Dismissed (10)

Civil Procedure: Settlement Agreement Rescission 

Lalonde v. Deschenes, 2020 ONCA 304 (39288)
In 2000, a settlement agreement was reached with respect to allegations of sexual assault by Charles Sylvester, a priest at the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the “Diocese”). As part of the settlement agreement, evidence was presented the Diocese first heard allegations Mr. Sylvestre abused children in 1989. The settlement included a full and final release in exchange for a cash payment. In 2006, further documentary evidence came to light indicating the Diocese was notified in 1962 of three separate statements made to police regarding allegations of sexual abuse by Mr. Sylvestre. In 2008 a new action was commenced alleging misrepresentation in the initial settlement. The Diocese brought a motion to strike on the basis of the release. The motion judge concluded, as an organization, the Diocese knew about the police records at the time the settlement was made and there had been a unilateral mistake by the Diocese. As a result, the motion judge ordered rescission of the settlement agreement. The C.A. dismissed the subsequent appeal. It held although the motion judge could not have rescinded the settlement agreement based on unilateral mistake, they must have done so on the basis of innocent misrepresentation instead. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Summary Judgments 

Hughes v. Horizon Health Network, 2020 NBCA 53 (39351)
The Applicant, Mr. Hughes alleged while he was a patient in hospital, he was drugged into a coma‑like state then sexually assaulted by nursing staff of the Regional Health Authority B, which carried on business as Horizon Health Network and the Saint John Regional Hospital (collectively “Horizon”). Later, Mr. Hughes maintained the notes taken by the attending physician, Dr. Keyes, in the emergency unit provided conclusive proof he had been sexually assaulted while he slept. In its investigation, Horizon found no evidence to support Mr. Hughes’ claims. Mr. Hughes reported the alleged assault to the police. The Chief of Police advised Mr. Hughes neither of its two investigators discovered any evidence to support his allegations. Mr. Hughes commenced an action against the Respondent, claiming damages of $1M for the alleged sexual assault. The Respondent defended the claim and brought a motion for summary judgment. The motion judge determined there was no genuine issue for trial, granted the Respondent’s motion and dismissed the Applicant’s action for damages. The motion judge rejected the assertion Dr. Keyes’ notes proved Mr. Hughes had been assaulted. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Summary Judgments 

Sutherland v. Toronto (City), 2020 ONCA 122 (39264)
The Applicant, Ms. Sutherland, was involved in a dispute with the Respondent, the City of Toronto, over the payment of property taxes. In 2006, Ms. Sutherland commenced a Small Claims Court action in which she sought an order her tax account for 2003 had been paid in full. After the commencement of that action, Ms. Sutherland continued to let her property taxes fall into arrears. The Small Claims Court action was dismissed for delay and Ms. Sutherland eventually abandoned her appeal. When the city started collection proceedings, Ms. Sutherland initiated another action, claiming among others the city’s efforts to collect property tax arrears had caused her damage. The Respondents successfully moved for summary judgment dismissing Ms. Sutherland’s action. The motion judge found, as the root of the claim dated back to tax bills from 2003, 2004, and 2005, the claim was statute‑barred. The C.A. dismissed Ms. Sutherland’s appeal. It saw no basis to interfere with the motion judge’s conclusions. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Constitutional Law: Parliamentary Privilege 

Duffy v. Canada (Senate), 2020 ONCA 536 (39361)
Senator Michael Duffy sued the Senate of Canada over his suspension, which he alleged was politically motivated, unconstitutional, procedurally unfair and contrary to his Charter rights. In 2013, the Senate voted to suspend Senator Duffy based on a report from its standing committee on Internal Economy, Budgets and Administration (“CIBA”). The CIBA report concluded Senator Duffy had violated rules on living and travel expenses. Senator Duffy was later criminally charged in connection with these expenses, but eventually acquitted of all charges. Following the acquittal, the Senate of Canada clawed back a portion of Senator Duffy’s salary, continuing to cite to improperly claimed expenses. Relying in large part on the findings made in his criminal matter, which essentially determined he committed no prohibited act in making the claims, Senator Duffy launched a civil suit against the Senate. The Senate argued the lawsuit cannot proceed because its impugned conduct falls squarely within the scope of parliamentary privilege. It accordingly moved to dismiss Senator Duffy’s claims against it. The Superior Court granted the Senate’s motion for want of jurisdiction. It held the Senate’s alleged conduct falls within the scope of the Senate’s established parliamentary privileges. The C.A. agreed with the Superior Court, and dismissed Senator Duffy’s appeal. It held the courts lack jurisdiction to adjudicate these allegations, which may only be decided upon by the Senate itself. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Dangerous Offenders; Indeterminate Sentences 

