Granted (3)


Criminal Law: Aiding & Abetting

Cowan v. R., 2020 SKCA 77 (39301)
Following a trial before a judge sitting alone, Mr. Cowan (appellant on the appeal as of right/Respondent on the leave application) was acquitted of armed robbery and of having his face masked with intent to commit robbery. The theories of the Crown (Respondent on the appeal as of right/Applicant on the leave application) at trial were Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory. A majority of the C.A. allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial on the robbery charge. Although it dismissed the Crown’s arguments under the principal theory, the majority was satisfied the trial judge made a legal error in the application of s. 21(1)(c) and s. 22(1) of the Criminal Code, by restricting himself to consideration of whether the Crown had proven Mr. Cowan abetted or counselled the principal offender(s). That error had a material bearing on Mr. Cowan’s acquittal, because it led the trial judge to overlook relevant and probative evidence which strongly supported a finding of guilt. The majority then considered remedy and held a new trial should be ordered. It said the Crown’s appeal with respect to the acquittal on the principal theory was dismissed, so the new trial should proceed only on the question of whether Mr. Cowan was guilty of robbery as a party, on the basis of abetting or counseling. Jackson J.A., dissenting, would have dismissed the Crown’s appeal in its entirety. She agreed with the majority that the Crown had not discharged the burden upon it to justify a new trial on the basis the trial judge made an error of law when he concluded Mr. Cowan had not personally committed the offence of robbery. However, she also concluded the trial judge did not err by limiting himself to considering two named individuals only as being principals only to the offence, as he was responding to the evidence and submissions. If the trial judge did commit an error of law, Jackson J.A. was of the view it was not of sufficient materiality for the court to overturn the acquittal and order a new trial. “The application for leave to appeal…filed by Her Majesty the Queen, is granted.”

Criminal Law: Constitutionality of Mandatory Minimums 

R. v. Sharma, 2020 ONCA 478 (39346)
In 2016, the Respondent, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act  (“CDSA ”). At the time of the commission of the offence, the Respondent was 20 years old and had no prior criminal record. A Gladue report was prepared, and expert evidence was tendered on sentencing to explain the link between colonialism and racism to the criminalization of Indigenous women. After initially recommending a sentence in the range of 6 years, the Crown reduced its recommendation during the sentencing hearing to 18 months imprisonment. The Respondent sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two‑year mandatory minimum sentence under s. 6(3) (a.1 ) of the CDSA and of ss. 742.1 (b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found the two‑year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA  violated s. 12  of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1 (b), and he dismissed the s. 15 challenge to s. 742.1 (c). The Respondent was sentenced to 18 months imprisonment, less one month for pre‑sentence custody and other factors. The Respondent appealed and, with the Crown’s consent, also brought a constitutional challenge to (e)(ii) of the Criminal Code. A majority of the C.A. allowed the appeal. Sections 742.1 (c) and 742.1 (e)(ii) were found to infringe both ss. 7  and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment. “The application for leave to appeal…is granted.”

Criminal Law: Drive-by Shooting 

Russell, et al. v. R., 2020 BCCA 108 (39274)
The three Applicants, Ms. Dingwall, Mr. Russell, and Mr. Richet, were convicted of aggravated assault and various firearm offences in connection to a drive-by shooting occurring outside a house in Mackenzie, British Columbia. At trial, the Crown’s case was based on circumstantial evidence. The trial judge concluded Mr. Russell and Mr. Richet were guilty as principals or aiders or abettors for all charges. Ms. Dingwall was found guilty as an aider or abettor for the charges relating to the drive-by shooting and as a principal or aider or abettor for the charges related to the burning of a truck. The three Applicants appealed their respective convictions. The majority at the B.C.C.A. dismissed the appeals. First, the majority held the verdicts were not unreasonable. There was agreement with the trial judge no inference other than guilt was available given the evidence and absence of evidence, assessed logically, and in light of human experience and common sense. The majority also disagreed with the arguments that (1) there was a failure to consider each accused separately; (2) the principle in R. v. Thatcher, [1987] 1 S.C.R. 652 is inapplicable in a trial before judge alone (this principle being the law is indifferent to whether the accused personally committed the offence as a principal or aided and abetted another, so long as the court is satisfied beyond a reasonable doubt the accused did one or the other); and (3) there was a failure to provide adequate reasons. In dissent, Butler J.A. disagreed with the disposition of Ms. Dingwall’s appeal relating to the drive-by shooting charges. He would have allowed her appeal with respect to counts 3, 4 (discharging a firearm with intent to wound), count 5 (intentionally discharging a firearm while being reckless as to the life or safety of another person) and count 6 (committing aggravated assault), and directed acquittals for those offences. In his view, the trial judge erred in concluding the only rational inference to be drawn from the evidence was Ms. Dingwall aided or abetted in the offences described under those counts. To Butler J.A., the trial judge failed to properly consider the lack of any evidence about Ms. Dingwall’s activities before and during the shooting offences, and failed to consider the absence of evidence given her potential liability as a party, rather than a principal, to those offences. As Ms. Dingwall’s participation in the offences was not the only rational inference on the evidence, the Crown could not be taken to have met its burden of proof and the trial judge’s verdict was therefore unreasonable. “The motion for an extension of time to serve and file the joint application for leave to appeal is granted. Leave to appeal from the judgment of the Court of Appeal for British Columbia…is granted to Christopher Ryan Russell and Kelly Michael Richet only on the charges for which Meranda Leigh Dingwall can appeal as of right — counts 3 to 6 — based on Butler J.A.’s dissent at the Court of Appeal. Leave to appeal is denied to all three applicants on all of the other counts for which they were convicted and whose convictions were unanimously upheld by the Court of Appeal.”

