36834   Elizabeth Bernard v. Canada Revenue Agency, Treasury Board, Professional Institute of the Public Service of Canada

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Elizabeth Bernard v. Canada Revenue Agency, Treasury Board, Professional Institute of the Public Service of Canada

(FC)

Judgments and orders – Interlocutory orders – Motion to strike

The applicant sought reconsideration of a decision of the Public Service Labour Relations and Employment Board (“Board”) dated February 21, 2008. She alleged that a panel member in that case was biased. On June 29, 2015, the Board dismissed the applicant’s request that it reconsider the 2008 decision. The applicant sought judicial review of that decision and filed an affidavit in support of her application. The respondent, the Professional Institute of the Public Service of Canada, moved for an order striking out certain paragraphs and exhibits in the affidavit on the basis that on an application for judicial review, the court could only consider the evidence that had been before the administrative Board. The applicant submitted that the paragraphs and the exhibits were relevant to alleged bias on the part of one of the members of the Board and an overall breach of natural justice. The Federal Court of Appeal granted one respondent’s motion to strike. The Federal Court of Appeal dismissed the applicant’s motion for reconsideration.

36839  M.M. v. H.E.

(Ont.)

Charter — Family law — Custody and access — Best interests of child

The issue in this leave application is whether the trial judge erred in declining to assume jurisdiction under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), to determine custody of the parties’ two children, E.M. and R.M., who are dual Canadian-Egyptian citizens. The respondent, Ms. H.E., was living in Egypt with the children when she moved back to Ontario (where the children were born). In addition to seeking custody of the children under the CLRA or the court’s parens patriae jurisdiction, she sought a declaration that her Egyptian divorce from the applicant, Mr. M.M., was invalid and other ancillary relief. The trial judge, however,recognized the divorce as valid and found that H.E. had attorned to the jurisdiction of the Egyptian court. Therefore, the judge concluded that there was no basis to assume jurisdiction to determine the custody issue and he dismissed H.E.’s application. In addition, he ordered the children’s return to Egypt. H.E. appealed only the issue of the trial judge’s refusal to assume jurisdiction. She also brought a motion to introduce fresh evidence on appeal. The Court of Appeal allowed the appeal, holding that the trial judge erred in declining jurisdiction. H.E. was granted interim custody of the children pending further order of the Superior Court. Based on the fresh evidence, the Court of Appeal concluded that H.E. established on a balance of probabilities that the children would be at risk of serious psychological harm if returned to Egypt.

36885   Nutriview Systems Inc., Brian Thurston v. Harry Ma

(B.C.)

Evidence

The respondent brought an action against the applicants alleging breach of contract, breach of the Sale of Goods Act, R.S.B.C. 1996, c. 410, breach of fiduciary duty and negligent and fraudulent misrepresentation in respect of a contract to operate vending machines in schools in Coquitlam B.C. The applicants brought a counterclaim for breach of contract. The Supreme Court of British Columbia held that the applicants had made fraudulent misrepresentations, one of which entitled the respondent to rescind the contract. The applicants were held jointly and severally liable to pay the respondent damages of $435,093.75.

On appeal, the applicants sought to adduce fresh evidence in the form of an affidavit by a witness at trial, alleging that he had been bribed by the respondent to give false testimony in his favour. The witnesse swore that he in fact only gave truthful evidence and received an anonymous, partial payment after the trial. The majority of the Court dismissed the application to admit fresh evidence, finding that the evidence did not meet the credibility test in Palmer. Newbury J.A., dissenting, would have allowed the application to admit fresh evidence in the interests of justice. The appeal was dismissed.

36905   Andrew Massey, Lombardy Raceway Park, Lombardy Karting, Lombardy Agricultural Society and the National Capital Kart Club (NCKC) v. Derek Fleming

(Ont.)

Contracts – Waivers – Employment law – Workplace safety

Derek Fleming brought an action in which he seeks damages for injuries suffered at a go-kart race on October 3, 2010, at which he was the race director and received a $150 stipend. Andrew Massey was driving the go-kart which crashed into hay bales lining a corner of the track and injured Mr. Fleming. On a motion for summary judgment, the applicants argued that the Mr. Fleming had signed a waiver releasing them from liability for all damages associated with his participation in the event due to any cause, including negligence.

