Granted

Bankruptcy & Insolvency: Debts Not Released by Discharge

Poonian, et al. v. British Columbia Securities Commission, 2022 BCCA 274 (40396)
The Respondent, B.C. Securities Commission (“Commission”) found the Applicants, Thalbinder Singh Poonian and Shailu Poonian (“Poonians”), breached the Securities Act by engaging in conduct resulting in the misleading appearance of trading activity in, or an artificial price for, a corporation’s shares. It then imposed both a disgorgement order and an administrative penalty against the Poonians. The Commission applied to the B.C.S.C. for an order declaring the amounts owed to it by the Poonians were debts that would not be released by an order of discharge under the Bankruptcy and Insolvency Act (“BIA”). The B.C.S.C. granted the Commission’s application. It concluded the debts fell within two exemptions to the discharge of debts outlined at s. 178(1) of the BIA: the debts were fines, penalties or restitution orders imposed by a court (s. 178(1)(a)) and they resulted from obtaining property or services by false pretences or fraudulent misrepresentation (s. 178(1)(e)). The B.C.C.A. dismissed the appeal. While it disagreed the sanctions had been imposed by a court, it concluded the B.C.S.C. had not erred in finding the sanctions in this case fell within the exemption defined in s. 178(1)(e) of the BIA. The fact the misrepresentation was not made to the creditor — in this case, the Commission — did not preclude the Commission from relying on the exemption. “The application for leave to appeal…is granted with costs in the cause.”
 

Bankruptcy & Insolvency: Ponzi Preference Claims

Scott, et al. v. Doyle Salewski Inc. in its capacity as Trustee in Bankruptcy of Golden Oaks Entreprises Inc., et al., 2022 ONCA 509 (40399)
Golden Oaks Enterprises Inc., founded by Joseph Gilles Jean Claude Lacasse, was a Ponzi scheme. The scheme collapsed in 2013 and both Golden Oaks and Mr. Lacasse, Golden Oaks’ principal and directing mind, went into receivership and made assignments in bankruptcy. A trustee in bankruptcy was appointed. It began over 80 separate legal actions against creditors in 2015. Seventeen of these actions were brought against individuals and companies who received payments from Golden Oaks in 2012 and 2013, which included commission payments and interest on promissory notes. The theory of these 17 actions, as a Ponzi scheme, Golden Oaks was by definition insolvent, it never had enough money to pay what it owed to legitimate creditors, and the commission payments and usurious interest payments to the defendants deprived those creditors of their share of the company’s remaining equity. The 17 actions were heard together in a summary trial. The trial judge granted a claim under s. 95(1)(b) of the Bankruptcy and Insolvency Act against Mr. Scott for repayment of $72,575 in preferences, while dismissing other claims against him. With respect to the other investor Applicants, the trial judge granted claims for repayment of interest in varying amounts between $4K and $67,500. The Ont. C.A. dismissed the appeal and allowed the cross-appeal in part. “The motion for an extension of time to file and serve the application for leave to appeal is granted. The application for leave to appeal…is granted with costs in the cause. The appeal is to be heard with the appeal in John Aquino, et al. v. Ernst & Young Inc., in its capacity as Court-Appointed Monitor of Bondfield Construction Company Limited, et al. (40166).”
 

Criminal Law: Police Texting as Dealer

Campbell v. R., 2022 ONCA 666 (40465)
Police seized a cellphone during a search incident to the arrest of a known drug dealer. The phone was displaying incoming text messages on its screen. The police believed the messages revealed a transaction for heroin, which would likely be laced with fentanyl, was in progress. The police impersonated the drug dealer by responding to the text messages, and arranged to have the drugs delivered to the dealer’s residence. Applicant Dwayne Campbell arrived at the residence and was arrested. Mr. Campbell was charged under the Controlled Drugs and Substances Act. At trial, Mr. Campbell brought a motion to exclude evidence, claiming his rights under s. 8 of the Charter had been infringed by the police action in using the dealer’s phone to communicate with him. The trial judge rejected Mr. Campbell’s claim he had a reasonable expectation of privacy in the text messages, and concluded the likelihood the drugs were laced with fentanyl created exigent circumstances that justified the warrantless use of the drug dealer’s cellphone. Mr. Campbell was convicted and sentenced. The Ont. C.A. held Mr. Campbell did have a reasonable expectation of privacy in his electronic communications, but the police action was justified by the exigent circumstances doctrine. Consequently, there was no breach of Mr. Campbell’s s. 8 rights. The Ont. C.A. dismissed Mr. Campbell’s appeal from his conviction and sentence. “The application for leave to appeal…is granted.”

