Criminal Law: Right to Counsel

Brunelle, et al. v. R., 2021 QCCA 1317 (39917)
The Applicants, who were charged with various offences related to the large‑scale trafficking of cannabis, were arrested at the same time in more than one judicial district. They were divided into four different groups for separate trials. The Applicants in the first group brought a motion for a stay of proceedings for abuse of process based on a series of infringements of the rights of the accused, and primarily their right to counsel. On August 27, 2018, Dumas J. of the Qué. Superior Court entered a stay of proceedings on the ground the police conduct had undermined the integrity of the justice system. He noted the infringement of the right to counsel was the most serious infringement. On May 7, 2019, at a hearing before Dumas J., the parties agreed the decision rendered concerning group 1 would apply to the accused in the other groups. The proceedings against all the other accused were therefore stayed. The Qué. C.A. allowed the appeals, set aside the judgments of August 27, 2018 and May 7, 2019 staying the court proceedings, and ordered a new trial. It found the trial judge necessarily had to assess the situation of each accused individually, since a remedy could be granted only to a person whose own constitutional rights had been infringed. That error in itself justified a new hearing. “The application for leave to appeal…is granted.”

Corporations: Share Sale

Ponce, et al. v. Société d’investissements Rhéaume ltée, et al., 2021 QCCA 1363 (39931)
The Applicants, Mr. Ponce and Mr. Riopel, served as presidents of three companies grouped together under the name “Le Groupe Excellence” controlled by the Respondent shareholders Mr. Rhéaume and Mr. Beaulne. Rhéaume and Beaulne founded Excellence in the late 1970’s, but their working relationship ultimately broke down due to a revenue share dispute. A few years later, the Applicants bought the Respondents’ interests in Excellence. At the time, the Applicants were also negotiating the sale of Excellence to a third party, Industrial Alliance. They did not make this fact known to the Respondents. Shortly after acquiring the shares of Rhéaume and Beaulne, the Applicants sold their interests in Excellence for a significant profit. The Respondents allege the sale of Excellence by the Applicants stripped them of a business opportunity. They claimed joint and several damages against the Applicants. The Qué. Superior Court granted the Respondents’ action in part. The court determined the Applicants used their roles to obtain information for their own benefit, and breached duties of honesty, loyalty and integrity owing to the Rhéaume and Beaulne shareholders. The Qué. C.A. dismissed the Applicants’ appeal. Although it found the first instance judge made an error in determining the duties of honesty and loyalty were owed to the shareholders, as opposed to the corporation, this error was not determinative since the judge also relied on the obligation of good faith and the duty to inform to conclude the Applicants were at fault towards the Respondents. “The application for leave to appeal…is granted with costs in the cause. Côté J. took no part in the judgment.”


Aboriginal Law: Duty to Consult

Sagkeeng Anicinabe aka Fort Alexander Band (“Sagkeeng”) v. Minister of Sustainable Development, et al., 2021 MBCA 88 (39976)
Manitoba Hydro sought a Class 3 licence under s. 12 of The Environment Act authorizing it to construct a hydro transmission line through Treaty 1 land. The project impacts areas used by the Sagkeeng Anicinabe (“Sagkeeng”) and others, both traditionally and at the time of these proceedings; it does not touch on reserve lands. In the latter half of 2015, after the scale of the project and the potential impacts on the various communities had been assessed, Manitoba invited Sagkeeng to participate in community meetings or to provide input into the plans for the project. Correspondence and information was exchanged and some meetings were held, but Sagkeeng did not respond to the invitation. In October 2017, Manitoba advised Sagkeeng it was beginning to prepare its consultation report and asked Sagkeeng to contribute any information it wished. In November 2017 and March 2018, Sagkeeng responded, stating Manitoba had not been acting in good faith, and the proposed community session was meaningless. It proposed an expansive plan of consultation, the preparation of several expert reports and further studies. Manitoba’s reply indicated the consultation process had closed, but renewed the offer to conduct a community session. There was some further correspondence, but no further steps were taken between then and the National Energy Board hearing in June 2018. The National Energy Board approved the project in November 2018. On April 4, 2019, the Minister of Sustainable Development granted the requested licence. Sagkeeng filed an application for J.R., arguing the Minister and the Government of Manitoba had failed to meet their obligation to consult with and to accommodate under s. 35 of the Constitution Act, 1982 before granting the licence. The application for J.R. was found to be premature on the basis Sagkeeng had not pursued the appeal to the Lieutenant Governor in Council provided in s. 28 of the Act. Sagkeeng’s appeal was dismissed. “The application for leave to appeal…is dismissed with costs to the respondents.”

