Real Property: Adverse Possession

Pawel Kosicki, et al. v. City of Toronto, Formerly the Corporation of the Borough of York, 2023 ONCA 450 (40908)
The Applicants were owners of a residential property in the City of Toronto. They sought an order for adverse possession of a parcel of City parkland that their predecessors in title had fenced off with a chain link fence and enclosed into their backyard. The City acknowledged the Applicants’ evidence satisfied the traditional test for adverse possession. The issue was whether the disputed land was nevertheless immune to a claim for adverse possession by virtue of being City land. The application judge found that a private landowner could not acquire title by encroaching on public land and fencing off portions for their private use. This decision was upheld on appeal. “The application for leave to appeal…is granted with costs in the cause.”


Access to Information: Prison and Parole Records

Karen Fraser, et al. v. Minister of Public Safety and Emergency Preparedness, et al., 2023 FCA (40920)
Members of the family of Constable Sweet who was murdered by Mr. Munro, and the Toronto Police Association, submitted applications under the Federal Access to Information Act, for the release of Correctional Service of Canada and Parole Board records related to Mr. Munro. Members of the families of Ms. Leslie Mahaffy and Ms. Kristen French, who were murdered by Mr. Bernardo, submitted applications under the Access to Information Act for the release of Correctional Service of Canada and Parole Board records related to Mr. Bernardo. The disclosure requests were denied and the Information Commissioner affirmed the denials. The Fed. Court dismissed applications for judicial review. The Fed. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Civil Litigation: Delay

Bonnie-Gale Baun v. Workers Compensation Appeal Tribunal, et al., 2023 BCCA 322 (40944)
The Applicant was injured in the course of her work and applied to the B.C. Workers’ Compensation Board. This case stemmed from the B.C.S.C. and appeals at the B.C.C.A.; Justice Butler granted the application to remove appeals CA46444 and CA46447 from the inactive list but dismissed the application with respect to CA46143. The Applicant brought an application to vary that order which was dismissed by a panel of three judges. “The application for leave to appeal…is dismissed with costs to the respondents John Boruta and Vincent Leering.”

Civil Litigation: Delay

Dawn Patenaude, et al. v. Gail Komodowski, et al., 2023 SKCA (40946)
In July 2017, the Applicants, along with 20 other plaintiffs, commenced an action alleging tortious invasions of privacy by the Respondents. The action progressed to mandatory mediation in approximately 6 months, but did not advance after that point. Applicants’ counsel was injured in a car accident in the fall of 2019; the Applicants retained new counsel in December 2021. One of the individual Respondents died in July 2022. On September 26, 2022, the Respondents moved to dismiss the action for delay. The chambers judge found the delay in this case to be inordinate and inexcusable. In the circumstances of the case, the interests of justice did not require allowing the action to proceed in the face of this delay. The action was dismissed. The Sask. C.A. held that the chambers judge applied the correct principles, and committed no palpable and overriding error in her findings of fact and weighing of the relevant factors. The appeal was dismissed. “The application for leave to appeal…is dismissed with costs to the respondents, Gail Komodowski and Albert Leonard, jointly, and to the respondent, Saskatchewan Government Insurance.”

Civil Litigation: Delay

Jean-Yves Roy v. Commission des Normes, de l’Équité, de la Santé et de la Sécurité du Travail, et al., 2023 QCCA 1036 (40968)
The Applicant, Mr. Roy, suffered an accident at work in 2005. He alleged that as a result of the accident, he experienced lateral brachialgia, headaches and cervicocranial trauma. However, those diagnoses were not accepted by the Québec Commission des lésions professionnelles (“CLP”, the predecessor of the Respondent CNESST), which favoured the conclusions of an independent expert, that is, the Respondent Dr. Séguin. The CLP rendered its decision in 2013, and Mr. Roy did not apply for judicial review of the decision. Later, in 2021, Mr. Roy brought an action against the Respondents in the amount of $6 million. The Respondents filed applications to dismiss. The Superior Court found that Mr. Roy’s action was prescribed and granted the Respondents’ applications to dismiss. The Qué. C.A. dismissed Mr. Roy’s application for leave to appeal out of time. It determined that the proposed appeal had no reasonable chance of success. “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.”

