Civil Litigation: Jurisdiction

Rieder zu Wallburg, et al. v. Plista Gmbh, et al., 2022 ONCA 281 (40228)
Applicant Ralph Peter Rieder zu Wallburg is the sole shareholder and president of the Applicant corporation ADMG Publishing Ltd., which operated a network of websites (together, “Rieder and ADMG”). Respondent Plista GMBH (“Plista”) was a German corporation in the online advertising business; the individual Respondents, Michel Gagnon, Stefanie Kohnert, and Stefan Klimek, are Plista employees working in Germany. ADMG entered into a contract to host Plista’s advertisements on its network of websites. Plista paid ADMG a monthly amount that varied depending on the number of times its advertisements were “clicked” by visitors. An essential term of the contract stipulated the jurisdiction for dealing with contractual matters was Germany. Plista made allegations of fraud — suggesting ADMG had fabricated the number of clicks on its advertisements — and terminated the contract. Rieder and ADMG brought an action before the Superior Court of Justice of Ontario alleging a variety of tortious conduct by the Respondents. Plista and the individual Respondents sought to have the claim dismissed for lack of jurisdiction, or stayed on the basis Ontario was not the appropriate forum. A motion judge dismissed the claim for lack of jurisdiction. In the alternative, the motion judge held Germany, and not Ontario, was the appropriate forum in which to conduct the litigation. The Ont. C.A. upheld the motion judge’s decision. “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: Settlement Disclosure

Poirier v. Logan, et al., 2022 ONCA 350 (40297)
Mr. Poirier commenced an action against several defendants. He entered into a settlement agreement with one of the defendants during discoveries. He did not disclose the settlement agreement to the other defendants until six months later. A motion judge stayed the proceedings because the settlement agreement had not been disclosed immediately. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs to the respondents Hilary Goldstein and Buchli Goldstein LLP.”

Civil Litigation: Surveillance Video

Sharma v. Sa Majesté le Roi du chef de l’Alberta, 2022 ABCA 113 (40237
Mr. Sharma commenced a claim in Provincial Court seeking compensation in the amount of $1500K for damage sustained to his car while in his work parking lot. The Respondent brought an application for summary dismissal, which the Provincial Court judge granted. The Provincial Court judge also dismissed Mr. Sharma’s application for disclosure of surveillance videos of the parking lot held by the Respondent. The Court of Queen’s Bench dismissed Mr. Sharma’s appeal from the Provincial Court. Mr. Sharma’s application for permission to appeal to the Alta. C.A. was denied. “The application for leave to appeal…is dismissed.”

Class Actions: Certification

Rieger, et al. v. Plains Midstream Canada ULC, 2022 ABCA 28 (40132)
A pipeline owned and operated by Plains Midstream Canada ULC released light sour crude oil into the Red Deer River. It migrated downstream to Gleniffer Lake, resulting in the temporary closure of the river and lake for recreational use. At the time of the spill, Suzanne and Darin Rieger jointly owned two lots located at (but did not abut) Gleniffer Lake, which they were attempting to sell. The Riegers alleged the real estate sale value they hoped to achieve was diminished because of the spill. They filed a Statement of Claim against Plains under the Class Proceedings Act, pleading six causes of action: negligence, strict liability, vicarious liability, nuisance, trespass, and breach of the Environmental Protection and Enhancement Act. The Court of Queen’s Bench of Alberta held the claim satisfied the criteria for certification set out by the CPA and ordered the certification of the class proceeding. The court noted while the Riegers would have to overcome the presumption of the rule for relational economic loss, the issue was an unsettled area of law and dismissal at the certification stage was not justified. The Alta. C.A. allowed the appeal and set aside the class action certification decision. The court noted while deference is owed in certification decisions, the recent judgment in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, which was not available to the chambers judge at the time of certification, clarified the law on sustainable claims for pure economic loss and led to the conclusion the Riegers’ class action should not have been certified. The Alta. C.A. held the claim did not disclose a valid cause of action, the class was too large and arbitrary to be certified, and a class action was not the preferable procedure. “The application for leave to appeal…is dismissed with costs.”

