Granted
Aboriginal Law: Treaty Rights
Jim Shot Both Sides, et al. v. Canada, 2022 FCA 20 (40153)
On September 22, 1877, the Blackfoot Confederacy and the Crown executed Treaty 7, which established Reserve No. 148, the largest reserve in Canada. It is the home of the Kainai, or Blood Tribe. Under the Treaty, the size of the reserve was to be established through a formula promising “one square mile for each family of five persons, or in that proportion for larger and smaller families”. The Blood Tribe has long claimed the actual size of its reserve did not accord with that promised by the Treaty and, in 1980, commenced an action in the Fed. Court. For decades the action sat in abeyance. In 2016, the court held phase I of the trial of the action, for the purpose of receiving oral history evidence from aging members of the Blood Tribe. Phase II commenced in 2018 to hear fact and expert witness evidence, and to make a determination on liability. Following phase II, the trial judge found the Blood Tribe’s claims were discoverable more than six years before the action was commenced in 1980 and, with the exception of a claim for breach of treaty, were therefore time-barred through the operation of The Limitation of Actions Act and s. 39 of the Federal Courts Act. The trial judge held an action for breach of a treaty commitment could not be pursued in a Canadian court prior to the advent of s. 35 of the Constitution Act, 1982. Therefore, for the purposes of the limitations statute, time for a breach of treaty claim only began to run in 1982. The trial judge found Canada was in breach of its treaty commitment, and the size of the Reserve was understated by 162.5 square miles. The Crown appealed. The Fed. C.A. allowed the appeal and varied the Fed. Court’s judgment to state all claims of the Blood Tribe were time-barred. “The application for leave to appeal…is granted with costs in the cause.”
Charter/Military Law: Independent and Impartial Tribunal
Edwards v. R.; Crépeau v. R.; Fontaine v. R.; Iredale v. R., 2021 CACM 2 (39820)
There is a publication ban in this case, in the context of right to be tried by an independent and impartial tribunal. “The application for leave to appeal…is granted.”
Charter/Military Law: Independent and Impartial Tribunal
B. v. R., 2022 CMAC 2 (40065)
Summary similar to that above. “The application for leave to appeal…is granted.”
Charter/Military Law: Independent and Impartial Tribunal
Christmas v. R., 2022 CACM 1 (40046)
Summary similar to that above. “The motions for an extension of time to serve and file the application for leave to appeal and the response are granted. The application for leave to appeal…is granted.”
Charter/Military Law: Independent and Impartial Tribunal
Proulx v. R.; Cloutier v. R., 2021 CACM 3 (39822)
Summary similar to that above. “The application for leave to appeal…is granted.”
Charter/Military Law: Independent and Impartial Tribunal
T. v. R., 2022 CACM 3 (40103)
Summary similar to that above. “The application for leave to appeal…is granted.”
Criminal Law: Sexual Assault
R. v. T., 2022 BCCA 345 (40447)
There is a publication ban in this case, in the context of sexual assault. “The motion to expedite the application for leave to appeal is granted. The application for leave to appeal…is granted. The hearing of the appeal will be expedited and will be heard with His Majesty the King v. Christopher James Kruk (40095). The schedule for serving and filing the appeal documents will be set by the Registrar.”
Real Property/Sale of Goods: Sale by Description
Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2022 ONCA 265 (40197)
Pine Valley Enterprises Inc. (“PVE”) contracted with Earthco Soil Mixtures Inc. (“Earthco”) for the supply of topsoil for use in a project. After reviewing dated test results for “R Topsoil,” it placed an order for 3,678 cubic yards of “Screened topsoil with extra Organics added.” The contract included exclusion provisions that allowed PVE to test the soil prior to shipment, and if PVE waives its right to testing, Earthco is not responsible for the “quality” of the material. PVE waived its right to test the soil. After delivery, testing revealed the topsoil significantly differed from the earlier test results. PVE was forced to remove the topsoil and then sought compensation from Earthco, which in turn disclaimed responsibility because PVE had waived its right to test the soil before shipment. PVE brought an action against Earthco for damages. The trial judge found the contract was for a “sale by description” within the meaning of the Sale of Goods Act. He held the topsoil delivered did not correspond to the description in the contract, contrary to s. 14 of the Sale of Goods Act. The trial judge also found the parties had expressly agreed to absolve Earthco of liability for variations in soil composition that amount of discrepancies in the description of the goods, as permitted by s. 53 of the SGA. Therefore, he dismissed PVE’s action. The Ont. C.A. agreed with the trial judge the contract was for a “sale by description” and there was a discrepancy between the description of the goods in the contract and the goods delivered. The C.A. held the trial judge erred in using the factual matrix of the contract to determine that the exclusion clauses ousted s. 14 of the Sale of Goods Act. The Ont. C.A. unanimously allowed PVE’s appeal. “The application for leave to appeal…is granted with costs in the cause.”
