Civil Litigation: Public Interest Standing

Alberta Union of Public Employees, et al. v Her Majesty the Queen (Alberta), 2021 ABCA 416 (40076)
The Alberta Union of Public Employees and some of its officers filed a statement of claim challenging the constitutionality of Alberta’s Critical Infrastructure Defence Act. The Crown applied to have the claim struck on the basis it was an abuse of process because the union and its officers do not have standing to bring the claim and the pleadings do not disclose a reasonable claim. A chambers judge dismissed the application. The Alta. C.A. allowed an appeal and struck the claim. “The application for leave to appeal…is dismissed.”

Commercial Law: Fiduciary Duty

Varma, et al. v. Extreme Venture Partners Fund I LP, et al., 2021 ONCA 853 (40079)
The Respondent Extreme Venture Partners Fund I LP (Fund I), was a venture capital fund registered as a limited partnership, and was established in November 2007 to provide seed capital to start-up technology companies. The Respondent EVP GP Inc. (EVP GP) was incorporated as the general partner of Fund I and as such was responsible for managing its business. Share capital of EVP GP were personally owned by Messrs. Sharma, Bashir and Teslia as well as by the Applicants Varma Holdco and Madra Holdco, two holding companies respectively owned by Mr. Varma and Mr. Madra. Messrs. Sharma, Bashir, Teslia, Varma and Madra were members of the board of directors of EVP GP. Messrs. Varma and Madra were also serving as managing directors of EVP GP. In December 2011, Messrs. Varma and Madra registered another fund, the Respondent Extreme Venture Partners Annex Fund I (Annex Fund I) without telling Messrs. Sharma, Bashir and Teslia. Annex Fund I obtained $5M in financing from Northleaf Capital Partners in exchange, apparently, for confidential information about Fund I’s portfolio and investment strategy. Consequently, Annex Fund I invested in six of the most successful portfolio companies of Fund I before it closed down in 2013. Among the investments of Fund I was Xtreme Labs, a mobile software development lab business co-founded by Messrs. Madra and Varma, who were also its managing directors and co-CEOs. In March 2012, Messrs. Madra, Varma and Palihapitiya met to prepare an offer by Mr. Palihapitiya for the purchase of Xtreme Labs without informing the other members of the board of directors of Fund I of their involvement in the preparation of the offer. The offer was submitted to the rest of the board of Fund I, the Respondents, Messrs. Sharma, Bashir and Teslia, Fund I and EVP GP, who eventually agreed to sell their shares in Xtreme Labs to Mr. Palihapitiya’s holding company, the Applicant El Investco I Inc. for US$18M. Mr. Palihapitiya negotiated the selling of Xtreme Labs to Go Pivotal Inc. for US$60M. However, some assets were carved out of Xtreme Labs by Messrs. Varma, Madra and Palihapitiya prior to the sale and transferred to another holding company of which they were the sole shareholders. Among the assets carved out was a 13% equity interest in Hatch Labs, which developed the mobile dating application Tinder. The stake in Hatch Labs was sold to a large American corporation for US$30M in March 2014. As a result, the Respondents filed two claims against the Applicants. The first claim alleged Messrs. Varma and Madra surreptitiously established and operated Annex Fund 1 in breach of their fiduciary and contractual duties. The second claim alleged Messrs. Varma and Madra misrepresented the financial status of Xtreme Labs and concealed material information from the Respondents and Mr. Palihapitiya as well as Messrs. Varma and Madra conspired with one another to cause the Respondents to sell their shares of Xtreme Labs at a discounted price and realized the true value of the company for themselves within the next 18 months. The Superior Court of Justice allowed both claims. The Ont. C.A. dismissed the appeals filed by the Applicants and allowed the cross-appeal by the Respondents. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Appeals

Littlejohn v. R., 2020 ABCA 151 (40235)
A domestic conflict between Mr. Littlejohn and Ms. Rose culminated in a house fire that destroyed Ms. Rose’s house. Mr. Littlejohn was charged with multiple offences including arson. During trial, defence counsel failed to appear and Mr. Littlejohn had to retain alternate counsel. The trial judge dismissed an application for an order declaring a mistrial and convicted Mr. Littlejohn of arson and breach of probation. The Alta. C.A. dismissed an 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.”

