Family Law: Support Guidelines

Roland Nikolaus Auer v. Aysel Igorevna Auer, et al., 2022 ABCA 375 (40582)
The Applicant Roland Auer and Respondent Aysel Auer married in 2004 and divorced in 2008. They had one child. Following the divorce, the Applicant paid spousal and child support to the Respondent. The Applicant challenged the Federal Child Support Guidelines, by bringing an application to have them declared ultra vires the Divorce Act. The application judge dismissed the application. The Alta. C.A. unanimously dismissed an appeal from that decision, but disagreed about the standard of review to be applied in reviewing the vires of regulations. “The application for leave to appeal…is granted with costs in the cause. This appeal will be heard with TransAlta Generation Partnership, et al. v. His Majesty the King in Right of the Province of Alberta, et al. (40570).”

Municipal Law: Tax

TransAlta Generation Partnership, et al. v. His Majesty the King in Right of the Province of Alberta, et al.,2022 ABCA 381 (40570)
Applicants TransAlta Generation Partnership and TransAlta Generation (Keephills 3) (collectively, “TransAlta”) own coal-fired electrical power generation facilities in Alberta. The value of those properties is assessed as “linear property” for municipal taxation purposes. The Municipal Government Act defines the term “linear property”, and authorizes the Minister of Municipal Affairs to establish guidelines for assessing its value. In 2016, TransAlta entered into off-coal agreements with the province, pursuant to which they agreed to cease coal-fired emissions by December 31, 2030. On December 19, 2017, the Minister established the 2017 Alberta Linear Property Assessment Minister’s Guidelines (the “Linear Guidelines”), which set out the procedure for calculating all linear property assessments. The Linear Guidelines do not allow for off-coal agreements to be considered in assessing depreciation. TransAlta brought an application for judicial review which, among other things, challenged provisions of the Linear Guidelines that prevented the off-coal agreements from being considered in the assessment of depreciation as being ultra vires. The chambers judge held that the Linear Guidelines were within the Minister’s authority and were lawfully enacted, and dismissed the application. The Alta. C.A. dismissed TransAlta’s appeal. “The application for leave to appeal,,,is granted with costs in the cause. This appeal will be heard with Auer v. Auer et al. (40582).”


Criminal Law: DUI; Involuntary Intoxication 

Garneau v. R., 2023 QCCA 131 (40754)
Mr. Garneau was arrested for erratic and dangerous driving. The evaluating officer and the toxicology expert, in her report, concluded that he had consumed central nervous system stimulants and depressants, including gamma hydroxybutyrate (GHB). Mr. Garneau claimed that he had not voluntarily consumed GHB. He suggested that his roommate could have put GHB in his bottles of lemon flavoured water, which he had consumed throughout the day. The trial court convicted Mr. Garneau of impaired driving because his defence of involuntary intoxication, considered in light of the evidence as a whole, did not raise a reasonable doubt. The Que. C.A. dismissed the appeal from the conviction and dismissed the application for leave to appeal the sentence given the mootness of 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: Evidence Exclusion

Lambert v. R., 2023 NSCA 8 (40672)
A police investigation led to the seizure of 157 keys of cocaine and the arrests of Mr. Lambert and three co-accused. Mr. Lambert and two co-accused filed applications to exclude evidence. The trial judge found multiple Charter breaches. She excluded some evidence and admitted other evidence. Mr. Lambert was convicted of conspiracy to import cocaine, attempt to traffic cocaine, attempt to possess cocaine for the purposes, and conspiracy to traffic cocaine. The N.S.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Criminal Law: Harassment

Howe v. R., 2023 ONCA (40792)
The Applicant was in jail for criminal harassment of an employee of the university where he was a student; he was suspended from the university as a result and directed not to contact university personnel. Within hours of his release from custody, he replied to an email informing him of the suspension with a meme depicting Obi-Wan Kenobi from Star Wars captioned “If you strike me down I will become more powerful than you could possibly imagine”. The university’s director of campus security, who was aware of the Applicant’s criminal history, received the email. Police charged the Applicant with criminally harassing the director of security. The Applicant was convicted at trial. In the context of the Applicant’s criminal history with a university employee, his recent release from custody, and the receipt of the impugned communication by a staff member that the Applicant was directed not to contact, his conduct was threatening within the meaning of the Criminal Code. The complainant’s fear for his safety was reasonable, and the Applicant was reckless as to whether his conduct would harass the complainant. On appeal, the summary conviction appeal judge found no error. The trial judge’s findings of fact about the context of the communication supported his conclusions that the conduct was objectively threatening, that the complainant’s fear was reasonable, and that the Applicant was reckless as to whether the complainant would be harassed. The Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed.”

