Class Actions: Opioids

Sanis Health Inc., et al. v. His Majesty the King in Right of the Province of British Columbia, 2023 BCCA 306 (40864)
The Opioid Damages and Health Care Costs Recovery Act (the “ORA”) was enacted in British Columbia. The ORA allows the Province to recover health care costs caused or contributed to by “opioid-related wrongs” committed by manufacturers and distributors of opioid drugs. Section 11 of the ORA allows British Columbia to bring an action on behalf of a class consisting of one or more of the governments of Canada and the provinces or territories of Canada. Applicants Sanis Health Inc., Shoppers Drug Mart Inc., Sandoz Canada Inc., and McKesson Canada Corporation (collectively, the “Applicants”), are named as defendants in proposed class proceedings brought under the ORA by the Respondent, His Majesty the King in Right of the Province of British Columbia. The Applicants sought, by way of summary trial, an order striking s. 11 of the ORA as ultra vires the Legislative Assembly of British Columbia and therefore of no force or effect pursuant to s. 52 of the Constitution Act, 1982. The summary trial judge found that the impugned provision was within the legislature’s authority, and dismissed the applications for a declaration of constitutional invalidity. A unanimous B.C.C.A. held that the summary trial judge did not err in upholding the constitutional validity of s. 11 of the ORA, and dismissed the appeal. “The motion to expedite the application for leave to appeal is dismissed. The application for leave to appeal…is granted with costs in the cause. Rowe and Jamal JJ. took no part in the judgment.”

Elections: Voting; Third Party Advertisers

Attorney General of Ontario v. Working Families Coalition (Canada) Inc., et al.,2023 ONCA 339 (40725)
This case concerns the third party spending limits most recently added to the Election Finances Act (“EFA”), in 2021, and whether they infringe the informational component of the right to vote (i.e., a citizen’s right to exercise their vote in an informed manner), which is protected by s. 3 of the Charter. The amendments to the EFA sparked constitutional challenges. The application judge heard and decided two sequential proceedings. In the first proceedings: Working Families Ontario v. Ontario, (“Working Families 1”), the application judge concluded that the extension of a 6-month pre-writ restricted period to one that was doubly restrictive was unjustifiable as it did not minimally impair the free expression rights of third party advertisers. In response to that ruling, the Ontario government announced its intention to invoke the notwithstanding clause in s. 33 of the Charter, and introduced Bill 307, which received Royal Assent five days later as the Protecting Elections and Defending Democracy Act (“PEDDA”). Other than the addition of the notwithstanding clause, the PEDDA amendments to the EFA are identical to the amendments that were invalidated in Working Families 1. In the second proceedings, which give rise to these appeals, the legislation was challenged as a violation of s. 3 of the Charter, and as an improper use of s. 33 of the Charter. The application judge concluded that the use of the notwithstanding clause in enacting PEDDA was not improper, and that the re-enacted spending limits on third party advertising during the pre-writ period did not infringe the right to vote under s. 3. The majority of the Ont. C.A. agreed that the notwithstanding clause was properly invoked. However, it concluded that the appeals should be allowed and declared the challenged spending restrictions invalid, but would suspend the effect of the declaration for 12 months. “The application for leave to appeal…is granted.”


Aboriginal Law/Civil Litigation: Limitation Periods

Ackroyd LLP, et al. v. Aseniwuche Winewak Nation of Canada, a Fellowship of Aboriginal People, 2023 ABCA 60 (40700)
In 2016, the Respondent commenced a negligence action against the Applicants, being their former solicitors, alleging that the Applicants were negligent in allowing their land claim action to be dismissed for long delay. The Applicants brought an application for summary dismissal, arguing that the negligence action had been commenced out of time. A Master dismissed the Applicants’ application for summary dismissal of the negligence action, but the Applicants were successful on appeal before a judge of the Court of Queen’s Bench. The Alta. C.A. allowed the Respondent’s appeal and restored the Master’s decision. It concluded that until the land claims were dismissed for long delay in 2016, the Respondent had not suffered an injury that warranted bringing an action. As such, the professional negligence action was not prescribed or out of time in 2016 when it was filed. “The application for leave to appeal…is dismissed with costs. Jamal J. took no part in the judgment.”

