Granted (2)

Civil Procedure: Advance Costs 

Anderson v. Alberta (Attorney General), 2020 ABCA 238 (39323)
The Applicant Beaver Lake Cree Nation filed a claim against Alberta and Canada in 2008, seeking various declarations of rights, injunctions, and damages for the cumulative effects of resource developments allowed on their traditional lands protected by Treaty 6. The trial is currently scheduled for 2024. Thus far, Beaver Lake has spent approximately $3M in legal fees, of which approximately one half has been paid from its own funds; it presently pays $300,000K in legal fees per year. Beaver Lake filed an application for advance costs in the amount of $5M to allow them to proceed with their claim.  The case management judge at the Alberta Court of Queen’s Bench awarded partial advance costs to Beaver Lake, ordering Alberta and Canada to each pay $300,000K per year towards Beaver Lake’s legal fees, until such time as the trial is concluded or the litigation is resolved. The C.A. reversed this decision and set aside the case management judge’s order of partial advance costs as being unreasonable, finding Beaver Lake had failed to satisfy the “impecuniosity” branch of the test for advance costs, and Beaver Lake in fact had access or potential access to several million dollars in order to continue funding the litigation. “The motion for leave to intervene by the Tsilhqot’in National Government is dismissed, without prejudice to its right to bring a motion for leave to intervene in the appeal. The application for leave to appeal…is granted with costs in the cause.”

Family Law: Mobility 

Richardson v. Richardson, 2019 ONCA 983 (39123)
The parties were married in 2003 and divorced in 2015. They have both since remarried. Their daughter was born in 2005 and they had a son in 2011. They all resided in the Niagara region until 2017. In 2015, the parties participated in an assessment pursuant to s. 30 of the Children’s Law Reform Act. Ms. Richardson was seeking to have the children move with her to Ottawa, where she planned to relocate. The assessor recommended the children stay in the Niagara region and the parties have joint custody. The parties accepted this recommendation and settled the matter pursuant to a consent order in 2016. At the time both parties had residences in the Niagara region and Ms. Richardson was dividing her time between the Niagara region and the Ottawa area, where she had a home with her new spouse. In July 2017, Ms. Richardson sold her Niagara residence and moved to Ottawa. She brought a motion to change the consent order on the basis it would be in the children’s best interests to reside primarily with her in Ottawa. The parties could not settle the matter and it proceeded to trial. On the third day of the trial, counsel for the parties presented a proposed settlement to the trial judge that provided the children would move from their home in the Niagara region to Ottawa to live primarily with their mother. The trial judge did not accept the terms of the minutes of settlement and wanted to hear all of the evidence. The trial proceeded. The trial judge concluded the children would not relocate to Ottawa. This decision was upheld by the C.A. “The motion for extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is granted with costs in the cause.”

Dismissed (6)

Aboriginal Law: Treaty Rights 

West Moberly First Nations v. British Columbia, 2020 BCCA 138 (39292)
Treaty 8, signed on June 21, 1899, described its boundaries. The Treaty Commissioners prepared a map to accompany Treaty 8, but it has been lost, and the location of the western boundary of the tract is, as a result, uncertain. The Respondent First Nations applied for a declaration the western boundary was the height of land along the continental divide between the Arctic and Pacific watersheds (the “wider boundary”). They named Canada and British Columbia as defendants. Canada assented to the First Nations’ position, as did the McLeod Lake Indian Band when it was added as a third defendant. British Columbia objected and applied for a declaration the phrase referred to “the line of watershed within the Rocky Mountains as those mountains were understood to be situated in 1899”, referred to as the “narrow boundary”. The narrow boundary creates a tract approximately 48,000 square miles smaller than the wider boundary.  Of the many pre‑trial rulings made by the trial judge, two remain relevant. First, it was determined, if a declaration was granted, it would be both in fact and in rem, such that it would bind parties and non‑parties alike: Willson v. British Columbia (Attorney General), 2007 BCSC 1324. The First Nations were, therefore, ordered to give notice to all of the signatories and adherents to Treaty 8 that a declaration, if granted, would be binding in rem and binding on them. Second, in the face of two motions to strike the Notice of Claim on the grounds it related to a hypothetical dispute and to strike the claim for declaratory relief were dismissed: Willson v. British Columbia, 2012 BCSC 1256.  In his final decision on the matter, the trial judge declared in rem that the western boundary of Treaty 8 is the height of the land along the continental divide between the Arctic and Pacific watersheds (the Arctic‑Pacific divide). The C.A. dismissed the appeal. “The applications for leave to appeal…are dismissed with costs.”

