Granted
Criminal Law: Negligent Operation of a MV
Wolfe v. R., 2022 SKCA 132 (40558)
After consuming alcohol, Mr. Wolfe drove his vehicle on the wrong side of a divided highway at night and collided head-on with another vehicle. Two occupants of the other vehicle were killed. The third occupant was seriously injured. Mr. Wolfe was convicted on two counts of criminal negligent operation of a motor vehicle causing death and one count of criminal negligent operation of a motor vehicle causing bodily harm. He was sentenced to three concurrent terms of imprisonment and three driving prohibitions. The Sask. C.A. dismissed an appeal from the sentences. “The application for leave to appeal…is granted.”
Dismissed
Civil Litigation/Defamation: Permission to Sue Anonymously
A.B., Fondation A.B. v. J-F.R. et al., 2022 QCCA 959 (40446)
There is a publication ban in this case, in the context of an application to bring an action anonymously. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed without costs.”
Civil Litigation: Limitations
Visic v. Elia Associates Professional Corporation, et al., 2022 ONCA 841 (40590)
Ms. Visic was employed by the law firm Elia Associates Professional Corporation in 2007 as an articling student and Ms. Elia was her principal. Her articles ended after 5 months. In 2018, Ms. Visic commenced an action for defamation, negligence, wrongful termination, breach of duty and other causes of action. The defendants filed a motion for summary judgment arguing the action was barred by a limitation period set out in Limitations Act. The Ontario Superior Court of Justice granted summary judgment and dismissed the claim. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Elia Associates Professional Corporation and Patricia Elia. Jamal J. took no part in the judgment.”
Class Actions: Construction Industry
N. Turenne Brique et Pierre inc., et al. v. FTQ-Construction, 2022 QCCA 1014 (40385)
A class action was brought against the Respondent, FTQ-Construction (“FTQ”), the largest Québec union federation of workers in the construction industry, to determine whether it was liable for damage caused to a series of workers and employers (“Applicants”) as a result of the disruption and closure of construction sites in October 2011. The disruption followed the introduction of a provincial bill whose purpose was to change the working conditions of construction workers. The FTQ launched a campaign to oppose the bill after it was introduced. The trial judge found the strike by the workers who had left the construction sites, thereby causing their closure, was illegal. He also found the FTQ was at fault for failing to take the necessary steps to end the illegal strike as quickly as possible. The Qué. C.A. upheld those findings, but it struck out the amount awarded and ordered the individual recovery of compensatory damages by the workers. In its view, the expert evidence did not allow a sufficiently precise determination of the total claim amount. “The motion for an extension of time to serve and file the applicants’ reply is granted. The application for leave to appeal…is dismissed.”
Class Actions: Foreign Defendants
Pohoresky, et al. v. Otsuka Pharmaceutical Company Limited, et al., 2022 QCCA 1230 (40452)
The Applicant M. Pohoresky was prescribed the drug Rexulti and claims to have experienced harmful, undisclosed side-effects, including compulsive gambling carried on in Ontario and Québec. As his father, H. Pohoresky claimed to have suffered due to his son’s gambling compulsion. Although the Applicants live in Ontario, they were substituted for another potential representative plaintiff from Québec who had to withdraw for health reasons. Together the Applicants sought authorization in Québec to commence a national class action against the Respondents for their alleged failure to disclose the risk of the harmful side effects from Rexulti and to conduct adequate research and testing. While some of the Respondents are Canadian subsidiaries located in Québec, others are foreign defendants. When the Applicants applied to certify their class action, the foreign defendants brought an application for declinatory exception, arguing the Québec courts were not the appropriate forum to adjudicate claims by non-residents of Québec against non-resident defendants for events occurring outside the province. The Superior Court of Québec accepted jurisdiction, granted in part the Applicants’ motion for authorization to institute a class action and dismissed the Respondents’ application for declinatory exception. The Qué. C.A. allowed the Respondents’ appeal. “The application for leave to appeal…is dismissed with costs.”
