36728    Enmax Power Corporation, Altalink Management Ltd., in its capacity as general partner of Altalink, L.P., EPCOR Distribution & Transmission Inc. v. Alberta Utilities Commission, Office of the Utilities Consumer Advocate of Alberta

- and between -

FortisAlberta Inc., Altagas Utilities Inc., ATCO Gas and Pipelines Ltd., ATCO Electric Ltd. v. Alberta Utilities Commission, Office of the Utilities Consumer Advocate of Alberta

(Alta.)

Administrative Law — Statutory Interpretation

The Alberta Utilities Commission held a Utilities Asset Disposition proceeding and addressed risk for stranded assets; assets no longer used to provide utility service as a result of extraordinary circumstances. It determined that when a gas or electric utility’s asset becomes stranded as the result of an “extraordinary retirement” (a retirement resulting from a cause which cannot be reasonably assumed to have been contemplated in prior approved depreciation provisions used in the calculation of rates), then the utility, as the owner of the asset, absorbs the remaining undepreciated capital costs. It held that those costs must be removed from the utility’s rate base. The Court of Appeal of Alberta dismissed the appeal.

36812   Anne Brigitte Leclerc v. Allan Kent Weber

(B.C.)

Family law

The parties began cohabiting in 2002, and continued to live together until 2011 or later. While they agree in their descriptions of many aspects of the relationship, they do not agree on whether their relationship made them “spouses” for the purposes of the Family Law Act, SBC 2011, c. 25, s. 3. The applicant sought a declaration, by way of summary trial, that the parties were not spouses under s. 3(1)(b)(i) of the Act on the basis that they had not lived in a “marriage-like relationship”. The summary trial judge found that the relationship of the parties was “marriage-like”, and declared them to have been spouses under the Act. The Court of Appeal dismissed the appeal.

36805   Alan Clark v. Superintendent of Motor Vehicles, Attorney General of British Columbia

(B.C.)

Administrative Law — Standard of Review — Transportation law

The applicant, Mr. Clark, was stopped by a police officer while driving his vehicle. He provided two breath samples at the officer’s request and failed. A “fail” under s. 215.41 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 means the concentration of alcohol is not less than 80 mg of alcohol in 100 ml of blood. If an approved screening device registers a fail, the officer must advise the driver of the right to provide a second breath sample. If the driver wishes to provide a second breath sample, a different device must be used. Mr. Clark received a roadside prohibition for 90 days, monetary penalty and vehicle impoundment.

Mr. Clark sought a review of the prohibition before the Superintendent of Motor Vehicles (“Superintendent”). The main issue at the hearing before a delegate of the Superintendent (“the adjudicator”) was whether the officer used a different approved screening device for the second breath sample. Mr. Clark and the passenger in his vehicle each deposed that the police officer only used one device. The officer’s evidence was that he used two different devices. The adjudicator determined that the officer used two different devices and upheld the roadside prohibition. The Supreme Court of British Columbia granted the petition for judicial review. The Court of Appeal for British Columbia allowed the appeal.

36780   Barry David Brown v. Her Majesty the Queen

(Alta.)

Criminal Law – Evidence – Admissibility

Corrine Belanger was the common law spouse of Fred Vollmin. Their relationship was coming to an end and disputes arose as to their two year old son. Belanger advised Vollmin that she would be going to court to apply for custody. Corrine Belanger was killed while waiting the return of her son. She had been shot three times at close range.

The applicant is a friend of Vollmin. Vollmin did not tell police that he had spoken to the applicant on the day Belanger was killed. Subsequent investigation disclosed that Vollmin spoke to the applicant several times that day. The applicant was interviewed several times and in the second interview, the applicant offered a variation of his original story. The applicant had called Belanger’s home on the day of the murder. In addition, the roll of duct tape found on the floor beside Belanger’s body and the flashlight on her bed both had DNA matching the applicant. The applicant was convicted of first degree murder. The appeal was dismissed.

