Granted (1)

Criminal Law: Sexual Assault 

K. v. R., 2020 BCCA 136 (39287)
There is a publication ban in this case, in the context of non-consent to non-condom sex. “The application for leave to appeal…is granted.”

Dismissed (13)

Criminal Law: Search Warrants 

Mackey v. R., 2020 ONCA 466 (39327)
The police investigated a series of residential break and enters, which yielded DNA and other evidence. The Applicant was charged with the following twelve offences: five residential break and enters at different addresses in the Regional Municipality of York (counts 1‑5); theft of a motor vehicle (count 6); prowling by night (count 8); possession of break and enter tools (count 9); wearing a mask with intent to commit theft (count 10); and possession of proceeds of crime (counts 7, 11, and 12). At trial, the Applicant applied for an order to quash two search warrants, and exclude evidence seized pursuant to those warrants. The two search warrants included one to search his residence (“the home warrant”), and the other to secure a DNA sample (“the DNA warrant”). The Applicant submitted they were obtained in breach of his s. 8 rights, and sought to exclude the evidence obtained pursuant to s. 24(2). The trial judge found the warrants were unlawful, and contrary to s. 8 of the Charter. The trial judge quashed both the home and DNA warrants, and excluded the evidence obtained therefrom. The Applicant was acquitted of all charges. The C.A. allowed the appeal, and ordered a new trial on counts one, four, five, and ten. “The application for leave to appeal…is dismissed.”

Civil Procedure: Restoring Appeals Deemed Abandoned 

Rana v. Rana, 2019 ABCA 278 (39297)
The Applicant, Salim Rana, sought to restore an appeal deemed abandoned. The order underlying the appeal was the result of a decision made in October 2017 in which the power of attorney executed by his mother was declared valid. Mr. Rana’s appeal was struck in March 2018 for failing to file the Appeal Record on time, the limitation being four months from the filing of the Notice of Appeal. When an appeal is struck for failure to file an Appeal Record, the appellant has six months to apply to restore it. According to the Alberta Rules of Court, by September 26, 2018, the application to restore the struck appeal had to be filed, served and returnable before the C.A. It was filed September 18, but it was only returnable October 4. As a consequence, the appeal was deemed to be abandoned. A single judge of the C.A. refused to exercise its discretion to restore Mr. Rana’s appeal and dismissed his application. The same judge was seized of a subsequent application by Mr. Rana for permission to appeal the decision dismissing his application to restore his appeal, which was denied. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”

Class Actions in Québec: Sound Pollution 

Maltais v. Attorney General of Quebec, 2020 QCCA 715 (39315)
The Applicant applied for authorization to institute a class action against Québec’s Ministère des Transports on behalf of a group of residents of a neighbourhood in the city of Charlesbourg. The residents had been complaining since the 1980s of noise from traffic on the Laurentian Autoroute. They sought the construction of a sound abatement wall and damages. The Superior Court dismissed the class action. Although it recognized there was a neighbour relationship between the Ministère des Transports and the group members and certain residents had suffered abnormal and excessive annoyances, it found the rule the Crown has relative immunity protected the government from civil liability actions arising from policy decisions. The C.A. dismissed the Applicant’s appeal. It held the rule the Crown has relative immunity applied under art. 976 C.C.Q. and the government could claim immunity if it contravened the Environment Quality Act, or interfered unlawfully with a right recognized by the Charter of human rights and freedoms. It also held the fact Québec’s Ministère des Transports had not taken noise abatement measures was a core policy decision for which the government was protected from legal action. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Child Porn; Delay 

Poxleitner v. R., 2020 ABCA 136 (39333)
Mr. Poxleitner was charged with possessing child pornography and accessing child pornography. Trial was set to commence January 19, 2017 and originally expected to last two days. Before trial, defence counsel obtained an adjournment to October 30, 2017, on the basis the defence strategy had changed and two days would be insufficient time. Trial started on October 30, 2017. The officer who searched and analysed Mr. Poxleitner’s computer, and Mr. Poxleitner, testified.  Mr. Poxleitner for the first time named an alternate suspect. Trial was adjourned to June 1, 2018, so Crown counsel could call the alternate suspect as a witness. During this adjournment, the officer who had searched Mr. Poxleitner’s computer was charged with unrelated criminal offences. On June 1, the alternate suspect testified and trial was adjourned to September 20, 2018, so defence counsel could obtain disclosure of records related to the offences charged against the officer. Trial resumed on September 20, 2018. The officer was not present in court for further cross-examination and the defence wanted to question him about his charges. Trial was adjourned to March 22, 2019 in order to call the officer. On September 20, 2018, Mah J. heard and dismissed a mid-trial application to stay proceedings for unreasonable delay. Trial was completed on March 22, 2019. Mr. Poxleitner was convicted of both offences and reasons for conviction rendered on March 26, 2019. Mr. Poxleitner appealed. 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.”

