Bankruptcy & Insolvency: “Quarrelsome Litigant” 

H.E., in her quality as liquidator of the succession of F.K. v. André Gabbay et associés inc., 2020 QCCA 1098 (39501)
There is a publication ban on the party, in the context of a declaration of “quarrelsome litigant” in Québec. “The motion for leave to intervene filed by U.G. is dismissed. The application for leave to appeal…is dismissed. Kasirer J. took no part in the judgment.”

Bankruptcy & Insolvency: CCAA; Reverse Vesting Orders 

Cantore v. Nemaska Lithium Inc., et al., 2020 QCCA 1488 (39464)
Proceedings were commenced under the Companies’ Creditors Arrangement Act in respect of companies involved in a mining project in Québec. This led to an uncontested sale or investment solicitation process and an offer subject to a condition that a reverse vesting order be issued. Under the reverse vesting order, the offering companies acquire the shares of the insolvent companies, they assume secured debt, but claims of creditors and unwanted assets are transferred to a new non‑operating company before closing. The insolvent companies applied to the Superior Court of Québec for an order approving the transaction and issuing the required reverse vesting order. Mr. Cantore, a shareholder and a creditor of royalties objected to the transaction and the reverse vesting order. The Superior Court of Québec granted leave to enter into the transaction and issued the reverse vesting order. The C.A. dismissed an application for leave to appeal. “The motion to be added as parties or for leave to intervene is dismissed. The application for leave to appeal…is dismissed with costs.”

Bankruptcy & Insolvency: CCAA; Reverse Vesting Orders 

Shenker v. Nemaska Lithium Inc., et al., 2020 QCCA 1488 (39526)
Similar summary for that immediately above. “The motion to be added as parties or for leave to intervene is dismissed. The application for leave to appeal…is dismissed with costs.”

Civil Procedure in Québec: Revocation of Judgment 

Tremblay v. Québec (Attorney General), 2020 QCCA 1384 (39479)
The Applicant, an engineer by training, worked on a freelance basis for Macogep inc., a company that managed construction projects. Macogep was retained by the Ministère des Transports du Québec (“MTQ”) to provide staff for the Dorval interchange project, and in July 2012, the Applicant was hired as project and contract manager. Dissatisfied with the Applicant’s performance, the MTQ asked Macogep to replace him. The Applicant was removed from the project, and Macogep told him it had no other work to offer him. In February 2013, the Applicant entered into an agreement to provide project management consulting services with Groupe Axor inc., the manager of the McGill University Health Centre construction project under a public‑private partnership with the Ministère de la Santé et des Services sociaux (“MSSS”). In May 2013, Axor resiliated the Applicant’s contract for services because it was not satisfied. The Applicant instituted legal proceedings in which he took issue with the resiliation by the MTQ and the MSSS of his contracts for the two projects. The Superior Court dismissed the Applicant’s monetary claims, finding there was no evidence of any fault committed against him in the course of those two projects. On June 7, 2019, the Québec C.A. granted the Attorney General of Québec’s motion to dismiss and dismissed the Applicant’s notice of appeal on the ground most of the conclusions sought in the notice were declaratory and went well beyond the disposition of the judgment being appealed, such that his appeal had no reasonable chance of success. On September 30, 2019, the C.A. dismissed the Applicant’s motion for revocation of judgment, noting he was arguing the merits of his case again without raising any ground of revocation. On February 3, 2020, the C.A. granted the Attorney General of Québec’s motion to dismiss and dismissed the Applicant’s amended notice of appeal. On October 26, 2020, the C.A. dismissed the Applicant’s motion for revocation of judgment, finding it did not raise any ground of revocation that could fit within the causes set out in art. 345 of the Code of Civil Procedure. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Territorial Jurisdiction 