Criminal Law: Necessaries of Life

Stephan v. R., 2021 ABCA 82 (39666)
On March 13, 2012, the 18-month-old son of the Applicant Collet Dawn Stephan stopped breathing and was transported to the hospital. He had been sick for about two weeks, during which his parents treated him with herbal and naturopathic supplements. The child’s health could not be restored, and he died five days later when the life-support was removed. On May 15, 2018, this Court quashed the Applicant’s conviction for failure to provide the necessaries of life entered by a jury and confirmed by a majority of the Alta. C.A., and ordered a new trial. On the retrial, a judge of the Court of Queen’s Bench sitting without a jury acquitted the Applicant of failure to provide the necessaries of life. The Alta. C.A. allowed the Crown appeal, set aside the verdict of acquittal and ordered a new trial. In the court’s view, the trial judge’s comments relating to an expert witness would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to conclude the trial judge did not assess this expert’s evidence fairly, which may have coloured his assessment of the evidence, rendering the trial unfair. The court also concluded the trial judge misapprehended the elements of the offence: the Crown is not required to prove, as an element of the offence under s. 215(2)(a)(ii), that the child’s life would have been saved with medical treatment. “The application for leave to appeal…is dismissed. Martin J. took no part in the judgment.”

Criminal Law: Necessaries of Life

Stephan v. R., 2021 ABCA 82 (39667)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed. Martin J. took no part in the judgment.”

Criminal Law: Publication Bans

R.R. v. Her Majesty the Queen in Right of Newfoundland and Labrador, et al., 2022 NLSC 46 (40110)
There is a publication ban in this case, in the context of whether court is justified in departing from general practice regarding anonymizing accused person’s names in matters involving sexual offences. “The application for leave to appeal…is dismissed.”

Property Law: Rule Against Perpetuities

Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847 (40036)
A covenant in agreements between a land developer and a city obliges the owner of lands to operate a golf course in perpetuity and stipulated if the owner desires to discontinue operation of a golf course and can find no other operator, it shall offer to convey the lands to the city at no cost. A golf course had been operated for more than 21 years. The Superior Court of Justice declared the covenant enforceable. The Ont. C.A. held the covenant violated the rule against perpetuities and is unenforceable. “The application for leave to appeal and the conditional application for leave to cross-appeal…are dismissed with costs to the respondent, ClubLink Corporation ULC.”

Torts: Expropriation

Yukon (Energy, Mines and Resources), et al., v. Northern Cross (Yukon) Ltd., 2021 YKCA 6 (40053)
An oil and gas exploration company claimed it was issued permits from the Government of Yukon to explore for oil and gas resources, the Government of Yukon knew it intended to explore for resources extractable by hydraulic fracturing, it discovered 8.6B billion barrels of oil that can only be extracted using hydraulic fracturing, but the Government of the Yukon subsequently issued a moratorium on the use of hydraulic fracturing in the lands subject to the permits. The company filed a statement of claim raising various causes of action including a claim in nuisance and a claim of de facto expropriation. The defendants brought a motion to strike claims for disclosing no reasonable causes of action. The motion judge and the YK C.A. in part refused to strike the claim in nuisance and the claim of de facto expropriation. “The application for leave to appeal…is dismissed with costs.”

Wills & Estates: Intestacy

Mother 1 v. Solus Trust Company Limited, et al., 2021 BCCA 461 (40054)
There is a publication ban in this case, in the context of an intestacy of an unmarried man with five children from five different women. “The application for leave to appeal…is dismissed with costs to Child 1, Child 3, Child 4 and Child 5.”