Civil Litigation: Enforcing Settlement Agreements

1388020 Ontario Corp., et al. v. Machnowski, et al., 2021 ONCA 806 (40028)
The Applicant Dr. Ahluwalia and the Respondent Mr. Machnowski were business partners in 1388020 Ontario Corp. (“138 Corp.”), which operated as a medical diagnostic clinic. Mr. Machnowski was the bookkeeper, and was responsible for collecting all bank statements, receipts and invoices needed to support annual corporate tax returns and the company’s financial statements. Mr. Machnowski and Dr. Ahluwalia became embroiled in a dispute that led to litigation. Mr. Machnowski consented to Dr. Ahluwalia’s motion to remove him as bookkeeper; the accounting firm Fuller Landau took over his bookkeeping duties.  Mr. Machnowski brought a motion to wind up 138 Corp. A judicial mediation was held that resulted in signed handwritten minutes of settlement. Pursuant to the agreement, Dr. Ahluwalia would pay Mr. Machnowski $950K for his shares in138 Corp., but that obligation was contingent on Mr. Machnowski’s production of 138 Corp.’s books and records. The documents produced by Mr. Machnowski were to be reviewed by Fuller Landau, to ensure the accounting firm was “satisfied” with the production. Dr. Ahluwalia was not satisfied with Mr. Machnowski’s production of documents because it did not include pre‑2017 source documents. Mr. Machnowski brought a motion to enforce the terms of the settlement agreement. The motion judge granted Mr. Machnowski’s motion and ordered Dr. Ahluwalia to pay the settlement funds to Mr. Machnowski, together with pre-judgment interest and costs. Dr. Ahluwalia’s appeal was dismissed. “The application for leave to appeal…is dismissed with costs to the respondent, Zbigniew Machnowski.”

Civil Litigation: Experts

O’Connor v. St. Marthe, 2021 ONCA 790 (40023)
Following an accident involving a motor vehicle and a bicyclist, a trial commenced before a jury to determine damages. An orthopedic surgeon testified as a non‑party expert witness. Based on questions as to scope raised during cross‑examination of the surgeon, the trial judge discharged the jury and continued without a jury. Damages were awarded. The Ont. C.A. dismissed an appeal. “The motion for leave to intervene filed by Kevin Doan is dismissed. The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Malicious Prosecution

Michelucci v. Sveinbjornson, et al., 2021 ABCA 335 (40011)
The Applicant was charged criminally but was acquitted at trial. The Applicant brought a civil claim against the police and Crown alleging, among other things, malicious prosecution by the Crown Respondents, as well as wrongful arrest and detention on the part of the police Respondents.  The Respondents brought an application to strike the statement of claim. The chambers judge summarily dismissed the Applicant’s action against the Crown and the police. The Alta. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Motions to Strike

Bouchard v. Racicot, et al., 2021 QCCA 1373 (39986)
In August 2019, the Applicant, Bertrand Bouchard, brought an action against the Respondents, Jean-Félix Racicot and the Fonds d’assurance responsabilité professionnelle du Barreau du Québec. In January 2020, the Respondents conducted the Applicant’s pre‑trial examination, during which he gave 23 undertakings. After the transcript of the examination was received, the Applicant failed, refused or neglected to send the answers to the undertakings. On August 4, 2020, the Superior Court ordered him to provide the undertakings to the Respondents within one month; on September 16, 2020, the Applicant’s motion for leave to appeal from that order was dismissed by the Qué. C.A. The Applicant did not file the undertakings, and the Respondents therefore applied to have his originating application dismissed. The Superior Court allowed the Respondents’ application and dismissed the Applicant’s action for abuse of procedure; it also held part of the action concerning Mr. Racicot was prescribed. The Qué. C.A. granted the Respondents’ motions to dismiss and dismissed the Applicant’s 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.”

Civil Litigation: Motions to Strike

Rana v. Rana, et al.2022 ABCA 65 (39980)
The Applicant filed a statement of claim alleging, among other things, the individual Respondents improperly drafted and witnessed an enduring power of attorney and personal directive granting the Applicant’s brother authority to conduct the affairs of their mother.  Counsel for the Respondents referred the statement of claim as a potential Apparently Vexatious Application or Proceeding, pursuant to Alberta’s Civil Practice Note No. 7. The parties were asked to prepare written statements, following which the Court of Queen’s Bench of Alberta concluded the Applicant’s claim was an abuse of process. The Court struck out the Applicant’s statement of claim. The Alta. C.A. dismissed the Applicant’s application for permission to appeal on the basis it was without merit. “The motion to suspend the effects of the personal directive of G. Rana is dismissed. The motion for an order directing the exercise of visitation rights by the applicant is dismissed. The application for leave to appeal…is dismissed.”

Civil Litigation: Motions to Strike

Rana v. Rana, et al., 2022 ABCA 65 (39982)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”

Civil Litigation: Safeguard Orders

9185-4067 Québec inc. v. Boughanmi et al., 2021 QCCA 1492 (39950)
A judgment rendered by the Québec Superior Court in January 2021, which was affirmed by the Qué. C.A. in May 2021, found the Respondent 9175‑0588 Québec inc. owed money to the Applicant 9185‑4067 Québec inc. with interest, additional indemnity and legal costs. On September 27, 2021, the Superior Court had before it an application by 9185 for the renewal of the safeguard order. The court ordered, among other things, that 9185 provide 9175 with a current statement of account showing the amount owed to it by September 29, 2021, failing which the statement of account to be filed by 9175 by September 30, 2021 would serve to quantify the amount owed. The court made that order even though 9185 admitted it would no longer have any interest in continuing the proceedings once it was paid, and even though 9175 undertook to pay the claim out of the amounts to be earned from the sale of its lands. The Qué. C.A. dismissed the motion for leave to appeal and therefore declared the motion to stay provisional execution to be moot. There were no exceptional circumstances that warranted granting leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondent 9175-0588 Québec inc.”