Hoëgh Autoliners AS, et al. v. Ewert, 2020 BCCA 181 (39403)
Mr. Ewert launched a class action alleging Hoëgh Autoliners AS and Hoëgh Autoliners, Inc (collectively, “Hoëgh”) had participated in a global price‑fixing conspiracy for roll‑on/roll‑off marine shipping services that transported new foreign vehicles to B.C. Hoëgh are foreign defendants in an action in B.C. Hoëgh were allegedly parties to and acted in furtherance of a global price‑fixing conspiracy that had harmed purchasers of new imported vehicles in B.C. Neither Hoëgh Autoliners AS nor Hoëgh Autoliners, Inc. provided the price‑fixed services to the B.C. market, but was alleged they had conspired to lessen competition and inflate prices, resulting in higher prices for vehicle purchasers in B.C. The chambers judge held the undisputed territorial jurisdiction aspects of the pleadings established a real and substantial connection between B.C. and the facts on which the proceedings are based. He dismissed the application. The B.C.C.A. dismissed Hoëgh’s appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Aggravated Assault; Sentencing

R. v. Bérubé-Gagnon, 2020 QCCA 1382 (39503)

The Respondent, Mr. Bérubé‑Gagnon, was charged with aggravated assault. He was 18 years and 2 months old at the time. Following his trial, he was convicted. Taking note that, according to Québec court decisions, the sentencing range for this type of offence varies from six months to six years, the trial judge imposed a sentence of 15 months’ imprisonment followed by three years of probation. The Qué. C.A. allowed Mr. Bérubé‑Gagnon’s appeal in part, reversed the sentence imposed, and sentenced him instead to 90 days of imprisonment to be served intermittently followed by two years of probation. To justify its intervention, the C.A. referred to the accused’s youth and the fact he had no prior criminal record, he was well on the road to rehabilitation and the presentence report was favourable. It found the trial judge had imposed a “demonstrably unfit” sentence and his analysis had been incomplete and inadequate on several points relating to the sentencing criteria, including the principles of individualization, parity and restraint. The sentence was not proportionate to the gravity of the crime or to the degree of responsibility. “The application for leave to appeal…is dismissed.”

Criminal Law: Dangerous Driving; Jury Instructions 

Guillemette-Lamontagne v. R., 2020 QCCA 1303 (39378)
The accused was stopped by a police officer after a high‑speed chase. He was arrested for dangerous driving and flight. At trial, the Crown questioned the police officer about the accused’s reaction following the arrest. The trial judge immediately interceded to rectify the Crown’s comments and instruct the jury on the concept of the right to silence. The trial judge later interceded again by giving corrective instructions after the Crown made erroneous comments about its burden of proof. The accused was convicted by the jury on charges of dangerous driving (s. 249(1)(a) and (2)(a) and failing to stop his vehicle while being pursued by a peace officer (s. 249.1(1) and (2)(a). The trial judge imposed a three‑month conditional sentence, made a two‑year probation order, and prohibited the accused from driving and confiscated his driver’s licence for one year. The Qué. C.A. unanimously dismissed the accused’s appeal. It found the trial judge’s corrective instructions had served to ensure the fairness of the trial as regards both the accused’s right to silence and the Crown’s burden of proof. The C.A. also held the jury’s verdict was consistent with judicial fact‑finding requirements. “The application for leave to appeal…is dismissed.”

Criminal Law: Guilty Pleas 

Garang v. R., 2016 ABCA 182 (39505)
The Applicant was charged with 18 offences arising out of a home invasion related to the enforcement of a drug debt. The matter was repeatedly set down for trial and adjourned numerous times as the Applicant retained and discharged different counsel. After he discharged his last lawyer in the middle of his trial, the trial judge refused the Applicant’s request for another adjournment. The Applicant then pleaded guilty, with the Crown’s consent, to possession of cocaine for the purpose of trafficking and possession of a firearm. He was sentenced to a term of imprisonment. The Applicant filed an appeal from his convictions, alleging he was pressured into entering the guilty pleas and his Charter rights had been breached. The C.A. dismissed his appeal. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed.”

Criminal Law: Homicide

R. v. B., 2020 BCCA 262 (39457)

There is a publication ban in this case, in the context of first degree murder of a spouse. “The application for leave to appeal…is dismissed.”

