Granted (1)

Criminal Law: Mandatory Minimums 

R. v. Hilbach, 2020 ABCA 332 (39438)
Both Respondents pled guilty to charges stemming from armed robberies of convenience stores. Mr. Hilbach was sentenced to imprisonment of two years less a day for robbery while using a prohibited firearm, contrary to s 344(1)(a)(i), and having in his possession a prohibited firearm while banned by reason of an order pursuant to s 109, contrary to s 117.01(1) of the Code, on each count to be served concurrently. Mr. Zwozdesky was sentenced to three years’ imprisonment for robbery with a firearm and one year imprisonment for the second robbery, to be served consecutively. Both Respondents brought a constitutional challenge to the respective mandatory minimum sentences alleging the sentences breached section 12 of the Charter. Each sentencing judge declared the relevant mandatory minimum sentence to be unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982.  The majority of the Alta. C.A. upheld the lower courts’ declarations of unconstitutionality. The appeal with respect to Mr. Zwozdesky was dismissed. The appeal with respect to Mr. Hilbach was allowed in part, and a sentence of three and one-half years was substituted. Justice Wakeling dissented and would have set aside the respective declarations of unconstitutionality. “The motion to join two Court of Appeal of Alberta files in a single application for leave to appeal is granted. The application for leave to appeal…is granted.”

Dismissed (16)

Civil Litigation: Vexatious Litigants 

Walker v. Law Society of British Columbia, 2020 BCCA 178 (39452)
Ms. Walker practised law in B.C. for many years until 2014 she became disabled due to several health problems. Her membership in the Respondent Law Society was terminated in 2016. The Law Society eventually became the custodian of her files. She obtained an order allowing her access to the files in order to view and photograph them. She brought a motion citing the Law Society for contempt of that order on the basis the Law Society sent more representatives than permitted to the storage site, which caused unreasonable interference with her ability to review her files. The Law Society filed an application for a vexatious litigant order.  The applications were set down for three days of hearing in October 2019. The first day was dedicated to Ms. Walker’s contempt application and it was largely completed except for Ms. Walker’s reply. The following day, the vexatious litigant application was supposed to be heard but Ms. Walker sent word she would be unable to attend the hearing due her doctor’s orders and asked the matter be adjourned. Counsel for the Law Society asked the court to proceed. The application judge allowed the matter to proceed in the absence of the Applicant but he adjourned both applications on terms. He enjoined the Applicant from filing any additional materials in the proceedings and enjoined her from instituting any further legal proceedings relating to the Respondent without leave of the court. The B.C.C.A. dismissed the Applicant’s appeal from that decision. “The application for leave to appeal…is dismissed.”

Civil Procedure: Dismissal for Delay 

Graff v. Network North Reporting and Mediation, 2020 ONCA 319 (39455)
The Applicant was involved in a MVA in 2006. She commenced an accident benefit claim and a tort claim against the driver. The Applicant then commenced another action in 2015 against the Respondents who have had involvement in litigation arising from the accident (the matter at issue here).  The Superior Court of Justice granted summary judgment for the Respondents and dismissed the Applicant’s underlying action. She filed a notice of appeal in January 2018 but never perfected the appeal. The appeal has been administratively dismissed twice. Her motion to set aside this second administrative dismissal of her appeal was dismissed by Trotter J.A. A three judge panel of the C.A. subsequently dismissed her further appeal. “The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Service 

Fuoco v. Toronto-Dominion Bank, 2020 QCCA 1408 (39517)
The Applicant filed an originating application in the office of the Québec Superior Court by which he sued the Respondent for wrongful dismissal and claimed more than $250K. At one of the Respondent’s branches, the Applicant handed the originating application to a teller, who acknowledged receipt by signing the back of the original. Since the Respondent did not answer within the required time, the Applicant requested the case be set down for judgment by default. The Respondent then applied for relief from its default. Having regard to the fact the Applicant had not served his originating application in accordance with the requirements of art. 139 of the Code of Civil Procedure, the trial judge granted the Respondent’s application to be relieved from its failure to answer. The appeal judge denied the Applicant leave to appeal, finding the trial judgment had not determined part of the dispute or caused the Applicant any irremediable injury; even if service had been found to be valid, the judge was of the view the Respondent would undoubtedly have been relieved from its failure to answer the summons. “The application for leave to appeal…is dismissed.”

