Constitutional Law: Language Rights

A.B., et al. v Northwest Territories (Minister of Education, Culture and Employment) et al., 2021 NWTCA 8 (39915)
In 2018 and 2019, the Minister of Education, Culture and Employment of the Northwest Territories denied six applications for admission to French‑language schools made by non‑rights holder parents. The ineligibility of their children was assessed according to the criteria established in the Ministerial Directive – Enrolment of Students in French First Language Education Programs. Because none of the criteria in the Directive applied in the circumstances, the parents asked the Minister to exercise her residual discretion to authorize the admission of the six children concerned, which was denied. The non-rights holder parents and the school board applied for J.R. of the Minister’s decisions. In two judgments, the Northwest Territories Supreme Court set aside the Minister’s decisions on the ground there had been no proportionate balancing of the protections guaranteed by s. 23 of the Charter and the government’s interests. The majority of the N.W.T. C.A. allowed the Minister’s appeals and restored her decisions. It found the chambers judge’s reasoning on constitutional values had proceeded on the mistaken assumption the case involved constitutional rights. The families in question did not qualify under s. 23 and had no other legal or statutory right or expectation to attend the schools. “The motion to adduce new evidence is granted. The application for leave to appeal…is granted with costs in the cause.”


Civil Litigation: Limitations

Asfar, et al. v. Sun Life Assurance Company of Canada, 2020 ONCA 31 (39963)
Equity Cheque Card Corporation Ltd. and its principal, Mr. Asfar, commenced an action against Sun Life Assurance Company of Canada, Sun Life Financial Inc. and Sun Life Financial Canada. A motions judge granted summary judgment dismissing the claim as barred by the Limitations Act. 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 dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed. Jamal J. took no part in the judgment.”

Civil Litigation: Security for Costs

Wiseau Studio, LLC, et al. v. Harper, et al., 2021 ONCA 396 (39765)
Richard Harper, Fernando McGrath, Martin Racicot doing business as Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios Inc. and Richard Towns (collectively, “RFS”) moved for security for the trial judgment, costs of that judgment and the appeal, and, in the alternative, an order lifting the stay pending appeal. In 2003, Wiseau Studio LLC and Tommy Wiseau, residents of California doing business as “Wiseau Films”, had released a feature film called The Room. In 2016, Ontario filmmakers Mr. Harper, Mr. McGrath, Mr. Racicot and Mr. Towns completed a documentary film called Room Full of Spoons about the cult‑like status that had been acquired by The Room and Mr. Wiseau. Wiseau Films obtained an ex parte injunction restraining the release of the documentary. The injunction was later dissolved based on a finding Wiseau Films had failed to make full and frank disclosure and had engaged in litigation misconduct.  Wiseau Films’ request to discontinue the claim on the eve of trial was refused and the eight‑day trial went ahead. Its claim was dismissed and RFS’s counterclaim was granted. RFS was awarded punitive damages, damages arising from the improper ex parte injunction, pre‑judgment interest, and costs. Wiseau Films’ request to vary the judgment was dismissed. After Wiseau Films filed a Notice of Appeal, but before the appeal was perfected, RFS moved before a single judge of the Ont. C.A. for security for the trial judgment, costs of the trial and the appeal. All three requests were granted. Wiseau Films moved before a three‑member panel of the Ont. C.A. to review that decision. Having allowed Wiseau Films to resile from the earlier concession the appeal was frivolous, the panel was satisfied the order for security for the trial judgment should be set aside. However, it affirmed the order for security for costs of the trial and the appeal. As success was divided, there was no award of costs. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Mutual Funds; Proximity

Couch, et al. v. BDO Canada LLP, 2021 ONCA (39953)
The Applicants were individual investors in the mutual funds of Crystal Wealth Management Systems Ltd. They lost their life savings when the Ontario Securities Commission put the company in receivership for misappropriating assets. The Respondent, BDO Canada LLP, which was the auditor of Crystal Wealth from 2007 to 2017, provided clean audit opinions to the OSC and to the unitholders about Crystal Wealth’s mutual funds. The crux of the Applicants’ claim against BDO for negligent performance of a service is, in addition to any duty BDO owed to its audit client, Crystal Wealth, and its funds, BDO also owed duties to investors in Crystal Wealth’s Funds. As a result, the Applicants seek to make BDO liable for damages arising from investments made by investors who invested in the funds at any point from 2007 onward, and continued to hold those investments as of April 7, 2017, when the OSC’s cease trade order was first issued. The narrow issue in dispute was whether the pleading discloses sufficient “proximity” between BDO and the class members to give rise in law to a duty of care owed by BDO. The motion judge refused certification, finding while BDO had potential contractual liability to Crystal Wealth for negligent auditing, it did not have a proximate duty of care to the individual investors. Thus, in the case at bar, the cause of action criterion for certification was not satisfied, and with its failure all the other certification criteria failed. The Divisional Court agreed and also dismissed the appeal. The Ont. C.A. dismissed the motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Corporate Law: Fraud Recovery

