36332 Iron Ore Company of Canada et al. v. Uashaunnuat (Innu of Uashat and Mani‑Utenam) et al.
Aboriginal rights – Treaty rights – Aboriginal title
The applicants have for many years been engaged in mining and operate port facilities and a railway on the North Shore of Quebec and in Labrador. The respondents allege that the applicants’ activities interfere with their Aboriginal title, Aboriginal rights and treaty rights. They therefore brought an action against the applicants seeking damages, a declaratory judgment recognizing their rights and a permanent injunction. The applicants moved to dismiss the action, arguing that Aboriginal rights that are claimed but not yet established as a result of a judicial process or negotiations with the Crown cannot provide a basis for a private law action in liability against a private party. The Quebec Superior Court dismissed the applicants’ motion and the Court of Appeal dismissed the applicants’ motion for leave to appeal.
36430 David Carl Sunshine v. Her Majesty the Queen
Criminal law — Sentencing considerations — Aboriginal offenders
The accused, Mr. Sunshine, was convicted of second-degree murder. He was in a parental role to the two-and-a-half-year-old female victim. The child died from a blow to the stomach. It was found that Mr. Sunshine had hit her on multiple occasions over a significant period, and burned her. Mr. Sunshine is of aboriginal background. Reports revealed that he suffered a highly abusive childhood and youth, coupled with exposure to the negative intergenerational effects of residential schools, overt racism, and discrimination. The judge sentenced Mr. Sunshine to life imprisonment with 15 years of parole ineligibility. He considered Mr. Sunshine’s aboriginal status and his disadvantaged background (as required by s. 718.2(e) of the Criminal Code), of little significance given the gravity of the crime and the treatment of the victim. Mr. Sunshine appealed his sentence unsuccessfully.
36486 Mary Ellen Rose v. Her Majesty the Queen in right of the Province of New Brunswick et al.
Human rights – Discriminatory practices
In April 2012, Ms. Rose filed a human rights complaint against the Province of New Brunswick, several of its officials and others, alleging that they had discriminated against her and prevented her from being hired in various government competitions. Prior to the completion of the New Brunswick Human Rights Commission’s investigation, Ms. Rose also filed a request with the Office of the Conflict of Interest Commissioner to investigate various other officials of the Province of New Brunswick. In June 2013, her complaint was dismissed. Ms. Rose applied for judicial review of that decision. Prior to the hearing of that application, Ms. Rose’s motion seeking various forms of relief that was denied in part. The respondents also filed several preliminary motions that for the most part, were granted. Ms. Rose appealed that decision and her appeal was dismissed.
36378 Blair Coady v. Quadrangle Holdings Limited
Jurisdiction – Choice of forum – Res Judicata
In 2008, the respondent, Quadrangle Holdings Limited (Quadrangle”) brought an action in Nova Scotia against Mr. Coady for having caused Shannon International Resources Inc. (“Shannon”) to misappropriate some of Quadrangle’s shares in Rally Energy Limited (“Rally”). Mr. Coady was an officer and director of both Shannon and Rally. Quadrangle had pledged the Rally shares to Shannon as security for a promissory note from Quadrangle to pay for shares in Shannon. There was an exclusive jurisdiction clause providing that the agreement would be enforced in accordance with the laws of Alberta. The Rally shares were sold and the proceeds deposited to one of Shannon’s accounts prior to the maturity of the note and without breach of any terms of the note by Quadrangle. Initially, Quadrangle reached a settlement agreement with Shannon, but Shannon became judgment-proof. Quadrangle then sued the applicant in Nova Scotia. Mr. Coady obtained a stay of proceedings based on the court’s conclusion that Alberta was the preferable forum for deciding the issues. Quadrangle sued Mr. Coady in Alberta but the court there determined that the claim was barred by the limitations statute. In October, 2012, the order dismissing Quadrangle’s Alberta action was registered with the Supreme Court of Nova Scotia pursuant to the Enforcement of Canadian Judgments and Decrees Act, S.N.S. 2001, c. 30. Quadrangle filed a second Nova Scotia action in which it sought additional remedies. It also moved to have the stay of the 2008 action lifted and to have its two Nova Scotia actions consolidated. The Supreme Court of Nova Scotia, Trial Division lifted the stay and consolidated the actions. The applicant’s appeal was dismissed.