Corporate Law: Oppression 

Fondaction (le Fonds de développement de la Confédération des syndicats nationaux pour la coopération et l’emploi) v. Leclerc Glu Lam Products inc., 2020 QCCA 261 (39157)
Leclerc Glu Lam Products inc. (“Leclerc”) and Americana Lumber inc. (“Americana”) were management companies whose sole shareholder is Jacques Bérubé. In 2000, Mr. Bérubé established a portfolio management company, Polystar inc., in order to acquire businesses in the forestry and agriculture sectors. Between June 2000 and May 2001, three commercial corporations or partnerships, including the Fonds de développement de la Confédération des syndicats nationaux pour la coopération et l’emploi (“Fondaction”) and Amisk inc., invested in the various businesses started by Mr. Bérubé. In 2001, Polystar carried out a corporate reorganization and ended a new round of financing. Polystar’s principal shareholders were then Americana (24.85%), Leclerc (18.30%), Fondaction (29.61%) and Amisk inc. (15%). Polystar held 100% of the capital stock of Leclair Américana inc. (“Leclair”), which manufactured flooring for trailers and containers, Canadiana Flooring inc. (“Canadiana”), which, among other things, manufactured residential flooring in the forestry division, and Industrie Bodco Inc. (“Bodco”), a manufacturer of manure and feed handling equipment in the agriculture division. In the fall of 2001, André Salesse was appointed to represent Amisk on Polystar’s board of directors and Jacques Clément joined Yvon Marcil in representing Fondaction on the board of directors. At the end of 2001, a business turnaround specialist conducted financial audits of Polystar and its subsidiaries as a result of a meeting with bank representatives in which Mr. Clément and Mr. Salesse participated. Further to the reports submitted by the specialist, Polystar’s directors and shareholders made various decisions that led in part to Mr. Bérubé’s dismissal as chief executive officer in December 2001 and ultimately to his resignation as president and director of Polystar and its three subsidiaries in January 2002. In April 2002, Polystar’s board of directors approved the transfer of the shares held in Bodco to three creditors, including Amisk and Fondaction, in payment of debts. On May 13, 2002, Canadiana and Leclair were declared bankrupt. Between May and June 2002, Bodco acquired a company in the agriculture sector. That acquisition, for which steps had begun to be taken a year earlier, was made possible by a subscription agreement for the acquisition of Bodco’s capital stock, including by Fondaction and Amisk. In July 2002, Leclerc, Americana and Mr. Bérubé instituted legal proceedings against Polystar and some of its shareholders and directors. They claimed, among other things, damages for abuse of authority and oppression. The Superior Court ordered Polystar, Amisk, Pan‑O‑Lac Ltée, Fondaction, Mr. Clément, Mr. Marcil and Mr. Salesse solidarily to pay $4,372,950 to Americana, Leclerc and Mr. Bérubé. The C.A. allowed the principal appeal in part. Fondaction, Mr. Clément, Mr. Marcil and Mr. Salesse were ordered in solidum to pay $4,012,950 to Americana and Leclerc. Fondaction was ordered to pay $280,000 to Mr. Bérubé. Mr. Salesse’s incidental appeal was dismissed. “The application for leave to appeal filed by Fondaction, Jacques Clément and Yvon Marcil…is dismissed with costs in favour of Leclerc Glu Lam Products inc. and Americana Lumber inc. The application for cross-appeal filed by Leclerc Glu Lam Products inc. and Americana Lumber inc. is dismissed with costs to Fondaction, Jacques Clément, Yvon Marcil and André Salesse. The application for leave to appeal filed by André Salesse is dismissed with costs to Leclerc Glu Lam Products inc., Americana Lumber inc. and Jacques Bérubé.”

