Criminal Law/Media: Confidentiality Orders

Canadian Broadcasting Corporation, et al. v. R., 2022 QCCA 984 (40371)
There is a publication ban in this case; a sealing order; certain information not available to the public, in the context of staying criminal proceedings against a police informer. “The applications for leave to appeal…are granted. The motion by Lucie Rondeau, in her capacity as Chief Justice of the Court of Quebec, to be added as an intervener on the applications for leave to appeal and on the appeals is granted. The intervener is permitted to serve and file a factum not to exceed ten (10) pages in length and book of authorities, if any, within six (6) weeks following the date of service of the appellants’ factums, and is granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeals. The request to include in the intervener’s factum certain elements from the records of the trial court or the Court of Appeal is dismissed, without prejudice to the intervener’s right to file a motion under Rule 59(1)(b) of the Rules of the Supreme Court of Canada.”

International Law/Banks: Jurisdiction

Eurobank Ergasias S.A. v. Bombardier Inc., et al., 2022 QCCA 802 (40350)
Bombardier Inc. entered into a procurement contract with the Respondent branch of the Greek government (HMOD) for ten firefighting amphibious aircraft. There was also an Offsets contract by which Bombardier committed to offset programs inviting Greek suppliers as subcontractors for the work, for a total credited value of 110% of the main contract. Bombardier was to pay up to 10% of this amount as liquidated damages if the Offsets contract was not fulfilled, which was secured by a letter of guarantee with the Applicant. Bombardier arranged a corresponding letter of counter-guarantee issued by National Bank of Canada in favour of the Applicant. A dispute arose under the Offsets contract. Bombardier filed a request for arbitration under the rules of the International Chamber of Commerce (ICC) in Paris. It later amended its request to include the issue of whether the Offsets contract was null and void for violating the principle of the free movement of goods under the laws of the European Union. Although at one point HMOD made an undertaking not to seek payment under the letter of guarantee while arbitration was pending, it later demanded payment of the US $13,868,354 from the Applicant under the letter of guarantee. Bombardier sought and received interim injunctions against payment from Québec courts and through an Interim Order of the ICC Arbitral Tribunal, and the Applicant obtained an interim injunction from a Greek court. When a further injunction was denied by a Greek court, and with the imminent release of the ICC Arbitral Tribunal Award, HMOD served the Applicant with an Extrajudicial Invitation Protest, ordering it, under penalty of law, to make payment under the letter of guarantee. Shortly after the Applicant paid HMOD, the Final Award of the ICC Arbitral Tribunal was released, ruling the Offsets Contract, including its terms pertaining to the liquidated damages and to a letter of guarantee, violated EU law and was null and void ab initio. When National Bank refused payment to the Applicant under the letter of counter-guarantee, the Applicant sought recovery through the courts of Québec. The Superior Court of Québec confirmed its jurisdiction and rejected the Applicant’s demand for payment under the letter of counter-guarantee on the basis of the fraud exception. It held the letter of counter-guarantee was unenforceable and enjoined National Bank from paying out any amount pursuant to it. The court also homologated the ICC Arbitral Tribunal Final Award and ordered the HMOD to comply with it. A majority of the Qué. C.A. confirmed the trial court decision, except to strike out that part of the trial judgment ordering HMOD to comply with the Final Arbitral Award. “The application for leave to appeal…is granted with costs in the cause.”

Labour Law: Grievances; Privacy

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2022 ONCA 476 (40360)
The private communications of two teachers, recorded on their personal, password-protected log were read and captured by screenshots taken by their school principal, and then used by the Respondent school board (“Board”) to discipline them. The union filed a grievance against the written reprimand issued to the teachers (“Grievors”) claiming the Board violated the Grievors’ right to privacy by assessing private digital information without reasonable cause and using that information as the basis for an investigation that led to the discipline. By the time the grievance was heard, the written reprimands had been removed from the Grievors’ records.  But the parties agreed to move forward with the issue of the alleged breach of the right to privacy. The arbitrator dismissed the grievance against the Board. The majority of the Divisional Court upheld the arbitrator’s decision and dismissed the appeal. The Ont. C.A. allowed the appeal and quashed the award of the arbitrator. “The application for leave to appeal…is granted with costs in the cause. O’Bonsawin J. took no part in the judgment.”

Municipal Law: Constructive Expropriation

City of St. John’s v. Lynch, et al., 2022 NLCA 29 (40302)
In 1991, Newfoundland and Labrador reorganized its northeast Avalon municipalities. The reorganization expanded St. John’s boundaries, triggering a new planning process. Inter alia, St. John’s zoned the Lynch property and others as watershed because they fell within the Broad Cove River Watershed, which feeds its municipal water supply. Watershed zoning permits discretionary uses relating to agriculture, forestry and public utilities, but St. John’s took the position the land must be kept unused in its natural state. The NL C.A. held that refusing to permit any development constituted constructive expropriation: Lynch v. St. John’s (City), 2016 NLCA 35, leave to appeal dismissed, SCC No. 37204 (“Expropriation Decision”). The NL C.A. remitted the issue of compensation to the Board of Commissioners of Public Utilities. In the course of making its determination, the Board referred the following question to the Supreme Court of Newfoundland and Labrador under the Expropriation Act by special case: “Whether the Lynches’ compensation should be assessed based on the uses permitted by the existing zoning, which are agriculture, forestry and public utility uses, or whether the existing zoning should be ignored and the value determined as if residential development were permissible”. The applications judge granted compensation for constructive expropriation of property to be determined based on existing watershed zoning. The NL C.A. allowed the appeal in part, ordering compensation to be determined without reference to existing watershed zoning. “The application for leave to appeal…is granted with costs in the cause.”

