Granted

Family Law: Tort of Domestic Violence/Coercive Control

Ahluwalia v. Ahluwalia, 2023 ONCA 476 (41061)
The parties were married in 1999 in India. During their sixteen years of marriage, they had two children. The trial judge accepted the Applicant wife’s evidence the parties’ relationship was characterized by a pattern of emotional and physical abuse and financial control. The wife testified to three specific incidents of physical violence. The wife brought an action for statutory relief—divorce, child support, spousal support, and property equalization—and also claimed damages for the Respondent husband’s conduct during the marriage. The trial judge awarded $100K in compensatory and aggravated damages for the new tort of family violence. She also awarded an additional $50K in punitive damages for a total of $150K in damages. The Ont. C.A. allowed the appeal in part and reduced the damage award by $50K. The Ont. C.A. would not recognize the new torts of domestic violence or coercive control as defined in this case. “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 granted.”
 

Insurance: Declaration of Death

Riddle v. Ivari, 2023 QCCA 1111 (40986)
The spouse of the Applicant went missing in 2008. In 2017, the Applicant obtained a declaratory judgment of her spouse’s death pursuant to art. 92 of the Civil Code of Québec in a proceeding contested by the spouse’s life insurance company. After the spouse was declared deceased, the life insurance company applied to annul the declaration of death on the basis there was evidence he was alive in another country as late as 2018. The application was not served on the party declared to have died. The Superior Court of Québec judge granted the life insurance company’s application and annulled the declaration of death. She concluded there was no prejudice flowing from the fact the application was not served on the declared decedent. The Qué. C.A. allowed an appeal only with respect to application judge’s costs award but otherwise affirmed the Superior Court judge’s decision. “The application for leave to appeal…is granted with costs in the cause.”

Dismissed

Administrative Law/Real Estate: Procedural Fairness

Amarjot Lamba and Whitehill Realty International Inc. v. Registrar, Real Estate and Business Brokers Act, 2002, 2023 ONCA (40991) 
Pursuant to a Notice of Proposal, the Registrar proposed to revoke the registration of Mr. Lamba as a broker under the Real Estate and Business Brokers Act and Regulations. The Registrar also proposed to revoke the registration of Whitehill Realty International Inc. as a registered brokerage under the Act. Mr. Lamba and Whitehill requested a hearing before the Licence Appeal Tribunal. A hearing was held, and the Tribunal directed the Registrar to carry out his proposal to revoke the registration of Mr. Lamba as a registered broker and Whitehill as a registered brokerage, both pursuant to the Act. In accordance with the Tribunal’s decision, the Registrar revoked the Applicants’ registrations. The Divisional Court dismissed the Applicants’ argument they were denied procedural fairness and dismissed the appeal. The Ont. C.A. dismissed the motion for leave to 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.”
 