36778   Ad Hoc Group of Bondholders v. Ernst & Young Inc. in its capacity as Monitor, Nortel Networks Corporation, Nortel Networks Limited, Nortel Networks Global Corporation, Nortel Networks International Corporation, Nortel Networks Technology Corporation, Superintendent of Financial Services as Administrator of the Pension Guarantee Fund, Wilmington Trust, National Association, Law Debenture Trust Company of New York, Bank of New York Mellon, Nortel Networks Inc., Canadian Creditors Committee, Joint Administrators of Nortel Networks UK Limited

(Ont.)

Commercial law – Bankruptcy and insolvency – Interest

In the context of ongoing Nortel CCAA proceedings and parallel proceedings under Chapter 11 of the United States Bankruptcy Code, the applicant represents substantial holders of unsecured crossover bonds either issued or guaranteed by certain Canadian Nortel entities. The related indentures provided for the continuing accrual of interest until payment, at contractually specified rates, and for other post-filing payment obligations in the form of make-whole provisions and trustee fees. Therefore, in addition to claiming principal and pre-filing interest in the amount of US$4.092 billion against each of the Canadian and U.S. Nortel estates (whose total proceeds of liquidation are approximately $7.3 billion), the applicant claimed post-filing interest under the crossover bonds equalling an amount of US$1.6 billion. The claims of other claimants, such as pensioners and former employees, do not provide for interest on amounts owed. The Ontario Superior Court of Justice held that the “interest stops rule” developed in the context of insolvency law applies to CCAA proceedings and that the applicant was not legally entitled to amounts claimed above and beyond the outstanding principle debt and pre-petition interest. The Ontario Court of Appeal dismissed the appeal.

36797   Hawkeye Power Corporation v. Sigma Engineering Ltd., Hawkeye Energy Corporation

(B.C.)

Commercial law – Contracts

Hawkeye Power Corporation (“Power”) and Energy Power Corporation (“Energy”) are related non-arms’ length companies created to exploit and generate hydroelectric energy. As part of this venture, Power and Energy retained the respondent Sigma Engineering Ltd. (“Sigma”) to conduct various investigations in relation to the prospective business sites. Energy and Power testified that to solidify their business plan, in 2006, they began drafting an asset-purchase agreement (“the Agreement”) and executed the Agreement in July 2008. The Agreement contained a termination and expiry clauses, according to which assets held by Energy would be surrendered to Power upon specified events.

When Energy became indebted to Sigma, Sigma commenced legal proceedings to recover for unpaid invoices. Sigma obtained default judgment against Energy and then a court order for the appointment of a receiver over Energy’s assets. When the receiver applied for court approval to sell Energy’s assets to Sigma, Power disputed ownership. Power asserted that it was the legal and beneficial owner of the assets pursuant to the 2008 Agreement, or, in the alternative, that Energy held the assets in trust for Power. Sigma counterclaimed that the Agreement was formed in furtherance of a fraudulent conveyance or fraudulent preference, and was therefore null and void. The Supreme Court of British Columbia dismissed the action and allowed the counterclaim. The Court of Appeal for British Columbia dismissed the appeal.

36819   Martin Green v. University of Winnipeg

(Man.)

Courts – Jurisdiction

The applicant filed a notice of application under Queen’s Bench Rule 14 seeking a declaration that the respondent should grade and return to him assignment #5 which he says he completed in course 4861.150. The respondent opposed the application primarily on the ground that the court lacked jurisdiction to hear it. The application judge held that the dispute was in pith and substance an internal disagreement relating to matters of an academic nature and an issue that was within the exclusive jurisdiction of the respondent. The application judge dismissed the application. The Court of Appeal dismissed the appeal.

36806   Virginia Forsythe v. Her Majesty the Queen

(FC)

Aboriginal law – Taxation – Exemptions

The Applicant is a status Indian and a member of the Wahgoshig First Nation Reserve. In 2010, she lived off-reserve in Cochrane, Ontario. She was employed by Native Leasing Services (“NLS”), which is based on the Six Nations Reserve, as a health outreach support worker with the office of the Ontario Aboriginal HIV/AIDS Strategy. The Applicant maintains that her 2010 employment income form NLS is property “situated on a reserve” and is accordingly exempt from taxation by operation of paragraph 87(1)(b) of the Indian Act, R.S.C. 1985, c. I-5. The Tax Court of Canada dismissed the appeal from reassessment for Applicant’s 2010 taxation year. The Federal Court of Appeal dismissed the appeal.

