Charter: s. 24 Damages

Attorney General of Canada v. Power, 2022 NBCA 14 (40241)
Joseph Power was convicted of two criminal offences in the 1990s. He served a term of imprisonment. After his release Mr. Power enrolled in college to become an X-ray technician. He then worked in Québec before relocating to New Brunswick, where he worked in a hospital as a medical radiation technologist. In 2010 Mr. Power made inquiries about the process to obtain a pardon, but did not apply for a pardon at that time. In 2011 Mr. Power’s employer learned of his criminal record by way of an anonymous phone call. He was told he posed a risk because of his criminal record and was suspended from work, first with pay and later without. Mr. Power applied for a pardon in 2013 in order to continue working as a medical radiation technologist. However, two enactments since 2010 — the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act had amended the pardon scheme (now called a record suspension) set out in the Criminal Records Act. Transitional provisions in both of the amending Acts gave them retrospective application to offences that occurred before their coming into force. The combined effect of these enactments and their transitional provisions was to render Mr. Power permanently ineligible for a record suspension.  As a result, Mr. Power lost his job and became ineligible for membership with the medical radiation technologist governing bodies of New Brunswick and Québec. The transitional provisions of both the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act, which gave them retrospective application to offences committed prior to their enactment, have since been declared unconstitutional. Mr. Power brought an action for damages pursuant to s. 24(1) of the Charter. Prior to trial, the Applicant Attorney General of Canada sought a determination of two questions of law: can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982; can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1). The application judge answered “yes” to both questions. The N.B.C.A. dismissed the Attorney General’s appeal. “The application for leave to appeal…is granted.”


Civil Litigation: Summary Judgments

Hud v. Corporation of the Municipality of West Nipissing, et al., 2022 ONCA (40238)
A Motion for Direction was heard to address the order of the motions to be heard. The Respondents’ summary judgment motions were ordered heard first. The Divisional Court dismissed the Applicant’s motion for leave to appeal. Leave to appeal to the Ont. C.A. was dismissed. “The motions for an extension of time to serve and file the responses of Corporation of the Municipality of West Nipissing, West Nipissing Police Services Board, Louise Laforge, Charles Seguin, Raymond St. Pierre, Nathalie Rifou, Peter Mantha, Francois Savage, 10306398 Canada Ltd. and Chris Amon are granted. The application for leave to appeal…is dismissed with costs.”

Criminal Law: Dangerous Driving; Police EDR Evidence

R. v. Major, 2022 SKCA 80 (40384)
The Respondent drove his pickup truck at high speed into an intersection where it collided with a semi-truck to whom the Respondent was required to yield. The collision killed three of his six passengers and injured the three others; none of them were wearing seatbelts. An experienced RCMP accident reconstructionist extracted relevant information about the vehicle’s speed and brake application in the seconds preceding the collision from the pickup truck’s event data recorder (“EDR”). The reconstructionist had the technical skills and tools to extract this information but was not familiar with the underlying function of the EDR or the software tools he used to complete the extraction. The data he extracted appeared to show the Respondent was travelling more than 50 km/h over the speed limit until he applied the brakes 1.2 seconds before the collision. The Applicant Crown sought to lead this data at the Respondent’s trial. The trial judge admitted the data. The Respondent was found guilty of dangerous driving and criminal negligence. The S.K.C.A. allowed the Respondent’s appeal and ordered a new trial. “The motion for an extension of time to serve and file the response is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Dangerous Offender Designation

N. v. R., 2022 ABCA 48 (40355)
There is a publication ban in this case, in the context of dangerous offender designation. “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: Third Party Records

The Canadian Broadcasting Corporation v. British Columbia (Attorney General), 2022 BCCA 170 (40266)
An accused charged with sexual assault was approved for and completed an Alternative Measures program. The charge was stayed. Media entities filed a petition in the B.C.S.C. seeking an order granting them access to records related to the accused’s Alternative Measures program, as a third party records application. The petition was dismissed. The B.C.C.A. quashed a notice of appeal. “The motions for an extension of time to serve and file the application for leave to appeal and the reply are granted. The application for leave to appeal…is dismissed.”

Employment Law: Motions to Dismiss

Tewari v. Mathers McHenry, et al., 2022 ONCA 335 (40512)
The Applicant, Gaurav Tewari, was dismissed by his employer. As part of a number of legal proceedings he commenced for wrongful dismissal, Mr. Tewari applied to the Ontario Labour Relations Board (“OLRB”) for relief. Mr. Tewari then attempted to sue the collective Respondents, Jennifer Mathers McHenry, Jessica Donen and Mathers McHenry & Co., who had acted as legal counsel for the former employer in the judicial proceedings and before the OLRB. The Respondents brought a motion to strike out Mr. Tewari’s statement of claim, for failure to disclose a reasonable cause of action, or alternatively to dismiss it as frivolous or vexatious or an abuse of process, pursuant to r. 21.01 or r. 25.11 of Ontario’s Rules of Civil Procedure. The Ontario Superior Court of Justice struck Mr. Tewari’s claim against the Respondents, without leave to amend. The Ont. C.A. unanimously dismissed Mr. Tewari’s appeal. “The application for leave to appeal…is dismissed.”

Labour Law: Promotions During Certification

Attorney General of Canada v. National Police Federation, 2022 FCA 80 (40307)
The Respondent applied for certification as the bargaining agent for all Royal Canadian Mounted Police regular members and reservists. The application triggered s. 56 of the Federal Public Sector Labour Relations Act which imposed a freeze preventing an employer from unilaterally altering the terms and conditions of employment following the filing of an application for certification. On a date contested by the parties, a Committee of the RCMP decided certain individuals seeking promotion within the RCMP should be required to complete leadership courses. The RCMP implemented changes to its promotion policy. The Respondent filed an unfair labour practice complaint with the Federal Public Sector Labour Relations and Employment Board, arguing the changes to the promotion policy contravened s. 56 of the Act. The RCMP argued that prior to April 2017, the wheels had been in motion to make the changes to the promotion policy, and the changes were consistent with its normal management practices and would have occurred had there been no petition for certification. It submitted the changes met the new test confirmed by the S.C.C. in United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp., 2014 SCC 45, [2014] 2 S.C.R. 323. “The application for leave to appeal…is dismissed with costs.”

