APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37513

Jeffery Thomas Raymond Seipp v. Her Majesty the Queen

(B.C.)

Criminal law – Elements of offence – Failure to stop at scene of accident

Following a break and enter into a home and a theft of a vehicle, one of the homeowners in another car saw Mr. Seipp driving the stolen car. He tried to overtake him and a collision resulted. A passenger in the vehicle driven by the homeowner was injured. Mr. Seipp fled from the scene of the accident without providing his name or address. At trial, he denied stealing the car. He admitted that he had been driving the car. He claimed that he fled the scene because he suspected it was stolen. At the end of the defence’s case, defence counsel admitted that failing to stop and remain at the scene of an accident was made out. The Provincial Court of British Columbia convicted him for leaving the scene of an accident. The Court of Appeal dismissed the appeal from convictions.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37211

Angèle Grenier v. Fédération des producteurs acéricoles du Québec, Régie des marchés agricoles et alimentaires du Québec, Attorney General of Quebec, Attorney General of Canada

(Que.)

Constitutional law — Division of powers — Agriculture

The applicant Angèle Grenier is a maple syrup producer in Quebec. When the Régie des marchés agricoles et alimentaires du Québec was dealing with an application for various orders against her for failing to comply with her obligations under the Act respecting the marketing of agricultural, food and fish products, CQLR c. M-35.1, she challenged its jurisdiction and that of the respondent Fédération des producteurs acéricoles du Québec over her transactions and over the individuals who had engaged in them.

The applicant argued that the case involved maple syrup sales made outside Quebec and that the Quebec Act and applicable regulations therefore had to be limited to property and persons situated in the province. She also argued that the effect of the Quebec Act was to limit and control interprovincial trade, thereby impairing federal jurisdiction over interprovincial and export trade. The Quebec Superior Court dismissed the motion for judicial review. The Court of Appeal dismissed the appeal.

37213

Érablière la Grande Coulée 1998 inc., Roland Champagne v. Fédération des producteurs acéricoles du Québec, Attorney General of Quebec, Attorney General of Canada

(Que.)

Constitutional law — Division of powers — Agriculture

The applicants are maple syrup producers in Quebec that had a seizure before judgment carried out against them for selling their products to a purchaser from New Brunswick without first going through the respondent Fédération des producteurs acéricoles du Québec, as provided for in the Act respecting the marketing of agricultural, food and fish products, CQLR c. M-35.1.

The Fédération brought an action in the Superior Court for a permanent injunction ordering the applicants to deliver to it the barrels of maple syrup still in their possession. In defence and in a cross demand, the applicants challenged the Fédération’s right to claim their syrup, over which it had no real right. They also asked that the legislative and regulatory provisions relied on by the Fédération in support of its action for an injunction be declared constitutionally inapplicable and of no force or effect in relation to the trade of maple syrup going outside Quebec. The Quebec Superior Court allowed the permanent injunction action. The Court of Appeal dismissed the appeal.

37436

Schwartz Levitsky Feldman LLP v. Excalibur Special Opportunities LP

(Ont.)

Civil procedure — Class actions — Certification

Fifty-seven investors purchased shares in an American-owned hog farming corporate structure operating in Southern China. The applicant accounting firm, Schwartz Levitsky Feldman LLP (“SLF”), a Canadian firm with offices in Ontario, was hired to conduct an audit of the company’s financial statements. SLF provided a “clean” audit report to all investors. After the investments were placed, the company disclosed that it lacked adequate financial controls over its business; the company went out of business and its shares became worthless, leading to significant financial losses for the investors. One investor, the respondent Excalibur Special Opportunities LP (“Excalibur”), also located in Ontario, commenced proceedings against SLF for negligence and negligent misrepresentation. Excalibur sought to have its action certified as a class proceeding.

A motion judge of the Ontario Superior Court of Justice dismissed Excalibur’s certification motion, finding that this was not an appropriate case in which to recognize a “global” class (i.e., with members beyond Canada’s borders), and that a class proceeding was not the preferable procedure here. A majority of the Divisional Court dismissed Excalibur’s appeal, endorsing the motion judge’s analysis and conclusions on both points; in dissent, Sachs J. would have allowed the appeal and would have certified the action as a class proceeding.

A majority of the Court of Appeal allowed Excalibur’s further appeal, set aside the Divisional Court order, and certified the action as a class proceeding. The majority named Excalibur as the representative plaintiff, identified a “global class” of potential class members, set out the common issues as framed by Excalibur, and confirmed that the claims were in negligence and negligent misrepresentation. In dissent, Blair J.A. would have dismissed the appeal and affirmed the Divisional Court order, upholding the dismissal of the certification motion.

37433

City of Montréal v. Hydro-Québec

(Que.)

