Granted (1)

Copyright: “Making Available” 

Society of Composers, Authors and Music Publishers of Canada, et al. v. Entertainment Software Association, et al., 2020 FCA 100 (39418)
The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed proposed tariffs for the communication to the public by telecommunication of work in its repertoire through an online music service. However, before the Board considered it, the Copyright Modernization Act amended the Copyright Act. In particular, it added three “making available” provisions to the Copyright Act in ss. 2.4(1.1), 15(1.1)(d) and 18(1.1)(a). For example, s. 2.4(1.1) provided, for the purposes of the Copyright Act, “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”. Then, a few days after the Copyright Modernization Act was enacted, but before it came into force, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (“ESA”), was released. It held the transmission of a musical work over the Internet that resulted in a download of that work is not a communication by telecommunication. (See also Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, at para. 2.) As a result, royalties were not available for those downloads. When the meaning of the “making available” provisions was brought before the Board in relation to SOCAN’s proposed tariffs, the Board decided the matter was legal and would be of interest more widely than just to the tariff in question. A separate proceeding was initiated, and the Board invited written submissions from anyone with an interest in the interpretation of the “making available” provisions. Having received submissions from more than 30 organizations, the Board found s. 2.4(1.1) of the Copyright Act deems the act of making a work available to the public a “communication to the public” within s. 3(1)(f) of that Act and, thus, an act that triggers a tariff entitlement. However, in the related matter, it declined to assess a tariff based on lack of evidence: 2020 FCA 101. Judicial review of the latter decision was requested and denied, and leave to appeal was not sought. The Fed. C.A. quashed the Board’s decision regarding the meaning of the “making available” provisions. “The motions to join two Federal Court of Appeal files in a single application for leave to appeal are granted. The applications for leave…are granted with costs in the cause. The motion to add Bell Canada, Quebecor Media Inc., Rogers Communications Inc. and Shaw Communications as respondents on the appeal is granted. Abella J. took no part in the judgment.”

Dismissed (12)

Aboriginal Law: Treaty Rights 

Landry v. Attorney General of New Brunswick, 2020 NBCA 38 (39447)
The Applicant, Ms. Landry, applied to the N.B. Court of Queen’s Bench for an order declaring she is a holder of treaty rights. She claimed to be an Aboriginal person afforded treaty rights by being a direct descendant of a treaty signatory. Two similar applications to the Federal Court had been dismissed. The application judge concluded Ms. Landry was attempting to have the same issue adjudicated, and dismissed the application for abuse of process. The C.A. dismissed Ms. Landry’s appeal, finding the application judge’s conclusion was supported by the evidence on the record and was consistent with the applicable case law. “The application for leave to appeal…is dismissed.”

Bankruptcy & Insolvency: Letters of Credit 

Fuller Landau Group Inc. in its capacity as trustee in bankruptcy of 7636156 Canada Inc v. OMERS Realty Corporation, 2020 ONCA 681 (39492)
Pursuant to a commercial lease of an industrial building, the tenant executed a $2.5M letter of credit with a bank in favour of the landlord, OMERS Realty Corporation, and deposited $2.5M as collateral with the bank. The tenant made an assignment in bankruptcy on May 1, 2018. OMERS Realty Corporation drew $207,732.28 on the line of credit. The tenant’s trustee in bankruptcy, Fuller Landau Group Inc., disclaimed the lease on July 23, 2018. OMERS Realty Corporation made two further draws for the remaining available credit. Fuller Landau Group Inc. brought a motion for a declaration OMERS Realty Corporation was only entitled to draw and retain an amount equal to its preferred claim under the Bankruptcy and Insolvency Act, and for an order requiring it to pay the balance to Fuller Landau Group Inc. A motions judge granted the relief request by Fuller Landau Group Inc. The C.A. allowed an appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure: Court Access Restrictions 

Hayden v. Hayden, et al., 2020 ABCA (39540)
Ms. Hayden was terminated from her employment with Alberta Health Services and unsuccessfully pursued a grievance with the assistance of her union. Subsequently, she commenced an action arising out of the same circumstances against a number of parties which eventually was stayed, then dismissed. Ms. Hayden commenced another action against two of the lawyers who were named in the previous dismissed action, seeking a remedy for oppression under the Alberta Business Corporations Act. The Respondents sought leave to file an application to have Ms. Hayden subject to court access restrictions. The case management judge dismissed Ms. Hayden’s action in its entirety and he sought further submissions from the parties regarding court access restrictions. The C.A. refused Ms. Hayden’s application for leave to appeal from the case management judge’s decision. “The application for leave to appeal from the order by Rowbotham J. of the Court of Appeal of Alberta (Calgary), bearing no file  number, dated September 24, 2020, is dismissed with costs.”

Class Actions: Drug/Alcohol Testing 

Koren, et al. v. R.G., 2020 ONCA 414 (39425)
There is a publication ban this in case, and a publication ban on the party, in the context of a class action re a laboratory testing hair samples for drug/alcohol. “The motion for an extension of time to serve and file the second application for leave to appeal is granted. The applications for leave to appeal…are dismissed with costs.”

Criminal Law: Bail Review

R. v. M., 2020 QCSC (39324)

There is a publication ban in this case, in the context of bail review. “The application for leave to appeal…is dismissed.”