Banks/Tax: GST

Canadian Imperial Bank of Commerce v. R., 2023 FCA 195 (41018)
For several years the Canadian Imperial Bank of Commerce, under the name “President’s Choice Financial”, had been providing credit and banking facilities to customers of Loblaw Companies Limited (“Loblaw”). As part of the arrangement, certain amounts were paid by CIBC to President’s Choice Bank (“PC Bank”), an indirectly wholly-owned subsidiary of Loblaw. In a 2009 decision of the Tax Court of Canada (President’s Choice Bank v. The Queen,”), the Tax Court found for the purposes of the Excise Tax Act the amounts paid by CIBC to PC Bank for the reporting periods from December 31, 2000 to December 30, 2002 were paid for financial services supplied by PC Bank to CIBC and, therefore, no GST was payable. In 2010, the definition of financial service was amended retroactive to 1990. In 2016 and 2017, PC Bank was reassessed by the Minister of National Revenue for failing to collect and remit GST on the payments made by CIBC. The reassessments were for the reporting periods commencing after December 30, 2002. In the Minister’s view, the supplies made by PC Bank to CIBC were not financial services. PC Bank appealed the reassessment and began to collect GST from CIBC. CIBC paid the GST and applied for rebates on the basis the GST was paid in error as PC Bank was supplying financial services to CIBC. The rebate applications covered GST paid during the reporting periods from January 2003 to February 2016. The Minister issued notices of assessment denying CIBC’s requests for rebates. CIBC filed notices of objection and later appealed to the Tax Court. At the outset of the Tax Court hearing, CIBC brought a motion to allow its appeal on the basis the substance of the supply made by PC Bank to CIBC had been determined for earlier reporting periods (December 31, 2000 to December 30, 2002) by the 2009 Decision. CIBC also sought an order precluding the Crown from introducing any evidence inconsistent with the 2009 Decision. The Tax Court dismissed this motion (“Motion Order”). The Tax Court (“Rebate Judgment”) also dismissed CIBC’s appeal from the assessments made under the ETA that denied CIBC’s claims for rebates of the GST and the federal portion of HST paid in relation to the relevant reporting periods. While both PC Bank and CIBC filed appeals with the Tax Court, the only appeals that were heard by the Fed. C.A. were two appeals filed by CIBC — the appeal from the Motion Order and the appeal from the Rebate Judgment. The Fed. C.A. dismissed the appeals. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Vexatious Litigation

Carter v. Horizon Housing Society, 2023 ABKB 558 (41051)
Mr. Carter was declared vexatious and made subject to court access restrictions in the Court of King’s Bench of Alberta. Pursuant to the procedure stipulated in that order for commencing process, he sought leave to initiate an appeal of an order of the Residential Tenancy Dispute Resolution Service. Nielsen A.C.J. denied leave: Mr. Carter has no right of appeal to the Alta. C.A. pursuant to Rule 14.5(4) of the Alberta Rules of Court Alta Reg 124/2010. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to file a lengthy memorandum is granted. The application for leave to appeal…is dismissed.”
 

Class Actions: Arbitration

John Williams v. Amazon.com, Inc., Amazon Services International, Inc., and Amazon.com.ca, Inc., 2023 BCCA 314 (40935)
The Respondents (collectively, “Amazon”) required all purchasers using Amazon.ca to create an account with Amazon.ca. In order to do that, they must agree to certain Conditions of Use. The Conditions of Use applicable to Mr. Williams include an agreement to arbitrate all disputes, with specific exceptions. It explained arbitration and the process to be taken by the purchaser, chose certain U.S. law as the applicable law, and waived the right to proceed by a class, consolidated or representative action. Mr. Williams claimed damages under the Competition Act, and for the tort of conspiracy, an accounting and restitution (alternatively, disgorgement of benefits received), relief under the Business Practices and Consumer Protection Act, and punitive damages. When he served Amazon with an application for certification, it applied to have the non-consumer claims (those not brought under s. 172 of the BPCPA) stayed. (A stay was not sought for other claims because the operative legislation had previous been found to override arbitration agreements.) The motion judge stayed the proceeding in relation to the non-consumer claims. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Class Actions: Arbitration

Sharise Petty, et al. v. Niantic Inc., et al., 2023 BCCA 315 (40932)
The Applicants filed a proposed class action against the Respondent Niantic Inc. and the Warner Respondents alleging statutory breaches, illegal gaming and other wrongs. They are the proposed representative plaintiffs for residents of British Columbia and Alberta who were customers of the Respondents and who paid directly or indirectly for a chance to win virtual awards inside a video game. In order to obtain access to the video games, the Applicants agreed to Terms of Service which apply to all aspects of the user’s gaming experience. They provide, inter alia, that disputes will be resolved by binding, individual arbitration unless the consumer opted out of that provision within 30 days of entering into the agreement, and the consumer waives the right to participate in any purported class action or representative proceeding. The arbitration process was described, and Niantic waived its rights to attorney fees if it prevails in an arbitration, but, if the consumer prevails, allows them their attorney’s fees. For damage claims that do not exceed $75K, Niantic promised to pay filing, administrative or arbitrator fees unless the arbitrator found the claim to be frivolous or brought for an improper purpose. It chose California law and set the arbitration filing fee at US$200. The Respondents applied for a stay of proceedings under the International Commercial Arbitration Act. The motion judge granted the stay. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Class Actions: Arbitration

