36574   Attorney General of Canada v. Raymond Lapple

Charter of Rights and Freedoms – Criminal Law – Benefit of lesser punishment

The respondent was a first-time, non-violent federal offender who was sentenced after the repeal of accelerated parole review (“APR”) for offences that were committed before it was repealed. He applied for habeas corpus seeking, among other things, a declaration that he was entitled to the benefits of the APR regime. This was denied. He appealed, and his appeal was allowed.

36571   Attorney General of Canada v. James Frost

Charter of Rights and Freedoms – Criminal Law – Benefit of lesser punishment

The Respondent was a first-time, non-violent federal offenders who was sentenced after the repeal of accelerated parole review (“APR”) for conspiracy to import cocaine, an offence that was committed before APR was repealed. He applied for habeas corpus seeking a declaration that he was entitled to the benefits of the APR regime. MacKinnon J. denied the motion on the basis that the respondent had no legitimate or settled expectation of liberty with respect to his sentence, and could not benefit from the APR regime since it had been repealed when he was sentenced. The Court of Appeal allowed his appeal on the basis of its decision in Canada (Attorney General) v. Lewis 2015 ONCA 379.

36564       Attorney General of Canada v. Samantha Claire Lewis, Souphin Inlakhana, Juliet Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld, Patricia Longley, Candace Branche, Carol Williams

Charter of Rights and Freedoms – Criminal Law – Benefit of lesser punishment

Non-violent, first time federal offenders were entitled to an accelerated parole review (APR) entitling them to apply for day parole after serving the longer of six months or one-sixth of their sentence under the Corrections and Conditional Release Act S.C. 1992, c. 20. On March 28, 2011, the APR provisions were repealed when the Abolition of Early Parole Act, S.C. 2011, c. 11 came into force. The respondents were convicted of offences that were committed before March 28, 2011 and were sentenced after the repeal of APR. They applied in the Superior Court of Ontario for a declaration that they were entitled to the benefits of APR. The application for a declaration was granted and an appeal by the applicant to the Court of Appeal for Ontario was dismissed.

36579    Precision Plating Ltd., Mico Stankovic, Miroslav Stankovic v. Axa Pacific Insurance Company, Intact Insurance Company

Insurance — Insurer’s duty to defend — Exclusions

A fire at the applicants’ premises resulted in chemical contamination of the surrounding properties. The applicants sought a declaration that their commercial general liability insurance policy obliged the respondents to defend them from third-party claims that resulted from that fire and contamination. The insurance contract excluded coverage for bodily injury, personal injury or property damage “arising out of, caused by or contributed to by” the leakage or escape of pollutants. Relying on that exclusion, the respondents disputed that any coverage was owed for defence costs and indemnity respecting the claims made by the occupiers of the neighbouring premises against the applicants.

The trial judge found that the parties could not have reasonably expected that coverage for third party claims arising from the escape of substances caused by a fire would be covered by the pollution exclusion. The insurers therefore had a duty to defend. The Court of Appeal held that the statements of claim showed that the liability alleged was “contributed to by” the contamination, which brought it within the pollution exclusion. As such, there was no possibility that Axa could be required to indemnify, and the respondent had no duty to defend.

36713   Grigore Vetrici v. Raluca Vetrici

Family law – Custody and access – Custody

The Applicant was raised in Calgary. The parties married in Romania in 2003 and moved to Calgary after a short stint living in the United States where their twin girls were born in 2003. A RESP was opened for the children's benefit. The parties moved to Olympia, Washington for the father's employment. He was laid off in 2009 and the parties separated. A separation agreement provided for joint custody and residence, with each party retaining all property in their respective names, and the mother receiving $10,000. The father retained the majority of the party's assets. In 2009, the children returned to Calgary to live with the father's parents. The mother was accepted into university in Washington. The father moved to Vancouver with the children to facilitate the mother’s access. In 2010, the mother obtained an uncontested order in Washington awarding her any property in her possession. In 2011, the mother remarried and filed a claim in British Columbia seeking relocation of the children with her to Washington. The father sought sole custody and child support. The mother closed the RESP and used the proceeds for her own support. In 2012, the mother relocated to Vancouver and sought equal parenting time. The trial judge granted the mother's request. The Court of Appeal granted the extension of time but dismissed the appeal.

