Granted (2)

Criminal Law: Right to Counsel

R. v. Dussault, 2020 QCCA 746 (39330)

The Respondent, Patrick Dussault, was arrested for murder and arson. Before his trial, he moved to exclude from the evidence an incriminating statement he had made to the police while being questioned; the reason he gave was the statement had been obtained as the result of a violation of his right to counsel protected by s. 10(b). A voir direwas held. The trial judge dismissed the motion and found the statement admissible in evidence. At trial, the jury found second degree murder. The Respondent appealed the verdict. He argued the trial judge had erred in dismissing the motion to exclude the incriminating statement and in finding his right to counsel under s. 10(b) had not been violated. The Respondent submitted, in his telephone conversation with his lawyer, the latter had started to advise him but had not finished doing so, and the refusal of the police to allow the Respondent to continue consultation when his lawyer arrived at the police station was a violation of the police duty to ensure the application of s. 10(b). The C.A. allowed the appeal, set aside the guilty verdict and ordered a new trial. “The application for leave to appeal…is granted.”

Professions: Discipline 

Law Society of Saskatchewan v. Abrametz, 2020 SKCA 81 (39340)
This case arose from disciplinary proceedings pursued by the Applicant, the Law Society of Saskatchewan (“LSS”), against the Respondent lawyer, Peter V. Abrametz. Those proceedings, which began with an audit investigation initiated in 2012, resulted in a January 10, 2018, decision in which a Hearing Committee of the LSS found Mr. Abrametz guilty of four counts of conduct unbecoming a lawyer. The convictions were for breaches of the Law Society of Saskatchewan Rules and the version of the Code of Professional Conduct that was in effect. On January 18, 2019, the Hearing Committee ordered Mr. Abrametz disbarred, with no right to apply for readmission as a lawyer prior to January 1, 2021. In its November 8, 2018, stay decision, the Hearing Committee dismissed Mr. Abrametz’s application to stay the proceedings as a result of undue delay constituting an abuse of process. Mr. Abrametz appealed his conviction and the penalty decision to the C.A. pursuant to s. 56(1) of The Legal Profession Act. The C.A. allowed the appeal in part; it stayed the Law Society proceedings; set aside the imposed penalty and costs awards but findings of professional misconduct maintained. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed (17)

Civil Procedure in Québec: Civil Harassment 

Spira v. Engel, 2020 QCCA 1447 (39513)
The Respondent Aviva Engel alleged the Applicant, Shalom Chaim Spira, harassed her for several years. Ms. Engel brought an action against Mr. Spira, seeking non‑pecuniary damages, lost wages and reimbursement for extrajudicial fees. The Court of Québec granted Ms. Engel’s action in part, and ordered Mr. Spira to pay over $23K in damages. Mr. Spira attempted to appeal this decision to the Québec C.A. Ms. Engel brought a motion seeking to dismiss the appeal. The C.A. granted Ms. Engel’s motion and dismissed Mr. Spira’s appeal. It found Mr. Spira’s appeal had been initiated improperly, as the amount in dispute fell below the threshold for an appeal without leave; the proposed appeal also had no reasonable chance of success. In addition, Mr. Spira’s application for leave to appeal after the expiry of the applicable time limit was also dismissed. “The various requests for miscellaneous relief are dismissed. The application for leave to appeal…is dismissed.”

Civil Procedure: Dismissal for Abuse 

DeBlois v. Attorney General of Canada, 2020 QCCA 843 (39388)
The Applicant Vincent DeBlois incorporated the Applicant Zen Smoke in 2011 for the purpose of importing, distributing and marketing e‑cigarettes containing nicotine in Canada. In 2009, Health Canada had issued a public advisory stating e‑cigarettes used to vaporize and administer nicotine were covered by the Food and Drugs Act, and the Food and Drugs Regulations, and various authorizations were necessary in order to import, advertise and market them, etc. After obtaining information from Health Canada about the legislative and regulatory requirements to be met, the Applicants imported e-cigarettes for distribution without complying with those requirements. Zen Smoke applied to the Fed. Court for judicial review of a Health Canada decision prohibiting the entry of the e-cigarettes into Canada because of violations of the applicable legislative and regulatory provisions. In December 2012, the Fed. Court rejected the interpretation of those provisions proposed by Zen Smoke. Despite that decision and the laying of penal charges, the Applicants continued their import activities through the U.S. However, they ceased their activities in July 2014. In October 2015, the Applicants filed an application against the Respondents, the Attorney General of Canada, the Department of Health Canada and the Canada Border Services Agency, seeking damages for loss of business opportunities, loss of income, inconvenience and damage to their reputation. They maintained they had been subjected to harassment and seizures of materials, among other things, that led to the termination of their operations. The Superior Court dismissed the application and declared it to be abusive. The C.A. declared an appeal from the trial judgment required leave to appeal. It dismissed the motion for leave to appeal de bene esse. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Motions to Strike 