Dismissed (18)

Civil Procedure: Limitation Periods 

Wang v. Alberta (Justice), 2019 ABCA 507 (39250)
Following a criminal prosecution for allegedly making threats against his work supervisors, Mr. Wang’s employment was terminated in 1993. In 2018, Mr. Wang filed a claim against the Crown, seeking $4M in damages for various legal wrongs allegedly committed by his former employer, his lawyer, the police, the Crown, and various judges and other officials from the justice system who were involved in his case. A master at the Court of Queen’s Bench set aside Mr. Wang’s attempt to note the Crown in default and dismissed his application for summary judgment; the Crown was permitted to defend against the claim. Mr. Wang’s appeal from this decision was dismissed at the Court of Queen’s Bench. The Crown then brought an application to strike Mr. Wang’s claim pursuant to the Limitations Act. The Court of Queen’s Bench confirmed the order setting aside Mr. Wang’s noting the Crown in default, and dismissed his amended statement of claim, finding it was indeed time‑barred pursuant to the Limitations Act. Mr. Wang’s claim against the Crown was struck in its entirety. The C.A. allowed Mr. Wang’s appeal in part; it confirmed the orders setting aside his noting the Crown in default and dismissing his application for summary judgment, but overturned the dismissal of his claim in its entirety as being time‑barred. “The application for leave to appeal…is dismissed with costs to the respondent.”

Criminal Law: “Dissociative Act Manslaughter” 

Wu v. R., 2020 BCCA 128 (39313)
There is a publication ban in in this case, in the context of second degree murder of a spouse. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Fraud 

Lu v. R., 2020 QCCA 625 (39242)
The Respondent Crown alleged the Applicant, Ms. Lu, had committed fraud over $5,000 on the government and had conspired with Ms. Zhao to commit that fraud. The offences were connected with the purchase of a daycare centre involving Ms. Zhao. The Court of Québec found Ms. Zhao had, at Ms. Lu’s request, served as a prête‑nom for the purchase of the daycare centre and the prosecution had shown Ms. Lu had intentionally participated in a scheme to deceive the government, a scheme that had in fact caused it economic loss. Ms. Lu was convicted of the fraud and conspiracy charges laid against her. The C.A. unanimously allowed the appeal in part, set aside the conviction on the count of conspiracy and dismissed the appeal on the count of fraud. It found the judge had not erred in assessing Ms. Lu’s credibility and the guilty verdict on the count of fraud was reasonable in light of the evidence. “The application for leave to appeal…is dismissed.”

Criminal Law: Municipal Corruption 

Bergevin v. R., 2020 QCCA 658 (39291)
In 2013, the Applicant, Mr. Bergevin, gave a sum of money to a man named René Lafrance, a sum that was given to the mayor of the city of Châteauguay. Mr. Bergevin was charged with three offences in connection with the giving of that sum of money (conspiracy, breach of trust, municipal corruption). The Court of Québec convicted Mr. Bergevin on the count of municipal corruption (s. 123(1) of the Criminal Code) and acquitted him on the other counts. It found from the evidence Mr. Bergevin intended to aid Mr. Lafrance to commit the offence of corruption and he could not have been unaware Mr. Lafrance was committing the offence. The C.A. dismissed the appeal. It held the trial judge had not erred in finding the Crown had proved the essential elements of the offence of municipal corruption beyond a reasonable doubt. “The application for leave to appeal…is dismissed.”

