Airlines: Fare Identification

Lukács v. Swoop Inc., et al., 2022 FCA 71 (40271)
Sections 55 and 67(1)(b) of the Canada Transportation Act required domestic carriers such as the Respondent, Swoop Inc., to identify a “basic fare” within its tariff to its customers, on all of the routes it offered. The Canadian Transportation Agency (“CTA”) is empowered under s. 80 of the Act to grant exemptions from this requirement where compliance by the person may be “unnecessary, undesirable or impractical.” The CTA granted Swoop Inc. permanent exemption from the basic fare requirement, pursuant to s. 80(1)(c) of the Act. The Applicant appealed from the CTA’s granting of the exemption, as a public interest litigant. The Fed. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Motions to Strike

Tewari v. Sachdeva, Miller Thompson LLP, 2021 ONCA (40432)
The Applicant, Gaurav Tewari, was dismissed by his employer — a company for whom the Respondent Miller Thomson acted as legal counsel; the other Respondent, Bobby H. Sachdeva, was a partner at Miller Thomson. As part of his legal proceedings for wrongful dismissal against his former employer, Mr. Tewari commenced an action against the collective Respondents, who acted as legal counsel for the former employer. The Respondents brought a motion to strike out Mr. Tewari’s statement of claim, for failure to disclose a reasonable cause of action, pursuant to r. 21.01(1)(b) of Ontario’s Rules of Civil Procedure. The motion judge, Cameron J. of the Ontario Superior Court of Justice, granted the Respondents’ motion to strike Mr. Tewari’s Statement of Claim. The Statement of Claim was struck out, without leave to amend it. The Ont. C.A. unanimously dismissed Mr. Tewari’s appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation/Professions: Motions to Strike

Parhar v. Weaver, 2022 BCCA 134 (40279)
The Applicant, Karunbir Parhar, brought an action in negligence, on the basis of failure to obtain informed consent, against the Respondent dentist, Dr. Weaver, in which he claimed the Respondent dentist failed to disclose the material risk of chronic nerve pain associated with a root canal procedure. He also claimed this was a breach of contract. The trial judge in the B.C.S.C. dismissed the action in its entirety. The B.C.C.A. unanimously 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…is dismissed with costs.”

Condos: Fines

Wang v. The Owners, Strata Plan LMS2970, 2021 BCCA 416 (40430)
Ms. Wang filed a dispute notice with the Civil Resolution Tribunal to contest a fine issued by her Strata Corporation. The Civil Resolution Tribunal granted the Strata Corporation an extension of time to file its response and leave to be represented by counsel. Ms. Wang objected to both decisions, repeatedly applied for a default decision, and did not pay a fee required to move to the hearing stage. The Civil Resolution Tribunal decided not to hear the dispute. The B.C.S.C. dismissed an application for leave to appeal. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Historic Sexual Assault

R. v. W.D.M., 2022 SKCA 64 (40345)
There is a publication ban in this case, in the context of alleged historic sexual assault. “The application for leave to appeal…is dismissed.”

Criminal Law: Homicide

R. v. G., 2022 NSCA 53 (40379)
There is a publication ban in this case, in the context of various evidentiary matters re two counts of first degree murder, including party liability and the co-conspirators’ exception to hearsay. “The application for leave to appeal…is dismissed.”

Criminal Law: Right to Counsel

Li v. R., 2022 ONCA 523 (40388)
Mr. Li was arrested at the scene of a single MVA for impaired driving. When advised of his right to counsel, he said he did not understand. The officer repeated the caution slowly and phrased it differently. At a hospital, before providing breath samples, Mr. Li spoke to Mandarin-speaking duty counsel. Later, at a police station, he was re-arrested for impaired operation of a motor vehicle causing bodily harm and again spoke to duty counsel. A trial judge admitted the evidence of the breath sample test results and convicted Mr. Li of impaired driving causing bodily harm. A charge of driving over .80 was stayed. The Ont. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Employment Law: Dismissal

