Criminal Law: Sentencing Above Crown’s Proposal

N. v. R., 2021 BCCA 13 (39599)
There is a publication ban in this case, in the context of a judge’s sentence for sexual assault in excess of the Crown’s proposed sentence. “The application for leave to appeal…is granted”


Aboriginal Law: Injunctions

Interlake Reserves Tribal Council Inc. et al. v Government of Manitoba, 2021 MBCA 17 (39602)
Manitoba planned a new flood control management system to replace an existing emergency outlet channel. Approval of the new project is subject to environmental assessment under both provincial and federal assessment legislation. Various First Nations communities contested Manitoba’s decisions to authorize a permit for land clearing in anticipation of work on the project, and to authorize a licence for the upgrading of a winter road (associated with the current channel) to an all-season road. They expressed concern about the impact of activities such as land clearing and other work on wildlife migration, plant life, fish habitats, availability of land, traditional knowledge and cultural identity, and the exercise of Aboriginal and treaty rights. The First Nations brought an action with a series of claims, including a request for injunctive relief. Manitoba opposed the injunction and brought a motion to dismiss the claim.  The motion judge at the Manitoba Court of Queen’s Bench dismissed Manitoba’s motion to strike, and applied the three-part test for injunctions, concluding the First Nations in this case met the test. The judge granted two injunctions, enjoining Manitoba from undertaking further work on upgrading the winter road (with an exception for flood protection or mitigation in the event of a high water event), and from undertaking further action on the project as a whole (except for testing or exploratory work as necessary), until the First Nations’ claim for judicial review is adjudicated or until federal environmental approval for the project is issued. The Man. C.A. unanimously allowed the Province’s appeal and set aside both injunctions, finding the motion judge erred in his application of the test for injunctive relief. “The motion to expedite the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Bankruptcy & Insolvency: Applications to Strike; Costs

Rose, et al. v. PricewaterhouseCoopers Inc., et al., 2021 ABCA 16 (39597)
Perpetual Energy Inc. decided to sell a large number of gas wells and related lands and infrastructure (the Goodyear Assets) along with associated asset retirement obligations (ARO). Perpetual Energy held the beneficial interests of the Goodyear Assets through the Perpetual Operating Trust (POT). The legal interests and licences for the Goodyear Assets were held by Perpetual Energy’s wholly‑owned subsidiary, Perpetual Energy Operating Corp. (PEOC), as trustee for POT. On October 1, 2016, PEOC purchased POT’s beneficial interest in the Goodyear Assets. The shares of PEOC were then sold to an arm’s length company and renamed Sequoia Resources Corp. On March 23, 2018, Sequoia assigned itself into bankruptcy. PricewaterhouseCoopers Inc. was appointed as Sequoia’s bankruptcy trustee (the Trustee). In August of 2018, the Trustee sued Perpetual Energy, POT, PEOC, and Susan Rose (as sole director of PEOC at the time of the sale), alleging the purchase of the Goodyear Assets was undervalued and non‑arm’s length, PEOC was operated in a manner that was oppressive, that the sale was contrary to public policy, and Ms. Rose breached her fiduciary duties and duty of care. The Alberta Court of Queen’s Bench declined to strike or dismiss the arm’s length issue, but struck the claims for oppression and on public policy grounds. In a separate decision, the Alberta Court of Queen’s Bench awarded solicitor‑client costs to Ms. Rose owed by PricewaterhouseCooper directly. PEOC (and related companies) appealed the arm’s length issue while the Trustee appealed the oppression public policy issues. The Alta. C.A.  dismissed PEOC’s appeal and allowed the Trustee’s appeal. “The motion to join two Court of Appeal of Alberta files in a single application for leave to appeal is granted. The applications for leave to appeal … are dismissed with costs. Justice Rowe took no part in the judgment.”

Constitutional/Labour Law: Role of Intervenors

Canadian Union of Public Employees, et al. v. Attorney General of Nova Scotia and Attorney General of Manitoba, 2021 NSCA 9 (39598)
This case stems from a Reference concerning the constitutionality of the Nova Scotia Public Services Sustainability (2015) Act. The Applicant Unions were added as interveners on the Amended Reference. The Respondent A.G. General of Nova Scotia filed an evidentiary record consisting of 16 volumes of materials. The Unions filed a Notice of Motion seeking two orders: (1) an order authorizing the Unions to rely on certain affidavits and expert reports; and (2) an order the A.G. add certain Cabinet documents relevant to Bill 148 to the Record. The N.S. C.A. dismissed the motion. “The application for leave to appeal…is dismissed with costs to the respondent, Attorney General of Nova Scotia.”