Civil Litigation: Delay

Michael Furlong v. Shaw Communications Inc., 2023 FCA (40951)
The Respondent employed the Applicant for approximately 17 years but terminated his employment in 2018. The Applicant complained to the Canadian Human Rights Commission that the termination was discriminatory on the basis of a disability. The Commission dismissed the complaint, finding that there was a reasonable, non-discriminatory explanation for the Applicant’s termination. The Fed. Court dismissed an application for judicial review, holding that the Commission’s decision was reasonable and its procedure fair. The Applicant appealed, but did not comply with the procedural requirements of the Fed. C.A. in a timely fashion. A judge of that court directed the Applicant to explain why his appeal should not be dismissed for delay. The Applicant made representations, but did not satisfy the court that his delay was justified or that he had proposed a timetable for prosecuting his appeal. A panel of the Fed. C.A. dismissed the appeal for delay. “The application for leave to appeal…is dismissed.”

Civil Litigation: Vexatious Litigation

F.H. v. Ville de Montréal, 2023 QCCA (41060)
There is a publication ban on the party, in the context of a declaration of “quarrelsome litigant”. “The application for leave to appeal…is dismissed with costs.”

Civil Litigation: Vexatious Litigation

John Turmel v. Attorney General of Canada, 2023 FCA 197 (41053)
Following a motion brought by the Respondent Attorney General of Canada, the Fed. Court declared the Applicant to be a vexatious litigant. The application judge prohibited new proceedings, or continuing previously instituted proceedings, except with leave, and imposed additional measures to regulate conduct before the Fed. Court. The Fed. C.A. dismissed an appeal. “The motion to file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed with costs.”

Class Actions: Airlines

Dora Berenguer v. Sata Internacional- Azores Airlines, S.A., 2023 FCA 176 (40949)
Ms. Berenguer filed a motion to certify a class action against SATA Internacional – Azores Airlines, S.A. Ms. Berenguer claimed she is entitled to cash compensation for flight delays. The airline brought a motion to have the amended statement of claim struck without leave to amend. The Fed. Court dismissed the motion for certification and struck the amended statement of claim. The Fed. C.A. set aside the order striking the amended statement of claim and dismissed an appeal from the dismissal of the certification application. “The application for leave to appeal…is dismissed with costs.”

R. v. Sabiston, 2023 SKCA 105 (40937)
During a search the police located a knife in the Respondent’s pants pocket. The Respondent then told police that he had a firearm in his backpack. The officers subsequently seized a loaded prohibited firearm. The Crown ultimately stayed the charges from the initial arrest and proceeded to trial on the firearms offences only. In a voir dire, the trial judge concluded the Respondent’s arrest, and the subsequent searches, were unlawful and that the police breached the Respondent’s ss. 8 and 9 Charter rights. However, under s. 24(2), she concluded the officers would have had a legal basis to detain the Respondent for investigative purposes. The discoverability of the firearm mitigated the seriousness of the breaches. She admitted the firearm into evidence and the Respondent was convicted of several offences. The Sask. C.A. divided on the issue of the appropriate s. 24(2) remedy: majority held that the trial judge erred in admitting the evidence under s. 24(2) and would have overturned the conviction and substituted an acquittal; dissenting judge would have held that there was no error in the trial judge’s s. 24(2) analysis and would have affirmed the conviction. The Sask. C.A. unanimously dismissed the Crown’s argument that there was no s. 8 breach despite the unlawful arrest, on the basis that the search could have been authorized pursuant to an investigative detention for which there would have been grounds. “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. The motion to extend the time to serve and file the appellant’s factum, record and book of authorities is granted. The appellant’s factum, record, and, book of authorities, if any, in the appeal as of right, shall be served and filed within two (2) weeks from the date of this judgment.”

R. v. Cousineau, 2023 QCCA 1054 (40948)
There is a publication ban in this case, certain information not available to the public, in the context of the issue of consent re a charge of sexual assault. “The application for leave to appeal…is dismissed.”

Immigration: Temporary Visa

Naghma Clement v. Minister of Citizenship and Immigration, 2023 QCCA (41072)
The Applicant, Ms. Clement, had applied for a temporary resident visa to visit Canada. An immigration officer denied her application on the basis that the officer was not satisfied that Ms. Clement would leave Canada at the end of the authorized stay. On judicial review, the Fed. Court concluded the immigration officer’s decision was reasonable and there had been no breach of procedural fairness. The Fed. Court dismissed Ms. Clement’s application for judicial review and a subsequent motion for reconsideration. “The application for leave to appeal…is dismissed for want of jurisdiction.”