Criminal Law: Right to Counsel 

Catellier v. R., 2020 QCCA 850 (39342)
Mr. Catellier was charged with breaking and entering a dwelling‑house and committing assault therein, and with committing assault while carrying a weapon. He argued his right protected by s. 10(b) of the Charter had been violated because he had not had a reasonable opportunity to contact counsel of his choice before being questioned by the police. The Court of Québec found Mr. Catellier’s right to retain and instruct counsel without delay had not been violated because he had not been diligent in exercising his right. The police could therefore proceed with the interview. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Second Degree Murder 

Herlichka v. R., 2020 ONCA 307 (39322)
Mr. Herlichka assaulted Mr. Mixemong while intoxicated. Mr. Mixemong later died at hospital. Mr. Herlichka was charged with second degree murder. He pled guilty to manslaughter. The jury charge in part directed the jury to decide the extent of consumption of alcohol and drugs by Mr. Herlichka and the effect it had on his ability to form an intention either to kill Mr. Mixemong or mean to cause him bodily harm with the foresight the likely consequence was death and was reckless whether death ensued or not. The jury found Mr. Herlichka guilty of second degree murder. The C.A. dismissed an appeal. “The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Defamation in Québec: Print Media 

Guimont v. The Canadian Press, 2020 QCCA 254 (39306)
The Applicants brought an action in damages for defamatory libel against the Respondents, a reporter who had written an article and the newspapers that had published it. The article related to a decision in which the C.A. had set aside a guilty finding against the Applicants and ordered a stay of proceedings in a case against them concerning the possession and exportation of controlled goods. The Applicants alleged the article did not accurately relate the C.A.’s decision, it contained defamatory comments and the Respondents had committed a fault in not obtaining their version of the facts. The Superior Court found the reporter had related the content of the C.A.’s decision accurately and in good faith, without misrepresenting its content, and the Respondents’ application to dismiss the Applicants’ action was well founded. Finding the Applicants’ action had no chance of success and their proceeding was unfounded, the court reserved the Respondents’ right to claim their fees and disbursements. The C.A. dismissed the Applicants’ motion to present new evidence and dismissed their appeal, finding the documents the Applicants wished to produce were irrelevant or did not constitute new evidence, and concluding the Applicants’ action had no chance of success. “The application for leave to appeal…is dismissed with costs to the respondents.”

Employment Law: Termination 

Swegon North America Inc. v. Waksdale, 2020 ONCA 391 (39326)
The Applicant, Mr. Waksdale, worked for the Respondent Swegon North America Inc., for eight months before being let go without cause. Swegon provided two weeks’ salary, relying on the terms of a “termination without cause” provision in the employment agreement. Mr. Waksdale sued Swegon for wrongful dismissal and failure to provide reasonable notice in the form of six months of salary. Mr. Waksdale argued another provision in the employment agreement, governing situations of termination for cause, was invalid and thus rendered the entire agreement (or at least, all provisions dealing with termination issues) void and unenforceable. He filed a motion for summary judgment against Swegon, which in turn sought to dismiss his action. The motion judge dismissed Mr. Waksdale’s motion for summary judgment, and dismissed his action against Swegon, concluding the termination without cause provision was enforceable and separate from the unenforceable termination with cause provision; the employer had therefore acted within its rights and consistent with its obligations under the agreement. The C.A. overturned this decision and remitted the matter back to the motion judge for determination of the quantum of damages, finding both termination provisions were unenforceable. “The application for leave to appeal…is dismissed with costs.”

Human Rights: Discrimination 

Konesavarathan v. Middlesex-London Health Unit, 2019 ONCA (39213)
The Applicant, Mr. Konesavarathan, was a foreign trained medical doctor who was placed at the Respondent health unit for the purposes of a practicum to be undertaken in the context of his Masters in Public Health. Unexpectedly, Mr. Konesavarathan had to miss a number of practicum days, and he requested his practicum be extended. This request was denied, because deemed unnecessary. Mr. Konesavarathan also requested to return to his practicum early, despite his stated absence, which was also denied. No work had been planned for him during this time. In the months following his practicum, Mr. Konesavarathan applied for employment with the health unit, but he was not screened in for an interview. He made claims against the health unit of discrimination, reprisal and failure to accommodate before the Human Rights Tribunal of Ontario, which were all unsuccessful. The Divisional Court found the tribunal’s decision to be reasonable, and thus dismissed Mr. Konesavarathan’s application for judicial review. The C.A. denied Mr. Konesavarathan’s motion for leave to appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the Middlesex-London Health Unit.”