Languages: Government Appointments

Association des juristes d’expression française du Nouveau-Brunswick v. Commissioner of Official Languages for New Brunswick, et al., 2023 NBCA 7 (40684)
The Plaintiff Association of French-speaking Jurists of New Brunswick (“AJEFNB”) filed a motion requesting it be declared that the Respondents, New Brunswick and the Office of the Commissioner of Official Languages ​​of New Brunswick, exceeded their respective powers by making certain decisions in connection with the process leading to the appointment of a new Commissioner of Official Languages. The Respondents each filed a motion to strike. The motion judge struck seven of eight remedial measures requested on the grounds that they fall within the scope of the judicial review provided for in Rule 69 and cannot be granted in the case of a remedy based on s. 43(18) of the Official Languages Act. The N.B.C.A. rejected the appeal and confirmed the decision of the judge hearing the cases, motions, albeit on the grounds that these remedies raise theoretical questions and are not applicable. “The motion for an extension of time to serve and file the applicant’s replies is granted. The application for leave to appeal…is dismissed with costs.”

Personal Injury: MVA’s; Benefits

Steve Charest v. Société de l’assurance automobile du Québec, et al., 2022 QCCA 1615 (40586)
The Plaintiff Mr. Charest was the victim of two road accidents. The first accident in August 1999 for which he received compensation from the Respondent, the Société de Quebec automobile insurance (SAAQ). Although he retained after-effects, Mr. Charest returned to employment in the agricultural sector. The second accident occurred in May 2007 for which he received income replacement compensation until September 29, 2011. On that date, the SAAQ concluded Mr. Charest was able to hold a presumed job as a passenger transportation coordinator. This decision by the SAAQ results from the intervention of a physiotherapist from the SAAQ Medical Office who allegedly suggested to the compensation agent responsible for Mr. Charest’s file to follow up in order to verify the use of his left upper limb and the mobility of his neck. This suggestion follows the observation of an atypical evolution of the condition. During the months of February and March 2011, Mr. Charest was followed without his knowledge and in certain public places. Following viewing of the shadowing videos, expert reports were produced. The doctors concluded that his functional state corresponds to that which he presented before the second car accident and that he is therefore capable of carrying out the alleged job. Consequently, the compensation officer made several decisions relating to the compensation payable which were confirmed during the administrative review. Mr. Charest appealed these decisions before the Administrative Tribunal of Quebec (TAQ). The TAQ rendered two decisions: a first interlocutory decision relating to the admissibility of the evidence resulting from the surveillance and a second on the merit of the appeal. The Que. Superior Court rejected the application for judicial review filed and the Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Torts: MVA; SABS; Limitation Periods

Nunzio Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78(40680)
The Applicant Nunzio Varriano was injured in an MVA in September 2015. He applied to his insurer Allstate for income replacement benefits (“IRBs”). Allstate paid him IRBs between October and December 2015, and notified him in an explanation of benefits letter dated December 30, 2015 (“Benefits Letter”), that his IRBs had been stopped because he had returned to full-time work. In July 2018, Mr. Varriano stopped working again. His claim to resume his IRBs was denied by Allstate. In September 2018, Mr. Varriano filed an application before the Licence Appeal Tribunal (“LAT”) disputing the decision to terminate his benefits. Both on an initial hearing and on a reconsideration hearing, the LAT adjudicator concluded that Mr. Varriano’s application was time-barred, having been filed more than two years after the Benefits Letter. He found that Allstate’s Benefits Letter met the legislative requirements under s. 37(4) of the Statutory Accident Benefits Schedule and accordingly, the limitation period was triggered on December 30, 2015. The Divisional Court overturned the decision of the LAT adjudicator, finding that the Benefits Letter did not meet the legislative requirements under s. 37(4). The Ont. C.A. allowed the appeal, set aside the order of the Divisional Court, and reinstated the decision of the LAT. “The motion for leave to intervene filed by Ontario Trial Lawyers Association is dismissed. The application for leave to appeal…is dismissed with costs.”