36538   Apotex Inc. v. Eli Lilly and Company, and Eli Lilly Canada Inc.

Intellectual property – Patents – Medicines

The Respondents (collectively, “Eli Lilly”) owned the ‘735 patent relating to the use of atomexetine hydrochloride in the treatment of Attention Deficit Hyperactivity Disorder. Eli Lilly received its Notice of Compliance (“NOC”) in 2004 and entered the market as sole supplier of the medicine. In 2008 Apotex Inc. (“Apotex”) developed its generic version of the drug and sought to obtain a NOC to also enter the market. It served Eli Lilly with a Notice of Allegation under the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 (“Regulations”), claiming that the ‘735 patent was invalid on the grounds of anticipation, obviousness and inutility. Eli Lilly commenced a proceeding under theRegulations, seeking an order to prohibit the issuance of a NOC to Apotex, triggering the statutory stay and effectively keeping Apotex from gaining market entry for a period of two years. Meanwhile, in another proceeding, the ‘735 patent was declared to be invalid for want of disclosure. As a result, Eli Lilly’s prohibition application in the within action was dismissed. Apotex claimed damages against Eli Lilly under s. 8 of the Regulations for losses suffered as a result of its exclusion from the market during the prohibition period from October 10, 2008 to September 21, 2010. Apotex sought relief, inter alia, pursuant to unjust enrichment principles, for disgorgement of Eli Lilly’s profits earned during the period of market exclusion.  The Ontario Superior Court of Justice allowed in part the motion to strike of the Respondent. The appeal was dimissed.

36547    Town of Thetford Mines v. Association des policiers de Thetford Mines

Administrative law – Judicial review – Boards and tribunals

The mis‑en‑cause, Anne Bilodeau and Sylvie Fontaine, filed a grievance under their collective agreement seeking retroactive payment of additional indemnities for parental leave. That grievance was dismissed because the prescription periods had not been met. Following that decision, they filed a complaint against the respondent under s. 47.2 of the Labour Code for breach of its duty of representation before the Commission des relations du travail. The complaint was allowed on the ground that the respondent had been seriously negligent by making an unjustified error in computing the prescription periods. The Commission ordered that the claims be referred to arbitration, as in the case of a grievance, under ss. 47.3 et seq. of the Code. In response to that decision, the applicant filed a motion for judicial review in the Superior Court. The motion was allowed. In the Court’s view, the decision was unreasonable because the commissioner had exceeded the powers conferred on him by ss. 118 and 119 of the Code by ordering that the claims be referred to arbitration in a situation other than the ones provided for in s. 47.3 of the Code. The Court of Appeal allowed the respondent’s appeal.

36570     Romeo Constantine v. Her Majesty the Queen

Criminal law – Jurors – Question from the jury

The applicant and Mr. Creighton went to an apartment with the ostensible purpose of purchasing two pounds of marijuana from Mr. Johnson. The theory of the applicant’s defence was that Mr. Johnson was accidentally shot by his own gun during a struggle. The theory of the Crown’s case was that Mr. Johnson was shot in the course of a robbery/home invasion by the applicant and Mr. Creighton. The applicant was convicted of second degree murder. His conviction appeal was dismissed.

36542     1284897 Alberta Ltd. v. Zero Spill Systems (Int'l) Inc., Katch Kan Holdings Ltd., Quinn Holtby and Katch Kan Rentals Ltd., Bill Heide, Central Alberta Plastic Products and Rat Plastic Ltd.

Intellectual property – Patents – Industrial design

The respondent, Quinton Holtby, was the inventor of oil field fluid containment products and the owner of the 265, 064 and 375 Patents and the 793 Design, either personally or through his companies. Mr. Holtby controlled the respondent companies Zero Spill Systems (Int'l) Inc., Katch Kan Holdings Ltd. and Katch Kan Rentals Ltd. (collectively, “Zero Spill”). Zero Spill brought an infringement action against the defendants, 1284897 Alberta Ltd. (“Lea-Der”) and Bill Heide, doing business as Central Alberta Plastic Products and Rat Plastic Ltd. (collectively, “the Heide respondents”). The defendants were alleged to have infringed the 064 and 375 Patents by manufacturing and/or selling competing oil field fluid containment products. The Heide respondents were also alleged to have infringed the 793 Design. The products in dispute were all designed to capture fluids that either leaked or were spilled during oil field operations, particularly during pipe disconnection procedures. The Heide respondents produced upper and lower containment trays for use on well heads and drilling rigs. Lea-Der resold lines of upper and lower trays. The Heide respondents maintained that their products were non-infringing. The applicant, Lea-Der, asserted non-infringement and also claimed that the patents were invalid. The Federal Court dismissed Zero Spills’ infringement claim and the Federal Court of Appeal allowed the appeal in part.