Insurance: Income Replacement Benefits 

Schira v. Saskatchewan Government Insurance, 2020 SKCA 88 (39337)
The Applicant was involved in a number of motor vehicle accidents over the span of several years. She sought no‑fault income replacement benefits from the Respondent, Saskatchewan Government Insurance (“SGI”). SGI is a Crown corporation with the exclusive authority to administer the Saskatchewan Auto Fund. SGI concluded the Applicant did not qualify for such benefits and, as a result, she appealed to the Court of Queen’s Bench pursuant to The Automobile Accident Insurance Act. The trial judge found the Applicant was entitled to the benefits. The trial judge also addressed the procedural side of the appeal. The C.A. found the trial judge made no error in deciding the Applicant was entitled to receive income replacement benefits. However, it found the trial judge’s holdings about the procedural side of Court of Queen’s Bench appeals taken pursuant to the AAIA could not be sustained. Both SGI’s appeal and Ms. Schira’s cross‑appeal were dismissed. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Jurisdiction 

Hutton v. Manufacturers Life Insurance Company (Manulife Financial), 2019 ONCA 975 (39102)
The issue in this Leave was whether the courts had jurisdiction over the Applicant’s claim against her long‑term disability insurer or whether the claim was subject to grievance and arbitration under her union’s collective agreement with her employer. The motion judge found the court had no jurisdiction and granted the insurer’s summary judgment motion to dismiss the action. The C.A. dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Leases: Termination 

Martin v. Mailhot, 2020 ONCA 480 (39318)
In August 2017, Ms. Martin and Mr. Moskwa (“tenants”) entered into a commercial lease agreement with Ms. Mailhot (“landlord”) for the purpose of operating a barber shop and tattoo parlour. The lease stipulated the monthly rent and contained a clause requiring the tenants to maintain comprehensive general liability insurance and direct-damage insurance and to provide copies of all policies or certificates of insurance and renewals to the landlord. On September 19, 2017, the landlord served notice on the tenants they were in breach of the lease for failing to pay the required rent and for failing to provide her with copies of all policies and certificates of insurance. The notice advised the lease would be terminated in the event the various breaches were not remedied, but the notice did not include a demand for monetary compensation. On September 27, 2017, the tenants paid the rent to the landlord. On October 3, 2017, the landlord served the tenants with a notice of termination as a result of their failure to provide copies of the insurance policies and certificates. The landlord subsequently re-entered the premises. On October 23, 2017, the tenants brought an application for a declaration the landlord breached the lease through wrongful termination and illegal re‑entry. The application judge granted the tenants’ application, finding the notice of breach was deficient as it was not in compliance with s. 19(2) of the Commercial Tenancies Act. The application judge found the landlord’s re‑entry had therefore been unlawful. The C.A. allowed the appeal and found the landlord’s notice was compliant with s.19(2) of the Commercial Tenancies Act. “The application for leave to appeal…is dismissed with costs.”

Professions: Negligence 

Ashraf v. Zinner, 2020 ABCA (39320)
Zinner Law Office advised and represented Mr. Ashraf in a claim against his employer but failed to include a claim for constructive dismissal in a statement of claim. Mr. Zinner suffered costs and stress in subsequent efforts to amend the claim to plead constructive dismissal, including mental suffering, psychological injuries and exacerbation of physical injuries. The C.A. restored the action in February 2015. Mr. Ashraf sued for negligence, breach of contract, breach of trust, and breach of fiduciary duty. The trial judge found breach of contractual duties and breach of professional duties of care, and liability for damages, psychological injuries and exacerbation of physical illnesses up to February 2015, and otherwise dismissed the claim. The C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs to the respondents.”

Real Estate/Contracts: Valuation of Partnership Units 

Trico Developments Corporation v. El Condor Development Ltd., 2020 ABCA 132 (39191)
Trico Developments Corporation (“Trico”) and El Condor Developments Ltd. and El Condor Lands Inc. (“El Condor”) are real estate developers. They owned adjacent parcels of land in Calgary. They formed a limited partnership to develop the properties and both sold their interests to the limited partnership, receiving partnership units equivalent to the relative market value of their contributions. After a majority of the lots had been sold to home builders selected by the parties, El Condor advised Trico it intended to sell the remaining lots to its affiliate. Trico objected and it and other home builders started actions claiming breach of an agreement to sell lots to them. El Condor entered into a settlement agreement whereby Trico’s units would be transferred to El Condor immediately and El Condor would pay Trico the value for its units, based on a valuation El Condor had obtained. Trico was entitled to obtain its own valuation and could then make a claim to be paid an amount based on its own valuation if that one was higher.  There were major differences between the valuations obtained by the parties. El Condor paid Trico the valuation amount that it obtained and Trico brought an action for the difference. At trial, the fundamental issue was the applicable valuation method. The trial judge concluded the settlement agreement governed the valuation of Trico’s partnership units. The majority of the C.A. disagreed and held that “value” meant fair market value which incorporated certain discounting factors to the valuation of the partnership units. “The application for leave to appeal…is dismissed with costs.”