Labour Law: Pensions

Attorney General of Québec v. Association du personnel retraité de la Ville de Québec (APRVQ), et al., 2023 QCCA (40830)
In Québec, municipal defined benefit pension plans represent a significant part of municipal employees’ overall remuneration. These plans have been the subject of considerable collective bargaining over the years and are a major financial burden for municipal bodies. To remedy the financial situation of these plans, which, as a whole and subject to particular situations, are in a deficit position, the National Assembly of Québec enacted various pieces of legislation since 2003. However, the 2008 financial crisis made the financial position of these pension plans more precarious. In 2011, the Québec government, represented by the Applicant, the Attorney General of Québec, established an expert committee to consider the future of the Québec pension system. The committee tabled a report in April 2013. In broad terms, the report identified several flaws in the various levels of the Québec pension system and painted an alarming picture of the various plans, particularly because of their rapid decline in solvency. In December 2014, the Act to foster the financial health and sustainability of municipal defined benefit pension plans, came into force. This statute covers both active and retired members. In the case of active members, the Act provides for, among other things: a formula for sharing the costs associated with the plans, including deficiencies; the establishment of a stabilization fund, the costs of which are also shared; and the end of automatic pension indexation. In the case of retired members, the Act authorizes municipalities to suspend automatic pension indexation until the deficiencies attributable to these members have been dealt with. In response to the coming into force of these measures, the Respondents and other employees’ associations, managers’ associations, employees, retired members’ associations and retired members themselves brought 14 actions seeking declarations of constitutional invalidity and remedies for infringements of the freedom of association guaranteed by s. 2(d) of the Charter and s. 3 of the Québec Charter. The Superior Court allowed the applications in part and declared the provisions on the suspension of automatic indexation of the retired members’ pensions to be unconstitutional. The Qué. C.A. dismissed the appeals and the incidental appeals. “The application for leave to appeal…is dismissed with costs to the respondents.”

Labour Law: Pensions

Alliance des professionnels et des professionnelles de la Ville de Québec, et al. v. Attorney General of Québec, et al., 2023 QCCA 626 (40833)
Similar summary to that above. “The application for leave to appeal…is dismissed without costs and the application for leave to cross-appeal is dismissed with costs.”

Torts/Municipal Law: Streetlight Removal

Milton Hydro Distribution Inc. v. Corporation of the Town of Milton, 2023 ONCA (40939)
The main action concerned a streetlight removed and not replaced, alleged to have contributed to an accident at night between a ‘jaywalking’ pedestrian plaintiff and a defendant motorist. The Town of Milton is a defendant on account that it is the road authority for the street in question. The Town denied liability to the plaintiff. As the injured plaintiff did not sue Milton Hydro, the Town brought a third party claim seeking contribution and indemnity for negligently removing the street light. Milton Hydro defended and denied removing the street light. The Applicant, Milton Hydro, and the Respondent, the Town, brought competing motions for summary judgment. The motion judge allowed Milton Hydro’s motion for summary judgment and dismissed the third party claim. The Ont. C.A. allowed the Town’s appeal, set aside the dismissal of the third-party claim, and remitted the third party claim for trial with the main action. “The application for leave to appeal…is dismissed with costs.”

Trusts: Constructive Trusts

Sase Aggregate Limited v. Michelle Langdon, 2023 ONCA 643 (40959)
Ms. Langdon’s husband defrauded his employer, Sase Aggregate Limited, of more than $2.1 million. Sase Aggregate brought an application against Ms. Langdon. It claimed Ms. Langdon and her husband used the fraudulently obtained funds to purchase and renovate property that Ms. Langdon subsequently sold, and claimed a constructive trust over the sales proceeds. The Ont. Superior Court of Justice ordered $177,632.28 of the sales proceeds be released to Sase Aggregate and the balance to Ms. Langdon. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”

Wills and Estates: Security for Costs

Leslie Watson v. Abigail Herom also known as Gail Watson, 2023 ONCA (41035)
The Applicant and Respondent are sisters, the stepdaughters of the testator. He left his entire estate, consisting mainly of his home, to the Respondent and her son. That house was transferred to the Respondent and her son. The Applicant brought an action to have the house transfer set aside and claimed a 50 per cent interest in the estate, alleging the testator’s will was invalid on several grounds. The Applicant then brought a motion to amend her statement of claim by adding a party to her action. The Respondent countered with a motion for summary judgment. Summary judgment was granted, and the Applicant’s action dismissed. At the Qué. C.A., the Applicant was ordered to pay $15,000 as security for costs regarding the appeal that she filed. The Applicant’s motion to set aside the security for costs order was dismissed. The Applicant’s subsequent motion for a stay of the security for costs order, pending her application for leave to appeal to the Supreme Court of Canada, was dismissed. “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.”