Civil Litigation: Security for Costs

Estates Associates Inc. v. 1645112 Ontario Ltd., et al., 2020 ONCA 640 (39808)
In connection with the sale of a property to the Respondent, Ronald McCowan the Applicant, Estates Associates Inc. (“Estates”), brought claims for fraud, negligent misrepresentation, conspiracy, and breach of contract against Mr. McCowan and his companies (collectively, the “McCowan Respondents”). It also brought claims against the Respondent Bryon Cohen, the lawyer who represented Estates on the transaction, for allegedly negligent legal services. The trial judge dismissed Estates’ action, and then awarded costs to Mr. Cohen and to the McCowan Respondents. Estates appealed the trial decision. In the course of the appeal proceedings, Mr. Cohen and the McCowan Respondents brought motions seeking an order for security for costs to be posted by Estates for its appeal. Before the appeal could be heard, a motions judge at the Ont. C.A. granted the security for costs motions, requiring Estates to post security for costs for the appeal: $100K to the McCowan Respondents and $100K to Mr. Cohen. Estates brought a motion to have the security for costs order set aside. A panel of the Ont. C.A. unanimously upheld the security for costs order and dismissed Estates’ appeal from that order, with costs to the McCowan Respondents and to Mr. Cohen. “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 respondents.”

Civil Litigation: Summary Judgments

Tolzmann v. Royal Bank of Canada, 2021 BCCA 383 (39900)
The Respondent, Royal Bank of Canada, applied to the B.C.S.C. for summary judgment, under Rule 9‑6 of the Supreme Court Civil Rules. As against Superior Flood and Fire Restoration Inc. (“Superior”), the Respondent claimed it entered into various credit facility agreements with Superior, under which Superior borrowed money and then failed to make payment as required. In addition, as against the Applicant, Josip Tolzmann, the Respondent claimed the Applicant entered into agreements guaranteeing the indebtedness of Superior and, despite demand for payment, had failed to make payment as required. The Respondent claimed the amounts owing by Superior and the Applicant, plus interest. The B.C.S.C. granted summary judgment in favour of the Respondent. The Applicant appealed the order. The B.C.C.A. allowed the appeal, ordered the summary judgment as against the Applicant be set aside, and substituted an order dismissing the application for summary judgment. The Applicant suggested the entire action against him should be dismissed. However, the B.C.C.A. found there was no basis for dismissing the whole claim; thus, the Respondent was entitled to continue to pursue the action. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Vexatious Litigation

Grenville v. Employment and Social Services, 2021 ONCA (39954)
Ms. Grenville filed an application with the Human Rights Tribunal of Ontario alleging discrimination due to age, race and record of offences, contrary to the Human Rights Code. She alleged, over an extended period of time, she had been unable to obtain employment that reflects her skills and qualifications. Having sent Ms. Grenville a Notice of Intent to Dismiss indicating a review of her materials failed to allege the Respondent had committed any specific discriminatory acts within the meaning of the Code, the Tribunal considered her application. It found the complaint did not fall within its jurisdiction, so the complaint was dismissed: 2018 HRTO 1405. Ms. Grenville’s request for reconsideration of that decision was also dismissed: 2020 HRTO 662. Ms. Grenville applied for J.R. before the Ontario Superior Court of Justice. The Registrar was instructed by the court to notify Ms. Grenville it was considering dismissing her complaint as frivolous, vexatious or an abuse of process under Rule 2.1.01(1) of the Rules of Civil Procedure. The notice explained what was required to address the defects in her materials. Ms. Grenville provided a detailed written response, adding complaints against the Government of Canada. She later filed and served a Notice of Constitutional Question. The Ontario Superior Court of Justice dismissed Ms. Grenville’s application for J.R. under Rule 2.1.01. The Ont. C.A. dismissed Ms. Grenville’s application for leave to appeal. “The application for leave to appeal…is dismissed.”

Class Actions: Facebook

Kish v. Facebook Canada Ltd. et al., 2021 SKCA (40030)
Ms. Kish brought an application for certification of her claim as a class action pursuant to The Class Actions Act. The Applicant brought this claim in her own right and as the proposed representative plaintiff for the “Class” defined as all persons in Canada who: (a) have or have had at any time since 2004 a Facebook account; (b) have never registered for a Facebook account and whose identity, personal information, or biometric data has at any time since 2004 been stored or maintained by Facebook. The Applicant brought the following causes of action in her claim: breach of contract, breach of privacy legislation, negligence, breach of fiduciary duty, intrusion upon seclusion, consumer protection legislation, breach of confidence, unjust enrichment and disgorgement. The Respondents brought an application to strike the affidavit evidence led by the Applicant. The Court of Queen’s Bench allowed the application to strike evidence. It dismissed the application for certification as a class action. The application for leave to appeal that decision to the Sask. C.A. was also 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 with costs.”

