Bankruptcy and Insolvency: Priorities

Travelers Capital Corp. v. Mantle Materials Group, Ltd., et al., 2023 ABCA 339 (41063)
The Respondent, Mantle Materials Group, Ltd. (“Mantle”) was in the business of operating gravel pits on public and private lands, some of which were subject to Environment Protection Orders (“EPOs”). The Applicant, Travelers Capital Corp. (“Travelers”) financed Mantle’s purchase of equipment for use in its operations and Mantle granted Travelers a designated first priority purchase-money security interest over the equipment. Mantle filed a notice of intention to make a proposal under s. 50.4 of the BIA. The main plank of the proposal was the completion of the reclamation work to satisfy the outstanding EPOs. Mantle subsequently obtained a court order authorizing various priority charges on the bankrupt estate that would not allow payment to any creditors before Mantle had satisfied its end-of-life obligations stemming from the EPOs. Travelers submitted that it had priority with respect to its security interest that should not be postponed until after the remediation work was completed. The motion judge held that all of Mantle’s assets were available first to satisfy the EPO requirements ahead of any secured creditors under the BIA. Travelers took the position that it had an appeal as of right. The Alta. C.A. disagreed and also dismissed Travelers’ application for leave to appeal. “The motion to join two files from the Court of Appeal of Alberta in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to respondent Mantle Materials Group, Ltd.”
 

Civil Litigation: Releases; No-Claims-Over Clauses

William Fehr Sr., et al. v. Paul Gribilas, et al., 2023 ONCA 791 (41042)
This Leave concerns the effect of a no-claims-over provision contained in a full and final mutual release on subsequent proceedings commenced by parties to the release. The Applicants appealed an order of the motions judge permanently staying their professional negligence action on the basis that the action, which they had commenced in contravention of their obligations under a no-claims-over provision, was an abuse of process. They sought an order restoring the action. The Respondents cross-appealed, arguing that, if the appeal was allowed, the motions judge erred in finding that there were remaining genuine issues requiring a trial in the professional negligence action. They sought an order dismissing the action on its merits. The Ont. C.A. dismissed the appeal. Since the action was permanently stayed, it was unnecessary to address the issues in the cross-appeal, which would be dismissed as moot. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondents Paul Gribilas and Burns Hubley LLP.”
 

Class Actions: Claim Amendments

Jessie Waldron v. R. in Right of Canada as Represented by the Attorney General of Canada, et al., 2024 FCA 2 (41141)
The Indian Day School Settlement Agreement (“IDSSA”), which aimed to resolve an outstanding class action by survivors of abuse who attended federally-run “day schools” for Indigenous people, was given judicial approval in 2019. Under the claims process, individual claimants could file a claim with a self-assessment about the level of harm they suffered, which would correspond to a particular level of compensation. In 2020, the claims administrator announced a “temporary allowance or exception” to the normal claims process, during which claimants would be permitted to increase their level of harm specified in their original claim if the claim had not yet been adjudicated or paid. This temporary allowance process ended on June 15, 2020. The Applicant, a survivor of an Indian Day School in Saskatchewan, initially filed a “Level 1” claim in June 2020. She filed a second claim in September 2020, outlining abuses at Levels 3 and 4. The claims administrator advised that it would not accept the new claim or the altered harm levels, as these were filed after the June 15, 2020 deadline. The Applicant brought motions in Federal Court, seeking orders to permit changes in harm levels and to consider additional information submitted to the claims administrator, and seeking a declaration that the IDSSA in fact permits all class members to submit further documentation and/or modify their harm level. The supervising judge at the Federal Court dismissed the motions, finding that they essentially sought to modify the IDSSA’s terms. The Fed. C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”
 