Andrews v. Public Service Alliance of Canada, 2022 FCA 159 (40451)
The Applicant was an employee of Fisheries and Oceans Canada and a member of the Union of Health and Environment Workers, a component of the Public Service Alliance of Canada (the “union”). She was first put on leave with pay pending a fitness to work evaluation, then on unpaid leave. The Applicant met with representatives of the union to discuss a variety of topics related to her employment situation. Over the next several months, the evaluation process ran its course and the Applicant was deemed able to return to work. In the meantime, the Applicant had moved to Ottawa from St. John’s, Newfoundland and as a result, requested the employer allow her to telework. The employer did not approve the request and instead sent her a letter with four options: return to work in Newfoundland, submit a valid leave request, resign or retire. Following a number of extensions to respond, the Applicant did not choose any of the options given to her, and her employment was accordingly terminated. Misunderstanding the grievance process, the Applicant did not inform the union of her termination until well past the 25-day deadline to file a grievance. The union refused to file a grievance on her behalf. The Applicant filed an unfair labour practice complaint against the union but the Federal Public Sector Labour Relations and Employment Board dismissed the complaint against the union. The Fed. C.A. subsequently dismissed the Applicant’s application for J.R. “The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed with costs.”

Family Law: Religious Marriage

L.R. v. D.L., et al., 2022 QCCA 757 (40183)
There is a publication ban in this case; a publication ban on the party; the Court file contains information not available for inspection by the public, in the context of divorce following a religious marriage. “The application for leave to appeal…is dismissed with costs to the respondent, Attorney General of Quebec.”

Real Property/Civil Litigation: Mortgage Default; Dismissal for Delay

Fazl v. Home Trust Company, et al., 2022 ONCA 356 (40265)
Home Trust Company and 2256157 Ontario Ltd. both loaned funds to the Applicant, Mr. Fazl, secured by mortgages on two residential properties he owned. When Mr. Fazl defaulted, power of sale proceedings were commenced against him. Mr. Fazl unsuccessfully defended the actions and his counterclaims were dismissed in summary judgment proceedings. Mr. Fazl commenced the within action in October, 2018. The four Respondents moved for summary judgment on the basis of res judicata, issue estoppel and abuse of process in December, 2018. At a case conference held in April 2019, Mr. Fazl was required to file his materials by June 21, 2019. This he failed to do. A further case conference was held in July 2019 and Mr. Fazl was allowed until September 20, 2019 to file his motion materials. A hearing date was set for December 19, 2019. Mr. Fazl did not file his materials for the deadline date imposed by the court and had not filed his documents by the hearing date. The court refused his request for an adjournment. Summary judgment was granted in favour of all four Respondents and Mr. Fazl’s claims were dismissed.  Subsequently, Mr. Fazl’s appeal from that order was dismissed for delay. His application to set aside that order was dismissed. His motions for an adjournment and for a review were dismissed by a full panel of the Ont. C.A. “The motion for the appointment of a litigation guardian or Public Trustee and Guardian is dismissed. The application for leave to appeal…is dismissed with costs to the respondents Home Trust Company, 2256157 Ontario Ltd. and Allen Wellman.”

Real Property: Public/Private Roads

Vesuna v. Ashworth, et al., 2022 BCCA 123 (40268)
The parties owned adjacent rural properties near Powell River, British Columbia. The Applicant, Mr. Vesuna, said a portion of a road on the Respondents’ property provided the only access to his property. He argued it is a public road, despite a determination in a prior case the road is not a public road. The Respondents, William Ashworth and Jennifer Ashworth, assert the road in question is a driveway on their private property. Mr. Vesuna filed a notice of civil claim seeking damages against them. He applied for an injunction, pending trial of his claim, to prevent the Respondents from blocking his access to the road in question, and also sought an order requiring the Respondents to return the road at issue to its original condition. The application judge dismissed the application on the basis Mr. Vesuna’s claim did not raise a triable issue. The B.C.C.A. dismissed his application for leave to appeal and related matters and his application to vary its judgment dismissing his application for leave to appeal and related matters. “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.”