Dismissed

Civil Litigation: Abuse of Process

Hayden v. Bradley J. Hayden Professional Corporation, et al., 2022 ABKB 648 (40486)
The Applicant was made subject to prospective court access gatekeeping by the decision in Hayden v. Hayden, 2020 ABQB 700, and leave to appeal that decision was denied by a judge of the Alta. C.A. After she unsuccessfully attempted to initiate further actions, Rooke A.C.J. prohibited her from filing documents except by leave of the court and subject to further conditions, including payment of an outstanding amount of $11K in penalties: 2022 ABQB 593. The Applicant brought another application, writing to the Chief Justice of the Alberta Court of King’s Bench asking the vexatious litigant Order be set aside because it had been obtained by misrepresentation and asking all Orders by Rooke A.C.J. be vacated. Associate Chief Justice Rooke dismissed the application on the grounds the Applicant had not followed the procedure set out in 2022 ABQB 593, had engaged in judge shopping, had engaged in a collateral attack of 2020 ABQB 700 and other decisions rendered in relation to her, and had provided no evidence the court access restrictions imposed upon her by 2020 ABQB 700 and 2022 ABQB 593 should be reduced or eliminated. The Applicant applied for leave to appeal that decision. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Anti-SLAPP

Michail v. London District Catholic School Board, et al., 2022 ONCA 378 (40305)
The Applicant was employed by the Respondent London District Catholic School Board (“Board”) from 1990 to 2014, when she was terminated. The Board commenced an application to have the Applicant declared a vexatious litigant, pursuant to s. 140 of the Courts of Justice Act. The Applicant responded by bringing a motion under s. 137.1 of the CJA, taking the view the Board’s application was a strategic lawsuit against public participation (“SLAPP”), intended to silence her. The s. 140 application, which has been stayed pending resolution of the Applicant’s motion, has not yet been heard. The Applicant’s motion was dismissed. The appeal was dismissed. The request for leave to appeal costs was dismissed. The Applicant’s motion raising constitutional questions was not addressed. “The application for leave to appeal…is dismissed with costs to the respondent, in the amount of $500.00.”
 

Civil Litigation: Foreign Arbitration Awards

Itani v. Société générale de Banque au Liban SAL, 2022 QCCA 920 (40383)
In April 2000, the Applicant, Rachad Itani, took out a loan for €1,000,000 from the Respondent, Société générale de Banque au Liban SAL, to finance the purchase of a securities portfolio in Lebanon. The securities were held in a trust patrimony managed by the Respondent. The parties signed a trust agreement to secure the repayment of the loan and to set terms for the management of the trust patrimony. The trust agreement included an arbitration clause. The Respondent requested arbitration in accordance with the clause. On August 10, 2006, in Beirut, the arbitrator ordered the Applicant to repay the Respondent €1,319,733.27 with interest at the rate of 4 percent from January 29, 2005. In April 2016, the Respondent applied to the Québec Superior Court to have the arbitration award recognized and enforced. The Applicant opposed the application, arguing it was subject to the 3‑year prescriptive period, which had passed. The Québec Superior Court held the 10-year prescriptive period in art. 2924 of the Civil Code of Québec applied in this case. It recognized the arbitration award and declared the award enforceable in Québec, and it ordered the Applicant to pay the Respondent more than $2.5M. The Qué. C.A. affirmed the trial judgment as regards the issue of the applicable prescriptive period. “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: Motions to Strike

Mozajko v. Canada, 2021 CAF 25 (40395)
The Applicant, Mr. Mozajko, filed a statement of claim by which he sought certain declarations and unspecified damages related to the Access to Cannabis for Medical Purposes Regulations. The claim advanced the same allegations raised in another case which was struck by the Fed. C.A. (Harris v. Canada (Attorney General), 2019 FCA 232). The Crown sought to have Mr. Mozajko’s statement of claim struck. The Fed. Court dismissed, in part, the Crown’s motion. On appeal, Mr. Mozajko argued the failure of the Crown to serve notice of a constitutional question was fatal to the Crown’s argument his statement of claim should be struck. The Fed. C.A. concluded no notice of any constitutional question was required. The Fed. C.A found Mr. Mozajko did not seek to distinguish his statement of claim from that of Mr. Harris. It therefore applied its decision in Harris. It allowed the Crown’s appeal, struck Mr. Mozajko’s statement of claim without leave to amend, and dismissed Mr. Mozajko’s cross-appeal. “Pursuant to Rule 8 of the Rules of the Supreme Court of Canada, the time to serve and file the applicant’s reply is extended to November 29, 2022. The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Prospective Court Access Gatekeeping