Leases: Rights Inter Se

Xu v. Tran, 2022 QCCA 857 (40328)
The Respondent Chung Quai Tran is the proprietor and landlord of a building in Montreal. The Respondent claimed unpaid rent from the lessee, the Applicant, Jimmy Jing Xu, as well as damages arising from Mr. Xu having vacated the premises one year before the end of the lease term. In response, Mr. Xu alleged it was instead his company, 9120-0220 Québec Inc., that was the true lessee; as part of its materials filed in the judicial proceedings, the company acknowledged owing certain rental amounts to the Respondent landlord, but sought a return of its deposit, a reduction in rent as a result of water damage that prevented full enjoyment of the premises, and damages in compensation. The Court of Québec granted the Respondent’s application for relief, ordered the lease between the parties be terminated, and found Mr. Xu owed the Respondent $63,656.13. However, the court also granted Mr. Xu’s claim in part, and found the Respondent owed him $5,659.22, with the net result Mr. Xu was ordered to pay the Respondent $57,996.91 in damages, plus interest and legal costs. The Qué. C.A. unanimously granted the Respondent’s motion to dismiss an appeal by Mr. Xu. “The application for leave to appeal…is dismissed.”

Mortgages: Default

Furney, et al. v. 2257573 Ontario Inc. 2022 ONCA 505 (40315)
The Applicants defaulted under several mortgages and guarantees. The Respondent’s motion for summary judgement was granted. The Ont. C.A. dismissed the Applicants’ request for an adjournment and dismissed the appeals. “The application for leave to appeal…is dismissed.”

Official Languages: Federal-Provincial Agreements

Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development), 2022 FCA 14 (40114)
In February 2008, the B.C. government and the federal government, through the Respondent the Canada Employment Insurance Commission, signed the Canada – British Columbia Labour Market Development Agreement. The Agreement provided for the full devolution of employment assistance services to the province in accordance with s. 63 of the Employment Insurance Act,. The Agreement followed the Canada – British Columbia Labour Market Development Agreement (1997), which provided the federal government would retain responsibility for the establishment of benefits and measures while B.C. would participate in their design and management. The 1997 Agreement guaranteed the continued application of the Official Languages Act (OLA). The 2008 Agreement contained a linguistic clause, based on s. 57(1)(d.1) of the EIA, requiring the province to provide recipients of services with “availability of assistance under the benefits and measures in either official language where there is significant demand for that assistance in that language”. In the fall of 2010, B.C. informed the centres serving Francophone organizations they would no longer receive funding. After receiving a response from the Respondent, the Department of Employment and Social Development (DESD, originally the Department of Human Resources and Skills Development Canada), which had been informed of the consequences the closure of the centres would have on the French linguistic minority community, the Fédération francophone de la Colombie-Britannique (FFCB) filed a complaint with the intervener the Commissioner of Official Languages. Three other complaints had previously been filed concerning the withdrawal of funding from Francophone organizations. After conducting an investigation, the Commissioner of Official Languages concluded the complaints were well-founded under Parts IV and VII of the OLA. The FFCB subsequently filed an application with the Fed. Court under s. 77(1) of the OLA, arguing the DESD and the Commission had violated Parts IV and VII of the OLA and s. 20(1) of the Charter through the 2008 Agreement. The Fed. Court dismissed the FFCB’s application. The Fed. C.A. allowed the appeals filed by the FFCB and the Commissioner of Official Languages concerning the duty under Part VII of the OLA but dismissed the appeal concerning Part IV of the OLA. “The application for leave to appeal…is dismissed with costs.”

Tax/Civil Litigation/Aboriginal Law: GST; Dismissal

Ochapowace Ski Resort Inc., et al. v. R., 2022 SKCA 58 (40308)
A ski resort was operated on the Ochapowace reserve. The operators of the resort, the Band and the Band’s chief refused to collect and remit the GST from non-Indigenous patrons from 1991 to mid-1997, or to allow for an audit to be conducted. An information was laid against the Applicants pursuant to the Excise Tax Act. The Applicants advanced various defences at trial, but the trial judge rejected their arguments the requirement to collect and remit tax was a breach of an Aboriginal or treaty right, or the law recognized self-governance in a way that would exempt the Applicants from collecting and remitting the tax for another government. In 2002, he found the Ochapowace Band and its chief guilty of failing to file GST returns. The Applicants filed a notice of appeal. Fifteen years later, the Crown applied to dismiss the appeal for want of prosecution. The Court of Queen’s Bench granted the Crown’s application and dismissed the Applicants’ appeal. The S.K.C.A. allowed the Applicants’ application for leave to appeal but dismissed their appeal. “The application for leave to appeal…is dismissed.”

Torts: Nominal Damages

Pullano v. Hinder, et al., 2022 ONCA 418 (40335)
A civil jury found Mr. Hinder punched Mr. Pullano but no injury was caused. The jury found no entitlement to aggravated or punitive damages. Mr. Pullano asked the trial judge to award nominal damages for battery and to find Magna International Inc. and Stronach Consulting Corp. vicariously liable. The trial judge declined to award nominal damages. The Ont. C.A. dismissed an appeal from the decision denying nominal damages and in respect to costs. “The application for leave to appeal…is dismissed with costs.”