Granted (1)

Civil Procedure: Public Interest Standing 

British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2020 BCCA 241 (39430)
The Council of Canadians with Disabilities commenced an action with two individual co‑plaintiffs. The action raised claimed mental health legislation in B.C. that alleged non‑consensual psychiatric health care treatment infringed ss. 7 and 15 of the Charter and is unconstitutional. The individual co‑plaintiffs discontinued their claims. The Council of Canadians with Disabilities sought to continue the litigation without the co‑plaintiffs. The Attorney General of B.C. applied for summary judgment dismissing the action, arguing the test for public interest standing is not made out. Hinkson C.J. granted the motion and dismissed the action. The B.C.C.A. allowed an appeal, struck Hinkson C.J.’s order dismissing the action, and remitted the matter of public interest standing to the B.C.S.C. for reconsideration. “The application for leave to appeal…is granted with the award of costs deferred to the Court hearing the appeal.”

Dismissed (14)

Bankruptcy & Insolvency: Appointment of Receiver 

Media5 Corporation, et al. v. Laurentian Bank of Canada, et al., 2020 QCCA 943 (39421)
The Applicant, Média5 Corporation, operated a business in the field of telecommunications technologies, and the Applicant, Essagal Acquisitions (Essagal), was a holding company held and controlled by Média5 whose purpose was to make international acquisitions. The Respondent Laurentian Bank of Canada (LBC) had been a creditor of Média5 and Essagal since March 2017. Média5 had a combined loan balance of approximately $2.7M in capital, interest and costs, while Essagal had a term loan balance of approximately $6M in capital, interest and costs guaranteed by Média5. The term loan had been obtained for the purpose of acquiring two companies specializing in information technologies and network infrastructure projects located in the Persian Gulf region. All of the Applicants’ loans with LBC were secured by various guarantees and hypothecs. After defaulting on a number of payments, the Applicants participated in various discussions and entered into forbearance agreements with LBC between the fall of 2017 and the fall of 2019. In November 2019, LBC, deeming the Applicants were insolvent, applied in the Superior Court for the appointment of PriceWaterhouseCoopers Inc. as receiver under s. 243(1) of the Bankruptcy and Insolvency Act for the purpose of selling the Applicants’ businesses as going concerns in a bidding process. In response to a variety of questions raised by the Québec Superior Court regarding the possibility for a secured creditor of having a receiver appointed under s. 243 of the BIA, the LBC amended its application so as to have an interim receiver appointed under s. 47 of the BIA. The amended application was dismissed by the Superior Court. The Qué. C.A. dismissed the appeal in part and referred the matter back to the Superior Court to have another judge rule on the application for appointment of a receiver under s. 243(1) of the BIA. “The modification to the style of cause to permit PriceWaterhouseCoopers Inc. to participate in the application for leave to appeal as an intervener pursuant to Rule 22(2) of the Rules of the Supreme Court of Canada is ordered. The application for leave to appeal…is dismissed with costs in favour of the respondent, Laurentian Bank of Canada. Côté J. took no part in the judgment.”

Civil Procedure: Costs 

Auciello v. CIBC Mortgages Inc., 2020 ONCA 553 (39469)
Mr. Auciello sued the Respondents for $100K for breach of contract, bad faith, intentional and unlawful interference with economic relations, breach of duty of good faith, irreparable harm to business reputation, loss of business and loss of business opportunity; $50K for mental and emotional distress; and $25K for aggravated and punitive damages against each Respondent. Brown J. awarded partial indemnity costs in the respective amounts of $23,420.82 and $24,743.22 to the responding parties. Mr. Auciello’s application for leave to appeal was denied by the Ont. C.A. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Dismissal of Counterclaim 

Khan v. Chaba, 2020 ONCA 732 (39475)
The Applicants appealed from the order of the trial judge dismissing the counterclaim against the Respondent. The counterclaim sought damages for fraudulent misrepresentation and inducing breach of contract arising from refinancing a residential property owned by another party. The Applicants also sought leave to appeal the trial judge’s costs order.  The C.A. dismissed the appeal. Leave to appeal costs was granted and dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted without costs. The miscellaneous motions are dismissed without costs. The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Interventions 

Canada (Attorney General) v. Kattenburg, 2020 FCA 164 (39474)
An appeal was brought to the Fed. C.A. from a judicial review in the Fed. Court.  The appeal is pending in the Fed. C.A. and turns on how the Canadian Food Inspection Agency applied domestic labelling requirements in legislation to specific imported food products, namely wine.  The Fed. C.A. received multiple motions for leave to intervene under Rule 109 of the Federal Courts’ Rules. The Fed. C.A. dismissed the applications for leave to intervene. “The application for leave to appeal…is dismissed.”