Class Actions: Opioids
British Columbia v. Apotex Inc., et al., 2022 BCCA 366 (40556)
This is a putative class action in which the proposed class is all federal, provincial and territorial governments that seek to recover damages and healthcare costs arising from the so-called opioid epidemic. The action was commenced in 2018 by the Province of British Columbia alleging the defendants in the pharmaceutical industry had breached duties to consumers in the manufacture and distribution of opioid drugs causing an “epidemic” of addiction and imposing substantial health care and other costs on governments. The Province’s claims were brought, in part, under special legislation, the Opioid Damages and Health Care Costs Recovery Act. The class has not yet been certified. The Province brought an application to amend their pleadings for a third time, in response to ongoing developments in the case and in order to add defendants to the claim. The Respondents sought to strike portions of the pleadings. B.C.S.C.: Application for leave to further amend its notice of civil claim granted; Respondents’ motions to strike various claims and reference to common design dismissed; application to add Noramco as a defendant granted. B.C.C.A.: Respondents’ appeal dismissed except with respect to cause of action in public nuisance; Applicant’s public nuisance claim struck. “The application for leave to appeal…is dismissed with costs to the respondents, Apotex Inc., Bristol-Myers Squibb Canada, Bristol-Myers Squibb Company, Mylan Pharmaceutical ULC, Janssen Inc., Sandoz Canada Inc., Teva Canada Limited, Teva Canada Innovation G.P. – S.E.N.C., Actavis Pharma Company, Ranbaxy Pharmaceuticals Canada Inc., Pharmascience Inc., Imperial Distributors Canada Inc., LPG Inventory Solutions, McKesson Canada Corporation, Noramco Inc., Sanis Health Inc., Shoppers Drug Mart Inc., Valeant Canada LP / Valeant Canada S.E.C., Bausch Health Companies Inc., Paladin Labs, Endo Pharmaceuticals Inc., Endo International PLC and Endo Ventures Ltd. The applications for leave to cross-appeal are dismissed with costs to the applicant. Côté and Rowe JJ. took no part in the judgment.”
Class Actions: Secondary Market Securities
Kootenay Zinc Corp., et al., v. Tietz, et al., 2022 BCCA 32 (40453)
As part of a proposed class action, the Respondent/plaintiff Mr. Lee brought a petition under s. 140.8 of the B.C. Securities Act, for leave to commence a secondary market claim against the Applicants under s. 140.3. The plaintiffs in the action alleged a scheme whereby certain consultants bought shares issued by private placement at a publicly disclosed share price on the undisclosed condition the Applicants would pay them consulting fees for services never rendered. The plaintiffs allege the total amounts paid to the consultants constituted a significant portion of the proceeds of the private placements and, as a result, the Applicants had misrepresented both the price at which the shares were acquired and the proceeds available to the issuers as working capital. The plaintiffs allege they suffered losses by purchasing shares at a price higher than they would have paid but for the scheme, which later eroded in value after the scheme was disclosed. The plaintiffs sought damages or disgorgement of proceeds on the basis of claims of unlawful conspiracy, statutory damages and fraudulent or negligent misrepresentation. The B.C.S.C. granted leave to bring the statutory claim on the basis that action was being brought in good faith and there was a reasonable possibility the action would be resolved in the plaintiffs’ favour. The B.C.C.A. dismissed the Applicants’ appeal. “The application for leave to appeal…is dismissed with costs to the respondents, Michael Tietz, Duane Loewen and Robin Lee.”
Class Actions: Secondary Market Securities
Affinor Growers Inc. v. Michael Tietz, et al., 2023 BCCA 32 (40458)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
Class Actions: Secondary Market Securities
Chaudhry v. Tietz, et al., 2023 BCCA 32 (40459)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
Class Actions: Secondary Market Securities
Brusatore v. Tietz, et al., 2023 BCCA 32 (40632)
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 to appeal…is dismissed with costs.”
