Criminal Law: Refusal to Blow

R. v. Breault, 2021 QCCA 505 (39680)
The Respondent, Mr. Breault, refused a number of times to provide a breath sample to a peace officer who demanded he do so at a time when an approved screening device was not in the officer’s possession. The Municipal Court found Mr. Breault guilty of failing to comply with a demand made to him by a peace officer, thereby committing the offence provided for in ss. 254(5) and 255(1) of the Criminal Code. In its view, the validity of the demand did not depend on a device being at the scene at the time when the demand was made. The Qué. C.A. instead held, because of the requirement a breath sample be provided “forthwith”, a delay greater than is necessary to properly operate the device or obtain a reliable test in light of the facts noted by the police officer cannot be justified. The demand was therefore invalid, and the refusal that followed did not constitute a criminal offence. “The application for leave to appeal…is granted.”


Civil Litigation: Limitation Periods

Silos Roy-Larouche Inc. v. Ferme Coulée Douce Inc., 2021 QCCA 704 (39708)
The Applicant, Silos Roy‑Larouche Inc. (SRL), made and installed silos. In 2007, SRL made and installed a silo on the property of the Respondent, Ferme Coulée Douce Inc. (Ferme). In each spring from 2008 to 2011, Ferme noticed the silo was sinking into the ground and informed SRL of this. Each year, SRL sent a representative to take measurements and reassure Ferme it is normal for a silo to shift. In 2012, SRL did work on the floor of the silo shed adjoining the silo and assured Ferme the silo had stabilized. Ferme noticed in the spring of 2013 the silo had sunk again and it was leaning. It sent two formal notices to SRL in 2014 that went unanswered. Ferme hired experts, who informed it the silo would have to be put on a pile foundation to stabilize it, and in December 2014, Ferme brought an action against SRL to recover the cost of the work and other expenditures. SRL argued the action was prescribed (ie time-barred) because it had not been brought within three years from the day the problems with the silo had appeared for the first time as required by arts. 2925 and 2926 of the Civil Code of Québec.  The Superior Court held the action was not prescribed, as prescription had been suspended from 2008 to 2011 and again in 2012. It ordered SRL to pay Ferme $144,840.55 plus interest and costs, in addition to expert fees. The Qué. C.A. dismissed SRL’s appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Homicide; Provocation

Osman v. R., 2021 ABCA 114 (39688)
Mr. Osman got into an altercation at a bar. Mr. Mohamed made racial slurs about Mr. Osman and finger motions as if he were pointing a gun at Mr. Osman. A scuffle ensued. A gun remained at all times in Mr. Osman’s hand. The gun went off and Mr. Mohamed was shot in the upper chest. Mr. Mohamed died. After a trial by judge alone, where the issue of provocation was raised, Mr. Osman was convicted of second degree murder, and various other firearms related offences. The Alta. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Environmental Law: Contamination; Standard of Review

Just Invest inc. v. Attorney General of Québec, 2021 QCCA 580 (39769)
The Applicant acquired a building where there had been a spill of oily water contaminated with polychlorinated biphenyls a few years earlier. The Minister of Sustainable Development, the Environment and the Fight against Climate Change served order No. 652 on the Applicant. The order required the Applicant to perform a characterization study and produce a rehabilitation plan that included excavating the soil and shipping it to authorized sites. The Applicant contested the order before the Administrative Tribunal of Québec (“ATQ”), partly on the basis the order could not be set up against it because it qualified for two of the exemptions provided for in s. 31.43 of the Environment Quality Act. The ATQ dismissed the proceeding on the ground the Applicant could not avail itself of the exemptions. The Applicant then applied for judicial review. The Qué. Superior Court, applying the reasonableness standard, dismissed the application. The Applicant appealed that judgment, but the Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Justices of the Peace: Discipline

