36153 Ryan Glenn Ziegler v. Her Majesty the Queen (Criminal law – Dangerous offender)

On appeal from the Court of Appeal for British Columbia. In 2007, the applicant was charged with, and convicted of, sexual assault after having cupped the breast of a female ambulance attendant while alighting from an ambulance following his transport to hospital due to a suspected drug overdose. At the time, the applicant was on probation following the completion of a custodial sentence imposed for two similar sexual assaults on law enforcement personnel in December 2005. His criminal record – which began when he was a minor – included convictions for roughly 100 offences. Among other those convictions were convictions for sexual assaults, assaults, indecent acts, and numerous failures to comply with probation orders or recognizances or undertakings.

Following the applicant’s conviction, the Crown applied under s. 753 of the Criminal Code to have him designated a dangerous offender and, if designated, the Crown sought a sentence of an indeterminate period of detention in a federal penitentiary. The Court of Appeal for British Columbia dismissed the appeal.

36267 Denis Jerome Labossiere v. Her Majesty the Queen (Criminal Law – Evidence – Unsavoury witness )

On appeal from the Court of Appeal of Manitoba. Mr. Labossière’s parents and brother were killed. Based in part on information from Mr. Labossière’s nephew and sister, the police believed that he hired Mr. Toupin to commit the murders. They arrested Mr. Toupin. They repeatedly told him that they believed he had been hired by Mr. Labossière to commit the murders and they played recordings to Mr. Toupoin of statements to the police made by Mr. Labossière’s nephew and sister. Mr. Toupin then gave a statement in exchange for a plea bargain. Mr. Toupin testified at trial as a Crown witness. The nephew and sister also testified at trial. In her charge to the jury, Keyser J. identified Mr. Toupin as an unsavoury witness and gave a Vetrovec caution. The jury convicted Mr. Labossière of 3 counts of first degree murder. The appeal from convictions was dismissed by the court of Appeal of Manitoba.

36235 Phylum Corporation v. Dominion of Canada General Insurance Company (Insurance law – Property insurance – Appointment of umpire )

On appeal from the Court of Appeal for Ontario. In February, 2012 a building and its contents owned by the applicant and insured by the respondent were damaged by a fire. The appraisers for the parties were unable to agree on an umpire and the applicant brought a motion under the Insurance Act, R.S.O. 1990, c. I.8 to have an umpire appointed. The applicant put forward two nominees and the insurer proposed three names. The Ontario Superior Court appointed an unpire and the court of Appeal for Ontario dismissed the appeal.

36225 Robert Simoneau v. ERNST & YOUNG INC., trustee of the estate of Vincent Lacroix (Contracts and obligations — Bankruptcy and insolvency )

On appeal from the Quebec Court of Appeal. The respondent in its capacity as Vincent Lacroix’s trustee in bankruptcy sought $600,000 from the applicant, Mr. Simoneau, alleging that a transaction as part of which Mr. Simoneau sold Mr. Lacroix 100,000 shares in Norbourg Asset Management Inc. (“NAM”) for the amount of $600,000 could not be set up against it. The trustee alleged that the transaction was carried out during the five years preceding Lacroix’s bankruptcy when Mr. Lacroix was insolvent. Consequently, Mr. Simoneau must be liable to reimburse the trustee for this amount plus interest thereon since February 7, 2007. The trustee alleges, moreover, that the transaction was carried out without valuable consideration and is therefore presumed to have been carried out in fraud of the rights of Mr. Lacroix’s creditors. Mr. Simoneau submitted that this had not been an inexpensive transaction and that, moreover, he had had every reason to believe at the time that the price of the shares he owned was reasonable and set at the amount of $600,000, which Mr. Lacroix and he had agreed on following a negotiation conducted in good faith by Mr. Simoneau. The Quebec Superior Court dismissed the Trustee’s action to recover funds and the Paulian action. The Quebec Court of Appeal allowed the appeal, set aside the judgment of the Superior Court, allowed the trustee’s action, and issued a declaration that the $500,000 transferred by the bankrupt to the applicant on November 14, 2003 could not be set up against the trustee; the applicant was ordered to pay the trustee $500,000.

36237 Érik Charest v. Dessau Inc., et al.  (Civil procedure – Class actions – Municipal Tax)

On appeal from the Quebec Court of Appeal. Mr. Charest, the applicant, is a City of Montréal taxpayer. The respondents are consulting engineering firms and executives of these firms. Mr. Charest filed a motion for leave to bring a class action against the respondents. He sought compensatory and punitive damages. The motion for leave alleged that the respondents had participated in a system of collusion to share contracts awarded by the City and that the executives participated in, supervised, coordinated and approved collusive and anti-competitive practices for their companies. Mr. Charest intended to represent a group he defined as being [TRANSLATION] “all natural and legal persons with 50 or fewer employees since April 19, 2012, and having, between January 1, 1998, and December 31, 2010, paid property and/or municipal taxes to the City of Montréal and benefitted from the City’s services”. The Superior Court dismissed the motion for leave. The Court of Appeal allowed the respondent’s motions to dismiss the appeal and dismissed the appeal.

