Granted

Criminal Law: Voyeurism

M. v. R., 2020 CACM 8 (39543)
There is a publication ban in this case, as well as a sealing order, in the context of alleged voyeurism by a military force’s member against another member. “The application for leave to appeal…is granted.”

Transportation Law: Disclosure re Accidents

Transportation Safety Board of Canada v. Carroll-Byrne, et al., 2021 NSCA 34 (39661)
Following the crash of an Air Canada flight from Toronto when it landed short of the runway of the Halifax International Airport during a snowstorm, some of the passengers commenced a class action asserting negligence on the part of various defendants, including Air Canada, the pilot and co‑pilot. The Applicant (Board) investigated the crash, taking into consideration the on-board cockpit voice recorder (CVR), and the Board’s report on its findings was produced to the parties. The Respondent Airbus S.A.S. moved for an Order requiring the Board to produce the audio data from the CVR and any transcripts. The plaintiffs and some other Respondents also sought production of the materials. The CVR and transcripts are in possession of the Board, who claimed a statutory privilege over the materials. It intervened to argue the court should not exercise its discretion to order production in the face of its privilege. A judge of the Supreme Court of Nova Scotia rendered an oral decision denying a motion by the Board to make further ex parte representations after his in camera review of the CVR. He went on to order production of the CVR and transcripts, subject to restrictions. The N.S. C.A. granted leave to appeal and dismissed the appeal. “The application for leave to appeal…is granted. The decision on costs is referred to the panel hearing the appeal. The motion to expedite the hearing of the appeal is granted. The Acting Registrar shall set the filing deadlines.”

Dismissed

Civil Litigation: Motions to Strike

Kindylides v. Does., 2020 BCCA 330 (39728)
The Applicant filed a Notice of Civil Claim in which she alleged amongst other things that unknown members of the RCMP, other persons and entities had collaborated with one another over the past 40 years to infect her with drugs on an almost daily basis, by placing substances in her food and drink in various locations and settings. The Respondents brought a motion to strike her Notice of Civil Claim. The motion judge granted the motion and this decision was upheld on appeal. “The motion to waive the requirement to file documents in electronic format is granted. The motion for stay of execution is dismissed. The application for leave to appeal…is dismissed with costs.”

Civil Litigation in Québec: Hypothecs; Forced Surrender and Sale

Douglas Consultants Inc. v. Unigertec Inc. et Ville de Beaupré, 2021 QCCA 384 (39679)
On May 12, 2015, the Respondent Ville de Beaupré awarded a contract to the Respondent Unigertec inc. for the construction of a multi‑sport centre. Unigertec, acting as the general contractor for the project, subcontracted with 8264473 Canada inc., operating as CLT Outaouais (CLTO). CLTO in turn dealt with the Applicant, Douglas Consultants Inc., a consulting engineering company, in order to discharge its responsibilities in the project. On October 25, 2016, CLTO registered a notice of legal hypothec on the centre for an amount of $322,070.26. On the same day, Douglas Consultants also registered a notice of legal hypothec on the centre for an amount of $145,748.15. On March 14, 2017, CLTO made an assignment in bankruptcy under the Bankruptcy and Insolvency Act. On April 6, 2017, Douglas Consultants registered a prior notice of its intention to exercise a hypothecary right on the centre, and on August 10, 2017, it filed an originating application in the Superior Court for forced surrender and sale under judicial authority (file No. 200‑17‑0026403‑170). On February 22, 2018, Unigertec and Ville de Beaupré filed an originating application for cancellation in the Superior Court in which it sought cancellation of the registration of the two notices of legal hypothec that had been published on October 25, 2016 and of the prior notice of an intention to exercise a hypothecary right that had been published on April 6 (file No. 200‑17‑0027356‑187). On November 15, 2018, Unigertec filed, in each of the cases, an application for dismissal, for a declaration the originating application was abusive and for the payment of extrajudicial fees in order to have the proceeding for forced surrender and sale under judicial authority filed by Douglas Consultants dismissed. Unigertec also asked the court to declare the conduct of Douglas Consultants was abusive and to order that company to reimburse to it all of its extrajudicial fees in both cases. The two cases were consolidated on March 22, 2018. The Superior Court ordered the cancellation of the two notices of legal hypothec and of the prior notice of an intention to exercise a hypothecary right. It dismissed the originating application for forced surrender and sale under judicial authority and the applications for dismissal, for a declaration the originating applications were abusive and for the payment of extrajudicial fees. The C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Constitutional Law/Labour Law in Québec: Right to Strike