Malakpour v. R., 2018 BCA 254 (39247)
The Applicant Mr. Malakpour was found guilty of a number of offences, including assault with a weapon, assault causing bodily harm, criminal harassment, uttering threats and kidnapping. The Respondent Crown applied to have Mr. Malakpour designated as a dangerous offender pursuant to s. 753(1)(a)(i), and to have him sentenced to an indeterminate sentence pursuant to s. 753(4.1). The B.C. Provincial Court concluded the Crown had established beyond a reasonable doubt the necessary evidentiary foundation for a dangerous offender finding. Having not been satisfied there was a reasonable expectation a lesser measure would adequately protect the public against the commission of murder or a serious personal injury offence, the judge imposed an indeterminate sentence. The B.C.C.A. unanimously allowed the appeal in part. Though it found no basis to interfere with the judge’s designation of Mr. Malakpour as a dangerous offender, it was of the view the imposition of an indeterminate sentence was disproportionate to the circumstances of Mr. Malakpour and of the predicate offences. The indeterminate sentence was substituted for a determinate sentence, to be followed by a long‑term supervision order. “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: First Degree Murder; Parole Ineligibility 

Gervais v. R., 2020 ABCA 221 (39366)
Shortly after a verbal altercation inside a night club, a group of about 10 people encircled Mr. Strasser-Hird in the club’s parking lot and assaulted him. He was injured and took shelter inside the club. The group remained outside the front door of the club yelling insults and threats. Mr. Gervais was in the group outside the club but left briefly before rejoining the group. He then went to a back alley and spoke momentarily with the occupant of a car. Mr. Strasser-Hird and two friends exited the club through a back door into the back alley.  The group blocked his egress, corralled him against a dumpster, attacked him and prevented others from going to his aid. He suffered multiple, significant blunt force injuries. The trial judge held Mr. Gervais stabbed Mr. Strasser-Hird four times during the beating and the stab wounds caused Mr. Strasser-Hird’s death. Mr. Gervais was found guilty of causing death during a forcible confinement and convicted of first degree murder under s. 231(5)(e). His sentence included a 25-year period of parole ineligibility. His appeal from conviction was dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Insurance: All-Risks Policies; Flood v. Surface Water Exclusion 

Co-operators General Insurance Company v. Le Treport Wedding & Convention Centre Ltd., 2020 ONCA 487 (39358)
On July 8, 2013, the Greater Toronto Area experienced an unparalleled rain event with the highest amount of measured rainfall in a two hour period and in a single day since data tracking began. Flooding was widespread across the area. Water entered into the banquet hall facility operated by the Respondent, causing significant damage. The Respondent was insured under an all‑risk policy by the Applicant insurer, and the Sewer Back Up Endorsement under the policy with a limit of $500K was fully paid out by it to the Respondent. The Respondent commenced an action claiming the flood endorsement and other coverages under the policy also applied on the facts of the case.  The Ontario Superior Court of Justice held the event did not meet the definition of flood in the endorsement and the surface water exclusion applied. It also denied the claims for the other coverages and dismissed the Respondent’s action. The C.A. allowed the appeal in part, upholding the Respondent’s claim for coverage under the flood endorsement of its policy. It found by giving effect to the definition of surface water in interpreting the flood endorsement, the lower court nullified the coverage in almost all cases, belied the reasonable expectations of the parties and departed from the principle that provisions granting coverage should be construed broadly. The Applicant was ordered to pay an amount of $429,329.18 to the Respondent, plus prejudgment interest. “The application for leave to appeal…is dismissed with costs.”