Corporate Law: Directors

Cliff v. Canada, 2022 FCA 16 (40165)
The Applicant’s husband directed his accountant to incorporate a company on his behalf. The accountant incorporated Cliff Crucibles Inc. under the Business Corporations Act. Mr. and Ms. Cliff were the shareholders of the corporation, and appointed themselves as the corporation’s directors effective May 18, 2001. From the outset, however, Ms. Cliff was adamant she was only willing to be a director on a temporary basis and on the day she signed documentation to become a director, she told Mr. Cliff she wanted to be removed as a director. Mr. Cliff asked the accountant to remove the Applicant as a director of the corporation. A “Form 1 — Initial Return/Notice of Change” was prepared by the accountant’s office. The document stated Ms. Cliff’s directorship started on September 4, 2003 and ceased on December 12, 2003. A copy was placed in the corporation’s minute book. The Form 1 was then submitted to the Ontario Ministry of Consumer and Commercial Relations. There was no explanation for the discrepancy between the date of Ms. Cliff’s appointment on Form 1 and the OBCA public registry which reflected the date of the resolution in the minute book. No written resignation was received by the corporation. Cliff Crucibles Inc. was dissolved in 2013, at which time it had outstanding tax liabilities under the Excise Tax Act (“ETA”) and the Income Tax Act (“ITA”). The Minister of National Revenue assessed Ms. Cliff and Mr. Cliff, as directors of Cliff Crucibles Inc., for unremitted net tax under the ETA and for the unremitted source deductions under the ITA of the corporation. For a director to be liable to be assessed under s. 227.1 of the ITA and s. 323 (1) of the ETA, the assessment had to have been made within two years after a director’s resignation. The Applicant filed notices of objection and subsequently notices of appeal to the Tax Court. The sole issue was whether the Applicant had resigned as a director of Cliff Crucibles Inc. in accordance with s. 121(2) of the OBCA more than two years prior to the date on which she was assessed. “The motion to join two Federal Court of Appeal file numbers under one application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Criminal Law: Crown Discreditable Conduct Evidence

R. v. J.W., 2022 ONCA 306 (40258)
There is a publication ban in case, and a publication ban on the party, in the context of admission of Crown discreditable evidence in a sexual offences trial. “The application for leave to appeal…is dismissed.”

Criminal Law: Homicide; Fresh Evidence

Johnson v. R., 2017 NSCA 64 (40326)
There is a publication ban in this case, in the context of the admissibility of fresh evidence. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The applicant’s request that the applicant’s case be remanded back to the Nova Scotia Court of Appeal pursuant to s. 43(1.1) of the Supreme Court Act is dismissed. The application for leave to appeal…is dismissed.”

Municipal Law: Zoning Changes

G.S.R. Capital Group Inc. v. White Rock (City), et al., 2022 BCCA 46 (40140)
The Respondent City issued the Applicant a development permit in respect of a proposed 12-storey residential building. Following a municipal election, however, the new city council downzoned the property, and the City thereafter refused to grant a building permit for the project. The Applicant brought J.R. proceedings to obtain relief that would allow it to proceed with construction of the planned building. On J.R., the B.C.S.C. dismissed the petition. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Pensions: Discrimination

