Civil Procedure: Disclosure; Public Interest Immunity

Fédération des médecins spécialistes du Québec, et al. v. Attorney General of Québec, 2020 QCCA 1770 (39581)
In January 2019, the Applicant the Fédération des médecins spécialistes du Québec (FMSQ) applied to the Superior Court for a declaration s. 22.6 of the Health Insurance Act was invalid. According to the FMSQ, the interpretation proposed by the intervener the Régie de l’assurance maladie du Québec (RAMQ) would have the effect of infringing the rights of members protected by s. 4 (protection of reputation) and s. 5 (protection of private life) of the Charter of human rights and freedoms. The FMSQ argued that provision authorizes the RAMQ to make public some of its decisions that are private because of the rules protecting personal information. In July 2019, the Applicant and the Association québécoise des pharmaciens propriétaires, the Association des chirurgiens‑dentistes du Québec, the Association des optométristes du Québec and the Fédération des médecins omnipraticiens du Québec, which intervened at trial and are now Applicants, sent the Respondent, the Attorney General of Québec (AGQ), and the intervener, the RAMQ, a joint request for documents to prepare for the pre‑trial examinations. In August 2019, the AGQ refused to provide certain documents, relying on public interest immunity. In response to the requests, the AGQ filed affidavits in accordance with art. 283 of the Code of Civil Procedure to set out the public interest reasons to be considered by the Superior Court. The Superior Court upheld the AGQ’s objections in part and ordered the AGQ to disclose certain excerpts from a memorandum to Cabinet by the responsible minister and from the summary of that memorandum. The C.A. allowed the appeal. “The application for leave to appeal…is dismissed without costs.”

Corporate Law: Breach of Confidence; Disgorgement of Profits

Chang, et al. v. GEA Refrigeration Canada Inc., 2020 BCCA 361 (39619)
There is a sealing order in this case, in the context of former employees allegedly forming a competing company. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Dangerous Offender Applications

Windebank v. R., 2021 ONCA 157 (39641)
The Applicant was charged with one count of assault causing bodily harm under s. 267 (b) of the Criminal Code and one count of assault by choking under s. 267 (c). The maximum sentence upon conviction for those offences, if the Crown proceeded by indictment, was ten years. Pursuant to s. 535 of the Code, an accused’s entitlement to a preliminary hearing was limited to those offences carrying a maximum sentence of fourteen years or more. The Crown put Mr. Windebank on notice prior to trial that if convicted, the Crown intended to bring an application for an assessment under s. 752.1 of the Code, the first step in the process of an application to have an offender designated as a Dangerous Offender (“DO”). If the Crown was successful on such an application, the sentence for Mr. Windebank could exceed fourteen years. Mr. Windebank gave formal notice he elected to have a preliminary inquiry on the date fixed for trial on the basis he was at risk of being subject to an indeterminate sentence, well in excess of fourteen years, if he was convicted and the Crown was successful in having him designated a DO. The Crown submitted the trial, and not a preliminary inquiry, should proceed on the date scheduled. The application judge held Mr. Windebank was entitled to the preliminary inquiry in the circumstances of the case. The Crown’s application for judicial review of that decision was dismissed. The Crown’s appeal was granted. Mr. Windebank was not entitled to a preliminary inquiry. “The application for leave to appeal…is dismissed.”

Criminal Law: Importing Cocaine

Anderson v. R., 2020 ONCA 780 (39620)
The Applicants were two of four people convicted by a jury of importing a shipment of cocaine concealed in confections from Jamaica. They argued the verdicts were unreasonable because the offence was complete before their involvement with the package and because there was no evidence they knew the package contained cocaine. They also argued willful blindness should not have been left with the jury because the evidence did not meet the air of reality test. The conviction appeals were dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to join two Court of Appeal for Ontario files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Assault; Sexual Interference

J v. R., 2021 BCCA 94 (39648)
There is a publication ban in this case, as well as a Sealing order in the context of convictions for sexual assault & sexual interference. “The application for leave to appeal…is dismissed.”

Judges: Discipline

B. v. Conseil de la magistrature du Québec, 2021 QCCA 55 (39606)

There is a publication ban in this case, in the context of judicial discipline for comments made in court re a sexual assault victim. “The application for leave to appeal…is dismissed with costs.”

Torts: Occupiers’ Liability

Onley v. Whitby (Town), 2020 ONCA 774 (39538)
Zoe Onley was electrocuted and injured near a light pole on property owned by the Town of Whitby. The light pole was damaged by an earlier lightning strike, which caused electricity to leak into the ground where Ms. Onley sat. Ms. Onley and her parents commenced an action in damages against the Town, arguing it failed to take reasonable steps to inspect and maintain its light poles, and the Town breached its duty of care under Ontario’s Occupiers’ Liability Act (“OLA”). The trial judge dismissed the family’s action, on the basis the type of damage sustained was not reasonably foreseeable, and the Town had met its the standard of care pursuant to the OLA. The C.A. dismissed the appeal, holding the trial judge had correctly set out and applied the standard of care analysis. “The application for leave to appeal…with the decision rendered from the bench on November 23, 2020, is dismissed with costs.”