Telecommunications: “Transmission Line”

Telus Communications Inc. v. Federation of Canadian Municipalities, et al.,2023 FCA 79 (40776)
The Canadian Radio-television and Telecommunications Commission issued Telecom Notice of Consultation 2019-57 for the purpose of initiating a broad review of mobile wireless services and their associated regulatory framework. The Commission indicated that the review would focus on three key areas, including the future of mobile wireless services in Canada, with a focus on reducing barriers to infrastructure deployment. In inviting comments on the matter, an access issue arose which asked whether the CRTC’s jurisdiction over access to municipal infrastructure extended to the installation of 5G small cells. This required the Commission to interpret the term “transmission line” in s. 43 of the Telecommunications Act. In the CRTC’s view, “transmission line” could not include small cells or any technologies that transmit telecommunications wirelessly such that it did not have jurisdiction to resolve disputes in this area by way of the access regime. The Fed. C.A. confirmed this interpretation, and dismissed the appeal brought by Telus Communications Inc. “The application for leave to appeal…is granted with costs in the cause.”


Arbitration: Appeals

1550 Alberni Limited Partnership v. Northwest Community Enterprises Ltd., 2023 BCCA 141 (40756)
The Applicant, 1550 Alberni Limited Partnership (“Alberni”), is in the real estate development business. It entered into a contract with the Respondent, Northwest Community Enterprises Ltd. (“Northwest”), a magazine production service, for the production of a promotional magazine for the sale of a luxury condominium building. The parties disagreed about the payments owing under the contract and the matter was sent for arbitration. The arbitrator found in favour of Northwest, concluding that the project had changed in scope resulting in increased production costs. The chambers judge dismissed Alberni’s petitions to set aside the arbitral award and for leave to appeal the arbitral award, having found that the arbitrator did not make an arbitral error or error of law. The B.C.C.A. determined that there was no error in the judgment below, and it dismissed Alberni’s appeal. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Motions to Strike

Sajjad Asghar v. R., 2023 FCA 132 (40803)
In 2021, the Applicant filed a statement of claim in Federal Court, seeking damages and other relief in respect of torts allegedly committed by government officials as part of an alleged conspiracy against him. The allegations in question, which relate to the Applicant’s arrival at Pearson Airport in Toronto on September 13, 2021, include searching and damaging his luggage, harassing and threatening him with false arrest, quarantining him, and attacking or interfering with his cellphone. The Respondent Crown moved to strike the claim, pursuant to subsection 221(1) of the Federal Courts Rules, arguing that the pleading failed to disclose a reasonable cause of action, and/or was scandalous, frivolous or vexatious, and/or was otherwise an abuse of process of the court. The motion judge at the Federal Court granted the Crown’s motion and struck the statement of claim in its entirety, without leave to amend. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Governmental Liability

Poorkid Investments Inc., et al. v. Solicitor General of Ontario Sylvia Jones, et al., 2023 ONCA 172 (40733)
The Applicants, Poorkid Investment Inc., The Coach Pyramids Inc. and Brian Haggith, the named representative plaintiffs in a class action brought against the Respondents, Solicitor General of Ontario Sylvia Jones, Ontario Provincial Police Commissioner Thomas Carrique, Ontario Provincial Police Chief Superintendent John Cain, Ontario Provincial Police Inspector Philip Carter and His Majesty the King in the Right of Ontario (collectively referred to as the Crown). The Applicants seek damages from the Crown on behalf of property owners and businesses in Caledonia, Haldimand County and the vicinity as well as on behalf of the persons who entered into agreements of purchase and sale for homes to be built in a proposed new development known as McKenzie Meadows. The claim, based on four grounds of liability (misfeasance in public office, nonfeasance, negligence, and nuisance), alleges that the OPP failed to carry out their duties under the Comprehensive Ontario Police Services, wrongly acted in accordance with the OPP’s “Framework for Police Preparedness for Aboriginal Critical Incidents” and, generally, failed to prevent crime and failed to enforce injunctions against a protest by Indigenous activists in Caledonia. The Applicants brought an application for a declaration that s. 17 of the Crown Liability and Proceedings Act (CLPA), under which any claims or proceedings against the Crown or an officer or employee of the Crown, including claims of misfeasance in public office or bad faith in the exercise of public duties or functions, are deemed to be stayed until leave is granted, violates s. 96 of the Constitution Act and is of no force and effect pursuant to s. 52 of the Constitution Act. The Superior Court of Justice for Ontario declared s. 17 of the CLPA inconsistent with s. 96 of the Constitution Act, and of no force or effect. The Ont. C.A. allowed the appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search and Seizure