Civil Procedure: Limitation Periods 

Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (39437)
The Applicant, Mr. Carmichael, killed his son. At the time, he was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug Paxil manufactured by the Respondent, GlaxoSmithKline Inc. (“GSK”). The Applicant was charged with murder but found not criminally responsible on account of mental disorder. He received an absolute discharge in 2009. In 2011, the Applicant began an action in the Ontario Superior Court of Justice suing GSK for damages. The action was commenced more than seven years after the death of the Applicant’s son and almost two years after he received an absolute discharge. GSK moved for summary judgment to dismiss the action as statute‑barred pursuant to the Ontario Limitations Act. The motion judge dismissed the motion, holding the basic two-year limitation period under s. 4 did not begin to run until the Applicant received an absolute discharge. In his view, the Applicant had proved he was incapable of commencing a proceeding in respect of the claim because of his psychological condition under s. 7(1)(a) of the Act, and had thus rebutted the presumption of capacity under s. 7(2).  The C.A. allowed GSK’s appeal, granted the motion for summary judgment and dismissed the action as statute-barred. The C.A. made five conclusions: (1) the motion judge did not apply the wrong legal test under s. 7(1)(a) of the Act; (2) the motion judge did not reverse the onus for proving capacity under s. 7(2); (3) the motion judge materially misapprehended evidence of incapacity and this led him to make a palpable and overriding error in applying s. 7(1)(a) to the evidence; (4) this was an appropriate case for the court to make a fresh assessment of the evidence and to substitute the decision that should have been made; and (5) the Applicant did not prove he was incapable of commencing his action against GSK until his absolute discharge because of his psychological condition. “The application for leave to appeal…is dismissed with costs.”

Contracts in Québec: Tenders; Eligibility Criteria 

Les Agences Robert Janvier Ltée v. Société québécoise des infrastructures, 2020 QCCA 1140 (39431)
There is a sealing order in this case, in the context of eligible criteria for a tender call. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Bail 

J.A. v. R., 2020 ONCA 660 (39364)
There is a publication ban in this case, in the context of bail pending trial and material change in circumstances. “The application for leave to appeal…is dismissed.”

Criminal Law: MV Offences 

Edwards v. R., 2020 BCCA 253 (39484)
Mr. Edwards was the driver of a vehicle that struck and killed a pedestrian. Mr. Edwards had been looking in his rear-view mirror when he heard a very loud bang and the passenger side of the windshield shattered. He stopped his vehicle to quickly inspect the extent of the damage and then proceeded on his way. Mr. Edwards testified he had not seen the pedestrian at any point, and he believed he had struck a deer. Mr. Edwards was convicted of having the control of the vehicle involved in the collision and, knowing bodily harm had been caused and being reckless with respect to whether death resulted, failing to stop his vehicle and give his name and offer assistance, with intent to escape civil liability. The Crown alleged wilful blindness. His conviction appeal was dismissed. “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.”

Labour Law: Duty of Fair Representation 

Rana v. Teamsters Local Union No. 938, 2020 FCA 190 (39510)
When Mr. Rana’s employment as a truck driver was terminated, the union grieved his termination but was unsuccessful at negotiating a settlement. The union then advised Mr. Rana it would not pursue the grievance further. Mr. Rana then filed a complaint to the Canada Industrial Relations Board alleging the union breached its duty of fair representation. The complaint was dismissed as the Board found Mr. Rana had failed to make out a prima facie case of arbitrary or bad faith conduct on the part of the union. The union was not called on to respond to the complaint.  Mr. Rana applied for reconsideration which was dismissed. Mr. Rana then sought to have this decision reviewed, but the application for judicial review was dismissed. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Labour Board Jurisdiction 

Independent Contractors and Business Association, et al. v. British Columbia (Transportation and Infrastructure), 2020 BCCA 243 (39432)
B.C.’s Minister of Transportation and Infrastructure imposed a requirement on a construction project to replace a bridge over the Fraser River in Vancouver that all workers must be or become members of one of the affiliated unions of the Allied Infrastructure and Related Construction Council of B.C. A group of non-affiliated unions, contractors and workers filed a petition seeking judicial review of this decision. The Ministry of Transportation and Infrastructure and the Attorney General of B.C. applied for an order striking the petition. The Allied Infrastructure and Related Construction Council of B.C. successfully applied to be added as a party. The motions judge ordered that claims for declaratory relief raising certiorari and prohibition may proceed before the court but all other claims are within the exclusive jurisdiction of the province’s Labour Relations Board and should be struck or stayed. The B.C.C.A. agreed but for finding one of the struck claims should be allowed to proceed before the court. “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, Allied Infrastructure and Related Construction Council of B.C.”

