Granted

Charter: Mobility Rights

Canadian Civil Liberties Association, et al. v. R. in Right of Newfoundland and Labrador, et al., 2023 NLCA 22 (40952)
In 2020 the Chief Medical Officer of Health for Newfoundland and Labrador, in an effort to curtail the spread of COVID-19, issued certain orders under the Public Health Protection and Promotion Act. These orders restricted travel, by limiting the circumstances in which non-residents were permitted to enter the province. Applicant Kimberley Taylor resides in Nova Scotia. Her mother, a resident of Newfoundland and Labrador, passed away suddenly in 2020. Ms. Taylor sought an exemption from the travel restrictions in order to attend her mother’s funeral. Her request was denied. Ms. Taylor brought an application seeking a declaration that the travel restriction orders, and the provision of the Act under which they were issued, were beyond the legislative authority of the province and of no force and effect. Ms. Taylor also argued that the travel restrictions violated her rights under the Charter. The Supreme Court of Newfoundland and Labrador dismissed the application. The application judge held that the legislation at issue was constitutional, but that the right to remain in Canada in s. 6(1) of the Charter included a right of mobility simpliciter within Canada. The decision to deny Ms. Taylor entry into the province infringed her s. 6(1) right to mobility, but the infringement was justified under s. 1 of the Charter. By the time the appeal and cross-appeal from that judgment came before the N.L.C.A., the travel restrictions were no longer in effect. The N.L.C.A. declined to hear the appeal and cross-appeal on the basis that they were moot. “The application for leave to appeal…is granted.”
 

Criminal Law: Child Sexual Abuse Material; Mandatory Minimums

Attorney General of Québec, et al. v. Senneville, et al., 2023 QCCA (40882)
The Applicants, the Attorney General of Quebec and His Majesty the King, seek leave to appeal to the Supreme Court from the declaration of unconstitutionality made by the Qué. C.A. pursuant to s. 52(1) of the Charter with respect to the mandatory minimum sentences of 12 months’ imprisonment provided for in s. 163.1(4)(a) and (4.1)(a) of the Criminal Code. According to the majority of the Court of Appeal, these provisions violate s. 12 of the Charter, namely, the guarantee provided against cruel and unusual punishment, and cannot be justified in a free and democratic society under s. 1 of the Charter. That declaration of unconstitutionality resulted from appeals filed notably in respect of two decisions rendered by the Court of Québec regarding the sentences to be imposed on the Respondents, Mr. Naud and Mr. Senneville. Mr. Naud was convicted of two counts relating to possession and distribution of child pornography. Sentences of 9 months’ imprisonment for possession and 11 months’ imprisonment for distribution pursuant to s. 163.1(4)(a) and (3) of the Criminal Code were imposed on him, along with various consequential orders. Mr. Senneville was convicted of two counts relating to possessing and accessing child pornography. Sentences of 90 days’ imprisonment to be served intermittently for possession and 90 days’ imprisonment to be served intermittently for accessing child pornography pursuant to s. 163.1(4)(a) and (4.1)(a) of the Criminal Code were imposed on him, also along with various consequential orders. The Court of Québec judge declared the minimum sentences provided for in s. 163.1(4)(a) (possession of child pornography) and (4.1)(a) (accessing child pornography) of no force or effect in regard to the accused, unconstitutional under s. 12 of the Charter and not justifiable under s. 1 of the Charter. “The application for leave to appeal…is granted.”

Dismissed

Aboriginal Law: Lake Bed Claim

Chippewas of Nawash Unceded First Nation, et al. v. Attorney General of Canada, et al., 2023 ONCA 565 (40978)
The Applicants, Chippewas of Nawash Unceded First Nation and Saugeen First Nation, initiated a claim for Aboriginal title to part of the bed of Lake Huron. The trial judge made factual findings that the Applicants and their ancestors were present in the claim area but that their use was not exclusive for the purposes of the test for Aboriginal title. The trial judge also concluded that a finding of Aboriginal title would be incompatible with the public right of navigation. The trial judge declined to address the Applicants’ alternative claim for part of the claimed area on the basis that to hear further arguments after trial would be unfair to the parties. On appeal, the Ont. C.A. held that there was no reversible error in the trial judge’s findings of fact, nor was there any error in the trial judge’s decision to dismiss the claim for Aboriginal title to the entire claim area. However, the Ont. C.A. remitted the matter to the trial judge for further consideration of the Applicants’ alternative claim to part of the claimed area. “The applications for leave to appeal…are dismissed without costs.”
 