Civil Procedure: Security for Costs 

Lessard-Gauvin v. Attorney General of Canada, 2019 FCA (39275)
The Canadian Human Rights Commission dismissed complaints filed by the Applicant. The Federal Court dismissed the Applicant’s applications for judicial review. He filed notices of appeal with the Fed. C.A. The Respondent, the Attorney General of Canada, filed motions for security for costs. The Fed. C.A. granted the motions. It later dismissed the appeals for failure to comply with its prior orders. “The motion for an extension of time to serve and file the application for leave to appeal and for other relief is granted only to join two Federal Court of Appeal files in a single application for leave to appeal. The applications for leave to appeal…are dismissed with costs.”

Civil Procedure in Québec: Contempt 

Société en commandite Sommet Bleu v. Municipalité de Sainte-Adèle, 2020 QCCA 246 (39353)
The municipality of Sainte‑Adèle had a servitude of right of way situated on the land of Lise Proulx and her spouse, Marc Lupien. During the construction of a residence on the land, the construction materials allegedly obstructed the right of way, which until then was being used by the municipality. In 2014, Delorme J. of the Québec Superior Court found the route established by servitude had been unlawfully obstructed and ordered Ms. Proulx to carry out work to remove obstacles from the route and restore the land to the condition it had been in prior to the obstruction. In 2015, the work not having been completed, the municipality brought contempt of court proceedings action against Lise Proulx and Marc Lupien, and against Société en commandite Sommet Bleu and Gestion Campus Corbusier Ltée.  Lalonde J. of the Superior Court acquitted all the accused of contempt of court. The C.A. unanimously set aside the trial judgment and allowed the municipality’s appeal in part, finding Ms. Proulx guilty of contempt of court and remitting the matter to the trial judge for sentencing. “The application for leave to appeal…is dismissed with costs to the respondent Municipalité de Sainte-Adèle.”

Criminal Law: Withdrawal of Guilty Pleas

A. v. R., 2020 NBCA 23 (39280)

There is a publication ban in this case, in the context of guilty plea withdrawal. “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.”

Torts: Medmal 

Peppler Estate v. Lee, 2020 ABCA 282 (39329)
The Respondent Dr. Lee was a family physician who attended upon Mr. Douglas Peppler twice in 2012. The Applicant, Mr. Raymond Peppler, was Mr. Douglas Peppler’s father. The Applicant sued Dr. Lee claiming he was negligent and caused his son’s quadriplegia.  The Court of Queen’s Bench of Alberta found Dr. Lee had breached the standard of care but it had not been established Dr. Lee’s breach caused Mr. Peppler’s injuries. The C.A. of Alberta was divided. The majority dismissed the appeal. It found no reviewable error in the trial judge’s analysis. Watson J. dissented, notably on the basis the trial judge placed erroneous emphasis on Mr. Peppler’s behaviour after seeing Dr. Lee in her assessment of causation. Watson J. would have allowed the appeal. “The application for leave to appeal…is dismissed with costs.”

Police: “Investigative” v. “Adjudicative” Decision Review 

Office of the Independent Police Review Director v. Stanley, 2020 ONCA 252 (39211)
On April 25, 2014, Toronto Police Services (“TPS”) executed a search warrant at the residence of the Stanley family, based on information one Stanley son was in possession of a firearm. Shortly after midnight, nineteen officers broke the front door down and rushed inside. Ms. Stanley and Yasin Stanley were ordered to the floor. They alleged an officer twice placed his foot on Yasin’s neck and pushed him down, while he lay handcuffed on the floor. No firearms were found on the premises and no charges laid. The Stanleys filed complaints alleging police misconduct with respect to the incident with the Office of the Independent Police Review Director (“OIPRD”) alleging excessive use of force. After an investigation, the Director found only the allegation the police officer had used excessive force in his treatment of Yasin was “substantiated” and “serious”, and referred that matter to the Chief of Police of the TPS for a disciplinary hearing. The Stanleys were advised of the results of his investigation. Shortly afterward, an officer from the Professional Standards Unit of the TPS contacted the Director about a transcription error in the police officer’s statement to the investigators and other inaccuracies. The Director reopened his investigation and eventually concluded the allegation of excessive force was “unsubstantiated”. The Stanleys’ application for judicial review of that decision, seeking to reinstate the Director’s original decision, was granted on the basis there had been a lack of procedural fairness. The Director’s appeal from that ruling was allowed in part. The original decision to refer the matter to a hearing was again reinstated but on the grounds the Director lacked the power of reconsideration. “The application for leave to appeal…is dismissed.”