Criminal Law: Curative Proviso Despite Errors

Cole v. R., 2021 ONCA 759 (39993)
At trial before judge and jury, the Applicant was convicted of the first degree murder of the victim who died in a house fire. Strong circumstantial evidence suggested the Applicant set the fire intentionally, although the cause of the fire was undetermined. The Ont. C.A. unanimously dismissed the conviction appeal. In its view, the trial judge did commit legal errors in (i) admitting extrinsic evidence of the Applicant’s misconduct on a prior occasion; (ii) directing the jury on the use they could make of that extrinsic misconduct evidence; and (iii) instructing the jury with respect to the Applicant’s false alibi. Nonetheless, it was persuaded no prejudice arose from the latter error and, given the strength of the Crown’s case against the Applicant, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applied to the errors related to extrinsic misconduct evidence. “The application for leave to appeal…is dismissed.”

Criminal Law: Dangerous Offenders

Brown v. R., 2021 ONCA 678 (40015)
The trial judge convicted the Applicant of numerous counts arising from an armed robbery. The Applicant had a lengthy criminal record including convictions for participation in two home invasions in which victims were injured. The trial judge granted the Crown’s application to designate the Applicant a dangerous offender, and imposed an indeterminate sentence. Leave to appeal sentence was granted, and the sentence appeal was dismissed by the Ont. C.A. “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: Fisheries

Attorney General of Québec (Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques) v. R., 2021 QCCA 1661 (40006)
In 2014, the Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques (MDDELCC), represented here by the Applicant, the Attorney General of Québec, determined a dam situated on Lac Polette had to be replaced. The dam in question controlled the level of Lac Polette and Lac De Pons, two lakes in the Nordique Controlled Zone on which recreational fishing of a species called “brook trout” was possible. For the purposes of the replacement work, MDDELCC carried out an assessment and applied for the necessary provincial authorizations, but it did not apply to the Department of Fisheries and Oceans Canada (DFO) for authorization under the Fisheries Act despite the fact sport fishing on the lakes was possible. Experts concluded from the assessment and the consultations done replacing the dam would have a minimal and temporary impact on the fishery output. The lowering of the water level would move the preference area of the brook trout toward the centre of the lakes and would therefore expand that area by 4.47 hectares. The replacement of the existing dam mechanism (artificial tidal range) by a fixed threshold mechanism would also reduce the harm to the fish. During the period when the replacement work was being done, May 12 to November 30, 2015, a biological limnology expert employed by DFO made two site visits to assess the impact of the work on the natural aquatic environment. The first time, he requested the plans and specifications for the dam, which were not sent to him until February 2016. The second time, he noted the impact of the work on the fish preference area, which, in his view, significantly altered the fish habitat. In August 2017, MDDELCC hired a private firm to put together a complete picture of the fish habitat and population. The firm’s report revealed the water had been lowered less than expected (31 cm rather than 70 cm) and a potential preference area (spawning grounds) of 4,722 mwas available and accessible to the fish in the lakes and tributaries. The Respondent, Her Majesty the Queen, brought penal proceedings against MDDELCC based on two charges: the first, under ss. 35(1) and 40(1)(b)(ii) of the Fisheries Act, for serious harm caused to the brook trout and its habitat through the permanent alteration of the body of water, and the second, under ss. 37(1) and 40(3)(a.1) of the same Act, for failure to provide the documents and information requested by DFO. The Court of Québec acquitted MDDELCC of the offences charged. The Superior Court dismissed the appeal. The Qué. C.A. allowed the appeal and ordered a new hearing be held as soon as possible. “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 without costs.”

Criminal Law: Homicide; Curative Proviso

T.B. v. R., 2021 QCCA 1327 (39990)
There is a publication ban in this case, as well as a Sealing Order, in the context of the curative proviso re homicide. “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: NCR

Stephens v. R., 2021 ONCA 402 (39943)
In 2009, Mr. Stephens pled guilty to two charges, for mischief and for failing to comply with a probation order. In 2011, Mr. Stephens was charged with theft under $5K, and with performing an indecent act; he was found to be not criminal responsible. Mr. Stephens then applied to have the 2009 convictions set aside, on the basis he was also not criminal responsible when those incidents occurred. The Superior Court of Justice dismissed Mr. Stephens’ application to introduce fresh evidence, and his appeal of the 2009 convictions. The Ont. C.A. dismissed a motion by Mr. Stephens to reinstate a previous motion seeking leave to appeal the Superior Court decision; it also dismissed his request for a new psychiatric report to be prepared with respect to the 2009 incident. “The application for leave to appeal…is dismissed. Karakatsanis J. took no part in the judgment.”

