36135 IEC Holden Inc. v. Commission des normes du travail (Employment law – Contracts)
On appeal from the Quebec Court of Appeal. The applicant is a company that produces and assembles industrial electric motor components as a subcontractor for third party manufacturers. Since its business tends to fluctuate, its employees are generally hired or rehired for short periods on the basis of workforce requirements. The applicant has each employee sign an employment contract for a term that corresponds as precisely as possible to the orders it must fill, and at times the term is extended, in each case by means of a document that is duly signed by the employee and a representative of the employer.
In December 2010, the respondent Commission des normes du travail brought an action to claim from the applicant, on behalf of certain of its former employees, payment of the indemnity in lieu of notice provided for in the Act respecting labour standards. The applicant’s principal defence against that claim was that it owed nothing, because the employees in question were subject to written employment contracts for fixed terms that had expired. It is common ground that the non-renewal of the contracts resulted from a slowdown in the applicant’s business that was caused by an economic crisis. On April 30, 2012, the Quebec Superior Court dismissed the action in part. The Quebec Court of Appeal allowed the appeal in part.
36191 N.A. v. A.H. (Family law – Divorce – Spousal support)
On appeal from the Court of Appeal of Quebec. The parties separated in 1999 after thirty years of marriage. In 2002, they signed a separation agreement according to which the respondent was to pay the applicant $5,000 a month in spousal support, provide her with a new car every five years, and maintain a life insurance policy in her favour. In 2011, the respondent instituted divorce proceedings and asked that his obligation to pay spousal support be extinguished or that the amount be reduced. His financial situation had changed substantially and his income was much less than it had been at the time the separation agreement was signed. The respondent also asked that he be relieved of his obligations to provide the applicant with a new car every five years and to maintain the life insurance policy. The Superior Court granted the parties a divorce, reduced the spousal support to $1,250 a month for a period of 24 months, after which time no further spousal support would be due. The Court also extinguished the respondent’s obligations with respect to the car and the insurance. In the Court’s view, the substantial and unexpected change in the respondent’s financial situation was such that it would not be fair or in keeping with the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2 Suppl), to enforce the 2002 separation agreement. The Court of Appeal allowed the appeal in part, struck the 24-month term imposed by the Superior Court, and restored the respondent’s obligations with respect to the car and the insurance.
36201 Francine Lapierre v. Luc Lapierre, Barreau du Québec, Professions Tribunal, Secretary of the Barreau du Québec’s Disciplinary Board (Law of professions — Professional liability and ethics)
On appeal from the Quebec Court of Appeal. A decision of the Barreau du Québec’s Committee on Discipline, which has since been renamed the Disciplinary Board (Board), found the applicant guilty of six offences, on April 7, 2008, and a decision of the Board dated December 3, 2008, temporarily struck her off the Roll of Advocates for three months and one day to be served concurrently for each of the six counts. The actions complained of were taken during a divorce case that had taken on a disproportionate magnitude. Essentially, it was alleged that Ms. Lapierre had demonstrated a lack of competence, a lack of cooperation with her fellow counsel representing the opposing party and that she made or allowed the making of a statement of fact she knew to be false. The Board found that this was a flagrant lack of competence with respect to basic notions of law, and not a lack of honesty or integrity. The Quebec Court of Appeal dismissed the motion for leave to appeal from judgement of the Quebec Superior Court.
36284 Javier Batista-Cervantes also known as Javier Churro v. Attorney General of Canada on Behalf of the United States of America (Extradition – Committal – Evidence)
On appeal from the Court of Appeal for Alberta. Mr. Batista-Cervantes was committed for extradition to the United States to be tried for alleged conduct corresponding to the Canadian offence of conspiracy to traffic in cocaine. The extradition judge concluded that evidence in the Record of the Case (“ROC”) and a Supplementary Record of the Case (“SROC”) would justify committal for trial in Canada. The primary evidence consists of intercepted phone calls in which the speakers use drug slang. Identification of Mr. Batista-Cervantes as one of the persons sought and one of the persons implicated by the allegations in the ROC and SROC was in issue at the committal hearing. To identify Mr. Batista-Cervantes, the extradition judge relied on evidence in the court record that was not in the ROC or SROC or tendered as evidence. As well, the ROC contained photographs and physical descriptors of the persons sought. A police officer gave evidence alleging to link Mr. Batista-Cervantes to incriminating phone calls set out in the ROC. A Special Agent of the United States Drug Enforcement Agency gave opinion evidence alleging to interpret drug slang in the intercepted telephone calls. The ROC contains hearsay. On June 19, 2013, the Alberta Court of Queen’s Bench issued an order of committal for extradition to United States of America. The appeal from the committal order was dismissed.