The Ontario Superior Court of Justice granted the applicants’ motion for summary judgment, dismissing the respondent’s action. The Ontario Court of Appeal allowed the respondent’s appeal, setting aside the order of the motions judge, and allowed the action to proceed to trial.

36710   Système intérieur GPBR inc. v. Agence du revenu du Québec

(Que.)

Taxation — Provincial sales tax — Input tax credit (“ITC”)

The applicant (“GPBR”) was a company in the business of gypsum board installation and joint finishing, which it sometimes hired subcontractors to perform. In June 2007, the Agence du revenu du Québec (the respondent) carried out a seizure against GPBR because it suspected GPBR of being involved in a network of companies that used accommodation invoices or false invoices for the input tax refund and the input tax credit. The respondent ultimately sent GPBR a notice of assessment totalling $79,000, which was disputed by GPBR on the ground that it did not know that the invoices received from its subcontractors were from companies that provided accommodation invoices. Following an audit, the respondent concluded that GPBR had not proved that the companies that supplied the invoices had performed the services or had caused or facilitated their performance, as provided for in s. 201 of the Act respecting the Québec sales tax, CQLR, c. T‑0.1, and ss. 201R01 to 201R05 of the Regulation respecting the Québec sales tax, CQLR, c. T‑0.1, r. 2. On that basis, the Minister of Revenue dismissed GPBR’s objection. The Court of Quebec set aside the decision of Minister of Revenue. The Quebec Court of Appeal allowed the appeal.

36647  Mariann Taylor-Baptiste v. Ontario Public Service Employees Union, Jeff Dvorak, Human Rights Tribunal of Ontario

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Attorney General of Ontario v. Ontario Public Service Employees Union, Jeff Dvorak, Human Rights Tribunal of Ontario

(Ont.)

Charter of Rights – Freedom of Expression – Freedom of Association

Mariann Taylor-Baptiste and Jeff Dvorak both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the Jail’s local branch of the Ontario Public Service Employees Union. In early 2009, during a period of labour unrest and intense collective bargaining, Mr. Dvorak operated a blog about union matters on which he authored a blog post, and permitted the posting of a comment written by someone else, both accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to the Ontario Human Rights Commission, alleging discrimination “with respect to employment” and harassment “in the workplace” on the grounds of marital status and/or sex, contrary to ss. 5(1) and 5(2) of the Human Rights Code, R.S.O. 1990, c. H.19.

The Human Rights Tribunal of Ontario dismissed Ms. Taylor-Baptiste’s complaint and her application for reconsideration, finding the conduct complained of did not fall within the social areas of “employment” or “in the workplace” regulated by the Code. The Ontario Superior Court of Justice, Divisional Court, dismissed the application for judicial review finding the Tribunal’s decisions were reasonable. The Ontario Court of Appeal unanimously dismissed the appeal.

36854  Adel Arnaout v. Her Majesty the Queen

(Ont.)

Criminal law – Trial – Judgments – Reasons for judgment

Mr. Arnaout was convicted at trial of several counts of attempted murder, of causing an explosive device to be delivered and of possession of an explosive device. Mr. Arnaout admitted to sending tainted water bottles and letter bombs to several people, but said he did not intend to kill anyone. In assessing Mr. Arnaout’s intent on the charges related to the tainted water bottles, the trial judge originally concluded that Mr. Arnaout had put poison (Ricin) in the bottles. Several months later, during dangerous offender proceedings, the trial judge amended his trial reasons to add the alternative finding that Mr. Arnaout tried but failed to put Ricin in the bottles. Mr. Arnaout appealed his convictions to the Court of Appeal, arguing that the trial judge’s presumption of integrity had been rebutted by the amendment. The Court of Appeal agreed, but concluded that the only consequence was to eliminate the trial judge’s subsequent alternative finding from the reasons relevant on appeal.

36886  Her Majesty the Queen v. Jeremy William Hall

(Ont.)

Criminal law – Appeal

Mr. Hall was charged with two counts of counselling murder. The Crown did not call Mr. Hall’s common law wife, Ms. Eaton, as a witness even though she had given a statement to police corroborating some of the Crown’s principal witness’s testimony. The Crown conceded that Ms. Eaton was not compellable as a witness for the Crown. It sought to introduce her statement to the police under the principled exception to the hearsay rule. The trial judge applied R. v. Couture, 2007 SCC 28, and excluded her statement to the police on the basis that its admission would undermine the spousal non-compellability rule. The Ontario Superior Court of Justice acquitted two counts of counselling murder. The Court of Appeal for Ontario dismissed the appeal.