36263 Roberto Orellana Gonzalez v. The Queen  (Charter of Rights and Freedoms — Constitutional law — Fundamental justice )

On Appeal from the Court of Appeal for British Columbia. Mr. Gonzalez was injured in a workplace accident in 1995. He was ultimately given an award of 100% loss of earnings pension calculated based on his past earnings pursuant to the Workers’ Compensation Act, R.S.B.C. 1996, c. 492. Dissatisfied with the award, Mr. Gonzalez commenced an action against the Workers’ Compensation Board of British Columbia and the Workers’ Compensation Appeal Tribunal to obtain damages related to his injuries. The action was dismissed and Mr. Gonzalez sought to appeal the decision. He filed and served his appeal record within the time required, but did not meet the deadline for filing and serving his factum and appeal book. He therefore had to apply for an extension of time which was ultimately denied. Mr. Gonzalez’s application for leave to appeal to the Supreme Court of Canada was dismissed on September 27, 2012.

In 2014, Mr. Gonzalez commenced a second action alleging wrongful conduct by the Workers’ Compensation Board and also naming Her Majesty the Queen in Right of British Columbia as a defendant. The respondents moved to have the notice of civil claim struck out and the claim dismissed. The Supreme Court of British Columbia agreed, dismissed the action and declared Mr. Gonzalez a vexatious litigant. Mr. Gonzalez missed the deadline to file a notice of appeal and sought an extension of time which was also dismissed. The Court of Appeal further dismissed an application to vary that order.

36236 Estate of the late D.U.C. v. Régie des rentes du Québec (Social law – Surviving spouse’s pension under Act respecting the Québec Pension Plan, CQLR, c. R-9 – Res Judicata)

On Appeal from the Quebec Court of Appeal. In 2003, D.U.C. and M.C. were married in the Republic of Moldova. In 2008, M.C. died. The applicant, the Estate of the late D.U.C., applied to the Régie des rentes du Québec (the “Régie”) for a surviving spouse pension under s. 105 of the Act respecting the Québec Pension Plan, CQLR, c. R-9. Relying on a document from the Republic of Moldova certifying the marriage of D.U.C. to M.C. and the annulment of that marriage by the Moldovan courts, the Régie denied the application on the basis that at the time of his death, M.C. was not married to D.U.C. D.U.C. was unsuccessful in challenging that decision before the Administrative Tribunal of Québec (the “ATQ”). However, the Superior Court allowed the motion for judicial review filed by D.U.C. In the Court’s opinion, a 2010 judgment of the Superior Court in the divorce case of D.U.C. and M.C. had already refused to recognize the foreign decision declaring the marriage annulled. There was therefore res judicata on this point, and the ATQ could not base its decision on a foreign declaration that the Superior Court had already refused to recognize. The Court of Appeal allowed the appeal.

36160 Gabriel Genest v. Agence du revenu du Québec (Taxation — Income tax — Assessment )

On Appeal from the Quebec Court of Appeal. Under s. 93.1.10 of the Tax Administration Act, where a person has notified a notice of objection and the Minister of Revenue conducts a reassessment, the person may appeal to the Court of Quebec to have the assessment vacated or varied.

Section 93.1.13 provides that the appeal shall be filed within 90 days following the day on which the Minister’s decision on the objection was mailed to the person. However, a person may apply to a judge for an extension of the time limit for appealing if “not more than one year has elapsed since the day of mailing of the decision” (s. 93.1.13, para. 2). An extension of time is granted “if the person demonstrates that it was impossible in fact for that person to act and that the application was filed as soon as circumstances permitted” (s. 93.1.13, para. 3).

In this case, the applicant received notices of assessment dated January 19, 2011. He filed an objection on January 30, 2011, and reassessments were made on October 17, 2011. On February 3, 2012, he served a notice of appeal with regard to the notices of assessment dated January 19, 2011. The respondent successfully argued a preliminary motion to dismiss based on the delay in acting. The Court of Quebec allowed the motion to dismiss and dismissed the appeal from notice of assessment. The Quebec Court of Appeal dismissed the appeal.