36221 Mokua Gichuru v. Howard Smith, Howard Smith Personal Law Corporation both doing business as "Howard Smith & Company" (Employment law – Unjust dismissal – Dismissal for cause)
On appeal from the Court of Appeal for British Columbia. The applicant graduated from law school and, after seeking articles, was offered and accepted an articling position with Howard Smith and Company. He began working as a legal assistant and then as an articled student when his articles were approved by the Law Society. Although another lawyer was his official principal, Mr. Smith was effectively his principle and supervisor. Problems arose with respect to the applicant’s performance, and the trial judge found that Mr. Smith spoke to the applicant about complaints from staff and other lawyers and his unavailability to take Mr. Smith’s calls during the courthouse lunch break. On April 30th, 2002, the applicant’s position with the firm was terminated, and he brought an action for unjust dismissal. The Supreme Court of British Columbia dismissed the applicant’s action. In a separate hearing, the Court awarded the respondents special costs in the amount of $90,000. The Court of Appeal for British Columbia dismissed the appeal, except for setting aside the assessment of special costs.
36230 Terry Piersanti v. Her Majesty the Queen (Taxation — Income tax — Assessment)
On appeal from the Federal Court of Appeal. In 1999, the Canada Revenue Agency launched an investigation under the Excise Tax Act, R.S.C. 1985, c. E-15, based on allegations that corporations controlled by Ms. Piersanti and her husband were not reporting the Goods and Services Tax they collected. As part of the investigation, it obtained a search warrant. The subsequent search gave rise to numerous charges and Ms. Piersanti plead guilty to 35 charges under the Excise Tax Act. As part of the criminal investigation, the CRA issued third-party requirements for documents or information under s. 289 of the Excise Tax Act. Some of them referred to Ms. Piersanti personally. The Minister relied on those documents to reassess Ms. Piersanti’s income tax liability for the taxation years 1995, 1996 and 1997 to include additional amounts in her income. Ms. Piersanti appealed the reassessments and brought a motion asking the trial judge to exclude all documents used by the Minister in issuing the Notices of Reassessment on the ground that they were obtained without judicial authorization and in violation of her rights under the Charter. She also requested that the assumptions in the Reply to the Notice of Appeal be struck and the notices of reassessment be vacated.
The trial judge dismissed the motion and upheld the reassessments. The Court of Appeal dismissed the applicant’s appeal.
36243 Anthony Coote v. J. Norris Ormston, Mario Bellissimo, Bellissimo Law Group, Dana Kean, Sonia Rodrique, Kenneth Duncan Maclean, Matthew Beatty, Kevin MacLennan (Charter of Rights – Discrimination – Natural Justice)
On appeal from the Federal Court of Appeal. On his own behalf and on behalf of his son, the applicant issued a statement of claim against the respondents. The respondents are members of the Immigration Appeal Division and the Immigration and Refugee Board, members of a law firm as well as a law firm. That statement of claim alleged various wrongdoings in relation to earlier immigration proceedings involving the applicant’s son. The applicant also filed a motion for default against the respondents.
The applicant’s statement of claim was struck by the Federal Court and the motion for default was dismissed. While the applicant was in the process of appealing those decisions, he was declared a vexatious litigant pursuant to s. 40 of theFederal Courts Act. That order prohibited the applicant from continuing any proceeding in the Federal Court and Federal Court of Appeal without first obtaining leave to do so.
36108 Alain Pigeon v. Sheet Metal Workers International Association, Local 116 (Commercial law – Administration of the property of others)
In appeal from the Quebec Court of Appeal. The respondent Association alleges that when the applicant, Alain Pigeon, worked as a business manager for them, he and some other individuals set up an illegal financial scheme benefitting a number of employees who had resigned from the Association. The Association submits that shortly before leaving the Association, Mr. Pigeon falsified a resolution to justify setting up a trust plan that allegedly paid out nearly $300,000 in severance. The respondent demands that he pay back this amount.
The Superior Court essentially dismissed the action on the basis that the respondent had not proved that the severance payments were unlawful or constituted an unjustified benefit to the employees who had resigned from the Association. It rejected the Association’s argument that the resolution providing for the severance payments had never been adopted and that Mr. Pigeon had falsified documents.
