Prisons: Inmates

John Howard Society of Saskatchewan v. Government of Saskatchewan (Attorney General for Saskatchewan), 2022 SKCA 144 (40608)
When an inmate is charged with a disciplinary offence in a Saskatchewan provincial correctional centre or remand centre, s. 68 of The Correctional Services Regulations requires the institutional authorities to determine, on a balance of probabilities, that the inmate committed that offence in order to find them responsible. Some of the penalties imposed may deprive inmates of their liberty as that term is used in s. 7 of the Charter. The John Howard Society of Saskatchewan sought an order declaring that s. 68 of the Regulations is contrary to s. 7 of the Charter as it does not require proof beyond a reasonable doubt. The Court of Queen’s Bench of Saskatchewan dismissed the application, holding that s. 68 of the Regulations does not violate s. 7 of the Charter. The Sask. C.A. dismissed the appeal. “The application for leave to appeal…is granted.”

Torts: Jurisdiction; Accidents Abroad

Duncan Sinclair, et al. v. Venezia Turismo, Venice Limousine S.R.L, Narduzzi E Solemar S.L.R., 2023 ONCA 142 (40696)
The Applicants, Duncan and Michelle Sinclair, and their son were on a European holiday and were injured in an accident in Venice, Italy. They were passengers on a water taxi that crashed into a wooden structure. The Applicants were both injured. The Applicants had arranged their travels through Amex Canada Inc., operating under the name Centurion Travel Service which engages third-party travel suppliers for the provision of travel services such as car services, flights and hotel accommodations, at the request and on behalf of Centurion Card members. The day before flying to Venice, Mr. Sinclair booked transportation from the airport in Venice to their hotel, which included a water taxi ride. The water taxi was dispatched by the Respondent, Venizia Turismo, and owned by the Respondent, Venice Limousine S.R.L. After returning to Canada, the Applicants commenced an action seeking damages arising out of the accident. The Respondents moved to dismiss or stay the action against them for want of jurisdiction. The motion judge dismissed the motion. The Respondents appealed to the Ont. C.A.; a majority of the court found that there was no Ontario contract connecting the dispute to Ontario and allowed the appeal, staying the Applicants’ action. “The application for leave to appeal…is granted with costs in the cause.”


Animal Law: Safety and Care; Adoption

Wang v. Director of Criminal and Penal Prosecutions, 2023 QCCA 719 (40879)
Mr. Wang, the Applicant, was the owner of a cat and two kittens seized by the Director of Criminal and Penal Prosecution (“DCPP”), the Respondent, on August 19, 2021. The adult cat had to be euthanized on August 30, 2021, due to severe and irreversible health issues. Penal proceedings were authorized against Mr. Wang as custodian for having failed to ensure that an animal is kept in a suitable place that is sanitary and clean with sufficient space and lighting, and that the layout or use of those facilities are not likely to affect the animal’s welfare or safety. The DCPP applied for permission to dispose of the animals pursuant to s. 47 of the Animal Welfare and Safety Act (hereinafter, the “Act”), alleging that the welfare and safety of the seized animals were compromised under Mr. Wang’s custodianship. Mr. Wang sought to have the kittens remitted to him possibly under conditions, and filed a motion for stay of proceedings on the basis of a constitutional violation pertaining to the legality of the seizure. The first instance judge granted the application for permission to dispose of Mr. Wang’s animals, ordered that two cats be placed for sale or adoption, and dismissed the motion to stay the proceedings. The Québec Superior Court dismissed Mr. Wang’s appeal and maintained the decision rendered by the first instance judge. A judge of the Qué. C.A. referred Mr. Wang’s application for leave to appeal to a panel of the Qué. C.A. and denied his motion to suspend the provisional execution of the judgment of the Québec Superior Court. The panel then dismissed his motion for leave to appeal. “The application for leave to appeal…is dismissed. Wagner C.J. took no part in the judgment.”

