APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37238

Churchill Falls (Labrador) Corporation Limited v. Hydro-Québec (Que.)

Contracts – Performance – Good faith

On May 12, 1969, the applicant Churchill Falls (Labrador) Corporation Limited and the respondent Hydro‑Québec entered into a contract pursuant to which the respondent undertook to purchase almost all the energy generated by a hydroelectric plant that was to be built on the Churchill River in Labrador. That contract, which had a 65‑year term, set a fixed price for the energy that was to decrease in stages over time.

On February 23, 2010, the applicant instituted an action against the respondent in the Quebec Superior Court, arguing that the magnitude of the respondent’s profits because of the current value of electricity had been unforeseeable in 1969 and was causing an injustice. It submitted that the obligation to act in good faith provided for, inter alia, in the C.C.Q. imposed a duty on the respondent to renegotiate the terms of the contract.

The Superior Court dismissed the action and the Court of Appeal affirmed the judgment. It found that, except in cases of real hardship, the general principle of good faith set out in arts. 6, 7 and 1375 C.C.Q. was of no assistance to a party in the applicant’s situation (para. 159).

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37432

Graham Mathew Ible v. Her Majesty the Queen (Alta.)

Criminal law – Sentencing – Considerations

The applicant was apprehended driving a truck registered in his name containing 10 kg of cocaine valued at $500,000. The truck was equipped with a secret compartment that could only be opened through a sophisticated electronic switching system. There was evidence that this was the applicant’s fourth trip from Vancouver to Edmonton in this vehicle and, that after a certain number of trips, he would be permitted to keep the truck. The applicant was convicted of possession of cocaine for the purpose of trafficking and was sentenced to a term of 5 ½ years of imprisonment. The Court of Appeal allowed the sentence appeal and imposed a term of 8 years of imprisonment.

37457

Francis Dean Ellis v. Denman Island Local Trust Committee (B.C.)

Administrative law — Judicial review — Permits and licences

In 2002, after the applicant Mr. Ellis purchased the property in question on Denman Island in British Columbia, he began clearing trees for farming purposes, on a section of his property that fell within a designated area in which all land alterations required a permit. Mr. Ellis did not have a development permit for these clearing activities. The respondent Denman Island Trust Committee (“DILTC”) commenced an action against Mr. Ellis, seeking a declaration that he was in breach of a local bylaw and of provincial legislation. Mr. Ellis unsuccessfully challenged the validity of the bylaw and the permit requirements; he was ordered to undertake remedial work on the property, and was prohibited from undertaking further clearing activities without a permit.

Mr. Ellis applied for a development permit in 2004 (as amended in 2005) and in 2013, but his applications were refused as being incomplete. In 2015, Mr. Ellis filed a petition for judicial review of the denial of his applications, and sought relief in the nature of mandamus – specifically, an order compelling the DILTC to issue the requested development permits, and other relief.

The British Columbia Supreme Court dismissed the petition for judicial review, finding that Mr. Ellis’ application for a development permit was still incomplete, and that there was no actual decision yet to which mandamus could attach. The court also provided directions to Mr. Ellis in order to complete and perfect his application for a development permit from the DILTC, in order to obtain a decision. The Court of Appeal dismissed Mr. Ellis’ appeal, finding that Mr. Ellis had not yet complied with the directions in order to perfect his application for a development permit, and had not shown any error with respect to the court’s dismissal of his application for mandamus.

37359

Centre hospitalier de l’Université de Montréal (CHUM) v. Association des médecins résidents de Montréal - and - Nathalie Faucher, in her capacity as grievance arbitrator (Que.)

Labour relations ‒ Arbitration ‒ Collective agreement

The respondent Association des médecins résidents de Montréal is a professional syndicate certified to represent medical residents employed by the applicant Centre hospitalier de l’Université de Montréal (CHUM). On December 17, 2012, the respondent filed a grievance on behalf of Dr. Ziadi because CHUM was refusing to pay her salary insurance benefits. Under the applicable collective agreement, Dr. Ziadi had been credited with less than one month of uninterrupted service when she stopped working because of depression on June 22, 2012. On June 14, 2012, Dr. Ziadi had sent the Université de Montréal a letter stating that she was leaving the post‑doctoral neurosurgery training program effective June 18, 2012. Although the Université de Montréal reinstated Dr. Ziadi in its program on July 30, 2012, the fact that she had given up her student status from June 18 to July 30, 2012 had ended her status as a medical resident, resulting in a loss of eligibility for salary insurance benefits as an employee of CHUM. The Quebec Superior Court allowed the judicial review. The Court of Appeal dismissed the appeal.

