Insurance: Exclusion Clauses; GRC

Stephen Emond and Claudette Emond v. Trillium Mutual Insurance Company, 2023 ONCA 729 (41077)
The Applicants, Stephen and Claudette Emond (“insureds”), lived in a home on the Ottawa River that was located in the catchment area of the Mississippi Valley Conservation Authority (“MVCA”). The insureds had purchased a standard form residential Homeowners’ Package Comprehensive Form Insurance Policy from the Respondent, Trillium Mutual Insurance Company (“insurer”). During the coverage period, the insureds’ home was severely damaged by a flood and deemed a total loss. Although the insurer acknowledged coverage for the loss under the policy, the parties could not agree on what, if any, costs of replacement of the insureds’ home were excluded from coverage under the policy. The insureds claimed that the Guaranteed Rebuilding Cost (“GRC”) coverage endorsement fully guaranteed their rebuilding costs. The insurer acknowledged that the GRC coverage applied to replace the insureds’ home, but took the position that the costs to be incurred to comply with the MVCA’s regulation policies and other by-laws and regulations enacted after the original building of the home were excluded from coverage by an exclusion in the policy. The application judge accepted the insureds’ position that the GRC coverage was intended to guarantee the costs of rebuilding their home, without any limitation of coverage resulting from the operation of any rule, regulation, by-law, or ordinance. The Ont. C.A. allowed the insurer’s appeal. It concluded that the exclusion applied to exclude coverage for increased costs to comply with any law, including by-laws and regulations such as the MVCA regulation policies. “The application for leave to appeal…is granted with costs in the cause.”


Aboriginal Law: Injunctions

Garry Reece and Harold Leighton, on their behalf and on the behalf of the members of the Allied Tribes of Lax Kw’Alaams and Metlakatla v. His Majesty the King in Right of the Province of British Columbia, et al., 2023 BCCA 257 (40912)
This Leave concerns the granting of an injunction to three First Nations against the Federal Crown (as to lands, good faith negotiation, adequacy of consultation, irreparable harm). The B.C.C.A. allowed the appeal 2:1. “The application for leave to appeal…is dismissed with costs to the respondents  His Majesty the King in Right of the Province of British Columbia and Nisga’a Nation, as represented by Nisga’a Lisims Government.”

Banks: Account Seizure

Sylvie Cantin, et al. v. Pareclemco inc., et al., 2024 QCCA 292 (41145)

The Québec Superior Court ordered the Applicant Mr. Lapierre personally to reimburse the Respondent Pareclemco Inc. for the advances made to Mr. Lapierre’s company for the construction of housing units. Mr. Lapierre did not pay the amount owed, and Pareclemco Inc. undertook measures to force execution. A bank account was seized — it was a current account that Mr. Lapierre held jointly with the Applicant Ms. Cantin. For nearly 10 days, the Applicants suffered the inconvenience associated with that seizure. They alleged that it had caused them much trouble because they could not have access to their money deposited in that account for their regular and daily expenses. The Applicants applied to the Qué. Superior Court for the annulment of the seizure and damages. The Qué. Superior Court first found that the application was moot because the bailiff had granted a release of seizure and the bank account had in fact become accessible. The court then found that no fault had been committed by the Respondent Pareclemco Inc., its lawyer or the bailiff who had carried out the seizure. It added that, even if it had found fault, the Applicants had not proved pecuniary or other injury in support of their claims. The Qué. C.A. denied leave to appeal from the Superior Court’s judgment because the Applicants were not raising any new issue, question of principle or issue of law that had given rise to conflicting judicial decisions. “The application for leave to appeal…is dismissed.”

Criminal Law: Fisheries

Richardson v. R., 2022 NBCA 11 (41142)
The Applicant was charged with four offences under the Fisheries Act. At his first appearance, he alleged that the court did not have jurisdiction over the offences. The Provincial Court judge dismissed the Applicant’s applications to file documents in support of that allegation. The judge also dismissed the Applicant’s motion for recusal, in which he alleged that the judge had a conflict of interest. Following a trial, the Applicant was convicted of all the charges laid against him. The N.B. Court of Queen’s Bench, sitting as a summary conviction appeal court, dismissed the Applicant’s appeal. The N.B.C.A. dismissed his application for leave to appeal. “The motion to file a lengthy reply is granted. The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Homicide

Singh v. R., 2023 ONCA 79 (41104)
The Applicant, Mr. Singh, was involved in the drug trade, mostly importing cocaine. When a shipment of 35 kilograms of cocaine went missing, Mr. Singh investigated the matter and came to believe that Mr. Sandhu had stolen the cocaine. A witness testified that Mr. Singh kidnapped and shot Mr. Sandhu and his friend, who were found dead in a trunk by the side of a road. After a trial by judge and jury, Mr. Singh was convicted of second-degree murder, kidnapping, and commission of an offence for a criminal organization. His 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.”