Arbitration: Questions of Law

Tall Ships Landing Development Inc. v. Corporation of the City of Brockville, 2022 ONCA 861 (40611)
The Applicant, Tall Ships Landing Development Inc., and the Respondent, the Corporation of the City of Brockville, entered into a public-private partnership to develop waterfront property in Brockville. A dispute arose between the parties. The Applicant’s claims were submitted to arbitration and an arbitrator was appointed. The parties agreed that any decision of the arbitrator was to be final, subject only to questions of law under s. 45(2) of the Arbitration Act. In three separate arbitral awards, the arbitrator dismissed the Applicant’s claims. The Applicant appealed to the Ontario Superior Court of Justice. The application judge decided in favour of the Applicant, set aside the three arbitral awards, and ordered that a new arbitrator be appointed to preside over the matters upon reconsideration. The Respondent appealed. The Ont. C.A. unanimously allowed the Respondent’s appeal and set aside the decision of the Ontario Superior Court of Justice. In the court’s view, none of the alleged errors made by the arbitrator could properly be considered extricable errors of law. Nor were there any breaches of procedural fairness that could attract review pursuant to s. 46 of the Arbitration Act. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Abusive Litigation; Delay

Per4ma Sports Technology Ltd., et al. v. 172142 Canada Inc., et al., 2023 QCCA 555 (40794)
Vishal Puni and Per4ma Sports Technology Ltd. had been in a commercial relationship with Howard Monk and 172142 Canada Inc., with respect to the manufacture and sale of specialty garments. The relationship between the parties soured and the commercial relationship was terminated. Mr. Puni and Per4ma brought an action against Mr. Monk and 172142 Canada Inc. under various heads of damages, for a total of over $540,000. The trial judge found that there was little to no evidence to support almost all of the claims. The evidence established that two pairs of shorts may have been counterfeited on one occasion, which could have been addressed as a small claim. The trial judge declared the action to be abusive. He dismissed the action entirely and awarded costs to Mr. Monk and 172142 Canada Inc. on account of the abusive nature of the action. A unanimous panel of the Court of Appeal held that leave to appeal was required due to the declaration of abuse, per art. 30(3) C.C.P. It denied leave to appeal because the appeal would have no chance of success and Mr. Puni and Per4ma had provided no explanation of why the Qué. C.A. should exercise its discretion under art. 363 C.C.P. to allow leave to appeal despite the lengthy delay in submitting the application for leave. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Anti-SLAPP

Ian Linkletter v. Proctorio, Incorporated, 2023 BCCA 160 (40787)
Proctorio, Inc., developed a software product designed to monitor (or proctor) students writing exams on their home computers. Proctorio’s software is used by some faculties at the University of British Columbia. Mr. Linkletter was offended by the way Proctorio and its CEO dealt with a UBC student’s complaint about the quality of service received from Proctorio’s helpline during an exam. He expressed his concerns publicly. Then, to learn more, he created a test course, which allowed him to access Proctorio’s instructional videos. The videos are on YouTube, but are unlisted, so they are available to anyone with the correct link, but cannot be accessed without them. YouTube imposes its own terms of service. Mr. Linkletter published the links to seven of the videos on Twitter. Upon discovering this, Proctorio disabled the links and replaced them with new, private links. Mr. Linkletter advised his Twitter audience that the links had been disabled and criticized Proctorio for disabling them. One of his tweets included a screenshot of the Academy web page showing those links as unavailable. Proctorio initiated a claim for breach of confidence, infringements of ss. 3 and 27 of the Copyright Act and circumventing a technical protection measure contrary to s. 41.1 of the Copyright Act. Without notice to Mr. Linkletter, it obtained an interim injunction prohibiting him from downloading or sharing information from the Help Centre or the Academy, or encouraging others to do so, among other things. Mr. Linkletter applied for an order dismissing the action under s. 4 of the Protection of Public Participation Act (“PPPA”). He alleged that Proctorio was using the action as a strategic litigation against public participation suit, not advancing a bona fide claim. Mr. Linkletter’s application to have the action dismissed under s. 4 of the PPPA was dismissed. His application to set aside the interim injunction was allowed in part. The B.C.C.A dismissed his appeal. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Computer Chips

Chelsea Jensen, et al. v. Samsung Electronics Co. Ltd., et al., 2023 FCA 89 (40807)
The Applicants are indirect end-consumers of Dynamic Random Access Memory chips (“DRAM”), a kind of memory chip used in most computer products. They allege that the Respondents, who manufacture DRAM, breached s. 45 and s. 46 of the Competition Act, by conspiring to suppress the global supply of DRAM and increase DRAM prices. The Applicants brought a motion in Federal Court to certify the action as a class proceeding. The motion judge dismissed the motion. He found that the pleadings disclosed no reasonable cause of action because the Applicants had not adequately pleaded the existence of an unlawful agreement, which is an essential element of the offences under s. 45 and s. 46 of the Competition Act. He further found that the Applicants’ evidence failed to satisfy the minimal evidentiary basis required to support their common issues concerning liability. The Fed. C.A. dismissed the Applicants’ appeal. It concluded that the motion judge did not err when he concluded that the statement of claim, even if read generously, did not disclose a reasonable cause of action. Further, it concluded that the motion stated the correct legal standard to assessing commonality and did not err in applying it. “The application for leave to appeal…is dismissed.”