Landau v. Canada (Attorney General), 2022 FCA 12 (40126)
The Applicant, Ms. Reva Landau, had been receiving a retirement pension under the Canada Pension Plan (the “Plan”) since 2014. She never married, nor been in a common law relationship. She expected she will never receive a survivor’s pension — an amount paid to people who were married or in a common law relationship with Plan contributors at the time of the contributor’s death — under the Plan, nor will she leave behind a partner who would be entitled such a pension. Ms. Landau brought an application before the Superior Court of Justice of Ontario to determine whether she is entitled to an enhanced benefit under the Plan because she has suffered discrimination under s. 15(1) of the Charter on the grounds of marital status. The court determined the appropriate procedure under the Plan was for Ms. Landau to apply to the Minister of Employment and Social Development for reconsideration of her pension amount, and to appeal to the Social Security Tribunal (SST) if necessary. The application was stayed. Ms. Landau applied for reconsideration; the Minister determined she was receiving the correct amount in pension benefits. Ms. Landau appealed to the SST. The General Division of the SST dismissed the appeal. The Appeal Division upheld the General Division’s decision. The Fed. C.A. dismissed Ms. Landau’s application for J.R. of the Appeal Division’s decision. “The application for leave to appeal…is dismissed with costs.”

Telecommunications: Traffic Stimulation Activities

Iristel inc. v. Telus Communications Inc., et al., 2022 FCA (40171)
In August 2018, the Respondent Telus Communications Inc. filed an application for relief with the CRTC regarding alleged traffic stimulation activities involving the 867 numbering plan area (867 NPA) telephone numbers of the Applicant, Iristel Inc., in Northwestel Inc.’s incumbent serving territory. In a prior decision rendered in 2017 (CRTC 2017-446) pursuant to an application filed by the Respondent Rogers Communications Canada Inc., the CRTC had found that Iristel had contravened s. 27(2) of the Telecommunications Act, S.C. 1983, c. 38 (Act), by participating in traffic stimulation activities involving 867 NPA telephone numbers. That practice, by which a telephone carrier inflates, or allows to be inflated, the volume or minutes of calls beyond an anticipated threshold, is a contravention of s. 27(2) where its effect is to give certain parties an undue preference and to subject others, including Canadian consumers, to an undue or unreasonable disadvantage. Further to its interim relief decision of November 23, 2018 (CRTC 2018-432), the CRTC found a review was needed to determine “(i) whether the traffic at issue is stimulated by Iristel and/or inappropriate, and (ii) given the apparent changes in traffic levels, whether Iristel’s current tariffed rate for long distance call termination in the North remains just and reasonable”. On August 14, 2020, the CRTC ruled on final relief under the application (CRTC 2020-268). It found Iristel had once again contravened s. 27(2) of the Act by allowing the use of 867 NPA telephone numbers by certain customers based in distant locations and by granting itself an undue advantage to the detriment of other carriers, whose connection costs had increased while revenue had been generated for Iristel through long-distance call termination charges. The CRTC also found the tariffed interexchange termination rate was no longer just and reasonable under s. 27(1) of the Act because it overcompensated Iristel and provided an incentive for the stimulation of traffic to 867 NPA telephone numbers. The CRTC replaced Iristel’s tariffed termination rate with an interim rate that was to become final 90 days from the issuance of the decision — retroactive to the day on which the rate was made interim — unless Iristel filed a tariff notice supported by a Phase II cost study proposing an alternate rate by November 16, 2020. At the time of releasing that decision, the CRTC also published a notice of consultation (CRTC 2020-269) in order to determine, once the applications were assessed, whether it was appropriate to impose administrative monetary penalties, including on Iristel. On September 2, 2020, Iristel filed an application with the CRTC to review and vary Telecom Decision 2020‑268 and Telecom Notice of Consultation 2020‑269. The CRTC denied the application, and the Fed. C.A. dismissed the motion for leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Telus Communications Inc. and Rogers Communications Canada Inc.”