36507 Reza Chowdhury v. Tina Argenti et al.
Wills and Estates
The applicant, Mr. Chowdhury brought a claim against the estate of the late Mr. Argenti. Mr. Chowdhury’s claim was dismissed. The applicant’s subsequent applications for extensions of time and motions for leave to appeal were also dismissed.
36480 Rio Tinto Alcan Inc. v. Jackie Thomas on her own behalf and on behalf of all members of the Saik’uz First Nation et al.
Aboriginal rights – Aboriginal title
The respondents commenced an action in nuisance and for breach of riparian rights against the applicant, alleging that since the construction by the applicant of the Kenney Dam, located in British Columbia, the applicant has diverted and altered the water flowing to the Nechako River with significant adverse impacts on its waters and on the fisheries resources of the Nechako River and its tributaries, and that these impacts constitute an unreasonable interference with the respondents’ proprietary rights. The applicant brought an application seeking summary judgment in its favour as well as an order striking the whole or specific parts of the respondents’ pleadings as disclosing no reasonable cause of action. The Supreme Court of British Columbia dismissed the application for summary judgment but struck out the notice of civil claim in its entirety. The Court of Appeal for British Columbia set aside the order striking the respondents’ notice of civil claim and dismissing their action, struck the claim for interference with riparian rights to the extent that those rights are alleged to arise from an interest in the respondents’ reserves and dismissed the application to strike the pleadings in all other respects. The applicant’s cross-appeal was dismissed.
36405 Jacques-Laurent Lampron et al. v. Algonquin Energy (Sainte-Brigitte) Inc. et al.
Fault – Causation – Flooding
Since December 8, 1997, the respondents had operated a dam and hydroelectric station in accordance with a certificate of authorization issued by the Ministère de l’Environnement for operating the facilities and repairing the inflatable rubber dams with which each section of the dam was equipped.
On April 13, 2001, ice jamming near the rapids upstream from the hydroelectric facilities caused water and ice from the river to overflow onto the land along the river upstream from the rapids and to flood immovables, including the applicants’ immovables. The next afternoon, after obtaining authorization to do so, the operator inflated the rubber dams located near the rapids to try to break up the ice jam that was preventing the flow of water and causing the flooding. Once the rubber dams were inflated, the ice jam broke up and the ice and water held back upstream from the rapids began moving again.
The applicants filed a motion in the Superior Court claiming, inter alia, the amount of the material losses sustained as a result of the erosion of their land and the flooding on April 13, 2001. They argued that those injuries resulted from the construction and operation of the hydroelectric facilities. In their view, the respondents had to be found liable under art. 976 of the Civil Code of Québec for neighbourhood disturbances and under art. 1457 C.C.Q., since the operator had been slow to inflate the rubber dams even though it knew the situation was critical and flooding was foreseeable and imminent. The Quebec Superior Court dismissed the motion for damages and the Court of Appeal dismissed the appeal.
36409 Attorney General of Quebec et al. v. Syndicat des enseignants du CÉGEP de Shawinigan (FNEEQ-CSN)
Labour relations – Arbitration – Grievances
Following strike days by teachers, the Collège cut the teachers’ wages accordingly and then required them to make up five and a half days of cancelled classes during the ten months they were required to be available. The Syndicat des enseignants then filed a grievance claiming wage remuneration for the days of make‑up classes.
