top cases

36071  Mandeville, et al. v. The Manufacturers Life Insurance Company  (Torts – Negligence – Duty of care – Pure economic loss – Commercial law – Insurance – Conversion from a mutual insurance company into a stock company – Participatory policyholders of a life insurance company whose policies were transferred to another company not given a share of the value distributed upon company’s subsequent demutualization – Whether a mutual insurance company can be held liable to participatory policyholders for failing to preserve their entitlement to a share of the value on transferring their policies – Does the recognition of a novel duty of care in negligence require a pre-existing legal right or legally-protected interest – Does statutory/regulatory authorization for an allegedly negligent act preclude the recognition of a duty of care in negligence – If leave to appeal is granted, should Manulife be permitted to cross – appeal issues that the Court of Appeal declined to address, as moot – Alleged errors by the trial judge in applying principles of damages relating to causation and qualification)

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 22, 2014. The respondent transferred the participating policies of Barbados residents to another life insurance company in December 1996.  The transfer was made without any compensation to policyholders for their share in the value of the respondent.  At that time the respondent stated that it had no present intention of pursuing demutualization and the regulatory framework precluded demutualization by highly capitalized mutual insurance companies.  In January 1998, the respondent announced it would demutualize, and a year later regulatory amendments made demutualization possible.  Only those who were participatory policyholders at the date of the announcement shared in the allocation of the $9 billion total value of the respondent as it transformed into a stock company. The applicants are representative plaintiffs of a class action brought on behalf of the former Barbados policyholders.  They brought an action in damages for negligence and breach of fiduciary duty against the respondent.  They claimed that at the time of transferring their policies, the respondent should have protected their interests and their right to a share in the value of the company on demutualization.  The Superior Court of Justice dismissed their action, and the Court of Appeal dismissed the appeal and a cross-appeal on damages.

36171  Worm, et al. v. The Queen  (Publication ban in case) (Criminal law – Evidence – Disclosure – Obligations of Crown –Competence of defence counsel – Disclosure of inducements allegedly offered to witness in exchange for testimony against applicants – Whether analysis of allegation of miscarriage of justice requires examination of both defence counsel’s competence and Crown conduct – What standard is applicable to ethical and professional obligations of Crown in providing disclosure – Whether expert evidence is required to establish standard of competence of defence counsel)

On appeal from the judgment of the Court of Appeal for Saskatchewan pronounced September 15, 2014. A Regina homeowner was shot and killed during the course of a violent home invasion in 2006.  Four individuals, one of which was a young offender, were charged in relation to the death.  The applicants, brothers, were among those charged.  The three adult accused were tried before a judge and jury.  At trial, the Crown called as witnesses two other participants in the home invasion as well as the sister of one of those participants, an acquaintance of the applicants who did not participate in the home invasion but was with them both before and after offence.  Those witnesses confirmed the Crown’s theory of the case that the applicant Jacob Worm had shot the homeowner. In her jury instructions, the trial judge warned the jury to be cautious in accepting the evidence offered by the applicants’ accomplices, notably because those accomplices may have had an interest in testifying favourably for the Crown.  At the time of his testimony at the applicants’ trial, one of the accomplices was facing charges of second degree murder and aggravated assault with respect to a separate incident.  He was released on bail from those charges after giving police a statement with respect to the 2006 home invasion.  That statement implicated the applicants.  He was never charged in connection with his participation in home invasion during which the homeowner was killed. A jury found Jacob Worm guilty of second-degree murder and found his brother, Tyrone Worm, and the third adult accused, guilty of manslaughter for their role in the offence.  Jacob Worm was later sentenced to life imprisonment.  His brother Tyrone was sentenced to 12 years imprisonment.  The applicants appealed their conviction and sentences.  The Court of Appeal dismissed an appeal.