Al-Ghamdi v. College and Association of Registered Nurses of Alberta, 2020 ABCA 81 (39389)
Over a period of time, Dr. Al‑Ghamdi raised seven legal matters against a number of personal and corporate parties alleging personal and professional wrongs against him. In 2017 ABQB 684, the chambers judge addressed three of those matters. She determined no further proceedings could be taken against defendants who had not been served in time under r. 3.28 of the Alberta Rules of Court, struck certain actions pursuant to r. 3.68 as they had no reasonable prospect of success, and summarily dismissed the actions against other defendants under r. 7.3 on the basis the claims they set out were of no merit. In 2017 ABQB 685, the chambers judge addressed the other four matters. She found the originating applications for J.R. had not been filed or served in time, as required under r. 3.15, determined no further proceedings could be taken against defendants who had not been served in time under r. 3.28, struck actions against other defendants under r. 3.68 on the basis the pleadings disclosed no reasonable cause of action, and summarily dismissed the actions against other defendants under r. 7.3 on the basis there was no merit to the claims. Dr. Al‑Ghamdi appealed the entirety of both lower court decisions and alleged bias against the chambers judge. The C.A. dismissed both appeals. “The application for leave to appeal…is dismissed with costs to the respondents, Alberta Health Services, Alberta Health Services, formerly known as Capital Health, Chris Eagle, Verna Yiu, Rollie Nichol, Kevin Worry, James Pope, Albert Harmse, Peter Miles and his partners in Grande Prairie Surgeons Office, Richard Beeknian, Liam McGowan, Bryn Alexander Watson, Joseph Sendziak, Raubenheimer Denkema and his partners in the Grande Prairie Orthopaedic Surgeons Group, Wynand Wessels, Sandra Corbett, Joan Libsekal, Sean Chilton, Marie Johnson, Rita Young, Gail Coristine, Tracey Rice, Chris Bowes, Don Hunt, Ronald St. Germaine, Brian Muir, Brent Piepgrass, Mary Nasdekin, Theresa Jordan, Michelle Derewianko, Kathy Miller, Amber Cheveldave, Ashley Much, Belenda Parsons, Cheryl Mayer, Cindy Wendorf, Deb Magusin, Ferne Lacey-Shor, Jill Keddie, Denise Giebelhaus-Graw, Jill Lynk, Sheila Dorschied, Alan Hansen, Jody Fredrickson, Doug Parsons, Beatrice Scott, Melissa Thompson, Michelle Tolton, Carol Uhryn, Kerianne Dunlap, Atara Hustler, Stephanie Malekoff, Barb Vanachte, Desire Pullishy, Ginger Krause, Heather Halwa, Nichole Ressler, Shane Ray, Shawindra Parmar, Wanda Hobbs, Phyllis Pyke, Daniella Mueller, Sheila Dykhuizen, Vickie Kaminski, Deb Gordon, Holly Ljuden, Manish Joshi, Bonny Nelson, Cheryl Meriot, William Hondas, Karen Espersen, Jason Becker, Karen Bouman, Owen Robert Heisler, Kate Reed, James West, College and Association of Registered Nurses of Alberta, Oluwatosin Akindapo Akinbiyi, Scott Wesley Wiens, Corne Booysen, Alika Lafontaine, Chantelle Peter, Carin Strydom, Robert K. Staples, Avisha Narnaware, David Dawson, Doug Perry, Bryce Henderson, Carol Rowntree,  Saifee Rashiq and Gowling WLG (Canada) LLP, and College of Physicians and Surgeons of Alberta in relation to the Court of Queen’s Bench of Alberta Action No. 1504 00079, and Trevor William Theman in relation to the Court of Queen’s Bench of Alberta Action No. 1504 00079.”

