the C.A. dismissed the appeal. A dissenting judge would have allowed the appeal.

Municipal Law: Elections

Toronto (City) v. Ontario (Attorney General)2018 ONCA 761 (38921)

In 2018, an election began for Toronto City Council based on 47 wards. Closing date for nominations was July 27, 2018. The election date was October 22, 2018. As well, the Toronto School Board ran elections based on the same ward structure. After candidates were certified, the Legislative Assembly of Ontario enacted the Better Local Government Act. The Act reduced the number of wards to 25 and changed ward boundaries. This disrupted election campaigns. Applications were commenced challenging the constitutionality of the Act. The application judge granted the applications. He found the Act in breach of s. 2(b) of the Charter. He ordered the provisions reducing the number of wards of no force and effect and he ordered the election to proceed on the previous 47 ward structure. Before the election, the C.A. stayed the application judge’s decision and the election proceeded based on 25 wards. After the election, a majority of the C.A. allowed an appeal and set aside the application judge’s decision.

Religious Institutions: Membership

Ethiopian Orthodox Tewahedo Church of Canada v. Aga2020 ONCA 10 (39094)

The Ethiopian Orthodox Tewahedo Church of Canada was an incorporated religious organization with a constitution and bylaws. A committee of members was appointed to investigate other members influenced by Protestant theology who began opposing the veneration of St. Mary. The committee set out findings and a recommendation to purge heretics in a report to the church’s Archbishop. The Archbishop implemented other discipline. Five members of the committee objected. They refused to cease objecting and their dispute with the Archbishop and the church’s High Priest culminated in their expulsions. The expelled members commenced an action for relief including declarations the decisions to expel them were null and void, their rights under s. 2(a) of the Charter were violated, and other relief including production of some records. The church applied for summary judgment dismissing the action. The motions judge granted summary judgment and dismissed the action. The C.A. allowed an appeal, set aside the summary judgment and ordered the case returned for trial. “The motions for leave to intervene by Evangelical Fellowship of Canada; and Association for Reformed Political Action, Canadian Council of Christian Charities and Christian Legal Fellowship (jointly) are dismissed, without prejudice to the right to file a motion for leave to intervene in the appeal.”

Tax: Foreign Accrual Property Income

R. v. Loblaw Financial Holdings Inc., 2020 FCA 79 (39220)

The issue in dispute is whether, during the 2001 to 2005 and 2008 and 2010 taxation years, the income of Glenhuron Bank Limited (GBL), a bank licenced in Barbados, was foreign accrual property income (FAPI) pursuant to ss. 91 and 95 of the Act. If so, the Respondent’s taxable income in Canada must include a percentage of its affiliate’s FAPI equivalent to the participating percentage of the Respondent’s shares in GBL. FAPI includes income from an investment business. The definition of investment business in s. 95(1) of the Act exempts a business, other than a business conducted principally with non‑arm’s length persons, of a regulated foreign bank with greater than five full-time employees. The Respondent appealed its tax reassessments on the basis as GBL was a regulated foreign bank that met the added conditions, its income for the taxation years in question was not FAPI. The Applicant argued GBL was not a foreign bank, did not have greater that five full time employees and was not conducting business principally with non‑arm’s length persons, since it was not in competition with anyone. The Crown also argued the general anti‑avoidance rule applied to a series of transactions by the Respondent and GBL to give the appearance of compliance with the “investment business” exception.  The Tax Court allowed the Respondent’s appeals in part, holding the foreign exchange gains or losses arising on GBL’s investment in short term securities should be income account. However, the Court determined that while GBL is a regulated foreign bank with more than the equivalent of five full time employees, it was conducting business principally with related persons and therefore could not benefit from the financial institution exemption from investment business; it found, in obiter, there had been no tax avoidance transactions. The Fed. C.A. allowed the Respondent’s appeal, set aside the decision of the Tax Court, and referred the reassessment back to the Minister for reconsideration and reassessment on the basis GBL’s FAPI consists only of income from investment management services provided to non‑arm’s length parties; the receipts side of banking should not be considered when determining whether the investment business was conducted principally with non-arm’s length parties.