Tax/Federal Court: Motions to Strike

Iris Technologies Inc. v. Canada (Attorney General), 2022 CAF 101 (40346)
Iris Technologies Inc. was audited and assessed by the Minister of National Revenue under the Excise Tax Act. It filed a J.R. in the Fed. Court seeking declarations it was denied procedural fairness, there was no evidentiary foundation to issue an assessment, and the assessments were issued for an improper purpose. A Prothonotary dismissed a motion by the Minister of National Revenue to strike the J.R. The Fed. Court dismissed a motion of appeal. The Fed. C.A. allowed an appeal and struck the J.R. “The application for leave to appeal…is granted with costs in the cause. The appeal will be heard with Dow Chemical Canada ULC v. His Majesty the King (40276).”


Aboriginal Law/Contracts: Contingency Agreements

Rath & Company, et al. v. Tallcree First Nation, 2022 ABCA 174 (40312)
Tallcree First Nation, one of the signatories to Treaty 8, had one of a group of treaty claims stemming from promises made in Treaty 8. Tallcree First Nation’s claim was accepted by the Minister in August 2013 and placed under assessment. The settlement ultimately achieved was based on that claim. In October 2014, Tallcree First Nation became dissatisfied with its counsel’s failure to communicate with it about the progress of the claim. It approached Rath & Company, which agreed to take it on a contingency basis. Tallcree First Nation did not receive independent advice about the contents of the contingency fee agreement and made no attempt to negotiate the compensation to be paid before it was signed. The compensation agreement provided Rath & Company would receive a fee of between 20 and 35 per cent of the settlement amount, depending on when the matter was resolved. Shortly thereafter, the government changed, and the resolution of treaty claims became a governmental priority. Mr. Rath issued a statement of claim on Tallcree First Nation’s behalf in December 2014. He also entered into high level political conversations. In August 2016, Tallcree First Nation’s agricultural claim was accepted for negotiation, and Canada offered to settle for $57.6M in February 2017. The offer, which was consistent with the offers made to the other signatories of Treaty 8, was accepted and ratified in July 2017. Tallcree First Nation then sought review of the contingency agreement. The Review Officer upheld the contingency fee agreement, which resulted in a $11.5M fee (20 per cent of the settlement amount). The chambers judge revoked Review Officer’s decision and substituted a fee of $3M. The Alta. C.A. allowed the appeals, but upheld the $3M fee. “The application for leave to appeal…is dismissed with costs.”

Aboriginal Law: Duty to Consult

George Gordon First Nation, et al. v. Saskatchewan, et al., 2022 SKCA 41 (40184)
On September 15th 1874, the Applicants, collectively called George Gordon First Nation (GGFN), became a party to Treaty No. 4 between Her Majesty the Queen and the Cree and Saulteaux Tribe of Indians at Qu’appelle and Fort Ellice (Treaty No. 4). Among other things, Treaty No. 4 specified the amount of land required for reserves based on a First Nation’s population at the rate of one square mile for each family of five. The whole of the land covered by the treaty was administered by His Majesty the King in Right of Canada (Canada), but was transferred to the provinces of Alberta, Manitoba and Saskatchewan in 1930 by way of various Natural Resources Transfer Agreement (NRTA). The Saskatchewan Natural Resources Transfer Agreement (Saskatchewan Natural Resources Act, SC 1930, c. 41, at schedule) transferred all Crown lands, minerals and other natural resources from Canada to the province. Like other First Nations, GGFN did not receive the amount of land to which it was entitled under Treaty No. 4. Many land claims were filed against Canada by Saskatchewan First Nations. Canada requested the help of the Respondent His Majesty the King in Right of Saskatchewan (Saskatchewan) to settle these claims. In 1992, a framework agreement, the Saskatchewan Treaty Land Entitlement Framework Agreement among her Majesty the Queen in Right of Canada and the Minister of Indian Affairs and Northern Development and the Entitlement Bands and Her Majesty in Right of Saskatchewan, to settle Treaty land entitlement (TLE) claims was signed by Canada, Saskatchewan and 25 First Nations. GGFN was not a party to the framework agreement. GGFN submitted a TLE claim in 1996 but the claim was not accepted for negotiation until 2004. In 2006, an agreement in principle was reached, which was ratified by the members of the GGFN, and signed by the GGFN, Canada and Saskatchewan in 2008 (GGFN TLEA). Among other things, the GGFN TLEA allowed GGFN to purchase up to 115,712 acres of land to set aside as reserve land and required GGFN to purchase at least 8,960 shortfall acres within 12 years of the coming into force of the GGFN TLEA. Once purchased by GGFN, land and mineral rights would be transferred from Saskatchewan to Canada, for the benefit of GGFN. Mineral rights could not form a part of the reserve land unless GGFN also purchased the surface rights to the land. Where mineral rights were undisposed and GGFN purchased the surface rights, Saskatchewan had to transfer those mineral rights to Canada for the benefit of GGFN unless it was counter to the public interest to do so. The GGFN TLEA required Canada and Saskatchewan to pay GGFN $26,662,416.42 to allow the latter to purchase land and mineral rights. This sum was paid in full by Saskatchewan and Canada. All of the shortfall acres were purchased by GGFN by the prescribed date. Before, during and after the negotiation of the GGFN TLEA, Saskatchewan disposed of mineral rights within a 100 km radius of the GGFN reserve lands to third parties. GGFN filed an action against Saskatchewan and Canada before the Court of Queen’s Bench, alleging both Respondents had breached their duty to consult with GGFN before disposing of the mineral rights. The Court of Queen’s Bench of Saskatchewan dismissed the applications and the Sask. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Abuse of Process

