Class Actions: Common Law Right to Fish; Expropriation

Hideaway II Ventures Ltd., et al. v. Attorney General of Canada, 2023 BCCA 223 (40834)
The Applicants are representative plaintiffs who applied for certification of a proposed class action. They alleged that the elimination of commercial geoduck fishing in the Strict Protection Zones of the Gwaii Haanas National Marine Conservation Area Reserve in the pacific coastal waters of Canada is an uncompensated expropriation of their right to harvest geoducks. The Respondent, Attorney General of Canada (“Canada”), opposed certification on the basis that the proposed claims were bound to fail. The certification judge concluded the Applicants had demonstrated an arguable cause of action, founded on complex principles regarding expropriation and the common law right to fish. The B.C.C.A. allowed Canada’s appeal; it found it is settled law that no one has a proprietary interest in the fishery in Canada’s tidal waters; the closure of the geoduck fishery in the Strict Protection Zones could not amount to expropriation; the certification judge had therefore erred in law in concluding the Applicants had demonstrated an arguable cause of action. “The application for leave to appeal…is dismissed with costs.”

Class Actions: Telecommunications

R. in Right of Ontario, et al. v. Vanessa Fareau, et al., 2023 ONCA 303 (40823)
The Respondents seek to bring a class action on behalf of prisoners in Ontario correctional facilities and everyone who paid for collect calls originating from such facilities during the relevant period. They claim that Bell charged unreasonable and unconscionable telephone rates for sending and receiving long-distance calls from provincial correctional facilities. On the certification motion, the motion judge found that it was plain and obvious that: (1) the claim that the commission paid to Ontario was an indirect ultra vires tax, and (2) the claim against Bell and Ontario pursuant to s. 72(1) of the Telecommunications Act, disclosed no cause of action. The motion judge granted a permanent stay of the remaining claims of (1) unjust enrichment claim against Bell and Ontario, (2) breach of consumer protection legislation and unconscionable contract claims against Bell, and (3) breach of fiduciary duty against Ontario. The Ont. C.A. upheld the motion judge’s decision to dismiss the ultra vires tax claim. However, they substituted a temporary stay in place of a permanent stay of the remaining claims until such time as the CRTC elects to decide whether to forbear or to decide whether the rate was just and reasonable. “The applications for leave to appeal…are dismissed with costs.”

Creditor-Debtor: Loan Recovery

Gestion Stéphane Harvey inc., et al. v. Patrick Guay, et al., 2023 QCCA 662 (40872)
In August 2013, the Applicant Stéphane Harvey a lawyer practising largely in commercial litigation, proposed that the Respondent Patrick Guay, an entrepreneur with whom he had had a professional relationship for some years, apply for the position of honorary consul for Burkina Faso in Québec. Mr. Guay turned down the proposal. In October 2013, Mr. Harvey invited Mr. Guay to his office for a meeting, during which Mr. Guay agreed to lend Mr. Harvey $100,000 to finance the cost of moving his office and setting up in new premises. Mr. Harvey also asked Mr. Guay once again whether he would agree to apply for the honorary consul position. Mr. Guay allegedly agreed in the end to apply, provided that the performance of the consul’s duties required little time and that there was no financial commitment on his part. Mr. Harvey allegedly reassured Mr. Guay on this subject before setting in motion the process of applying for the position at the end of October 2013. In early November 2013, in parallel with that process, Mr. Harvey presented Mr. Guay with the agreement he had prepared for the $100,000 loan. Both parties signed the agreement at that time. On June 2, 2015, Mr. Guay informed Mr. Harvey that he was withdrawing his application for the honorary consul position after never receiving any official document confirming his appointment, which he had been told of in December 2014. On November 17, 2015, Mr. Guay informed Mr. Harvey by email that the $100,000 loan would not be renewed, and he therefore asked Mr. Harvey to repay it in full by the maturity date, December 15, 2015. On December 10, 2015, Mr. Harvey emailed Mr. Guay his invoice for lump-sum reference fees following his resignation as honorary consul and informed him that he had taken into account the $100,000 repayment required. On December 15, 2015, the Applicants filed an originating application in the Québec Superior Court, claiming $113,718.75 in fees, disbursements and damages from the Respondents. In response, the Respondents filed a defence and a cross-application in which they claimed full repayment of the loan with interest, damages and legal representation fees. The Superior Court dismissed the originating application and allowed the defence and the cross-application in part. The Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search and Seizure

Neumann v. R., 2023 ABCA 200 (40931)
Police obtained the Applicant’s name and cell phone number from a motel and a car rental company, which led to a series of warrants resulting in eventual seizure of 46.9 kilograms of powder cocaine and 47.5 kilograms of crystal methamphetamine. The trial judge concluded that the Applicant’s s. 8 Charter rights were infringed, and that the subsequent warrants were unlawfully obtained. The evidence of the seized drugs and records were excluded under s. 24(2) of the Charter. The Alta. C.A. allowed the appeal and ordered a retrial; holding that the Applicant’s s. 8 Charter right was not infringed, and would have admitted the evidence. “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: Trial Judge/Jury

Saitanis v. R.,  2023 QCCA 1291 (40947)
The Applicant was charged with committing fraud over $5,000, thereby committing the indictable offence in s. 380(1)(a) of the Criminal Code. Mr. Saitanis’s lawyer, in his absence, elected a trial by judge alone and requested a preliminary inquiry be held. Mr. Saitanis was ordered to stand trial on May 22, 2019, when the preliminary inquiry ended by consent. During the facilitation conference on August 29, 2019, Mr. Saitanis’s lawyer informed the prosecutor that he intended to re-elect the mode of trial. The prosecutor did not give his consent, which was a necessary condition for re-election given that the time limit of 15 days from the end of the preliminary inquiry had passed. The Court of Québec dismissed Mr. Saitanis’s motion to re-elect a trial by judge and jury without the prosecutor’s written consent. The Qué. C.A. dismissed the appeal, finding, among other things, that there was no basis upon which Mr. Saitanis could argue that non-compliance with the criteria for the validity of the election made under s. 536(2) overrode the defence’s express decision to elect in his absence. “The application for leave to appeal…is dismissed.”

Criminal Law: Wiretaps

Dax Ste-Marie, et al. v. R., 2022 QCCA 1137 (40821)
There is a sealing order in this case, certain information not available to the public, in the context of wiretap evidence regarding alleged money laundering. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for a sealing order of the motion for an extension of time of the application for leave to appeal is granted. The motion to adduce new evidence is dismissed. The application for leave to appeal…is dismissed.”

Municipal Law: Business Licences

Oscar David Gutierrez Ramirez v. Corporation of the Municipality of Leamington, 2023 ONCA (40854)
The Applicant operated a business known as the “Paradise Night Club” illegally by doing so without a business licence issued by the Respondent. This contravened Business Licensing By-law 05-19 which prohibits any person from operating a business without a business licence. The Respondent commenced an application for a permanent injunction to restrain the Applicant from operating the business. The application judge held that the Applicant had breached the by-law and had persistently and deliberately operated Paradise Night Club illegally. The application judge ordered a permanent injunction. The Ont. C.A. dismissed 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 with costs.”