An arbitrator from the arbitration tribunals in the Quebec education sector allowed the Syndicat’s grievance in part; since the teachers had completed all the work required by the Collège, full remuneration had to be paid. The arbitrator therefore ordered the Collège to pay wage compensation for making up the cancelled classes, but only to the teachers who had actually had to make up classes. In the Superior Court, Grenier J. allowed the motions for judicial review brought by the Attorney General and the Collège and dismissed the Syndicat’s motion for judicial review. Grenier J. found that the arbitrator had not provided reasons for his award and had based his award not on the evidence in the case but rather on the evidence and analysis from two previous arbitration awards in similar cases; he had created an obligation not found in the collective agreement. The Quebec Court of Appeal allowed the Syndicat’s appeal. It restored the arbitrator’s award, characterizing it as one of the possible, reasonable outcomes in light of the facts and the spirit reflected in all of the collective agreement’s provisions.
36493 Garth Mann et al. v. Bennett Jones LLP
Law of Professions – Barristers and solicitors – Conflict of interest – Duty of loyalty
The respondent has represented the intervener (“Matco”) and its principal for over 25 years. It represented Matco when it entered into a joint venture with the applicant The Statesman Group of Companies Ltd. (“Statesman Group”) to develop a condominium project, with Statesman Group and Matco each owning 50% of the shares of the General Partner of the limited partnership. When a dispute developed with a third party contractor, Matco and Statesman Group asked the respondent to represent the General Partner in the dispute, and also to defend Statesman Group and a related company who were joined as defendants. The respondent required a waiver from Statesman Groups’ General Counsel acknowledging that, given its relationship with Matco, the firm did “not disqualify ourselves from assisting Matco in … the unlikely event of disagreement between it and the Statesman group in future”.
Matco later became concerned over conduct by Statesman Group and sought the respondent’s help to terminate the General Partner, oust Statesman Group as manager of the construction project and commence an oppression action. Meanwhile, the respondent continued to act for the Statesman Group and General Partner in relation to the lien dispute until terminated by them on June 24, 2010. The applicants brought an action against Matco and named the respondent as a defendant. They later applied to disqualify the respondent from acting for the Matco Group and sought damages for breach of fiduciary duty. The respondent stepped aside and Matco has been represented in the dispute by another firm. The Court of Queen’s Bench of Alberta granted Statesman Group’s application and issued a declaration that the respondent was disqualified from acting as counsel to any of the parties in the dispute. The Court of Appeal of Alberta allowed the appeal and set aside the lower court decision.
36474 Denise Garneau v. Industrial Alliance Insurance, Financial Services Inc.
Employment insurance – Long term disability benefits – Summary judgments
Ms. Garneau began receiving long term disability (“LTD”) benefits from the government in 1996. In June, 2002, she took medical retirement from her government job and began receiving pension benefits. Her LTD policy provided that the amount of her monthly LTD benefits payable would be reduced by the amount of her superannuation and Canada Pension Plan benefits. Superannuation sent a letter to Industrial Alliance Insurance and Financial Services Inc. (“Industrial”), informing it that Ms. Garneau would retire effective June 28, 2002 and outlining the precise amount of retirement benefits she would receive. This letter was not sent to Industrial until September, 2007, about five years after Ms. Garneau’s retirement. Until that time, when it discovered the error, Industrial had made full LTD benefit payments to Ms. Garneau. By that point, she had been overpaid by $114,644.76. To reimburse itself, Industrial paid her 50 per cent of her LTD benefits each month, applying the other 50 per cent to reduce the overpayment. Ms. Garneau brought an action for, inter alia, a declaration that Industrial was not entitled to do so or limiting the amount of the monthly reimbursement payments and for damages. The Ontario Superior Court of Justice dismissed the applicant’s action for a declaration and for aggravated, exemplary punitive and special damages and granted the respondent’s motion for summary judgment. The Court of Appeal dismissed the applicant’s appeal.
36414 Bell Expressvu Limited Partnership v. Vidéotron S.E.N.C., Groupe TVA inc.
Civil liability – Satellite television – Hacking
Vidéotron S.E.N.C. and Groupe TVA inc. initiated proceedings against Bell Expressvu Limited Partnership seeking compensation for loss of revenue as a direct consequence of its omission to protect its direct-to-home satellite television system from hacking. The Superior Court of Quebec granted the action in part holding that Bell Expressvu Limited Partnership was liable and failed to take measures to avoid or minimize damages. The Court awarded Vidéotron S.E.N.C the amount of $339,000 in damages and TVA inc. the amount of $262,000 in damages. No punitive damages were awarded. The Court of Appeal allowed the appeal and dismissed the cross-appeal. The Court of Appeal held that the Superior Court had made a palpable and overriding error in the quantum of damages.