Creditor-Debtor: Garnishment

Entes Industrial Plants Construction & Erection Contracting Co. Inc. v. Centerra Gold Inc., et al., 2023 ONCA 294 (40806)
The Applicant Entes Industrial Plants Construction & Erection Contracting Co. Inc. (“Entes”) brought a motion for garnishment, which was heard at the same time as an application brought by the Respondent, Centerra Gold Inc. (“Centerra”), for approval of a plan of arrangement. Entes is a substantial creditor of the Kyrgyz Republic. It sought to garnish a payment that Centerra would make under the plan of arrangement it applied to have approved. Centerra, through a subsidiary, owned a gold mine in the Kyrgyz Republic. After the Kyrgyz Republic attempted to gain control of the gold mine, Centerra engaged in negotiations within an international arbitration proceeding and arrived at an agreement that would allow it to sever all ties with the gold mine and the Kyrgyz Republic. The application judge approved the plan of arrangement and dismissed Entes’ motion for garnishment. She rejected Entes’ claims that the Kyrgyz Republic had conducted a de facto expropriation of Centerra’s subsidiary from Centerra such that the subsidiary no longer existed as a corporate entity. Entes appealed the dismissal of its motion for garnishment. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs to the respondent Centerra Gold Inc.”

Criminal Law: Child Porn; Voir Dire; Hearsay

Vermeer v. R., 2023 BCCA 206 (40739)
The Applicant was a pastor and computer systems administrator for a church. A network security contractor, in the course of investigating a virus, found child pornography associated with the Applicant’s user account. A police investigation revealed child pornography on the Applicant’s computer, as well as evidence that the Applicant’s computers had been used to seek out further child pornography. All of this evidence was associated with the Applicant’s user accounts. The Applicant testified at trial. The trial judge rejected his evidence and found that it did not raise a reasonable doubt as to his guilt. The Crown’s evidence, though circumstantial, was reliable and there was no reasonable explanation for it other than the Applicant’s guilt. He was convicted. The B.C.C.A. rejected the argument that the Crown’s electronic evidence required a voir dire, and the Applicant did not object to its admission at trial. Any hearsay evidence in the form of file names was either not used for an inappropriate purpose or admissible under the principled exception in any event. Any misapprehensions by the trial judge would not have affected the result. The appeal was dismissed. “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: Extradition

Creighton v. Ministry of Justice for the Department of Justice, United States of America, 2023 ONCA 85 (40916)
There is a publication ban in this case, certain information not available to the public, in the context of extradition to the U.S. re alleged child porn. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Possession for the Purposes

Chartrand v. R., 2023 NSCA 43 (40905)
The Applicant operated the Higher Living Wellness Centre Inc. located in Greenwood, Nova Scotia. The RCMP executed two search warrants on Higher Living — one on the premises itself and the other on its electronic devices. Prior to trial, the Applicant brought a constitutional challenge to the validity of s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and the Access to Cannabis for Medical Purposes Regulations (ACMPR), alleging violations of s. 7 of the Charter. The application was dismissed. The Applicant was convicted of two counts of possession for the purpose of trafficking of cannabis and cannabis resin. The N.S.C.A. dismissed the appeal. “The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Search Warrants; Firearms

Hamouth v. R., 2023 ONCA 541 (40835)
The Applicant was charged with multiple firearm related offences, all of which arose from the execution of a search warrant at a residential address. The Applicant applied in a Garofoli hearing to set aside the search warrant and to have the 4 firearms seized from his residence excluded from the evidence. Feldman J. dismissed the Applicant’s s. 8 Charter application. At trial, the Crown conceded that the Applicant’s s. 10(b) Charter rights were infringed after the police located the firearms. After conducting a s. 24(2) Charter analysis, the trial judge found that in all the circumstances, admitting the firearms would not bring the administration of justice into disrepute. The Ont. C.A. varied the conviction on one of the counts and dismissed the appeal. “The application for leave to appeal…is dismissed.”