37446

Shirley A. Hok v. Grande Prairie’s Crown Prosecutors Office of: Steven Hinkley, Brenda Scragg, Jasmine Sihra, S.W. Davis et al., Lethbridge’s Crown/Michael A. Fox et al. (Crown Prosecutor’s Office/Lethbridge) (Alta.)

Charter of Rights – Appeals

The Applicant, Ms. Hok appealed an order of the Court of Queen’s Bench of Alberta wherein a chambers judge granted summary dismissal of her lawsuit against all of the Respondents. Finding that Ms. Hok’s appeal was significantly irregular, the Court of Appeal struck the appeal.

37397

John Churchill v. Unifund Assurance Company (N.L.)

Evidence – Medical report – Judgments and orders – Interlocutory orders

Mr. Churchill was injured in a motor vehicle accident in December, 2010. He brought an action against the other driver for damages for personal injuries that was settled by that driver’s insurer. Under his Section B insurance through his own insurer, Unifund Assurance Company (“Unifund”), he claimed wage-indemnity benefits for the permanent disability that he claimed he suffered as a result of his accident injuries. Unifund agreed to pay the benefits but after approximately two years, it terminated those benefits. Mr. Churchill then filed a claim against Unifund. Unifund delivered interrogatories to Mr. Churchill in December, 2015, asking, inter alia, whether he had submitted to any independent medical examinations in connection with the tort claim against the other driver. Mr. Churchill refused to answer the question on the basis of relevancy, litigation privilege and the implied undertaking rule. Unifund sought an order compelling Mr. Churchill to answer the question and to produce copies of any medical reports. The Supreme Court of Newfoundland and Labrador ordered that the applicant is not required to answer question or produce medical report due to implied undertaking rule. The Court of Appeal allowed and applicant is required to answer interrogatories and produce medical report.

37309

Jensen Building Limited v. P.M. Snelgrove General Contractors & Engineers Ltd - and between - Jensen Building Limited v. P.M. Snelgrove General Contractors & Engineers Ltd, Paul Snelgrove (Ont.)

Torts — Evidence — Contributory negligence

The principals of P.M. Snelgrove General Contractors & Engineers Ltd. and Jensen Building Limited (“JBL”) became friends in 1990 and began working together on JBL’s construction projects in 2006. They agreed orally that Mr. Snelgrove would receive 30 per cent of the net profit. The arrangement worked well until Mr. Jensen discovered that Mr. Snelgrove had been having an affair with his wife in November 2007. Shortly thereafter, the clients who had hired JBL for the Wolfe Springs and Edward projects concluded that the stress of the discovery prevented Mr. Jensen from having the focus required to complete their projects. They terminated their agreement with JBL, leaving a large invoice unpaid. In December 2007, Mr. Jensen terminated his agreement with Mr. Snelgrove. Mr. Snelgrove brought an action against JBL for monies representing his fees for services rendered; JBL argued that no monies were owing after set-off and counterclaimed for damages sustained in the failure of the commercial relationship.

At trial, Mr. Snelgrove objected to JBL’s expert’s evidence on the grounds that it was not independent. The trial judge excluded the expert evidence on a voir dire. He ordered that JBL pay Snelgrove General Contractors $281,149.60 in respect of two projects. In relation to two other projects, he dismissed the claims and counterclaims based on his findings that JBL and Mr. Snelgrove both had a role in the losses suffered, but that neither had shown that they were entitled to compensation. The Court of Appeal dismissed an appeal.

37249

Her Majesty the Queen v. John Scott Rogers (Sask.)

Charter of Rights – Search and seizure – Criminal law

The police received a tip about an impaired driver. Acting on the tip, a police officer knocked on the door of Mr. John Rogers’s apartment and formed the opinion that he was intoxicated. Subsequent police interaction with Mr. Rogers led to a breathalyzer demand and readings in excess of the legal limit. Mr. Rogers was charged with driving while his ability to operate a motor vehicle was impaired by alcohol pursuant to s. 253(1)(a) of the Criminal Code, RSC 1985, c C-46 and driving over .08 pursuant to s. 253(1)(b) of the Code. Mr. Rogers was acquitted at trial of both counts. The trial judge found that the officer had knocked on his apartment door for the purpose of obtaining evidence against the occupant. The trial judge found that this constituted an unreasonable breach of s. 8 of the Charter. The trial judge excluded all of the evidence and entered not guilty verdicts. The summary conviction appeal court judge set aside both acquittals and ordered a new trial. The Court of Appeal allowed the application for leave to appeal, allowed the appeal and restored the acquittals which were entered at trial.