Criminal Law: Perjury

Vanier v. R., 2023 ONCA 496 (41076)
The Applicant, Mr. Vanier, completed and signed two statements under oath in two personal information forms submitted to stock exchanges in support of a public offering by Onco Petroleum Incorporated, a company of which he was co-founder, officer, director and president and CEO. He stated that he was known by the name Robert Vanier, that he was not known by any other name and that he had never pleaded guilty to or been found guilty of an offence, knowing that these statements were false. He was charged with perjury. Mr. Vanier moved for a directed verdict on the ground that a person cannot be charged with perjury if they were not permitted, authorized or required by law to make the statement at issue. The Superior Court of Justice denied the motion for a directed verdict. The judge found that Mr. Vanier was legally required to disclose the information regarding his past conduct and that the personal information form accompanied by a signed solemn declaration constituted the means of providing that information. The Superior Court convicted Mr. Vanier of the two counts of perjury. The Ont. C.A. dismissed the appeal of Mr. Vanier, who argued that he instead should have been charged with making a false statement under oath. The solemn declarations contained in Mr. Vanier’s forms were permitted by law because they resulted from the operating requirements of the law. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Criminal Law: Rowbotham Applications

Vanier v. R., 2023 ONCA 545 (41074)
The Applicant, Mr. Vanier, was the president and chief executive officer of Onco Petroleum Inc., which he had co-founded. In 2007, Onco filed a prospectus, which was signed by Mr. Vanier and which contained false statements in relation to the quantity of cash available to finance Onco’s projects, with the Ontario Securities Commission. After a nine-week trial and four days of deliberation, Mr. Vanier, who was representing himself, was found guilty by a jury of having made, circulated or published a false prospectus. The trial judge sentenced him to eight years in prison. The Ont. C.A. dismissed Mr. Vanier’s appeal, finding that there had been no unfairness that led to a miscarriage of justice justifying a new trial. Concerning the new Rowbotham application, the trial judge had asked himself the correct question by considering whether there had been a material change of circumstances that justified hearing a new application, and he had not erred in refusing to do so. Moreover, the trial judge had taken several measures to require the detention centre to address the problems raised, and the problems identified were resolved following the judge’s intervention. Regarding the sentence of eight years’ imprisonment, the trial judge had not erred in not crediting Mr. Vanier for 155 days of pre-sentence custody, because he was serving, at the time, a prison sentence for perjury convictions. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Family Law: Guardianship; Adoption

M. K. v. Director of Child and Family Services, 2023 MBCA 98 (41113)
There is a publication ban in this case, certain information not available to the public, in the context of a permanent order of guardianship. “The application for leave to appeal…is dismissed with costs.”

Labour Law: Contracting Out

Optima Living Alberta Ltd v. Alberta Union of Provincial Employees, 2023 ABCA 273 (41019)
Century Park was owned by Optima Living Alberta Ltd., the successor employer for the purposes of the collective agreement between the Alberta Union of Provincial Employees (“AUPE”) and the predecessor employer. Before the collective agreement expired, AUPE sent the employer a notice to bargain. The collective agreement, which included a provision that required the employer to give AUPE notice that it was contracting out work ordinarily done by members of the bargaining unit, continued in effect. In 2017 and 2018, Optima notified AUPE of the steps taken to contract out work ordinarily done by unit members. In 2019, it confirmed that it was terminating 52 out of 53 unit members and replacing them with a third party contractor. AUPE applied to the Alberta Labour Relations Board for a cease and desist order to prevent Optima from terminating or laying off the 52 employees and from replacing those employees with a third party contractor. Optima applied for summary dismissal. Optima’s application for summary dismissal was granted in part by the Board, which also dismissed AUPE’s cease and desist application in relation to the Labour Relations Code. AUPE’s motion for reconsideration was denied by the Board. AUPE’s application for judicial review of both Board decisions was dismissed, but its appeal was granted. The matter was remitted to a fresh panel of the Board for determination of whether an employer, while engaged in renegotiating a collective agreement with a union, can contract out almost all of the bargaining unit’s work and terminate the employment of almost all of the employees in the bargaining unit. “The application for leave to appeal…is dismissed with costs.”

Professions: Confidentiality

Province canadienne de la Congrégation de Sainte-Croix, et al. v. J.J., et al., 2023 QCCA 1140 (41000)
There is a publication ban in this case, certain information not available to the public, in the context of legal confidentiality in a class action case. “The application for leave to appeal…is dismissed with costs to J.J., AIG Insurance Company of Canada, Allianz Global Corporate & Specialty, Northbridge General Insurance Corporation and St. Paul Fire and Marine Insurance Company (Travelers Canada).”

Professions: Disqualification

Satyam Patel v. Saskatchewan Health Authority (Formerly Regina Qu’appelle Regional Health Authority), 2023 SKCA (41106)
The Applicant physician and the Respondent, Saskatchewan Health Authority (“SHA”) have ongoing litigation. The Applicant is an orthopedic surgeon who was suspended from practice. In the context of the present litigation against the SHA, the Applicant applied to the Court of King’s Bench for an order disqualifying a lawyer and a law firm from representing SHA. The chambers judge denied the requested relief. The Sask. C.A. dismissed the application for leave to appeal that decision. “The application for leave to appeal…is dismissed with costs.”

Real Property: Failure to Close

Crown Fortune International Investment Group Inc. v. Bonnefield Canada Farmland LP III, et al., 2023 BCCA 441 (41101)
This case arises out of a failed real estate transaction involving several tracts of farmland located in northeastern B.C. The parties disputed whether the vendor was required to remove a number of encumbrances registered against title as a condition of closing, causing the transaction to collapse. The vendor declined to do so on the basis that the encumbrances were contemplated by the terms of the contract for purchase and sale. The trial judge agreed with the vendor and found that the purchaser was in breach by failing to complete the transaction. Based on an interpretation of the operative clause in the contract and the language of the encumbrances, the judge found that the contract did not require that the disputed encumbrances be removed. The judge ordered that the purchaser forfeit its deposit of over $1 million. The purchaser appealed to the B.C.C.A., which dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”