Contracts: Non-Compete Clauses 

Poole v. City Wide Towing and Recovery Service Ltd., 2020 ABCA 305 (39354)
The Applicant, Mr. Poole, operated a vehicle towing business in and around Edmonton. He sold his assets in that business to the Respondent, City Wide Towing and Recovery Service Ltd. (“City Wide”). The sale included a non-competition agreement restraining Mr. Poole from competing with City Wide for a period of five years in Alberta, British Columbia and Saskatchewan. During this period, Mr. Poole commenced work with DRM Recovery Ltd., a business City Wide says is in direct competition with them. City Wide brought an action against Mr. Poole and DRM for breaches of the non-competition agreement and an application for an interlocutory injunction. A judge of the Court of Queen’s Bench granted an interlocutory injunction restraining Mr. Poole from competing against City Wide within the geographical area of Alberta, British Columbia and Saskatchewan. A majority of the C.A. allowed Mr. Poole’s appeal in part. It held while the restrictive covenant was unreasonably broad in its geographic scope, there was a strong prima facie case it was enforceable upon severance of some of its language. It amended the interlocutory injunction by excising words from it so the remaining scope was Alberta. A dissenting judge would have allowed Mr. Poole’s appeal and would have set aside the interim injunction rather than applying severance to it. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: DUI; Dangerous Driving 

Courchene v. R., 2020 MBCA 68 (39325)
Mr. Courchene lost control of his vehicle and his passenger suffered serious injuries. He was charged with dangerous driving causing bodily harm and impaired driving. A toxicologist gave opinion evidence based on blood samples taken just over two hours after the crash he was intoxicated at the time of the accident. An accident reconstruction expert opined he lost control of his vehicle on the shoulder of the highway while speeding in less than ideal conditions. From skid marks on the highway, the trial judge inferred an attempt to pass another vehicle on its right-hand side. The trial judge did not rely on the evidence of several witnesses. The trial judge convicted of dangerous driving causing bodily harm and impaired driving. The C.A. dismissed an 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.”

Criminal Law: Full Answer & Defence

R. v Sandeson, 2020 NSCA 47 (39390)

Mr. Sandeson was charged with first degree murder. His defence counsel hired a private investigator. The investigator helped develop the defence strategy. Without defence counsel’s knowledge, the investigator also assisted the police officers who were investigating the murder. At trial, Crown counsel disclosed the private investigator had helped police. The defence moved for a mistrial. The trial judge found a breach of the duty to disclose but denied a mistrial. He held an adjournment and further cross‑examination would remedy the breach. Trial continued. A jury convicted Mr. Sandeson of first degree murder. He appealed his conviction. The C.A. found the failure to disclose the conduct of the investigator and the police had precluded full answer and defence. It declared a mistrial and ordered a new trial. “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: Possession for the Purposes 

Stewart v. R., 2020 ABCA 252 (39335)
Ms. Stewart was stopped in a routine traffic stop and arrested. Her vehicle was searched. Police found 80 pounds of marijuana and 1 kilogram of cocaine hidden in feed bags. At trial, she testified she had been paid to courier marijuana and she had done so twice before. She testified she never touched the bags or looked inside them and she had no idea there was cocaine in them. The trial judge convicted Ms. Stewart of possession of cocaine for the purposes and possession of marihuana for the purposes. The C.A. dismissed a cross‑appeal from the conviction for possession of cocaine for the purposes. “The application for leave to appeal…is dismissed.”

Criminal Law: Threats; Probation 

Boast v. R., 2020 ONCA (39478)
Mr. Boast was in prison when he became embroiled in an altercation with a corrections officer about whether his cell lights should be on or off. Two officers witnessed the altercation. Crown counsel led evidence Mr. Boast said to the officer something akin to “Wait until I get released. I’ll get you in the street”. The officer testified he perceived that as a threat. The officer asked Mr. Boast if he had made a threat and Mr. Boast replied with something akin to “I don’t know what you’re talking about. I didn’t say anything”. Mr. Boast was convicted of uttering a threat and breach of probation. A summary conviction appeal judge refused to admit fresh evidence and dismissed the appeal. The C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”

Education: School Funding 

Good Spirit School Division No. 204 v. Saskatchewan, 2020 SKCA 34 (39212)
In the early 2000s, a public school in the Town of Theodore, Saskatchewan, closed due to declining enrolments. The closure was opposed by the Theodore community, which had lobbied to keep its school open. After those efforts failed, a petition was submitted to establish a Catholic separate school in the community. Theodore Public reopened as St. Theodore School, with many of the same non‑Catholic students in attendance. The Applicant Public School Division, Good Spirit School Division No. 204 (“GSSD”), challenged the government funding for those non-Catholic students now attending a Catholic school. It brought suit against the Respondents, the Government of Saskatchewan and the Catholic School Division, Christ the Teacher RCSSD No. 212, seeking declarations the province’s education funding system is unconstitutional on Charter grounds. Following a 12‑week trial, the Court of Queen’s Bench found the provisions which enabled funding to Catholic schools respecting the attendance of non‑Catholic students constituted a breach of the state’s duty of religious neutrality under s. 2 (a) and an infringement of equality rights under s. 15(1) were not justified under s. 1. The legislation was declared of no force or effect. A five-member panel of the C.A. unanimously allowed the Respondents’ appeal and dismissed GSSD’s action. The court found three fundamental errors of law in the approach taken by the court below: (1) the case was framed too narrowly, which resulted in the analysis discounting the parallelism underpinning the province’s approach to education; (2) the principles of the Charter right to freedom of religion were not properly applied; and (3) the court below allowed one part of the constitution, the Charter, to invalidate another part of the constitution, s. 93 of the Constitution Act, 1867. “The application for leave to appeal…is dismissed with costs to the respondent, Christ the Teacher Roman Catholic Separate School Division No. 212.”