Tax: Treaties; GAAR

Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43 (39113)

The Respondent, a resident of Luxembourg, claimed an exemption from Canadian income tax under Article 13(5) of the Canada‑Luxembourg Income Tax Convention 1999 (“Treaty”) for a capital gain arising from the sale of the shares of its wholly‑owned Canadian subsidiary, Alta Canada. Alta Canada carried on a shale oil business in the Duvernay shale oil formation of northern Alberta, controlling a net acreage of 67,891 and drilling six horizontal and vertical wells in the relevant period. An issue arose as to the application of Article 13(4) of the Treaty, under which Canada retains the right to tax capital gains arising from the disposition of shares whose value derives principally from “immovable property”. The Respondent relied on an exclusion to that provision that applies when the business of the company was carried on in the property. CRA denied the exemption on the ground substantially all Alta Canada’s interest remained immoveable property because it drilled and extracted in only a small portion of the area it controlled and had allegedly acquired the leases and licences with an intention of selling them in the short-term; alternatively, GAAR under s. 245 of the Income Tax Act operated to deny the tax benefit. The parties agreed there was a “tax benefit” and an “avoidance transaction” but disagreed on whether an “abuse” or “misuse” triggered the application of GAAR. The Tax Court of Canada allowed the Respondent’s appeal of the reassessments for the 2013 taxation year and referred the matter back to the Minister for reconsideration and reassessment in accordance with its reasons for judgment; holding the Respondent’s interest in the property constituted Excluded Property and that GAAR did not prevent the Respondent’s entitlement to the exemption under Article 13(5) of the Treaty. The Fed. C.A. dismissed CRA’s appeal.

Torts: Medmal

Armstrong v. Ward, 2019 ONCA 963 (39049)

In February 2010, Dr. Ward removed Ms. Armstrong’s colon using laparoscopic surgery. The surgery appeared to have been uneventful and there was no sign Ms. Armstrong had been injured. Over the next several weeks, however, she developed increasingly more concerning post-operative abdominal pain. A CT scan revealed her ureter was blocked with scar tissue, causing severe damage to her left kidney. She was required to undergo a second surgery to remove her kidney in October 2010. She sued Dr. Ward, alleging he caused the scar tissue that formed the blockage in her ureter by improperly using a cauterizing device during the colectomy, known as a LigaSure. Ms. Armstrong contended Dr. Ward negligently touched or came within two millimetres of her ureter with the LigaSure during the colectomy procedure, causing a thermal injury. The trial judge held Dr. Ward was liable in negligence for the damage caused to Ms. Armstrong’s ureter. This decision was overturned on appeal.

Torts/Municipal Law: Snow Removal

Nelson (City of) v. Marchi, 2020 BCCA 1 (39108)

There was a heavy snowfall in Nelson, B.C. overnight on January 4-5, 2015. The City work crews plowed the main commercial street early in the morning of January 5. They did so in a manner that created snowbanks or “windrows” along the curb and onto the sidewalk. The Respondent, Ms. Marchi parked her car in an angled parking spot on the north side of main commercial street. When Ms. Marchi left her car, she encountered the snowbank that had been left by the City’s work crews a day and a half previously. Seeing no other means of getting onto the sidewalk, she tried to cross the snowbank. As she did so, her right foot dropped through the snowbank, and she suffered serious injury to her leg. Ms. Marchi sued the City, alleging it had been negligent in leaving windrows along the road, leaving no space for pedestrians to cross from their car onto the sidewalk. The trial judge dismissed Ms. Marchi’s action in negligence on the grounds the City’s decisions regarding plowing activities were bona fide policy decisions, governed by factors including budgetary social and economic factors, including the availability of manpower and equipment. As such, the trial judge concluded the City’s decisions were immune from liability. The trial judge also concluded, in any event, Ms. Marchi understood and accepted the risk of walking into the snowbank, with inappropriate footwear, and failed to test the snow to determine whether it could bear her weight. The C.A. allowed the appeal, on the grounds the trial judge had made significant errors of fact and law, which had coloured his finding the City’s snow clearing activities were immune from liability. The court allowed the appeal, set aside the order dismissing the Ms. Marchi’s action, and ordered a new trial.