Attorney General of Québec v. Les Avocats et notaires de l’État québécois, 2021 QCCA 559 (39695)
Les avocats et notaires de l’État québécois (“LANEQ”), an association certified with Québec’s Conseil du trésor in 1996, represents about 1,150 legal professionals in six bargaining units in the Québec public service. This does not include criminal and penal prosecuting attorneys, who are represented by their own association. In 2014, the parties began bargaining with a view to renewing the collective agreement that was to expire in 2015. In October 2016, after nearly two years of discussions, LANEQ called a general strike that lasted four months. In January 2017, the National Assembly responded by enacting the Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services, which, among other things, ordered the members of LANEQ to return to work and prohibited the exercise of the right to strike. At the time the 2017 Act was passed, the Respondent Pierre Moreau was the chair of the Conseil du trésor and acted as the minister responsible for the administration of the Public Service Act which gave him responsibility for signing collective agreements. The 2017 Act also provided for penalties for non‑compliance with obligations. Following the enactment of the 2017 Act, the parties continued bargaining for several months, but to no avail, with the consequence the terms of the 2010‑2015 collective agreement were extended until 2020. After the 2017 Act came into force, LANEQ challenged its constitutionality in the Superior Court, alleging a violation of the right to freedom of association protected by s. 2 (d) of the Charter and s. 3 of the Québec Charter. The Superior Court allowed the application for judicial review and declared the 2017 Act unconstitutional and invalid with retroactive effect. The Qué. C.A. dismissed the principal appeal and the incidental appeal. “The application for leave to appeal, filed by the Attorney General of Quebec and Pierre Moreau, in his capacity as chair of the Conseil du Trésor, from the judgment of the Court of Appeal of Quebec (Montréal)…is dismissed with costs to the respondent, Les Avocats et notaires de l’État québécois. The application for leave to appeal, filed by Les avocats et notaires de l’État québécois, from the judgment of the Court of Appeal of Quebec (Montréal)…is dismissed with costs to the respondents, Attorney General of Quebec and Pierre Moreau, in his capacity as chair of the Conseil du Trésor.”

Criminal Law: Assault; Harassing Communications

Manrique v. R., 2020 QCCA 1170 (39694)
The accused, Seul Manrique, was arrested and charged with assault on his spouse. After being released, with conditions, on giving a promise to appear at a later date, the accused communicated with the victim by sending her approximately one hundred messages in less than 48 hours. He was then arrested again and charged with violation of a condition, harassing communications and criminal harassment.  The Municipal Court of Montréal found the messages had not caused the victim to fear for her safety. It acquitted the accused on the count of criminal harassment (264(1), (3)(b), but found him guilty on the counts of assault (266(b)), harassing communications (372(3) and violation of a condition (145(5.1)(b)). The Québec Superior Court dismissed Mr. Manrique’s appeal from the conviction; it agreed with the Municipal Court’s analysis on the intent required for the offence of harassing communications under s. 372(3). The C.A. unanimously dismissed a subsequent appeal by Mr. Manrique and affirmed the conviction; the court concluded the use of the word “harass” in the wording of the offence of harassing communications (372(3)) did not suffice to assimilate to it the elements of mens rea required by the offence of criminal harassment (264). “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: Harassment

Sidhu v. R., 2021 ABCA 56 (39720)
Mr. Sidhu met the complainant, they went out for drinks, and Mr. Sidhu dropped her off at her home. Mr. Sidhu refused to accept she wanted nothing to do with him. After that brief encounter, and for the seven years following, there were periods of repeated communication, stalking, harassment, and threatening conduct. The trial judge concluded Mr. Sidhu engaged in conduct which constituted criminal harassment pursuant to s. 264(2) (b). The trial judge concluded the Crown proved beyond a reasonable doubt the complainant was harassed, and Mr. Sidhu knew he was harassing her. The trial judge concluded that as a result of the harassment by Mr. Sidhu, the complainant feared for her safety. The trial judge found the complainant’s fear was reasonable and Mr. Sidhu was convicted of criminal harassment pursuant to s. 264(2) (b). Appeal dismissed. “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.”