Hayden v. Canadian Imperial Bank of Commerce (CIBC), et al., 2021 ABQB 647 (40224)
The Applicant was the defendant in a debt collection action brought by the Respondent bank. The bank filed a Statement of Claim seeking repayment of an outstanding mortgage debt or foreclosure of the mortgaged property. The Applicant’s defence alleged she had been misled by fraud, defamation, misrepresentation and intentional false statements by the bank. She argued it had acted in bad faith by not entering into a consolidation loan which had been discussed. The Applicant filed an affidavit with the Alberta Court of Queen’s Bench seeking permission to file a counterclaim in the collection action which named not only the bank but the other parties listed in this leave application. The Court denied the application for leave to file the counterclaim. It found the additional parties had been improperly added as they had nothing to do with the action between the bank and the Applicant. It also found the counterclaim against the bank had no reasonable basis in law and was an abuse of process. It is from this decision the Applicant sought leave to appeal to the S.C.C. She also requests the proceeding be discontinued against the non-bank parties. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The request to discontinue the proceedings as against all other parties except for CIBC is granted. The application for leave to appeal…is dismissed with costs to Nugent Law Office.”
 

Civil Litigation: Vexatious Litigation

Feeney v. His Majesty the King in Right of Alberta, 2022 ABCA 10 (40230)
An application was brought for a declaration the Applicant was conducting litigation in a vexatious manner and an order he shall not institute further proceedings in either the Alta. C.A. or the Court of Queen’s Bench without the permission of the relevant court. The Alta. C.A. refused to make a declaration with respect to access to the Court of Queen’s Bench. It did find Mr. Feeney had been conducting proceedings in the Alta. C.A. in a vexatious manner. The court ordered Mr. Feeney could not institute further proceedings on his own behalf, or any other person in the Alta. C.A. without the permission of a judge of that court. On appeal, the Alta. C.A. dismissed the application for permission to 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.”
 

Civil Litigation: Vexatious Litigation

Rana v. Rana, et al., 2022 ABCA 378 (40580)
The Applicant was declared a vexatious litigant. He was granted leave to appeal that decision only on the basis the Respondent had failed to notify the Minister he was seeking the vexatious litigant order. The Respondent applied to vary the vexatious litigant order and provided notice to the Minister. The Minister advised they would not be participating in the application.  Rooke A.C.J. varied the vexatious litigant order nunc pro tunc, to rectify the previous failure to serve the Minister. The Applicant’s appeal was dismissed as moot. “The application for leave to appeal…is dismissed.”
 

Class Actions: Group Description; Common Issues

Boudreau v. Attorney General of Québec, et al., 2022 QCCA 655 (40311)
Mr. Boudreau and N.P. sought authorization to represent all persons, or their estates, who were victims of psychological, physical or sexual abuse or were subjected to persecution or human experimentation in any institution operated, administered or directed by the Respondent congregations in the province of Québec from 1935 to 1975. In the proposal, three subgroups of potential members were identified and referred to eligibility for the National Program of Reconciliation with the Duplessis Orphans. The application judge dismissed the application for authorization to institute a class action as he identified shortcomings relating to the common nature of the questions raised and the description of the group. The Qué. C.A. dismissed the appeal and found the application judge did not err in concluding the application for authorization to institute a class action did not meet most of the criteria set out in the legislation. The Qué. C.A. supported the application judge’s conclusion there was real confusion regarding the description of the group and the dilution of common issues was evident. “The application for leave to appeal…is dismissed with costs to the respondents, Attorney General of Quebec, Soeurs de la Providence, Soeurs de Miséricorde de Montréal, Grey Nuns of Montreal, Soeurs Dominicaines de la Trinité, Congrégation des Soeurs de Notre-Dame auxiliatrice and Petites Franciscaines de Marie.”
 

Class Actions: Loss of Personal Information

L. v. Investment Industry Regulatory Organization of Canada (IIROC), 2022 QCCA 685 (40309)
There is a sealing order in this case; certain information is not available to the public, in the context of loss of a laptop by IIROC and personal information. “The application for leave to appeal…is dismissed with costs.”
 

Creditor/Debtor: Guarantees

Cheng v. Grigoras, 2022 ONCA 557 (40387)
Mr. Cheng entered into a guarantee agreement with Mr. Grigoras. When Mr. Grigoras’s obligations came due, payment was delayed. Mr. Cheng served a statement of claim and brought a motion for summary judgment. The trial judge dismissed the motion and held the guarantee was limited to collateral set out in an appendix to the guarantee agreement. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Contempt

Overstory Media Inc., et al. v. Attorney General of British Columbia, et al., 2022 BCSC 1039 (40370)
There is a publication ban in this case, in the context of criminal contempt for breach of an injunction. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Hearsay

