Granted (2)

Criminal Law: Mandatory Minimums 

Hills v. R., 2020 ABCA 263 (39338)
Mr. Hills pled guilty to four charges from an incident where he swung a baseball bat and fired a shot with his rifle at an occupied vehicle, smashed the window of a parked vehicle and shot a few rounds into an occupied family residence. One of the charges was the intentional discharging of a firearm into or at a place, knowing or being reckless as to whether another person is present in the place under s. 244.2(1) (a) of the Criminal Code, which carries a minimum four‑year imprisonment sentence. Mr. Hills alleged the minimum sentence under s. 244.2(3)(b) of the Criminal Code  violated the constitutional right to not be subjected to any cruel and unusual treatment or punishment by virtue of s. 12. The trial judge found the mandatory minimum sentence contravened s. 12  and could not be saved by s. 1. As a result, he declared s. 244.2(3)(b) of the Criminal Code to be of no force and effect. Mr. Hills was sentenced to a term of imprisonment of three and a half years. The C.A. overturned the trial judge’s finding the provision was unconstitutional and set aside the declaration of invalidity. The appeal against the sentence for discharging a firearm was allowed and Mr. Hills’ sentence was increased to four years. “The application for leave to appeal…is granted.”

Criminal Law: Sexual Offences 

R. v. J.F., 2020 QCCA 666 (39267)
There is a publication ban in this case, in the context of a series of alleged sexual offences. “The application for leave to appeal…is granted.”

Dismissed (12)

Civil Procedure: Motions to Strike 

Rebello v. R., 2020 ONCA (39415)
The Applicant, Ms. Tanya Rebello, attempted to sue the Province of Ontario, as represented by the Minister of Transportation, in respect of allegations concerning the transfer of the ownership of her vehicle, the removal of her licence plate from the Ministry’s system, and the suspension of her driver’s licence. Ontario contested the action, noting Ms. Rebello had failed to provide proper notice of the claim, as required by the provincial Proceedings Against the Crown Act. Ontario brought a motion to strike Ms. Rebello’s underlying action against the Province. A motion judge at the Superior Court granted Ontario’s motion to strike, and dismissed Ms. Rebello’s underlying action against Ontario; however, Ms. Rebello was allowed to file a new claim on the same issues. The Divisional Court denied Ms. Rebello leave to appeal that decision, finding the dismissal order was final and the appropriate route was an appeal to the C.A.; the Divisional Court lacked jurisdiction to hear an appeal. The C.A. dismissed Ms. Rebello’s motion seeking leave to appeal the Divisional Court decision. “The request for an oral hearing is dismissed. The application for leave to appeal…is dismissed with costs.”

Contracts: Interpretation; Termination 

Grasshopper Solar Corporation, et al. v. Independent Electricity System Operator, 2020 ONCA 499 (39386)
Independent Electricity System Operator entered into a standard form contract with each of the Applicants. The contract set a milestone date by which the renewable energy company was required to achieve commercial operation of solar power facilities. The energy companies failed to meet their milestone dates. Independent Electricity System Operator terminated the contracts without paying damages. The Applicants jointly applied for a declaration Independent Electricity System Operator did not have the right to terminate contracts. The applications judge dismissed the application. The C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Contracts: Interpretation; Termination 

Grasshopper Solar Corporation, et al. v. Independent Electricity System Operator, 2020 ONCA 499 (39387)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Disclosure 

Peel Regional Police Service v. R., et al., 2020 ONSC 4410 (39363)
Police had a Motel 6 in Brampton under observation because prostitution and drug trafficking offences had been occurring in and around the motel. Dyllan Ali and Diquan Taylor were two of four passengers in a taxi stopped by members of the police. The stop was based on an allegation the taxi proceeded through a red traffic light. Cst. Sean Osborne and Cst. Erik Grant testified at the preliminary inquiry that as they approached the stopped taxi, they made observations of movements inside the taxi that justified their removing the occupants and conducting a search for officer safety. The search revealed firearms and cocaine. As a result, Dyllan Ali faces numerous firearms offences and Diquan Taylor is charged with possession of cocaine for the purposes. They are to be tried together. Mr. Ali and Mr. Taylor have applied for an order requiring disclosure of the full contents of disciplinary and criminal investigation files relating to Cst. Osborne. To the extent these have not already been provided or agreed to be provided, Mr. Ali and Mr. Taylor submit they should be part of first party disclosure from the Crown pursuant to R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, and R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991], S.C.J. No. 83. In the alternative, they submit they have met the likely relevance threshold at the first stage of the third party disclosure regime developed in R. v. O’Connor, [1995] 4 S.C.R. 411. The application for further disclosure of the investigative files regarding Cst. Osborne’s previous disciplinary proceeding was dismissed. The application for disclosure of the investigative files for Cst. Osborne’s outstanding criminal charges was granted pursuant to the Crown’s first party disclosure obligations. “The application for leave to appeal…is dismissed.”