The Court of Appeal allowed the appeal. It found that the trial judge had made an overriding and palpable error in assessing the evidence because she [TRANSLATION] “had serious, precise and concordant presumptions of fact that clearly supported the [Association’s] claims and ought to have found that the Association had proved on a balance of probabilities that the proposed resolution had been fabricated” (para. 27). Finding that Mr. Pigeon had breached his duties as administrator of the property of others, the Court of Appeal held that he had to pay back the misappropriated funds.
36252 Jeffrey Verdon v. Her Majesty the Queen (Criminal Law – Offences – Elements of offence)
On appeal from the Court of Appeal for Ontario. Mr. Verdon lived with his girlfriend in her apartment. His girlfriend was involved in a landlord-tenant dispute. On November 4, 2011, he had an altercation with the building caretaker in the apartment and he threatened the caretaker. Thereafter, the 78-year old landlord arrived to serve a 24-hour notice to view the apartment. Mr. Verdon invited her in, shut the door, confronted her, and argued with her. She began to cry and said she wanted to leave. He held the door shut as she tried to exit. After she left, Mr. Verdon repeated his threat to the caretaker and added that he would kill the landlord if the caretaker did not stop her from going to the police. The caretaker left. Mr. Verdon followed the landlord onto the street. He grabbed her shoulder with enough force to cause her pain for a few hours. She told him to let go which he did and he apologized. On May 4, 2012, the Ontario Court of Justice entered convictions for two counts of assault, two counts of uttering a death threat, one count of intimidation, and one count of criminal harassment; the Court entered an acquittal on one count of criminal harassment and one count of forcible confinement. The appeal from the conviction for criminal harassment was dismissed.
36180 Kenauk Immobilière SEC v. Serge Bruneau, et al.and Société de la faune et des parcs du Québec, Attorney General of Quebec (Crown law – Real property and immovables)
On appeal from the Quebec Court of Appeal. On the basis of a chain of title tracing back to a concession granted by the French Crown in 1674, the applicant claimed to be the owner of a large part of Lac Papineau (the “mid-lake”), a navigable and floatable lake more than 12 km long, located in the Petite Nation Reserve in Quebec. On April 11, 2002, the applicant instituted an action for permanent injunction against the respondents, who had fished in the mid-lake without obtaining the required permission. The applicant argued that a judgment of Justice Fabre-Surveyer dated October 18, 1938, and published in the land register on January 25, 2002, recognized that its predecessor in title was the exclusive owner of the mid-lake and had exclusive fishing rights. In response, the respondents argued that the lake was in the public domain and that they therefore had the right to fish there without having to obtain permission first. Because the proceeding concerned the ownership of the bed of a navigable and floatable lake, the Attorney General of Quebec was advised pursuant to art. 96 C.C.P. The Attorney General intervened in the proceeding and submitted that, in the absence of a clear and express provision in the 1674 act, the mid-lake was still part of the Crown’s public domain. After a preliminary proceeding on the admissibility of the action, the Attorney General amended her pleadings to file an opposition by a third party under art. 489 C.C.P. seeking the revocation of the Surveyer judgment and the cancellation of the registration in the register.
The trial judge allowed the opposition by a third party and found and that Lac Papineau had never left the public domain. The Court of Appeal dismissed the appeal.
36239 Enoch Cree Nation as represented by chief Ron Vincent Morin, et al. v. The Queen (Civil procedure — Appeals — Injunctions)
On appeal from the Federal Court of Appeal. This application relates to an application for an interlocutory injunction in the context of a larger action concerning the failure of the federal Crown to meet its duty to consult. The corporate respondents (Parkland Airport Development Corporation, CPL6 Holdings Ltd., Robert Gilgen, Silke Gilgen and Aaron Soos) had constructed an airstrip near the reserve land as a partial replacement for the closed Edmonton City Centre airport. It was operational, but was not registered as an aerodrome or certified as an airport. The applicants are concerned with the existing airstrip and with the possible extension of the runway, for which land had been purchased. The applicants, collectively referred to as the Enoch First Nation, sought an interlocutory injunction to prevent the corporate respondents from carrying on any activities related to the development of an aerodrome or airport on lands situated next to their reserve.
The motions judge dismissed the application for an interim injunction. The Court of Appeal dismissed a motion to adduce new evidence and the appeal.