Jacques v. Muir, 2021 BCCA 38 (40496)
The Applicant, Chang Jacques, brought a claim against the Respondent, Jennifer Muir, in relation to a surgery Dr. Muir performed on Ms. Jacques in 2012. The claim, based in negligence and lack of informed consent, was filed in 2014. The negligence claim was subsequently dismissed, while the informed consent claim was settled in October 2015, and Ms. Jacques signed a release of any further claims against Dr. Muir in connection with the surgery. Subsequently, Ms. Jacques brought several legal actions related to the same subject matter. In October 2017, Ms. Jacques commenced a new action against Dr. Muir. In November 2017, the B.C.S.C. dismissed Ms. Jacques’ new claim as an abuse of process, and issued an order prohibiting her from commencing any further legal proceedings against Dr. Muir in connection with the same subject matter; an appeal was dismissed by the B.C.C.A. In August 2020, the B.C.S.C. dismissed another claim from Ms. Jacques, seeking to overturn the first order and obtain an award of damages, and again prohibited Ms. Jacques from filing any new document in the court that would be in any way connected with the same subject matter; an appeal was dismissed by the B.C.C.A. “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.”

Civil Litigation/Administrative Law: Delay; Reconsideration

Tang v. Human Rights Tribunal of Ontario, et al., 2022 ONCA (40366)
The Applicant, Jenny Tang, filed an application with the Human Rights Tribunal of Ontario (“HRTO”) alleging discrimination with respect to employment. The application was deferred on consent pending workplace grievance arbitration which was eventually withdrawn. The Applicant then missed the 60-day deadline set out in r. 14 of the HRTO’s Rules of Procedure to re-activate the application. She asked the HRTO to exercise its discretion to lengthen the time for requesting re-activation of the application. The HRTO dismissed her re-activation request for delay and dismissed the application. It also dismissed her request for reconsideration. The Ontario Divisional Court dismissed Ms. Tang’s J.R. of those decisions and the Ont. C.A. dismissed the Applicant’s motion for leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondents, New Horizon System Solutions Incorporated, Society of United Professionals and Andrew Stock.”

Civil Litigation: Extensions of time

Hordo, et al. v. Zweig, 2021 ONCA 893 (40251)
The Applicants commenced an action against the Respondent. The Applicants filed a number of motions for directions and other relief. Dismissed, including for an extension of time (dismissed by a C.A. judge sitting alone, then by a 3-judge panel). The Ont. C.A. dismissed the motion to set aside or vary the order of Zarnett J.A. “The motion for an extension of time to order transcripts from the court of appeal and for other ancillary relief is dismissed. The motion to add Lawyers’ Professional Indemnity Company (LAWPRO) as a party to the application for leave to appeal is granted without costs. The application for leave to appeal…is dismissed with costs to the respondent, Lawyers’ Professional Indemnity Company (LAWPRO), in the amount of $2,050.00.”

Civil Litigation/Professions: Summary Judgments

Kuny v. Pullan Kammerloch Frohlinger, et al., 2022 MBCA 17 (40361)
Mr. Kuny brought two separate actions against the Respondent law firms concerning allegations of professional negligence and misconduct. The law firms had represented Mr. Kuny at different times in appealing discipline decisions of the Discipline Committee Panel of the College of Registered Nurses of Manitoba. The law firms brought motions for summary judgment on the basis there were no genuine issues requiring trial. The motion judge granted summary judgment and the actions were dismissed. The Man. C.A. dismissed both of Mr. Kuny’s appeals concluding there was “no merit to either appeal whatsoever”. The Man. C.A. also dismissed Mr. Kuny’s subsequent motion for a rehearing of the appeals. “The motion to join two Court of Appeal of Manitoba files in a single application for leave to appeal is granted. 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: Res Judicata; Extensions of Time