Criminal Law: Bail
C. v. R., 2022 ONCA 877 (40610)
There is a publication ban in this case, in the context of bail review after a charge of first degree murder. “The application for leave to appeal…is dismissed.”
Criminal Law: Delay
Carter v. R., 2022 ABCA 276 (40554)
Mr. Carter was charged with criminal harassment and tried jointly with co-accused. The Court of Queen’s Bench of Alberta dismissed an application to stay the proceedings for unreasonable delay in breach of s. 11(d). Mr. Carter was convicted by a jury of criminal harassment. The Alta. C.A. dismissed an appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal,,,is dismissed. Martin J. took no part in the judgment.”
Criminal Law: First-Party Disclosure
L. v. R., 2022 NBCA 28 (40537)
There is a publication ban in this case, in the context of first-party disclosure of information on cell phones. “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: Harassment; Bribery; Charter Standing
Walton, et al. v. R., 2022 ABCA 276 (40480)
The Waltons operated a private security company. They were hired by Mr. Carter to provide protection services and to gather information in support of Mr. Carter’s position in a custody dispute. Mr. Braile worked for the Waltons. He contacted the mother of the child directly and then the police. A criminal investigation ensued. The police relied on Mr. Braile’s voluntary consent and electronic communications to secure the production orders and search warrants. At a voir dire, the trial judge dismissed the Waltons’ s. 8 Charter challenge, finding they lacked standing to bring the application because they did not have a reasonable expectation of privacy in the electronic communications stored by Mr. Braile on his email account. After a trial by judge and jury, Mr. Walton was convicted of criminal harassment. Both Mr. Walton and Ms. Walton were convicted of bribery of a peace officer and a firearms offence. The Alta. C.A. dismissed the appeal. “The motion to join two Court of Appeal of Alberta 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.”
Criminal Law: Manslaughter; Trafficking
Lafrenière-Milot v. R., 2022 QCCA 1015 (40380)
The accused, Jonathan Lafrenière-Milot, was involved in a drug transaction and showed up armed with a knife. During the transaction, the victim tried to steal the drugs from Mr. Lafrenière-Milot, who told the victim he would use his knife if he was not paid. The victim then tried to punch Mr. Lafrenière-Milot, who reacted by avoiding the blow and stabbing the victim with the knife, causing a fatal injury. The trial judge rejected the accused’s defence of self-defence and convicted him of cocaine trafficking and manslaughter. The Qué. C.A. unanimously upheld the trial judge’s decision and dismissed Mr. Lafrenière-Milot’s appeal. “The application for leave to appeal…is dismissed.”
Criminal Law: Sexual Assault
H. v. R., 2022 SKCA 124 (40544)
There is a publication ban in this case, in the context of sexual assault by a physician on a patient. “The application for leave to appeal…is dismissed.”
Insurance: Damages Action
Lamothe v. Joncas, et al., 2022 QCCA 6 (40244)
The Applicant, Mr. Lamothe, brought an action in damages against the Respondents, a personal insurance broker, his company and his professional liability insurer. Mr. Lamothe argued the insurer broker had committed various faults and been negligent in carrying out his mandate. The Court of Québec judge held Mr. Lamothe had not shown on a balance of probabilities the insurance broker had not acted prudently and diligently, and dismissed the action. The Qué. C.A. dismissed Mr. Lamothe’s motion for leave to appeal, finding none of the grounds stated raised a question of principle, a new issue or an issue had given rise to conflicting judicial decisions. “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.”
Insurance: Disability
G.C. v. RBC Life Insurance Company, 2022 QCCA 1141 (40431)
There is a publication ban in this case; a sealing order; certain information not available to the public, in the context of alleged disability pursuant to an insurance policy. “The application for leave to appeal…is dismissed with costs.”
Insurance: Disability
O.C. v. RBC Life Insurance Company, 2022 QCCA 1142 (40434)
Similar summary to that immediately above, including publication ban; sealing order; certain information not available to the public. “The application for leave to appeal…is dismissed with costs.”