36193  Ceruti v. Murray  (Private international law – Choice of forum – Court having jurisdiction – Family law – Custody – Canadian woman marrying and becoming pregnant in United States but returning to Canada – Child born in Canada and residing there with mother – Father obtaining custody order in United States – What effect does attorning to a foreign jurisdiction have on a domestic court’s subsequent determination simpliciter and forum non conveniens in the context of adjudicating custody and access – Is it incumbent on a Canadian court to avoid a multiplicity of custody and access proceedings – What is the proper test for and role of fresh evidence when undertaking in a forum non conveniensanalysis – Does comity play a part in this determination)

On appeal from the judgment of the Ontario Court of Appeal pronounced October 2, 2014. In March, 2013, the respondent, a Canadian citizen, moved from Ontario to Indiana to live with the applicant, an American citizen.  The respondent became pregnant the following month and the couple was married on May 8, 2013.  On June 18, 2013, the parties separated and the applicant served the respondent with a petition for divorce.  On that same day, the respondent moved back to Ontario.  Her Indiana counsel entered a notice of appearance in the Indiana proceeding on July 5, 2013.  The applicant sought an order for sole custody of the child upon the child’s birth.  The respondent filed a petition to annul the marriage in Indiana but no relief was sought with respect to her unborn child.  In October, 2013, her Indiana counsel withdrew from the record.  On the following Monday, there was a hearing before the Superior Court in Indiana, on the applicant’s motion to preserve and retain jurisdiction, for final orders pertaining to custody and child support, and the appointment of a guardianad litem. The respondent participated in part of the hearing, without counsel, via telephone from Ontario.  She had previously consulted with Ontario lawyers and understood that custody could not be addressed until the child was born.  On December 2, 2013, the Indiana court ruled that it had jurisdiction over the issue of custody and ordered that the applicant would have full and co-equal parenting time rights.  The child was born in Ontario on December 11, 2013.  On December 20, 2013, the respondent obtained an ex parteorder in Windsor, Ontario, for temporary custody and for an order that the child not be removed from the province on an interim basis. She filed an application in the Superior Court seeking custody of the child.  The applicant brought a motion to set aside the ex parte order and to stay her application. The Court of Appeal dismissed an appeal.

36084 Lebel, et al. v. Groupe Ledor Société mutuelle d’assurance  (Insurance – Property insurance – Duty to advise – Duty to minimize damages – Did the judges of the lower courts err in concluding that the insureds had not minimized their damage and that the insurer’s duty to advise was extinguished after it refused coverage)

On appeal from the judgment of the Court of Appeal for Quebec pronounced July 2, 2014. The applicants own an apartment building.  In 2007, they hired the company Alie Construction (Alie) to repair the roof.  During the work, water leaked into the building as a result of heavy rain.  The day after the disaster, the applicants’ insurer, the respondent, informed the applicants by telephone that the damage was not covered by their insurance policy.  On the same day, a company specialized in disaster recovery work assessed the damage and informed the applicants that it was urgent to dry and ventilate the building; this work, however, was not carried out.  Two months after the disaster, the tenants complained about damp and health-related problems.  Two months after that, a microbiological analysis report recommended renovation and decontamination work.  The applicants hired a company to carry out extensive work.  The applicants then instituted a proceeding against Alie and its insurer, and against their own insurer.  They claimed $558,034.71 to cover the cost of restoring the building.  The Superior Court allowed the motion in part.  Justice Bergeron concluded that the direct and immediate cause of the damage was the fault of Alie and that the contractor’s fault was a risk covered by the applicants’ insurance policy; however, she criticized the applicants for not minimizing the damage and assessed the damage as amounting to $139,112.29.  The Court of Appeal dismissed the appeal.