Civil Procedure/Professions: Motions to Strike 

Law Society of Ontario v. Khan, 2020 ONCA 320 (39321)
Mr. Khan was the subject of a complaint to the Law Society of Ontario regarding alleged billing irregularities and alleged forged documents. The Law Society of Ontario found he had committed professional misconduct and revoked his licence to practice. He commenced actions, including an action against 16 defendants in which he advanced a myriad of claims and sought a wide variety of damages, arising from the events surrounding the revocation of his licence to practice. Eleven defendants requested the claims against them be struck from the outset. The motion judge agreed and struck the action as against those defendants on the basis the claim was on its face frivolous and an abuse of process. The C.A. found the motion judge misdirected himself with respect to the claims made against the Applicants. It allowed Mr. Khan’s appeal with respect to these claims because they involved issues that should be determined on a full motion to strike, with all the procedural safeguards such a motion includes. “The applications for leave to appeal…are dismissed with costs.”

Criminal Law: Assault 

Othen v. R., 2020 ABCA 255 (39339)
The Applicant is a police officer. After being stopped by police for a traffic infraction, the complainant fled his vehicle. A foot chase ensued, involving the Applicant and several other police officers, and the complainant intercepted. The final six seconds of the apprehension were captured on dash‑cam footage and entered as an exhibit at trial. It depicts three officers rushing towards the complainant. One officer has his gun drawn. The complainant can be seen lowering himself face‑down with the apparent intent to surrender. The Applicant is the first officer to make contact with the complainant. The Applicant is seen jumping on the complainant with his knees. The Applicant and another officer are then seen delivering several blows to the head and torso of the complainant. The complainant is handcuffed, and placed in the back of a police vehicle. At the Applicant’s trial, another officer testified he saw the Applicant approach the complainant while he was in the police vehicle and press a key behind the complainant’s ear. The Applicant denied doing this. The complainant sustained injuries including broken ribs, and a punctured lung. The Applicant was convicted of assault causing bodily harm, and assault with a weapon. His appeal to a summary conviction appeal court justice was dismissed. The C.A. dismissed his application for leave to appeal. “The application for leave to appeal…is dismissed.”

Labour Law: Pension Plans 

Bédard, et al. v. Unifor inc., 2020 QCCA 657 (39300)
The Applicants were former unionized, now retired employees of a pulp and paper mill located in Québec City, the “Stadacona” mill, itself a company part of the White Birch group. When they were active employees of the mill, the Applicants were all represented by locals of the Respondent, Unifor, a national union active in particular in the pulp and paper sector. In 2010, the companies of the White Birch group decided to file for protection under the Companies’ Creditors Arrangement Act. In September 2010, the Superior Court approved a proposed sale of assets of the White Birch group, including those related to the Stadacona mill, on the basis of an agreement contingent upon the signing of new collective agreements and the replacement of the existing pension plans with a new plan free of accrued liabilities. From October 2010 to July 2012, Unifor, the locals and White Birch conducted negotiations for a new collective agreement with the employees. In March 2012, White Birch made an offer it said to be final; the offer provided for, among other things, termination of the existing pension plans, which would be replaced by a new plan. For the Applicants, this offer meant a significant loss of their accrued credits under the former pension plans. The offer was accepted by a majority of the employees. In January 2015, the employees and pensioners accepted a final compromise whose effect was to significantly reduce the pension benefits to which the Applicants had been entitled under the former plan. In response to that reduction, the Applicants, in their names and through a non-profit association whose mission was to defend their interests with regard to their pension plan, brought proceedings, one of them in the Superior Court, against Unifor and the locals. The Superior Court dismissed their originating application in damages, and the C.A. dismissed the appeal. “The motion to adduce new evidence is granted. The application for leave to appeal…is dismissed without costs.”