Thomson v. British Columbia, et al., 2022 BCCA 173 (40347)
The Applicant Neil E. Thomson commenced an action against Drs. Kurt Buller and James Mabee (together, the “Respondent physicians”), and the Respondents Interior Health Authority and the Crown in Right of British Columbia. That action was dismissed as time-barred by the Limitation Act. Mr. Thomson’s appeal to the B.C.C.A. and a subsequent application for leave to appeal to the S.C.C. were both dismissed. In 2020, Mr. Thomson commenced another action against the same defendants, based on the same set of facts as in the 2016 action. Upon application by the Respondents, the 2020 action was dismissed under the doctrine of res judicata. After the time to bring an appeal had expired, Mr. Thomson brought an application for an extension of time to file an application for leave to appeal. The application was considered in chambers by a judge of the B.C.C.A. The chambers judge concluded it was not in the interests of justice to grant an extension of time to bring the appeal, and dismissed the application. Mr. Thomson then applied to vary the chambers judge’s order. A three-judge panel of the B.C.C.A. dismissed the application on the basis Mr. Thomson had failed to demonstrate the chambers judge had erred in dismissing the application for an extension of time. “The application for leave to appeal…is dismissed with costs to the respondents, His Majesty the King in Right of British Columbia, James Mabee, and Kurt Buller.”

Civil Litigation: Substitutional Service

Fotak v. Capone, 2022 ONCA 430 (40352)
The Applicant, Mr. Fotak, and the Respondent, Ms. Capone, were former married spouses. Between 2013 and 2016, the courts of Ontario issued a number of family law orders and endorsements pertaining to the parties’ separation. In 2019, Mr. Fotak, who has resided in New York since at least the separation, moved to stay these orders for want of jurisdiction, alleging service had not been properly effected in accordance with international convention rules. The motion judge found Mr. Fotak was properly served and dismissed his motion. Substitutional service had been authorized and validated by an Ontario Court. The Ont. C.A. saw no basis to interfere with the motion judge’s findings and dismissed the appeal. It noted a decision to grant or decline to grant a stay is discretionary and is entitled to a high level of deference on 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: Vexatious Litigation

Jacques v. Rona Inc., 2021 BCCA 37 (40495)
Following two unsuccessful Provincial Court proceedings against the Respondent Rona Inc., Applicant Chang Jacques commenced a proceeding by way of a petition in the B.C.S.C. The petition sought relief similar to that which had been sought in the Provincial Court. Rona applied to have Ms. Jacques’ petition struck, and the application was granted. Ms. Jacques was declared a vexatious litigant, and prohibited from commencing legal proceedings against Rona in either the Provincial or Supreme Court without leave. After filing a number of subsequent, unsuccessful applications in the Supreme Court, Ms. Jacques filed a requisition to have the order declaring her a vexatious litigant set aside. The court dismissed the application and issued an order prohibiting Ms. Jacques from filing further documents in any way connected with the subject matter of the proceeding. The B.C.C.A. dismissed Ms. Jacques’ 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.”

Class Actions: Declinatory Exceptions

Groleau, et al. v. Québec (Attorney General), 2022 QCCA 545 (40264)
The Québec Superior Court dismissed the motion for declinatory exception ratione materiae brought by the Respondent, the Attorney General of Québec, against an application for authorization to institute a class action made by the Applicants, Ms. Groleau and Ms. Landry. The Qué. C.A. unanimously allowed the Respondent’s appeal, granted the motion for declinatory exception and dismissed the Applicants’ application for authorization to institute a class action. “The application for leave to appeal…is dismissed.”

Class Actions: Neighbourhood Disturbances

Location Jean Miller inc., et al. v. Comité des citoyens pour la sauvegarde de notre qualité de vie (Val-David), et al., 2022 QCCA 522 (40274)
The Respondent, Comité des citoyens pour la sauvegarde de notre qualité de vie (Val-David) (“committee”), instituted a class action against the intervener, Paul Bouchard, and the Applicants, Location Jean Miller inc., 9262-9310 Québec inc., c.o.b. as Excavation Miller (2014), and Jean Miller, because of neighbourhood disturbances suffered between May 6, 2006 and December 31, 2013 as a result of the operation of a sandpit on Montée Gagnon in the municipality of Val-David. In September 2013, the Superior Court allowed the re‑amended motion for authorization to institute a class action and authorized the bringing of the action. The intervener, Mr. Bouchard, was the owner of the sandpit that was operated at the relevant time by the Applicant Location Jean Miller, a company wholly owned by the Applicant Mr. Miller. The committee represents the members of a class composed of persons who lived, worked and/or attended school along the route travelled by trucks owned by Location Jean Miller between the sandpit and highway 117. It was alleged in the proceedings the class members had suffered abnormal and excessive neighbourhood disturbances and annoyances within the meaning of art. 976 of the Civil Code of Québec. The class action was also based on faults committed in the operation of the sandpit under art. 1457 and intentional interference with rights and enjoyment of property under ss. 6 and 49 of the Charter. The Superior Court allowed in part the originating application against Location Jean Miller, 9262-9310 Québec inc., c.o.b. as Excavation Miller (2014), Mr. Miller and Mr. Bouchard, and the Qué. C.A. dismissed their appeals. “The application for leave to appeal…is dismissed with costs to the respondent, Comité des citoyens pour la sauvegarde de notre qualité de vie (Val-David).”