36848   Britton Low v. Pfizer Canada Inc., Pfizer Inc., Pfizer Ireland Pharmaceuticals, Pfizer Research and Development Company N.V./S.A.

(B.C.)

Civil procedure — Class actions — Patents

After Patent 2,163,446 for sildenafil citrate, the active ingredient in Viagra, was invalidated for lack of disclosure, Britton Low brought this action on behalf of members of the class consisting of British Columbia residents who purchased Viagra from January 1, 2006, until November 30, 2012 (roughly, the period during which Teva was prevented from marketing generic sildenafil citrate due to the prohibition proceedings initiated by Pfizer). He sought to have this action certified as a class action. In the action, he alleged that Pfizer was able to charge an inflated price for Viagra as a result of the unlawfully obtained monopoly, and he sought recovery of the difference between the actual price it collected and the price it would have collected if a generic alternative had been on the market. He also alleged unlawful interference with economic relations and unjust enrichment.

The chambers judge found that the pleadings disclosed causes of action in relation to causes of action in intentional interference with economic relations and unjust enrichment, but not in relation to waiver of tort. He certified the class action with respect to the former two causes of action. The Court of Appeal allowed Pfizer’s appeal, set aside Smith J.’s order to the extent that it found that the pleadings disclosed a cause of action under s. 4(1)(a) of the Class Proceedings Act, R.S.B.C. 1996, c. 50.

36658   Canadian Association for Free Expression v. Fred Gene Streed, Executor of the Estate of Harry Robert McCorkill (a.k.a. McCorkell), deceased, Isabelle Rose McCorkill, Centre for Israel and Jewish Affairs, Province of New Brunswick, as Represented by the Attorney General

(N.B.)

Wills and Estates — Wills — Bequest void declared for public policy reasons

Mr. McCorkill died in February 2004, having made his last will and testament in 2000. In the dispositive clause of his will, he transferred all of his property to his trustee in trust to pay all his debts and taxes and to “pay or transfer the residue of [his] estate…to the NATIONAL ALLIANCE, a Virginia corporation”, at the address he used for his executor, William Luther Pierce, and his alternate executor, the respondent Fred Gene Streed. Mr. Streed received Letters Probate of Mr. McCorkill’s will in May 2013. In July 2013, Mr. McCorkill’s sister, the respondent Isabelle McCorkill, requested, inter alia, that the bequest to the National Alliance be declared void as being illegal or contrary to public policy. Leave to intervene was granted to the Province of New Brunswick, the Centre for Israel and Jewish Affairs, the League for Human Rights of B’Nai Brith Canada, and the applicant, the Canadian Association for Free Expression (“CAFE”).

Grant J. found that the purposes of the National Alliance and the activities and communications it undertook were racist, white supremacist, and hate-inspired, contrary to s. 319(2) of the Criminal Code¸ R.S.C. 1985, c. C-46, and contrary to the public policy of both Canada and New Brunswick. He declared the residual bequest to the National Alliance void, and, as that left an intestacy, he ordered that the residue be divided amongst Mr. McCorkill’s next of kin under the Devolution of Estates Act, R.S.N.B. 1973, c. D-9. He declined to remove Mr. Streed as executor as that remedy did not flow from his decision and would require a separate application under the Probate Rules. CAFE’s appeal was dismissed. The Court of Appeal of New Brunswick dismissed the appeal with costs to specified respondents.

36882   Agence du revenu du Québec, Claudine Duval, Maxime Éthier, Sylvie Robichaud, Sylvain Brassard, René Lévesque, Adil Chennaoui, Conrad Canizalez, Claude Hébert, Alexandra-Maude Valade and Marc-André Pelletier v. Uber Canada Inc.

(Que.)

Civil procedure – Appeal – Search warrant

The applicant, the Agence du revenu du Québec, obtained a warrant to search the premises of the respondent, Uber Canada Inc., in the course of an investigation into tax offences. In its principal action, the respondent sought to have the search warrants quashed through a motion for certiorari. As a safeguard measure, the respondent also requested the impounding of the documents and things seized, which the Superior Court denied. On appeal, the Court of Appeal set aside the decision and ordered impoundment. The applicant disputes that there was a right of appeal in this case.