Family Law: Asset Division 

Mullings v. Robertson, 2020 ONCA 369 (39420)
The parties commenced cohabitation in Jamaica in 1990. Together, they have one child, presently 28 years of age. The family immigrated to Canada in December 2000. Mr. Mullings liquidated all of his assets in Jamaica, including his pension, and used those funds to purchase property in Ontario. Mr. Mullings provided the downpayment and title was taken in joint names for their first home. In 2006, Mr. Mullings relocated to Brandon, Manitoba for employment purposes and the parties sold that home in anticipation of their move. They agreed to purchase another home in Ontario, however, before the move to Brandon. Ms. Robertson acquired title to this property in her name alone and moved in. That property was transferred into joint names in 2011, just prior to the parties’ separation. Mr. Mullings did not financially contribute toward the mortgage, taxes or other expenses related to the property. When his employment ended in Brandon, Mr. Mullings accepted a position in Saudi Arabia from 2008 to 2010. He has been unemployed since his return to Canada. He purchased a home for himself in his own name and moved some of his belongings into that home. At the time of trial, he was living in rental accommodations and was living on $19K per annum, primarily composed of OAP and CPP payments. He alleged the date of separation was June 2013. Ms. Robertson maintained it was October 2011. In 2016, Mr. Mullings filed an application seeking, inter alia, lump sum and periodic spousal support, partition and sale of the home occupied by the Respondent, occupation rent, life insurance and medical, dental and extended health coverage, a finding of a joint family venture, unjust enrichment and damages. Ms. Robertson counterclaimed for, inter alia, retroactive child support including special and extraordinary expenses, exclusive possession of the home she occupied and a declaration she was entitled to all right title and interest in that property. The trial judge dismissed almost all of the parties’ claims and ordered partition and sale of the former family residence. From the Applicant’s half share of the net proceeds of sale, he was ordered to pay the Respondent $19k in reimbursement for their child’s university tuition and half of the carrying costs of the home paid for by the Respondent from 2011 until the date of sale.  This decision was upheld on appeal. The Applicant’s motion to set aside the appeal judgment and for a new hearing were dismissed. “The application for leave to appeal…is dismissed with costs.”

Family Law: Mobility 

M.A.A. v. D.E.M.E., 2020 ONCA 486 (39429)
There is a sealing order in this case, and the Court file contains information not available for inspection by the public, in the context of a mobility application. “The application for leave to appeal…is dismissed with costs to the respondent, D.E.M.E., in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules Supreme Court of Canada.”

Judges: Removal 

Girouard v. Canada (Attorney General), 2020 FCA 129 (39379)
In 2012, the Canadian Judicial Council was asked to review Justice Girouard’s conduct. A majority of the members of the inquiry committee established to look into the matter recommended he be removed. However, the Council refused to make that recommendation to the Minister of Justice. In 2016, further to a joint request by the Minister of Justice and the Québec Minister of Justice, a new inquiry committee was established, this time to review Justice Girouard’s conduct during the previous inquiry. That second committee issued a report concluding Justice Girouard should be removed. Following a review by a second panel of the Council, a majority of judges also concluded Justice Girouard should be removed. Justice Girouard then applied to JR some of the previous procedural steps and decisions. The Fed. Court dismissed his application. It found the requirements of procedural fairness had been met. The C.A. dismissed the appeal. It held the Fed. Court had not erred in finding the Council’s decision to recommend Justice Girouard’s removal was reasonable. It also held there had been no breach of the principles of procedural fairness. “The application for leave to appeal…is dismissed. Wagner C.J. and Côté J. took no part in the judgment.”