Criminal Law: Sexual Offences

L. v. R., 2021 MBCA 76 (40022)
There is a publication ban in this case, in the context of sexual assault, child porn, extortion. “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: Uttering Threats

John v. R., 2021 ONCA 403 (40019)
The Applicant was convicted and charged of knowingly uttering or causing a person to receive a threat to cause bodily harm contrary to s. 264.1(1)(a) of the Criminal Code and sentenced to a suspended sentence with a one year period of probation. He appealed his conviction and sentence on several issues including disclosure. The summary conviction appeal court judge dismissed the appeal of the conviction and sentence. The Applicant sought leave to appeal to the Ont. C.A. The motion was dismissed. “The application for leave to appeal…is dismissed.”

CRTC: Jurisdiction

Groupe TVA inc., et al. v. Bell Canada, et al., 2021 FCA 153 (39861)
The Applicants, TVA Group Inc. and Québecor Media Inc. (collectively “TVA”), and the Respondents, Bell Canada, Bell ExpressVu Limited Partnership and Bell Canada Enterprises (collectively “Bell”), entered into an affiliation agreement under which TVA provided Bell with programming services, which Bell distributed. The renewal of the agreement in early 2019 gave rise to a series of events that reflected problems in the negotiations. One especially notable event was the withdrawal from Bell subscribers of the signal for the TVA Sports channel on April 10, 2019, the date of the first National Hockey League playoff game, which was broadcast on that channel. That decision by TVA had been announced to subscribers during the last regular season hockey game played by the Montréal Canadiens on April 6, 2019 through crawls at the bottom of the screen, as well as the day before the first playoff game, April 9, 2019. Further to TVA’s actions, the CRTC was called upon to issue two decisions and one order. On April 10, 2019, after Bell filed an application for final offer arbitration with the CRTC regarding carriage of the signal for the TVA Sports channel, asking it to determine the applicable rates for that service, the CRTC informed the parties by letter it considered them to be engaged in a dispute and the standstill rule in s. 15(1) of the Discretionary Services Regulations was therefore applicable. The CRTC thus determined the parties were “required to provide their respective programming services to one another, and [were] required to distribute those services, at the same rates and on the same terms and conditions as they did before the dispute”. On April 18, 2019, the CRTC concluded TVA had contravened the standstill rule on April 10, 2019 by acting in a way that “prevented Bell from providing TVA Sports to Canadians during a dispute”. The CRTC issued an order under s. 12(2) of the Broadcasting Act requiring TVA to continue providing Bell with the signal for the TVA Sports channel at the same rates until the dispute was resolved. The CRTC also suspended the broadcasting licence for TVA Sports because of concerns about TVA’s behaviour. However, the CRTC specified the suspension would go into effect only if TVA unlawfully withdrew the signal for TVA Sports again. TVA filed an application for leave to appeal to the Fed. C.A. in order to challenge the CRTC’s decisions and order on the ground the regulatory provisions on which the CRTC had relied were beyond its powers. The application for leave to appeal was granted, but the appeal was dismissed. “The motion of the Attorney General of Canada to vary his party status from intervener to respondent and to be granted permission to participate in this matter as a respondent pursuant to Rule 22(2) of the Rules of the Supreme Court of Canada is granted. The application for leave to appeal…is dismissed with costs to the respondent, the Attorney General of Canada.”

Family Law: Custody

K.Z. v. [Social Worker 1], ès quality as Director of Youth Protection of CIUSSS A, et al., 2021 QCCA 1746 (40002)
There is a publication ban in this case, a publication ban on the party, and certain information not available to the public, in the context of a trial re custody and other issues as to a child. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The motion for leave to intervene filed by Catherine Korah is dismissed. The application for leave to appeal…is dismissed.”

Family Law: High-Conflict Litigation

Jean Louis v. Jean Louis, 2021 BCCA 481 (40008)
The parties have been involved in ongoing, high‑conflict family law litigation including issues of the division of real and personal property. An order was rendered by the B.C.S.C. regarding family law issues along with a costs order. The appeals of these orders were dismissed except to the limited extent the Applicant’s excluded property claim for his RRSPs was slightly increased. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The miscellaneous motions are dismissed. The application for leave to appeal…is dismissed.”

Family Law: Jurisdiction

Li v. Li, 2021 ONCA 669 (39942)
The parties, Mr. and Ms. Li, met in China in 2003 and married there in 2012. A marital assets agreement, among others, was executed by the parties: it was witnessed by Chinese witnesses; drafted in the Chinese language; and valued assets in Chinese currency. Mr. Li is a Canadian citizen, and Ms. Li a Chinese citizen. Over the course of the marriage, Ms. Li spent most of her time in China, where she has a number corporate and real property interests. The only assets held in Canada were two Toronto homes held in Ms. Li’s name alone. In 2018, the parties obtained a divorce certificate in China, which Mr. Li now disputes. Mr. Li commenced an application seeking a declaration the Chinese divorce not be recognized or enforced in Ontario and a declaration Ontario has jurisdiction to determine the outstanding property and support issues between the parties. The motion judge found Ontario has jurisdiction, and it is the more appropriate forum to decide the issues between the parties. The Ont. C.A. found the motion judge erred in principle in her analysis on the issue of forum non conveniens. It stayed Mr. Li’s application, and allowed Ms. Li’s appeal. The court concluded China was clearly the more appropriate forum for resolving the parties’ property issues. “The application for leave to appeal…is dismissed with costs.”

