Dismissed

Aboriginal Law: Settlements

Buck, et al. v. Canada (Attorney General) et al., 2021 FCA 1 (39604)
The Enoch Cree Nation was a First Nation that in 1942, leased a portion of its Reserve lands to Canada for use as a practice bombing range. In 2007, Enoch submitted a “specific claim”, in respect of its historic grievance, alleging breaches of fiduciary duty and other breaches the Crown improperly utilized Enoch’s Reserve lands without its consent and without regard to the damage that would be done to the Reserve lands. In 2013, Canada accepted this specific claim for negotiation, with the aim of the parties to negotiate a final settlement agreement of the specific claim. A proposed settlement agreement between the parties was reached in 2018 which was later accepted by a majority of the Band members in 2020. Pursuant to that agreement, Canada agreed to pay a monetary award to Enoch collectively, in exchange for releases regarding any future liability with respect to those reserve lands. The Applicants were members of the Enoch Cree Nation who held a Certificate of Possession (“CP”) for a portion of the lands that were subject to the proposed settlement agreement. They wished to deal with the Minister directly regarding the legal obligations of the Crown to the CP holders such as themselves. The Crown’s position was that its negotiations with Enoch were confidential and subject to settlement privilege. The Applicants eventually commenced an action in Fed. Court against the Crown seeking damages, alleging ongoing trespass caused by alleged munitions scraps on the lands held under the CP. The Applicants filed a motion in seeking an interlocutory injunction to prevent the Minister from signing the settlement agreement. The Chambers Judge held the Fed. Court was without jurisdiction to grant an injunction in an action against the Crown. After the Minister signed the settlement agreement, the Fed. C.A. granted the Respondents’ motion to dismiss the appeal as moot. “The application for leave to appeal…is dismissed with costs.”

Civil Procedure/Banks: Standing; Whistleblowers

Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 (39612)
The Applicant, Ms. Carroll, was employed by the TD Bank. She was responsible for the compliance of a group of TD Bank’s subsidiaries with legal and regulatory obligations relating to the management of mutual funds. In that capacity, Ms. Carroll claimed to have exposed regulatory non‑compliance and breaches of mutual fund trusts by TD Bank’s subsidiaries. She made whistleblower complaints to TD Bank officials and to government regulators about the misconduct she allegedly uncovered. She also launched a civil proceeding against the Respondents (collectively, “TD”), by way of an application that was structured to uncover and remedy the wrongdoing she alleged. TD brought a motion to dismiss Ms. Carroll’s application. The motion judge granted TD’s motion on the basis Ms. Carroll did not have standing to bring the application. She found Ms. Carroll was not a unitholder in the trust and had no financial interest in the outcome of the litigation; she lacked a direct personal interest in the litigation. The Ont. C.A. dismissed Ms. Carroll’s appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Alcohol Sales

Bourdeau v. Société des alcools du Québec, 2020 QCCA 1553 (39572)
The Applicant, Guillaume Bourdeau, filed an application for authorization to institute a class action against the Respondent, the Société des alcools du Québec (SAQ), a joint stock company created by statute of the province of Québec whose primary mission is to trade in alcoholic beverages. Mr. Bourdeau had been purchasing alcoholic products from the SAQ and from the Liquor Control Board of Ontario since 2009. He alleged he had observed what he considered to be a significant difference in prices. He alleged in particular in his application for authorization the SAQ was purchasing bulk wine from producers outside Québec that it was, because of the wine’s poor quality, modifying in a laboratory through the use of additives. According to Mr. Bourdeau, sale prices in SAQ outlets were as a result inflated in relation to the cost of acquisition, and the labels affixed to wine bottles suggested the product came from the producer, which was not the case. Mr. Bourdeau raised two legal bases for his action. The first was the sale prices for the products in question were lesionary under s. 8 of the Consumer Protection Act, and art. 1437 of the Civil Code of Québec. The second was the SAQ’s failure to provide more complete information on the labels of the products in question was an unlawful practice under ss. 219 and 228 of the CPA. The Superior Court dismissed the application for authorization to institute a class action, and the Qué. C.A. dismissed the 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.”

Class Actions: Limitation Periods

Belmamoun, et al. v. Ville de Brossard, 2020 QCCA 1718 (39588)
The Applicants, Mohamed Belmamoun and Gaétan L’Heureux, lived on Chemin des Prairies in Ville de Brossard. On August 12, 2013, they filed an application for authorization to institute a class action against Ville de Brossard and Ville de Longueuil in which they alleged, in particular, serious neighbourhood disturbances had resulted from the significant expansion of a commercial district in the territory of those municipalities that had had the effect of transforming automobile traffic patterns near the Applicants’ homes. After being dismissed by the authorization judge (Belmamoun v. Brossard (Ville de), 2015 QCCS 2913), the application for authorization to institute a class action was ultimately granted by the Qué. C.A. in January 2017 (Belmamoun v. Ville de Brossard, 2017 QCCA 102), but only against Ville de Brossard (the town). In November 2018, the town gave written notice it intended to raise against the class action a defence of prescription based on s. 586 of the Cities and Towns Act and, in the alternative, on art. 2925 of the Civil Code of Québec. After a case management conference in January 2019, the trial judge decided to split the proceeding in order to deal first, and separately, with the issue of prescription of the class action before dealing with the rest of the case. The Superior Court held the town’s prescription defence was made out in part. The Qué. C.A. allowed the town’s appeal and dismissed the Applicants’ incidental 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.”