Labour Law: Bargaining Unit Inclusion
Les avocats et notaires de l’État québécois (LANEQ) v. Québec (Attorney General) et al., 2022 QCCA 530 (40215)
The Applicant, Les avocats et notaires de l’État québécois (LANEQ), an association certified to represent the lawyers and notaries in the public service of the province of Québec, filed an application with the Administrative Labour Tribunal (ALT) seeking to have 32 counsel included in the bargaining unit it represents. Those counsel worked at the Ministère de la Justice (in the office of the Deputy Minister and two Associate Deputy Ministers) and the Ministère du Conseil exécutif. The ALT dismissed the application for inclusion on the ground an exclusion applied to each counsel, either under the definition of “employee” in s. 1(l) of the Labour Code or under the report of the joint committee constituted by the government for the certification of the Association des juristes de l’État as an association of employees who were members of a professional order. The Superior Court allowed the J.R. with respect to 26 of the 27 counsel for whom the ALT’s decision on their status as excluded from the bargaining unit was the subject of the application. The Qué. C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs.”
Professions/Aboriginal Law: On-Reserve Property
Bogue v. Miracle, 2022 ONCA 672 (40471)
The Applicant provided legal services to the Respondent. The Respondent had not paid legal fees in full. The Applicant maintained a solicitor’s lien over some of the Respondent’s property he seeks to enforce through the appointment of a receiver-manager. The Respondent’s property included, among other things, a business situated on a reserve. The application judge first appointed a receiver-manager for all of the Respondent’s property. The Ont. C.A. remitted the matter to the application judge to consider whether s. 89 of the Indian Act prevents the appointment of a receiver-manager over the Respondent’s on-reserve property. The application judge held s. 89 does not protect on-reserve property where that property originates, as it does in this case, from normal business transactions conducted in the commercial mainstream. The Ont. C.A. held there is no exception to s. 89 for property originating from normal business transactions in the commercial mainstream. The Respondent did not waive his rights under s. 89 as against the Applicant. The Ont. C.A. allowed the appeal and held the receivership and management order would not apply to the Respondent’s on-reserve property. “The respondent’s motion for the payment of costs is dismissed. The application for leave to appeal…is dismissed.”
Professions: Confidentiality
Lemay v. McGill University Health Centre, 2022 QCCA 1394 (40534)
Several articles were published in newspapers concerning allegations of collusion and corruption in awarding contracts for the project to build the new McGill University Health Centre (“MUHC”). Following the publication of those articles, the MUHC retained a lawyer, who retained PricewaterhouseCoopers (“PwC”) to provide forensic accounting assistance. The work to be done by PwC involved conducting an investigation and producing a preliminary report. The MUHC eventually sent the report to the permanent anti-corruption unit. Caroline Pailliez filed an access to information request with the MUHC in order to obtain a copy of the report, but the request was denied. She then applied to Québec’s Commission d’accès à l’information for a review of the MUHC’s decision. The Commission found the preliminary report was protected by the professional secrecy of counsel and sending the report to the permanent anti-corruption unit did not necessarily amount to a waiver of such secrecy. It dismissed the application for review. Ms. Pailliez appealed the Commission’s decision, but the Court of Québec dismissed the appeal. Acting in continuance of the proceeding for Ms. Pailliez, Éric Yvan Lemay applied for J.R. of the Court of Québec’s judgment. The Québec Superior Court, ruling only on the issue of waiver of the professional secrecy, held the MUHC had waived such secrecy by sending the report to the permanent anti-corruption unit. It therefore allowed the application for J.R. and remitted the case to the Commission for a decision on the other grounds relied on by the MUHC for denying access to the report. The MUHC appealed the Superior Court’s judgment. Finding the MUHC had not waived the professional secrecy by sending the report to the permanent anti-corruption unit, the Qué. C.A. allowed the appeal, set aside the Superior Court’s judgment and restored the Court of Québec’s judgment upholding the Commission’s decision. “The application for leave to appeal…is dismissed with costs.”