Immigration: Removal

Chin v. Canada, 2021 FCA 16 (39698)
Ms. Chin applied to stay a removal order issued against her, which would force her to return to Jamaica. She alleged that going back to Jamaica would put the lives of her children, who would remain in Canada, at risk, as well as her own. The Fed. Court dismissed Ms. Chin’s request to stay the removal order. Ms. Chin then appealed the decision to the Fed. C.A., alleging the presence of bias on the part of the Fed. Court. The Fed. C.A. dismissed the appeal for lack of jurisdiction. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Pay Equity

Attorney General of Ontario v. Ontario Nurses’ Association, et al., 2021 ONCA 149 (39650)
Two unions which represented employees of nursing homes in Ontario complained to the Pay Equity Hearings Tribunal that the nursing homes are not using the proxy method set out in the Pay Equity Act to maintain pay equity achieved in 2005. The tribunal dismissed the applications. The Ontario Superior Court, Divisional Court granted applications for judicial review brought by the unions and dismissed an application brought by the nursing homes. A majority of the Ont. C.A. dismissed appeals from the decision granting the unions’ applications for judicial review. The Ont. C.A. unanimously dismissed an appeal by the nursing homes from the decision dismissing their application for judicial review. “The applications for leave to appeal…are dismissed with costs to the Service Employees International Union, Local 1.”

Tax: Deemed Trusts

Toronto-Dominion Bank v. Canada, 2020 CAF 80 (39238)
A debtor running a landscaping business as a sole proprietorship collected but did not remit GST in the amount of $67,854 for the years 2007 and 2008. The Applicant subsequently extended loans to the debtor and his spouse secured by a home equity line of credit and a residential mortgage. When the debtor sold his house, he repaid the amounts outstanding under his loans and the Applicant discharged its security interests. The Respondent subsequently claimed the $67,854 from the Applicant on the basis of a deemed trust pursuant to s. 222 of the Act. When the Applicant refused to pay, the Respondent commenced an action to recover that amount, plus interest. The Fed. Court allowed the Respondent’s action, holding a deemed trust affected the proceeds held by the Applicant and its statutory obligation to pay the amount to the Respondent pursuant to s. 222 of the Act excluded the defence of bona fide purchaser for value. The Fed. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs.”

Tax: Music Recordings

Unidisc Music Inc. v. Agence du revenu du Québec, 2021 QCCA 393 (39657)
Unidisc Music Inc. was a company operating in the music industry. Between 2010 and 2013, Unidisc acquired multiple master recordings and their rights. The master recordings allowed the best possible reproduction of a song to later put on a CD or sell it in an electronic format; the company owned thousands of these masters. For its tax declaration of 2010 until 2013, Unidisc treated them as tangible property falling under class 8 (j) of Schedule B of the Regulation respecting the Taxation Act with a depreciation rate of 20%. In 2014, the Agence du revenu du Québec (“ARQ”) refused to give the master recordings a depreciation rate of 20%, representing a value of $3 890 737, and instead granted a depreciation rate of 7%, representing $1,297 330, under s. 130 (b) of the Taxation Act. The ARQ considered the master recordings as intangible property. The company received four tax assessments for the years 2010, 2011, 2012 and 2013. In 2015, it challenged the said tax assessments, but the ARQ decided to maintain its assessments. Unidisc appealed the decision before of the Qué. Court. The Qué. Court allowed the appeal from tax assessments issued by ARQ for the years 2010, 2011, 2012 and 2013 and deferred the tax assessment to the minister for a new evaluation and assessment. The Qué. C.A. allowed the appeal and reinstated the original tax assessments. “The application for leave to appeal…is dismissed with costs.”