36696   Luciano Branco v. Zurich Life Insurance Company Limited, American Home Insurance, Kumtor Operating Company

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Luciano Branco v. Zurich Life Insurance Company Limited, American Home Insurance, Kumtor Operating Company

(Sask.)

Insurance – Damages – Appeal

Mr. Branco was injured while employed by Kumtor Operating Company. He was covered by two workplace insurance policies issued by American Home Assurance Company and Zurich Life Insurance Company Limited. Mr. Branco commenced an action against the respondents in part to secure punitive damages, damages for mental distress, and benefits. The trial judge in part awarded $1,500,000 in punitive damages and $150,000 in aggravated damages against American Home Assurance Company. He awarded $3,000,000 in punitive damages and $300,000 in aggravated damages against Zurich Life Insurance Company Limited. He awarded costs to Mr. Branco but denied full solicitor and client costs. The Court of Appeal allowed an appeal in part. It reduced the awards for punitive damages to $675,000 in total and for aggravated damages to $45,000 in total. It dismissed a cross-appeal from the costs award.

36816   Scott Diamond v. Her Majesty the Queen in Right of Newfoundland and Labrador and Her Majesty the Queen in Right of Canada

(N.L.)

Charter of Rights – Criminal law – Search and seizure

Mr. Diamond was convicted of one count of unlawful possession of a weapon dangerous to the public peace and of one count of possession of cocaine for the purpose of trafficking. He was pulled over at night while driving over the speed limit. While he was searching for his driver’s licence and the vehicle registration, the officer spotted an unsheathed hunting-type knife with his flashlight. Mr. Diamond was arrested for possession of a weapon dangerous to the public peace. A pat-down search at roadside then revealed a small bag of cocaine. A subsequent strip-search at the police detachment led to the discovery of 28 additional small bags of cocaine. At trial, Mr. Diamond argued that the search of his vehicle was a warrantless search in violation of s. 8 of the Canadian Charter of Rights and Freedoms, that his arrest was unlawful and in violation of s. 9 of the Charter, and that all of the evidence should be excluded under s. 24(2) of the Charter. The trial judge found that the officer’s actions at the side of the road did not constitute a search, that the seizure of the knife was justified, that the officer had reasonable and probable grounds to arrest Mr. Diamond and that the seizure of the cocaine was justifiable and incidental to the arrest. The majority of the Court of Appeal dismissed the appeal. White J.A., dissenting, would have allowed the appeal, ordered that all evidence be excluded, and entered verdicts of acquittal.

36690   Campbell Ernest Crichton v. Her Majesty the Queen

(B.C.)

Charter of Rights — Criminal law — Right to counsel

Mr. Crichton, a physiotherapist, was charged with 23 counts of sexual offences committed against former patients. He was refused legal aid funding, for having spent all his available money without making provisions for retaining legal counsel. Mr. Crichton subsequently brought an application for the appointment of state-funded counsel (a “Rowbotham” order) for his trial.

The Supreme Court of British Columbia granted Mr. Crichton a conditional stay of proceedings pending government funding of counsel, finding that he met the criteria of financial ineligibility, and that his trial would be unfair without legal representation. The Court of Appeal for British Columbia allowed the Crown’s appeal from the Rowbotham order, finding that the trial judge erred in concluding that a lack of financial prudence should not, by itself, result in the refusal of a Rowbotham order. In this case, Mr. Crichton had made a “consumer choice” not to retain counsel, and would therefore be unable to avail himself of public funding for legal representation. The Supreme Court of British Columbia granted the accused’s application for stay of proceedings pending government funding of counsel. The Court of Appeal for British Columbia allowed the appeal by the Crown from stay order.

36794   S.P.M. v. Attorney General of Quebec, Minister of Employment and Social Solidarity

(Que.)