Faria v. R., 2022 ONCA 608 (40466)
Victoria Doyle was beaten and strangled to death in her home. The Applicant and Ms. Doyle attended the same New Year’s Eve party on the night of her death. Ms. Doyle returned home after the party; the Applicant followed her there uninvited. There is no direct evidence of what occurred in Ms. Doyle’s home to cause her death, but her blood was found on the Applicant’s winter jacket. Over the months preceding her death, Ms. Doyle made statements, verbally and by text message, describing the deterioration of her intimate relationship with the Applicant. These statements tended to characterize the Applicant as violent and obsessive. At trial, the Crown relied in part upon Ms. Doyle’s statements to allege the Applicant murdered her while committing the offence of criminal harassment, and he intended Ms. Doyle’s fear for her safety, thus elevating the murder to first-degree murder under s. 231(6) of the Criminal Code. The Applicant objected to the admission of Ms. Doyle’s statements on the basis they were needlessly repetitive and therefore prejudicial. The Applicant also sought a directed verdict on first degree murder under s. 231(6) on the basis there was insufficient evidence to satisfy that section’s prerequisites. The trial judge found Ms. Doyle’s statements were admissible hearsay. The trial judge also held there was sufficient evidence of the elements of first degree murder required by s. 231(6) to leave that path to liability with the jury. The jury found the Applicant guilty of first degree murder and the trial judge entered a conviction accordingly. The Ont. C.A. 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 to appeal…is dismissed.”
 

Criminal Law: Impaired Operation of a Vessel Causing Death

Sillars v. R., 2022 ONCA 510 (40460)
The Applicant took an eight-year-old child canoeing during the April spring runoff. The water was frigid and moving swiftly. The boy did not know how to canoe and was a weak swimmer. They were headed towards High Falls to retrieve a piece of debris wedged against a yellow barrier warning of danger due to the falls. The canoe capsized, the child was swept over the falls and died. The Applicant made it to shore. The Applicant was convicted in a judge-alone trial of impaired operation of a vessel causing death and criminal negligence causing death. The Ont. C.A. dismissed the 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.”
 

Criminal Law: Jury Instructions re Mental Health/After-The-Fact Conduct

Lawlor v. R., 2022 ONCA 645 (40500)
The Applicant had engaged in a sexual encounter with two other men in a park. A number of hours later, the body of one of those men was found in the park; he had died due to external neck compression. The Applicant had mental health difficulties and had consumed both psychiatric medication and alcohol around the time he was in the park with the victim and the third man. The Applicant had made several statements both before and after the victim’s death he wanted to harm and kill gay men, and he had at times carried a rope and a knife to do so. In the days following the killing, the Applicant searched the internet for news with respect to the discovery of a body in the park. A jury convicted the Applicant of first degree murder. A majority of the Ont. C.A. dismissed his appeal and held the trial judge’s instructions to the jury had been appropriate. In dissent, Nordheimer J.A. would have allowed the appeal on two grounds: (1) the trial judge failed to instruct the jury on the Applicant’s mental health as it relates to the intent required for murder and (2) the trial judge failed to provide a limiting instruction on the use of after-the-fact conduct evidence. Nordheimer J.A. would have ordered a new trial. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Search & Seizure

Pampena v. R., 2022 ONCA 668 (40470)
The police executed a search warrant at the Applicant’s home and seized drugs and money. After executing the warrant, the police discovered the affiant had mistakenly inverted two numbers in the Applicant’s address in the Information to Obtain, rendering the warrant invalid. At trial, the Crown conceded the error in the search warrant rendered it invalid, and therefore the search was a warrantless search. The Applicant was convicted of possession of cocaine for the purpose of trafficking, possession of marihuana, and possession of property obtained by crime. The trial judge ruled the evidence admissible under s. 24(2) of the Charter. The Ont. C.A. dismissed the conviction appeal. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Search & Seizure

Simon v. R., 2022 QCCA 634 (40294)
Following the receipt of information from a registered informant and seven days of surveillance, the police had reasonable and probable grounds to believe the Applicant, Mr. Simon, was trafficking in heroin. They obtained warrants to search the Applicant’s vehicle and residence as well as those of another individual of interest in the investigation. The police executed the warrants. They arrested the Applicant first behind the wheel of his car and suspended his right to counsel until the other individual was arrested. The suspension lasted just over four hours. During that time, the Applicant was not questioned. When the Applicant, his vehicle and his residence were searched, the police seized a total of 205.8 grams of heroin, two cell phones, $109,876 in cash, small transparent blue bags, bagging equipment and accounting documents. The Applicant was charged with possession of heroin for the purposes and possession of things obtained by the commission of an offence. At trial, he sought to have the evidence excluded under the Charter, alleging the grounds set out in the information in support of the warrant to search his residence were insufficient and his right to counsel had been infringed. The Court of Québec dismissed the motions; the evidence adduced in connection with the motions was entered on the merits and the Applicant was convicted of the offences charged. The Qué. C.A. dismissed the Applicant’s appeal. “The application for leave to appeal…is dismissed.”
 