Elections: Third Party Advertising

Rebel News Network Ltd. v. Election Commissioner of Alberta, 2021 ABCA 376 (40025)
Elections Alberta complained to the Election Commissioner that Rebel News Network Ltd. engaged in political advertising without registering as a third party advertiser as required by the Election Finances and Contributions Disclosure Act. The Election Commissioner investigated and issued a letter of reprimand. The Court of Queen’s Bench dismissed an application for J.R. The Alta. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Government Liability: Statutory Changes Re Security Guards

9100-3566 Québec Inc. (f.a.s. L’Académe de sécurité I.G.S.) v. Bureau de la sécurité privée, 2021 QCCA 1510 (39944)
In 2014, the Government of Québec amended the Regulation respecting the training required to obtain an agent’s licence to carry on private security activities to add ss. 2.1 and 2.6 regarding the recognition of training and training companies operating in the private security sector in Québec. The Respondent, the Bureau de la sécurité privée (Bureau), responsible for the application of the Regulation and its enabling legislation, the Private Security Act (Loi sur la sécurité privée, (LSP), obtained the responsibility for making recommendations to the Minister of Public Safety so the latter may recognize a training course or training companies. In order to avoid penalizing training companies, a transitional period of three years was granted so they could adjust to the requirements of the Regulation. In 2014, the Applicant, 9100‑3566 Québec inc. operating under the name of l’Académie de sécurité I.G.S. (Académie), specialized in the training of agents in the guarding sector, began the necessary steps to have its training recommended by the Bureau. While the analysis process was underway, the Bureau was informed several legal actions were taken against the Académie. Consequently, the Bureau decided to suspend any recommendation regarding the Académie’s training pending the outcome of the lawsuits, but the Académie was nevertheless allowed to benefit from the status quo during the transition period. However, because of changes made by the Académie to its training in March 2017, the Board issued three decisions with respect to it on October 24, 2017, January 17, 2018 and March 29, 2018. In its first two decisions, the Bureau concluded, after analysis, the training offered did not met the criteria set out in the Regulation. In its third decision, the Bureau refused to initiate an analysis of the revised and restructured training submitted by the Académie, citing the costs of the evaluation involved and, in relation to its mission to protect the public, raising concerns involving, notably, the integrity of the institution based on situations brought to its attention. In response, the Académie filed an application for J.R. seeking to have the decisions of the Bureau set aside as well as a legal action seeking damages for the loss of value of its business and for damage to its reputation. The Académie also sought an award of punitive damages. The Superior Court dismissed the application for J.R. in part and dismissed the action in damages. The Qué. C.A. dismissed the permission to appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Union Elections

Njoroge v. Canadian Union of Public Employees, Local 15, et al., 2021 BCCA 435 (40048)
The Applicant was an employee of the City of Vancouver, and was a member of CUPE Local 15 and of CUPE National itself. He filed a petition in the B.C.S.C. seeking the nullification of an election conducted by Local 15 in respect of a number of positions on its executive board. The Applicant also sought: an order a new election for those positions be held; an order the National union be directed to investigate and it place the Local union under administration in accordance with the union’s constitution; special costs; and costs. The Applicant’s requests were dismissed. The Applicant then sought to appeal that decision as of right by filing a notice of appeal. A chambers judge of the B.C.C.A. held the Applicant required leave to appeal and instead converted the notice of appeal into an application for leave to appeal. A review of that decision was then dismissed by a panel of the B.C.C.A. “The motion for a stay of execution is dismissed without costs. The application for leave to appeal…is dismissed with costs to the respondents.”

Mortgages: Transfers

Khan v. 1806700 Ontario Inc., et al., 2021 ONCA 724 (39947)
The underlying proceeding arises from an action commenced in 2012 by the Respondent, mortgagee, 1806700 Ontario Inc., for possession of a residential property. At the time the action was commenced, there were two mortgages on the property and 1806700 held the second mortgage. The mortgagors did not defend the action and 1806700 obtained default judgment and took possession of the property and sold it under power of sale. After the action was commenced but before the sale of the property, a third mortgage was registered on title. The Applicant, Mr. Khan, a lawyer, acted for both parties on the third mortgage. The third mortgage was transferred from the original mortgagee to Mr. Khan’s wife for a nominal sum, then was transferred to a company controlled by Mr. Khan, before eventually being assigned to Mr. Khan personally. Mr. Khan unsuccessfully sought to appeal several orders made in the context of this action. “The application for leave to appeal…is dismissed with costs. Jamal J. took no part in the judgment.”

Municipal Law: Expropriation

City of Winnipeg v. Madison Holdings Ltd., 2021 MBCA 94 (39978)
The City of Winnipeg expropriated land, and a car wash and rustproofing operation on the land, owned by Madison Holdings Ltd. The company acquired vacant land and constructed a larger car wash and rustproofing facility. The Land Value Appraisal Commission awarded Madison Holdings Ltd. $3,104,681.99. The Man. C.A. allowed an appeal by the City of Winnipeg in part and reduced the award by $532,363.70. “The application for leave to appeal…is dismissed with costs on a solicitor-client basis.”