Charter of Rights — Human rights — Right to equality

The applicant opposed a decision by the Minister of Employment and Social Solidarity to refuse his application for last resort financial assistance benefits. The applicant’s capacity for employment was severely limited, making him eligible for the benefits. However, he refused to make a “family” application in which his spouse’s employment income would be counted. The applicant argued that s. 155 of the Individual and Family Assistance Regulation, R.S.Q. c. A‑13.1.1, r. 1, infringed his right to equality and dignity because it had the effect of making him financially dependent on his spouse. The Quebec Superior Court dismissed the motion for judicial review. The Quebec Court of Appeal dismissed the motion for leave to appeal.

36599   Prakash Sapra v. Her Majesty the Queen

(Ont.)

Criminal law — Offences — Evidence

The Applicant was charged with criminal harassment contrary to s. 264(2)(c) of the Criminal Code, R.S.C. 1985, c. C-46 and breach of s. 810 recognizance. The Crown called three witnesses at trial, the defence called none. The testimony focussed on proof of a single incident of watching and besetting on April 19, 2012, which was alleged to constitute the offence of criminal harassment and the offence of breach of recognizance that had been imposed four months earlier. The main incident occurred at the Hindu temple where the complainant would sing during evening ceremonies. The recognizance was entered into after an earlier charge of criminal harassment was withdrawn, and it expressly prohibited the Applicant from being within 500 metres of the complainant’s place of worship. The Ontario Court of Justice convicted of criminal harassment and dismissed the appeal against the conviction and sentence. The Court of Appeal for Ontario dismissed the application for leave to appeal.

36789   Sébastien Paradis v. Attorney General of Canada

(FC)

Social welfare law — Employment insurance — Judicial review

Mr. Paradis was a long‑distance truck driver. At the time of hiring, his employer and the truck drivers agreed that the drivers would work every second week on an alternating basis, which allowed the employer to maximize the profitability of its business. During the years relevant to this case, Mr. Paradis worked an average of 55 to 60 hours per week every second week. He received no pay for the weeks of rest.

Mr. Paradis made a claim for employment insurance benefits for the alternating weeks when he did not work, citing a shortage of work as the reason. The Canada Employment Insurance Commission (“Commission”) made a series of decisions denying his claim for benefits on the ground that the periods of leave in question were part of his work schedule, as provided for in s. 11(4) of the Employment Insurance Act, S.C. 1996, c. 23 (“Act”). The board of referees allowed his appeal on the ground that he did not work a greater number of hours than the normal week in his industry and was therefore not on leave during the alternating weeks. The Appeal Division of the Social Security Tribunal dismissed the Commission’s appeal.

36811   Robert Lavigne v. Canadian Human Rights Commission

(FC)

Charter of Rights — Right to life, liberty and security of the person

In 2008, Mr. Lavigne entered into minutes of settlement with third parties against whom he had filed several complaints under the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Those complaints were mediated by the Canadian Human Rights Tribunal. Mr. Lavigne brought an action against the Canadian Human Rights Commission (“CHRC”), claiming that the CHRC had a legal duty to disclose to him its authority to approve the settlements. He alleged that the “wrongful non-disclosure” and “fraudulent concealment” of its lack of authority rendered the settlements null and void. He sought a declaration from the Federal Court of Appeal that his s. 7 Charter rights had been violated by the CHRC as result of the wrongful non-disclosure and to have the matter sent back to trial to determine the quantum of damages. The Federal Court dismissed the Applicant’s action. The Federal Court of Appeal dismissed the Applicant’s motion.

36817   Louis-Fred Martin v. Her Majesty the Queen

(FC)

Taxation — Income tax — Assessment

The applicant challenged the assessment made by the Canada Revenue Agency (“CRA”) for the 2010 taxation year. The applicant was a financial advisor at a brokerage firm until June 2010. He alleged that his clientele had been stolen from him by his former employer after that date. On his 2010 income tax return, he sought to deduct the loss of his anticipated income from his clients for June to December 2010, namely $14,000. He also claimed that the loss of his clientele was a loss of a valuable asset that gave rise to a capital loss of $800,000. Next, he sought to deduct $14,000,000 in disposition costs for his former clientele and thereby increase his capital loss to $14,800,000. The CRA disallowed the deductions. The Tax Court of Canada dismissed the applicant’s appeal from the assessment, and the Federal Court of Appeal dismissed his appeal.