Dismissed
Charter: Right to Liberty; Search and Seizure
Lemieux v. S.I.M., 2022 QCCA 1121 (40333)
In September 2015, representatives of the Respondent, S.I.M. (Suivi intensif dans le milieu (Assertive Community Treatment)), a Québec government program that provided services and care to adults requiring special attention, inspected the contents of the refrigerator and freezer of the Applicant, Georges Lemieux, for the purpose of throwing out any food considered inedible (that is, whose expiry date had passed). In 2018, Mr. Lemieux applied for the return of any food seized and thrown out or for a reimbursement: raising issues of right to liberty, and search and seizure. . In June 2019, the Court of Québec (Small Claims Division) dismissed his application. In January 2021, the Québec Superior Court dismissed Mr. Lemieux’s application for an indefinite stay of the Small Claims Division’s decision and his application for J.R. In June 2022, the Qué. C.A. dismissed Mr. Lemieux’s application for leave to appeal from the Superior Court’s decision. “The application for leave to appeal…is dismissed.”
Criminal Law: Extradition
H. v. Attorney General of Canada on behalf of the United States of America, 2022 BCCA 272 (40296)
There is a publication ban in this case, in the context of extradition. “The application for leave to appeal…is dismissed.”
Criminal Law: “High Risk” NCR
Lafrenière v. R., 2022 QCCA 96 (40107)
In 2018, following an argument with the victim, the Applicant reacted very angrily and struck the victim in the head many times with multiple heavy objects. The Applicant was found not criminally responsible on account of mental disorder for second degree murder. The Crown later applied for a finding the Applicant was a “high-risk accused” under s. 672.64 of the Criminal Code. In March 2021, the Québec Superior Court found the Applicant to be a “high-risk accused” under s. 672.64(1)(b), which states a person who has been found not criminally responsible on account of mental disorder may be designated “high-risk” if the court is of the opinion “that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person”. The Qué. C.A. unanimously dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed. Wagner C.J. took no part in the judgment.”
Criminal Law: Historical Sexual Assault
B.E.M. v. R., 2022 ABCA 207 (40221)
There is a publication ban in this case, in the context of alleged historical sexual assault. “The application for leave to appeal…is dismissed.”
Criminal Law: Homicide
Johnson v. R., 2022 ONCA 534 (40330)
The Applicant and two brothers were friends and planned a robbery. The two brothers were shot and died. The Applicant was charged with their deaths. The application judge held H.’s statement to the police was inadmissible. The jury found the Applicant guilty of two counts of first degree murder. The conviction appeal was dismissed. “The application for leave to appeal…is dismissed.”
Criminal Law: Search Warrants
Donaldson v. R., 2022 ONCA 415 (40329)
The police received information Sam Donaldson (“Donaldson”), threatened the complainant by telling her he was going to attend at her place of employment and “shoot [her] in the head” and “shoot up” her house. The complainant told the police Donaldson had firearms, and he lived at two different addresses: 11 Brunel Court and 193 Beverley Street, both in Toronto. On the strength of this information, the police applied for and obtained judicial authorization to search both places. Upon their search of the Brunel Court residence, police officers located a handgun with an overcapacity magazine and ammunition, mail addressed to Donaldson, 3.27 grams of fentanyl and $7,960. Donaldson applied in the Superior Court of Justice to have all evidence seized from 11 Brunel Court excluded pursuant to s. 24(2) of the Charter on the basis his rights protected by s. 8 of the Charter had been violated. The trial judge agreed, and excluded the evidence seized. Donaldson was acquitted. On appeal by the Crown, the Ont. C.A. overturned Donaldson’s acquittals, and ordered a new trial. “The application for leave to appeal…is dismissed.”