Elections: Social Media

Therrien v. Chief Electoral Officer of Québec, 2022 QCCA 1070 (40389)
During the 2014 provincial election in Québec, the Applicant posted paid partisan publicity on Facebook during the prohibited seven-day period referred to in s. 429 of the Election Act. The Respondent instituted proceedings against him. The Applicant moved to dismiss the charge on the ground s. 429 does not apply to publicity on social networks. The Court of Québec granted the motion. It stated the charge did not correspond to any offence created by legislation in force at the material time, and it stayed the proceedings. The Québec Superior Court allowed the appeal from the trial judgment and stated s. 429 can apply to a platform like Facebook. It referred the case back to the Court of Québec for the adjudication of the motion for non-suit and, if necessary, the continuation of the proceedings. The Applicant appealed the Superior Court’s judgment. The Qué. C.A. was of the view the prohibition against publicity in s. 429 applied to virtual posting in a virtual space like Facebook. It dismissed the appeal and referred the case back to the Court of Québec for the continuation of the proceedings before the same judge. “The application for leave to appeal…is dismissed.”

 
Employment Law: Termination; Incentive Programs

Leyne v. PSP Investments Canada Inc., 2022 QCCA 407 (40194)
The Applicant, Mr. Leyne, worked for PSP Investments Canada Inc. (“PSP”) for approximately 5.5 years from April 2010 until November 2015 as Managing Director of Value Opportunity. His compensation included a base salary, a short-term incentive program (“STIP”), a long-term incentive program (“LTIP”), and other perquisites and benefits. On November 4, 2015, PSP terminated Mr. Leyne’s employment without a serious reason and without notice. PSP ultimately paid an indemnity representing 39 weeks of base salary and perquisites, STIP awards pro-rated to November 4, 2015, and LTIP awards pro-rated to Nov 18, 2015. For most employees, LTIP awards normally “vest” after four years. The LTIP contained two special provisions related to LTIP entitlements in the event of termination without a serious reason, which provide LTIP payments include pro-rated awards to the “the later of the date of the event or the end of any statutory notice period in the case of termination.” Mr. Leyne sued PSP and sought a reasonable notice period of 12 months and additional indemnities, including pro-rated LTIP awards to the end of the reasonable notice period. The trial judge ordered PSP pay Mr. Leyne additional amounts with respect to the STIP and his pension contributions. It declined to order any additional amounts with respect to the LTIP because of the LTIP provisions that limit such payments in the case of termination. The Qué. C.A. dismissed Mr. Leyne’s appeal. “The application for leave to appeal…is dismissed with costs.”
 

Family Law: Visitation Orders

Rana v. Rana, et al., 2022 ABCA 270 (40474)
The Applicant’s application under the Alberta Personal Directives Act to have a visit with his mother under conditions imposed by the case management judge was granted. The Applicant sought leave to appeal from the visitation order. The Alta. C.A. refused the Applicant’s application for permission to appeal. “The motion to file a lengthy memorandum is dismissed. The application for leave to appeal…is dismissed.”
 

Human Rights: Discrimination

Ayangma v. Prince Edward Island Teachers Federation, et al., 2022 PECA 7 (40414)
The Applicant filed a human rights complaint with the Prince Edward Island Human Rights Commission (“Commission”) alleging discrimination in the context of a job competition. The Executive Director of the Commission issued a Notice of Dismissal with reasons. The Applicant then requested a review of the dismissal by the Chairperson of the Commission. The Chairperson agreed with the Executive Director’s decision to dismiss the complaint. The Applicant’s application for J.R. was dismissed. The Applicant’s appeal was dismissed. “Pursuant to Rule 8(1) of the Rules of the Supreme Court of Canada, the time to serve and file the reply is extended to December 6, 2022. The application for leave to appeal…is dismissed with costs to the respondent, Prince Edward Island Teachers Federation.”
 

Immigration: Misrepresentation

Codina v. R., 2021 ONCA 109 (40491)
Ms. Codina provided advice and services to four sets of clients who retained Codina International for assistance in immigration matters. She was charged with four counts of providing advice or representation for consideration contrary to s. 91(1) of the Immigration and Refugee Protection Act and one count of knowingly counselling a misrepresentation contrary to s. 126 of the Immigration and Refugee Protection Act. The indictment was preferred. Ms. Codina was convicted by a jury on all five counts and sentenced to seven years imprisonment. The Ont. C.A. dismissed appeals from the convictions and the sentences. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to join two Court of Appeal for Ontario files in a single application for leave to appeal is granted. The motion to expedite the application for leave to appeal is dismissed. The application for leave to appeal…is dismissed. Jamal J. took no part in the judgment.”
 

Immigration: Misrepresentation

Codina v. R., 2021 ONCA 317 (40492)
Similar summary to that immediately above. “The motion to expedite the application for leave to appeal is dismissed. The application for leave…is dismissed. Jamal J. took no part in the judgment.”
 