Class Actions: Neighbourhood Disturbances

Bouchard, et al. v. Comité des citoyens pour la sauvegarde de notre qualité de vie (Val-David), et al., 2022 QCCA 522 (40275)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs to the respondent, Comité des citoyens pour la sauvegarde de notre qualité de vie (Val-David).”

Class Actions: Product Liability

Fortin v. Mazda Canada inc., 2022 QCCA (40300)
The Superior Court authorized a product liability class action in connection with the locking mechanism on 2004 to 2007 Mazda 3 vehicles. The Superior Court later granted a motion to split the proceeding so the argument on liability would be heard prior to and separately from the hearing on quantification of the collective damages claimed. The manufacturer was ordered to pay the class members damages corresponding to a price reduction for failure to disclose an important fact about a safety feature. However, the Superior Court subsequently rejected the evidence adduced to quantify those damages and dismissed the application for a price reduction. The Qué. C.A. unanimously dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Assault; Criminal Harassment

F.H. v. R., 2022 QCCA 964 (40441)
There is a publication ban in this file, in the context of assault, criminal harassment, repeated communications charges. “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: Delay

Kelly v. R., 2022 NBCA 46 (40444)
The Applicant was charged with theft over $5K and fraud over $5K. As a result of the delay caused by the investigator’s prolonged illness and court closures due to COVID-19, the trial concluded beyond the 18 month presumptive ceiling from the date the information was laid to the conclusion of the trial. The Provincial Court judge dismissed the Applicant’s s. 11(b) Charter application. The lead investigator’s prolonged illness was out of the Crown’s control and constituted exceptional circumstances. The Applicant was convicted of both counts. The theft over $5K was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The N.B. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Fresh Evidence; Hearsay

Downey v. R., 2022 NSCA 59 (40440)
Mr. Downey was convicted by a jury for the second degree murder of Mr. McInnis and the attempted murder, unlawful confinement, and kidnapping of Mr. Thompson. The Crown’s theory was an attempted robbery with accomplices resulted in Mr. Downey fatally shooting Mr. McInnis and shooting Mr. Thompson after he had been bound and transported to a graveyard. On appeal, Mr. Downey applied to admit fresh evidence consisting of hearsay evidence one of the accomplices made inculpatory out-of-court statements to a private investigator and the police. The N.S. C.A. dismissed the fresh evidence motion and the appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Fresh Evidence; Hearsay

Downey v. R., 2022 NSCA 59 (40487)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed.”

Criminal Law: Homicide; Hearsay

McMorris v. R., 2020 ONCA 844 (40464)
Mr. Coombs was shot to death by three assailants. Witnesses saw one shooter drop a black hoodie as he fled. Evidence placed Mr. McMorris near the scene of the shooting and his DNA was the only DNA found on the hoodie. Mr. Bent pleaded guilty to being one of the shooters but refused to testify at Mr. McMorris’s trial. A witness told police Mr. Bent told him he was the shooter who discarded the hoodie, however, in an intercepted jail cell conversation with the same witness, Mr. Bent implicated Mr. McMorris as a shooter. Trafford J. denied motions to admit the witness’s hearsay evidence. A jury convicted Mr. McMorris of first degree murder. 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 dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Criminal Law: Sentencing

Vaillancourt v. R., 2020 QCCA 1586 (40290)
The accused, Luc Vaillancourt, a criminal lawyer at the time of the events, was convicted by a Court of Québec judge of conspiracy and trafficking in drugs intended for his client in custody, contrary to s. 5(1) and (3)(a) and (a.1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code. He was sentenced to imprisonment for six years. The Qué. C.A. dismissed Mr. Vaillancourt’s appeal from the conviction but allowed his appeal from the sentence in part in order to subtract 111 days to take account of the time spent in remand. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Employment Law: Termination

Hussey v. Bell Mobilité Inc., 2022 FCA 95 (40338)
The federally-regulated Respondent employed the Applicant for approximately seven years before terminating her employment based on performance issues without first resorting to progressive discipline. A Canada Industrial Relations Board adjudicator found the failure to resort to progressive discipline rendered the Applicant’s dismissal unjust. Instead of reinstating the Applicant, he awarded her compensation in lieu of reinstatement in the amount of 8 months’ pay in recognition of her length of service, and 4 months’ pay as compensation for her loss of the just cause protection rights she enjoyed under the Canada Labour Code consistent with the S.C.C. decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 59. The Fed. Court dismissed the Applicant’s J.R. of the compensation award, holding the Adjudicator’s use of length of service as part of his methodology for assessing compensation was not unreasonable because he included separate compensation for the loss of just cause protection as required by law. The Fed. C.A. dismissed the Applicant’s appeal, holding the Adjudicator was not required by precedent or adjudicative consensus to use a different methodology for calculating the compensation award, and he adequately explained his choice of methodology over another, competing one. “The application for leave to appeal…is dismissed with costs.”