Police: Alleged Misconduct 

Hogue v. Attorney General of Québec, 2020 QCCA 1081 (39400)
André Hogue died in 2006 after being shot in the head. His spouse, Armande Côté, was charged with his murder. At her trial, Ms. Côté presented a motion to exclude evidence, alleging numerous violations of her constitutional rights by Sûreté du Québec officers in the course of their investigation. The motion was granted, most of the evidence excluded and Ms. Côté acquitted. The Québec C.A. allowed the Crown’s appeal and ordered a new trial, but Ms. Côté was ultimately successful in the Supreme Court of Canada, which restored the acquittal in 2011. Following the Supreme Court’s decision, the Applicants brought an action against the Attorney General of Québec, alleging the acquittal of Ms. Côté, which was the result of wrongful conduct on the officers’ part, had caused them injury and had infringed their right to security. They also claimed punitive damages.  The Québec Superior Court dismissed the action, holding there was no causal link between the officers’ fault and the Applicants’ injury. The Québec C.A. unanimously dismissed the Applicants’ appeal. “The application for leave to appeal…is dismissed without costs.”

Real Estate: Development 

Ascent One Properties Ltd. v. Liao, 2020 BCCA 247 (39413)
This Leave concerns an aborted real estate development. In the first action, the Applicant, Ascent One Properties Ltd. alleged the Respondent, Li Chiao Liao, breached her fiduciary duty as a director of the company. That action was dismissed. In the second action, Ms. Liao’s holding company, the Respondent, 0949652 B.C. Ltd. sought the return of a $2.3M shareholder loan it provided to Ascent One at its inception, alleging it took priority over a subsequent $1.3M advance made to Ascent One by the Applicant Fwu Yang. That action was allowed. Ascent One, Mr. Yang and the Respondent Rena Properties Ltd., a holding company owned by Mr. Yang, alleged both errors of fact and law in the trial judge’s reasons.  The C.A. dismissed the appeals. “The application for leave to appeal…is dismissed with costs.”

Telecommunications: Rates 

Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 (39423)
The CRTC regulated the provision of wholesale high-speed access services by large telephone and cable companies to small and medium‑sized independent Internet service providers, who use them to provide their own retail Internet and other services to customers. The CRTC also sets the rates that may be charged for those access services. On August 15, 2019, the CRTC issued Telecom Order CRTC 2019‑288, Follow‑up to Telecom Orders 2016‑396 and 2016‑448 – Final rates for aggregated wholesale high‑speed access services, setting out the final rates that could be charged by the Applicants to the Respondent competitors and applying the rates retroactively. The Applicant telephone companies and some large cable companies appealed the Order on the basis of alleged errors in law or jurisdiction, while the Respondent medium and smaller Internet service providers defended the Order. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Competitive Network Operators of Canada and TekSavvy Solutions Inc.”

Telecommunications: Rates 

Bragg Communications Incorporated (c.o.b. Eastlink), et al. v. British Columbia Broadband Association, 2020 FCA 140 (39424)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondents, Competitive Network Operators of Canada and TekSavvy Solutions Inc.”

Trusts: Breach; Constructive Trusts 

Caja Paraguay de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Duscio, 2020 ONCA 412 (39374)
With the assistance of insider officers and others, a former business partner of Leanne Duscio’s husband defrauded a Paraguayan pension fund, Caja Paraguay de Jubilaciones y Pensiones del Personal de Itaipu Binacional (“Cajubi”) of $12,460,930. Mrs. Duscio’s husband, an undischarged bankrupt who had formerly been a business associate of Mr. Garcia, filtered approximately $3M of this money through Catan Canada Inc. (“Catan”). Mrs. Duscio was the sole director, officer and shareholder of Catan. Cajubi brought an action against multiple defendants in Canada, including Mrs. Duscio. Despite Mrs. Duscio’s roles and responsibilities in relation to Catan, and although she had signed cheques and authorisations when asked to do so by her husband, Mr. Duscio was found to have been the de facto controlling mind and will of Catan at all relevant times. He also had control over the funds of Columbus Capital Corp., another part of the financial chain. Over the nine months following Columbus Capital’s incorporation, Catan made wire transfers of more than $2.5M in for Columbus Capital’s purposes, and at least $400K of Cajubi’s funds were transferred to Columbus Capital without any attempt at justification. The trial judge made numerous findings of liability. Among them, he found Mrs. Duscio jointly and severally liable to Cajubi for $3M for knowingly assisting in the breach of trust orchestrated by the former business associate and Mr. Duscio. Only Mrs. Duscio appealed. The C.A. granted her appeal, set aside the disposition as against her, and ordered new trial concerning the issue of knowing receipt of trust funds as against her. “The application for leave to appeal…is dismissed with costs.”