Civil Litigation: Stays

Continental Currency Exchange Canada Inc., et al. v. Sprott, et al., 2023 ONCA 61 (40656)
The parties spent many years and millions of dollars on a joint venture to establish a new Schedule 1 bank. However, in January 2015, when the Respondent Eric Sprott advised he no longer wished to participate in funding the project, relations among the parties deteriorated and litigation was commenced. The Applicants sued the Respondents for breach of contract. Several years after the actions were commenced, the Respondents discovered the Applicants were in possession of privileged documents belonging to them regarding the venture at issue in the ongoing litigation stored on a computer file server they had shared. The Respondents also learned the Applicants had obtained copies of their email correspondence. The Respondents brought a motion to stay the proceedings as an abuse of process. The motion judge found the Applicants had access to privileged documents including legal opinions and strategy documents prepared for the Respondents and every email sent or received by anyone from the Respondent Continental Bank of Canada’s email address including emails from in-house counsel and documents prepared for purposes of the litigation. The Applicants led no evidence to refute the presumed prejudice that arose from these findings. The motion judge held the presumed prejudice to the Respondents was serious and the only appropriate remedy was to stay the proceeding. The Applicants’ appeal was dismissed. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Facebook

Facebook, Inc., et al. v. Beaulieu, 2022 QCCA 1736 (40620)
The Applicant Facebook Inc. (and its Canadian subsidiary Facebook Canada Ltd., collectively called Facebook), hosts on its platforms a plethora of advertisements for all types of goods and services. Ms. Beaulieu, the Respondent, has been an active Facebook user since 2013. Between 2017 and 2019, as she was 63 to 65 years old, Ms. Beaulieu was looking for work on the Internet. One such place where she was looking for job postings was Facebook. She claimed the Applicant has discriminatory practices in their ad targeting policies (wherein an advertiser can choose which general groups, including demographic groups, their ad will be shown to), the text of the ads on the site, and in the delivery of the ads (algorithmic decisions as to who actually gets to see the ads). In particular, Ms. Beaulieu claimed she was denied seeing ads for job postings she would have liked to see because she was an older woman. Facebook’s policies were changed in the United States in 2019 to disallow the selection of a target audience based on prohibited grounds. These same changes came into effect in Canada on December 31, 2021. The Respondent decided to institute a class action law suit against the Applicant for “[a]ll Facebook users located in Québec who were interested in receiving or pursuing employment or who were seeking housing and who, as a result of their race, sex, civil status, age, ethnic or national origin, or social condition, were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities, or who were explicitly excluded from eligibility for these opportunities through advertisements posted on Facebook, between April 11, 2016 and the date of judgment in the present proceedings.” The Superior Court denied authorization for lack of commonality, while the Qué. C.A. overturned that ruling, allowing authorization. “The application for leave to appeal…is dismissed. Côté J. took no part in the judgment.”

Criminal Law: Fine in Lieu of Forfeiture

Abdelrazzaq v. R., 2023 ONCA 231 (40704)
Following a plea of guilty to trafficking cocaine and possession of the proceeds of crime, the Applicant was sentenced to four years. The Applicant challenged the constitutionality of the Crown’s request for a fine in lieu of forfeiture in the amount of $74,560 (the payment the Applicant received for the sale of cocaine to a police agent), on the basis ss. 462.37(3) and (4) of the Criminal Code violated his rights under the Charter. The trial judge held the fine in lieu of forfeiture provisions constituted cruel and unusual treatment in violation of s. 12 of the Charter. The Ont. C.A. allowed the appeal and overturned the trial judge’s finding of unconstitutionality. “The application for leave to appeal…is dismissed.”