Professions: Discipline
Gélinas v. Gareau, 2022 QCCA 736 (40528)
The disciplinary council of the Chambre des notaires du Québec found the Applicant, Ms. Gélinas, guilty of forgery, of telling the police documents had been signed by a third party when she knew they were forgeries and of obstructing the investigation. For certain counts, it was ordered the Applicant be permanently struck off the roll. For others, it was ordered her permit to practice be revoked. The council’s decisions were, for the most part, upheld by the Professions Tribunal. The Superior Court allowed the J.R. brought by Ms. Gélinas because the judge was of the view her right to procedural fairness had been breached and the penalties imposed by the council were inappropriate. The Qué. C.A. allowed the Respondent’s appeal and set aside the Superior Court’s judgment, since the panel was of the view the judge should not have intervened to substitute his opinion for those of the Tribunal and the council. While the judge had properly identified the applicable standard of review, namely reasonableness, he had in fact applied the standard of correctness. “The motion to serve and file new evidence is dismissed. The application for leave to appeal…is dismissed with costs.”
Professions: Fees
Drizen v. MBM Intellectual Property Law LLP, 2022 ONCA 847 (40591)
The Applicant, Kevin Drizen, signed an engagement agreement with the Respondent, MBM Intellectual Property Law LLP (“MBM”). Following the termination of the retainer, MBM sought payment of approximately $50K in outstanding legal fees. At an assessment of MBM’s accounts, Mr. Drizen claimed he was not a party to the agreement and, instead, his company, GlycoBiosciences Inc. (“Glyco”) was the party to the agreement and therefore responsible for paying any outstanding fees. Given the assessment officer did not have jurisdiction to decide the issue of whether Mr. Drizen or Glyco was a party to the agreement, she referred the issue to the Superior Court for determination. The application judge concluded Mr. Drizen was a party to the agreement. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”
Professions: Legal Advice Re Leases
Chamberland, et al. v. Riokim Holdings (Québec) Inc., 2022 QCCA 953 (40393)
The Respondent, Riokim Holdings (Québec) Inc. (“Riokim”), terminated its lease with the Applicants, Mr. Chamberland and companies controlled by him (collectively “Chamberland”), for arrears of rent. The next month, Chamberland was evicted from the premises. Much later, in June 2019, Chamberland brought an action against its lawyers for professional fault in the preparation of the lease, as the lawyers had allegedly not informed Chamberland the lease could be resiliated unilaterally, and against Riokim for lack of transparency in the performance of the lease. The Superior Court held the action was unfounded because it was prescribed and because no fault could be alleged against the defendants; the court also held the action was abusive because it was clearly unfounded, frivolous and had no chance of success. The Qué. C.A. dismissed the motion for leave to appeal, having determined no new issue, question of principle or issue of law had given rise to conflicting judicial decisions was raised by the proposed appeal so as to merit the court’s attention, and the judgment under appeal contained no apparent defect and was, on the contrary, a well-reasoned decision. “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.”
Tax: Government Assistance
CAE Inc. v. Canada, 2022 CAF 178 (40504)
The Department of Industry Canada made financial contributions to the Applicant under an agreement concerning a scientific research and experimental development (“SR&ED”) project undertaken by the Applicant. The agreement provided for the full and unconditional repayment of all contributions received by the Applicant. The Minister of National Revenue made two assessments in which it was determined the sums the Applicant had received or was entitled to receive under the agreement constituted “government assistance” within the meaning of s. 127(9) of the Income Tax Act. As a result, the portion of those sums used for SR&ED purposes was subtracted from the amount of deductible SR&ED expenditures, and the total of those sums subtracted from the amount of qualified SR&ED expenditures for the purposes of the investment tax credit claimed by the Applicant. The difference between the amount received by the Applicant and the amount of its SR&ED expenditures was also included in the computation of its income. The Tax Court of Canada dismissed the appeal from the assessments on the ground the sums received by the Applicant had not been paid under an ordinary business contract and therefore constituted government assistance within the meaning of s. 127(9) of the I.T.A. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”