36242 Gail Morgan, Cara Morgan and Janna-Joy Morgan v. Paragon Capital Corporation Ltd.  (Creditor and debtor — Personal guarantee — Fraudulent Conveyance)

On Appeal from the Quebec Court of Appeal. Under s. 93.1.10 of the Tax Administration Act, where a person has notified a notice of objection and the Minister of Revenue conducts a reassessment, the person may appeal to the Court of Quebec to have the assessment vacated or varied.

On Appeal from the Court of Appeal for Alberta. The respondent, Paragon Capital Corporation Ltd. sought a declaration that the transfer of a residence that the applicant, Gail Morgan had purchased for approximately $1 million, to her two daughters, the applicants, Cara and Janna-Joy Morgan, constituted a fraudulent preference, and that, as a result of that transfer Paragon had been injured, prejudiced or delayed. Paragon plead the Statute of Elizabeth, 13 Eliz. 1, c. 5 and the Fraudulent Preferences Act, R.S.A. 2000, c. F-24 as amended, and sought a declaration that the transfer was a fraudulent conveyance or alternatively a fraudulent preference, and an order that Cara Morgan and Janna-Joy Morgan convey the lands to it in trust for execution by the creditors of Gail Morgan. The Morgans denied that the transfer was either a fraudulent preference or a fraudulent conveyance. They counterclaimed for damages.

The trial judge concluded that the transfer of the property was bona fide and not for a fraudulent purpose. He allowed the counter-claim. A majority of the Court of Appeal allowed the appeal, set aside the judgment on both the claim and counter-claim and ordered a new trial.

36241 Behzad Najafi v. Minister of Public Safety and Emergency Preparedness (Canadian Charter — Freedom of Association — Immigration )

On appeal from the Federal Court of Appeal. Mr. Najafi, a citizen of Iran of Kurdish ethnicity, arrived in Canada in 1999 and successfully claimed refugee status. However, he has not received permanent resident status. In March 2010, a report under s. 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, was issued concerning Mr. Najafi. On March 2, 2011, it was referred to the Board to have Mr. Najafi declared inadmissible due to his involvement with the Kurdish Democratic Party of Iran (“KDPI”). The Immigration and Refugee Board found that Mr. Najafi had been a member of an organization that there were reasonable grounds to believe he had engaged in or instigated the subversion by force of a government. Mr. Najafi’s was therefore inadmissible pursuant to s. 34(1)(b) and (f) of the IRPA. Mr. Najafi’s application for judicial review was dismissed, but Gleason J stated a certified question. The certified question was answered in the negative and the appeal was dismissed.

36229 Mona Lisa Nowak v. Michael Charles John Nowak (Family law – Family assets – Reapportionment )

On appeal from the Court of Appeal for British Columbia . Mr. and Mrs. Nowak co-habited since 1990 and married in October 1995. Both had children from previous marriages. They separated after 16 years of marriage, when the husband was 61 years of age and the wife 57. Among the issues raised in their matrimonial proceedings was whether a commercial property purchased by the husband before the marriage was an excluded asset or a family asset. The Supreme Court of British Columbia held that the property is a family asset and that the respondent must pay the applicant $950,000 as compensation for her one-half interest in the property. The Court of Appeal for British Columbia allowed the respondent’s appeal in part. The Court confirmed that the shares of the corporation holding legal title to the property are a family asset. However, pursuant to s. 65 of the Act, the Court ordered that the value of the shares be reapportioned on the basis of a 90/10 split in favour of the respondent. The majority remitted the issue to the trial judge for a determination of the present value of the shares. Garson J.A., dissenting in part, would have interpreted s. 58 of the Act to result in the commercial property itself being the family asset.

36264 Rachel Exeter v. Attorney General of Canada (Charter of Rights — Administrative Law —Public Service Labour Relations Board)

On appeal from the Federal Court of Appeal. Ms. Exeter filed a number of grievances against Statistics Canada. After a 12-hour mediation session, Ms. Exeter and Statistics Canada reached a settlement on nine of her grievances, without prejudice to her ability to continue the adjudication of any unresolved issues. Both parties were represented by counsel during the mediation. A hearing of the grievances, which was scheduled to resume the following day, was therefore cancelled. Ms. Exeter then tried to have the memorandum of agreement negated. Ms. Exeter and the employer both engaged with the Public Service Labour Relations Board and the adjudicator on a number of issues, many of them concerning compliance with the memorandum of agreement, and Ms. Exeter informed the Board that she would no longer be represented by counsel. While the case was being held in abeyance pending an unrelated appeal on similar issues, Ms. Exeter withdrew her request that the adjudicator intervene further, but Statistics Canada did not follow suit. Once the unrelated appeal was decided, Ms. Exeter made an informal request that the Board appoint a different adjudicator to determine the validity of the memorandum of agreement. When the Board declined, Ms. Exeter filed a formal motion to the same effect. The Board dismissed the motion, and the Federal Court of Appeal dismissed the application for judicial review of that decision.