Civil Litigation: Conduct/Contempt/Protocol Orders

Jeremy King v. R., et al., 2023 FCA (40849)
In the course of litigation against the Respondents, the Applicant, Jeremy King, was the subject of an order issued on December 18, 2020, regulating and limiting his conduct in Federal Court (the “conduct order”), by prohibiting him from further communicating verbally with the court and with Registry staff and prohibiting the use of abusive or offensive language in his written communications. On November 26, 2021, Mr. King was the subject of an order finding him to be in contempt of court for failing to comply with the conduct order (the “contempt order”). While attempting to appeal the December 18, 2020 conduct order, Mr. King was then the subject of another order from the Fed. C. A., issued on December 21, 2021, establishing a court access protocol (the “protocol order”) for his proposed appeal of the conduct order. On January 27, 2022, the Fed. C.A. then issued three other orders: 1) an order varying the December 21, 2021 protocol order to also prohibit e-mail communications and court e-mail filings, in addition to verbal communications, and specifying that any communications with court staff can only be made in paper form; 2) an order dismissing Mr. King’s motion for an extension of time to appeal the December 18, 2020 conduct order; and 3) an order dismissing and quashing Mr. King’s proposed appeal from the November 26, 2021 contempt order. “All motions and requests for miscellaneous relief are dismissed. The application for leave to appeal…is dismissed.”

Class Actions: Health Supplements

Jamieson Laboratories Ltd. v. Uttra Kumari Krishnan, et al., 2023 BCCA (40694)
The Respondent, Ms. Krishnan, commenced an action on behalf of residents of Canada who purchased products manufactured by WN Pharmaceuticals Ltd., Natural Factors Nutritional Products Limited (“manufacturers”) or Jamieson Laboratories Ltd. (“Jamieson”) and labelled as containing glucosamine sulfate or other similar contents. Initially, the action was certified against the manufacturers but not against Jamieson. That aspect of the certification application was adjourned with leave given to the representative plaintiff to file a further affidavit and expert opinion from an expert whose report was attached to the affidavit of another expert. The representative plaintiff obtained an affidavit from the expert and renewed the application to certify the class action against Jamieson. The action was then certified against Jamieson. The B.C.C.A. dismissed the manufacturers’ and Jamieson’s appeals. “The application for leave to appeal…is dismissed with costs to Uttra Kumari Krishnan.”

Class Actions: MV Fuel Pumps

Denso International America, Inc., et al. v. Leslie Hand, 2023 QCCA 546 (40802)
In 2020, recall notices were issued in the U.S. and Canada by the Applicants Denso International America Inc. and Denso Sales Canada, Inc. (collectively, “Denso”) and Toyota Sales Canada, Honda Canada Inc. and Subaru Canada Inc. (collectively, the “Manufacturers”), as well as their American affiliates, regarding defective low-pressure fuel pumps manufactured by Denso and installed in many different vehicle models sold or leased in the province of Quebec by the Manufacturers. The Respondent Leslie Hand filed an application for the bringing of a class action for which he asked to be appointed as representative. Mr. Hand asserted that he, along with anyone who purchased or leased a “Subject Vehicle”, defined as being “all vehicles purchased or leased in Canada that contain defective low-pressure fuel pumps designed and manufactured by [Denso]”, was entitled to various forms of compensation. The Superior Court identified two sub-groups of potential members – those who received recall notices and those who did not – and concluded that Mr. Hand, as well as all potential members of the second sub-group, failed to make an arguable case that the fuel pumps in their vehicles were defective or that they should have received a recall notice. The Superior Court determined that the application must fail since Mr. Hand is not a member of the first sub-group and authorization is not granted for the second sub-group. The Qué. C.A. granted the appeal, finding that the judge erred in concluding that Mr. Hand had failed to establish an arguable case, and that Mr. Hand benefits from a presumption of prejudice under the Consumer Protection Act. “The application for leave to appeal…is dismissed.”