Class Actions: State Immunity

Julie Tanny v. United States Attorney General, 2023 QCCA 1234 (41029)
Applicant Julie Tanny brought an application to authorize a class action seeking compensation for all persons who underwent treatment as part of the “Montreal Experiments” conducted between 1948 and 1964 by Dr. Donald Cameron, as well as their successors, assigns, family members, and dependants. Ms. Tanny’s application named several proposed defendants, including the Respondent U.S. Attorney General (hereafter, the “United States”). The United States, invoking state immunity, sought to have Ms. Tanny’s application dismissed as against it. The application judge held that the U.S. benefitted from foreign state immunity, and that exceptions to that immunity contained in the State Immunity Act did not apply in the circumstances. The application judge dismissed Ms. Tanny’s authorization application as against the U.S.. The Qué. C.A. unanimously dismissed Ms. Tanny’s appeal. “The application for leave to appeal…is dismissed with costs.”
 

Contracts: Breach; Oral Agreements; Frustration; Oppression

Massoud Jamali also known as Tom Jamali, et al. v. Roy Bateni also known as Mohammad Ali Bateni, et al., 2023 ONCA (41016)
This Leave concerns litigation over alleged failure to receive a promised equity share in a car dealership. Issues include: establishment of an oral agreement, contractual frustration, oppression. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Disclosure

R., et al. v. Charles Chouchani, et al., 2023 QCCA 1330 (41049)
The Respondents, Charles Chouchani and Mark Shirin, were convicted by the Court of Québec on charges relating to conspiracy and narcotics trafficking. Mr. Chouchani was also convicted of possession of narcotics for the purpose of trafficking. During the trial, the judge rendered several interlocutory judgments, including one on the disclosure of redacted source reports. The Respondents appealed the judgment by which they were convicted, raising eight grounds, including one to the effect that the judge erred by denying, in one of the interlocutory judgments, their requests for disclosure of the source reports consulted by the affiants in the preparation of their affidavits to support the judicial authorizations sought. The Applicant, His Majesty the King, acknowledged that the trial judge had erred by imposing on the Respondents the burden of establishing the probative value of the evidence consulted by the affiants in the preparation of their affidavits; the law indicates that this information must be disclosed by the prosecutor, as per the general conditions established in R. v. Stinchcombe. However, the Applicant also submitted that the curative proviso in s. 686(1)(b)(iii) applied in this case because the error committed by the trial judge was of no consequence to the guilty verdict. The Qué. C.A. allowed the appeal, set aside the convictions and ordered a new trial. “The application for leave to appeal…is dismissed.”
 

Criminal Law: Stay Pending Appeal

Steve Tremblay v. R., et al., 2023 QCCA 1227 (40892)
This Leave concerns an application to the Qué. C.A. for a stay of a writ of prohibition and certiorari pending appeal to the S.C.C.; pursuant to s. 65.1 of the Supreme Court Act the stay was granted. “The motion for an extension of time to serve and file the reply is granted. The application for leave to appeal…is dismissed.”
 

Extradition: Committal Hearings

James Ellingson v. Attorney General of Canada on behalf of the United States of America, 2024 BCCA (41137)
Mr. Ellingson was being sought for extradition by the U.S. for alleged conduct corresponding to trafficking in controlled substances and selling a substance represented or held out to be cannabis. The committal hearing to proceed on a record of the case and a supplemental record of the case. Mr. Ellingson applied for an order requiring the Vancouver Police Department produce material relating to two men not co-accused. The committal judge denied a production order. Mr. Ellingson does not have a right to appeal to the B.C.C.A. “The application for leave to appeal…is quashed pursuant to s. 44 of the Supreme Court Act.”
 

Labour Law: Tribunal Complaints

Samir Benchabane v. Syndicat de professionnelles et professionnels du gouvernement du Québec, 2023 QCCA 1244 (41032)
The Applicant filed complaints against his union with the Administrative Labour Tribunal. The Administrative Labour Tribunal dismissed the complaints and, subsequently, an application for review. The Applicant filed an application for judicial review, but the Québec Superior Court granted the Respondent’s motion to dismiss on the grounds that the application for judicial review had been filed out of time and was doomed to fail. The Qué. C.A. dismissed the application for leave to appeal that decision. “The motion for an extension of time to serve and file the revised application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondent.”
 