36227 Apotex Inc. v. Pfizer Canada Inc., G.D. Searle & Co., Minister of Health (Intellectual property – Patents – Medicines – PM(NoC) Regulations)

On appeal from the Federal Court of Appeal. Apotex Inc. (“Apotex”) sought to obtain regulatory approval to market its generic version of celecoxib, a drug marketed under the brand name “Celebrex” by the respondents (collectively, “Pfizer”). It is known as a non-steroidal anti-inflammatory drug, used in the treatment of inflammatory disorders such as arthritis. Pfizer filed for the ‘576 patent for Celebrex in November, 1994. The patent issued on October 26, 1999 and expired on November 14, 2014. Apotex served a Notice of Allegation on Pfizer, alleging that the ‘576 patent was invalid for the purposes of the Patented Medicines (Notice of Compliance) Regulations, SOR 93/133, primarily on the ground that utility had not been demonstrated or soundly predicted at the time the patent was filed. Pfizer sought an order to prohibit the Minister from issuing a Notice of Compliance to Apotex. The Federal Court issued an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex until after expiry of ‘576 patent. The Federal Court of Appeal dismissed the appeal.

36228 Mylan Pharmaceuticals ULC v. Pfizer Canada Inc., G.D. Searle & Co. (Intellectual property – Patents – Medicines – PM(NoC) Regulations)

On appeal from the Federal Court of Appeal. Mylan Pharmaceuticals ULC (“Mylan”) sought to obtain regulatory approval to market its generic version of celecoxib, a drug marketed under the brand name “Celebrex” by the respondents (collectively, “Pfizer”) used in the treatment of inflammatory disorders. It is known as a non-steroidal anti-inflammatory drug (“NSAID”) used in the treatment of inflammatory disorders such as arthritis. Pfizer filed for the ‘576 patent for Celebrex in November, 1994. The patent issued on October 26, 1999 and expired on November 14, 2014. Mylan served a Notice of Allegation on Pfizer, alleging that the ‘576 patent was invalid for the purposes of the Patented Medicines (Notice of Compliance) Regulations, SOR 93/133, primarily on the ground that a promise had been made in the patent with respect to reduced side effects as compared to other NSAIDs that had not been met. Pfizer sought an order to prohibit the Minister from issuing a Notice of Compliance to Mylan. The Federal Court issued an order prohibiting the Minister of Health from issuing a Notice of Compliance to Apotex until after expiry of ‘576 patent. The Federal Court of Appeal dismissed the appeal.

36253 Humanics Institute v. Minister of National Revenue (Taxation — Income Tax — Registered charity )

On appeal from the Federal Court of Appeal. The applicant Humanics Institute applied to be registered as a charity under the Income Tax Act for taxation purposes. The application was denied. The applicant filed an objection and the refusal to register was confirmed. The applicant’s appeal to the Federal Court of Appeal was dismissed.

36198 Jennifer Lynne Dundas v. Arthur Melvin Schafer (Family law – Family assets – Pensions )

On appeal from the Court of Appeal of Manitoba. Ms. Dundas and Mr. Schafer started living together in May, 1995. They planned to marry and discussed entering into a prenuptial agreement. Mr. Schafer, a professor at the University of Manitoba, was concerned about retaining his pension in the event of a future separation. He was unequivocal that he would not marry Ms. Dundas unless she waived her rights to his pension. Ms. Dundas, then a CBC reporter, was aware of his position and assured him that she did not want a share of it. In December, 1997, the parties decided they would marry at the end of the month and began to negotiate the terms for their prenuptial agreement. Each retained the services of experienced family law counsel and some financial disclosure was exchanged. They also exchanged draft agreements. On December 29, 1997, Ms. Dundas reviewed an agreement prepared by Mr. Schafer’s lawyer, made a few changes to it and signed it in the presence of her lawyer. Mr. Schafer accepted the changes and signed with his lawyer the following day. They married the next day. The parties separated in August, 2005 and were divorced in January 2011. Ms. Dundas brought an action challenging the provisions of the prenuptial agreement that waived her entitlement to any sharing of Mr. Schafer’s pension. The Court of Queen’s Bench of Manitoba upheld the release clause and ordered the applicant to pay the respondent $20,000 in accordance with the terms of the pre-nuptial agreement. The Court of Appeal of Manitoba allowed the appeal in part. The Court upheld the release clause and the applicant was not required to pay $20,000 to the respondent pursuant to the prenuptial agreement.