Corporate Law: Financing Contracts

Lajeunesse v. Investissement Québec, 2020 QCCA 201 (39592)
The Applicant was, for several years, the majority shareholder and principal officer of a company that produced and sold wood shavings, GPM Ripe Inc. (“GPM”).  A financing plan provided the Respondent would lend GPM $900K and the Applicant had to grant a temporary suretyship as a condition of the loans.  When part of the loans had already been paid out, the Respondent informed the Applicant it would not pay out any additional amount to GPM because of several risk factors.  GPM was deemed to have made an assignment of its property. The Applicant brought an action against the Respondent, claiming a total of $35M in compensatory and punitive damages. The Respondent sued the Applicant as surety for the amounts loaned to GPM and claimed $80K. The Québec Superior Court dismissed the Applicant’s application, allowed the Respondent’s application and ordered the Applicant to pay the Respondent $80K. The Qué. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal… is dismissed with costs.”

Criminal Law: Sexual Assault

I. v. R., 2021 ONCA 69 (39552)

There is a publication ban in this case, in the context of alleged motive to fabricate sexual assault. “The application for leave to appeal…is dismissed.”

Environmental Law: Permits and Licences

Samborski Environmental Ltd. v. Government of Manitoba, 2021 MBCA 11 (39609)
An environmental licence under The Environment Act was issued by Manitoba’s then Department of Environment (“Department”) to a garden supply business with a composting component on a property located in a rural municipality. The licenced development was never established by that business. The property was purchased by a new owner. The Applicant, Samborski Environmental Ltd. (“Samborski”) attained an interest in the property by way of an option to purchase. Samborski attempted to obtain approval for a composting operation on the property. Samborski discovered the Department had issued the licence to the previous business and commenced an action against the Government of Manitoba (“Respondent”) for damages for negligence and breach of statutory duty for failing to advise Samborski of the existence of the licence. The Respondent moved for summary judgment. The motion judge granted the motion, holding the licence was not valid as it was issued in respect of a previous development that was not acquired by the new owner. After the previous owner abandoned the development, the licence was cancelled or revoked. The Man. C.A. found no error in the motion judge’s determination. “The application for leave to appeal…is dismissed with costs.”

Pharmaceuticals: Motions to Strike/Amend

J.R. Simplot Company, et al. v. McCain Foods Limited, et al., 2021 FCA 4 (39600)
McCain Foods Limited owns Canadian Patent No. 2,412,841. The patent relates to a system that reduces the resistance of frozen fruits and vegetables to cutting after they are cooked. A German company, Elea, manufactures and supplied the system at issue to J.R. Simplot Company and Simplot Canada Limited (together Simplot). In 2017, McCain sued Simplot, alleging violation of their patent. In response, Simplot filed a statement of defence and counterclaim. Simplot also contacted Elea for an indemnity which was refused. As a result, Simplot filed a motion to amend its statement of defence and counterclaim to include defences related to Elea and to serve and file a third party claim against Elea. McCain opposed Simplot’s motion. In 2019, a Prothonotary of the Fed. Court granted Simplot leave to amend their statement of defence and counterclaim with leave and an extension of time to commence their third party claim. McCain appealed the Prothonotary’s orders and filed a motion to strike the third party claim. The Fed. Court struck portions of the statement of defence and counterclaim but granted leave to amend them. The Fed. Court also dismissed the motion to strike the third party claim in its entirety and granted leave to amend. In a unanimous decision, the Fed. C.A. allowed the appeal of the third party claim and struck it in its entirety without leave to amend; dismissed the appeal of the statement of defence and counterclaim. “The application for leave to appeal…is dismissed with costs.”

Pharmaceuticals: Patents; “Obviousness”

Amgen Inc., et al. v. Pfizer Canada ULC, 2020 FCA 188 (39530)
The Applicants (collectively “Amgen”) brought an action against the Respondent Pfizer Canada ULC (“Pfizer”) under s. 6(1) of the Patented Medicines (Notice of Compliance) Regulations, SOR/93‑133 after being served with a Notice of Allegation from Pfizer. Amgen is the owner of the 537 Patent in issue, listed on the Patent Register against Amgen’s biological drug, sold and distributed commercially as “Neupogen”, with the active ingredient being filgrastim. Filgrastim is used to treat neutropenia, a disorder in which the body cannot produce sufficient levels of white blood cells, usually experienced during the course of chemotherapy. The patent is related to a hematopoietic growth factor, made using recombinant genetic technology. Pfizer filed a New Drug Submission with the Minister of Health for the issuance of a Notice of Compliance for its filgrastim biosimilar “Nivestym” using Neupogen as the reference biologic drug, to receive regulatory approval. Amgen’s position was the making, selling and distributing of Nivestym would infringe certain claims of its 537 Patent. Pfizer counterclaimed the 537 Patent was invalid and void due to, inter alia, obviousness. The trial judge held the 537 Patent was invalid for obviousness. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”