Criminal Law: Breach of Trust; Conspiracy; Obstruct Justice

Currado v. R., 2023 ONCA 274 (40804)
The Applicant was a police officer with the London Police Service (“LPS”). The Crown alleged that the Applicant accessed and disseminated confidential police information to unauthorized sources, and attempted to obstruct justice by using his position as a police officer to surreptitiously secure the release of a person in custody. The LPS turned carriage of the matter over to the Ontario Provincial Police before any charges were laid. The Applicant testified and stated that he was under the influence of a con man and acted under duress. The Applicant was convicted of breach of trust, conspiracy to commit breach of trust, and attempt to obstruct justice. The application for a stay of proceedings was dismissed. Both the application for a stay of proceedings, and the conviction appeal were dismissed. “The motion to appoint counsel is dismissed. The motion to file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Dangerous Offender Designation

Wong v. R., 2023 ONCA 118 (40837)
A drug dealer arranged to sell marijuana to Mr. Wong. When they met, Mr. Wong grabbed some of the marijuana and fired a gun at the dealer and his friend. At that same time, two men associated with Mr. Wong emerged and also fired guns at the dealer and his friend. Mr. Wong was convicted by a jury of two counts of attempted murder and one count of discharging a firearm with intent to wound. The Crown applied for a dangerous offender designation. The sentencing judge granted the designation and ordered an indeterminate sentence. 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 granted. The application for leave to appeal…is dismissed.”

Criminal Law: Juror Questions

Gordon v. R., 2022 ONCA 799 (40571)
Mr. Gordon was tried before a jury for second-degree murder. Crown counsel’s case in part relied upon surveillance video tapes showing a man of similar appearance but wearing different clothing and shown first with a red backpack but then later without the backpack. During trial, a juror sent the trial judge a note disclosing he had difficulty identifying colours and asking if it mattered. The juror was questioned in court. The trial judge decided not to discharge the juror. The jury convicted Mr. Gordon of second degree murder. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Family Law: Settlement Agreements

John David Arbuckle v. Krista Elizabeth Arbuckle, 2023 ONCA 80 (40678)
The Applicant brought an unsuccessful motion for summary judgment to enforce a previous separation agreement, following which the parties proceeded to mediation. No minutes, memoranda of agreement, or written confirmation of the terms of the mediation were kept, and the Applicant later denied that they had reached a settlement agreement. On the Respondent’s motion for summary judgment, a judge of the Ontario Superior Court of Justice reviewed the record, including evidence from the mediator and other witnesses, and concluded that a settlement agreement had been reached. On appeal, the Ont. C.A. found no palpable and overriding error that would justify overturning the determination that there was an enforceable settlement agreement. “The application for leave to appeal…is dismissed with costs.”

