Torts: MVA Benefits

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 (40348)
Applicant Ummugulsum Yatar was injured in a MVA. Ms. Yatar applied to her insurer, TD Insurance Meloche Monnex (hereafter, “TD”) for housekeeping and home maintenance benefits, as well as income replacement benefits (IRB). TD initially paid those benefits. About a year later, following insurance medical examinations, TD denied Ms. Yatar’s claim for housekeeping and home maintenance benefits. Several months after, TD denied her IRB claim. Ms. Yatar brought an application before the Licence Appeal Tribunal (LAT) to challenge TD’s denial of her insurance benefits claim; the application was dismissed. She requested a reconsideration of the LAT decision, which was also dismissed. Ms. Yatar then brought an appeal on questions of law and an application for J.R. of the LAT reconsideration decision before the Divisional Court. The court dismissed both the appeal and the application. The Ont. C.A. dismissed Ms. Yatar’s appeal from the Divisional Court’s judgment. “The application for leave to appeal…is granted with costs in the cause.”


Bankruptcy & Receivership: CCAA Orders

Wiebe, et al. v. Weinrich Contracting Ltd., 2022 ABCA 176 (40314)
The Applicant Roy Wiebe was the sole director of Parkland Aerospace Corp. Parkland Aerospace owned 50% of the shares of Parkland Airport Development Corp. The Respondent Weinrich Contracting Ltd. was retained by Parkland Airport to construct a runway. In July 2014, Weinrich Contracting commenced an action against Parkland Airport, Mr. Wiebe, and others alleging negligent and fraudulent misconduct leading up to the contract. In April 2015, the statement of claim was amended to add additional defendants, including Parkland Aerospace. In November 2016, Parkland Airport applied for protection under the Companies’ Creditors Arrangement Act. In the course of those proceedings, orders were granted staying proceedings and tolling certain limitation periods. The initial order granting protection under the CCAA was made on November 29, 2016. The case management judge concluded the stay in the initial order did operate to stay the Weinrich Contracting litigation from November 29, 2016 to July 14, 2019. The Alta. C.A. dismissed the 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.”

Civil Litigation: Abuse of Process

Rana v. Baker, 2022 ABCA 180 (40403)
The Applicant filed a statement of claim against the Respondent, the lawyer for the defendants in another lawsuit commenced by the Applicant. In the statement of claim, the Applicant claimed Ms. Baker had breached the Model Code of Professional Conduct, causing him damages. In accordance with Civil Practice Note 7, which sets out the procedures for requesting a stay or dismissal of an application which on its face appears to be unmeritorious, to have no prospect of success, or is otherwise frivolous, vexatious, or an abuse of process, Ms. Baker referred the claim against her to the Court of Queen’s Bench.  After reviewing the statement of claim, the court required the Applicant to show cause why the claim should not be struck. The Applicant was asked to provide written answers to five questions. Upon review of the Applicant’s answers, the Applicant’s statement of claim was struck as hopeless and an abuse of process. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Case Management

Rana v. Rana, 2022 ABQB 455 (40503)
The Applicant claimed to have given his parents a significant amount of money in the early 2000s.  He further claimed his mother signed a promissory note in his favour in or about 2014. He filed a caveat against her property based on the promissory note. He was opposed to his brother’s management of his mother’s financial affairs. The Applicant commenced two actions against the Respondent. The case management judge granted the Respondent’s motion to have the trial move forward on a peremptory basis, with conditions, including the payment of previous costs awards made against the Applicant. The Alta. C.A. denied the Applicant’s application for permission to appeal. “The motion to expedite the application for leave to appeal is dismissed. The application for leave to appeal…is dismissed.”

Civil Litigation: Interim Court Access Restrictions

Rana v. Mohamed, et al., 2022 ABCA (40289)
The Applicant filed a statement of claim against the Respondents, alleging they had failed to deliver 90 per cent of their proceeds from the sale of shares. The Respondents filed a statement of defence, denying all allegations in the statement of claim. The court ruled the Applicant was subject to Interim Court Access Restrictions until an application under s. 23 of the Judicature Act could be brought in another matter involving the Applicant. The Applicant’s application requesting leave to continue his lawsuit against the Respondents was dismissed. The Applicant’s application for leave to appeal that decision was also dismissed. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Juries

Rana v. Rana, 2022 ABCA 237 (40404)
The Applicant commenced actions against his mother and older brother in connection with, inter alia, a debt he alleged his mother owed to him. The Applicant, who had been declared a vexatious litigant because of his past litigation conduct, applied to have the underlying action tried by jury. His application was dismissed. The Alta. C.A. dismissed his application for leave to appeal from that decision. “The application for leave to appeal…is dismissed.”