Criminal Law: Intentional Discharge of Firearm

R. v. P.R., 2023 SKCA 2 (40635)
There is a publication ban this in case, in the context of intentionally discharging a firearm and other charges. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Intellectual Property: Trademarks

The Ministry of Energy, Commerce and Industry of the Republic of Cyprus v. 3878422 Canada Inc., et al., 2023 QCCA 94 (40654)
The Ministry of Energy, Commerce and Industry of the Republic of Cyprus (“the Ministry”) entered into two transactions with predecessors of the Respondent 3878422 Canada Inc. (“3878 Canada”), in which the Ministry purchased the registered trademark HALOMI and 3878 Canada’s predecessor agreed to avoid certain uses of the trademark. The Respondents started producing and marketing cheese in Canada with the word “Haloumi” on the package. The Ministry brought an action for breach of contract and contractual interference under the prior agreements. In the Superior Court of Québec, the trial judge found the agreements only prohibited “use as a trademark,” and “Haloumi” was being used only as a descriptive term and there was no breach of the agreement. The Qué. C.A. upheld the trial judge’s decision. “The application for leave to appeal…is dismissed with costs.”

Real Property: APS

Nguyen v. Zaza, et al., 2023 ONCA 34 (40633)
The Applicant and the Respondents reached an agreement for the purchase and sale of a residential property, but the parties did not close the transaction. Each side claimed the other was at fault. The Applicant/buyer registered a caution on title to the property, and issued a statement of claim, seeking a declaration the agreement was binding and the Respondents had breached the terms of sale, an order for specific performance and damages. A certificate of pending litigation was placed on the title to the property. The Respondents/sellers counterclaimed for forfeiture of the buyer’s deposit, and brought a summary motion. The Superior Court of Justice granted the Respondents’ summary judgment motion; dismissed the Applicant’s claim, granted the Respondents’ counterclaim, ordered forfeiture of the Applicant’s deposit to the Respondents, and removed the caution and certificate of pending litigation on the property. The Ont. C.A. unanimously upheld these orders and dismissed the Applicant’s appeal from the motion judge’s decision. “The application for leave to appeal…is dismissed with costs.”

Real Property: Arbitration; Order Nisi For Sale

Dahl, et al. v. SSC Security Services Corp., et al., 2023 SKCA (40676)
The parties entered into contracts for the purchase and sale of canola. Under the contracts, the Applicants provided a collateral mortgage and a collateral general security agreement. When the Applicants failed to deliver the required tonnage of canola, the Respondent took the matter to arbitration, resulting in an arbitration award of approximately $1M to the Respondent. The Applicants were unsuccessful in their attempt to seek leave to appeal the arbitration award. The Respondent then obtained an order nisi for sale of the Applicants’ lands, and brought an application seeking a court order to confirm the sale; the Applicants sought an adjournment. The chambers judge refused to grant the Applicants an adjournment, and allowed the Respondent’s application for an order confirming the sale of the lands in question. The Sask. C.A. dismissed the Applicants’ appeal from that decision. “The motion to serve and file an amended application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondent, SSC Security Services Corp.”

Real Property: Water; Restrictive Covenants

Harwood Farms Ltd., et al. v. Western Irrigation District, 2023 ABCA 16 (40659)
The Applicants, Harwood Farms Ltd. and Mervin Harwood, operated an agricultural business involving crops and livestock on 4.5 sections of land northeast of Strathmore, Alberta. The lands were acquired by the Applicants and their predecessors between 1942 and 1990. The Respondent, Western Irrigation District, was responsible for conveying and delivering irrigation water to farmers, ranchers, rural municipalities, and other water users. It diverts and conveys water from the Bow River into its canals during irrigation season and uses spillways, underdrains and relief gates along its system to release drainage water from snowmelt and precipitation to protect infrastructure. The Applicants owned land immediately adjacent to one of the Respondent’s irrigation canals. The certificate of title for the land was subject to a restrictive covenant which granted the Respondent the right to “without liability direct or indirect spill water from its main and secondary canals into any natural water courses in, on or upon the said land”. The Applicants conceded the restrictive covenant permitted the Respondent to spill water from the canal, but only if it is spilt into a natural watercourse. The Applicants commenced an action and sought injunctive relief to prohibit the Respondent from using the relief gate it had installed on the canal that would spill water on to the Applicants’ lands. The Applicants’ claim and subsequent appeal were dismissed. “The application for leave to appeal…is dismissed with costs.”