Stephanie Difederico, et al. v. Amazon.com, Inc., et al., 2023 FCA 165 (40927)
Ms. Difederico had accounts with Amazon.ca and Amazon.com, and placed numerous orders through each of the accounts before and after filing the proposed class action. She alleged the competitive pricing provisions in effect between 2010 and March 2019 and a related subsequent fair pricing policy constituted price fixing contrary to s. 45 of the Competition Act. Amazon’s online retail stores required customers to agree to certain “Conditions of Use” when they create an account and each time they place an order under that account. From October 24, 2014, until March 30, 2022, the Conditions of Use imposed by Amazon.ca provided, in relevant part, that other than small claims and intellectual property claims, disputes or claims relating to the consumer’s use of any Amazon.ca service, or any products or services sold or distributed by Amazon.ca or through Amazon.ca Services, will be resolved by binding arbitration. The Conditions of Use also chose U.S. law and set out an agreement to proceed by individual actions, not by class action, consolidated action or representative action. In May 2021, Amazon.com stopped mandating arbitration, but Amazon.ca did not echo that change. Ms. Difederico filed a proposed class action against Amazon with herself as the proposed class representative for an e-commerce class of purchasers and another proposed class representative for two other classes of purchasers which are at issue now. Relying on the Conditions of Use, Amazon moved to stay the claim in favour of individual arbitration. The action was stayed, except for the relief requested under the Business Practices and Consumer Protection Act. The appeal was dismissed. “The motion to file a sur-reply is granted. The application for leave to appeal…is dismissed with costs.”
 

Class Actions/Torts: Vicarious Liability

City of Saint John, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick v. Robert Hayes on behalf of himself and other class members, 2023 NBCA 79 (40997)
From 1953 to 1975, a City of Saint John police officer sexual abused children. In a class action against the City of Saint John, one certified common question was whether the City was vicariously liable for the harm perpetrated by the officer when he was a police officer. The Court of King’s Bench of New Brunswick held the City of Saint John was not vicariously liable. The NB C.A. allowed an appeal, set aside the decision, and held the City of St. John vicariously liable for the harm perpetrated by the officer during the period of time when he was a police officer. “The application for leave to appeal…is dismissed with costs.”
 

Employment Law: Covid Termination

Francis v. Canada (Attorney General), 2023 FCA 217 (41064)
Mr. Francis’ employer implemented a COVID-19 policy requiring mandatory vaccination. He requested an exemption based on creed, which was refused. He was not vaccinated by the required date and his employer terminated his employment. He applied for Employment Insurance benefits. The Canada Employment Insurance Commission denied Mr. Francis benefits, determining he lost his job as a result of misconduct. His request for reconsideration was denied. The Social Security Tribunal General Division dismissed his appeal, confirming he lost his job due to misconduct. The Appeal Division upheld the General Division’s decision. The Fed. C.A. dismissed a J.R. “The application for leave to appeal…is dismissed with costs.”
 

Employment Law: Insurance Benefits

Lyne Brassard v. Attorney General of Canada, 2023 FCA (41048) 
The Applicant was the subject of a decision by the federal Employment Insurance Commission, requiring her to pay back certain amounts of employment insurance benefits she received during periods of time when she was found to have also received unreported wages, and issuing her a warning. The Applicant appealed the Commission’s decision to the federal Social Security Tribunal (“SST”). In 2019, the SST’s General Division dismissed the Applicant’s appeal from the Commission’s decision. In 2020, the Applicant filed an appeal of the General Division’s decision, and an application to rescind or amend it. In January 2020, the application to rescind or amend the General Division’s 2019 decision was dismissed, and leave to appeal that decision was refused by the Appeal Division of the SST. In June 2020, the Applicant’s appeal from the General Division’s 2019 decision was dismissed by the Appeal Division. In August 2023, the Fed. C.A. dismissed the Applicant’s J.R. from the June 2020 Appeal Division’s decision; and in October 2023, the Fed. C.A. dismissed the Applicant’s motion for reconsideration of its own August 2023 decision. “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.”
 