Civil Litigation: Motions to Strike

Rana v. Rana, 2022 ABQB 220 (40233)
On May 5, 2021, the Applicant filed a statement of claim against the Respondent, alleging in or about 2004, the Applicant had loaned the Respondent money the Respondent had refused to repay. The Respondent filed a statement of defence on May 21, 2021 but there was no further court activity on this matter. In the meantime, the Applicant was declared a vexatious litigant on February 16, 2022, which had the effect of staying the within action. In that judgment, the Applicant was given a deadline of March 18, 2022 to obtain leave to continue the within action, failing which the action would be struck out. The deadline passed. The court struck out the Applicant’s action and statement of claim. “The application for leave to appeal…is dismissed.”

Civil Litigation: Power of Attorney; Vexatious Litigation

Rana, et al. v Rana, et al., 2022 ABCA 172 (40231)
The Applicant’s mother signed a Personal Directive appointing her son Mr. Zahir Rana, the Respondent, as her power of attorney/substitute decision maker. The Applicant sought to challenge this decision and also sought to have visitation rights with his mother, whom he had not seen in many years. The Applicant was also engaged in a long-running lawsuit against his mother over a promissory note he maintains she signed to him in 2014. The Applicant filed numerous statements of claim against various individuals with many interlocutory applications and appeals. The Applicant was also declared a vexatious litigant. His applications for permission to appeal several orders were also dismissed. “The motion for the appointment of a trustee is dismissed. The application(s) for leave to appeal…are dismissed.”

Civil Litigation: Vexatious Litigant Orders

Rana v. Rana, 2022 ABCA 306 (40505)
The court imposed indefinite court access restrictions on the Applicant pursuant to the Judicature Act. The Applicant’s application for leave to appeal that decision was denied, except on one specific issue. It was not disputed the Respondent, when making his application to have the Applicant declared a vexatious litigant, failed to notify the Minister of Justice and Solicitor General, as required under s. 23.1(1). That section allows the Minister an absolute right to engage in the process. The Respondent applied to vary the Vexatious Litigant Order to indicate the Minister had been notified. The question for the court was whether the Respondent’s initial failure to provide notice to the Minister had any substantive effect on the granting of the Vexatious Litigation Order. The original Vexatious Litigant Order was varied nunc pro tunc to add to the preamble the Minister and Solicitor General had been given notice of the Judicature Act application and indicated they would not be taking any position on the matter. The Applicant’s application for permission to appeal was dismissed. “The application for leave to appeal…is dismissed.”

Class Actions: MVA’s

Pinon v. City of Ottawa, 2022 ONCA (40310)
Mr. Pinon was a passenger on a bus operated by OC Transpo, the City of Ottawa’s transit agency. The bus collided with a bus station. The accident caused loss of life, injuries, and trauma to passengers on the bus and people at the station. Mr. Pinon commenced litigation seeking damages and applied to certify the proceeding as a class proceeding on behalf of other injured or traumatized individuals and family members with derivative claims. A motions judge denied certification. The Ont. C.A. dismissed an application for leave to appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Veterinary Medications

Intervet Canada Corp., et al. v. Gagnon, et al., 2022 QCCA 553 (40252)
The Applicants are the Canadian distributors and manufacturers of the product Bravecto, a drug prescribed by veterinarians to kill ticks and fleas that infest domestic animals such as dogs. The Respondents are dog owners whose pets sustained injuries following the administration of Bravecto. They applied for authorization before the Superior Court to represent a class of dog owners who sustained Bravecto-related injuries. The Superior Court granted the application in part. Authorization to represent the class of dog owners was granted solely to the Respondent Ms. Gagnon. On appeal, the court added the Respondent Ms. Olenitch as class representative; broadened the claim period; removed “suspected lack of efficacy” as a condition giving rise to inclusion in the class; included “death” as a condition giving rise to inclusion in the class; and determined the Consumer Protection Act of Québec could in fact be listed as a common issue to be decided on the merits of the class action. “The motions for leave to intervene filed by Innovative Medicines Canada and the Canadian Animal Health Institute are dismissed. The application for leave to appeal…is dismissed with costs.”