Ondo-Mendame v. R., 2023 QCCA 107 (40663)
A vehicle driven by the Applicant, Mr. Ondo-Mendame, in which there were two passengers, was stopped by police officers from the Service de police de la Ville de Québec (“SPVQ”) on the basis of information transmitted on SPVQ radio concerning a fraud. The three individuals were detained for investigative purposes and ultimately arrested. The vehicle was then searched. The Applicant was charged with several criminal offences relating to fraud and conspiracy. He applied under s. 24(2) to exclude all the evidence collected after he was stopped by the SPVQ officers, who, he argued, had not acted in compliance with the powers and duties conferred on them by the common law. The Superior Court granted the motion in part and declared that the Applicant’s constitutional rights had been infringed but that, in the circumstances, the infringements did not bring the administration of justice into disrepute within the meaning of s. 24(2), the items seized admitted into evidence. The Applicant was convicted of the offences charged. The Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Employment Law: Termination

Guy Morin v. Minister of Labour (Ontario), et al., 2023 ONCA (40790)
Mr. Morin was discharged from employment by Huawei Technologies Canada Co. Ltd. on October 1, 2018. The termination letter indicated that there had been ongoing performance issues, but it did not allege cause. Citing s. 50 of the Occupational Health and Safety Act, he alleged the decision to dismiss him stemmed from a complaint of workplace harassment. He later alleged the termination was also related to his exercise of a right to personal emergency leave under the Employment Standards Act. Huawei argued that he was terminated for substandard performance only, and the decision to terminate was made on July 12, 2018. The termination would have occurred on July 13, 2018, had Mr. Morin not delivered the harassment complaint on July 13. Once it had been determined that there was no substance to the harassment complaint, the termination decision was implemented. An employment standards officer found that Mr. Morin had been terminated for performance issues. Mr. Morin invited the Ontario Labour Relations Board to review that decision. The complaints under s. 50 of the Occupational Health and Safety Act and s. 74 of the Employment Standards Act were dismissed. Mr. Morin’s application for judicial review dismissed. The Ont. C.A. dismissed Mr. Morin’s application for leave to appeal. “The application for leave to appeal…is dismissed with costs to the respondent Huawei Technologies Canada Co. Ltd.”

Family Law: Child Support Issues

Lixin Zhao v. Tian Xiao, 2023 ONCA (40890)
The Applicant mother and Respondent father had two children together, a son born in 1996 and a daughter in 2002. The parties were divorced in 2003 and filed a joint affidavit that set out the agreement they had reached including the amount of child support that would be paid by the father until each child reached 18. The parties agreed that the mother would buy the father out of this interest in the matrimonial home. The amount of child support payable by the father would be offset by the amount that the mother was to pay to the father to buy out his interest. Both parties remarried and the father had two more children with his new wife. The mother brought an application for retroactive and ongoing child support and for retroactive and ongoing special expenses for the children. Retroactive child support for a portion of the period claimed by the mother was awarded, as was ongoing child support, to be terminated as each of the children reach 25, subject to certain conditions being met. Retroactive expenses under s. 7 of the Federal Child Support Guidelines were disallowed. Going forward, s. 7 expenses were to be divided in proportion to the parties’ respective household incomes. The appeal judge struck out five of the conditions that the application judge had imposed on the father’s child support obligation. Otherwise, the application judge’s decision remained intact. The mother’s further appeal from this decision was dismissed. ‘The application for leave to appeal…is dismissed with costs.”

Family Law: Relocation

Alison Sarah Friesen v. Mitchell Courtney Friesen, 2023 SKCA 60 (40858)
The parties married in 2012 in Saskatoon, where they both resided. Their child was born in July 2017. The parties separated in May 2018 and by agreement, the mother had primary care of the child. The parties entered into a comprehensive Interspousal Agreement that resolved all issues of parenting, child and spousal support and property division in November 2019. Because there had been four incidents of domestic violence perpetrated by the father against the mother between the date of separation and the date of divorce, the Agreement provided the father with limited parenting time on a two-week rotational basis. The Agreement stipulated that further parenting time for the father was on an agreed upon basis. In reality, the father obtained very little additional parenting time as the mother did not agree. In the meantime, the father had pleaded guilty to one count of assault on the mother, had completed programs aimed at anger management and had received an absolute discharge. The mother served notice that she wished to relocate with the child to Alberta, where she was originally from and where her family resided. The father opposed the application and applied for increased parenting time. The trial judge dismissed the mother’s relocation application and increased the father’s parenting time. The mother’s appeal from these decisions was dismissed. “The application for leave to appeal…is dismissed with costs.”

Pensions: Multi-employer Defined Benefit Plans

Wendy Larkin, et al. v. Marni Johnson, et al.,2023 BCCA 116 (40732)
There is a sealing order in this case, certain information not available to the public, in the context of a multi-employer defined benefit pension plan. “The application for leave to appeal…is dismissed with costs.”