Criminal Law: Sexual Assault
D. v. R., 2019 ABCA 434 (40367)
There is a publication ban in this case, in the context of sexual assault. “The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”
Elections: Constitutionality; Stays of Proceedings
Chief Electoral Officer of Québec v. Péladeau, et al., 2022 QCCA 1202 (40435)
In 2018, the Respondent Pierre Karl Péladeau was served by the Applicant, the Chief Electoral Officer of Québec (CEOQ), with a statement of offence based on s. 564.2 of the Election Act. According to the CEOQ, Mr. Péladeau had not paid the balance of a debt incurred for his political party leadership campaign out of amounts of money collected under the Election Act. In the penal proceedings in the Court of Québec, Mr. Péladeau raised, in defence, the issue of the constitutionality of s. 127.15 para. 4 of the Election Act and asked it be declared to be of no force or effect. Because the alleged offence might also result in the government being prohibited from contracting with the legal persons of which Mr. Péladeau was the majority shareholder, Mr. Péladeau, together with Québecor Media Inc., filed an application for J.R. with the Superior Court in order to obtain a declaration of unconstitutionality with respect to s. 127.15 para. 4 of the Election Act and Schedule I of the Act respecting contracting by public bodies. Mr. Péladeau also applied under art. 186.1 of the Code of Penal Procedure for a stay of proceedings in the Court of Québec until the Superior Court determined the constitutionality of s. 127.15 para. 4 and Schedule I of the ACPB. The Court of Québec allowed Mr. Péladeau’s application for a stay of proceedings. The Superior Court dismissed the application for J.R. filed by the CEOQ. The Qué. C.A. dismissed the CEOQ’s motion for leave to appeal. “The motion for further directions and to expedite the application for leave to appeal is granted. The motion for intervention filed by Ville de Laval is dismissed. The application for leave to appeal…is dismissed without costs. Côté J. took no part in the judgment.”
Employment Law: Dismissal
Chen, et al. v. Workplace Safety and Insurance Appeals Tribunal, et al., 2021 ONSC 7625 (40210)
Before the Workplace Safety and Insurance Appeals Tribunal, the Applicants, Xiaoli Chen and Yexing Xie, brought an application under s. 31 Workplace Safety and Insurance Act, 1997 (“WSIA”), in which they sought a declaration their right to sue the Respondents Teva Canada Limited and Hakim Cako in the Ontario Superior Court of Justice was not taken away by operation of s. 28 WSIA. The Tribunal denied the application, concluding the Applicants were statute‑barred under s. 28 of the WSIA from proceeding with their action. The Ontario Superior Court of Justice, Divisional Court, dismissed the Applicants’ application for J.R. and the Ont. C.A. dismissed the Applicants’ motion for leave to appeal from that decision. “The application for leave to appeal…is dismissed with costs to the respondents Teva Canada Limited and Hakim Cako.”
Employment Law: Dismissal
Ashraf v. Jazz Aviation, 2022 FCA 13 (40247)
Mr. Ashraf was dismissed from his employment as a flight attendant. His union filed a grievance but withdrew the grievance. Mr. Ashraf commenced an action in Fed. Court claiming in part wrongful dismissal, discrimination, breaches of the Charter, and breaches of a duty of care and a fiduciary duty. The statement of claim asked to certify a class action. The Fed. Court granted a motion to strike the action. The Fed. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”
Professions: Discipline
Walia v. College of Veterinarians of Ontario, 2022 ONCA (40272)
The Applicant was found guilty of professional misconduct by the Respondent, College of Veterinarians of Ontario and suspended from practice for 3 months, ordered to take various forms of remediation and to pay costs of $135K. The Applicant’s appeal to the Divisional Court challenging both the finding of misconduct and the penalty was dismissed. Leave to appeal that decision was sought but dismissed by the Ont. C.A. “The application for leave to appeal…is dismissed with costs.”
Professions: Physicians Educated Outside Canada
Maroofi v. Health Professions Review Board, 2021 BCCA 111 (40422)
The Applicant, Ali Maroofi, was educated as a medical doctor outside Canada, and sought registration as a physician in British Columbia. In January 2016, the College of Physicians and Surgeons of British Columbia (the “College”) approved, with conditions, Mr. Maroofi for registration in a trainee class; but in July 2016, it refused his application for provisional registration. In October 2016, the Respondent, the Health Professions Review Board of British Columbia (the “Review Board” of the College), confirmed both decisions. Mr. Maroofi applied to the Review Board to reopen its confirmation decision. In April 2020, the Review Board concluded it lacked jurisdiction over the reopening application; it also declined to extend the time for Mr. Maroofi to file his application for reopening the Review Board’s October 2016 decision, and granted the College’s application for summary dismissal of the claim. Mr. Maroofi then applied for J.R. of the Review Board’s April 2020 decision. An application judge at the B.C.S.C. dismissed Mr. Maroofi’s petition for J.R.; the B.C.C.A. unanimously upheld that decision and dismissed Mr. Maroofi’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.”