36897  Northbridge General Insurance Corporation v. CII Technologies Inc.

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Attorney General of Quebec, Commission scolaire de la Rivière-du-Nord, Ecosystem Energy Systems Inc., Zurich Canadian Holdings Limited, Yvon Hébert

(Que.)

Insurance – Insurer’s duty to defend

The respondent CII Technologies Inc. was sued for the damage sustained during a fire at a secondary school where it was doing work as a subcontractor. The respondent was insured by the applicant Northbridge General Insurance Corporation, which refused to defend the respondent on the basis that it had failed to comply with a warranty in the exclusion rider attached to the insurance policy. The respondent filed a Wellington motion to require the applicant to defend it. The Quebec Superior Court dismissed the motion to require Northbridge General Insurance Corporation to defend CII Technologies Inc. The Quebec Court of Appeal allowed the appeal and Northbridge General Insurance Corporation ordered to defend CII Technologies Inc.

36808   Roger Guignard v. City of Saint-Hyacinthe

(Que.)

Charter of rights– Right to be heard – Right against self‑incrimination

The City issued a permit authorizing the owner of an immovable to do repair work to prevent his immovable from being demolished. The parties entered into an agreement, which was incorporated into a Superior Court order, stating that the owner had to do the work within a specified time. He did not do the work, and the City prosecuted him for contempt of court. The trial judge convicted the owner, who chose not to testify at trial, of contempt of court. The Court of Appeal upheld the conviction but referred sentencing back to the trial judge. At the sentencing hearing, the trial judge refused to allow the owner to introduce evidence to explain why the work had not been done. The judge stated that such evidence was not relevant at the sentencing stage. She fined the owner $10,000. The Court of Appeal upheld the trial judge’s refusal to admit the evidence the owner wished to adduce, but it reduced the fine to $4,000, since the statutory maximum was only $5,000.

36904   Verolin Spence, Alexander Spence v. BMO Trust Company

(Ont.)

Wills and Estates — Wills — Will disinherited one of testator’s two daughters

Rector Eric Spence made a will leaving the residue of the estate to be divided in equal shares between one of his two daughters and her sons, with the remainder going to a cousin. The will expressly excluded his daughter Verolin from sharing in his estate, saying “I specifically bequeath nothing to [Verolin], as she has had no communication with me for several years and has shown no interest in me as her father”. Verolin and her son applied to the Superior Court for a declaration that the will was void, in whole or in part, as being contrary to public policy under Rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and leave to proceed with a dependant’s relief application under ss. 58 and 60 of the Succession Law Reform Act, R.S.O. 1990, c. S.26. They requested directions from the court, and submitted affidavit evidence indicating that the real reason Rector Spence disinherited Verolin was that her son’s father was not black.

The applications judge admitted the extrinsic evidence, accepted the claim that Verolin and her son had been disinherited because the son’s father was not black, and set the will aside because it offended human sensibilities and public policy. In the resulting intestacy, she divided the estate equally between the two daughters pursuant to the Succession Law Reform Act. The Court of Appeal allowed an appeal, holding that the will was clear and did not, on its face, offend public policy. Although that disposed of the appeal, it went on to find that there was no reason to admit the extrinsic evidence.

36872   R.D.A. v. Her Majesty the Queen

(Sask.)

Criminal law – Evidence – Findings of credibility – DNA evidence

The applicant and the complainant were walking and talking late one evening. It was cold outside, so the applicant offered to start a fire inside an ice fishing shack. The complainant followed him inside the shack, though she changed her mind about staying. She tried to leave. The applicant pushed her onto a couch in the shack and had sexual intercourse with her. She tried to cry for help but the applicant covered her mouth. She escaped and ran to a neighbour’s house where she called the RCMP. The trial judge rejected the applicant’s account of what had happened and accepted the complainant’s evidence. The applicant was convicted of sexual assault. The Court of Appeal dismissed the appeal.

36903   Jamie Lands, in her capacity as liquidator for the estate of the late Ralph Harris v. Kenneth F. Salomon, Sternthal Katznelson Montigny

(Que.)