36643   Premier Tech Ltd., Gestion Bernard Bélanger Ltée v. Christian Dollo

(Que.)

Commercial law – Corporations – Stock option plan

In August 2010, the respondent Christian Dollo was dismissed from his position as president of Premier Horticulture, a subsidiary of the applicant Premier Tech, whose majority shareholder was the applicant Gestion Bernard Bélanger Ltée. Following the dismissal, the respondent wrote a letter to Premier Tech’s board of directors asking it to exercise its discretion to authorize him to exercise his stock option right. According to the presence clause in the option plan, any option not exercised on the date of the respondent’s termination lapsed, subject to the board of directors’ discretion to decide otherwise. The board of directors refused to grant the respondent’s request. The respondent decided to bring a motion in nullity of the presence clause under the Civil Code of Québec and in oppression under s. 241 of the Canada Business Corporations Act. The Quebec Superior Court allowed the motion to institute proceedings. The Quebec Court of Appeal dismissed the appeal.

36760   Allstate Insurance Company of Canada v. Edna Klimitz and Financial Services Commission of Ontario

(Ont.)

Administrative law ― Judicial review ― Standard of review

The respondent, Ms. Klimitz was struck by a motor vehicle and applied and received certain benefits under the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg. 403/96 (the “Regulation”). On May 31, 2004 in its “Explanation of Benefits Payable by Insurance Company”, the insurance company provided Ms. Klimitz with its reasons for denying her application for non-earner benefits under the regulation. In its reasons, the insurance company relied on evaluations of Ms. Klimitz made by two physicians, one of whom was Dr. Garry Moddel.

The insurance company provided Ms. Klimitz with copies of that report (along with a second report it had received in June 2004) two years later on July 18, 2006. Two days after receiving the reports, Ms. Klimitz submitted an application for mediation to the Financial Services Commission of Ontario.

The Arbitrator found Ms. Klimitz was precluded from proceeding to arbitration because she had filed her application for mediation more than two years after the insurance company’s refusal to pay her a non-earner benefit, contrary to the requirements of s. 281.1(1) of the Insurance Act, R.S.O. 1990, c. I.8.

The Director’s Delegate allowed the appeal from the order of the Arbitrator and ordered the matter could proceed to arbitration. The Divisional Court dismissed the insurance company’s application for judicial review. The Court of Appeal dismissed the appeal.

36731   Her Majesty the Queen v. Michel Laflamme

(Que.)

Criminal law — Stay of proceedings

A jury found the respondent Michel Laflamme guilty of first degree murder for causing the death of his spouse, Carmen Waltz, 31 years earlier, on December 4, 1976. The conviction was based on a confession obtained during a “Mr. Big” police operation conducted from November 28, 2007 to April 9, 2008. According to the respondent’s admissions, he had strangled his spouse inside their residence and then placed her in the car, which was in the garage, and taken her and their young daughter (who was only a year and a half old) to the parking lot of a shopping centre. He had gone into a Canadian Tire store with his daughter, then returned to his car and pretended to find his spouse’s lifeless body. At trial, the respondent categorically denied murdering his spouse. He said that he had lied to the big boss out of fear. The defence argued that the police conduct constituted an abuse of process that justified a stay of proceedings or, in the alternative, the exclusion of the admission. On February 10, 2010, the jury returned a verdict of guilty and the respondent was convicted of the first degree murder of his spouse. Finally, on September 21, 2015, the Court of Appeal unanimously ordered a stay of proceedings pursuant to the doctrine of abuse of process.

36790   9187-0725 Québec inc. v. Matériaux Kott G.P.

(Que.)