37271

Jean-Yves Lepage v. FTQ-Construction, Local 791, Union des opérateurs de machinerie lourde, Richard Goyette, Bernard Gauthier (Que.)

Civil liability — Defamation — Compensatory damages

The applicant brought an action in defamation against the respondents based on statements made by Mr. Goyette and Mr. Gauthier during press conferences organized by their labour organizations, FTQ‑Construction and Local 791 of the Union des opérateurs de machinerie lourde.

The trial judge allowed the action in defamation and awarded compensatory and punitive damages against all of the respondents. The Court of Appeal allowed the appeal for the purpose of reducing the quantum of compensatory damages and deleting the award of punitive damages against the labour organizations.

37394

Eli Humby, Central Springs Ltd, A&E Precision Fabrication and Machine Shop Inc. v. Her Majesty the Queen, Her Majesty the Queen in Right of Newfoundland and Labrador, as represented by the Office of the High Sheriff (FC)

Torts

The applicants were assessed taxes for failing to remit payroll deduction amounts and GST in 2001. In 2004, the Canada Revenue Agency certified and registered the applicants’ debts. Collection proceedings were commenced in 2005, and the assessments were confirmed in part. The High Sheriff’s Office seized the applicants’ assets and sold them on June 28, 2006.

In 2009, the applicants brought an action in the Federal Court alleging that the respondents acted unlawfully in the enforcement of the tax judgments. The applicants claimed, inter alia, that the CRA and the High Sheriff’s Office acted unreasonably and unlawfully, that their rights under ss. 7, 8 and 12 of the Canadian Charter of Rights and Freedoms were breached and that the High Sheriff’s Office acted in bad faith and in a commercially unreasonable manner.

The Federal Court dismissed the applicants’ action, and the Federal Court of Appeal dismissed the appeal.

37274

Nova Chemicals Corporation v. Dow Chemical Company, Dow Global Technologies Inc. and Dow Chemicals Canada ULC (FC)

Intellectual property – Patents – Validity

Nova and the respondents (collectively, “Dow”) are both manufacturers of polymer compositions products such as garbage bags and food wrap and are competitors in the market. Dow sells polyethylene film-grade copolymers under the name “Elite” in Canada. Nova manufactures and sells polyethylene film-grade copolymers under the name “Surpass”. Dow is the owner of the ‘705 Patent for polyethylene compositions and the films made from such compositions. These compositions are blends of two different polymer components referred to as Component “A” and Component “B”. Dow sought a declaration that Nova had infringed its ‘705 Patent and damages or an accounting of profits for the infringement. The Federal Court ordered that claims of Dow’s ‘705 patent were valid and infringed by Nova. Dow entitled to elect between accounting of profits or damages. The Court of Appeal dismissed the appeal.

37396

TPG Technology Consulting Ltd. v. Her Majesty the Queen (FC)

Contracts – Government contracts – Tenders

The applicant TPG participated in the procurement process conducted by Public Works and Government Services Canada (PWGSC) for a multi-year contract to provide engineering and technical support services to federal government departments and other governmental users. PWGSC awarded the contract to another bidder. TPG started an action against the federal Crown, claiming, among others, damages for breach of contract in the procurement process. The Crown responded with a summary judgment motion. The Crown was successful on the summary judgment motion, but that judgment was reversed on appeal, and the case proceeded to trial. At trial, the Federal Court dismissed the action for breach of contract and the Court of Appeal dismissed the appeal.

37389

Bill Lam v. Her Majesty the Queen (Ont.)

Criminal law – Appeals – Powers of the Court of Appeal

The applicant was charged with driving a motor vehicle over the legal limit. There was evidence that the intoxylizer had flooded at some point. The intoxylizer had not been sent to its annual maintenance as recommended by the Forensic Science Alcohol Test Committee. An acquittal was entered. The summary conviction appeal court judge allowed the appeal and ordered a new trial. The Court of Appeal refused to grant leave to appeal.

37412

Ming Jian v. Zhi Long Zhang (Que.)

Civil procedure – Judgment – Revocation

In 2006, Zhi Long Zhan was ordered to pay damages to Ming Jian for personal injury suffered as a result of a 2002 altercation in a context of domestic violence. The Superior Court dismissed Zhi Long Zhan's motion in revocation of judgment. The Court of Appeal allowed the appeal.