Employment Law/Litigation: Reconsideration

Affan Ashraf v. Jazz Aviation LP, 2023 FCA 1230 (40989)
The Applicant was employed by the Respondent until November 2019 when his employment was terminated. The decision the Applicant is seeking to appeal is an order of the Fed. C.A. dismissing a motion for reconsideration. The decision under reconsideration was a decision refusing to extend the time within which an appeal may be brought from a decision of the Fed. Court. “The motion for cross-examination is dismissed without costs. 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.”
 

International Law: Forced Labour

Mitalipova, et al. v. Attorney General of Canada, et al., 2023 FCA 188 (40998)
The Applicants requested in writing the Canada Border Services Agency create a presumption prohibiting the importation of goods from Xinjiang, China, on the basis they have been produced wholly or in part by forced labour. The Applicants were concerned about Uyghur forced labour. A CBSA official sent a responding email to the Applicants describing CBSA’s views on how the relevant legislation and investigative processes work. The email explained the Customs Tariff does not provide authority to implement the Applicants’ presumption, which seeks to prohibit the importation of goods solely on the basis they originate from a specific region within a country. The Fed. Court dismissed the J.R. The Fed. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Labour Law: Dismissal

Mario Oliveira, et al. v. Jack Oliveira and Luis Camara on their own behalf and on behalf of all members of Labourers’ International Union of North America, Local 18, et al., 2023 ONCA 520  (40996) 
There is a sealing order in this dismissal from employment case, the issues including wrongful dismissal; breach of confidence; defamation; implied undertaking rule. “The application for leave to appeal…is dismissed with costs to All Industries LIUNA CECOF (a.k.a LIUNA Central and Eastern Canada Organizing Fund II), Labourers’ International Union of North America, Local 183, Jack Oliveira and Luis Camara.”
 

Patents: Computer-implemented Inventions

Intellectual Property Institute of Canada v. Attorney General of Canada, 2023 FCA 168 (41004)
Benjamin Moore & Co.’s applications for two patents in respect of a computer implemented colour selection method were rejected. It appealed to the Federal Court. The Intellectual Property Institute of Canada intervened and argued the Federal Court should order a revised framework for assessing the patentability of computer-implemented inventions. The Fed. C.A. remitted the applications back to the Canadian Intellectual Property Office to be reconsidered with instructions to adopt the test described by the Intellectual Property Institute of Canada. The Fed. C.A. allowed an appeal and remitted the applications to be reconsidered adopting the version of Canadian Intellectual Property Office’s Manual of Patent Office Practice current at the time of the re-hearing. “The request by the Intellectual Party Institute of Canada for an order pursuant to Rule 18(5) of the Rules of the Supreme Court of Canada to be substituted as a party is dismissed. Accordingly, the application for leave to appeal…and motion for an extension of time to serve and file the application for leave to appeal are quashed pursuant to s. 44 of the Supreme Court Act.”
 

Patents: Infringement

Guy Hamel, et al. v. Les Lames Nordik ou Usinage Pro-24, et al., 2023 QCCA 874 (40929)
Guy Hamel and 9125-6651 Québec inc., brought an action for an injunction and damages against the Respondents, Nordik Blades or Usinage Pro-24 and Hugo Michel, amongst others. The action related to the infringement of Canadian patent 2423830 (Patent 830), held by the Applicants. The Applicants alleged the “Nordik Move” scraper and wear blade system belonging to the Respondents infringed Patent 830. This patent relates to the invention referred to as an “articulated scraper blade system”. This moving blade system is intended to be mounted to the front of a snowplow. This patent has only one claim and seeks to protect a system comprising several blades, each capable of being raised and lowered, automatically and independently, in response to obstacles encountered on the road. The Superior Court allowed in part the originating application. It declared Patent 830 valid as between the parties and it declared that the Respondent Nordik Blades or Usinage Pro-24 had infringed it. The Superior Court also issued three permanent injunctions, including one ordering the Respondent to not make, construct, use or sell to others to be used the systems known under the names “Lames Nordik” and “Nordik Move”. The Superior Court also dismissed the originating application against the Respondent Mr. Michel personally with the exception of the injunctive conclusions sought against him in his capacity as representative. The Qué. C.A. allowed the appeal and set aside the trial judgment. “The application for leave to appeal…is dismissed with costs.”
 