36491 Robert Wasserman et al.
Civil procedure – Case management – Foreclosure from pleadings
The applicants were declared foreclosed from pleadings in previous decisions of the Superior Court of Quebec and the Court of Appeal of Quebec early in the proceedings. However, the respondent amended its pleadings before trial. The applicants sought to file a defense in response to the amendments which was denied by the Courts, who found that the foreclosure from pleadings should stand given the nature of the amendments. The Superior Court of Quebec granted a declaration that the applicants are denied the right to file a defense on the amended pleadings, but were allowed to file an expert report on the nature, extent, and worth of masonry work claimed. The Court of Appeal dismissed the application for leave to appeal.
36518 M.E.N. v. Her Majesty the Queen
Criminal law – Offence – Elements of offence – Voyeurism
M.E.N. and the complainant met through an internet site for adults. They met twice in motel rooms for sexual encounters. During the first encounter, the complainant told M.E.N. not to take pictures of her. The complainant testified that they met again on September 4, 2010 and she told M.E.N. that she wanted to end sexual relations. After that meeting, M.E.N. sent the complainant a text message with a picture of her. The complainant testified that he threatened to send a video of her to her husband if she ended the relationship. In the photo, she is wearing a bra but no underwear. In the video, she is wearing underwear and getting ready to put her clothes on. The complainant testified that she had not known that M.E.N. had taken the photo or video. She went to the police and M.E.N. was charged with sexual assault, voyeurism and extortion. The Ontario Court of Justice entered convictions for voyeurism and extortion and an acquittal on the count of sexual assault. The Court of Appeal dismissed the appeal from the convictions.
36536 Paul Gnanamani Kanagarajah v. Immigration Appeal Board of Canada et al.
Charter of Rights – Right to fair hearing – Immigration
Mr. Kanagarajah entered Canada as a landed immigrant from Sri Lanka in 1976. In November, 1982, he was deported back to Sri Lanka from Canada. In 2013, he sought leave to appeal to commence an application for judicial review of the deportation order. The Federal Court of Appeal dismissed the applicant’s motion for leave to commence an application for judicial review of the 1982 deportation order.
36473 Jules Honoré Chartier v. Manitoba Public Insurance Corporation
Civil procedure – Time – Dismissal for delay
In 1994, Mr. Chartier collided with a motor vehicle while riding his bicycle, sustaining several injuries. A few weeks later, he was fired from his job. Mr. Chartier made a claim for Income Replacement Indemnity, alleging that his motor vehicle accident injuries rendered him incapable of performing his duties at work. The respondent disputed Mr. Chartier’s claim regarding the extent of his injuries and the compensation that was due to him. The Manitoba Public Insurance Corporation denied his insurance claim on the ground that his injuries did not render him entirely or substantially unable to perform the essential duties of his employment. Mr. Chartier applied for leave to appeal that decision. The Court of Appeal of Manitoba granted the respondent’s motion to have the applicant’s application for leave to appeal dismissed for delay.
36438 Carlos Huerto v. Bryan Salte, Q.C. et al.
Civil procedure – Abuse of process – Pleadings
The respondent Heppner made a complaint to the College of Physicians and Surgeons for Saskatchewan of improper conduct by the applicant. The College investigated the complaint, conducted a search of the applicant’s clinic and other properties, and proceeded with charges against the applicant and a hearing. The applicant was found guilty of unprofessional conduct in relation to his activities with respondent Heppner and his appeal of the conviction to the Court of Queen’s Bench was dismissed. The RCMP carried out an investigation into the applicant’s activities and charged him with fraud. The applicant was acquitted of the criminal charges.