Personal Injury: Defence Medicals; Contempt

Rudolf Steinberg v. Pamela Adderley, 2023 ONCA 725 (41078)
This personal injury action arises from a motor vehicle accident where the Applicant was a passenger and the Respondent the driver. The Applicant was ordered to travel to Southern Ontario from Thunder Bay to undergo defence medical examinations. He disobeyed the orders and refused to travel. The Respondent brought a motion for contempt. The Applicant was found in contempt and his action dismissed. The Applicant appealed and the Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Private International Law: Diplomatic Immunity

Mehrzad Zarei personally and on behalf of the Estate of Arad Zarei deceased or as Personal Representative of Arad Zarei deceased, et al. v. Islamic Republic of Iran, Islamic Revolutionary Guard Corps, also known as Army of the Guardians of the Islamic Revolution also known as Iranian Revolutionary Guard Corps, et al., 2023 ONCA 713 (41067)
The Applicants are the estates and family members of victims who were killed when Ukrainian Airlines flight PS752 was shot down by the Islamic Republic of Iran on January 8, 2020. The Applicants obtained a default judgment against Iran for $107M plus interest and costs in May 2021. The Applicants then moved to enforce that judgment against certain properties and bank accounts of Iran in Canada. The motion judge dismissed the Applicants’ request finding that the Iranian property continued to enjoy diplomatic immunity under Canadian law. The appeal was dismissed. “The intervener’s motion for an extension of time to serve and file the response is granted. The intervener’s motion for substituted service deeming the respondents to have been served with the response is granted. The intervener’s motion to serve and file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed.”
 

Professions: Insurance; Fraud

9427-1525 Québec inc. v. Chambre des notaires du Québec, et al., 2023 QCCA 1392 (41058)
This Leave concerns whether the Liability Insurance Fund of the Chambers des du Québec et al is liable to pay $1,690.888.32 in the context of fraudulent transactions re two trust accounts (now merged into one). “The application for leave to appeal…is dismissed with costs to the respondent Chambre des notaires du Québec.”
 

Universities: Action by Former Student

Ahmad Mohammad v. McMaster University, et al., 2023 ONCA 598 (41070)
The Applicant commenced an action against his former university in relation to various academic complaints, and to his having been banned from campus. A motion judge granted the university’s motion seeking summary dismissal of the action, concluding that the statement of claim failed to disclose a valid cause of action, and was “frivolous, vexatious or otherwise an abuse of process”. The Applicant then filed an amended statement of claim, this time adding his former union for allegedly failing to properly represent him in his dealings with the university. The motion judge dismissed the amended statement of claim, again for failing to disclose a valid cause of action and for being frivolous, vexatious or abusive. The registrar at the Court of Appeal dismissed the Applicant’s proposed appeal from the motion judge’s decision, for reasons of delay. A single appellate judge at the Court of Appeal dismissed the Applicant’s motion seeking to overturn the administrative dismissal of the appeal; and a full panel of the Court of Appeal dismissed the Applicant’s motion seeking a reversal of the single appellate judge’s decision. “The motion for an extension of time to serve and file a reply is granted. The motion for miscellaneous relief is dismissed. The application for leave to appeal…is dismissed with costs to the respondents.”
 

Universities: Action by Former Student

Alexandra Angvinland Skyllar v. University of British Columbia, 2023 BCCA 90 (41030)
The Applicant advanced several claims against the University of British Columbia relating to her time as a student in the Bachelor of Education Program. She alleged in her notice of civil claim—both originally and as amended on August 12, 2021—that UBC breached an educational contract with her, was negligent, and that a program coordinator made defamatory statements about her, among other things. In addition, she alleged UBC discriminated against her on the basis of disability. The Applicant’s motion to have the chambers judge recuse herself was dismissed. The chambers judge granted the Respondent’s motion to strike the claim and dismissed the Applicant’s action. The B.C.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 motion to adduce new evidence is dismissed. The application for leave to appeal…is dismissed with costs.”