Criminal Law: Confidential Informer Privilege

Alexiou v. R., 2020 ONCA 479 (39603)
A confidential informer’s tip led to a police investigation resulting in multiple arrests and the seizure of drugs worth millions of dollars. 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. The application for a stay was dismissed. The Applicant was convicted for trafficking in cocaine and possession of cocaine for the purpose of trafficking. The Ont. C.A. dismissed the conviction 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.”

Criminal Law: Fraud; Money Laundering

Earle v. R., 2021 ONCA 34 (39622)
Mr. Earle misled clients to believe his company possessed precious metals and purchases of precious metals were being made by the company in accordance with their orders. His company went bankrupt. Mr. Earle was charged with fraud over $5K and money laundering. He was convicted on both counts. He was sentenced to three years imprisonment. The sentencing judge ordered a fine in lieu of forfeiture. The Ont. C.A. dismissed an 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.”

Criminal Law: Grow Ops

Le v. R., 2021 BCCA 52 (39605)
The RCMP commenced an investigation into a suspected marihuana grow op on a seven‑acre farm property. Investigations disclosed four individuals (including the Applicant Mr. Le) held licences to produce marihuana at the property for their personal medical use under the Marihuana Medical Access Regulations. On executing a search warrant, the police found the barn was being used for a grow op much larger than Mr. Lee could toke by himself. Mr. Le was convicted on counts of producing and trafficking marihuana. The conviction appeal was dismissed by the B.C.C.A. “The application for leave to appeal…is dismissed.”

Criminal Law: Homicide

C. v. R., 2020 ONCA 221 (39617)
There is a publication ban in this case, in the context of a C.A. substituting a verdict of second degree murder for first. “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. Justice Jamal took no part in the judgment.”

Criminal Law: Sexual Offences

R. v. O., 2021 ONCA 48 (39623)
There is a publication ban in this case, as well as a sealing order. Certain information is not available to the public, in the context of a scheme to provide sexual services. “The application for leave to appeal…is dismissed.”

Defamation: SLAPP Litigation

Société Radio-Canada, et al. v. Subway Franchise Systems of Canada Inc., et al., 2021 ONCA 26 (39607)
In its Marketplace television program, online media report and Twitter posts to the public, the Applicants (“CBC”) reported only approximately 50% of the DNA in Subway chicken was chicken DNA. The investigative report compared the contents of chicken sandwiches sold by five fast food chains in Canada. The percentage of chicken reported to be in the Subway sandwiches was substantially below those sold by the other chains. The report was based on test samples conducted by Trent University’s Natural Resources DNA Profiling & Forensic Centre (“Trent”). The Respondents (“Subway”) brought an action for defamation against CBC and Trent, and also brought an action in negligence against Trent. CBC and Trent brought motions to dismiss under s. 137.1 of the CJA, on the basis the lawsuits were strategically aimed at discouraging freedom of expression on a matter of public interest (SLAPP). CBC sought to dismiss Subway’s defamation action against it, whereas Trent only sought to dismiss the Respondents’ claim in negligence. A motion judge of the Ontario Superior Court of Justice granted the CBC’s motion and dismissed the defamation action against CBC, but dismissed Trent’s motion and allowed the negligence action against Trent to proceed. On appeal, the Ont. C.A. allowed Subway’s appeal against CBC, set aside the lower court decision, and allowed the defamation action against CBC to continue. In a separate appeal, the appellate court allowed Trent’s appeal and dismissed Subway’s action in negligence against Trent. “The application for leave to appeal…is dismissed with costs.”

Defamation: SLAPP Litigation

Subway Franchise Systems of Canada, Inc., et al. v. Trent University, et al., 2021 ONCA 25 (39611)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates/Contracts: Deceased Prior to Execution

Wenkoff v. Wenkoff Estate, 2021 SKCA 5 (39595)
A farmer died intestate with five daughters and one son. The son took the position his father had entered into an oral agreement to sell the farm to him but died before a written agreement was executed. The son commenced an action seeking a declaration the agreement was enforceable and obliging the estate to perform the terms of the agreement. The son applied for summary judgment. The applications judge dismissed the action. The Sask. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”