Murray v. Usiroyal inc., et al., 2021 QCCA 1620 (39988)
The Respondent Jacques Poulin is the sole shareholder of the Respondent Usiroyal inc. In 2016, the Applicant, Yohan Murray, introduced Denis Goulet, Guy Dufresne and Chantal Gaudreault to Mr. Poulin as potential purchasers of a company related to Usiroyal. Reassured by the advice of Mr. Murray, who considered Mr. Goulet and Mr. Dufresne to be trustworthy, Mr. Poulin signed, on behalf of Usiroyal, a loan agreement between Usiroyal and 9608478 Canada inc. (Alfi Capital), a company registered in 2016 whose shareholders were Mr. Goulet, Mr. Dufresne and Ms. Gaudreault. The agreement provided the $250K being loaned was to be used for the purchase of a financial instrument to be issued by a bank. The transaction was protected by, among other things, the personal suretyship of Mr. Goulet and Mr. Dufresne and a letter of suretyship provided by Victor Gatto, the president of GDG Venture Capital LLC. It turned out Mr. Poulin and Usiroyal were the victims of a scam. Usiroyal filed a judicial application seeking a solidary award for the sum of $250K. Mr. Murray filed a cross‑application seeking reimbursement of his extrajudicial fees, as he considered the action abusive. The Superior Court allowed the amended originating application and ordered 9608478 Canada inc., Mr. Goulet, Mr. Dufresne, Ms. Gaudreault, GDG Venture Capital LLC and Mr. Murray solidarily to pay $250K to Usiroyal inc. It dismissed Mr. Murray’s cross‑application, finding his participation in the fraudulent scheme had been definite and intentional and the transaction would not have occurred without his involvement. The Qué. C.A. dismissed Mr. Murray’s appeal. No palpable and overriding error had been shown in the judge’s factual inferences and findings with regard to the extracontractual fault committed by Mr. Murray. “The application for leave to appeal…is dismissed with costs to the respondents.”

Criminal Law: NCR

Cousineau v. Attorney General of Ontario, et al., 2021 ONCA 760 (39983)
Mr. Cousineau had been found not criminally responsible by reason of mental disorder (“NCRMD”) relating to violent offences, most recently on October 15, 2018, with respect to two counts of second‑degree murder. This was the second NCRMD finding, which led to a detention order, and the s. 672.64(1) of the Criminal Code high‑risk accused designation. The Ontario Review Board declined to order the Applicant’s requested assessment. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Sexual Offences

L. v. R., 2021 QCCA 1188 (39758)
There is a publication ban in this case, and certain information not available to the public, in the context of sexual touching and sexual harassment against two minor sisters. “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.”

Human Rights: Discrimination

Nova Scotia (Attorney General) v. Disability Rights Coalition, 2021 NSCA 70 (39951)
Three complainants were housed in a locked psychiatric unit of the Nova Scotia Hospital while waitlisted for community setting placements. They filed complaints before the Nova Scotia Human Rights Commission alleging discrimination on the basis of mental disability in the provision of a service contrary to the Human Rights Act. The Disability Rights Coalition joined a systemic discrimination complaint. The Board of Inquiry in part dismissed the systemic discrimination complaint. The N.S. C.A. in part granted an appeal and found prima facie systemic discrimination. “The application for leave to appeal…is dismissed with costs to the Disability Rights Coalition.”

Labour Law: Duty to Represent

Boukendour v. Syndicat des professeures et des professeurs de l’Université du Québec en Outaouais – CSN, et al., 2021 QCCA 1381 (39961)
The Applicant, Mr. Boukendour, filed an originating application in which he sought a declaration his union and his employer had, in bad faith and in a discriminatory manner, interfered with the exercise of his rights under the collective agreement. In the same application, Mr. Boukendour sought an order appointing an arbitrator and awarding moral and exemplary damages against his union and his employer. The employer had concluded the grievance was out of time and unfounded in fact and in law, and the Ministère du Travail, de l’Emploi et de la Solidarité sociale had refused to appoint an arbitrator. The Superior Court held the Labour Code gives the Administrative Labour Tribunal exclusive jurisdiction to authorize the Minister of Labour to appoint an arbitrator if the Tribunal considers a certified association has contravened the Code. It also determined none of the exceptions that allow civil proceedings in the Superior Court applied in the circumstances. The Qué. C.A. granted the motions to dismiss Mr. Boukendour’s appeal brought by the employer and the union and dismissed the appeal. In its view, Mr. Boukendour had not raised any error that would warrant appellate intervention, and the appeal therefore had no reasonable chance of success. “The application for leave to appeal…is dismissed with costs to l’Université du Québec en Outaouais.”