Criminal Law: Mischief 

Wagner v. R., 2020 ONCA (39402)
Ms. Wagner was subject to two probation orders that in part prohibited her from being on the premises of any abortion provider in Ontario and from communicating with any person in such premises. She entered an abortion clinic, disrupted the operations and spoke to patients. Ms. Wagner was convicted of mischief and breach of probation. A summary judgment appeal was dismissed. The C.A. refused leave to appeal. “The application for leave to appeal…is dismissed.”

Family Law: Custody & Access 

Barth v. Barth, 2020 SKCA (39328)
The parties are the parents of a child who will be six years old in 2021. In October 2017 there was an interim order establishing a regime of joint and shared parenting between the parties. In 2019, the Ministry of Social Services, in child protection proceedings, obtained orders eventually placing the child in the custody of the mother, with supervised access for Mr. Barth and his girlfriend. In 2019, in previously filed custody proceedings, Mr. Barth filed a series of applications. A number of those matters, as well as Ms. Barth’s application, were dealt with by fiat on separate appearances by two different Chambers Judges. The First Chambers Judge dismissed Mr. Barth’s applications, including his application to have the law firm representing Ms. Barth barred from representing her. That Judge found it unnecessary to deal with Mr. Barth’s contempt application on the basis it had been previously dismissed by another Judge. The Second Chambers Judge adjourned both Ms. Barth’s custody application and the child protection matter. She also dismissed Mr. Barth’s application to quash an affidavit filed by the Minister. Mr. Barth’s appeals from the two fiats were quashed with the exception of the contempt issue in the First Appeal. “The application for leave to appeal…is dismissed without costs.”

Family Law: Guardianship Orders 

Kennedy v. Public Guardian and Trustee, 2019 ONCA 956 (39345)
The Respondent, the Public Guardian and Trustee (“PGT”) refused an application by the Applicant, Mr. Kennedy, to become the statutory‑appointed guardian of his brother’s property. The PGT found Mr. Kennedy was an “unsuitable” candidate to manage his brother’s property, and lacked a suitable property management plan. The PGT also noted the brother’s own objection to Mr. Kennedy’s proposed appointment as his guardian, and the objections of other family members and care providers. The PGT successfully obtained a court order approving the refusal to name Mr. Kennedy as guardian of his brother’s property. Mr. Kennedy was unsuccessful in his appeal of that 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 with costs to the respondent.”

Family Law: Support Variation on Retirement 

Bone v. Bone, 2020 ABCA 323 (39427)
Mr. and Ms. Bone were married in 1974, separated in 2001 and divorced in 2003, having raised four children together. Ms. Bone was employed until the birth of the first child but became a full‑time homemaker while Mr. Bone pursued his career. In 2003, after a summary trial, the court ordered a matrimonial property division and spousal support in the amount $8K per month payable to Ms. Bone. Ms. Bone was also entitled to share in any bonuses Mr. Bone might receive. Mr. Bone was further required to maintain a term life insurance policy of $200K in favour of Ms. Bone. Each party received more than $1M in assets and an equalization of Mr. Bone’s pension and supplemental pension. Mr. Bone complied with every aspect of the 2003 order. In 2019, he applied to vary the spousal support and life insurance provisions of the original order on the basis his retirement and reduction in income constituted a material change in circumstances. Ms. Bone was by then receiving approximately $10K per month in spousal support, but had very little income of her own. She had dissipated all of the assets she had acquired years before in the division of matrimonial assets. In contrast, Mr. Bone had significantly increased his net worth by continuing to work and taking advantage of various investment opportunities. At the time of the applications, Mr. Bone was 73 and Ms. Bone was 71. The chambers judge varied the spousal support payable to $3K per month and terminated the order requiring Mr. Bone to maintain life insurance. Ms. Bone’s appeal was allowed and her spousal support was increased to $4,500 per month. Mr. Bone was also required to obtain life insurance with a face amount of $100K. “The application for leave to appeal…is dismissed without costs.”