Class Actions: Representative Plaintiff Honorarium 

Attar v. Fonds d’aide aux actions collectives, 2020 QCCA 1121 (39373)
The Applicant, Mr. Attar, was the representative plaintiff in a national class action that was settled with the Respondents, Red Bull Canada Ltd. and Red Bull GMBH. The settlement provided for an $850K award from which an honorarium of $5K was to be paid to Mr. Attar as representative plaintiff. The Respondent, the Fonds d’aide aux actions collectives (“FAAC”), opposed the approval of the honorarium, submitting that article 593 of the Québec Code of Civil Procedure restricts plaintiff honorariums to indemnities for disbursements. The Superior Court agreed with the FAAC and dismissed Mr. Attar’s application. The court held the provision does not allow the remuneration of representative plaintiffs for the time spent working on a class actions case. The C.A. dismissed Mr. Attar’s appeal. It found the legislative intent behind the provision is clear: plaintiff honorariums cannot include compensation for the time and effort devoted to a class action. It considered its interpretation to be consistent with doctrinal authority, and with well‑settled Québec jurisprudence. “The application for leave to appeal…is dismissed.”

Contracts: Anticipatory Breach 

6517633 Canada Ltd. v. Clews Storage Management Keho Ltd., 2020 SKCA (39290)
By agreement, 6517633 Canada Ltd. ceased to be a franchisee for Clews Storage Management Keho Ltd. and Dan Davis on August 29, 2017. In September 2017, they executed an appendix to the Minutes of Settlement in which Clews and Davis, in exchange for payment, released 6517633 from the franchise agreement and its agreement not to compete with Clews and Davis. Shortly thereafter, two representatives of Clews indicated, if an expected sale of the business did not come to pass, they would systematically reduce their prices until they attracted the majority of the market share and they would spread rumours 6517633’s prices were excessive. 6517633 brought an action alleging Clews and Davis were not properly licensed to offer a mortgage and complained Clews and Davis had threatened to put it out of business. Clews and Davis applied for summary judgment. Court of Queen’s Bench of Saskatchewan: application for summary judgment granted; claim dismissed. C.A.: appeal dismissed. “The motion of Stan Sheppard to represent 6517633 Canada Ltd. is dismissed.”

Criminal Law: Child Porn 

Canfield v. R., 2020 ABCA 383 (39376)
Mr. Canfield and Mr. Townsend, both Canadian citizens, arrived at a border entry point. Canadian Border Services Agency officers searched each man’s electronic devices in secondary screening and found child porn. Each accused was arrested. Mr. Canfield and Mr. Townsend both admitted the elements of possession of child porn and importing child porn subject to joint trial challenging the constitutionality of s. 99(1)(a) of the Customs Act. They argued the evidence was obtained in breach of ss. 7, 8 or 10 of the Charter and it ought to be excluded. The trial judge dismissed the constitutional arguments and admitted the evidence. Each accused was convicted of possession of child porn and importing child porn. The C.A. dismissed a joint appeal. “The motion to join two Court of Appeal of Alberta files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Confidential Informer Privilege 

Sandhu v. R., 2020 ONCA 479 (39410)
A confidential informer’s tip led to a police investigation resulting in multiple arrests and the seizure of drugs worth millions of dollars. Police observed Mr. Sandhu and Mr. Iqbal participate in the activities. An in cameraex parte hearing was held to determine whether the confidential informant acted as a police agent or a material witness and whether confidential informer privilege should be pierced. The applications judge held the confidential informant was neither a police agent nor a material witness and privilege applied. Mr. Sandhu and Mr. Iqbal were convicted for trafficking in cocaine and possession of cocaine for the purposes. The C.A. declined to order production of a redacted transcript of the ex partein camera hearing on confidential informer privilege and dismissed appeals from the convictions. “The motion to add Waseem Iqbal as a party to the 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.”

Criminal Law: Dangerous Offenders 

Boalag v. R., 2020 NLCA 33 (39436)
The Crown applied to have the Applicant designated a dangerous offender following his conviction in 2016 of three counts of sexual assault with a weapon, two counts of robbery, one count of possession of a prohibited weapon, one count of choking to overcome resistance to an offence, and one count of resisting arrest. A forensic psychiatrist was of the opinion the Applicant met the test for long‑term offender, but did not clearly meet the criteria for a dangerous offender designation. The trial judge declared the Applicant a dangerous offender, and, finding a lesser punishment would not adequately protect the public, ordered him to serve an indeterminate term of imprisonment. The C.A. of Newfoundland and Labrador dismissed the Applicant’s appeal. Applying the principles set out in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 396, released shortly after the trial judge rendered her decision, the C.A. determined the trial judge erred in failing to apply the “substantially intractable” standard in assessing the dangerous offender application. Examining the evidence as a whole, the C.A. was satisfied the trial judge’s analysis was nevertheless consistent with the standards set out in Boutilier, and applied the curative proviso found at s. 686(1)(b)(iii). It also held the trial judge gave comprehensive reasons for concluding an indeterminate sentence was the least restrictive sentencing option, and her reference to irrelevant evidence could not be said to have affected the outcome. “The application for leave to appeal…is dismissed.”