Personal Injury: Assessments

Gabriella Lengyel v. Licence Appeal Tribunal, et al., 2023 ONCA (41052)
Ms. Lengyel applied to Certas Home and Auto Insurance for statutory accident benefits following a MVA and to the Licence Appeal Tribunal for a finding of catastrophic impairment and compensation. The Licence Appeal Tribunal adjourned the matter to allow for assessments. Ms. Lengyel failed to attend for assessments. The Licence Appeal Tribunal dismissed Ms. Lengyel’s application. The Divisional Court dismissed an appeal and a J.R. The Ont. C.A. dismissed an application for leave to appeal. “The motion to file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed.”
 

Personal Injury: Settlements

Gabriella Lengyel v. TD Home and Auto Insurance, et al., 2023 ONCA (41059)
In 2017, Master Pope appointed the Public Guardian and Trustee as litigation guardian of Ms. Lengyel in her action against TD Home and Auto Insurance arising from a MVA on November 3, 2011. Ms. Lengyel was in a second MVA on June 4, 2014 and commenced a separate, second action against TD Home and Auto Insurance. The Public Guardian and Trustee retained counsel to negotiate settlement of both actions subject to an appointment of it as litigation guardian in the second action. Counsel negotiated a settlement of both actions without Ms. Lengyel’s consent. A motions judge appointed the Public Guardian and Trustee as Ms. Lengyel’s litigation guardian in the second proceeding nunc pro tunc and approved the settlement agreement. Ms. Lengyel was denied leave to appeal to the Divisional Court. The Ont. C.A. dismissed an application for leave to appeal. “The motion to file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed.”
 

Private International Law/Litigation: Foreign Judgments

Pekker v. Agrest, 2023 ONCA 616 (41005)
Mr. Agrest obtained judgment against Mr. Pekker in Nikulinsky District Court of Moscow in the amount of RUB 38,835,242.18. The court twice sent notice of the claim to a Moscow address associated with Mr. Pekker but no one was there to receive notice. Mr. Pekker first learned of the proceedings after judgment was rendered. He retained counsel and appealed. His appeal was dismissed. Mr. Agrest filed a motion in the Ontario Superior Court of Justice for an order recognizing and enforcing the judgment. The Ontario Superior Court of Justice granted the order. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”
 

Professions: Engineers; Discipline

Daoud v. Ordre des ingénieurs du Québec, 2019 QCCA 217 (41138)
Mr. Daoud, a retired engineer, lodged a formal complaint to the Police Ethics Commissioner against two Montréal police officers. Mr. Daoud signed his letter “Mounir Daoud, ing, Entreprenuer (sic)”. Mr. Daoud had ceased to be a member in good standing of the Respondent Ordre des ingénieurs du Québec on April 1, 2008. As a result, Mr. Daoud was no longer permitted to use the title “Engineer” or the abbreviation “Eng.”. The Ordre subsequently charged Mr. Daoud with illegally using the title of engineer, contrary to s. 22(2) of the Engineers Act, CQLR c. I-9, and s. 32 of the Professional Code, CQLR c. C-26. The Court of Québec dismissed Mr. Daoud’s application for a stay of proceedings, and found him guilty of the offence as charged. The Superior Court of Québec granted the Ordre’s motion to dismiss Mr. Daoud’s appeal, and dismissed his appeal. The Qué. C.A. dismissed Mr. Daoud’s motion for leave to 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. Kasirer J. took no part in the judgment.”
 