Immigration: Misrepresentation

Codina v. R., 2021 ONCA 109 (40493)
Similar summary to that immediately above. “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. Jamal J. took no part in the judgment.”
 

Insurance: Travel; Punitives

Jennifer Louise Stewart, as executor of the estate of Christopher Stewart v. Lloyd’s Underwriters, et al., 2022 BCCA 84 (40158)
Christopher Stewart purchased a travel medical policy of insurance before going on vacation. The policy was underwritten by Respondents Lloyd’s Underwriters and Industrial Alliance Insurance and Financial Services Inc. / Industrielle Alliance, Assurance et Services Financiers inc. (together, “the insurers”). While on vacation, Mr. Stewart fell and was injured after experiencing a brief loss of consciousness known as “syncope”. He was hospitalized and underwent surgery as a consequence. He was eventually flown back to a hospital in B.C. As a result of this incident, Mr. Stewart incurred close to $300K in medical expenses. The insurers’ agent denied coverage under the travel medical policy, on the grounds Mr. Stewart’s injuries were related to alcohol intoxication. Consequently, health care providers and collection agencies began contacting Mr. Stewart directly to seek payment of outstanding amounts. Mr. Stewart denied he had been intoxicated and retained legal counsel to commence an action against the insurers. Several months before trial the decision to deny coverage was reversed. The insurers’ agent settled Mr. Stewart’s health care bills at a significant discount prior to trial, paying about 20% of the outstanding amount. The trial judge found the insurers had breached their duty of good faith and fair dealing and awarded Mr. Stewart punitive damages, as well as non-pecuniary damages for mental distress. Mr. Stewart’s claim for legal fees as a head of compensatory damages was dismissed. Mr. Stewart passed away after the trial, but his estate appealed from the dismissal of his claim for legal fees. The insurers cross-appealed against the award of punitive damages. The B.C.C.A. dismissed the appeal but allowed the cross-appeal. “The application for leave to appeal…is dismissed with costs.”
 

Labour Law: Grievances

Kot v. Attorney General of Canada, 2022 FCA 133 (40409)
The Applicant, James Kot, was laid off from his job with the federal Department of Transport in 2015. After being placed on a priority hiring list, he was hired by the RCMP in 2016. An amended letter of offer included a clause about Mr. Kot being subject to a one-year probationary period, as the RCMP realized Mr. Kot was being hired from “outside” the public service. Prior to the expiry of the probationary period, the RCMP sent Mr. Kot a letter indicating he was rejected on probation, due to his unsuitability for the position, pursuant to s. 62 of the Public Service Employment Act. Mr. Kot then filed a grievance challenging the validity of his termination. The Fed. Public Sector Labour Relations and Employment Board determined it had no jurisdiction over Mr. Kot’s grievance. The Fed. C.A. unanimously dismissed Mr. Kot’s application for J.R. of the Board’s decision. “The application for leave to appeal…is dismissed with costs.”
 

Patents: Invalidity

Pharmascience Inc. v. Bristol-Myers Squibb Canada Co, et al., 2022 FCA 142 (40400)
The Respondents (collectively, “BMS”) commenced four actions under s. 6(1) of the Patented Medicines (Notice of Compliance) Regulations to prohibit the Applicant, Pharmascience (“PMS”), from obtaining a notice of compliance to market its generic form of BMS’s product, Eliquis, an anticoagulant useful in the treatment of thromboembolic disorders. Two patents related to Eliquis were in issue: the 202 Patent related to apixaban, the active pharmaceutical ingredient in Eliquis, and the 171 Patent pertaining to the formulation of the 2.5 and 5 mg apixaban tablets. BMS also owned the previous 330 Patent, which claimed a vast array of compounds that could potentially be useful in treating thromboembolic disorders. In 2001, BMS discovered apixaban, a compound selected from the 330 Patent, that was useful to inhibit the enzyme FXa and in treating thromboembolic disorders. PMS sought to market its generic form of apixaban and applied to the Minister of Health for a notice of appliance to do so. PMS claimed the 202 and 171 Patents were invalid on the basis of insufficiency, double patenting, anticipation, obviousness, overbreadth, inutility, ambiguity, and insufficiency and inutility of a selection patent. BMS applied for a prohibition order. The application judge granted BMS the prohibition order to keep PMS off the market until after the expiry of the 202 and 171 Patents. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs”
 