Real Property: Crown Letters Patent

Herold Estate v. Canada (Attorney General), et al., 2021 ONCA 579 (39908)
The Applicant, the Estate of William Albin Herold (“Herold Estate”), is the owner of Lot 35, Concession 11, in the Township of Smith, County of Peterborough (“Lot 35”). It applied to the Ont. Superior Court of Justice to confirm its ownership of three islands (“Islands”) located in the waterway near Lot 35 and in close proximity to each other. Before the Ont. Superior Court of Justice, the application judge held Herold Estate owned the Islands by virtue of Crown Letters Patent dated 1868 to Herold Estate’s predecessor in title which conveyed the Islands as part of the conveyance of Lot 35. The Ont. C.A. unanimously allowed the appeals of the Respondent Attorney General of Canada (“AGC”) and the Respondents Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation. In its view, the application judge’s determination the Letters Patent conveyed the Islands as part of the conveyance of Lot 35 was not owed deference because he made extricable errors of law. First, the application judge failed to follow the fundamental principle of interpretation to determine the meaning of the Letters Patent in accordance with the intentions of the parties, objectively ascertained. Second, he erred in treating a legal principle about the effect of sudden changes in water levels on boundaries between different owners as applicable and determinative. Third, he failed to properly consider the Crown’s obligations to the First Nations in determining what the Crown intended to convey by the Letters Patent. “The application for leave to appeal…is dismissed with costs to the respondents, Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation.”

Real Property: Alleged Partnership; Punitive Damages

Hornstein v. Kats, et al., 2021 ONCA 293 (40010)
This case arises out of an alleged partnership for the purchase of a residential property. The Applicant brought actions against the Respondents claiming a beneficial interest in the property and a declaration the Agreement of Purchase and Sale between the Respondents be null and void and of no force or effect. Both Respondents brought counterclaims for a declaration the Applicant had no legal title to the property and a claim for punitive damages. The trial judge found the Applicant’s actions were not consistent with a partnership and no partnership was created. The trial judge also found she had not contributed any monies to the purchase or maintenance of the property and had no beneficial interest in the property she alleged was owned by the partnership. The Ont. C.A. found the trial judge’s findings were entitled to deference. The appeal against the Respondent Mr. Kats was dismissed. The trial judge found the Respondent, Ms. Higgins had neither a claim for slander of title nor a claim for damages for breach of s. 132 of the Land Titles Act. Nevertheless, she ordered the Applicant to pay Ms. Higgins punitive damages in the amount of $35K citing the egregious, unreasonable, and malicious nature of the Applicant’s actions. The Ont. C.A. found the award of punitive damages must be set aside and the appeal was allowed only to that extent. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Torts: Dentistry

Warlow v. Sadeghi, et al, et al., 2021 BCCA 46 (39927)
The Applicant suffered permanent nerve damage from a wisdom tooth extraction. She sued the surgeon who operated on her for having failed to adequately inform her of the risk of potentially permanent nerve pain. The B.C.C.A. dismissed her claim. This decision was upheld on 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.”

Torts: Standard of Care; Baseball

Rivers v. North Vancouver (District), et al., 2021 BCCA 407 (39956)
The Applicant was struck on the back of the head by a foul ball while he watched a Little League baseball game at Inter River Park in North Vancouver. The ball emanated from another diamond, which was back‑to‑back to the diamond on which his son was playing. The Applicant was seated in the first row of bleachers on the third base side watching his son play on field D, with his back to the game being played on field C. The Applicant brought a claim under the Occupiers Liability Act and a common law claim in negligence against the Respondents seeking damages for his injuries. The Applicant’s action was dismissed by the B.C.S.C. following a summary trial. The B.C.C.A. dismissed the appeal. The appellate court rejected the Applicant’s argument the trial court had incorrectly invoked the volenti doctrine, under which a person otherwise entitled to recover damages for the negligent act of another may be denied recovery on the basis they voluntarily assumed the risks associated with the activity. The judge was not looking to whether the Respondents had established a defence to what would have been negligence, but rather considering all the circumstances to see whether a breach of the standard of care had been established. An inherent risk, known to a reasonable spectator, was one relevant contextual factor for the determination of whether there was an objectively unreasonable risk a person sitting where the Applicant sat in the bleachers would be injured. “The application for leave to appeal…is dismissed with costs.”