Civil procedure ‒ Motion to dismiss

On September 26, 2014, the applicant City of Montréal, through the Commission des services électriques de Montréal, did some excavation work in order to replace an old electrical cable owned by the respondent Hydro-Québec that was located in one of the Commission’s conduits. During the work, a second cable owned by Hydro-Québec, which was live, was damaged, resulting in a power outage that was alleviated by using a generator. On November 24, 2014, Hydro-Québec sent the City a written notice informing it of the incident and its claim. On March 18, 2015, Hydro-Québec instituted an action claiming $147,405.22 in damages from the City and from Sciage de béton 2000 and its insurer. On receiving the motion to institute proceedings, the City served a motion to dismiss under art. 165(4) of the Code of Civil Procedure, CQLR c. C-25. According to the City, the motion to institute proceedings was unfounded in law because Hydro-Québec had failed to send it the notice provided for in s. 585 of the Cities and Towns Act, CQLR c. C-19, within the 15-day time limit. The Quebec Superior Court dismissed the motion to dismiss. The Court of Appeal dismissed the appeal.

37391

The Natural and Sovran-on-the-land, flesh, blood and bone, North America Signatory Aeriokwa tence Kanienkehaika Indian man : Gregory-John : Bloom, as created by the Creator (God) v. Her Majesty the Queen not in Right of Canada

(FC)

Constitutional law — Division of powers — Aboriginal peoples

The applicant commenced a judicial review application in Federal Court in 2014, seeking to challenge demands for payment of taxes, issued by the Canada Revenue Agency. On August 4, 2016, the application for judicial review was dismissed. The applicant appealed the dismissal order, and brought a series of procedural motions seeking to determine the contents of the appeal book and to certify the appeal as a class proceeding, as well as seeking other miscellaneous relief.

On November 8, 2016, de Montigny J.A. of the Federal Court of Appeal issued an order setting out the contents of the appeal book and the timelines for the appeal, but dismissing the motion to certify the appeal as a class proceeding, and dismissing the remainder of the applicant’s requested relief. On December 6, 2016, de Montigny J.A. dismissed the applicant’s motion for a reconsideration of his earlier decision to dismiss the requests for relief, finding that the applicant had not established any grounds for reconsidering the initial order.

37453

Ezra Levant v. Khurrum Awan

(Ont.)

Torts – Libel and slander – Damages – Aggravated damages

In 2006, Maclean’s magazine published a cover story entitled “The future belongs to Islam” by a journalist Mark Steyn. Mr. Awan, at the time a law student at Osgoode Hall, became concerned about the content of the article. He and three other law students decided to approach Maclean’s about their concerns and to ask that the magazine publish a reply article by a mutually acceptable author. Maclean’s agreed to meet with them. At the meeting, Maclean’s Editor-in-Chief disagreed with the students’ views of the article. It later became apparent that there were different perceptions about what happened at the meeting with respect to the students’ request that the magazine publish a reply article.

The students responded with a human rights complaint against the publishers in Ontario. Complaints were also filed in British Columbia and with the Canadian Human Rights Commission. Mr. Awan testified at the hearing before the British Columbia Human Rights Tribunal as a fact witness about what happened at the meeting with Maclean’s. Mr. Levant attended the hearing and live-blogged about it. The blog posts referred to Mr. Awan as a “liar” and “anti-Semite” and stated that he was engaged in a “shakedown” of Maclean’s, and that he was in a conflict of interest in the British Columbia proceeding.

Mr. Awan served a libel notice and commenced an action against Mr. Levant in the Ontario Superior Court. The Ontario Superior Court allowed the defamation claim. The Court of Appeal dismissed the appeal.

37481

Raymond Kuate Konga v. Toronto-Dominion Bank

(Ont.)

Commercial law – Loans – Guarantor – Reasonable notice

The Respondent, Toronto-Dominion Bank extended credit to Vertamin Inc. including a line of credit with an authorized limit of $800,000, a corporate VISA card and a separate fixed term loan on the maximum amount of $288,000. All of the obligations owed to TD Bank by Vertamin were guaranteed by the Applicant, Mr. Konga, under an unlimited and continuing guarantee. The TD Bank claims that Vertamin breached the terms of the loan agreements and, on November 13, 2014, it simultaneously demanded repayment of the loans both from Vertamin and from Mr. Konga in his capacity as guarantor. The TD Bank sought summary judgment against Mr. Konga in the amount of $1,098,646.22, plus interest and costs. Summary judgment was granted in TD Bank’s favour. Mr. Konga’s subsequent appeal was dismissed.

37467

Her Majesty the Queen v. Veracity Capital Corporation

(B.C.)

Taxation — Income tax — Assessment — Capital gains tax

The applicant, Minister of National Revenue reassessed the respondent, Veracity Capital Corporation for capital gains tax on the sale of its shares in a technology company. Applying the British Columbia’s general anti-avoidance rule, the Minister reassessed Veracity on the basis that 100% of the taxable capital gain was taxable in British Columbia.

Veracity appealed the reassessment to the Supreme Court of British Columbia. Macintosh J. dismissed Veracity’s appeal, upholding the Minister’s reassessment. The Court of Appeal reversed the trial decision, allowed the appeal and referred the reassessment back to the Minister to be determined in accordance with its judgment.