36101 Hathaway v. Hathaway  (Family law – Support – Spousal support – Family assets – Unequal division - Parties with significant assets and husband high-income earner - Whether duplicating legal principles which are foundation for awards of spousal support, and similar principles that may lead to an unequal division of assets to a supported spouse, is unfair to spouses who pay Spousal Support Advisory Guidelines spousal support and are also deprived of an equal share of family property based on the same factors - Whether the inconsistent treatment of the status and effect of theSpousal Support Advisory Guidelines between various Canadian provinces create a spousal support system that is inherently unfair)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced July 31, 2014. The parties lived together for approximately 13 years when they married in 2003.  In 2004, they moved to Vancouver, where the husband, the applicant, obtained work in the high-risk high-return world of the junior mining industry.  Their son was born in February, 2005 and their daughter was born in January, 2007. The respondent stayed at home to raise the children while the applicant pursued a demanding and successful career.  The family enjoyed an affluent lifestyle.  In 2008, their son was diagnosed with autism and his condition required routine and consistency in the home, which was primarily the respondent’s responsibility.  The parties separated in November 2010.  The applicant bought a house close to the matrimonial home and for the next several months, he paid money into their joint account for family expenses.  The total value of their assets was approximately $8 million in addition to stock options that the parties agreed to share in equally.  The applicant sought an equal division of family assets and debts while the respondent sought a reapportionment of the family home in her favour.  The applicant sought joint custody of the children with equal sharing of time.  The respondent’s position was that she should continue in her role as primary caregiver.  At trial, the applicant stated that his income for 2012 was $688,000 and took the position that appropriate spousal support should be $16,000 per month and that child support should be $9,000 a month.  The respondent contended that his income, averaged over three years was $2.26 million per annum and that he should have to pay $54,121 in spousal support and child support of $29,000 per month, as well as retroactive child and spousal support.  The Supreme Court of British Columbia ordered joint custody and joint guardianship, child support of $12,814 and spousal support of $24,124 per month, the matrimonial home reapportioned 65 per cent to Ms. Hathaway and compensation payment of $645,000. The Court of Appeal dismissed an appeal.

36185  Blackduck v. The Queen  (Publication ban in case)  (Criminal law – Jurors – Selection – What is the standard of review when it is alleged that a trial judge has erred in the exercise of his authority to supervise and control the jury selection process – Whether it is appropriate for a trial judge to conclude that when talesmen are sought, a sheriff has limited discretion to exclude potential jurors – Criminal Code, R.S.C. 1985, c. C-46, s. 629)

On appeal from the judgment of the Supreme Court of the Northwest Territories pronounced April 29, 2014  The applicant’s trial on a charge of sexual assault was scheduled to begin on April 28, 2014.  He elected trial by judge and jury.  Jury selection proceeded and a number of people were excused on consent of the Crown and defence counsel.  A number of others were excused for various reasons including relationships with the accused or witnesses involved in the case, the inability to understand English and personal hardship. Six jurors were selected before the initial jury panel was exhausted.  The Crown’s request for the summoning of talesmen was then granted and the Deputy Sheriff was directed to summons approximately 30 talesmen for jury selection.  One of the selected jurors was subsequently excused on the basis of personal hardship as he had a funeral to attend in another community.  This left five jurors remaining on the jury and eight jurors (including an alternate) yet to be selected.  The jury panel had assembled for the continuation of jury selection when defence counsel advised that he would be making an application challenging the jury panel pursuant to s. 629 of the Criminal Code.  Defence counsel advised that he had spoken with the court interpreter and was concerned that the Deputy Sheriff had engaged in pre-screening by attending certain locations and by pre-screening talesmen for relationships with the accused, complainant and witnesses in the trial.  Defence counsel alleged that the Deputy Sheriff was guilty of partiality in returning the panel of talesmen.  The application was dismissed and jury selection continued.  On April 29, 2014 twenty-five persons attended for jury selection; five were absent.  A number of people were excused for various reasons. Four more jurors were selected before the additional panel was exhausted.  At the end of jury selection, nine jurors had been selected.  The Crown did not seek to have further talesmen summoned.  As a full jury had not been selected, a mistrial was

36035  Ontario Federation of Anglers and Hunters v. Alderville Indian Band, et al. (Civil procedure – Intervention – Applicant seeking intervener status in order to bring motion to have action dismissed – Order for intervention not granted – Applicant’s notice of appeal not accepted for filing – Should the underlying trial proceedings be dismissed and/or stayed on the grounds of an abuse of process, as being res judicata and constituting a collateral attack on the decision in R. v. Howard, [1994] 2 S.C.R. 299 – Whether court of appeal erred in denying applicant leave to intervene to ensure that there would be an adjudication on this threshold legal issue)