Professions: Dentists; Discipline

Alberta Dental Association and College v. Jinnah, 2022 ABCA 336 (40497)
The Respondent was a dentist regulated by the Applicant, Alberta Dental Association and College (“College”).  The Respondent took steps to collect a patient’s unpaid account which eventually ended with the patient writing to the College seeking assistance in resolving this problem. Two and a half years after the patient first contacted the College, a notice of hearing, charging the dentist with unprofessional conduct in relation to her billing and collections practices, was issued. The Hearing Tribunal found the dentist engaged in unprofessional conduct. She was prohibited from practicing for a month, ordered to complete an ethics course and costs of $50K were imposed. The Appeal Panel upheld the Tribunal’s conclusion of unprofessional conduct but quashed the one-month suspension and substituted a reprimand and reduced the hearing tribunal costs to $37,500. The Appeal Panel found the Hearing Tribunal’s sanction of requiring the dentist to take an ethics course was reasonable. It also ordered the dentist to pay costs equal to one-quarter of the Appeal Panel costs. The Alta. C.A. allowed the appeal in part. All misconduct determinations were set aside except for one. The order to take an ethics course was set aside and the cost award was varied. “The application for leave to appeal…is dismissed with costs.”
 

Professions: Membership

Polanski v. Law Society of Ontario, 2022 ONCA (40423)
The Applicant, Charles Polanski, applied to the Law Society of Ontario to be licensed as a lawyer. The Law Society referred his application to a panel of the Hearing Division of the Law Society Tribunal, to determine if he met the “good character” requirement under s. 27(4) of the Law Society Act. In September 2020, the Hearing Division dismissed Mr. Polanski’s application. In November 2021, the Appeal Division of the Law Society Tribunal dismissed Mr. Polanski’s appeal from the licensing decision. Mr. Polanski then sought to appeal the Appeal Division’s 2021 decision, by way of an application before a single judge of the Divisional Court within the Ontario Superior Court of Justice. The Divisional Court dismissed Mr. Polanski’s appeal. The Ont. C.A. refused to grant Mr. Polanski leave to appeal that decision. “The application for leave to appeal…is dismissed with costs.”
 

Professions: Solicitor’s Lien

Slusar v. Merchant Law Group LLP, 2022 SKCA 75 (40377)
Respondent Merchant Law Group LLP (“Merchant Law”) had undertaken legal work for a client, pursuant to a contingency fee agreement, to advance a claim for damages arising from his attendance at a residential school. The client later retained Applicants Bruce J. Slusar and Bruce J. Slusar Law Office, P.C. Inc. (“Slusar Law”) as his new counsel. Merchant Law notified Slusar Law it claimed a solicitor’s lien on the file and sent a statement of its account in relation to the client. Several years later Merchant Law brought a claim against the client and Bruce J. Slusar personally. Merchant Law discontinued its claim against the client, but later filed an amended statement of claim adding Slusar Law as a defendant. A motions judge dismissed Merchant Law’s claim. Merchant Law appealed. The Sask. C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Professions: Vets; Discipline

Dr. Ignacio Tan III v. Alberta Veterinary Medical Association, 2022 ABCA 221 (40362)
The Applicant was a veterinarian. A dog was brought into clinic because of swelling underneath her left eye. A complaint was subsequently made to the Respondent, Alberta Veterinary Medical Association (“AVMA”) respecting the dog’s treatment. The Hearing Tribunal of the AVMA found the Applicant guilty of six allegations of unprofessional conduct and ordered sanctions, including a reprimand, fines, continuing education courses and practice inspections. The appeal to the Committee of Council of the AVMA was dismissed as the Hearing Tribunal’s decision was found to be reasonable. Both the decision and cost award were appealed to the Alta. C.A. The Alta. C.A. found the Applicant had failed to show any reviewable error in the findings of unprofessional conduct and dismissed the main appeal. However, the Atla. C.A. did find a reviewable error with respect to the award of costs and allowed the appeal in that respect only and ordered the Applicant be responsible for only 50 percent of the costs. “The application for leave to appeal…is dismissed with costs.”
 

Securities: Seizure

Autorité des marchés financiers v. Baazov, et al., 2022 QCCA 898 (40365)
Following an investigation and numerous searches, the Applicant, Autorité des marchés financiers (“AMF”), notified the Québec Superior Court no penal or administrative proceedings would be brought against the Respondents. It nevertheless argued it was entitled to keep copies of more than ten million technology-based documents seized during the investigation. The Superior Court determined the AMF could not keep copies of the seized documents; a seizure does not make the AMF the owner of the things seized, but only their custodian, and the public interest requires investigations be conducted in a manner that respects the rights of persons from whom things are seized and third parties. The Qué. C.A. intervened, finding the Superior Court did not have jurisdiction to decide whether copies could be kept, as that power belonged exclusively to the Court of Québec. It therefore dismissed the appeal for lack of jurisdiction. “The motion for an extension of time to serve and file the application for leave to appeal related to judgment in 2019 QCCS 5564 is granted. The application for leave to appeal…is dismissed with costs to the respondents Josh Baazov, Craig Levett, 9179-3786 Québec inc. and The Stars Group Inc., formerly known as Amaya inc. The application for leave to appeal…is dismissed with costs to the respondents, Josh Baazov, Craig Levett, 9179-3786 Québec inc. and Le Groupe Stars inc. formerly known as Amaya inc. Côté J. took no part in the judgment.”
 