Family Law : Spousal Support; Quantum and Duration

Elaine Lois Nairne v. Andrew Ian Mackenzie Nairne, 2023 ONCA 478 (40913)
The parties married in 1993 and separated in 2015 when the wife was 61 and the husband was 55 years of age. At the time of separation, their two children were in full-time attendance at universities away from home. Otherwise, they resided with the wife, in the matrimonial home. The husband is a chartered accountant and at the time of trial, he was 60 years of age. He intended to retire at age 65 and thereafter would be living off of his investment plan. The wife became a chartered accountant during the marriage and was employed in the public health care sector. Both parties were high income earners, but the husband earned three and a half times as much as the wife in the private sector. She planned to retire in March 2022. At trial, the issues were retroactive and ongoing child and spousal support, s. 7 expenses and the sale of the matrimonial home. The wife claimed retroactive spousal support from the date of separation to the date of trial. Going forward, she sought monthly spousal support on an indefinite basis. The husband offered to pay a lump sum for retroactive spousal support based upon the Spousal Support Advisory Guidelines. He also offered to pay ongoing spousal support at the low end of the scale until his retirement. Further, the husband proposed to transfer his interest in the matrimonial home to the wife and he would receive a mortgage for his 50 per cent equity less any payments for retroactive child and spousal support owing to the wife up to the date of trial. The mortgage would be interest-free and the wife would not be obliged to make any payments on it. The wife accepted this proposal. She also accepted the husband’s offer to pay her an equalization payment prior to trial. The trial judge awarded retroactive child and spousal support to the wife, to be deducted from the husband’s equity in the matrimonial home. The trial judge awarded the wife $2,500 per month in ongoing spousal support until the husband retired. The Ont. C.A. dismissed the wife’s appeal on the issues of quantum and duration of spousal support. “The application for leave to appeal…is dismissed with costs.”

Human Rights: Discrimination

Olga Way-Patenaude v. Human Rights Tribunal, et al., 2023 ABCA 109 (40805)
Ms. Way-Petanaude filed a complaint before the Alberta Human Rights Commission alleging her employer, Clean Harbor Energy & Industrial Services Corp., retaliated against her for having previously filed a discrimination complaint. The Alberta Human Rights Commission found that changes to Ms. Way-Petanaude’s crew assignment and shift schedule constituted retaliation and awarded $10,000 damages for injury to her dignity and self-respect. The Court of Queen’s Bench dismissed an application for judicial review and 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 with costs.”

Insurance: Property Damage

Intact Insurance Company v. 2102908 Alberta LTD, 2023 ABCA 34 (40671)
The Applicant is the Respondent’s insurer. After a building in which the Respondent’s business was located flooded, the Respondent made a claim under its commercial insurance policy. The claim was denied by the Applicant. The question of whether the Respondent was entitled to indemnity for property damage pursuant to the policy proceeded in the Court of Queen’s Bench of Alberta by way of desk application regarding a pure question of law based on an agreed statement of facts. The chambers judge ruled in favour of the Respondent after she found an ambiguity in the policy. The judge concluded the Respondent was entitled to the indemnification sought. A majority of the Alta. C.A. dismissed the Applicant’s appeal from that decision. It held the chambers judge did not err in her interpretation of the policy. One judge would have allowed the appeal as she was satisfied that the insurance policy, read as a whole, was not ambiguous and that the Respondent was not entitled to indemnity for property damage. “The application for leave to appeal…is dismissed with costs.”

Leases: Termination; Agriculture

6517633 Canada Ltd. v. Gibson Creek Farms Ltd., et al., 2023 SKCA 19 (40666)
Gibson Creek Farms Ltd., Hard Acres Farms Inc. and 4 Lazy S Farms Ltd. were long-time tenants of farmland owned by 6517633 Canada Ltd. In 2020, 6517633 Canada Ltd., the landlord, applied for a writ of possession under The Landlord and Tenant Act. The landlord-tenant relationship had existed for some time prior to the most recent lease, which was for the 2020 and 2021 crop years, and ended on November 30, 2021, before the matter came before the Court of Queen’s Bench. During the first year of this lease, disagreements arose, and the landlord served a Demand for Possession and Notice to Tenant of Intention to Apply for a Writ of Possession in July 2020. As the matter progressed, the landlord demanded the cleaning and return of certain grain bins, and the application of pesticide to portions of the leased land. The landlord commenced these proceedings asking that the lease be cancelled and that the tenants give up possession of the lands, which proceedings were taken as a request for a writ of possession under s. 50 of The Landlord and Tenant Act. The landlord also sought a declaration that the leasehold interest and charge on the lands had been cancelled by the tenants’ failure to farm using husbandry-like methods during the 2020 crop year. The tenants sought dismissal of the application and full indemnity costs in the amount of $25,933.70. The chambers judge dismissed the application and granted the requested costs. The Sask. C.A. allowed the appeal as to costs, substituting an award of party-and-party costs, but otherwise dismissed the appeal. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”