Criminal Law: Mandatory Minimums; Jury Challenges 

Newborn v. R., 2019 ABCA 123 (39319)
Mr. Newborn attacked Mr. Hollar on a Light Rail Transit train. Mr. Hollar was placed on life support, and died two days later. The attack appeared to be unprovoked. Mr. Newborn, an Indigenous person, challenged the jury selection process, arguing his rights under s. 11 (d) and (f) of the Charter had been violated. Mr. Newborn also argued the exclusion from jury eligibility (under s. 4 of the Jury Act) of persons who have been convicted of a criminal offence was unconstitutional, because it disproportionately excluded aboriginal persons. The trial judge upheld the constitutionality of s. 4(h)(i) of the Jury Act. Mr. Newborn was convicted of second degree murder. The sentencing judge held the mandatory minimum sentence for second degree murder did not violate Mr. Newborn’s s. 12 Charter rights. Mr. Newborn was sentenced to life imprisonment, setting parole ineligibility at 15 years. Mr. Newborn’s appeal regarding the constitutionality of the Jury Act was dismissed. The constitutional challenge to the provisions of the Criminal Code regarding the mandatory minimum sentence for second degree murder was denied. The mandatory minimum sentence for second degree murder did not violate Mr. Newborn’s s. 12 Charter rights. Mr. Newborn’s appeal of his period of parole ineligibility was also dismissed. The C.A. dismissed the conviction, and sentence appeals. “The motion to join two Court of Appeal of Alberta files in a single application for leave to appeal is granted. 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.”

Energy/Contracts: Breach of Contract 

Hutchingame Growth Capital Corporation v. Independent Electricity System Operator, 2019 ONSC 259 (39347)
The issues here arose from a contract dispute over a failed renewable energy project that was to be built and operated by Greenview Power. The Applicant, Hutchingame Growth Capital Corporation (“HGC”) later purchased some of Greenview Power’s secured debt and assumed effective control. The project was to generate and supply electricity to the Ontario Power Authority. The Respondent, the Independent Electricity System Operator (“IESO”), was the Authority’s successor. IESO took the position the Renewable Energy Standard Offer Program Contract (“RESOP Contract”) had terminated upon Greenview Power’s bankruptcy under the Bankruptcy and Insolvency Act. HGC brought this action seeking damages of $4,796,479.41 from IESO, claiming breach of contract, negligent misrepresentation, and breach of the duty of good faith. The trial judge dismissed the action. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Jurisdiction 

British Columbia (Labour Relations Board) v. Casavant, 2020 BCCA 159 (39317)
The Respondent, Mr. Casavant, was dismissed from his position as a conservation officer after refusing to follow an order from his supervisor. His challenge to the dismissal set in motion a series of proceedings under the B.C. Labour Relations Code. Ultimately, the Labour Relations Board dismissed his application for reconsideration. On judicial review of that decision, Mr. Casavant clearly raised a jurisdictional challenge to the Board for the first time. He argued, based on the nature of his employment as a Special Provincial Constable, all disciplinary proceedings should have proceeded in accordance with the Police Act and the Special Provincial Constable Complaint Procedure Regulation. The reviewing judge declined to address the question and dismissed the application. The C.A. allowed Mr. Casavant’s appeal. It concluded the reviewing judge erred in the exercise of her discretion not to address the jurisdictional question. It held the inevitable answer to the question of the Board’s jurisdiction was it had no jurisdiction to address Mr. Casavant’s dismissal; it was settled law that a labour board does not have jurisdiction to deal with a police disciplinary matter governed by a distinct process. It declared the proceedings before the Board and the arbitrator a nullity. “The motion for leave to intervene by the Government of British Columbia as Represented by the Public Service Agency is dismissed. The application for leave to appeal…is dismissed with costs to the respondent, Bryce J. Casavant.”

Labour Law: Jurisdiction 

Cadieux v. Greyhound Canada Transportation Corp., 2020 QCCA 498 (39196)
After being suspended and then terminated by his employer, the Applicant, represented by his union, filed two grievances with the Canada Industrial Relations Board (“CIRB”) to contest those penalties. The union then reached a settlement with the employer for the suspension and withdrew the grievance against the termination. The CIRB allowed the Applicant’s complaint on the basis his union had breached its duty of fair representation in respect of both grievances, and referred both grievances to arbitration, authorizing the Applicant to retain counsel of his choice at the union’s expense. An arbitrator ultimately dismissed those grievances. The Applicant sought leave from the CIRB to apply for J.R. in his own name, which the CIRB denied on the ground it did not have jurisdiction to consider this request and because the Applicant had not first asked the union to present the application for J.R. In the meantime, the Applicant had personally filed his application for J.R. of the arbitral award. The Superior Court granted the union’s motion to dismiss and dismissed the Applicant’s application for judicial review, finding he lacked a sufficient interest to bring the proceeding. A majority of the C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs to the respondent, Canada Transportation ULC.”

Real Estate/Non-Performance Contract 

Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2020 BCCA 130 (39246)
The Applicant purchasers entered into two linked purchase and sale agreements with the Respondent vendors for the purchase and sale of two commercial properties. Two weeks before the completion date the Respondents gave notice to the Applicant’s they would not be proceeding with the sale on the ground the agreements had been repudiated or were unenforceable due to alleged wrongdoings by the Applicants and the parties’ common real estate agent.  The Applicants rejected what they claimed was a wrongful repudiation and commenced an action for specific performance or, alternatively, damages. The B.C.S.C. dismissed the Applicants’ action, accepting the Respondents’ defence the purchase agreements “were part of a transaction intended to be used for unlawful purposes or otherwise tainted by illegality”. For reasons of public policy, the Court declined to enforce them against the Respondents as to do so “would be harmful to the integrity of the legal system”. The Court dismissed the Respondents’ counterclaims except a claim for breach of contract and fiduciary duty against their real estate agents. The B.C.C.A. dismissed the Applicants’ appeal and the Respondents’ cross‑appeal. “The application for leave to appeal…is dismissed with costs.”