36596   Bao Quoc Nguyen, et al. v. Her Majesty the Queen

Canadian Charter of Rights and Freedoms – Criminal law – Evidence

Quang Thi Nguyen was shot and killed in a bar by an unidentified shooter. Following a jury trial, Bao Quoc Nguyen and Kien Binh Tu were convicted of first degree murder in his death and Bao Tri Nguyen was convicted of being an accessory after the fact to first degree murder. The Crown called as witnesses the common law spouses of Bao Quoc Nguyen and Bao Tri Nguyen, and introduced certain out of court statements from the common law spouse of Bao Quoc Nguyen.  Their appeals from conviction were dismissed. The Court of Appeal would not extend the spousal incompetency rule in s. 4(3) of the Canada Evidence Act to common law spouses. Although it was discriminatory, it was justified under s. 1 of the Charter.

36502    Clifford Lecaine, Margaret Lecaine v. Registrar of Indian and Northern Affairs Canada, Beryl Tresa Jordison

Aboriginal law — Indian Register — Membership on Indian Register

Beryl Tresa Jordison was added to the Indian Register and to the Wood Mountain Lakota Nation’s Band List in October 2008. Clifford and Margaret LeCaine protested the Registrar’s decision to add her to the Register pursuant to s. 14.2(1) of the Indian Act, R.S.C. 1985, c. I-5, arguing that Ms. Jordison was not entitled to be registered because her father, George O’Kute/LeCaine, had been enfranchised and was therefore not entitled to be registered as an Indian. George O’Kute/LeCaine had received that homestead in 1920 without going through the formal enfranchisement process.

The Registrar found that George was entitled to be registered, and Ms. Jordison was entitled to be an Indian under the 1985 Indian Act. He dismissed the LeCaines’ protest. The LeCaines appealed. The chambers judge and the Court of Appeal both dismissed further appeals.

36503     Clifford Lecaine, Margaret Lecaine v. Registrar of Indian and Northern Affairs, David Michael Ogle, Patricia Lynn Ogle Gendre, Judy Theresa Ogle Helland, Jimmie Luther Ogle, William Hall Ogle, Brian James Ogle, Travis Sophie Ogle, Robin Wanda Ogle Fehr, Alice Agnes Ogle and Everett Leroy Ogle

Aboriginal law — Indian Register — Membership on Indian Register

In the late 19th century, a number of American Lakota Sioux crossed into Canada following the battle of Little Bighorn. They settled south of Moose Jaw, Saskatchewan and came to identify themselves as the Wood Mountain Lakota Nation. John O’Kute/LeCaine and Emma Loveswar are shown as members of the 1910 Wood Mountain Band List. The legal status of some of their descendants is at issue here and in SCC File No. 35602, submitted along with this application. Clifford and Margaret LeCaines filed a protest on February 18, 2010, concerning the inclusion on the Indian Registry of their daughter Elizabeth, her husband, and 11 of their descendants (“the Ogles”). Most of them were added to the Indian Register and to the Nation’s Band List between February 1990 and July 2003; one was added on March 21, 2005, and another was added on May 10, 2006. The LeCaines allege that they did not know that the Ogles had been added to the Register because their request for a Band Membership List was denied.

The Registrar dismissed the protests on the grounds that they had been filed outside the three-year time limit set out in s. 14.2(1). The Court of Queen’s Bench dismissed an appeal, as did the Court of Appeal.

36554      Rakuten Kobo Inc. v. Commissioner of Competition, Hachette Book Group Canada Ltd., Hachette Book Group, Inc. and Hachette Digital Inc., HarperCollins Canada Limited, Holtzbrinck Publishers, LLC, Simon & Schuster Canada, a division of CBS Canada Holdings Co.

Administrative law – Competition Tribunal – Statutory interpretation

Section 106(2) of the Competition Act allows a person directly affected by a consent agreement to apply to the Competition Tribunal to have the consent agreement rescinded or varied. The Tribunal may grant the application if it finds that the applicant establishes that “the terms [of the consent agreement] could not be the subject of an order of the Tribunal”. In 2012, the Commissioner of Competition commenced an investigation into the e-book industry in Canada. The investigation resulted in the Commissioner entering into a Consent Agreement with the four respondent publishers. The Consent Agreement recites that the Commissioner’s concerns that the respondent publishers had engaged in conduct that substantially lessened or prevented competition, were resolved. The applicant, Rakuten Kobo Inc., is an e-book retailer which alleges that it was directly affected by the Consent Agreement because it altered existing contractual relationships between Kobo and the respondent publishers. As such, it applied under s. 106(2) of the Act for an order rescinding or varying the Consent Agreement. One ground asserted by Kobo to justify rescission was that there was no jurisdiction to enter into the Consent Agreement because there had been no violation of the Act. As Kobo's application raised an issue of statutory interpretation, the Commissioner referred the following question of law to the Tribunal for determination: What is the nature and scope of the Tribunal's jurisdiction under s. 106(2) and, in that connection, what is the meaning of the words "the terms could not be the subject of an order of the Tribunal" in s. 106(2) of the Act? The Federal Court of Appeal dismissed the applicant’s appeal.