Municipal Law: Pensions

Association des pompiers de Montréal inc., section locale 125 de l’I.A.F.F. v. Ville de Montréal, 2021 QCCA 1189 (39857)
On December 5, 2014, the Québec National Assembly passed the Act to foster the financial health and sustainability of municipal defined benefit pension plans, S.Q. 2014, c. 15 (“Act”). The purpose of the Act was to require municipal defined benefit pension plans be restructured to ensure their sustainability and improve their financial health. The Act put certain parameters in place to achieve that goal while leaving room for negotiations so the parties concerned could agree on the amendments to be made to the various pension plans, including that of the Applicant, the Association des pompiers de Montréal inc., Local 125 of the I.A.F.F. (“Association”). One of the consequences of the Act was a nearly 25% increase in the pension plan contributions payable by the Association’s members. The Association maintained the increase was a [translation] “reduction in the advantages enjoyed by [members]” within the meaning of art. 40.02 of their collective agreement with Ville de Montréal (“City”). In September 2015, the parties met to discuss the consequences of the passage of the Act. Because the City refused to consider the increase in employee pension plan contributions to be a reduction in advantages under art. 40.02, the Association filed a grievance with the arbitration tribunal. In May 2017, the parties agreed on the pension plan restructuring required by the Act and signed an agreement in principle on the matter. However, the question of employee contributions remained in issue. The parties therefore agreed an on expedited arbitration process to resolve that question. In January 2018, an arbitrator dismissed the grievance after determining the increase in employee contributions was not an advantage within the meaning of art. 40.02 of the collective agreement. He stated the employer contribution was a benefit for employees but not an advantage under the plan. The Association applied to the Superior Court for J.R. of that decision. The Superior Court dismissed the application for J.R., and a majority of the Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Municipal Law: Zoning; Cryptocurrencies

9382-9273 Québec inc., c.o.b. as Centre Équestre Équi-Folie inc., et al. v. Commission de protection du territoire agricole du Québec, 2021 QCCA 1480 (39924)
The Applicants, Centre Équestre Équi‑Folie inc. and Blockchain Data Centers inc., operated a computer complex dedicated to the mining of cryptocurrencies in a designated agricultural region of Québec. In such regions, zoning prohibited using a lot for a purpose other than agriculture without the authorization of the Commission de protection du territoire agricole du Québec. The Applicants did not seek said authorization, and were issued a notice of contravention by the Commission. They alleged their facilities, known as BlockchainDomes, are intended for agricultural use, in they provide heat for the greenhouses. The Commission did not agree with this submission, opining the production of heat is at most an ancillary activity is a general by‑product of cryptocurrency mining. The Commission accordingly ordered the Applicants to cease the use of their site for unintended purposes, and directed them to restore the premises to their original condition. The decision of the Commission was confirmed on contestation by the Applicants before the Administrative Tribunal of Québec, and the Court of Québec denied leave to appeal from the tribunal’s decision. The court found the proposed appeal was not based on coherent and legally defensible arguments, and did not raise new criteria or questions of principle. The Superior Court dismissed the Applicants’ application for J.R. It found that to determine whether the “issue at stake is one that should be submitted to the court” as a basis for granting leave to appeal, the Court of Québec must necessarily define the scope of the impugned judgment as well as determine whether it is affected by an obvious weakness, all of which was done in the circumstances. The Qué. C.A. denied leave to appeal to the Applicants. It determined the conclusions of the Court of Québec were based on reasoning that was both logical and rational and accordingly refused to intervene. “The application for leave to appeal…is dismissed.”

Municipal Law: Zoning; Local Opposition

Groupe immobilier Eddy Savoie Inc., et al. v. Service de rénovation R.S. inc., et al., 2021 QCCA 1062 (39846)
The Applicant Groupe immobilier Eddy Savoie Inc. (“Savoie”) purchased land in 2007 to build a seniors’ residence. The land in question was in a zone where only commercial uses were permitted, which meant an amendment to the zoning by‑law was required. The Respondent companies opposed Savoie’s project: Service de rénovations R.S. inc. and 9109‑4276 Québec inc. (collectively “R.S.”) were trying to protect their commercial development plans, while Société immobilière Sym inc. and Société de gestion Cogir, s.e.n.c. (collectively “Sym”) — which also operated a seniors’ residence near the intended site of Savoie’s project — wanted to avoid having a competitor in the immediate vicinity. Savoie alleged R.S. and Sym had committed faults in their attempts to prevent the residence project from being carried out, including in urging a referendum poll be held. The Superior Court declared the Respondents had wrongfully hatched a plan for the purpose of injuring Savoie, thereby committing a civil fault within the meaning of art. 1457 of the Civil Code of Québec. The Qué. C.A. allowed the Respondents’ appeals. It determined, in the trial court’s analysis of the evidence, that court had made palpable and overriding errors as well as errors of law with regard to public opposition during a referendum process. “The application for leave to appeal…is dismissed with costs to the respondents, Service de rénovations R.S inc. and 9109-4276 Québec inc.”