Aboriginal Law: Métis; Duty to Consult

Métis Nation of Ontario, et al. v. Chief Kirby Whiteduck on his own behalf and on the behalf of the Algonquins and the Algonquin Opportunity (No.2) Corporation, 2023 ONCA 543 (40954)
The Algonquins have been negotiating with Ontario and Canada to arrive at a treaty concerning, among other matters, harvesting rights within a settlement area. In 2017, Ontario recognized Métis communities and extended harvesting rights to two Métis communities in an area that overlaps the Algonquin settlement area. The Algonquins commenced an action seeking declarations. Ontario and the Métis Nation of Ontario brought motions to strike the statement of claim. The motion judge struck the claims for declarations in the statement of claim, except for a claim that Ontario breached the duty to consult, without leave to amend except to assert that the honour of the Crown informs the duty to consult in this case. The Ont. C.A. allowed an appeal and dismissed cross-appeals. “The motion for an extension of time to serve and file a response is granted. The motion for leave to intervene is dismissed. The application for leave to appeal…is dismissed without costs.”
 

Aboriginal Law: Métis; Duty to Consult

R., in Right of Ontario as represented by the Minister of Natural Resources and Forestry and the Minister of Indigenous Affairs v. Chief Kirby Whiteduck on his own behalf and on behalf of the Algonquins of Ontario, and the Algonquin Opportunity (No. 2) Corporation, 2023 ONCA 543 (40955)
Similar summary to that above. “The motion for an extension of time to serve and file a response is granted. The motion for leave to intervene is dismissed. The application for leave to appeal…is dismissed without costs.”
 

Contracts: Letter of Credit

Pacific Atlantic Pipeline Construction Ltd. and Bonatti S.P.A. v. Coastal Gaslink Pipeline Limited Partnership, by its General Partner Coastal Gaslink Pipeline Ltd., 2024 ABCA 74 (41146)
Pacific Atlantic Pipeline Construction Ltd. and Bonatti S.p.A. fell into dispute with Coastal Gaslink Pipeline Ltd. regarding work they were contracted to perform in construction of a gas pipeline. Pacific Atlantic Pipeline Construction Ltd. and Bonatti S.p.A. obtained interim injunctions preventing Coastal Gaslink Pipeline Ltd. from drawing down $117,162,384 on a Letter of Credit they had furnished to secure performance of their work. A chambers judge denied an application for an interim injunction pending completion of mandatory arbitration. The Alta. C.A. denied an appeal. The interim injunctions expired when the Alta. C.A. released its judgment. Coastal Gaslink Pipeline Ltd. drew down $117,162,384 on the Letter of Credit. “The motion for an expedited stay of proceedings is dismissed with costs. The application for leave to appeal…is dismissed with costs.”
 

Employment Law: Dismissal

Janet Clarke v. Agracity Crop & Nutrition Ltd. and Jason Mann, 2023 SKCA (40975)
The Applicant was employed by the Respondent company as an Order Fulfillment Supervisor from October 2017 until her termination in July 2018. She issued a Statement of Claim claiming pay in lieu of notice, general damages for negligence, the tort of harassment, the tort of intentional infliction of mental suffering, as well as human rights damages and aggravated, moral, exemplary and/or punitive damages. The Respondents brought an application to strike specific paragraphs of the claim on the grounds that those paragraphs did not disclose a reasonable claim. The chambers judge struck a number of paragraphs as the claims in those paragraphs were not recognized as a cause of action. The Sask. C.A. allowed the appeal to a limited extent by striking only portions of those paragraphs. “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 in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”
 

Immigration: Admissibility Hearings

Uyi Jackson Obazughanmwen v. Minister of Public Safety and Emergency Preparedness,2023 FCA 151 (40972)
The Applicant is a permanent resident. He has a wife who is a Canadian citizen and three Canadian-born children. In October 2019, he was referred for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board pursuant to sections 36(1)(a) (serious criminality) and 37(1)(a) (organized criminality) of the Immigration and Refugee Protection Act. The Applicant sought judicial review of this decision. The application for judicial review was dismissed. 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 with costs.”