Law of professions – Professional liability – Lawyers

The Applicant is the subsequent liquidator of the estate of the late Ralph Harris (hereinafter the “Estate”), whose sole beneficiaries are the deceased’s two handicapped sons. The former liquidator retained the Respondents to guide him through his duties. Early in the mandate, the Respondents advised the liquidator that the Estate would save money by hiring someone to perform administrative duties. The Respondents recommended hiring Mr. Earl Jones to help in that regard and the liquidator followed this recommendation. In the summer of 2009, Mr. Jones was arrested and it was discovered that the monies of the Estate that had been transferred to him were gone. The Applicant commenced an action against the Respondents seeking compensation from them for having recommended hiring Mr. Jones. The Superior Court of Quebec dismissed the action and the Court of Appeal for Quebec dismissed the appeal.

36909   Marc-André Lemire v. Mireille Brosseau, in her capacity as syndic ad hoc of the Barreau du Québec

(Que.)

Civil proceeding – Motion for leave to appeal – Whether applicant raises issue of public importance.

The disciplinary council of the Barreau du Québec found the applicant guilty of various offences related to his appropriation of an elderly person’s funds. In a corrected decision, the board added to the suspensions imposed on the applicant an order to repay $100,984.54 to the victim’s succession. The Professions Tribunal acquitted him of the offence of using his status as a lawyer to obtain a mandate to administer the victim’s property, but confirmed the council’s various decisions regarding the other charges and the sanctions it had imposed. The applicant applied for judicial review of the decision of the Professions Tribunal. The Quebec Superior Court dismissed the motion for judicial review. The Quebec Court of Appeal dismissed the motion for leave to appeal.

36916   Ilario Giugovaz v. Director of Criminal and Penal Prosecutions

(Que.)

Provincial offences – Food products

The applicant was convicted of operating a slaughterhouse without holding a permit in force, contrary to s. 9 of the Food Products Act, CQLR, c. P‑29.

During a visit to the applicant’s farm on November 6, 2011, a Muslim holiday, inspectors from Quebec’s Ministère de l’Agriculture, des Pêcheries et de l’Alimentation observed the sale of sheep by the applicant to about a hundred buyers who were present as well as facilities made available to customers for slaughtering the sheep they bought. Once the customers had paid for the sheep, they made their way to those facilities, where they tied the sheep to a frame made of wood and metal, used a knife to perform the bleeding ritual on the animal, removed the skin and internal organs and put them in pails provided for that purpose, and burned the tips of the hooves on fire pits using grates set up by the applicant.

The applicant admitted the sale and slaughter of sheep on his farm but argued that he did not need to hold a permit to operate a slaughterhouse because, apart from selling and weighing the animals, he had not done anything connected with the killing or evisceration of the sheep. The Court of Quebec convicted the applicant of operating slaughterhouse without holding permit in force. The Quebec Superior Court and Quebec Court of Appeal dismissed the appeal and motion for leave to appeal.

36900   Alexandr Sin v. Her Majesty the Queen

(FC)

Immigration law – Permanent residents

The applicant Mr. Sin applied for a permanent residence status in Canada as an investor. While his application was pending, the Government of Canada introduced legislative amendments which terminated all of the pending investor applications and barred any recourse or indemnity against the Government of Canada in connection with the termination of those applications. Mr. Sin received a refund of his application fee and an amount equal to his investment made in respect of the application. Mr. Sin commenced an action against the federal Crown, seeking compensation for out-of-pocket expenses and damages for loss of opportunity. He also sought an order for a pre-certification notice of a class proceeding. Mr. Sin argued that his investment in Canada was indirectly expropriated without compensation through the termination of his application, relying on bilateral investment treaties that protect the rights of investors. The Crown brought a motion to strike his claim for failure to disclose a cause of action. The Federal Court granted the motion to strike and dismissed the motion for pre-certification notice. The Federal Court of Appeal dismissed the appeal.

36883   Roger Callow v. Board of School Trustees (S.D. #45 West Vancouver, B.C.)

(Que.)

Civil Procedure – Notice of Motion – Disclosure

The applicant is a former employee who was laid off in 1985 from the respondent School Board. The applicant initially sought a remedy in British Columbia, the province in which he had been employed.

The applicant filed a proceeding entitled “Notice of Motion” in the Quebec Superior Court in which he sought disclosure of various documents from the respondent relating to the dispute over his termination in 1985. The Quebec Superior Court dismissed the applicant’s motion on the basis that the proceedings: disclosed no cause of action; were frivolous and vexatious; and were beyond the jurisdiction of the court.

The Quebec Court of Appeal dismissed the applicant’s appeal.