Torts: Duty of Care

McCormick v. Pearson, et al., 2022 BCCA 219 (40407)
The Applicant attended a party at the Respondents’ home where underage people were permitted to consume alcohol and drugs. The Applicant and a friend left the party on foot but later stole a vehicle which crashed, injuring the Applicant. The friend died. The trial judge dismissed the Applicant’s claim in negligence against the Respondents on the basis no duty of care was owed to him, as the harm which occurred was not reasonably foreseeable. The B.C.C.A. dismissed the 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.”
 

Torts: Fiduciary Duty; Battery; Assault

His Majesty the King in Right of Ontario, et al. v. Barker, et al., 2022 ONCA 567 (40381)
Twenty-eight men who had been involuntarily committed between 1966 and 1983 to a unit of the Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario, commenced claims against two of the unit’s clinical directors and the Province of Ontario. Twenty-seven plaintiffs claimed programs administered on them were tortious and caused harm with no therapeutic benefit; one claimed he lived in fear of being subjected to the programs. Negligence claims were abandoned at trial. The trial judge found and awarded damages for breach of fiduciary duty, battery, assault, vicarious liability, and knowingly assisting liability. The Ont. C.A. allowed appeals and cross-appeals in part, dismissed one claim and modified some damages awards. “The applications for leave to appeal…are dismissed with costs.”
 

Torts: Malicious Prosecution

F. v. Calgary Police, 2021 ABCA 154 (39969)
There is a sealing order in this case; certain information is not available to the public, in the context of alleged malicious prosecution. “The application for leave to appeal…is dismissed.”
 

Torts: MVA’s; Non-Pecuniary Damages

Valdez v. Neron, et al., 2022 BCCA 301 (40442)
Applicant Nestor Valdez was injured when his vehicle was hit from the rear by a vehicle owned and driven by Respondents Marie Neron and Blair Gosling. Liability was admitted. Damages were assessed by a jury. Mr. Valdez appealed from the jury verdict on the basis it was unreasonable and resulted in an unjust outcome; he asked for a new trial. The B.C.C.A. allowed the appeal and substituted the jury’s non-pecuniary damages award, but declined to order a new trial. “The application for leave to appeal…is dismissed with costs.”
 

Torts: MVA’s; Vicarious Liability

Bowe, an infant, by his litigation guardian, Rosalyn Hina Chalmers v. Boltz, et al., 2022 BCCA 35 (40181)
The Applicant, Tyson Bowe (“Tyson”), suffered injuries in a MVA that was the consequence of a joyride he embarked on with his cousin, the Respondent Dale Bowe (“Dale”), when they were both 15 years old. At the time of the accident, Tyson was living with his stepfather, the Respondent Roy Boltz, who owned the vehicle. Tyson took the keys without Mr. Boltz’s knowledge. Also at the time of the accident, Dale was driving and Tyson was a front seat passenger. A jury allowed Tyson’s claim in negligence against Dale, who was found 60 percent at fault for Tyson’s injuries, but dismissed a negligence claim against Mr. Boltz. Tyson’s further claim Mr. Boltz was vicariously liable for Dale’s negligence under s. 86(1)(a) of the Motor Vehicle Act was successful following a decision on the interpretation of that provision. The B.C.C.A. unanimously allowed Mr. Boltz’s cross-appeal from the trial judge’s decision and varied the order to dismiss the action against him. First, the trial judge erred in construing s. 86(1) of the MVA, and concluding Tyson, a front seat passenger, was “operating” the vehicle at the time of the accident. Second, the B.C.C.A. held the consent given by Tyson for Dale to drive did not make Mr. Boltz vicariously liable for the loss caused by Dale’s negligent acts. “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 with costs to the respondent Roy Boltz.”
 

Wills & Estates: Testamentary Interpretation

Pizzey, et al. v. Vansickle, et al., 2022 ONCA 643 (40449)
Testator Dorothy VanSickle and her husband had owned and operated a hobby farm for many years. After her husband died Ms. VanSickle’s eldest son, Respondent Howard VanSickle, began leasing the farmland from his mother. He continued to do so until her death. After Ms. VanSickle’s death, her estate trustees brought an application for direction concerning the interpretation of a clause in the will which granted Howard VanSickle an option to purchase his mother’s farming business, including the farm land and equipment, for a specified price. The application judge held Ms. VanSickle did not carry on her farming business on the date of her death and her will was ineffective in granting Howard VanSickle an option to purchase the farm property and equipment. Howard and his brother, Respondent Doug VanSickle, appealed from the application judge’s decision. The Ont. C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs.”