37456

Mohamed Alie Jalloh v. Insurance Council of British Columbia, Financial Institutions Commission, Financial Services Tribunal

(B.C.)

Law of professions — Professional responsibility — Regulated occupations

The applicant, Mr. Jalloh, is an insurance salesperson licensed by the Insurance Council of British Columbia, which recommended a four-year cancellation of his license for improper access to private information. Mr. Jalloh’s appeal to the Financial Services Tribunal was dismissed but the four-year cancellation of his license was varied to a four-year suspension. On judicial review, Mr. Jalloh alleged, for the first time, ineffective assistance of counsel before both the Council and the Tribunal. The chambers judge dismissed his application for judicial review and a unanimous Court of Appeal, in turn, dismissed his appeal. The Court of Appeal held that the chambers judge committed no reversible error in declining to exercise his discretion to grant relief.

37482

1079268 Ontario Inc. v. GoodLife Fitness Centres Inc.

(Ont.)

Lease – Agreement – Interpretation – Contradictory terms

In October 2006, the applicant, 1079268 Ontario Inc. (“107”) executed a commercial lease with the respondent’s predecessor, Extreme Fitness (“Extreme”), following lengthy negotiations and the exchange of several draft leases. The lease that the parties eventually signed contained contradictory terms. It specified that the premises included the “entire property” but went on to stipulate that it consisted of “three floors plus mezzanine” at 635 Danforth Avenue in Toronto. The lease further stated that the rentable area was approximately 24,110 square feet and specified rent per square foot per year. There were terms that were “intentionally deleted”, including a term that allowed 107 to measure the premises. The tenant was required to pay all utilities. Extreme made alterations to the premises, including the basement, and 107 raised an objection that the renovations were made in breach of the lease. This dispute was settled with Extreme’s agreement to extend the term of the lease. A second dispute arose in 2008 when 107’s lawyer wrote to Extreme, stating that its renovations had added an additional 4,600 square feet of usable rental area in the basement. Extreme took the position that the lease had always included the basement and that it was under no obligation to pay extra rent. 107 took no further action. When Extreme experienced financial difficulties and attempted to restructure its business in 2013, 107 advanced a claim for back rent for Extreme’s use of the basement from 2007 to 2013. The respondent, GoodLife Fitness Centres Inc., entered into an asset purchase agreement with Extreme and took an assignment of Extreme’s lease with 107. 107’s claims against Extreme were settled. A separate application was required regarding 107’s claims against GoodLife for a rectification of the lease and a determination of the amount of back rent, if any, owing by GoodLife. The Ontario Superior Court ordered that the lease exclude basement area and that applicant was entitles to back rent. The Court of Appeal allowed the Respondent’s appeal and that no back rent was owed by the Respondent.

37496

Marc Lupien v. Michel Aumont, Manon Paquin, Serge Rioux, Municipality of Sainte-Adèle

(Que.)

Damages — Punitive damages — Unlawful arrest

The applicant brought an action in damages against three police officers, who at the time were employed by the Town of Saint-Adèle, for arresting him without reasonable grounds, making an unreasonable use of force during his arrest and abusing their authority by charging him with obstructing the police. The Quebec Superior Court allowed the action in part. The Court of Appeal allowed the motion to dismiss and dismissed the appeal.

37492

Tahoe Resources Inc. v. Adolfo Agustin Garcia, Luis Fernando Garcia Monroy, Erick Fernando Castillo Pérez, Artemio Humberto Castillo Herrera, Wilmer Francisco Pérez Martinez, Noé Aguilar Castillo, and Misael Eberto Martinez Sasvin

(B.C.)

Private international law — Forum non conveniens — Fresh evidence

The respondents were allegedly shot and injured by security personnel during a protest outside a mine owned by Tahoe Resources Inc. through its wholly-owned subsidiaries. The respondents commenced an action for damages against Tahoe in the Supreme Court of British Columbia. They pled direct and vicarious liability for battery and negligence, seeking pecuniary and punitive damages for all three causes of action. Tahoe is a reporting British Columbia company with a registered and records office in British Columbia, as required by statute. It has few other connections with British Columbia, and significant connections with Nevada and Guatemala. Tahoe conceded that British Columbia has jurisdiction over the claim but asked the court to decline to exercise that jurisdiction on the ground that Guatemala was the more appropriate forum.

Meanwhile, in Guatemala, the mine’s security manager was charged with assault, aggravated assault, and obstruction of justice, but no charges were brought against Tahoe or its subsidiary. Under Guatemalan law, civil complainants can be joined in a criminal proceeding, and six of the seven respondents were joined in the criminal proceeding against the security manager. Within that derivative proceeding, those respondents seek compensation.

The applications judge exercised her discretion to decline jurisdiction, allowed Tahoe’s application, and stayed the respondents’ action. The Court of Appeal admitted new evidence in relation to the criminal proceedings against the security manager and allowed the appeal.