Municipal Law in Québec: Expropriation 

Lubecki v. Ville de Granby, 2020 QCCA 1247 (39459)
The Respondent, Ville de Granby (“Granby”) served the Applicant Mr. Lubecki with a notice of expropriation of land. Granby assessed the value of the land at $ 118K, while Mr. Lubecki demanded $ 661K in real estate indemnity. Given the disagreement, the building property division of the Administrative Tribunal of Québec (“ATQ”) rendered a decision evaluating the indemnity to be paid to Mr. Lubecki for the expropriation to $ 390,410. Mr. Lubecki sought a review of that decision by another panel of the ATQ, and the amount was increased by a second panel to $ 455,183. Mr. Lubecki sought leave to appeal of the second ATQ decision in the Court of Québec. The Court of Québec denied leave, holding the application did not meet the criteria of raising issues that are serious, controversial, new or of general interest, and there was no substantive error in the method of calculating the indemnity. The Superior Court granted Granby’s exception to dismiss Mr. Lubecki’s application for judicial review on the basis it was unfounded in law even assuming the facts alleged were true, and dismissed the application for judicial review. The court found Mr. Lubecki failed to demonstrate in what way the decision of the Court of Québec could be considered unreasonable, and it was therefore plain and obvious his judicial review had no chance of success. The Qué. C.A. dismissed Mr. Lubecki’s application for leave to appeal, holding the conclusions of the Superior Court and Court of Québec were sound. “The application for leave to appeal…is dismissed with costs.”

Real Property: Tenants in Common 

Este v. Esteghamat-Ardakani, 2020 BCCA 202 (39458)
The parties were registered as tenants in common of a property. The Applicant, Ms. Este, resided in the residence on the property until 2015, when a fire caused such extensive damage to the residence it must be demolished. Ms. Este wished to rebuild the residence using insurance proceeds but Ms. Esteghamat‑Ardakani preferred her pre-existing application for partition and sale of the property proceed without rebuilding the residence. On application by Ms. Este, the chambers judge issued a mandatory interlocutory injunction compelling Ms. Esteghamat‑Ardakani to cooperate in the demolition and rebuilding of a residence on the property. The C.A. allowed Ms. Esteghamat‑Ardakani’s appeal and set aside the order. It did so for several reasons, including that the order for cooperation was impermissibly vague and unenforceable. “The application for leave to appeal…is dismissed with costs to the respondent.”

Tax: Capital Gain/Losses 

Iberville Developments Limited v. R., 2020 CAF 115 (39392)
Subsection 97(2) of the Income Tax Act permitted a taxpayer to transfer assets to a partnership in return for a partnership interest without triggering the immediate tax result such a transfer would normally entail. This is not a tax‑avoidance mechanism, but rather, a tax-deferral one: potential tax is preserved within the partnership until the assets are disposed of. The Applicant, Iberville Developments Limited, was a special partner of a realty development limited partnership who utilized this tax-deferral mechanism. Iberville rolled in shopping centres worth $130M with a cost base of $14M and received non‑share consideration of $8.5M. When it later carried out an internal reorganization that resulted in the partnership assets being owned by an affiliated corporation, Iberville claimed a realized capital loss of $122M. The Minister of National Revenue reassessed the transaction as a realization by the taxpayer of a $140K capital gain. The issue to be decided by the courts below was whether, upon a rollover of property to a limited partnership, the transferor’s adjusted cost base (“ACB”) in its partnership interest received in return is equal to both the fair market value of the property transferred pursuant to section 54 of the Act and the elected amount pursuant to subsection 97(2) or only to the elected amount. Iberville had argued there is a moment in time upon the disposition, not at least immediately after the disposition or acquisition, at which point the cost of transferred property could be added under section 54 to the transferor’s ACB of its partnership interest. The Tax Court held a contextual reading of the relevant provision did not allow for both section 54 and subsection 97(2) to apply at once. It found such an interpretation leads to an absurd and unintended result. The Fed. C.A. agreed with much of the Tax Court’s analysis, and dismissed Iberville’s appeal. The court found the relevant provisions could be read in a manner that avoids an absurd result, most notably because the partnership was in existence when the properties were transferred to it. “The application for leave to appeal…is dismissed with costs.”

Tax: Law Society Subsidiary 

Lawyers’ Professional Indemnity Company v. Canada, 2020 FCA 90 (39394)
The Lawyers’ Professional Indemnity Company (“LawPRO”) provided mandatory professional liability insurance for lawyers and paralegals licensed by the Law Society of Ontario who engage in the practice of law in Ontario. LawPRO filed tax returns for the 2013 and 2014 taxation years, asserting it qualified for the exemption under paragraph 149(1)(d.5) of the Income Tax Act, on the basis its parent, the Law Society of Ontario, was a “public body performing a function of government in Canada.” Upon reassessment in 2015, the Minister of National Revenue denied the paragraph 149(1)(d.5) exemption. The Minister confirmed the reassessments in 2016.  LawPRO appealed. The Tax Court judge agreed with the Minister’s decision. While the Law Society was a public body, it did not perform “a function of government in Canada.” The income earned by LawPRO, a subsidiary of the Law Society, was therefore not exempt from taxation for its 2013 and 2014 taxation years. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs. Rowe J. took no part in the judgment.”