Criminal Law: Juveniles Sentenced As Adult 

L.Z. v. R., 2020 BCCA 208 (39451)
There is a publication ban this in case, and the Court file contains information not available for inspection by the public, in the context of a juvenile sentenced as an adult. “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.”

Expropriation: Costs 

Shergar Development Inc. v. Windsor (City), 2020 ONCA 490 (39399)
This appeal has been ongoing for several years and arises from a proceeding wherein the Respondent, City of Windsor expropriated certain property along the Detroit River in Windsor owned by the Applicant, Shergar Development Inc. The initial Ontario Municipal Board (OMB) decision awarded Shergar all costs related to the expropriation. At the rehearing decision, the OMB exercised its discretion and denied Shergar its costs from the date of the 2015 offer and found the City to be entitled to its costs from this date forward. The Superior Court agreed with the OMB’s rehearing decision and dismissed Shergar’s appeal. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Family Law in Québec: Partnership of Acquests 

Succession of the late J.M. v. R.C., 2020 QCCA 948 (39382)
There is a publication ban in this case, as well as a publication ban on the party; the Court file contains information not available for inspection by the public, in the context of how a debt is characterized re the partnership of acquests regime. “The application for leave to appeal…is dismissed with costs.”

Immigration: Permanent Residents; Criminal Convictions; Deportation 

Brown v. Canada (Citizenship and Immigration), 2020 FCA 130 (39408)
Mr. Brown was a permanent resident in Canada. He was convicted of criminal offences between 1999 and 2010. He lost his right to remain in Canada. In September 2011 he was placed in immigration detention pending his removal to Jamaica. He was detained in a maximum-security facility for five years until deported in September 2016. During his detention, he applied to the Immigration and Refugee Board for a declaration the Charter is breached by the immigration detention regime established under the Immigration and Refugee Protection Act, and the Immigration and Refugee Protection Regulations. A member of the Immigration Division of the Immigration Review Board heard and dismissed his Charter challenge and ordered his continued detention. The Fed. Court dismissed an application for JR. The Fed. C.A. answered a question certified for appeal and dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Immigration: Study Permits 

Leahy v. Canada (Citizenship and Immigration) 2020 FCA 145 (39473)
A non‑resident of Canada applied for a Canadian study permit, which was refused by a Visa Officer. With the assistance of the Applicant, he sought leave to have that refusal reviewed in the Fed. Court, but leave was refused. The Applicant then sought an order from the Fed. Court, quashing the study visa refusal, based on a Charter claim for his freedom to associate with the non‑resident. He did not seek leave to bring that application pursuant to s. 72(1) of the Immigration and Refugee Protection Act. The Fed. Court struck the application. This decision was upheld on appeal. “The request to have the application for leave to appeal considered with file 39529 is dismissed. The application for leave to appeal…is dismissed with costs.”

Professions in Québec: Discipline 

Bilodeau v. Director of Criminal and Penal Prosecutions, 2020 QCCA 1267 (39433)
There is a Sealing Order in this case, in the context of a request by a syndic of the Barreau du Québec to the Director of Criminal and Penal Prosecutions to inquire into the conduct of a lawyer. “The application for leave to appeal…is dismissed with costs.”

Tax: Financial Offences 

Drouin v. Agence du revenu du Québec, 2020 QCCA 1079 (39397)
The Applicant, Guy Drouin, was convicted by a Court of Québec judge of 60 financial offences for the years 2005 to 2007. In light of new evidence and the reopening of the investigation, the Court of Québec judge substituted acquittals for the guilty verdicts on certain counts for 2006 and 2007. The Agence du revenu du Québec appealed that second decision. The Québec Superior Court ruled in favour of the Agence; the appeal judge set aside the acquittals, restored all the guilty verdicts and remanded the case to the Court of Québec to determine the applicable sentence. A C.A. judge denied Mr. Drouin leave to appeal from the Superior Court’s decision. “The application for leave to appeal…is dismissed with costs.”

Torts: Financial Offences  

S.P. v. A.P., 2020 ABCA 235 (39407)
In 2007, the Applicant was charged with various counts of sexual assault and committed for trial. At the outset of the trial, a voir dire was held and the trial judge determined his video recorded statement to police, in which he confessed to the sexual assaults, was voluntary and admissible. This lead to a guilty plea and the sexual assaults admitted as agreed statements of fact. In 2012, the victim in the criminal process filed a statement of claim against the Applicant, claiming damages for sexual abuse. The Applicant filed a statement of defence denying the sexual assaults took place. The case management judge in the civil action granted partial summary judgment on liability, determining relitigation of the admitted facts from the criminal trial was an abuse of process. Any allegations outside the agreed facts, including issues of causation and quantum of damages remained live issues in the civil action. The C.A. agreed and dismissed the subsequent appeal. “The application for leave to appeal…is dismissed with costs to the respondent, A.P.”