Media: Disclosure

Canadian Broadcasting Corporation v. Edmundson, 2023 ONCA (40933)
There is a publication ban and sealing order in this case, certain information not available to the public, in the context of disclosure to the media. “The motion to expedite the application for leave to appeal is granted. The application for leave to appeal…is dismissed. The motion for a stay is dismissed.”

Partnerships: Termination

Mark Libfeld, et al. v. Sheldon Libfeld, et al., 2023 ONCA 235 (40705)
Four of the Libfeld parties are brothers who ran a real estate development business. There was no formal agreement between the brothers, the business having originated as the sole proprietorship of their father. When the breakdown of the brothers’ business relationship occurred, there was no consensus as to how to separate the partnership, which gave rise to the underlying litigation. The trial judge concluded that the business ought to be wound up and sold under the supervision of a court-appointed sales officer. The trial judge made no findings of oppression or breach of fiduciary duty against any of the brothers, and dismissed the application made by one of the brothers requesting that a particular real estate transaction be included as an asset of the business. The Ont. C.A. dismissed the appeals pertaining to the real estate transaction being excluded from the wind-up of the business, having found that that determination was based on factual findings and subject to the discretion of the trial judge. It allowed the appeals relating to the certification provision reproduced at paragraph 7 of the trial judge’s order, which it struck for overbreadth and vagueness. “The application for leave to appeal…is dismissed with costs to the respondents Sheldon Libfeld, Jay Libfeld, 1331091 Ontario Inc. and 1331088 Ontario Inc.”

Professions: Contempt of Court; Professional Conduct

Baasch v., 2023 NUCA 7 (40878)
Applicant Emma Baasch, a lawyer, was acquitted by a justice of the Nunavut Court of Justice on a citation for criminal contempt of court. In his reasons for acquittal, the hearing judge made adverse comments concerning Ms. Baasch’s professional conduct. Ms. Baasch sought to appeal. The NU C.A. dismissed Ms. Baasch’s appeal for want of jurisdiction. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to join the lower court file numbers 08-21-397, 2022 NUCJ 47, from the Nunavut Court of Justice, and 08-23-001-CAS, 2023 NUCA 7, from the Court of Appeal of Nunavut, into a single application for leave to appeal and under a single docket number is granted. The application for leave to appeal from the judgment of the Court of Appeal of Nunavut, and from the judgment of the Nunavut Court of Justice…is dismissed.”

Torts: MVA’s; Damages

Parmeet Sidhu v. Amanda Ker, 2023 BCCA 158 (40816)
Ms. Ker’s vehicle collided with Mr. Sidhu’s vehicle (the “Accident”). Mr. Sidhu sued Ms. Ker in negligence. At trial, Ms. Ker admitted liability. At the time of the Accident, Mr. Sidhu was 19 years old. He lived on his family’s blueberry farm and helped his parents with work on the farm. Mr. Sidhu was also a university student and was working part-time at a restaurant. After the Accident, Mr. Sidhu took on an administrative role at the farm in place of the physical labour that he had provided before. He has held full-time employment as a data analyst. The trial judge awarded Mr. Sidhu $258,132 under various heads of damages. The B.C.C.A. allowed the appeal in part. The award for loss of housekeeping capacity was set aside. An award of $1,200.00 for future orthotics was ordered. “The motion for an extension of time to serve the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Wills and Estates: Executors

Victoria Holly Frances Scott v. Kathleen Florence Ruth Scott, 2022 NLCA 61 (40584)
The Respondent, Kathleen Scott applied for letters of probate of her father’s Last Will and Testament and appointment as the sole executor. The Applicant, Victoria Scott, Kathleen’s sister, opposed Kathleen’s application, arguing that solemn proof of the Will was required, and that she should be appointed the sole executor. The applications judge granted Kathleen’s application, ordered the issuance of letters of probate to her, approved her as the sole executor, and removed Victoria as an executor under the Will. The N.L.C.A. dismissed the appeal and dismissed a motion to stay the decision while the Applicant pursued her leave application to the Supreme Court of Canada. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The applications for leave to appeal…are dismissed with no orders as to costs.”