On appeal from the judgment of the Federal Court of Appeal pronounced June 5, 2014.  In 1992, several Ontario-based First Nations brought an action against the respondent, Canada, alleging that in the negotiation and signing of theWilliams Treaties in 1923, it failed to provide fair compensation, did not provide reserve lands and failed to protect the First Nations’ legal interests, thereby breaching its fiduciary obligations.  Canada joined the province of Ontario by way of third party claim.  Both Canada and Ontario have fully defended the action.  The first phase of the trial commenced in May, 2012.  The applicant a motion for leave to intervene, which motion was dismissed. The Court of Appeal granted the respondents’ motion to strike the applicant’s notice of appeal.  The Court of Appeal granted the respondents’ motion to strike the applicant’s notice of appeal, anddismissed the applicant’s motion for extension of time.

36078  Dinelle v. A.G. Canada, et al. (Publication ban in case)  (Extradition – Committal hearings – Powers of extradition judge – Whether the Court of Appeal erred in upholding the extradition judge’s decision ordering the applicant’s committal into custody to await the surrender decision of the Minister of Justice)

On appeal from the judgment of the Ontario Court of Appeal pronounced July 9, 2014.  The applicant is currently in custody awaiting extradition to the United States in relation to alleged offences in that country.  The extradition judge ordered the committal of the applicant into custody to await the Minister of Justice’s decision to surrender him for prosecution of charges in the United States.  The Minister subsequently ordered the applicant’s surrender.  The Court of Appeal dismissed the appeal from the committal order, as well as an application for judicial review from the Minister’s surrender decision.

36209  Jayaraj v. His Excellency the Right Honourable Governor General, et al.  (Courts – Judges – Nomination of federally-appointed judges – Reasonable apprehension of bias – Applicant seeking to challenge nomination of 15 judges but being denied an extension of time to do so – Whether Court of Appeal erred in dismissing applicant’s appeal)

On appeal from the judgment of the Federal Court of Appeal pronounced November 14, 2014. On June 3, 2014, the appointment of Justice Clément Gascon to the Supreme Court of Canada was announced. The applicant wished to challenge that nomination as well as the nomination, in the summer of 2014, of 14 other federally-appointed judges. On August 27, 2014, the applicant filed a motion in the Federal Court requesting an extension of time to file a notice of application for judicial review of the appointments, which motion was dismissed.  The Court of Appeal dismissed an appeal.

36134  Harris, et al. v. Levine  (Civil procedure – Abuse of process – Negligence – Whether the Court of Appeal erred in law by determining that a criminal defence lawyer is immune from civil liability for negligence in performing his duties for his client while representing him in criminal proceedings in which the client has been found guilty – Whether the Court of Appeal erred in law by finding that a civil suit against a criminal lawyer for negligence in representing the client in criminal proceedings constitutes a re-litigation of the criminal prosecution and is, therefore, an abuse of process – Whether the Court of Appeal erred in law by finding that there is an obligation to pursue an application for ineffective representation as a precedent for negligence action against the lawyer – Whether the Court of Appeal erred in law by finding that, in order to successfully pursue a civil claim against a criminal defence lawyer for negligent representation, it is necessary to determine that the accused was innocent of the charges instead of determining that all that was necessary was a finding on the balance of probabilities that it was the negligence of the defence lawyer that resulted in the conviction)

On appeal from the judgment of the Court of Appeal for Ontario pronounced August 21, 2014.  The respondent is the former criminal defence counsel of Mr. Harris.  Mr. Harris was found guilty of one count of criminal harassment and one count of assault causing bodily harm as a result of a parking dispute he had with a neighbour.  On appeal in the criminal proceeding, Mr. Harris initially alleged that he received ineffective assistance from counsel, but he abandoned that argument prior to the hearing of the appeal.  Mr. Harris’ appeal was dismissed and he did not seek leave to appeal to the Supreme Court of Canada.  He also did not attempt to overturn his conviction pursuant to s. 696.1 of the Criminal Code.  Mr. Harris chose instead to commence an action in negligence against the respondent in which he took the position that he was innocent of the criminal charges.  He claimed damages totalling $1.1 million.  The motion judge struck the applicant’s claim on the basis that it was an abuse of process.  The Court of Appeal dismissed the appeal.