Criminal Law: 10(b)

Turgeon v. R., 2022 SKCA (40358)
Two police officers testified they saw the Applicant driving a truck in an erratic and dangerous fashion which they at first believed to be consistent with vehicle theft but later they thought it indicated the driver was impaired. After stopping the vehicle, the officer questioned the Applicant and he replied he had had four beers. The officer noticed the Applicant had trouble keeping his eyes open, they were red and glassy and his speech was slurred, and so advised him he had a reasonable suspicion he had alcohol in his body and asked him to take the ASD test in the police cruiser. He failed the test and the officer then made the breath demand and advised him of his right to counsel. The Applicant brought an application alleging violations of his ss. 8, 9, 10(a) and 10(b) Charter rights. The trial judge found there was no arbitrary detention and s. 9 of the Charter was not breached. The Applicant’s s. 10(b) right had not been breached. After conducting a Grant analysis respecting the s. 10(a) breach, the evidence was not excluded. The Summary Conviction Appeal judge held there was no s. 10(a) violation, and the appeal was dismissed. The Sask. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Mandatory Minimums

Ookowt, et al. v. R., et al., 2020 NUCA 5 (39349)
Both of the Applicants are Inuk and pled guilty to s. 244.2(1)(a) of the Criminal Code for intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place. The offence has a maximum sentence of 14 years and a minimum sentence of four years. The Applicants filed a notice of constitutional challenge arguing the mandatory minimum sentence violates s. 12 .  Both sentencing judges found the four year mandatory minimum sentence in s. 244.2(3)(b) of the Criminal Code violates s. 12 of the Charter, and struck down the provision. The sentencing judges determined a fit sentence for both Applicants was two years less one day. The NU C.A. allowed the Crown appeals, set aside the constitutional invalidity rulings, and imposed a four year sentence for both Applicants. “The applications for leave to appeal…are dismissed.”

Criminal Law: Sexual Assault; Sexual History Evidence

M. v. R., 2022 BCCA 288 (40438)
There is a publication ban in this case, in the context of sexual assault & sexual history evidence. “The application for leave to appeal…is dismissed.”

Debtor-Creditor: Alleged Loan Recovery

Rana v. Rana, et al., 2022 ABCA 106 (40232)
On June 4, 2021, the Applicant filed a statement of claim alleging he had loaned the Respondents $75K in or about 2012 with a compounding interest rate of 10 per cent per month they had failed to pay. The Respondents defended the debt action on the grounds no loan was made to them by the Applicant, there was no agreement regarding the compound interest and that the action was barred by the Limitations Act. In a separate matter, the court imposed Interim Court Access Restrictions on the Applicant which had the effect of staying his debt action against the Respondents. The Applicant sought leave to continue his debt action. The court dismissed the Applicant’s leave application. This decision was upheld on appeal. “The application for leave to appeal…is dismissed.”

Employment Law/Civil Litigation: Amending Pleadings

Lee v. Magna International Inc., 2022 ONCA 32 (40246)
Mr. Lee sought to appeal an order refusing him leave to amend the latest version of his statement of claim in an action he commenced against his former employer following a workplace investigation of harassment where he was disciplined. He sought to add a claim of gross negligence against “all directors and officers” of the corporation, claiming they had failed in their duties under occupational health and safety legislation to take all reasonable care to ensure the corporation complied with the legislation in the context of the investigation. The motion judge dismissed the motion to amend the claim on the basis Mr. Lee did not name the proposed new defendants; he failed to plead material facts sufficient to support a claim for personal liability; and he was seeking again to add a claim for negligent investigation, after his earlier motions to assert the same claim had been dismissed. The judge confirmed a breach of a statutory duty does not create a cause of action in negligence and there is no tort of negligent investigations by employers. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Tax: Scientific Research Credits

National R&D Inc. v. Canada, 2022 CAF 72 (40303)
The Applicant, National R & D Inc (“National”), appealed the Minister of National Revenue’s assessment denying it tax credits claimed for scientific research and experimental development under ss. 248(1) of the Income Tax Act. The Tax Court judge found National had not shown on the balance of probabilities its project qualified as it did not meet four of the five criteria set out in Northwest Hydraulic Consultants Ltd. v. The Queen, [1998] 3 C.T.C. 2520 (TCC). The Fed. C.A. dismissed National’s contentions the Tax Court judge made legal errors in her understanding of ss. 248(1), made palpable and overriding errors in the assessment of the evidence with respect to National’s project, misunderstood the burden of proof on the taxpayer in proceedings before the Tax Court or erred in ruling the expert report tendered by National to be inadmissible; it dismissed National’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 with costs.”