Professions in Québec: Unpaid Fees 

Fernarndo Berardini inc. v. Accuracy Canada inc., 2020 QCCA 204 (39369)
The Respondent, Accuracy Canada Inc., was a company specializing in providing forensic accounting services and financial advice. It claimed unpaid professional fees had been billed for services provided to the Applicant, Fernando Berardini inc., a company specializing in the sale and distribution of milk, in connection with litigation between Berardini and Natrel. Berardini had sued Natrel over unfair practices whose purpose was allegedly to deprive it of a significant share of its customers. Berardini was successful in the litigation against Natrel, but the damages awarded to it were considerably lower than what it had sought. Berardini denied owing the amounts claimed by Accuracy and, in the alternative, argued the professional fees billed and claimed were not fair and reasonable. Accuracy’s application for payment of the unpaid invoices was allowed in part by the Québec Superior Court, which found Accuracy had been given a mandate and it had an obligation of means and not one of result in performing that mandate. The court held Accuracy had failed to inform Berardini of the approximate anticipated cost of some of its services, with the result the value of one of the invoices had to be reduced. The C.A. allowed Accuracy’s motion to dismiss Berardini’s appeal because, in its view, the appeal had no reasonable chance of success. “The application for leave to appeal…is dismissed with costs.”

Real Property in Québec: Restrictive Covenants 

Complexe Commercial de l’Île inc. v. Provigo Distribution Inc., 2020 QCCA 970 (39375)
The Applicant, Complexe commercial de l’Île inc. (CCI), purchased a shopping centre from a subsidiary of El‑Ad Canada Inc. in 2016. Under that contract for the sale, CCI undertook to meet earlier obligations El‑Ad and its subsidiary had originally assumed in favour of the Respondent, Provigo Distribution inc., in 2005 when purchasing a parcel of land across from the shopping centre. That land had been purchased as part of an agreement concerning a joint development project between El‑Ad and Provigo. It had been agreed Provigo would terminate its lease in the shopping centre with a view to the construction of a building for the operation of a food supermarket on the other parcel of land it still owned. Provigo and El‑Ad had also agreed on restrictive covenants for rights and obligations relating to the use, leasing and sale of their land and the shopping centre, and had agreed if one of the buildings was sold, the third party purchaser had to agree in writing to comply with those restrictive covenants. Provigo had paid El‑Ad an indemnity as consideration for those various undertakings. In June 2017, CCI brought proceedings to have one of the restrictive covenants declared null, namely a non‑competition clause restricting the use of the shopping centre for the purpose of operating a food supermarket or any store selling food products. The Superior Court granted CCI’s application, and the C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs to the respondent,  Provigo Distribution inc.”

Transportation: Jurisdiction; Extraterritoriality 

SSAB Alabama Inc. v Canadian National Railway Company, 2020 SKCA 74 (39362)
In December 2014, a train operated by the Canadian National Railway Company derailed north of Regina, Saskatchewan, when, while travelling through a curve, steel plates slid off of a flatbed rail car and struck a tank car immediately behind it. Other plates fell onto the track, causing more cars to derail. The flatbed rail car had been loaded, secured and inspected by SSAB Alabama Inc., SSAB U.S. Holding Inc., SSAB Americas, LLC (collectively, “SSAB”). CN’s losses exceeded $12M. CN claimed SSAB were vicariously liable for the actions of those responsible for loading, securing and inspecting the steel, and SSAB were subject to and required to comply with statutory, regulatory and industry rules and standards in so doing. The trial judge ordered CN’s claim against SSAB could proceed in the Saskatchewan Court of Queen’s Bench as it had territorial competence and as Alabama was not a more appropriate forum for the proceeding. The C.A. dismissed SSAB’s appeal. “The motion to add LSB Contracting, LLC, as a party to the application for leave to appeal is dismissed. The application for leave to appeal…is dismissed with costs.”