Dismissed
Civil Litigation: Issue Estoppel; Abuse of Process
Klassen v. Her Majesty the Queen in Right of the Province of British Columbia (Minister of Public Safety and Solicitor General), 2021 BCCA 294 (39839)
The Applicants, Mark and Olive Klassen, were acquitted of assaulting a police officer — the Respondent Constable Lane Tobin — in criminal proceedings. The Applicants then sued the Respondents, the police officer and the province of British Columbia, seeking damages for torts occurring during their unlawful arrest. In their response to the civil claim, the Respondents asserted various facts that were rejected by the criminal proceedings trial judge, including Constable Tobin was justified in arresting the Applicants. The Applicants applied to have certain paragraphs of the response struck from the record, on the basis of the doctrine of issue estoppel and abuse of process. They submitted the lawfulness of the arrest had already been determined and ought not to be re‑litigated. The chambers judge dismissed the Applicants’ application to strike. The B.C.C.A. unanimously dismissed the Applicants’ appeal from that decision. “The application for leave to appeal…is dismissed with costs.”
Civil Litigation: Motions to Strike
Harris v. Canada, 2020 CAF 124 (39742)
The Applicant, Mr. Harris, filed an amended statement of claim in Fed. Court challenging the constitutionality of certain provisions in the Cannabis Regulations relating to medical cannabis. He argued those provisions violated the rights, under ss. 7 and 15 of the Charter, of individuals with large prescriptions for medical cannabis. He also sought a personal exemption from the provisions, pending a final decision on their constitutionality. The Respondent Crown moved to strike the Applicant’s claim without leave to amend, and opposed his motion for interlocutory relief. The Fed. Court dismissed the Crown’s motion, allowed the Applicant’s claim to proceed, and granted him the interim relief requested. The Fed. C.A. allowed the Crown’s appeal, set aside the decision of the Fed. Court and struck the Applicant’s claim without leave to amend, as it was of the view the facts pleaded in the claim were insufficient to establish a reasonable cause of action. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed with costs.”
Class Actions: Medical Professionals
Attorney General of Québec v. Raunet, et al., 2021 QCCA 654 (39740)
On June 2, 2016, the Respondents, Daniel Raunet and Colombe Gagnon, filed a motion with the Superior Court for authorization to institute a class action against: the Attorney General of Québec (AGQ), an Applicant and intervener in these applications; the Fédération des médecins spécialistes du Québec, the Fédération des médecins omnipraticiens du Québec and the Association des optométristes du Québec, Applicants and interveners in these applications; and the Régie de l’assurance maladie du Québec (RAMQ), an intervener here. The Respondents, whose class action is at the authorization stage, would like to represent a class consisting of [translation] “all persons who paid money for fees related to an insured service provided by a physician or optometrist, remunerated by the [RAMQ], since June 2, 2013, or who postponed or ended treatment that was planned after being informed of the fees they would be charged”. In response to the filing of the motion for authorization to institute a class action, the AGQ, the RAMQ and the three associations of health professionals concerned filed motions for declinatory exception based on ss. 14 and 22.0.1 of the Health Insurance Act arguing the class action was within the jurisdiction of the RAMQ and the Administrative Tribunal of Québec under s. 14 of the Act respecting administrative justice. The Superior Court declined jurisdiction only in relation to the RAMQ for the claim for damages equivalent to the unlawfully charged fees. It dismissed the RAMQ’s application for declinatory exception with regard to the other conclusions sought. It also dismissed the applications for declinatory exception of the other Applicants and interveners here, and the Qué. C.A. dismissed their appeals. “The application for leave to appeal, filed by the Attorney General of Quebec…is dismissed with costs to Daniel Raunet and Colombe Gagnon. The application for leave to appeal, filed by the Fédération des médecins spécialistes du Québec, la Fédération des médecins omnipraticiens du Québec and l’Association des optométristes du Québec…is dismissed with costs to Daniel Raunet and Colombe Gagnon.”
Class Actions: Medical Professionals
Attorney General of Québec v. Léveillé, 2021 QCCA 653 (39762)
Similar summary to that immediately above. “The application for leave to appeal, filed by the Attorney General of Quebec…is dismissed with costs. The motion for an extension of time to serve the application for leave to appeal, filed by Groupe Vision New Look inc., is granted. The application for leave to appeal, filed by Groupe Vision New Look inc…is dismissed with costs.