Municipal Law: Non-conforming Use; Acquired Rights

Bullion Properties Inc., et al. v. Ville de Montréal, 2022 QCCA 449 (40692)
The Applicant Bullion Properties Inc. is the owner of lots 2 162 009 and 2 162 026, which are located in the city centre of Montréal, in the cadastre of Quebec. The Applicant purchased lot 2 162 026 on November 1, 2001, and lot 2 162 009 in March 1998. The Applicant Safeway Parking Canada Ltd. has operated a commercial parking lot on these lots since 1998. In 2006, the Respondent, Ville de Montréal, initiated action to close non-conforming parking lots. As a result, in 2006 and 2007, the Applicants received thirty or so statements of offence for using the lots and authorizing the use of the lots as a commercial parking lot in contravention of the by-laws in force at the time. In October 2007, Ville de Montréal also went before the courts to seek an order for the cessation of the use of a commercial parking lot that it alleged was non-conforming pursuant to s. 227 of the Act respecting land use planning and development. The Applicants’ defence to Ville de Montréal’s allegations was that they had an acquired right to the use of a commercial parking lot. The proceedings were stayed before the trial could take place, however, because the Applicants planned to close the parking lot and develop the lots. Negotiations then took place between the Applicants’ urban planner and Ville de Montréal officials. Following the failure of the negotiations, the parties decided to ready the stayed case for trial. The Superior Court dismissed Ville de Montréal’s application for the cessation of a non-conforming use with respect to lots 2 162 009 and 2 162 026 of the Quebec cadastre. It accepted the Applicants’ defence and declared that the lots in question, in their entirety, are protected by acquired rights for the operation of an outdoor commercial public parking lot. The Qué. C.A. allowed 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.”

Professions: Discipline; Expert Reports

Marc Tremblay v. Helen Mpantis, en sa qualité de syndique adjointe de l’Ordre des dentistes du Québec, 2023 QCCA 345 (40731)
The Respondent, Helen Mpantis, in her capacity as assistant syndic of the Ordre des dentistes du Québec, filed a complaint on September 5, 2018 with the Disciplinary Council of the Ordre des dentistes du Québec against the Applicant, Marc Tremblay, a dentist. The complaint consisted in 30 charges and was accompanied by a request for provisional striking off the roll, which was eventually ordered. While preparing for the hearing of the complaint, the Respondent decided, together with her lawyer, to consult two third party specialists because the opinion in the report by her expert differed from the opinion in the report by the Applicant’s expert. The third parties provided, via telephone, their opinions on the two expert reports. The Respondent did not, however, disclose this information to the Applicant, who was nevertheless informed of the consultations. In January 2020, the Applicant filed a motion for a stay of proceedings, in which he alleged that the Respondent was in breach of her duty to disclose the existence and content of expert opinions obtained from third parties after the filing of the complaint. The hearing of the motion commenced on January 23, 2020 before the Disciplinary Council. During the hearing, the Respondent was cross-examined on the identity of the third parties and on the content and substance of what had been communicated during the consultation with them. Counsel for the Respondent, invoking litigation privilege and the professional secrecy of lawyers, objected to these questions and to the filing of notes that were apparently provided by one of the third parties. In a decision rendered on June 23, 2020, the Council disallowed some of those objections and allowed some of them. During the hearing on the merits of the complaint, counsel for the Respondent, invoking litigation privilege, objected to the questions relating to the consultation with those third parties that were posed to the Applicant’s expert, who had apparently been informed about the consultation. The Council, in a decision dated July 30, 2020, disallowed some of the objections relating to the questions that started with [translation] “Who?” and “How come?”. The Respondent applied to the Superior Court for judicial review of the two Disciplinary Council decisions that disallowed the objections raised. The Superior Court allowed the application for judicial review in part, quashing in part the Disciplinary Council’s decision dated June 23, 2020. The Qué. C.A. dismissed the Applicant’s appeal and allowed the Respondent’s appeal. “The application for leave to appeal…is dismissed with costs to the respondent.”

Torts: MV’s; Driver Identification

Rana Dutton v. Shandi Schwab, et al.,2023 BCCA 161 (40760)
The Applicant, Ms. Dutton, was seriously injured in a motor vehicle accident when her vehicle struck the side of a semi-trailer on Highway 97, near Chetwynd, British Columbia. The Respondent, Ms. Schwab, was the only other occupant of the vehicle at the time of the accident. The main question for the court was who was driving the car. The trial judge stated that Ms. Dutton failed to prove that it was more likely than not that Ms. Schwab was the driver and dismissed her action. This decision was upheld on appeal. ‘The application for leave to appeal…is dismissed with costs.”