Professions: Discipline; Hearing Aid Acousticians 

Cousineau v. Villeneuve, 2020 QCCA 1438 (39385)
The Applicant, Mr. Cousineau, was a hearing aid acoustician. He was also the publisher of a magazine containing general information about hearing health. Certain issues of the magazine distributed in 2012 included articles promoting brands or models of hearing aids offered by five different manufacturers, which had to pay $25K each to publish articles in the magazine. The Syndic of the Ordre des audioprothésistes du Québec (“Order”) filed a complaint against Mr. Cousineau, accusing him of breaches of s. 5.08 of the Code of ethics of hearing-aid acousticians, which concerns ethical obligations of members in relation to advertising. The Order’s disciplinary council found Mr. Cousineau guilty as charged and dismissed a motion in which he argued s. 5.08 was unconstitutional and of no force or effect. The Professions Tribunal dismissed Mr. Cousineau’s appeal with respect both to his guilt and to his constitutional argument. The Superior Court dismissed his J.R. The C.A. dismissed an application for leave to appeal and a motion for correction. “The application for leave to appeal…is dismissed with costs to the respondent, Gino Villeneuve, in his capacity as syndic of the Ordre des audioprothésistes du Québec.”

Professions: Engineers; Unlawful Practice 

Tremblay v. Order of Engineers of Québec, 2020 QCCA 1388 (39541)
The Applicant, Bernard Tremblay, was convicted by the Court of Québec of four charges laid by the Respondent, the Ordre des ingénieurs du Québec, under the Professional Code and the Engineers Act, for unlawful practice of the profession of engineer. Mr. Tremblay had used the abbreviation “Ing.” in emails and in the resumé he sent to potential employers, even though he was no longer a member of the Ordre des ingénieurs du Québec. Mr. Tremblay appealed that decision to the Superior Court, which dismissed the appeal. The C.A. dismissed the motion for leave to appeal. It also dismissed the motion for revocation of the judgment it had rendered on the motion for 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 without costs. Wagner C.J. took no part in the judgment.”

Professions: Misleading Advertising 

N.F. v. S.L., 2020 QCCA 1417 (39493)
There is a publication ban in this case, in the context of cosmetic surgery advertising. “The application for leave to appeal…is dismissed with costs.”

Real Property: Restrictive Covenants 

Lone Oak Properties Ltd. v. Baillie, 2020 ONCA 614 (39435)
The Applicant was a developer of a small subdivision. The Respondents purchased a vacant lot from the Applicant which was subject to a time-limited restrictive covenant limiting the size of ancillary buildings to 48 by 24 feet. The Respondent, Clayton Baillie, wanted to build a shed and he knew he required the approval of the Applicant to do so. He hired a builder and the shed measuring 60 by 30 feet was constructed in 2017. It is the position of the Applicant the shed was built without the requisite approval. It is the position of the Respondents they had obtained the approval necessary for their construction of the shed. The application judge found the restrictive covenant to be unenforceable, and dismissed the Applicant’s application. The C.A. dismissed the appeal, and varied the costs award. “The application for leave to appeal…is dismissed with costs.”

Tax: Land Transfer; Capital Gains 

984274 Alberta Inc. v. Canada, 2020 FCA 125 (39355)
The Applicant, 984274 Alberta Inc., was incorporated under the laws of Alberta in 2002, as a wholly owned subsidiary of Henro Holdings Corporation (“Henro”). On April 24, 2002, Henro transferred 84 acres of land to the Applicant on a tax‑free rollover basis.  Later that day, the Applicant sold the land to an arm’s length party. For that taxation year, the Applicant reported the taxable capital gain resulting from the sale transaction and paid the tax owing of $1,809,598. The Applicant was assessed as reported. In 2009 however, following an audit of Henro, the CRA issued a reassessment, determining the tax neutral rollover of land to the Applicant was ineffective and the sale transaction should be taxed in the hands of Henro. As a result of Henro’s reassessment, the CRA also issued the Applicant a nil assessment in 2010 and refunded to the Applicant the taxes it paid in 2003 together with refund interest on that amount. In 2012, the CRA confirmed Henro’s reassessments and assessments, and Henro appealed that ruling to the TCC. In 2014 CRA and Henro settled the matter by way of an agreement co-signed by the Applicant, although it was not party to the appeal. The settlement agreement stipulated taxes were payable by the Applicant as originally reported and assessed in 2003. The CRA issued a reassessment in 2015, requiring the Applicant to repay the refund of taxes it received in 2010, refund interest paid by the Minister, plus arrears interest. The Applicant appealed. The Tax Court of Canada allowed the Applicant’s appeal. The Fed. C.A. overturned that decision. The Minister was entitled to recover all payments made to the Applicant in 2010, including arrears interest. “The application for leave to appeal…is dismissed with costs.”