The applicant commenced an action against the respondents claiming damages jointly and severally from them in their personal capacity. The respondents brought motions to strike the pleadings on various grounds. The Court of Queen’s Bench of Saskatchewan struck the applicant’s Statement of Claim against the respondents in full and granted an interim sealing order with respect to patient names included in the proceedings. The Court of Appeal for Saskatchewan dismissed the applicant’s appeal.
36448 Jonathan David Meer v. Her Majesty the Queen
Charter of Rights and Freedoms – Right to a fair hearing – Ineffective assistance of counsel
The applicant was charged with conspiring to commit, and being a party to, acts of assault, intimidation, threats and arson. Before trial commenced, disciplinary proceedings were commenced against the applicant’s defence counsel in unrelated real estate matters but the Law Society of Alberta allowed him to continue his criminal defence practice. Crown counsel applied to have him removed as counsel of record. The applicant opposed the motion. On a voir dire, the trial judge allowed the applicant’s counsel to continue to act as defence counsel. At trial, the trial judge compared handwriting samples without notice and without opinion evidence from a handwriting expert. Two communications between the applicant and his wife were admitted into evidence without counsel addressing spousal communications privilege. During cross-examination of an alleged co-conspirator, defence counsel raised an allegation that the co-conspirator was an arsonist in an unrelated fire. The alleged co-conspirator denied the allegation. Defence counsel did not investigate the allegation further nor did he pursue it further at trial. On appeal, the applicant argued in part that his counsel at trial had been incompetent and ineffective, giving rise to a miscarriage of justice, and that the trial judge erred in his approach to the handwriting evidence. A majority of the Court of Appeal dismissed the appeal.
36462 Harvey Werner v. Hay River Mobile Home Park
Administrative law — Jurisdiction — Doctrine of functus officio
Pursuant to an order of a rental officer made in March 2000, Mr. Werner’s tenancy in the Hay River Mobile Home Park (the “Park”) was terminated for non-payment of rent. The Sherriff put the Park in possession of the premises in August 2002. In October 2003, the Park removed the mobile home and its contents to the town dump without permission from the rental officer. Mr. Werner applied for compensation for his property. The rental officer concluded that Mr. Werner’s losses were due to his failure to remove his property at the termination of the lease. He declined to award Mr. Werner any compensation. The Supreme Court of the Northwest Territories ordered a rehearing. On rehearing, the rental officer ordered the Park to pay Mr. Werner $1,738.23 as compensation. The Supreme Court of the Northwest Territories held that the rental officer’s decision was reasonable and dismissed Mr. Werner’s appeal. The Court of Appeal dismissed Mr. Werner’s appeal from that decision.
36464 Advanced Glazing Technologies et al. v. McInnes Cooper
Law of professions – Barristers and solicitors – Taxation of accounts
The respondent law firm applied to an adjudicator in the Small Claims Court of Nova Scotia for the taxation of a number of accounts totalling $89,448.49. The applicants refused to pay the accounts, claiming that the respondent acted in conflict of interest and that the fees were not reasonable. The adjudicator found that there was no conflict of interest and that the fees were reasonable, and taxed the accounts in the amount requested by the respondent. The applicants’ appeals to the Supreme Court of Nova Scotia and to the Court of Appeal were dismissed.
36467 Leon Walchuk v. Canada (Minister of Justice)
Administrative law – Judicial review – Standard of review
In 2000, Mr. Walchuk, applicant, was convicted of second degree murder. In 2009, with the assistance of the Innocence Project at Osgoode Hall, Mr. Walchuk submitted an application to the Minister of Justice pursuant to s. 696.1 of the Criminal Code. He relied on three new arson expert opinions which challenged those that had been tendered at trial. The Minister refused to exercise his discretion and grant the extraordinary remedy sought. In his view, even in light of the new expert evidence, there was still sufficient remaining evidence that pointed to Mr. Walchuk’s intentional killing of his wife. Accordingly, the Minister was not satisfied that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred. The Federal Court dismissed Mr. Walchuk’s application for judicial review of the Minister’s decision, and the Federal Court of Appeal dismissed his appeal.