Tax: Charitable Deductions 

Eisbrenner v. Canada, 2020 FCA 93 (39303)
In 2005, the Applicant taxpayer, Mr. Eisbrenner, participated in a donation program called the Canadian Humanitarian Trust. In so doing, he was issued charitable donation receipts. Two were in respect of cash payments made by him to a charity, and two were in respect of pharmaceuticals he claimed to have gifted to another charity. In his 2005 tax return, Mr. Eisbrenner claimed charitable donation credits in respect of these receipts. In reassessing Mr. Eisbrenner, the Minister of National Revenue disallowed the charitable donation credits claimed in respect of receipts from the in‑kind charity. This is because, contrary to what was pleaded in Mr. Eisbrenner’s Notice of Appeal, the Minister assumed in his Reply Mr. Eisbrenner never took possession of, nor acquired title to, any pharmaceuticals. The Tax Court dismissed Mr. Eisbrenner’s appeal. The trial judge found Mr. Eisbrenner failed to establish, on a prima facie standard, he had acquired the pharmaceuticals and therefore could not make a gift of them to the in‑kind charity. The Federal C.A. dismissed Mr. Eisbrenner’s appeal. The court noted Mr. Eisbrenner bore the burden of proving the allegations made in his Notice of Appeal to the effect he had acquired the pharmaceuticals and he was the legal and beneficial owner of them prior to their donation, and so on a balance of probabilities. “The application for leave to appeal…is dismissed with costs.”

Tax: Charitable Deductions 

Morrison v. Canada, 2020 FCA 93 (39359)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”

Tax: Employee v. Self-Employed 

Demers v. Agence du revenu du Québec, 2020 QCCA 681 (39309)
The Applicant Mr. Demers was the president and director of the Applicant 6094350 Canada Inc. (“Corporation”). In 2003, the Corporation acquired Radio X, a hockey team in the Québec Senior Major Hockey League. As of the 2006‑2007 season, the Corporation considered all of its players to be self‑employed. In the course of an audit, the Respondent, the Agence du revenu du Québec, concluded the players were employees. As a result, it issued notices of assessment to the Corporation for amounts owed by an employer under various statutes. Mr. Demers objected to the assessments. The Court of Québec found the players were employees and therefore the Corporation had to collect and remit the source deductions provided for. The court also found Mr. Demers, as the Corporation’s director, had to be held personally liable for the assessments payable by the Corporation. However, some of the notices of assessment were vacated on the ground of prescription. The C.A. held the trial judge had not erred except on the issue of prescription; it dismissed the appeal brought by Mr. Demers and allowed that of the Agence du revenu du Québec. “The application for leave to appeal…is dismissed with costs.”

Torts: Vicarious Liability 

Roman Catholic Episcopal Corporation of St. John’s v. John Doe (G.E.B. #25), et al., 2020 NLCA 27 (39343)
In a suit filed in 1999, the Respondents, who suffered sexual abuse while they were boys living at Mount Cashel orphanage in St. John’s during the 1950s, claimed against the Applicant, the Roman Catholic Episcopal Corporation of St. John’s (the “Archdiocese”) and the Christian Brothers Institute Inc. (the “Brothers”) for damages. The Respondents’ evidence implicated five Brothers. The Brothers had been in Newfoundland since 1875 for the purpose of educating Roman Catholic boys and had control over the day‑to‑day activities at Mount Cashel. The Brothers did not participate in the trial as U.S. bankruptcy proceedings had resulted in liquidation of some assets. The trial judge held the Archdiocese could not be found vicariously liable for the tortious conduct of the Brothers. The C.A. concluded the trial judge made errors of law on this point, concluding both the relationship between the Archdiocese and the Brothers was sufficiently close to justify imposing vicarious liability on the Archdiocese and the Brothers’ sexual assaults of the Respondents were sufficiently connected to their assigned task of caring for them for the assaults to be regarded as a materialization of the risks created by the Archdiocese. It therefore held the Archdiocese was vicariously liable for the Brothers’ abuse of the Respondents. “The application for leave to appeal…is dismissed with costs.”