Family Law in Québec: Partitionable Acquests 

E.W. v. M.R. 2020 QCCA 868 (39348)
There is a publication ban in this case, and a publication ban on the party. The Court file contains information not available for inspection by the public, in the context of whether increases in value of shares of a property management company held by one spouse prior to marriage must be considered a partitionable acquest. “The application for leave to appeal…is dismissed.”

Immigration: Deportation 

Lim v. Canada (Justice), 2020 FCA (39460)
Mr. Lim was deported from Canada after having been found to be inadmissible for serious criminality under s. 36(1)(a) of the Immigration and Refugee Protection Act as a result of a criminal conviction.  He challenged the Minister of Citizenship and Immigration’s decision not to issue him a work permit.  He also sought a compelled apology for having breached his Charter rights, a declaration previous judicial decisions were unconscionable and costs of no less than $15K. The Minister brought an application for an order to strike Mr. Lim’s application for a work permit on the basis it was an abuse of process, was an attempt to circumvent s. 72(1) of the IRPA that required leave to commence an application for judicial review of any matter under the IRPA, and was moot.  The Prothonotary found an order directing the Minister to reconsider Mr. Lim’s application for a work permit would serve no practical purpose.  She struck out Mr. Lim’s Notice of Application for judicial review without leave to amend.  The Fed. Court dismissed his appeal and the Fed. C.A. dismissed his motion for an extension of time in which to file his notice of appeal. “The application for leave to appeal…is dismissed.”

Municipal Law in Québec: By-Laws 

Galy, et al. v. Ville de Québec, 2020 QCCA 1130 (39384)
The Applicants owned buildings in the block formed by La Porte and Terrasse‑Dufferin streets and St‑Denis and Sainte Geneviève avenues inside the fortifications of the Ville de Québec. In 2011, a residential project for a lot in that block was submitted to the city. The lot was subject to certain restrictions because of its inclusion in the zone described as [translation] “steep slopes and approaches to steep slopes” in the city’s zoning plan. As a result of reviews done in 2014 in connection with the granting of permits for that real estate project, it was recommended the city remove the lot from the steep slopes zone through a by‑law amendment, provided a geotechnical study confirmed the contemplated work presented no risk to the stability of the embankment. Once the study showing this requirement was met had been submitted, the proposed by‑law amendment was approved by the borough council in July 2015. In September 2015, a public consultation was held concerning the proposed by‑law amendment. It resulted in a recommendation, through a resolution passed by the neighbourhood council, that the by‑law not be adopted because of the lack of available information about the planned residential development. On December 9, 2015, the Applicants served the city with a formal notice to suspend the adoption of the by‑law. After certain amendments were withdrawn, the by‑law entitled Règlement modifiant le Règlement de l’Arrondissement de La Cité‑Limoilou sur l’urbanisme relativement à la modification d’une zone de fortes pentes dans le secteur de la rue de la Terrasse‑Dufferin, R.C.A.1V.Q. 241, was adopted and came into force in mid‑December 2015. The Applicants filed an application for judicial review and for the annulment of a municipal by‑law with the Superior Court, which annulled the by‑law. The C.A. allowed the appeal and set aside the trial judgment. “The application for leave to appeal…is dismissed without costs.”

Tax: Assessments; Foreign Subsidiaries 

Canada v. Cameco Corporation, 2020 FCA 112 (39368)
Cameco Corporation, together with its subsidiaries, was a large uranium producer and supplier of services that convert one form of uranium into another. Cameco has facilities in Saskatchewan and Ontario along with subsidiaries which own assets in the U.S. In 1999, a subsidiary of Cameco, Cameco Europe S.A. (CESA), and other companies purchased Russian uranium that was formerly used in its nuclear arsenal. The uranium was provided for sale through a Russian state-owned company “Techsnabexport” (Tenex). Later in 1999, CESA entered into an agreement with Urenco Limited (Urenco) (a uranium enricher) and three of its subsidiaries to purchase uranium  Urenco would be receiving from Tenex. Cameco formed another subsidiary in Switzerland which changed its name in 2001 to Cameco Europe AG (SA, Ltd) (CEL). In 2002, CESA transferred its business to CEL. The profits realized by CEL from buying uranium from Tenex, Urenco, and Cameco and then selling it were substantial. The Minister of National Revenue reassessed Cameco’s income for the taxation years 2003, 2005, and 2006. The Minister added more than $480M for those taxation years due to transfer pricing adjustments. Cameco appealed the reassessment to the Tax Court of Canada who referred the reassessments back to the Minister for reconsideration. The Minister’s subsequent appeal was dismissed. “The application for leave to appeal…is dismissed with costs. Rowe J. took no part in the judgment.”