Family Law: Children in Need of Protection; Vaccinations

P.V. v. C.P., et al., 2022 QCCA 325 (40205)
There is a publication ban in this case; a publication ban on the party; a sealing order; certain information is not available to the public, in the context of Covid-19 vaccination or a minor incapable of giving consent. “The motion by C.P. to adduce new evidence is dismissed. The motion by C.P. for an extension of time to serve and file the response to the application for leave to appeal is granted. The motion by P.V. for an extension of time to serve and file the response to C.P.’s extension motion is granted. The application for leave to appeal…is dismissed.”

Health Law: Charter; Transplant Wait-Times

Selkirk, et al. v. Trillium Gift of Life Network, et al., 2022 ONCA 478 (40364)
In November 2010, Mark Selkirk was diagnosed with acute alcoholic hepatitis. Without a liver transplant, his risk of death was 80-90%. However, he was ineligible to be listed for a liver transplant because the eligibility criteria at the time required patients with alcohol-related liver disease (“ALD”) be abstinent from alcohol for six months before they could be considered for a transplant. Mr. Selkirk had been sober for three weeks. Mr. Selkirk died later that month. In 2015, his widow Debra Selkirk brought an application seeking a declaration his rights under ss. 7, 12 and 15 of the Charter were violated and the violation caused his death. She sought a declaration the six-month wait period was in effect for patients with ALD was unconstitutional. Since Mr. Selkirk’s death, the listing criteria for a liver transplant have changed, first in 2018 through a pilot program, and then through permanent modifications to the criteria in 2020. Ms. Selkirk was of the view the changes did not go far enough and sought a declaration the modified criteria for patients with ALD to be listed for a liver transplant were unconstitutional. She also sought a declaration the criteria for participation in the living donor transplant program which mirror the same criteria were also unconstitutional. Trillium Gift of Life Network (“Trillium”) administers the deceased donor program and sets the criteria. Its position is the criteria are evidence-based and consistent with the best available scientific knowledge and the standard of care in Canada. The University Health Network (“UHN”) managed the living donor program. At trial, the questions of the infringement of Mr. Selkirk’s rights and the constitutionality of the six-month rule were found to be moot. The criteria were not found to violate ss. 7, 12 or 15 of the Charter. Further, UHN’s action in establishing the living donor criteria were not subject to Charter scrutiny. The majority of the Ont. C.A. dismissed the appeal relating to the mootness of the former wait regime for liver transplants involving deceased donors and dismissed the appeal relating to the constitutionality of the current criteria for liver transplants involving deceased donors. The court allowed the appeal relating to the current living donor criteria, but neither affirmed nor reversed the application judge’s reasons and conclusion on the issue. The court concluded the constitutionality of the living donor criteria should be considered in the context of a real dispute with actual parties involved in an assessment under the living donor criteria. The dissenting judge of the Ont. C.A. found the application judge erred in granting Ms. Selkirk status as a self-represented public interest litigant. “The application for leave to appeal…is dismissed.”

Immigration: Mootness

Hakizimana, et al. v. Canada (Public Safety and Emergency Preparedness), et al., 2022 FCA 33 (40159)
Frederic Hakizimana and Marie Rose Niyonzima were citizens of Burundi and members of the Tutsi minority. Fleeing Burundi in fear for their lives, they were granted refugee status in Uganda, where they continued to face persecution at the hands of Burundian militias. Canada Border Services Agency determined they were ineligible for refugee status under s. 101(1)(d) of the Immigration and Refugee Protection Act because they had been recognized as Convention refugees by a country other than Canada and could be sent or returned to that country. The Fed. Court dismissed the J.R., holding that CBSA’s conclusion that the Applicants are ineligible for refugee protection was not unreasonable and that the officer did not treat the Applicants unfairly. The court certified a question for appeal. The Fed. C.A. heard the appeal. With the subsequent granting of the Applicants’ permanent residency on humanitarian and compassionate grounds, the court decided the matter had become moot, and dismissed the appeal on that basis, stating the principles governing the doctrine of mootness did not militate in favour of exercising its discretion to decide the appeal on its merits. “The applications for leave to appeal…are dismissed without costs.”