Torts: Fraudulent Misrepresentation; Breach of Fiduciary Duty

Garcia, et al. v. Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional, 2020 ONCA 124 (40273)
The individual Applicants, Eduardo Garcia and Patricia Garcia (together, the “Garcias”), immigrated to Canada from Guatemala in 2002. The corporate Applicants were incorporated by the Garcias between 2005 and 2009 (together, the “Garcia corporations”). The Respondent Caja Paraguaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional (“Cajubi”) is a Paraguayan pension fund. Cajubi invested over $34M in investment products purported to be advanced by legitimate regulated Canadian institutions, but which were in fact the Garcia corporations, which had been designed to mimic the legitimate institutions. The Garcia corporations invested about 90% of Cajubi’s money with the legitimate Canadian institutions and took 10% in the form of an “up-front fee” which was neither disclosed nor invoiced. Some of the up-front fee was retained, but the bulk was paid as kickbacks to the Swiss bank account of a Panamanian nominee company at the direction of three Cajubi “insiders” — its president, vice president, and treasurer — who facilitated the investments. When losses related to this scheme became apparent, the insiders were removed from office. Cajubi’s new management brought an action against a number of parties, including the Garcias and the Garcia corporations, in an attempt to recover its money. Following a trial, the Garcias were ordered to pay over $20M in damages for fraudulent misrepresentation and breach of fiduciary duty; each of the Garcia corporations were held to be jointly and severally liable with the Garcias for specified amounts of those damages. Eduardo and Patricia Garcia were also ordered to pay punitive damages in the amounts of $250K and $100K respectively. The Garcias and the Garcia corporations appealed from the trial judgment; their appeal was dismissed by the Ont. C.A. “The application for leave to appeal of Eduardo Garcia Obregon a.k.a. Eduardo Garcia a.k.a. Eddie Obregon and Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a. Claudia Patricia De Garcia a.k.a. Claudia Santisteban…is dismissed with costs. The motion, by Eduardo Garcia and Patricia Garcia, to represent Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094), Genesis (LA), Corp. (Alberta Corporate Access Number 2013145921), FC Int, Corp. and First Canadian Int, Corp. is dismissed. In any event, had the motion to represent been granted, the application for leave to appeal of Managed (Portfolio), Corp., Genesis (LA), Corp. (Ontario Corporation Number 1653094), Genesis (LA), Corp. (Alberta Corporate Access Number 2013145921), FC Int, Corp. and First Canadian Int, Corp. would have been dismissed.”

Torts: Medmal

Samra, et al. v. Cheung, et al., 2022 ONCA 195 (40179)
Rhonda Hong-Ching Cheung survived a difficult birth. She had been diagnosed at the 35th week of pregnancy with intrauterine growth restriction, a condition that puts babies at risk of serious complications. She suffered a seizure at two and a half months old and serious disabilities became evident. A jury concluded the Applicant physicians failed to meet the standard of care required of doctors looking after pregnant patients and this failure caused Rhonda’s disabilities. Although the trial judge concluded there was evidence capable of supporting the jury’s conclusions, she refused to enter judgment in accordance with the verdict on the ground the jury provided insufficient particulars of causation and failed to explain the physiological mechanism of the injury. The trial judge ordered the action to proceed to a new trial. The Divisional Court upheld the trial judge’s decision. The Ont. C.A. allowed the appeal from that decision and granted judgment to the Respondents. “The application for leave to appeal…is dismissed.”

Wills & Estates: Notices of Family Claim

Weaver v. Weaver Estate, 2022 BCCA 79 (40170)
The Applicant was married to Ms. Weaver in 1993. They separated in 2015, but did not divorce or otherwise enter into any agreements or commence any proceedings with respect to a division of family property and family debt. Ms. Weaver died on July 25, 2020. On November 19, 2020, the administrator of Ms. Weaver’s estate, Mr. Miller, filed a notice of family claim, seeking an order for an equal division of family property and family debt under the FLA.  He claimed an interest in three properties located in British Columbia, Washington State and Hawaii jointly held by the spouses. The Applicant applied to strike, dismiss or stay the notice of family claim, on the basis the court did not have jurisdiction and because Ms. Weaver was deceased at the time the claim was brought. “The application for leave to appeal…is dismissed with costs.”