Contract

For the purposes of a three‑phase project to build a residential condominium complex in Laval, the applicant 9187‑0725 Québec inc. entered into a contract for the sale of materials with the respondent Matériaux Kott G.P. It was agreed that the materials would be sold for a fixed price. The fixed price was payable based on delivery of the materials when the respondent thought it appropriate to send an invoice after delivery. In late 2012, the applicant began building phase III of the complex and a single‑family home. It failed to pay the bills sent by the respondent for the delivery of materials for the two projects. In April 2013, the respondent registered legal construction hypothecs against the two immovables. In November 2013, it filed a motion for the sale of the charged immovables by judicial authority. A few days before the presentation of the motion, the parties entered into a transaction pursuant to arts. 2631 et seq. of the Civil Code of Québec. The proceedings resumed when the applicant failed to make all the payments specified in the transaction. The Quebec Superior Court allowed the motion for forced surrender and sale by judicial authority. The Quebec Court of Appeal dismissed the appeal.

36594   Guy Béïque, Colette Béïque and Solange Béïque v. Simon Béïque - and - Desjardins Financial Security

(Que.)

Property — Trust — Succession — Will

Before he died, René Béïque elected to exclude three of his children from a trust established by their great‑grandfather. The applicants sought the cancellation of the exclusion from their father’s succession. They argued that they had been disinherited solely because they had reported alleged sexual abuse by their father and because of the consequences of reporting him.

In the Quebec Superior Court, Gagnon J. dismissed the applicants’ motion to institute proceedings. The father had the full right and authority to exercise a power that was discretionary for him under the trust’s provisions. He did not have to justify his decision to exclude the applicants, and as long as his choice was not contrary to law or public order, his actions were beyond review by the courts. Moreover, the applicants’ exclusion had resulted not only from the laying of criminal informations but also from the [translation] “poor state” of the relationship between the father and the children. The Quebec Court of Appeal dismissed the applicants’ appeal and affirmed Gagnon J.’s decision. Testamentary freedom is virtually unlimited. As well, the abuse of rights rule does not apply where the issue relates to freedom in making a will or trust.

36753   Giuliano Scaduto v. Law Society of Upper Canada, Attorney General of Ontario

(Ont.)

Law of Professions — Barristers and solicitors — Civil procedure

The applicant was employed at a restaurant from between 1993 and 2004. He made a claim for work-related injuries with the Workplace Safety and Insurance Board (“WSIB”) and unsuccessfully appealed its dismissal. He then brought an application against the respondents, seeking, inter alia, damages for the LSUC’s alleged failure to fulfil its statutory duties by not investigating his complaints about various lawyers. The respondent AGO requested that the motion judge dismiss the application as being frivolous or vexatious under Rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion judge requested and reviewed written submissions from the applicant, and then dismissed his application as being frivolous and vexatious on its face and an attempt to re-litigate the issues in his WSIB claim. The appellate court dismissed the appeal.

36705   Michael Ardabili, Claus Jenckel v. Maria Mercedes Ortega Figueroa

(Que.)

Private international law — Recognition and enforcement of foreign judgements

Proceedings are pending between the applicants and the respondent in Germany and Guatemala concerning the estate of the late Mr. Günter Herde Stoffers, who passed away in 2008. The respondent, Mrs. Figueroa, was married to the deceased from 1987 until he died. She claims the benefit of a will dated June 13, 2006 (the “2006 will”). Among other things, the 2006 will designates Mrs. Figueroa as the sole heir and executor for most of the deceased’s assets. The applicant Mr. Ardabili is the deceased’s son. He claims the benefit of a will dated October 26, 1990 (the “1990 will”). Among other things, the 1990 will designates Mr. Ardabili and Mrs. Figueroa as 50/50 heirs for the most part of the deceased’s assets. A German judgment appointed the applicant Mr. Jenckel as curator to the estate, a conservative measure pending the proceedings between the parties. In fulfilling his duties as a curator in respect of assets situated in Montreal, Mr. Jenckel obtained a default judgment in which the Quebec Superior Court recognized the German judgment and declared it enforceable. In later proceedings in Quebec, the default judgment was recognized; however, in the Quebec Court of Appeal, it was revoked.