Pharmaceuticals: Filing Deadlines

Merck Canada Inc. v. Minister of Health, 2021 FCA 224 (40043)
The Applicant, Merck Canada Inc. (“Merck”), markets Keytruda, an innovative biologic drug approved for use in Canada for the treatment of certain advanced‑stage cancers. The 806 Patent for Keytruda was issued on May 12, 2020. In order to obtain certain advantages in the Regulations, Merck was required to submit its patent lists for inclusion on the patent register within 30 days of patent issuance. The Minister refused to accept Merck’s patent lists for filing because they were submitted after the expiry of the 30‑day deadline set out in s. 4(6) of the Patented Medicines (Notice of Compliance) Regulations. Merck applied for J.R. of that decision. Fed. Ct.: Applicant’s J.R. of Minister’s decision not to waive non-compliance with statutory time limit dismissed. Fed. C.A.: appeal dismissed. “The application for leave to appeal…is dismissed with costs.”

Pharmaceuticals: Natural Health Products

Canada RNA Biochemical Inc. v. Canada (Minister of Health), et al., 2021 FCA 213 (39994)
The Applicant sought a natural health product (NHP) licence for oral lumbrokinase capsules, branded Boluoke. The product had a single medicinal ingredient, lumbrokinase, which is an enzyme derived from earthworms. Lumbrokinase has “fibrinolytic” properties, which means it enhances the breakdown of blood clots or prevents them from forming. In its application, the Applicant emphasized Boluoke’s fibrinolytic properties and its ability to reduce blood viscosity and improve circulation. Health Canada rejected the application, in part finding the Applicant’s evidence was insufficient to support the safe use of this product in the target subpopulation. Health Canada’s notice of refusal emphasized the risk of internal bleeding could not be properly monitored in circumstances where the product was sold over‑the‑counter. The Applicant requested a reconsideration, which was unsuccessful. An application to the Fed. Court for J.R. was dismissed, as was an appeal to the Fed. C.A. “The application for leave to appeal…is dismissed with costs.”

Professions: Discipline

A Lawyer v. Law Society of British Columbia, 2021 BCCA 437 (40018)
The Law Society of British Columbia investigated the Applicant lawyer’s practice pursuant to an order issued under Rule 4‑55 of the Legal Profession Act. The Applicant challenged the scope of the investigation under s. 36 of the Legal Profession Act and the constitutionality of the related search of his firm’s files. The Applicant’s petition was dismissed. The Applicant’s appeal was dismissed. “The application for leave to appeal…is dismissed with costs.”

Professions: Discipline

Chijindu v. Law Society of Ontario, ONCA 2021 (40000)
The Applicant, Mr. Chijindu’s licence to practise law was revoked by the Respondent Law Society of Ontario after finding he had engaged in serious professional misconduct that brought discredit upon the profession. His licence was revoked and he was ordered to pay costs of $40K. Mr. Chijindu appealed the decision and the penalty. The Appeal Division of the Law Society dismissed the appeal. The Ontario Superior Court also dismissed the appeal. The motion for leave to appeal the decision to the Ont. C.A. was also dismissed. “The application for leave to appeal…is dismissed.”

Professions: Discipline

Mailloux v. Collège des médecins du Québec, 2021 QCCA 794 (39958)
The Applicant, a member of the Respondent Collège des médecins du Québec (“College”), alleged the College had committed several faults in connection with the disciplinary complaints laid against him in three cases. The College filed an application to dismiss the action brought by the Applicant. The Superior Court allowed the application and dismissed the Applicant’s action because of its abusive nature (clearly unfounded judicial application) under art. 51 of the Code of Civil Procedure. It held the Applicant’s action had no chance of success given the immunity enjoyed by the syndic of the College and given the fact bad faith was not alleged. The case was also prescribed, and the Applicant was not alleging any fact that would support a finding it had been impossible for him to act. The Qué. C.A. dismissed the motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Real Property: Acquisition by Prescription

Grenier v. Attorney General of Québec, 2021 QCCA 1597 (40016)
The Applicant, Mr. Grenier, owned land adjoining land owned by a farm. In 2017, the farm successfully applied for judicial acquisition of a right of ownership by 10‑year prescription in a lot adjacent to its land. Mr. Grenier opposed the application on the basis he was the sole owner of the lot. Subsequently, in 2021, Mr. Grenier sought authorization to bring an application for a declaratory judgment and for correction of title with respect to the lot. Authorization was required because Mr. Grenier had been declared to be a quarrelsome litigant in 2013. The Québec Superior Court dismissed Mr. Grenier’s application, finding a decision on the remedy sought by him had already been rendered in 2017. In other words, there was res judicata between Mr. Grenier and the farm with regard to the lot, and Mr. Grenier could not reopen the debate. The Qué. C.A. dismissed Mr. Grenier’s motion for leave to appeal because he had not shown his appeal had a chance of success and authorizing it would serve the ends of justice. “The application for leave to appeal…is dismissed with costs.”