Class Actions: MV Insurance
Dorman, et al. v. Economical Mutual Insurance Company, 2021 ONCA 314 (39802)
The Applicant claimants filed proposed class actions against 15 auto insurers and the Financial Services Commission of Ontario (FSCO), the government entity that regulates the insurers, along with its current and former Superintendents. They alleged the insurers had improperly reduced their statutory accident benefits (SABs) by deducting Harmonized Sales Tax (HST), and the FSCO wrongfully failed to investigate the practices of the insurers after receiving complaints, and also failed to enforce its own guidelines on HST and SABs. Two of the Respondent insurers, Belair and Intact, entered into tentative settlements with the Applicants who claimed against them. The settlements were conditional on the proceedings being certified as class proceedings and on court approval of the settlements. The FSCO, and most of the Respondent insurers, brought parallel motions under rr. 21.01(1)(a) and 21.01(3)(a) of the Rules of Civil Procedure, seeking to stay or dismiss the proposed class actions on the basis the Superior Court of Justice lacks jurisdiction. The Applicants, who had entered into tentative settlements with Belair and Intact, sought a determination the court has jurisdiction to certify the proceedings as class proceedings and to approve the settlements. The motion judge concluded the Licence Appeal Tribunal has exclusive jurisdiction over the Applicants’ dispute against the insurers. Accordingly, he granted the motions to dismiss the proposed class actions and declined to approve the settlements with Belair and Intact. The Applicants appealed from the dismissal of their claims and the refusal to approve the Belair and Intact settlements. The Applicants’ appeals were dismissed. “The motion for an extension of time to serve and file a response, filed by Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills, is granted. The application for leave to appeal…is dismissed with costs to the respondents, Economical Mutual Insurance Company, Allstate Insurance Company of Canada, Aviva Insurance Company of Canada, Unifund Assurance Company, Certas Home and Automobile Insurance Company, Commonwealth Mutual Insurance Group, Co-operators General Insurance Company, Echelon General Insurance Company, Wawanesa Mutual Insurance Company, St. Paul Fire and Marine Insurance Company, Travelers Insurance Company of Canada, TD Insurance, Gore Mutual Insurance Company, CUMIS General Insurance Company, Her Majesty the Queen in Right of Ontario, Philip Howell and Brian Mills. Rowe J. took no part in the judgment.”
Criminal Law: In-Court Inculpatory Statements
Tayongtong v. R., 2021 ONCA 281 (39776)
Mr. Tayongtong was charged with first degree murder. While in court awaiting case management proceedings, he interrupted proceedings in another case and uttered several inculpatory statements including admissions of guilt. An order was issued to assess his fitness to stand trial. Once Mr. Tayongtong was found fit, the trial proceeded, and Mr. Tayongtong pled not guilty. The trial judge ruled the Crown could enter the statements of guilt into evidence. A jury convicted Mr. Tayongtong of second degree murder. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed. Jamal J. took no part in the judgment.”
Contracts: Exculpatory Clauses
Ritchie, et al. v. Castlepoint Greybrook Sterling Inc., 2021 ONCA 214 (39696)
The Respondent, Castlepoint Greybrook Sterling Inc., was a land developer who pre‑sold units in a residential condominium building it planned to develop. Between 2015 and 2016, various purchasers, including the Applicants, entered into pre‑construction agreements of purchase and sale with the developer. The developer did not begin construction. Instead, in late 2017, it terminated the agreements and returned the purchasers’ deposits with interest. The Applicants sued the developer for damages for breach of contract. The developer brought a motion for summary judgment to dismiss the action, relying on an exculpatory clause in the agreement. The Superior Court concluded the exculpatory clause applied even where the developer breached the clauses incorporated into the agreement pursuant to regulation (the “Tarion Addendum clauses”). It further concluded there was no public policy reason that would override the exculpatory clause. As the developer had a complete defence to the claim for damages, the Superior Court dismissed the Applicants’ claim. The Ont. C.A. dismissed the Applicants’ appeal. It agreed the Tarion Addendum clauses, which imposed certain good faith obligations on the developer, did not alter the plain meaning of the exculpatory clause. It added the exculpatory clause was not inconsistent with the letter of the Tarion Addendum clauses, or with the policy underlying those provisions. “The application for leave to appeal…is dismissed with costs.”
Contracts: Ratification; Estoppel
ADAG Corporation Canada Ltd. v. SaskEnergy Incorporated, 2021 SKCA 74 (39766)
SaskEnergy Incorporated leased a building from the general partner of a limited partnership. It attempted to exercise one of five options to purchase the building included in the lease. In prior proceedings, the Sask. C.A. declared the option unenforceable unless SaskEnergy can prove ratification of the option by the limited partners or estoppel by election. It remitted the matter to the Court of Queen’s Bench. The Court of Queen’s Bench found ratification and estoppel by election. It held the option enforceable. The Sask. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”
Customs: Classification
Danby Products Limited v. President of the Canada Border Services Agency, 2021 FCA 82 (39755)
An importer disputed the Canada Border Services Agency’s classification of wine coolers under the Customs Tariff. The importer appealed to the Canadian International Trade Tribunal; Danby Products Limited intervened. The Canadian International Trade Tribunal affirmed the classifications of the goods as “refrigerators, household type and compression‑type” and “other refrigerators, household type”. The Fed. C.A. dismissed an appeal by Danby. “The application for leave to appeal…is dismissed with costs.”