Import/Export: Anti-Dumping Duties

Prairies Tubulars (2015) Inc. v. Canada Border Services Agency, et al., 2022 FCA 92 (40334)
Between December 2016 and January 2017, the Applicant, Prairies Tubulars (2015) Inc., imported oil country tubular goods, types of pipe used in the oil industry. CBSA issued an assessment and imposed duties totalling $18,829,412.40. In order to protect Canadian manufacturers, the margin of dumping on imported goods may be off-set by the imposition of anti-dumping duties on the goods in question. An assessment of anti-dumping duties by a designated CBSA officer is final. Special Import Measures Act provides within ninety days after the making of the determination, the importer of the goods in question may apply in writing to a designated officer for a re-determination of the duties owing, but only if all of the duties owing on the imported goods are paid in advance. The Fed. Court dismissed the Applicant’s J.R. and found it could not address the Applicant’s argument based on its inability to pay the duties because the Act ousted the Fed. Court’s jurisdiction to review the issuance of the duties imposed. Instead, the Applicant was directed to challenge on constitutional grounds, which it had not previously done. The Applicant amended its notice of application to challenge the constitutionality of the provisions. The Fed. Court dismissed the application and found the appeal payment provisions did not violate ss. 96-101 of the Constitution Act, 1867, s. 12 of the Charter, or s. 1(a) of the Canadian Bill of Rights. The Fed. C.A. dismissed the Applicant’s subsequent appeal. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Jurisdiction

Arora v. Canadian National Railway, et al., 2022 BCCA 188 (40320)
Mr. Arora sought to overturn an order dismissing his J.R. of an arbitrator’s decisions in the labour context. The B.C.S.C. had dismissed the petition on the grounds the court did not have jurisdiction to hear the matter because Mr. Arora had no standing to seek J.R. independent of his union. The B.C.C.A. dismissed the appeal and held the chambers judge correctly found Mr. Arora did not meet the test for standing — the complaints he advanced did not engage an exception to the general rule a unionized employee who was not a party to an arbitration cannot seek J.R. of the outcome independently of their bargaining agent. “The application for leave to appeal…is dismissed with costs to the respondents, Canadian National Railway and International Brotherhood of Electrical Workers (System Council No. 11).”

Patents: Infringement; Interpretation

Swist, et al. v. MEG Energy Corporation, 2022 CAF 118 (40363)
Certain information is not available to the public, in the context of patent infringement/interpretation. “The motions by Jason Swist to appoint counsel and to represent Crude Solutions Ltd. are dismissed. The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed with costs.”

Real Property: Guarantees; Mortgages

LeRoy v. Century Services Corp., 2022 BCCA 239 (40369)
When the Respondent provided a high-risk loan to restructure her spouse’s company, the Applicant provided a guarantee that was limited in amount to $2M plus interest and secured by a mortgage on her house. When the company defaulted on the loan and later declared bankruptcy, the business assets were liquidated and a public auction held to sell off equipment. When a deficiency remained, the Respondent made a demand under the guarantee, intending to enforce the mortgage. The Applicant raised defences alleging the equipment sale had been carried out negligently and the Respondent had made improper charges to the loan account. The trial judge determined that the Respondent had made a fraudulent misrepresentation that vitiated the guarantee and rendered the mortgage unenforceable. This was overturned on appeal and the matter was remitted to the trial court for determination of some outstanding issues. The trial judge exercised equitable jurisdiction and declined to calculate the redemption amount at the contractual interest rate of 24% per annum, compounded monthly. Instead, she applied to the redemption amount the prejudgment rates of interest under the B.C. Court Order Interest Act from February 26, 2009 to the date of her decision, and at the contractual rate thereafter. The B.C.C.A. allowed the appeal, holding the court erred in finding it had equitable jurisdiction to vary the contractual rate of interest in the circumstances. “The application for leave to appeal…is dismissed with costs.”

Securities: Distribution Without Prospectus

Heller v. Autorité des marchés financiers, 2020 QCCA 208 (40236)
The Applicant Michael Heller was charged with several offences, including aiding in the distribution of securities without a prospectus for which a receipt was issued by the Respondent, the Autorité des marchés financiers — an offence under s. 11 of Québec’s Securities Act — contrary to s. 208 of the Act. The trial judge in the Court of Québec convicted Mr. Heller of all the charges. His appeal to the Québec Superior Court was dismissed. The Superior Court was of the view s. 208 of the Act creates a strict liability offence. The Qué. C.A. held the Superior Court had erred with respect to the degree of liability for the s. 208 offence. In its view, the offence is one involving general mens rea, that is, knowledge, intent, or recklessness. However, the Qué. C.A. dismissed Mr. Heller’s appeal, finding his knowledge or recklessness had already been proved in this case. “The application for leave to appeal…is dismissed with costs.”

Tax: Capital Cost Allowance

St. Benedict Catholic Secondary Trust v. R., 2022 FCA 125 (40386)
Applicant St. Benedict Catholic Secondary School Trust (the “Trust”), which had a leasehold interest in a school property, claimed certain amounts as capital cost allowance in filing its tax returns for the 1997 — 2003 taxation years; this resulted in, or increased, the amount of non-capital loss realized by the Trust for each of those years. In computing its taxable income for its 2014, 2015 and 2016 taxation years, the Trust included a claim for the non-capital losses it incurred from 1997 to 2003. The Minister of National Revenue reassessed the Trust’s tax liability and denied the non-capital loss claim because the time period within which the losses could be carried forward had expired. In its notice of objection to these reassessments, the Trust no longer claimed it could carry forward the non-capital losses. Rather, the Trust claimed it had realized a terminal loss in 2017 when it disposed of its leasehold interest in the property, and this loss could be carried back to the 2014 — 2016 taxation years. The Trust sought to reduce the amount of CCA it had claimed in the 1997 — 2003 tax years on the basis the revised amounts would not change the amount of tax payable in those years; the effect of this CCA claim reduction would be to increase the 2017 terminal loss, which the Trust could then carry back to the 2014-2016 taxation years. The Minister did not accept the Trust’s position and confirmed the reassessments. The Trust’s appeals to the Tax Court of Canada and the Fed. C.A. were dismissed. “The application for leave to appeal…is dismissed with costs.”