Real Property: Specific Performance; Tort of Conspiracy
Baring, et al. v. Grewal, et al., 2022 BCCA 42 (40173)
The Applicants, Malkiat Singh Baring and Satwant Kaur Baring (“Barings”), purchased a blueberry farm owned by the Respondents, Harminder Singh Grewal and Zora Singh Grewal (“Grewals”). The sale took place under court supervision in a foreclosure proceeding. Almost immediately after the sale was completed, the Barings discovered someone had sprayed herbicide over the fields, with the result the year’s blueberry crop had been destroyed and most of the blueberry bushes had been damaged. The Barings initially brought an action against various defendants including the Grewals. The trial judge found the Grewals were responsible for spraying the blueberry plants and the Barings were entitled to an abatement in the price they had paid for the farm. He further determined, if he was in error as to the Barings’ entitlement to a price abatement, they were entitled to recover damages under the tort of conspiracy. He also awarded the Barings $150K in punitive damages. The B.C.C.A. allowed the Grewals’ appeal in part. It concluded the trial judge erred in finding the remedy of specific performance with an abatement in the purchase price was available to the Barings after the transaction closed. Accordingly, it set aside the award for abatement of purchase price but awarded the Barings the same amount in damages under the tort of conspiracy. All remaining grounds of appeal were dismissed. “The application for leave to appeal…is dismissed with costs to the respondent, Zora Singh Grewal.”
Tax: Charities
Human Concern International v. R., 2022 CAF 41 (40186)
Human Concern Inc. (“HCI”) is registered as a charitable organization under the ITA. Following an audit, the Canada Revenue Agency (“CRA”) sent a letter to HCI, in which it proposed to revoke HCI’s registration and invited it to make submissions. The CRA did not revoke the registration but decided to impose a monetary penalty, the magnitude of which triggered an automatic suspension of HCI’s receipting privileges for a period one year, effective almost immediately. The CRA found HCI was involved in making false charitable tax receipts in the third-party scheme. HCI filed a notice of objection to the penalties imposed and also applied to the Tax Court of Canada for a postponement of the suspension pursuant to s. 188.2(4) of the ITA. The Tax Court considered whether it was just and equitable to postpone the suspension and applied the principles set out in RJR-Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311. The Tax Court dismissed the application. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”
Tax: Private Law Duty of Care by CRA
Jayco Inc. v. Canada (Revenue Agency), 2022 ONCA 277 (40202)
The Applicant, an American manufacturer of recreational vehicles and vehicle parts in the U.S., was assessed almost $14M in taxes owed by the Canada Revenue Agency (“CRA”), for failing to collect and remit GST/HST amounts from its Canadian buyers and dealers. During its appeal of the assessment, the Applicant was required to obtain a letter of credit to secure the assessed amount, pending the outcome of its appeal. Although the Applicant was successful on appeal before the Tax Court of Canada, and the assessed taxes were set aside, the additional expenses the Applicant incurred (interest charges for extending the letter of credit, and consulting fees) were not recoverable as costs in the Tax Court proceeding. The Applicant then brought a lawsuit against the Canadian government in negligence and in indemnification for those expenses. The Ontario Superior Court of Justice granted the government’s motion for an order striking out the Applicant’s statement of claim and dismissing its lawsuit, holding CRA did not owe a private law duty of care to taxpayers or GST registrants like the Applicant. The Ont. C.A. unanimously dismissed the Applicant’s appeal from that decision. “The application for leave to appeal…is dismissed with costs.”
Tax: Residency
Nagel v. Canada, 2022 FCA 51 (40259)
Ms. Nagel filed her 2013 federal income tax return, using the Saskatchewan income tax forms with her federal return. Her notice of assessment for 2013 accepted she was a resident of Saskatchewan and indicated no tax was payable — a “nil assessment.” Ms. Nagel filed a notice of objection because she disagreed with some of the statements in the notice of assessment. Ms. Nagel received a second notice of assessment for 2013, again indicating no tax was payable, but changed her province of residence to Nova Scotia. Ms. Nagel commenced her action against the Minister, objecting to, inter alia, the classification of her residence as Nova Scotia and not Saskatchewan. Ms. Nagel’s application for an extension of time was dismissed and her appeal for the 2013 taxation year was quashed. Her appeal from that decision was dismissed. “The application for leave to appeal…is dismissed with costs.”