Employment Law: Termination
Mikelsteins v. Morrison Hershfield Limited, 2021 ONCA 155 (38806)
The Respondent, Morrison Hershfield Limited (“MHL”), is an employee owned engineering firm that provided engineering and construction consulting services. Mr. Mikelsteins was employed by MHL for 31 years in a senior role with the firm. On October 26, 2017, he was notified in writing his employment was being terminated without cause, effective immediately. At the time, he owned shares in his employer’s parent company. His annual compensation package included a base salary, employment benefits, company contributions to his RRSP, and a pay for performance plan. He was also eligible to purchase shares in the company under the terms of a shareholders’ agreement, and had done so over the years. Because he owned shares, he also received an annual “share bonus.” That agreement purportedly made provision for an employee’s shares in the event of receipt of a notice of termination by the employee. Mr. Mikelsteins commenced an action for wrongful dismissal and a motion for summary judgment. At issue was the reasonable notice period he should have received, the damages he was entitled to his entitlement to any increase in the valuation of his shares during the notice period, any gross up on the value, the share bonus, and his final award in view of his continuing obligation to mitigate his damages. The motion judge awarded Mr. Mikelsteins damages for wrongful dismissal based on a notice period of 26 months. Summary judgment was granted for his base salary, bonus, RRSP contributions and benefits. With respect to Mr. Mikelsteins’ shares, the motion judge held Mr. Mikelsteins was entitled to hold the shares until the end of the reasonable notice period and receive damages for the loss of the share bonus that would have been payable during that 26-month period. Ont. C.A.: Respondent’s appeal allowed; Appellant not entitled to compensation for benefits under shareholders’ agreement during notice period. “The application for leave to appeal…is dismissed with costs. Karakatsanis J. took no part in the judgment.”
Family Law: Custody and Access
J.D. v. G.P., 2021 QCCA 916 (39813)
There is a publication ban in this case, in the context of custody and access. “The application for leave to appeal…is dismissed.”
Human Rights: Judicial Review
Ennis v. Canada (Attorney General), 2021 FCA 95 (39800)
The Fed. Court set aside a screening decision of the Canadian Human Rights Commission in which it concluded an inquiry by the Canadian Human Rights Tribunal into the discrimination complaint made by the Applicant, Mr. John Ennis, was not warranted. The Commission made this decision after receiving an assessor’s report that recommended the Commission reach the opposite conclusion. The Fed. Court substituted its own analysis for that of the Commission and granted the Applicant’s application for judicial review. It ordered any reconsideration ought to be performed by different members of the Commission. The Fed. C.A. allowed the Attorney General of Canada’s appeal, set aside the judgment of the Fed. Court, and dismissed Mr. Ennis’ application for judicial review. “The application for leave to appeal…is dismissed with costs.”
Immigration: Canadian Human Rights Commission
Aziz v. Canada (Human Rights Commission), 2021 FCA 14 (39717)
Mr. Aziz was arrested in Malta for allegedly providing false documents in order to obtain Maltese citizenship. Maltese authorities sought mutual assistance from Canadian authorities in verifying, inter alia, Mr. Aziz’s identity and place of birth. Mr. Aziz sent a request to the Canadian Human Rights Commission (“CHRC”) asking Canadian authorities not to respond to requests from the Maltese authorities on the ground the requests were illegal. Mr. Aziz was advised by email his request to file a complaint with the CHRC could not be accepted because he was not in Canada and had no right to lawfully return to Canada. Mr. Aziz applied for judicial review of that correspondence. He subsequently applied to convert the judicial review application into an action for several declarations. The Minister’s motion to strike his notice of application without leave to amend was granted and Mr. Aziz’s motion was dismissed. His notice of appeal was subsequently struck. “The motion for an extension of time to serve and file the respondent’s response, filed by the Minister of Citizenship and Immigration, is granted. The application for leave to appeal…is dismissed.”