Criminal Law: Child Porn Constitutionality 

Attorney General of Québec v. Godbout, 2020 QCCS 2967 (39453)
The Respondent, Yvan Godbout, was the author of a book entitled Hansel et Gretel. The novel recounts, among other things, the suffering and ordeal of a brother and sister who are physically, psychologically and sexually abused in a both science fiction and horror story. Mr. Godbout was arrested after a citizen filed a complaint. He was charged with making child pornography (s. 163.1(2) of the Criminal Code), on the basis of the definition set out in s. 163.1(1)(c).  He applied for a declaration of unconstitutionality with respect to s. 163.1(1)(c), (2), (3), (4), (4.1) and (6). The Québec Superior Court allowed the application in part and declared s. 163.1(1)(c) and (6)(b) invalid and of no force or effect. It found those provisions infringed ss. 2(b) and 7 of the Charter and the infringements could not be justified under s. 1. Mr. Godbout was acquitted. “The application for leave to appeal…is dismissed for want of jurisdiction.”

Criminal Law: Conditional Sentences 

Lemay v. R., 2020 QCCA 1752 (39524)
After pleading guilty to six counts, the Applicant, Mr. Lemay, was given a 15‑month conditional sentence. The optional conditions of the order were changed as a result of two breaches (the second and third) of the order. The modified order required the Applicant to inform his supervisor as soon as he was released, which he failed to do. The Court of Québec found the Applicant had breached a condition of the order without reasonable excuse. It terminated the conditional sentence order and directed the Applicant be committed to custody until the expiration of his sentence. The Québec C.A. dismissed the Applicant’s motion for leave to appeal from the decision rendered by the Court of Québec and declared the Applicant’s motion for release moot. “The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed without costs.”

Criminal Law: Confidential Witnesses 

Named Person #3 v. R., 2020 ONSC (39539)
There is a publication ban in this case, and a Sealing order. Certain information is not available to the public, in the context of an application to disclose a potential witness as a confidential informer. “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: Homicide 

Smelie v. R., 2020 ONCA 274 (39476)
The Applicant Mr. Smelie was jointly charged with Mr. Gager for the shooting death of Darnell Grant. One evening in 2008, a mini‑van carrying an undetermined number of persons arrived at a particular area of Toronto. At least four persons were present in the area at that time, including the deceased, Darnell Grant. After making several passes through the area, the van stopped in a driveway. Several men got out of the van and proceeded to indiscriminately strafe the area with gunfire. After firing approximately 15 rounds, they got back in the van and fled. One round struck and killed Mr. Grant. After a trial by judge and jury, and expert evidence on gangs, Mr. Smelie was convicted of second degree murder, and Mr. Gager of first degree murder. Mr. Gager received a sentence of life imprisonment without parole for 25 years. The trial judge sentenced Mr. Smelie to life imprisonment without parole for 18 years. The C.A. dismissed the conviction appeals. “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: Homicide 

Gager v. R., 2020 ONCA 274 (39477)
Similar summary to that immediately above. “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: Grievances 

Labourers’ International Union of North America, Local 183 v. GDI Services (Canada) LP, et al., ONCA 2020 (39487)
GDI Services (Canada) LP entered into a contract with Cadillac Fairview Corporation Limited to perform cleaning and maintenance services at Toronto-Dominion Centre. The contract requires GDI Services to replace any personnel whose performance or conduct Cadillac Fairview regards as unsatisfactory in Cadillac Fairview’s sole opinion. Cadillac Fairview exercised this right in respect of an employee of GDI and revoked that employee’s right to enter TD Centre. GDI suspended the employee with pay while it reviewed the incident. It then placed the employee on indefinite lay‑off. Under the collective agreement, her employment terminated after one year of lay-off. The employee is represented by LIUNA Local 183. They grieved the suspension and the lay-off. An arbitrator dismissed both grievances. The Divisional Court dismissed an application for judicial review. The C.A. denied leave to 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 with costs.”

Tax: Notices of Assessment Appeals 

Delorme v. Agence du revenu du Québec, et al., 2020 QCCA 1295 (39445)
The Applicant, André Delorme, appealed notices of assessment for 2005, 2007 and 2008 issued and confirmed by the Respondent, the Agence du revenu du Québec (ARQ). The assessments had the effect of adding $1,647,362.00 in business income to the computation of Mr. Delorme’s total income. The business income was related to five real estate transactions allegedly carried out by Mr. Delorme. For certain transactions, he claimed deductions, including a deduction for a portion of a sale price he considered a doubtful debt. For others, he argued any gain had to be attributed to 104600 Canada Inc., one of the corporate vehicles used for part of his business. In a first judgment, the Court of Québec refused to decline jurisdiction and to refer the case to the Superior Court. In a second judgment, the Court of Québec found Mr. Delorme had failed to rebut the presumption the assessments were valid. The appeals from both judgments were dismissed, first by way of a motion to dismiss the appeal on the constitutional question and then, following a hearing, from the bench on the taxation issue. “The motion for permission to file certain documents solely in electronic format is granted. The motion to join and the motion for an extension of time to serve and file the applications for leave to appeal for the decisions from the Court of Appeal of Quebec, dated October 1, 2018 and January 25, 2019, are dismissed. The application for leave to appeal…is dismissed with costs to the respondent, Agence du revenu du Québec.”