Securities: Dismissal; Abandonment of Appeal

Turkson v. TD Direct Investing, a Division of TD Waterhouse Canada Ltd., 2017 BCCA 213 (40443)
The underlying litigation concerns a dispute between Mr. Turkson and TD Direct Investing. In 2013, Mr. Turkson opened an account with TD in order to trade stocks. In 2014, he commenced proceedings against TD alleging various causes of action: breach of contract, negligence, breach of fiduciary duty, breach of trust, fraud, willful concealment and breach of privacy. TD applied to have the action dismissed by way of summary trial. In April 2016, Fitzpatrick J. dismissed Mr. Turkson’s claim. An appeal of that decision was dismissed. Mr. Turkson requested a reconsideration of the appeal decision which was dismissed. He then unsuccessfully applied for reconsideration of Fitzpatrick J.’s original decision. He subsequently sought to appeal the order refusing reconsideration, but his appeal was placed on the inactive list. In August 2018, Dickson J.A. in chambers dismissed Mr. Turkson’s application to remove his appeal from the inactive list and his appeal was subsequently dismissed as abandoned. Mr. Turkson then brought an application for an extension of time in which to file an application to review Dickson J.A.’s order. Newbury J.A. dismissed the application. A panel of three judges of the B.C.C.A. then dismissed Mr. Turkson’s application to vary Newbury J.A.’s order. “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.”

Securities: Receivers

Go-To Developments Holdings Inc. v. Ontario Securities Commission, 2022 ONCA 328 (40267)
The Ontario Securities Commission applied to the court to continue two freeze directions it had issued under s. 126(1) of the Securities Act which required Mr. Furtado to maintain and refrain from imperilling assets derived from investor funds and to require RBC Direct Investing to maintain the assets in Mr. Furtado’s RBC Direct Account. The Commission also sought to have a receiver appointed. At the outset of the hearing, Mr. Furtado requested a short adjournment to permit him to retain new counsel and file responding material. The application judge refused the adjournment request, found investors in the Applicants’ real estate development project were in need of protection and appointed a receiver. The Applicants’ appeal from this decision was dismissed. “The application for leave to appeal…is dismissed with costs.”

Torts/Charter: Sufficiency of Pleadings

Johnson, et al. v. British Columbia (Attorney General), 2022 BCCA 82 (40174)
While incarcerated at the Lower Mainland Regional Correctional Centre in Burnaby, B.C., the Applicants claim to have been sexually abused by the defendant who, at the time, was a corrections officer employed by the Corrections Branch of the Province. Shortly before trial, the Applicants filed an Amended Notice of Civil Claim which advanced a claim for damages under s. 24(1) of the Charter and breach of fiduciary duty, as well as a Notice of Constitutional Question. The Respondents applied to strike such claims based on the belief the Applicants have sufficient remedy under the tort claims expressed in their pleadings, thus, rendering Charter damages unnecessary. The chambers judge struck the pleadings and the Notice of Constitutional Question. He found the available remedies in tort would adequately meet the need for compensation, vindication, and deterrence such that a further award of damages under s. 24(1) of the Charter would serve no purpose. The B.C.C.A. dismissed the appeal and allowed a cross appeal. “The application for leave to appeal…is dismissed with costs to His Majesty the King in Right of the Province of British Columbia.”

Torts: Medmal

Fellows v. Farej, et al., 2022 ONCA 254 (40198)
Sabrin Farej was born to Amara Idris and Romodan Farej. It was a complicated delivery. A rupture of Ms. Idris’ uterus during labour cut off Sabrin’s supply of oxygen for 25-30 minutes before she was born, resulting in a severe and permanent brain injury. Sabrin requires 24-hour care. Dr. Fellows attended Sabrin’s birth. He arrived in the delivery room at 11:01 PM, at which point her oxygen supply had already been interrupted for 6 minutes. Dr. Fellows immediately knew that time was of the essence. Sabrin was born 26 minutes later, at 11:27 PM. During that 26-minute period, Dr. Fellows decided against an emergency Caesarian section and attempted three times to deliver Sabrin using forceps. The first two attempts were unsuccessful. On the second attempt, Dr. Fellows employed a particular type of forceps known as Kielland forceps, but stopped short of completing the delivery with those to prevent injury to Ms. Idris. The third attempt brought the baby to a crowning position, at which point Dr. Fellows released Sabrin and Ms. Idris pushed her out. The trial judge dismissed the action. She held Dr. Fellows did not breach the standard of care and, in the alternative, was not the legal cause of Sabrin’s injuries. The Ont. C.A. found the trial judge did not provide sufficient reasons for rejecting the theory that Dr. Fellows ought to have completed the delivery with Kielland forceps and concluding Dr. Fellows did not cause Sabrin’s injuries in law. The Ont. C.A. allowed the appeal and directed the trial judge to consider whether Dr. Fellows caused or materially contributed to Sabrin’s injuries. After hearing further submissions from the parties, the Ont. C.A. declined to limit the scope of the new trial. “The application for leave to appeal…is dismissed with costs to the Respondents.”