Mortgages: Foreclosure
Poulin v. Bank of Montreal, 2021 QCCA 426 (39777)
In February 2017, the Respondent, Bank of Montreal, granted a mortgage to the Applicant, Mr. Poulin, for the purchase of a house. It provided the only authorized method of making payments was by debiting a bank account. The Applicant closed his bank account in September 2017 and made some partial payments in cash. He later deposited 24 post‑dated cheques as payment; only the first cheque was cashed by the Respondent. The Applicant defaulted as of January 2018. In August 2018, the Respondent filed an originating application on account for forced surrender and authorization of sale under judicial authority. The Court of Québec allowed the Respondent’s application for forced surrender, authorized the sale of the Applicant’s property under judicial authority and ordered the Applicant to repay the Respondent $71,418.54, with interest on $67,949.64. The Qué. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”
Professions: Annual Fees
Abilogoun v. Conseil d’administration de l’Ordre des Comptables professionnels agréés du Québec, 2020 QCCA 1780 (39722)
The executive committee of the Ordre des comptables professionnels agréés du Québec (“Order”) made a decision concerning the status of the Applicant, Ariel Virgile Chokki Abilogoun. The executive committee struck Mr. Abilogoun off the roll of the Order for failing to pay his annual assessment within the time specified and the late fees imposed on members who do not pay their annual assessment on time. Mr. Abilogoun applied to the Superior Court for judicial review of that decision, challenging the executive committee’s jurisdiction to make such an order. Moore J. of the Québec Superior Court dismissed Mr. Abilogoun’s application for judicial review of the Order’s decision. Healy J.A. of the Qué. C.A. dismissed Mr. Abilogoun’s motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”
Professions: Contempt
Beaver v. Law Society of Alberta, 2021 ABCA 163 (39763)
The Law Society of Alberta suspended Mr. Beaver’s membership and Mr. Beaver signed an undertaking not to conduct legal work. The Law Society considered him to be in breach of the undertaking, and it applied for an injunction. The injunction was granted. The Alta. C.A. dismissed an appeal. Later, after Mr. Beaver was disbarred, the Law Society again considered Mr. Beaver to be practising law. It applied to have him found in contempt of the earlier injunction. A chambers judge found Mr. Beaver to be in civil contempt. The Alta. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs. Martin J. took no part in the judgment.”
Property: Condominiums; Arbitral Awards
Weinstein v. Toronto Standard Condominium Corporation No. 1466, 2021 ONCA 470 (39877)
The Applicant, Stuart Weinstein, owned and lived in a unit in a condominium building owned by the Respondent, Toronto Standard Condominium Corporation No. 1466 — “TSCC 1466”. Further to a dispute over the replacement of defective pipes throughout the building, TSCC 1466 commenced arbitration proceedings to compel Mr. Weinstein to comply. The arbitrator issued an award ordering Mr. Weinstein to allow TSCC 1466 to replace the pipes in his unit and indemnify the condominium for costs incurred in connection with this work. The arbitrator also ordered Mr. Weinstein to pay $60,599.53 in legal costs to the condominium on a substantial indemnity basis. TSCC 1466 then registered a lien on Mr. Weinstein’s unit for the unpaid costs award. The condominium also sought a court order enforcing the arbitral award, while Mr. Weinstein brought an application to set it aside, or in the alternative, to remove the lien. The Ontario Superior Court of Justice dismissed Mr. Weinstein’s applications, and granted TSCC 1466’s application to enforce the arbitral award. It also ordered Mr. Weinstein to pay $71,120.97 to TSCC 1466, representing all of its legal costs on a full indemnity basis. Mr. Weinstein attempted to appeal the Superior Court’s decisions before the Ont. C.A.; TSCC 1466 brought a motion to quash the appeal for want of jurisdiction. After quashing Mr. Weinstein’s attempted appeal but allowing him to proceed with a motion for leave to appeal, the Ont. C.A. refused Mr. Weinstein leave to appeal the Superior Court decisions. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for a stay and various requests for miscellaneous relief are dismissed. The application for leave to appeal…is dismissed.”
Wills: Dependent Relatives
Lawen v. Nova Scotia (Attorney General), 2021 NSCA 39 (39770)
Jack Lawen died in 2016, leaving four adult children, three daughters and one son (the Applicant, Michael Lawen). His will left $50K each to two of his daughters, nothing to his third daughter and the residue of the estate to the Applicant. The three daughters commenced an action against the estate brought under s. 3(1) of the Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 (“TFMA”), alleging their father’s will failed to make adequate provisions for them as dependants. In response, the Applicant and the estate’s executor, Joseph Lawen brought an application challenging the constitutional validity of ss. 2(b) and 3(1) of TFMA, alleging those provisions contravened the freedom of conscience under s. 2(a) of the Charter and the liberty rights in s. 7. The three daughters were not named as parties in the Charter challenge. The Applicant and the executor were granted public interest standing in the Charter challenge application. The application judge held s. 2(a) of the Charter was not violated by the impugned provisions, but the definition of “dependant” was overly broad and offended the s. 7 liberty interests of testators generally. The application judge further found the breach of s. 7 was not saved by s. 1. Pursuant to s. 52 of the Constitution Act, 1982, the court read down the meaning of “dependant” in the TFMA to exclude all non-dependant adult children. The Respondent, Attorney General of Nova Scotia, appealed the decision and the Applicant filed a notice of contention asserting the decision should be upheld. The N.S. C.A. allowed the appeal and dismissed the Applicant’s notice of contention. “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 to the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia.”