Massiah v. Justices of the Peace Review Council, et al., 2021 ONCA (39753)
The Applicant was involved in protracted litigation over two complaints of judicial misconduct in 2011 and 2012. Some of the allegations of sexually inappropriate comments were held to have been proven in the 2011 complaint, and the Applicant received a ten day suspension, was required to apologize and undergo gender sensitivity training, and received $130K in compensation for his legal fees. The second complaint involved various incidents of allegedly inappropriate interactions with female staff during roughly the same period at a different courthouse. The second complaint was successful, leading to the Applicant’s removal from the office of the justice of the peace and the denial of compensation for his legal fees. The Divisional Court dismissed an application of judicial review of the decision of the Hearing Panel of the JPRC, except for the issue of the Panel’s decision not to recommend compensation of the legal fees. A newly constituted panel dismissed the Applicant’s request for a recommendation of compensation. The Divisional Court dismissed the application for judicial review of that decision, and the Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondent, Justices of the Peace Review Council. Jamal J. took no part in the judgment.”

Property Law: Divided Co-ownership

Syndicat des copropriétaires Cond’Eautels du Manoir v. Hôtels & Suites Le Lincoln inc., 2021 QCCA 802 (39782)
On July 14, 2005, a declaration of co‑ownership was published in the land register, establishing divided co‑ownership of a vacation resort in Saint‑Donat consisting of a hotel and eight buildings, each of which had four dwelling units. At the time, 9088‑9288 Québec inc. (“9088”) and 9137‑9271 Québec inc. (“9137”) were the only owners of the site and owned eight fractions and two fractions, respectively. 9088 later sold four fractions to 9137, and they therefore owned four fractions and six fractions, respectively, on April 11, 2007. In 2012, 9088 sold two more of its fractions to a third company: lot 74, where the hotel was situated, and lot 75. That company declared bankruptcy in 2015. On October 21, 2016, the Respondent, Hôtel & Suites Le Lincoln inc. (“Lincoln”), purchased those lots from the receiver in bankruptcy. Lincoln, which is 9088’s successor, had the hotel demolished in 2018 for the purpose of building a new one. The declaration of co‑ownership specified 7,176 votes were attached to the lots in question. On August 20, 2017, during a general meeting of the co‑owners, the Applicant, the Syndicat des copropriétaires Cond’Eautels du Manoir (“syndicate”), informed Lincoln its votes had been reduced from 7,176 to 2,500 in accordance with arts. 1092, 1093 and 1099 of the Civil Code of Québec (“C.C.Q.”), which provide, among other things, the votes of a developer (a term that is also defined) are to be reduced as of the second year after the publication of the declaration of co‑ownership. The Superior Court allowed Lincoln’s originating application for a declaratory judgment and declared the relative value of its fractions was 71.76% and the number of votes attached to them was 7,176. The court found the reduction in votes required by art. 1092 C.C.Q. had ceased to apply when 9088 had stopped owning the majority of the fractions. At the hearing before the Qué. C.A., the syndicate disputed the fact Lincoln intended to occupy its fractions. Lincoln’s lawyer stated that plans for the construction of a new hotel had been filed with the municipality. The Qué. C.A. dismissed the syndicate’s appeal. It found the judge had misinterpreted arts. 1092 and 1093 C.C.Q. but his errors had not affected his conclusion the application should be allowed. In the Qué. C.A.’s view, the exception provided for in art. 1093 C.C.Q. applied in this case. Lincoln was not a developer because it had acquired its fractions in good faith for a price equal to their market value with the intention of occupying them in accordance with the declaration of co‑ownership. “The application for leave to appeal…is dismissed.”


Criminal Law: Alleged Ineffective Assistance

Geurts v. R., 2021 ONCJ 174 (39712)
An accused was convicted for aggravated assault. A sentencing judge declared a mistrial on the basis the accused’s counsel at trial was ineffective because he did not call an expert when advancing an automatism defence. Counsel sought leave to appeal from the sentencing judge’s finding he rendered ineffective assistance to the accused in the course of the trial. “The motion to substitute a party is dismissed. The application for leave to appeal…is quashed.”