Professions: Fees

Nuha Salloum, CICC College of Immigration and Citizenship Consultants Corp. v. Paul Smith c.o.b.a. Smiths IP, Paul Raymond Smith d.b.a. Smiths IP, Barristers and Solicitors, Patent and Trademark Agents, et al., 2023 BCCA 412 (41044)
The Applicants requested the B.C.S.C. make a finding that special circumstances existed to allow a review of lawyers’ bills not contemplated by the time periods set out in s. 70(1) and (11) of the Legal Profession Act. The chambers judge found  no special circumstances existed that would permit review for 10 of 14 bills rendered to the Applicants by the Respondent solicitors. In the result, the Applicants were barred from seeking a review of 10 bills, but were permitted to proceed with a review of 4 unpaid bills, although the latter review was stayed pending the outcome of a related matter. The B.C.C.A. unanimously dismissed the Applicants’ application to adduce new evidence and dismissed their appeal. “The application for leave to appeal…is dismissed.”
 

Real Property: Easements

Amos Allen Shiner v. Hydro One Networks Inc., 2023 ONCA 346 (40842)
In the 1930s, Hydro One Networks Inc.’s predecessor company built an electrical transmission line and towers that crossed land now owned by Mr. Shiner. Hydro One has to use the hydroelectric easement to repair and maintain its pylons and trim vegetation around them. To reach the hydroelectric easement, the company usually traveled a portion of a road that is now owned by Mr. Shiner. The latter opposes the use of his path by Hydro One. The motions judge dismissed Hydro One’s request, concluding it had not demonstrated its use of the road had created an easement acquired by prescription. The Ont. C.A. allowed the appeal, granting the declaration that Hydro One had established the existence of a permanent easement acquired by prescription. “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 with costs.”
 

Residential Tenancies: Eviction

Gong v. Zhang, 2023 BCCA 424 (41054)
The parties entered into a tenancy agreement in October 2019. The unit the Applicant rented was on the lower floor of a detached home and the Respondent (landlord) lived upstairs. The Respondent alleged the Applicant repeatedly endangered herself and other occupants of the property while cooking in her unit and issued a one-month notice to end the tenancy in May 2021. In April 2021, the Applicant applied to the Residential Tenancy Branch (“RTB”) to cancel the one-month notice. Following a hearing, the Applicant’s application was dismissed and she was ordered to deliver up vacant possession of the rental unit. The subsequent J.R. and appeal were dismissed. “Pursuant to Rule 6(1) of the Rules of the Supreme Court of Canada, the time to serve and file the reply is extended to January 29, 2024. The application for leave to appeal…is dismissed.”
 

Tax: Compliance Orders

Nader Ghermezian, et al. v. Minister of National Revenue, 2023 FCA 183 (40987)
In the course of audits of taxpayers, the Minister of National Revenue issued various requests and requirements for documents and information pursuant to ss. 231.1 and 232.2 of the Income Tax Act. The taxpayers herein did not provide requested documents and information. The Minister applied for compliance orders. The Fed. Court issued several compliance orders. The Fed. C.A. dismissed an appeal by the taxpayers and allowed a cross-appeal by the Minister of National Revenue. “The application for leave to appeal…is dismissed with costs.”
  

Torts: Slip and Fall

Carleton Condominium Corporation No. 255 and 6669981 Canada Inc., c.o.b. as Exact Post Ottawa Inc. v. Wael Musa, 2023 ONCA 605 (41008)
During a snowstorm, Mr. Musa slipped and fractured his ankle on a roadway outside his condominium. The roadway was plowed not salted. The condominium was owned and operated by Carleton Condominium Corporation No. 255, which had contracted out winter maintenance to Exact Post Ottawa Inc. The Ontario Superior Court of Justice held Carleton Condominium Corporation No. 255 and Exact Post Ottawa Inc. liable for the injury. The Ont. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed with costs.”