Tax: Foreign Exchange Trading

Estate of Pasquale Paletta v. R., 2022 CAF 86 (40325)
During his 2000 through 2007 taxation years, Mr. Paletta (“taxpayer”) generated income from a variety of sources approximating $38M in the aggregate. Almost all of that income ($37M) was offset by losses he generated in the course of forward foreign exchange trading activities. In 2014, well after the expiration of the normal reassessment period, the Minister of National Revenue issued reassessments denying the trading losses claimed by the taxpayer for the 2000 through 2006 taxation years and assessed the 2007 taxation year. The Minister applied gross negligence penalties for all years in which trading losses were claimed. The taxpayer appealed to the Tax Court of Canada. The Tax Court allowed the taxpayer’s appeal. It held the trading activities gave rise to a source of income in the form of a business despite having found the trades were not made for profit. The Fed. C.A. allowed the Crown’s appeal and set aside the Tax Court’s conclusion the taxpayer’s forward foreign exchange trading activities gave rise to a source of income; despite the appearances of commerciality, the activity was not in fact conducted with a view to profit, a business or property source of income could not be found to exist. The Fed. C.A. also upheld the Minister’s decision to reopen the taxation years in issue and to apply the penalty assessed on the basis the taxpayer was grossly negligent in representing his losses as business losses even though they were not. “The application for leave to appeal…is dismissed with costs.”

Torts/Insurance: MVA’s; Vicarious Liability

Pinksen v. Rampersad, et al., 2022 ABCA 173 (40301)
The Applicant, Krista Pinksen, owned a vehicle. Her husband allowed the Respondent Roger Rampersad to use the vehicle. He was to return it later that day, but he never did. Two days later, Ms. Pinksen contacted the police to report the vehicle stolen. The investigating officer contacted Mr. Rampersad by telephone and was told the vehicle was parked in the Summerside neighbourhood. The officer, with Ms. Pinksen’s concurrence, told Mr. Rampersad he had until 5 a.m. the next morning to return the vehicle, failing which it would be listed as stolen in the police database. Mr. Rampersad did not return the vehicle by 5 a.m. and Ms. Pinksen reported it stolen. After that deadline passed, Mr. Rampersad was in a collision with the Respondent, Yaser Mansour. Ms. Pinksen brought an application for summary dismissal of Mr. Mansour’s personal injury claim, arguing she was not vicariously liable for the accident because Mr. Rampersad did not have her consent to drive the vehicle at the time of the accident. The Master in Chambers found Ms. Pinksen had given Mr. Rampersad consent to drive the vehicle and dismissed the application. On appeal, the chambers judge decided Mr. Rampersad did not have consent to drive the vehicle at the time of the accident. He thus allowed the appeal and summarily dismissed the personal injury claim. The Alta. C.A. unanimously allowed the appeal against the chambers judge’s decision and set aside the summary judgment. It found Mr. Rampersad had the consent of Ms. Pinksen to possess the vehicle until 5 a.m. the day after she contacted the police. The consent was conditional, but violation of the condition by Mr. Rampersad keeping the vehicle longer did not have the effect of negating Ms. Pinksen’s vicarious liability. “The application for leave to appeal…is dismissed with costs.”

Torts: MVA’s; Accident Benefits

Silverio Pereira v. Aviva General Insurance Company, 2022 ONCA (40413)
The Applicant Silverio Pereira was injured in a 2015 MVA, and sought benefits from his insurer, the Respondent, Aviva General Insurance Company. Mr. Pereira submitted to Aviva two chiropractic treatment plans for his injuries, for which he had already incurred expenses; Aviva denied coverage for both plans. Mr. Pereira then applied to the intervener, Ontario’s Licence Appeal Tribunal (“LAT”), for adjudication and resolution of the dispute, seeking an order he was entitled to such services. A written hearing was scheduled for July 13, 2020, with submissions due by July 6. After Aviva had served and filed its responding submissions, Mr. Pereira brought a motion to add new claims to the dispute and the hearing. The adjudicator ordered the motion to be heard at the same time as the hearing on the issues. The LAT adjudicator dismissed Mr. Pereira’s motion to add new issues to the hearing, and dismissed Mr. Pereira’s application for relief. The same adjudicator then dismissed his request for reconsideration. A panel of the Divisional Court of the Superior Court of Justice unanimously dismissed Mr. Pereira’s appeal from the reconsideration decision and from the original decision refusing him relief. The Ont. C.A. refused Mr. Pereira leave to appeal. “The application for leave to appeal…is dismissed.”